text:
    In the Matter of Society of the New York Hospital, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants. Society of the New York Hospital, Respondent, v Howard Veit, as Director of Office of Health Systems Management, et al., Appellants. In the Matter of New York Eye & Ear Infirmary, Respondent, v David Axelrod, as Commissioner of the New York State Department of Health, et al., Appellants.
    Argued October 14, 1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Marion R. Buchbinder, O. Peter Sherwood and Lawrence S. Kahn of counsel), for appellants.

      William C. Heck and Rita M. Frederick for Society of the New York Hospital, respondent.

      Norton L. Travis and Howard D. Avrutine for New York Eye and Ear Infirmary, respondent.
   OPINION OF THE COURT

Alexander, J.

We conclude upon this appeal that respondent, Commissioner of Health, improperly considered the ability of petitioners to "afford” labor cost increases above projected levels in determining whether to grant their applications, pursuant to the Supplemental Hospital Index Factor (SHIF) program, for a waiver of the labor cost reimbursement ceiling. Accordingly, his refusal, on the basis of "affordability”, to reimburse petitioners for their actual labor costs pursuant to the SHIF program was arbitrary and capricious.

Pursuant to Public Health Law § 2807 (3), respondent, Commissioner of Health, is empowered to set hospital reimbursement rates for Medicaid, Blue Cross, workers’ compensation, and no-fault insurance. The computation of a hospital’s reimbursement rate is based on the hospital’s actual costs incurred during a given base year which are then adjusted for inflation, or "trended”, yielding projected costs which are thereafter used to establish the rate at which the hospital may be reimbursed (see, Public Health Law § 2807 [2] [j] [i], amended and renum Public Health Law § 2808-c [8], L 1985, ch 807, § 4; 10 NYCRR 86-1.15). In "trending” actual costs, the Commissioner may consider various factors affecting health care costs, including projected labor cost increases (10 NYCRR 86-1.15). In 1978, the Commissioner established the SHIF program in order to provide relief to individual hospitals that, as a result of increased labor costs arising from multiyear labor agreements, would suffer hardship if the calculation of their reimbursement rates did not reflect the actual labor cost increases (see, 10 NYCRR 86-1.17 [a] [5]). Under the SHIF program, the Commissioner may grant a waiver of the trend factor that limits reimbursable labor costs, in which event the hospital may be reimbursed for its actual — as opposed to projected— labor cost increases.

In addition to satisfying various SHIF eligibility requirements set forth in a Health Facilities Memorandum issued by the Commissioner, an applicant was required to pass a separate "affordability” test measuring its ability to pay for increased labor costs from its own resources without the benefit of a SHIF waiver. In assessing a particular hospital’s ability to afford increased labor costs, the Commissioner employed a "current ratio” test which compared a hospital’s assets to its liabilities. If the hospital’s total assets were found to be greater than its total liabilities, the hospital would be considered sufficiently affluent to "afford” its labor cost increases, and would thus be ineligible for SHIF waiver benefits.

Applications for SHIF benefits by hospitals belonging to a group governed by a single collective bargaining agreement, such as the League of Voluntary Hospitals or the Association of Private Hospitals, were treated differently from applications by independent hospitals. SHIF waivers were awarded to the members of such groups, if the group’s total liabilities exceeded the group’s total assets, notwithstanding that an individual member’s assets may have exceeded its liabilities. Petitioners, New York Hospital and the New York Eye and Ear Infirmary — two independent hospitals not members of a particular group — applied for SHIF waivers for the rate period July 1, 1978 to June 30, 1980. New York Hospital also applied for a SHIF waiver for the rate period July 1, 1980 to June 30, 1982. The Commissioner denied the applications, finding that the petitioners’ respective assets exceeded their respective liabilities, and thus each petitioner could "afford” the increased labor costs for the applicable rate period resulting from their multiyear wage agreements. Petitioners subsequently commenced separate article 78 proceedings challenging the Commissioner’s denial of SHIF benefits for the 1978-1980 rate period. Additionally, New York Hospital sought a declaratory judgment that it was entitled to the SHIF waiver for the 1980-1982 rate period.

Special Term consolidated the article 78 proceedings and the declaratory judgment action and declared, as a matter of law, that the Commissioner’s reimbursement rate structure and the requirements for determining SHIF eligibility, including consideration of the "affordability” factor had a rational basis, and therefore were reasonable so long as they were uniformly applied. Special Term denied motions and cross motions for summary judgment, however, and ordered a trial to determine whether the eligibility requirements were arbitrarily applied to petitioners.

The Appellate Division disagreed with Special Term and declared that the Commissioner’s exclusion of petitioners from the SHIF program on the basis asserted was arbitrary and capricious. That court modified Special Term’s order by granting summary judgment to petitioners, concluding that they were entitled to the SHIF waiver benefits for the relevant rate periods since neither Public Health Law §2807 (3), nor the regulations promulgated thereunder, authorized the Commissioner to use an "affordability” test in determining SHIF eligibility. The Appellate Division further held that, even if the Commissioner’s requirement of "affordability” was authorized, the "current ratio” test was nevertheless arbitrarily applied to petitioners because the current ratios of some hospitals were computed by comparing the total assets and liabilities of the group to which they belonged, whereas the current ratios of petitioners were computed individually. The court remanded the cases to the Commissioner directing the assessment of benefits due and owing.

In assessing the validity of the Commissioner’s use of an "affordability” standard in determining a hospital’s eligibility to receive a SHIF waiver, our scope of review is limited to determining whether that eligibility requirement represents a reasonable exercise of the Commissioner’s authority (see, Matter of Sisters of Charity Hosp. v Axelrod, 59 NY2d 872, affg on opn below 89 AD2d 821; Matter of Sigety v Ingraham, 29 NY2d 110). Generally, rate-setting actions of the Commissioner, being quasi-legislative in nature, may not be "annulled except upon a compelling showing that the calculations from which [they] derived were unreasonable” (see, Matter of Catholic Med. Center v Department of Health, 48 NY2d 967, 968). However, "in exercising its rule-making authority an administrative agency cannot extend the meaning of the statutory language to apply to situations not intended to be embraced within the statute” (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 595). Moreover, an agency may not "promulgate a rule out of harmony with or inconsistent with the plain meaning of the statutory language”. (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d, at 595, supra.)

Here, by considering petitioners’ respective capacities to afford increased labor costs, the Commissioner exceeded the statutory mandate, and thus acted arbitrarily in denying petitioners’ SHIF benefits. During the periods in issue, the Commissioner was required by statute to certify that reimbursement rates for inpatient hospital services were "reasonably related to the costs of efficient production of such service” (Public Health Law § 2807 [3], L 1969, ch 957, § 4). In certifying rates, the Commissioner was directed to consider "the elements of cost, geographical differentials in the elements of cost considered, economic factors in the area in which the hospital is located, the rate of increase or decrease of the economy in the area in which the hospital is located, costs of hospitals of comparable size, and the need for incentives to improve services and institute economies” (Public Health Law § 2807 [3], L 1969, ch 957, § 4). Pursuant to this legislative mandate, the Commissioner promulgated regulations for the computation of, and the waiver of, rate ceilings (10 NYCRR part 86 et seq.).

It is evident from the statutory language that denial of a waiver of the rate ceiling predicated on a factor unrelated to the reasonableness of hospital costs was arbitrary because premised upon a ground that the Commissioner was not authorized to consider under the statute (see, Matter of Kew Gardens Sanitarium v Whalen, 55 AD2d 226, 229, affd on opn below 43 NY2d 675; see also, Matter of Larkin Co. v Schwab, 242 NY 330, 334). Despite the Commissioner’s contention that the ability to afford higher labor costs is a factor reasonably related to "efficient production” of hospital services, the statute in effect at the relevant times did not so provide (Public Health Law § 2807 [3], L 1969, ch 957, § 4). Moreover, while the financial wealth of an individual hospital may bear on that hospital’s potential capability of meeting increased labor costs, such wealth has no relevance to the Commissioner’s assessment of the reasonableness of labor costs in the hospital service industry — the benchmark for determining whether a particular hospital’s labor costs are reasonable. By applying an "affordability” test to determine the eligibility of petitioners for a SHIP waiver, the Commissioner considered a factor that he could not have permissibly considered in certifying reimbursement rates. Thus, the Commissioner construed the statutory language, as it then existed, beyond its intended scope. Consequently, the denial of SHIP waiver benefits to petitioners pursuant to the "affordability” analysis was arbitrary and capricious.

Finally, we conclude that in directing the award of SHIP waiver benefits, and remitting for a determination of the benefits, the Appellate Division impermissibly interfered with the agency’s discretion. We have considered the Commissioner’s remaining contentions and find them to be without merit. Accordingly, the order of the Appellate Division should be modified by remitting the matters to the Commissioner of Health for a determination of petitioners’ applications for SHIP benefits without considering "affordability”, and, as so modified, affirmed.

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Chief Judge Wachtler taking no part.

Order modified, with costs to appellants, and matter remitted to Supreme Court, New York County, with directions to remand to the Commissioner of Health for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . It appears that the SHIF program was initiated in response to a threatened strike by District 1199 of the Health and Hospital Workers Union against the League of Voluntary Hospitals, a voluntary association that functions as an authorized bargaining agent for its member hospitals.

      . The statute has since been amended to require the Commissioner to certify that the reimbursement rates "are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities” (Public Health Law § 2807 [3], L 1982, ch 536, § 3).

      . We note that under present law, the Commissioner is authorized to consider the fiscal capability of a general hospital to finance labor cost increases out of its own resources in determining whether to grant a rate adjustment to a hospital’s annual revenue cap (see, Public Health Law § 2808-c [5] [c] [i]). This statutory provision, however, was not in effect at the time petitioners applied for SHIF benefits, and the Commissioner does not invoke this provision on this appeal (see, Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Michael H. Moser, Respondent.
    Argued November 10, 1987;
    decided November 24, 1987
    POINTS OF COUNSEL

      John T. Ward, District Attorney (Daryl P. Brautigam of counsel), for appellant.

      James P. Subjack for respondent.
   OPINION OF THE COURT

Per Curiam.

The issue on this appeal is whether Vehicle and Traffic Law § 1194 (7) (a) requires a physician to be actually present, observing the procedure, when a laboratory technician draws a blood sample from a suspect for the purposes of conducting a test to determine its alcoholic or drug content. We disagree with County Court’s conclusion that the statute requires personal presence by the physician and conclude, instead, that the procedure employed here complied with the statute.

City Court found, after hearing the testimony of the physician in charge of the emergency room and the technician who drew the blood sample, that the physician directed and supervised all activities in the emergency room and that he authorized the taking of the sample. Accordingly, the court ruled that he personally supervised the procedure within the meaning of the statute, notwithstanding that he may have been busy with another patient and did not personally witness the event. We agree that this evidence of personal supervision was sufficient to satisfy the statutory requirement.

County Court’s reading of the statute to require that the physician stand by the technician’s side during the procedure conflicts with the apparent purpose of the statute. The 1969 amendment to section 1194, which first allowed lab technicians to draw blood samples, enlarged the class of authorized persons with the obvious purposes of making blood alcohol and drug content tests easier to obtain and relieving the burden on those already entitled to perform the procedure (see, L 1969, ch 669, § 1). Although the personal supervision of a physician is an important safeguard for the health of the suspects to be tested, it would be anomalous in light of the purposes of the amendment to require the physician to put his other duties aside to watch the technician perform the procedure. If that were the requirement, there would be no reason to allow the technician to take the sample in the first place.

In our view, the concerns addressed by the supervision requirement are adequately served by the physician’s authorization of the test, which presumably reflects his medical judgment that it will not put the patient at risk, and his presence to respond to inquiries and emergencies.

Accordingly, the order of the County Court should be reversed, the conviction reinstated, and the case remitted to Dunkirk City Court for further proceedings on the information.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a concur in Per Curiam opinion.

Order reversed, etc.

       At the time the blood sample was taken from defendant, the pertinent statute read: "No person except a physician, registered professional nurse, laboratory technician as classified by civil service or as registered by the American Society of Clinical Pathologists and under the personal supervision and direction of a physician, or registered physician’s assistant, acting at the request of a police officer shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein. This limitation shall not apply to the taking of a urine, saliva or breath specimen.” (Vehicle and Traffic Law § 1194 [7] [a] [emphasis added].) Although the statute has since been amended, the relevant language remains intact.


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v Kathleen O’Doherty, Appellant.
    Argued October 7, 1987;
    decided November 24, 1987

      POINTS OF COUNSEL

      Florence M. Kerner and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Robert I. Caloras of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

This appeal requires us to decide whether the People may be excused from their failure to comply with the statutory requirement that they notify defendant, within 15 days of her arraignment, of their intention to offer at trial evidence of a statement made by her to a police officer (see, CPL 710.30). We hold that the People did not establish good cause for the delay and that, therefore, it was error to permit them to serve a late notice and to admit such evidence at defendant’s trial. Lack of prejudice to the defendant resulting from the delay does not obviate the need for the People to meet the statutory requirement of good cause before they may be permitted to serve a late notice.

Defendant was convicted, after a jury trial, of robbery in the first degree, based on charges that, in the predawn hours of July 1, 1982, she and a male accomplice robbed at gunpoint a cab driver named Balram Jageswar. According to Jageswar, the pair hailed his cab in Manhattan and, when he stopped to let them off in Queens, the male held a gun to his head while defendant took his watch, wallet and $120 in cash, and handcuffed him. The assailants then drove off in the cab, leaving their victim behind. Jageswar found his way to a phone booth to summon the police, who came to his aid and transported him to the 105th Precinct in Queens. There, he recounted the events and gave the police a description of the robbers. The case was assigned to Detective Kelly of the Queens Robbery Squad.

On August 12, 1982, defendant and Alfredo Perez were arrested in Queens by Police Officer Nash in connection with a separate but similar crime, for which they were eventually indicted. In response to questioning by Nash at that time about other incidents in the area, defendant made several inculpatory statements, including the one at issue on this appeal: "I was with him [Perez] on the Balram Jageswar robbery. He deserved it because he took us into Nassau County.” Nash made a note of the statement but he did not convey the information to those investigating the Jageswar robbery.

Detective Kelly learned, however, that a male and female had been arrested by Nash for a crime similar to the Jageswar robbery and he obtained the arrest photos of the pair for use in his investigation. On September 8, 1982, Jageswar picked defendant’s photo from an array displayed to him by Kelly. Defendant was arrested on September 24, indicted for the Jageswar robbery on October 18, and arraigned on the indictment on November 3, 1982. Neither Kelly nor the Assistant District Attorney assigned to the case yet knew of defendant’s statement to Nash.

It was not until April 5, 1983, five months after defendant’s arraignment, that Nash notified Kelly and the ADA of defendant’s statement implicating herself in the Jageswar robbery. Shortly thereafter, the People moved for permission to serve a late notice of their intention to use the statement, asserting that they had good cause for their failure to notify defendant within 15 days of arraignment (see, CPL 710.30 [2]). Defendant cross-moved for an order precluding the use of the statement (see, CPL 710.30 [3]).

Supreme Court held a hearing on the motion and at the same time, over defendant’s objection, held a Huntley hearing (see, People v Huntley, 15 NY2d 72) to determine if the statement was made voluntarily. The court found the facts to be essentially as stated above and ruled that the People had established good cause for their failure to notify defendant within the statutory time period. Accordingly, the court denied defendant’s motion to preclude the use of the statement, granted the People’s motion for permission to serve a late notice and ruled that the statement was admissible. The statement was subsequently used at defendant’s trial and she was convicted of the Jageswar robbery.

The Appellate Division affirmed the conviction without addressing whether the People had established good cause, reasoning that, because defendant received notice far enough in advance of trial to prepare a defense, the purpose of the notice requirement had been satisfied (121 AD2d 570). Defendant was granted permission to appeal by a Judge of this court.

I

CPL 710.30 requires that the People serve upon a defendant, within 15 days after arraignment, notice of their intention to offer at trial evidence of statements made by the defendant to public servants. The court may permit the People to serve a late notice, however, "[f]or good cause shown” (CPL 710.30 [2]). In the absence of a timely notice or a late notice as permitted by the court, the evidence may not be received against the defendant at trial, unless the defendant has nevertheless made an unsuccessful suppression motion directed at such evidence (CPL 710.30 [3]).

The People argue in support of an affirmance that the lack of communication between Officer Nash and the Assistant District Attorney is a sufficient excuse under the statute for their noncompliance and that, accordingly, Supreme Court properly allowed them to serve a late notice. In the alternative, they ask us to adopt the reasoning of the Appellate Division that the goal of CPL 710.30 is simply to allow a defendant adequate opportunity to prepare a challenge to the voluntariness of the statement and consequently, if the prosecution’s noncompliance does not compromise that objective— that is, if the defendant is not prejudiced by the delay in receiving notice — then the People should not be precluded from using the statement, notwithstanding their lack of "good cause.” Finally, the People contend that, if it was error to allow the statement to be used at trial, such error was harmless.

Defendant, on the other hand, urges that the excuse proffered by the People is indistinguishable in principle from the one advanced by the People and rejected by this court in People v Spruill 47 NY2d 869). Defendant further argues that good cause is, under the plain terms of the statute, an indispensable requirement, without which permission to file a late notice may not be granted. She asks us to reject the "no prejudice” rule applied by the Appellate Division. Accordingly, she contends that it was error to permit the People to use the statement at trial and that such error was not harmless.

For the reasons that follow, we agree with the defendant’s contentions. The order of the Appellate Division should be reversed and a new trial ordered.

II

CPL 710.30, insofar as it concerns confessions or admissions by a defendant, finds its origins in Jackson v Denno (378 US 368), in which the United States Supreme Court held that such statements may not be considered by the jury which is to adjudicate guilt or innocence unless there has first been a determination by a separate fact finder, following an evidentiary hearing, that such statements were made voluntarily. To effectuate that decision, this court set forth tentative procedures to govern such hearings in this State, "pending further development by the courts or by the Legislature, or both” (People v Huntley, 15 NY2d 72, 74, supra). Among other procedures, we required that "[t]he prosecutor must, within a reasonable time before trial, notify the defense as to whether any alleged confession or admission will be offered in evidence at trial. If such notice be given by the People the defense, if it intends to attack the confession or admission as involuntary, must, in turn, notify the prosecutor of a desire of a preliminary hearing on such issue” (id,., at 78).

The Legislature soon codified and refined the procedures we outlined in Huntley by adding title II-C to part 6 of the Code of Criminal Procedure (L 1965, ch 846, § 1). The notice requirement was found in section 813-f of the code, which required written notice "within a reasonable time before the commencement of the trial”. The statute contained no explicit sanction for noncompliance, but it was held that failure to provide the required notice deprived the People of the evidentiary use of the defendant’s statement (see, People v Schwartz, 30 AD2d 385, 388).

This exclusionary sanction was given the endorsement of the Legislature when the Code of Criminal Procedure was replaced by the Criminal Procedure Law in 1971 (L 1970, ch 996, § 1). Thus, subdivision (3) of CPL 710.30 provided that evidence subject to the notice requirement could not be received against the defendant at trial if pretrial notice had not been given. Subdivision (2), however gave the People an opportunity to avert that consequence by providing that, "[f]or good cause shown * * * the court may permit the people to serve such notice during trial, and in such case it must accord the defendant reasonable opportunity to make a suppression motion during trial”.

It was this version of CPL 710.30 that we addressed in People v Briggs (38 NY2d 319) and People v Spruill (47 NY2d 869, supra), both of which involved attempts by the prosecution to serve notice during trial. In Briggs, the only excuse offered by the prosecutor for the failure to serve the notice before trial, as the statute then required, was a "lack of continuity” in the prosecutor’s office; the trial prosecutor apparently did not know whether the notice had been served by his office. The trial court permitted the People to serve a late notice and, after a hearing on the voluntariness, admitted statements made by the defendant to a New York City detective. We vacated the resulting conviction and ordered a new trial, holding that "[l]ack of continuity or other office failure does not constitute the 'unusual circumstances’ contemplated by the statute” (People v Briggs, supra, at 324).

In People v Spruill, the excuse offered for failure to give pretrial notice was that the police officer to whom the statement was made had not informed the prosecutor of the confession prior to trial. We held that this excuse was inadequate, finding it no different in principle from the excuse we rejected in Briggs, and noting that knowledge on the part of the police department must be imputed to the District Attorney’s office (People v Spruill, supra, at 870-871).

Ill

We agree with defendant that the People’s excuse should fare no better in this case, where the police officer who had knowledge of the statement did not inform the prosecutor in time to comply with the requirements of the statute. The People seek to distinguish Spruill on the ground that the statement in this case was made to Officer Nash, who was investigating a separate crime. In Spruill, they point out, the statement was made to the officer who arrested the defendant for the crime for which he was on trial when the statement was offered. Therefore, the People contend, the relationship between Officer Nash and the prosecutor assigned to the Jageswar robbery was more distant than the relationship between the arresting officer and the prosecutor in Spruill. The People argue that, for this reason, it is unrealistic to impute the knowledge of Nash to the prosecutor in this case.

There may be instances where, given the time, place and context of the defendant’s statement to a police officer and an attenuated connection between that officer and the prosecutor, the untimely disclosure of the statement to the prosecutor would present the "unusual circumstances” to which the good cause requirement is addressed. There are no such circumstances here.

Officer Nash’s own testimony at the hearing on the People’s motion discloses that he was in frequent contact with Detective Kelly and with the prosecutor assigned to the Jageswar case, who was also assigned to the case arising out of Nash’s arrest of defendant. Indeed, Nash spoke to someone from the District Attorney’s office immediately after he interviewed defendant, but disclosed only those statements that he thought were pertinent to his own arrest. He was aware that Detective Kelly later arrested defendant on similar charges and, although he denied knowledge that Kelly’s arrest was for the Jageswar incident, it is clear from the testimony at the hearing and from Nash’s questioning of defendant that the police and the prosecutor’s office viewed the series of taxicab robberies as related. Under these circumstances, the prosecutor’s ignorance of defendant’s statement to Nash cannot be excused because of a supposed attenuated relationship with Nash. Rather, it is, as in Spruill, the result of an " 'inadequacy of internal communication within the law enforcement establishment’ ”, an insufficient basis for delay in giving the defendant notice (People v Spruill, 47 NY2d 869, 871, supra, quoting People v McLaurin, 38 NY2d 123, 126).

The People argue nonetheless that the delay should be excused because it resulted in no harm to the defendant. They point out that, unlike in Briggs and Spruill, where notice was given at trial, in this case notice was given far in advance of trial. Thus, they contend, the purpose of the statute, which they identify as "giv[ing] a defendant adequate time to prepare his case for questioning the voluntariness of a confession or an admission” (People v Briggs, supra, at 322-323), has not been frustrated because the defendant was not prejudiced by the delay. This position finds support in a number of decisions in the lower courts, especially after the 1976 amendment to CPL 710.30, which accelerated the time for serving notice from "before trial” to "within fifteen days after arraignment” (L 1976, ch 194, § 3). These decisions (see, e.g., People v Swan-ton, 107 AD2d 829; People v Taylor, 102 AD2d 944, affd on other grounds 65 NY2d 1; People v Brown, 83 AD2d 699; People v Anderson, 80 AD2d 33) evince an understandable reluctance to deprive the People of useful evidence for failure to comply with a stringent statutory requirement, especially where defendant is not harmed by the omission. Although we fully understand the sentiment, we believe that these decisions conflict with the plain language of the statute, which reflects a legislative policy determination with which the courts may not interfere.

The language which triggers the People’s opportunity to serve a late notice — "[f]or good cause shown * * * the court may permit the people to serve such notice” — was unaffected by the 1976 amendment and thus remains an "unqualified] command” that the court may permit service of an untimely notice "only upon a showing of good cause” (People v Briggs, supra, at 323). Such a showing is, therefore, indispensable. Only if that threshold is crossed may the court move on to considerations of prejudice to the defendant, and only then because the existence of prejudice may preclude granting the relief sought by the People, notwithstanding their showing of good cause (see, People v Briggs, supra, at 323; see also, People v Wright, 127 Misc 2d 885, 892; cf., People v Basilicato, 64 NY2d 103, 117 [construing CPL 700.70]).

That the People have only 15 days after arraignment to comply does not change the plain meaning of the statutory language. In fact, retention of the good cause requirement in the face of the 1976 amendment reinforces our conclusion that lack of prejudice to the defendant is not a substitute for a demonstration of good cause. Under normal circumstances, the defendant could easily be given an adequate opportunity to challenge the voluntariness of the statement at any time before trial. Thus, acceptance of the argument advanced by the People would require that permission to serve late notices be granted routinely. Such an approach would effectively abrogate the 15-day requirement and invite a return to the practice of giving notice at a much later date, even on the eve of trial. Such a result was not the Legislature’s intention.

Nor does the accelerated notice requirement contained in the 1976 amendment demand a relaxation of the standard for evaluating claims of good cause that we developed in Briggs and Spruill. The 15-day rule was approved only five months after our decision in Briggs, but there is no hint of disapproval in the amendment or the relevant legislative history. More importantly, however, we believe that the goals of the statute would not be well served by the dilution or disregard of the good cause requirement.

Although CPL 710.30 retains as its central purpose that of providing a defendant with the opportunity to obtain a pretrial ruling on the admissibility of statements to be used against him, the 1976 amendment was designed to serve an ancillary goal — the orderly, swift and efficient determination of pretrial motions. The impetus for the amendment was the enactment of article 255 of the Criminal Procedure Law (L 1974, ch 763, § 1), the omnibus pretrial motion provisions which sought to impose order and speed on pretrial motion practice by requiring the defendant to make substantially all pretrial motions at one time, on one set of papers before one Judge, within 45 days after arraignment (see, CPL 255.20; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 255.10, at 437-438). Until the 1976 amendment, however, these goals were compromised by the prosecutor’s ability under CPL 710.30 to serve a notice on defendant at any time before trial, which triggered the defendant’s right to make an additional pretrial motion, requiring a hearing and resulting in additional delay. It was to alleviate this problem that the 1976 amendments to CPL 710.30, requiring notice to defendant within 15 days after arraignment, along with conforming changes to CPL 255.20 and CPL 700.70, were proposed (see, 21st Ann Report of NY Jud Conf, 4th Ann Report by Advisory Committee on CPL, at 339-340, 348-349 [1976]).

Thus, not only considerations of fairness to the defendant, but also concerns for the efficient conduct of criminal prosecur tions underlie the Legislature’s directive. The exclusionary sanction for failure to comply contained in CPL 710.30 (3) reflects a judgment that the loss of the use of the evidence is an acceptable price to pay to achieve the desired goals. Although the People complain that the price is too high and the requirements of the statute burdensome, we cannot dilute or disregard the requirements in an effort to avoid exacting the price without trespassing on the Legislature’s domain and undermining the purposes of the statute.

Thus, we hold that the People, having failed to establish good cause for their noncompliance with the 15-day notice requirement, should not have been permitted to serve a late notice. Accordingly, it was error to admit evidence of the statement at trial.

We also agree with defendant that the error was not harmless. Aside from defendant’s statement, the only evidence connecting her with the crime was the victim’s identification, which was weakened by evidence that he initially described his female assailant to the police as an Hispanic, five-feet, four-inches tall, with a medium complexion and a Puerto Rican accent. According to Detective Kelly’s arrest report, however, defendant was five-feet, seven-inches tall, light-skinned, of Irish descent, and spoke with no accent. Given the apparent weakness of the victim’s identification, the erroneous admission of defendant’s statement that she participated in the crime for which she was on trial cannot be deemed harmless.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Nestor Novoa, Appellant.
    Argued October 12, 1987;
    decided November 25, 1987

      POINTS OF COUNSEL

      Andrew E. Abraham and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Kaye, J.

Central to this appeal are issues relating to promises of benefit by the prosecution to a trial witness who is under separate indictment for unrelated crimes. We conclude that the prosecutor here breached a duty to disclose such promises, to correct the witness’s testimony that she was promised nothing, and to refrain from misstatement in summation. In the circumstances of this case, where there was also a Rosario violation, the conviction must be vacated and a new trial ordered.

Defendant was charged with second degree murder for shooting Hippolito Rodriguez at 174 Rivington Street on Manhattan’s Lower East Side. Defendant did not dispute that he shot Rodriguez but asserted that he did so in self-defense. At trial, the prosecution’s version of the shooting was presented by Rodriguez’s wife (Maria) who testified that, as her husband was returning from work, defendant shot him without provocation. Shortly before the shooting, defendant (the building’s rent collector) had approached her in her apartment and threatened to kill her and "get rid of’ her husband if they did not pay their rent. As soon as defendant departed, Maria Rodriguez ran to a window and shouted for help. Five minutes later, defendant confronted Hippolito Rodriguez in the hallway outside the Rodriguez apartment and shot him three times. Maria Rodriguez dragged her husband into their apartment and began yelling for help.

From her vantage point in a parked car outside the apartment building, Anita Ortiz (a neighbor) was able to corroborate parts of Maria Rodriguez’s version of the events. She testified that immediately prior to the shooting she saw Hippolito Rodriguez return home from work. Shortly after he entered the building, Ortiz heard Maria Rodriguez call for her husband from the top floor of the building. Ortiz then heard several gunshots, followed by Maria Rodriguez’s screams. Moments later, she saw defendant, defendant’s wife and a third person (Pablo Rodriguez) rushing out of the building.

The defense’s contrasting portrayal was presented by defendant and his friend, Pablo Rodriguez, who was in the hallway at the time of the shooting. According to both, it was Hippolito Rodriguez who instigated the confrontation by punching defendant and knocking him to the floor. Maria Rodriguez, who was standing next to her husband, began screaming. Kneeling on defendant, Hippolito Rodriguez began hitting him. With Maria Rodriguez shouting "kill him, kill him,” Hippolito Rodriguez grabbed a machete from his wife. Defendant reacted by drawing a gun from his waistband and shooting twice. Rodriguez backed off and defendant fled.

On rebuttal the prosecutor called two police officers to discredit Pablo Rodriguez’s testimony with prior inconsistent statements made shortly after the shooting. The People also recalled Anita Ortiz for the same purpose. She testified that the day after the shooting Pablo Rodriguez told her that defendant attacked Hippolito Rodriguez with a metal pipe, that Rodriguez managed to take the pipe from defendant, and that defendant then shot Rodriguez. After it was revealed that Ortiz was facing indictment for selling drugs to an undercover police officer, the prosecutor asked: "Mrs. Ortiz, had anyone promised anything with respect to your pending case?” She answered "no.”

In summation, the prosecutor addressed Ortiz’s credibility: "There’s no reason for Anita to come to the defense of Maria Rodriguez unless what she heard and saw actually happened * * * Anita is a very strong, intelligent, forthright woman. Yes, she has been indicted for a crime * * * She also told you she wasn’t promised anything, ladies and gentlemen. Anita did not have to be promised anything. I submit she’s a woman who will stand or fall on her own merits.” Following three days of deliberation, defendant was convicted of second degree murder and sentenced to a term of imprisonment of 25 years to life.

More than a year later, in the course of a second murder trial (the Corchado trial) — in which defendant was acquitted— defendant acquired information that prompted a motion pursuant to CPL 440.10 to vacate the conviction. During the Corchado trial, defendant learned that Ortiz — again a witness for the prosecution — had, after the Rodriguez trial, pleaded guilty and received lifetime probation rather than a prison sentence for the drug charges that were pending against her at the time of defendant’s trial for the Rodriguez murder. Defendant argued that the prosecutor had committed misconduct by permitting Ortiz to testify in the Rodriguez murder trial that no promises had been • made, when she knew or should have known that Ortiz had been promised leniency in exchange for cooperation. The trial assistant denied knowing of any such agreement but acknowledged having told Ortiz "that I was making no promises in exchange for her testimony. I stated that if I were ever asked by anyone in the Special Prosecutor’s Office I would tell them that she cooperated.”

In further support of his motion to vacate the judgment defendant argued that the People also had failed to produce a report made by Police Detective Carrano in which the detective recorded statements made by Ortiz in an interview he and the trial assistant had conducted with her. The prosecution acknowledged that it had not provided defense counsel with the report, asserting that the omission was inadvertent and the substance insignificant. The trial assistant had photocopied Carrano’s file and returned it to him by March or April 1982; she did not check the file again after the interview with Ortiz in May 1982, or before the trial commenced six or seven months later, believing that there would be no additional material.

At the CPL article 440 hearing, Assistant District Attorney Marcel Philippe of the Special Narcotics Prosecutor’s office testified that he had been in charge of the prosecution of Anita Ortiz, who was under indictment for drug sales and upon conviction faced a mandatory sentence of three years to life in prison. Ortiz agreed to cooperate by providing information on other drug transactions; in return, Philippe promised to evaluate her cooperation and inform the Special Narcotics Prosecutor, who would ultimately decide whether to recommend a sentence of lifetime probation. Ortiz was permitted to plead guilty and was sentenced to lifetime probation. Both in his memorandum and at sentencing, Philippe told the court that in addition to the narcotics investigations, Ortiz had cooperated on a homicide case. The trial assistant testified that she was not familiar with the procedures of the Special Narcotics Prosecutor’s office and was unaware that the Special Narcotics Prosecutor ever entered into agreements with defendants whereby defendants received probation in return for cooperation. Before trial she called Philippe to inform him that Ortiz was going to be her witness, but was not told of any cooperation agreement. With respect to the Rosario issue, Carrano testified that he and the trial assistant were present when Anita Ortiz gave her statement. Carrano recorded the statement, included it in a DD-5 report which he placed in the Rodriguez file, and did not show the report or the file to the trial assistant.

The trial court denied defendant’s motion, concluding that "there was no promise by any ADA of a benefit to be extended to Ms. Ortiz on her narcotics cases in exchange for her testimony in this case.” While recognizing that Ortiz was told that if anyone in Special Narcotics asked about her cooperation the trial assistant would reveal it, the court found that even that assurance was apparently given in the context of the Corchado case, not the Rodriguez case, which preceded it. Moreover, the court held that the People’s failure to turn over Ortiz’s statement — which was Rosario material — was inadvertent, which took the case out of the "strict liability” rule; the court then concluded that there was no prejudice because Ortiz’s testimony was cumulative and not crucial to a finding of defendant’s guilt. The Appellate Division affirmed, without opinion.

We now reverse.

The Promises Issue

The concept of fairness embodied in the Due Process Clauses of the State and Federal Constitutions imposes upon the prosecution a duty to apprise the defense of evidence favorable to the accused (People v Cwikla, 46 NY2d 434, 441; Brady v Maryland, 373 US 83). To give substance to this constitutional right, it is incumbent upon the prosecutor, who speaks for the government, to ensure that material evidence which is in its possession and is exculpatory in nature is turned over to the defendant (People v Cwikla, 46 NY2d 434, 441, supra; see, Giglio v United States, 405 US 150, 153-154). This duty of candor and disclosure is no less applicable when the evidence is relevant only to the issue of credibility (People v Cwikla, 46 NY2d 434, 441, supra; see, People v Savvides, 1 NY2d 554, 557). Thus, it is now firmly established that the "existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles”. (People v Cwikla, 46 NY2d 434, 441, supra; People v Fein, 18 NY2d 162, 172-173, cert denied 385 US 649, reh denied 386 US 978; People v Zimmerman, 10 NY2d 430, 432-433; People v Mangi, 10 NY2d 86, 89; People v Savvides, 1 NY2d 554, 556-557, supra; Giglio v United States, 405 US 150, 153-154, supra; Napue v Illinois, 360 US 264, 269; see also, People v Qualls, 70 NY2d 863.)

As a further incident of defendant’s right to a fair trial, a prosecutor has an obligation to correct misstatements by a witness concerning the nature of a promise (People v Piazza, 48 NY2d 151, 162-163; People v Savvides, 1 NY2d 554, 556-557, supra). A prosecutor may not sit by silently while her witness testifies falsely that she did not receive any promise in return for testimony (People v Cwikla, 46 NY2d 434, 442, supra). If a witness mischaracterizes or falsely denies a promise, the prosecutor must "by immediate statement of his own or by further appropriate examination * * * forthrightly [expose] the lie, so that the court and jury [will know] that the witness had reason to expect lenient treatment for 'continued * * * co-operation’ * * * [I]f [a lie] is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.” (People v Savvides, 1 NY2d 554, 556-557, supra.)

The People concede that the trial assistant’s representation to Ortiz was technically a "promise” but urge that it involved so little, and was so contingent and insignificant, that neither party regarded it as such and therefore no breach of duty or unfairness occurred.

It is not the form of a promise, or any label the parties may affix to it, that triggers the prosecutor’s duty of disclosure (see, People v Cwikla, 46 NY2d 434, 442, supra; People v Mangi, 10 NY2d 86, 91, supra). Rather, the obligation arises from the fact that the prosecutor and the witness have reached an understanding in which the witness’s cooperation has been exchanged for some quid pro quo on the part of the prosecutor. Once such an understanding has been reached, it is for the jury to determine how much value to assign it in terms of assessing the witness’s credibility. Here, the prosecutor’s assurance created an expectation of some benefit which should have been made known to the jury in assessing the credibility of Ortiz, the only civilian witness called to rebut the testimony of Pablo Rodriguez. While the People now seek to denigrate the possible benefit of the trial assistant’s representation to Ortiz, the significance of a promise made to a witness is a matter not for the prosecutor but for the jury. In actual fact, the trial assistant did make known Ortiz’s cooperation against defendant to the Special Prosecutor; the Special Prosecutor did decide to recommend lifetime probation rather than incarceration, relying in part upon Ortiz’s cooperation in the present case, and so advised the sentencing Judge; and the court did follow that recommendation in sentencing Ortiz (Philippe testified that in his experience, the recommendation was invariably followed). The trial assistant’s failure to reveal the promise in the first instance, her failure to correct Ortiz’s misstatement that she had been promised nothing with respect to her pending case, and her own affirmative mischaracterization in the summation constituted both a denial of defendant’s rights and a breach of her own obligations as an officer of the court (see, People v Pelchat, 62 NY2d 97, 105).

The prosecutor was further delinquent in failing to discover and disclose the terms of the cooperation agreement entered into between Ortiz and the Special Prosecutor’s office. While we need not reach the question whether knowledge of agreements made with a witness by prosecutors in other offices should generally be imputed to a trial prosecutor, in this case the "separateness of offices” cannot excuse the failure to learn of the cooperation agreement (see, Giglio v United States, 405 US 150, 154, supra). Indeed, it was not any "separateness of offices” that stood in the way of transmission of the information but rather a disinclination to ask whether there was any such agreement, a subject that should have been of particular interest in view of its pertinence to Ortiz’s credibility. Certainly, on these facts it was improper for the trial assistant to assume the lack of any cooperation agreement as she did when she argued in summation that no promises had been made. To excuse the failure to learn of the promise in circumstances such as presented here could only serve the undesirable objective of discouraging the obvious, appropriate inquiry.

The Rosario Issue

As the trial court correctly held, Ortiz’s statement, recorded and filed by Carrano, was Rosario material, which should have been turned over to defendant. We disagree, however, with the court’s conclusion that this Rosario violation does not require reversal because the error was "inadvertent” and "harmless.”

In People v Consolazio (40 NY2d 446, 454), we made clear that "failure to turn over Rosario material may not be excused on the ground that such material would have been of limited or of no use to the defense, or that a witness’ prior statements were totally consistent with his testimony at trial. [Citations omitted.] We [rejected] arguments that consideration of the significance of the content or substance of a witness’ prior statements can result in a finding of harmless error.” In the 11 years since Consolazio, this court has not deviated from the principle that harmless error analysis is inappropriate with respect to Rosario violations. As we explained in People v Perez (65 NY2d 154, 160), the "essence of the Rosario requirement, that the prosecutor supply all of a witness’ * * * statements relating to his testimony, is that a judge’s impartial determination as to what portions may be useful to the defense, is no substitute for the single-minded devotion of counsel for the accused.” When the prosecution fails completely in its obligation to deliver Rosario material to defense counsel, the courts will not attempt to determine whether prejudice accrued to the defense. "The failure constitutes per se error requiring that the conviction be reversed and a new trial ordered.” (People v Ranghelle, 69 NY2d 56, 63; see also, People v Jones, 70 NY2d 547.)

The same may be said of what has been characterized as the prosecutor’s inadvertence in failing to produce Carrano’s report: we have already determined that in such circumstances a new trial is required. As we noted in People v Ranghelle (69 NY2d 56, 63, supra), even "the People’s good-faith effort to locate, identify and discover all Rosario material does not excuse their failure to produce covered material”. The People’s neglect in not checking a pertinent file in their control for six or seven months prior to trial cannot excuse their failure to produce covered material.

Harmless Error

In that the Rosario violation itself requires reversal and a new trial, we do not reach the issue whether harmless error analysis can or should be applied with respect to the promises alone.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Alexander, Titone and Hancock, Jr., concur with Judge Kaye; Judge Bellacosa concurs in the result and in the portion of Judge Kaye’s opinion dealing with "The Promises Issue”, noting his separate concurring opinion in People v Jones (70 NY2d 547) with respect to "The Rosario Issue”.

Order reversed, etc.

      . People v Rosario, 9 NY2d 286, rearg denied 9 NY2d 908, cert denied 368 US 866, rearg denied 14 NY2d 876, rearg denied 15 NY2d 765; see also, CPL 240.45 (1) (a).

      . The hearing court’s conclusion that the trial assistant’s promise to make Ortiz’s cooperation known to the Special Narcotics Prosecutor "was apparently given in the context of the Corchado case, not the Rodriguez case” is not borne out by the record. Even if the promise related to the Corchado case, it was made before Ortiz testified at defendant’s trial for the murder of Rodriguez. Ortiz’s testimony denying that any promises had been made to her was in any event false, was left uncorrected by the trial assistant, and was misstated in summation to buttress the witness’s credibility-


text:
    In the Matter of Board of Education, Commack Union Free School District, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued October 14, 1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Eugene L. Wishod and Robert H. Cohen for appellant.

      Julius Blaushield for Joseph B. Margolin, respondent. I.

      Kenneth Pawson and James H. Whitney for Gordon M. Ambach, respondent.

      Norman H. Gross and Henry F. Sobota for the New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Kaye, J.

A teacher alleging breach of a provision of the collective bargaining agreement between the school district and the union, having exhausted the grievance process established by the agreement and claiming no breach of the union’s duty of fair representation, cannot then petition the Commissioner of Education under Education Law § 310 for relief on that same grievance. The Commissioner’s determination sustaining the teacher’s appeal in these circumstances is affected by an error of law and must be annulled.

Joseph Margolin, a pre-1975 tenured secondary level social studies teacher, has been employed by the Board of Education of Commack Union Free School District (the district) for the past 19 years. Margolin is a member of the Commack Teachers Association (the union), the collective bargaining agent for all teachers employed by the district.

The collective bargaining agreement between the union and the district covering the 1984-1985 school year provided that district administrative personnel had the right and responsibility to make "wise and judicious use” of the teaching staff, that student welfare and efficient use of staff were among the factors to be considered in making assignments, and that "[a]ll other factors being equal, seniority shall prevail with respect to class assignments and duties” (§ 18.01 [k]). Because the district had a surplus of certified social studies teachers but lacked English and mathematics teachers, it assigned some social studies teachers to those other subjects. Margolin was involuntarily assigned to one course outside the social studies department during the 1983-1984 school year and another— "Writing and Reading” — for the 1984-1985 year.

Margolin accepted the assignment without complaint, but when the 1984-1985 school term commenced he learned that, owing to a late-August resignation, a social studies teacher who had previously taught psychology but had less seniority than he had been assigned to teach two psychology courses. Because psychology was considered a social studies class, that assignment gave the other teacher only courses within the social studies department. Margolin believed that, under the collective bargaining agreement, another teacher with less seniority should have been assigned to teach "Writing and Reading” and that he should have been assigned only courses within his department. Arguing that the district had breached the agreement by making these assignments, Margolin then began a grievance proceeding under the collective bargaining agreement.

The collective bargaining agreement established a four-stage grievance procedure, the first three stages of which could be pursued by the union or any employee individually. The fourth stage, binding arbitration before the Public Employment Relations Board (PERB) could be initiated by the district or by the union, but not by the aggrieved employee. Margolin first presented his grievance to his union representative who, after investigation, informed him that the union had concluded that his grievance lacked merit. The letter noted that the union would nonetheless help Margolin protect his rights under article XXXII ("Grievance and Arbitration Procedures”) and directed his attention particularly to the provision entitling a grievant to be represented by the person of his choice at all available stages of the grievance procedure. Margolin appealed this determination to the union’s executive board. The union president advised him that further investigation reinforced the conclusion that the grievance was without merit. The president noted that "all other factors” were not equal so that, under section 18.01 (k) of the agreement, seniority alone was not dispositive.

Margolin also pursued this grievance independently. His immediate supervisor denied the grievance, noting that the assignment was part of an effort to make "wise and judicious” use of the entire department staff and to "rotate assignments on an equitable and fair basis.” Margolin next presented the grievance to his principal, who also denied it. The principal stated that assignments had been based on criteria required by the contract — student welfare and efficient staff utilization —so that "all other factors” were not equal and seniority alone should not have been determinative of the assignment. Margolin next invoked the third, "formal” stage of the contract’s grievance procedure by requesting a hearing before the Superintendent of Schools or his designee. In that letter Margolin alleged that at least five teachers with less seniority were teaching entirely within the social studies area. The Hearing Officer, after a hearing, issued a decision denying the grievance, concluding (after a full recital) that the relevant factors other than seniority supported Margolin’s assignment to the "Writing and Reading” class and there was no violation of the agreement as alleged. The assignment also was found to be consistent with a long-standing practice of assigning nonsocial studies classes to the entire social studies department on a rotating basis without regard to seniority.

Having failed to obtain relief within the grievance process provided by the collective bargaining agreement, Margolin filed a petition of appeal with the Commissioner of Education complaining of the very same grievance — that his assignment violated section 18.01 (k) of the collective bargaining agreement. The appeal was lodged pursuant to Education Law § 310, which provides:

"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same * * * The petition may be made in consequence of any action:

* * *

"7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.” Among the defenses pleaded by the district were that the petition was legally insufficient in that it did not allege that the union had breached its duty of fair representation and that the union, a necessary party, had not been joined.

The Commissioner sustained Margolin’s appeal, reasoning that absence of the union was irrelevant because it is not within his jurisdiction and he thus could not be concerned with the adequacy of the union’s representation. Because Margolin had exhausted his remedies under the contract, albeit without reaching binding arbitration, the Commissioner concluded that administrative review was available. On the merits he determined that the district had failed to state what "other factors” were controlling in the assignment of junior teachers to social studies assignments, and found that the district had failed to consider Margolin’s seniority adequately. The Commissioner directed that future assignments be made in accordance with the contract, taking into consideration the improper assignment for the 1984-1985 school year.

The district then brought this article 78 proceeding to annul the Commissioner’s determination. Special Term dismissed the petition, finding that the Commissioner’s decision was not arbitrary, capricious or in violation of law, and the Appellate Division affirmed, two Justices dissenting. We now reverse and annul the Commissioner’s determination.

The district acknowledges that, had Margolin in the first instance made a timely appeal to the Commissioner challenging his assignment on the ground that it contravened the Education Law and the Commissioner’s regulations governing incidental teaching assignments, without question the Commissioner could have determined that appeal on its merits. That issue is not before us. The question before us is whether the same result should obtain when the petition is based on a provision of a collective bargaining agreement relating to seniority, rather than one cast as a matter of education law or policy, and when the employee has first prosecuted that same issue through the grievance process provided by the collective bargaining agreement. We answer that question in the negative.

As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract. Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer (see, Berlyn v Board of Educ., 55 NY2d 912, affg on mem. at 80 AD2d 572; Chupka v Lorenz-Schneider Co., 12 NY2d 1, appeal dismissed 372 US 227; Menkes v City of New York, 91 AD2d 654, lv dismissed 59 NY2d 762, cert denied 464 US 858; see also, Baker v Board of Educ., 70 NY2d 314). These principles, borrowed by State law from private sector law under the Labor Management Relations Act (29 USC § 151 et seq.), are also apt where the issue is not resort to the courts but an effort to pursue a contractual grievance in a statutory appeal under Education Law § 310, particularly where the employee has actually pursued his contract grievance through the stipulated procedures.

While the Commissioner viewed Margolin’s tireless pursuit of his contract remedies as entitling him to an appeal under Education Law § 310, these facts propel us to the opposite conclusion. Exhaustion of contract remedies in this situation is not a gateway to review by the Commissioner of the very same grievance under a collective bargaining agreement but an election of consequence. As cogently expressed in the Appellate Division dissent of Justice Levine, permitting an employee to invoke Education Law § 310 "to upset the final resolution of a grieved dispute, inviting the Commissioner to act, in effect, as a super arbitrator, would destroy the finality of grievance/arbitration determinations in the public employment sector necessary to effectuate * * * State policy.” (121 AD2d 136, 142.)

Several policy grounds underlie restricting Margolin to his chosen contractual remedies here and denying appeal of this particular grievance to the Commissioner. Grievance procedures have been recognized as serving the interests of all parties involved in collective bargaining. They enable the union to participate in administering the contract it negotiated; they aid the employer by channeling grievances into one forum providing one set of remedies; and they permit efficient protection of employee rights (Republic Steel v Maddox, 379 US 650, 653). They are Congress’ "preferred method for settling disputes and stabilizing the 'common law’ of the plant.” (Id.) Allowing individual employees to circumvent the grievance procedure in favor of other remedies as a general matter would impair those interests, deprive the parties of the opportunity to "establish a uniform and exclusive method for orderly settlement of employee grievances”, and " 'inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ ” (Id., quoting Teamsters Local v Lucas Flour Co., 369 US 95, 103.) Moreover, disrupting the contract’s settlement procedures in this fashion has been viewed as threatening the union’s authority as representative and weakening the individual employee’s protection (Vaca v Sipes, 386 US 171, 191; see also, Parker v Borock, 5 NY2d 156, 162 [Fuld, J., concurring]; Cox, Rights Under a Labor Agreement, 69 Harv L Rev 601, 625-627). Only when a union has failed to represent an employee fairly— effectively depriving the employee of full use of the agreed procedures — does concern for employees’ rights require that they be allowed to pursue grievances beyond the contractual mechanism (Berlyn v Board of Educ., 55 NY2d 912, supra; Vaca v Sipes, 386 US 171, supra).

The New York State Legislature has recognized the strong policy favoring internal grievance mechanisms and the finality of the grievance process in public collective bargaining agreements. It is the policy of this State "to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government.” (Civil Service Law § 200.) This policy is "best effectuated” by "encouraging such public employers and such employee organizations to agree upon procedures for resolving disputes”. (Civil Service Law § 200 [c].) The Taylor Law further grants to public employees the right to be represented by unions to negotiate the terms and conditions of their employment "and the administration of grievances arising thereunder.” (Civil Service Law § 203.) The employer’s duty to negotiate collectively includes a duty to negotiate "an agreement, or any question arising thereunder”. (Civil Service Law § 204 [3].) Permitting employees to prosecute alleged violations of the agreement beyond the contractual grievance procedure obviously unsettles the finality of grievance determinations that is central to implementation of State policy, and the right to bring such proceedings is therefore restricted.

We turn next to the relation of these principles to the broad powers granted to the Commissioner under the Education Law.

The Commissioner of Education and the Board of Regents are vested with power to manage educational affairs and establish and enforce education policy (NY Const, art V, § 4; art XI, § 2; Education Law §§ 207, 305). The Commissioner is charged with the general supervision of boards of education of union free school districts and their management and conduct of all departments of instruction (Education Law § 309); "[a]ny person conceiving himself aggrieved may appeal or petition” to him (Education Law § 310). This broad review power exists so as " 'to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same so far as practicable and possible from controversies in the courts.’ ” (Donohue v Copiague Union Free School Dist., 47 NY2d 440, 444, quoting Bullock v Cooley, 225 NY 566, 576-577; Matter of Vetere v Allen, 15 NY2d 259, 266, cert denied 382 US 825.)

Education Law § 310 itself specifies a number of areas in which the Commissioner may hear appeals, including structure of school districts and payment of money to them, payment to teachers, admission of students, use of school libraries and other matters arising from official acts of school authorities. We have recognized the broad authority of the Commissioner in such matters as the issue of "educational malpractice” (Donohue v Copiague Union Free School Dist., 47 NY2d 440, supra), the establishment of standards for granting high school diplomas (Matter of Board of Educ. v Ambach, 60 NY2d 758, affg 90 AD2d 227, cert denied 465 US 1101), the determination of appropriate hours of instruction (Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111), racial balance in schools (Matter of Vetere v Allen, 15 NY2d 259, supra), and dissolution and consolidation of school districts (Bullock v Cooley, 225 NY 566, supra). The district suggests, as a further example, a teacher’s challenge under the Education Law on the ground that assignments fall outside certification and competency.

The Commissioner’s broad review powers are not, however, unlimited. It is plain from the petition of appeal that what Margolin placed before the Commissioner was cast as the identical contract issue he had previously elected to submit under the grievance procedure provided by the collective bargaining agreement. In these circumstances, recognizing the right of review by the Commissioner would serve neither the Education Law objective of providing a quick, simple method of resolving policy questions that recur in school administration nor the Civil Service Law objective underlying collective bargaining in public sector employment.

Both the Commissioner and the Appellate Division majority found material the fact that only the district and the union— not Margolin himself — could take the grievance to binding arbitration. We disagree. When Margolin elected to follow the contract grievance procedure, he did so knowing that his union would control the decision whether to reach arbitration. He left that authority with them. Without a showing that the union breached its duty of fair representation in prosecuting the employee’s grievance, its decision to conclude the grievance process short of the final step allowed by contract or law is binding on the employee and precludes resort to additional remedies (see, Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188; Abrams v Board of Educ., 91 AD2d 618).

Our conclusion is consistent with Board of Educ. v Associated Teachers (30 NY2d 122), where we recognized that, although the Legislature had given a tenured teacher a choice of two methods of statutory appeal to challenge an adverse decision of the school board, the board could agree that the teacher might choose arbitration as a third method of reviewing its determination (30 NY2d, at 131, supra). As we held there, however, a final decision by any one spells the end of the matter (30 NY2d, at 132, supra; see also, Matter of Dye v New York City Tr. Auth., 88 AD2d 899, affd 57 NY2d 917; Matter of Kavoukian v Bethlehem Cent. School Dist., 63 AD2d 767). By the same token, Margolin’s grievance terminated when he exhausted internal procedures and, in seeking further appeal of the very same contract matter, made no showing of breach of the union’s duty of fair representation that might permit him to go beyond the stipulated grievance mechanism.

Accordingly, the Appellate Division order should be reversed, with costs, and the determination of the Commissioner of Education annulled.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . While Margolin’s brief in this court now characterizes his complaint as one for out-of-certification assignment (see, Education Law §§ 3001, 3009 (1); § 3010; 8 NYCRR 80.2 [c]), the petition itself describes only the alleged violation of section 18.01 (k) of the agreement.

      . Margolin’s contention that the article 78 petition is premature, because the district failed to seek reopening of the Commissioner’s decision (8 NYCRR former 276.7 [now 276.8]), is without merit. The Commissioner’s decision was final and binding (contrast, Matter of Martin v Ambach, 57 NY2d 1001), and thus subject to challenge by an article 78 proceeding (see, Matter of De Milio v Borghard, 55 NY2d 216).


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Carlton Brown, Appellant.
    Argued October 13,1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Stuart Birbach for appellant.

      Elizabeth Holtzman, District Attorney (Steven H. Kessler and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

In his appeal from a conviction for second degree murder, defendant’s chief contention is that the trial court committed reversible error in admitting testimony of several incriminating statements of the victim as excited utterances. Errol O’Neil was shot at approximately 2:00 p.m. on October 2, 1981 following an argument in the basement apartment of a two-family dwelling in Brooklyn where he resided with various relatives including his mother, Joyce Scott, and an uncle, Robert Hinds. We readily agree with the courts below that it was proper to admit the testimony of Scott and Hinds concerning statements made to them by O’Neil immediately after the shooting as he emerged from the apartment and during the automobile trip to the hospital. The principal question pertains to the testimony of Police Officer Turnbull about statements O’Neil made in response to the officer’s questions in the emergency room approximately 30 minutes after the shooting. For reasons which follow, we conclude that these statements were also properly admitted as excited utterances. Because we find no merit in defendant’s further contention that the proof of guilt was legally insufficient, there should be an affirmance.

I

In a pretrial hearing to determine the admissibility of the statements made by O’Neil, Scott testified that she heard "like a shuffling” in the basement and a door flying open, and then the sound of three shots. When she heard an exclamation from her son she "start[ed] screaming” and ran out of the house. She saw one Trevor Campbell, "another guy by the name of Killer [Michael Remaken]”, and defendant running away. Immediately thereafter, she saw her son coming from the basement, holding his stomach with both hands. She asked, "Errol, what happened?”. He replied, "They shot me, Ma.”

Scott rushed into the house, called the emergency number 911, and returned to her son who "was sitting on the steps, you know, at the door” and was "in pain — a lot of pain”. By then, her brother-in-law, Hinds, had arrived. Together they helped O’Neil into an automobile and headed to the nearby Baptist Medical Center. En route, according to Scott, her son was "in a lot of pain”. He said, "Ma, I’m getting weak” and started hiccupping. She noticed that his eyes were "turning over in his head”. Hinds, she said, was driving "real fast” at her insistence "because I see [my son] was dying.” During the drive to the hospital Hinds asked O’Neil, "Who shot you, Errol?”. "Carlton did”, he replied.

Officer Turnbull testified that at about 2:30 in the afternoon he and a police sergeant arrived at the hospital emergency room in response to the reported shooting. He was advised by the physician in charge that "O’Neil was in critical condition”. O’Neil, Turnbull said, was "laying on a gurney in the emergency room” and there "was an I.V. running into his arm”. Before talking with O’Neil, Turnbull "advised him that he was in critical condition and that there was a possibility that he might die”. In reply to Turnbull’s inquiry whether O’Neil would "tell [him] who committed the crime”, O’Neil answered "yes”. He then said that "Carlton Brown, Killer, a Jamaican, and Trevor Campbell shot me”. Answering further inquiries O’Neil said, according to Turnbull’s testimony, that "all three had guns”, that "they shot at [me] four times” and that the three "were probably at 568 Pine Street, on the second floor.” The questioning was terminated when the physician advised Turnbull that O’Neil was being taken into surgery. O’Neil died several hours later from three gunshot wounds, two of which were to the abdomen and had penetrated various vital organs.

In holding that the statements to Officer Turnbull were admissible, the trial court found that "the totality of the circumstances indicate that Errol O’Neil was critically wounded by three gunshots, was in hemorrhagic shock, second degree, severe pain, and nearly died enroute to the hospital. He was told he may not make it and indeed died several hours later. There was no time for reflection, nor was he in any condition to reflect.” Relying on the criteria set forth in People v Edwards (47 NY2d 493), the court held that neither the lapse of time between the shooting and the emergency room statements nor the fact that the statements were in response to Turnbull’s questions precluded the ultimate finding that O’Neil’s statements were "not made under the impetus of studied reflection” (id., at 497).

Because of its ruling that the emergency room statements were admissible as excited utterances, the court did not reach the People’s alternative argument that the statements were admissible under a separate and different theory, i.e., as dying declarations (see generally, People v Nieves, 67 NY2d 125, 132-133). The Appellate Division unanimously affirmed in a memorandum, finding that the record supports the conclusion that the statements were made while O’Neil remained under the stress and excitement from the shooting. The appeal is before us by leave of a Judge of this court.

II

The present rule permitting the admission of excited utterances as an exception to the hearsay rule has evolved from earlier cases in which, following English precedents, we allowed proof of so-called "spontaneous declarations” only if they could be shown to have been part of the res gestae, i.e., "made at the same time, or so nearly contemporaneous [with the transaction] as to characterize it, or throw [some] light upon it” (Waldele v New York Cent. & Hudson Riv. R. R. Co., 95 NY 274, 278; Richardson, Evidence § 281 [Prince 10th ed]; see also, Whitaker v Eighth Ave. R. R. Co., 51 NY 295; Insurance Co. v Mosley, 8 Wall [75 US] 397). In Waldele, for example, sign language communications by a deaf mute made 30 minutes after being struck and fatally injured by a railroad train were excluded because "declarations made after the accident had happened, after the train had passed from sight, and the whole transaction had terminated were no part of that res gestae, had no connection with it, and were purely narrative” (95 NY, at 286, supra).

In later cases, our court, adopting the approach urged by Wigmore and other commentators, began to abandon its earlier strict res gestae analysis and the attendant requirement that the declaration be a verbal act forming part of the transaction itself (see, People v Del Vermo, 192 NY 470, 483; see, e.g., People v Marks, 6 NY2d 67, 71). In People v Marks (supra) we left no doubt that an excited utterance or spontaneous declaration, although a narrative of a past transaction and not a part of the res gestae, could nevertheless be admitted as an exception to the hearsay rule under certain circumstances. The rationale for the exception, we noted, was not res gestae but, as explained by Dean Wigmore in his treatise, that " 'under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control * * *. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts’ ” (6 NY2d, at 71-72, supra, quoting 6 Wigmore, Evidence § 1747 [I] [3d ed]).

Moreover, we emphasized in People v Marks (supra), again citing Wigmore, that "there can be no definite or fixed limit of time within which the declaration [must] have been made [and] each case must depend upon its own circumstances” (id., at 72; see also, 6 Wigmore, Evidence § 1750 [Chadbourn rev 1976]). The test is whether the utterance was made "before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance” (id., at 72).

In our most recent discussions of the admissibility of excited utterances, we have adhered to the course set in People v Marks (supra) and avoided the strict res gestae analysis in favor of admitting such declarations because "as * * * impulsive and unreflecting responses * * * to the injury or other startling event, they possess a high degree of trustworthiness” (People v Caviness, 38 NY2d 227, 231 [emphasis added]). Thus, in People v Caviness (supra) we abandoned as an "unjustifiable evidentiary stance” (id., at 231) the rule that an excited utterance of a nonparticipant in the event had to be excluded because it was not a part of the event itself — i.e., the res gestae. And finally, in People v Edwards (supra), we dispelled any remaining doubt that in New York statements made in response to questioning could, nevertheless, be admitted as excited utterances. We noted our approval of the view, implicit in our decision in People v Del Vermo (supra) and adopted since then by most courts which have addressed the issue, that the fact that an utterance is in response to an inquiry is "merely one factor bearing on spontaneity” within the meaning of the excited utterance rule (People v Edwards, supra, 47 NY2d, at 498, n 2; see, cases cited n 2, id.). In an opinion per Chief Judge Cooke, we summarized the present rule as follows: "The admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” (47 NY2d, at 497, supra [emphasis added]).

Ill

Whether O’Neil’s statements were, although descriptive of a past occurrence, nevertheless, admissible as utterances made "under the stress of excitement caused by an external event” and not "under the impetus of studied reflection” (People v Edwards, supra, at 497) was, of course, a determination to be made, in the first instance, by the trial court after consideration of all the circumstances (see, id., at 497; People v Caviness, supra, at 231; People v Marks, supra, at 74-76; 6 Wigmore, Evidence § 1750 [b] [Chadbourn rev 1976]; Richardson, Evidence § 281 [Prince 10th ed]; McCormick, Evidence § 297, at 857 [3d ed]; cf., United States v Iron Shell, 633 F2d 77, 86, cert denied 450 US 1001). Given the sudden and violent nature of the event, the mortal wounds inflicted, the extreme pain and the unrelenting physical and emotional trauma caused thereby, and given, additionally, the brief time between the shooting and the statements, there can be no question that O’Neil’s initial responses to his mother and his uncle made at the scene and on the way to the hospital were made while he was still under the influence "of the excitement precipitated by an external startling event” (People v Edwards, supra, at 497). The question is whether, as defendant contends, the lapse of more time between the event and the emergency room statements — approximately 30 minutes— and the fact that they were made in reply to a more formalized questioning by Officer Turnbull take the statements outside the excited utterance exception to the rule against hearsay, as a matter of law.

There is nothing in the record suggesting that O’Neil, 30 minutes after the event, was any the less under the influence of the stress and excitement of being shot three times and fatally wounded than he was immediately after the shooting. The pain was unabating and his condition steadily deteriorating. He was, according to his mother, "moaning” and speaking in a very low voice while en route to the hospital. He said to his mother, "Ma, I’m getting weak”, and he appeared to her— correctly as it turned out — to be dying. Upon his arrival at the hospital, O’Neil was comatose and determined to be suffering from hemorrhagic shock. He was resuscitated immediately prior to the brief period of questioning, which itself was interrupted by the physician to rush O’Neil into surgery. Under these circumstances, there is no basis for disturbing the trial court’s conclusion, that "the remarks were not made under the impetus of studied reflection”, other than some arbitrary limitation on the permissible period between the event and the excited utterance. We decline to adopt such a rule.

The imposition of an arbitrary time limit would run counter to the assumptions underlying the admissibility of excited utterances and would contravene our recent decisions which have departed from the rigid res gestae analysis, with its requirement of contemporaneity, in favor of admitting excited utterances, as exceptions to the hearsay rule, on the basis of their inherent trustworthiness. Moreover, in recognizing that excited utterances made after the event may be admitted if "not made under the impetus of studied reflection” (People v Edwards, supra, at 497), we have necessarily acknowledged that the psychological and emotional effect of the sudden event may persist and continue to operate with undiminished force for a period of time thereafter. How long such effect may persist depends on many factors, including the nature of the initial trauma or shock and the subsequent activities of the declarant (see, id., at 497).

This is not to say, of course, that the length of the interval is not a significant factor in determining whether the effect of the event has continued or dissipated, for it surely is. We hold only that, under the circumstances here, the lapse of 30 minutes, is not, as a matter of law, too long. This holding, we note, is consistent with decisions in the majority of jurisdictions which have considered admissibility of statements in similar contexts, as well as with the virtually unanimous opinion voiced in the authoritative texts. (See, e.g., Haggins v Warden, 715 F2d 1050, 1058 [6th Cir] [declarant "still suffering” and "in critical condition” one and one-half hours later]; People v Washington, 71 Cal 2d 1170, 1176, 459 P2d 259, 263 [Traynor, Ch. J.] [declarant suffering critical brain damage and having difficulty breathing still "under the stress of excitement” 45 to 65 minutes later]; State v Stafford, 237 Iowa 780, 23 NW2d 832 [declarant disoriented for 14 hours after severe battering]; Commonwealth v Cheeks, 423 Pa 67, 70, 223 A2d 291, 293 [declarant crying and incontinent from the "overpowering emotional and shocking experience” of being stabbed almost an hour earlier]; see also, 6 Wigmore, Evidence § 1750 [b] [Chadbourn rev 1976] ["depends entirely on the circumstances of each case”]; 4 Weinstein & Berger, Weinstein’s Evidence [f 803 [2] (01), at 803-92 ["factors such as shock, unconsciousness or pain, may prolong the period”]; McCormick, Evidence § 297, at 856 [3d ed] ["that the declarant still appeared 'nervous’ or 'distraught’ and [under] continuing emotional upset will often suffice”]; Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale LJ 229 ["res gestae * * * this troublesome expression (employed) to avoid the toilsome exertion of exact analysis and precise thinking.”].)

Nor does the fact that O’Neil’s emergency room statements were given in reply to the deliberate questions of a police officer necessarily preclude their admission as excited utterances. As with the lapse of time between the shooting and the statements — the nature, extent and purpose of the questions and the identity, position and manner of the questioner are but additional factors to be considered in determining whether the statements were made under the continuing influence of the stress and excitement generated by the initial event. (People v Edwards, supra, at 498-499; People v Marks, supra, at 73-77; see also, State v Berry, 241 Iowa 211, 40 NW2d 480 [murder observer’s answer to interrogation]; People v Damen, 28 111 2d 464, 193 NE2d 25 [rape victim’s responses to police officer]; Commonwealth v Von Smith, 303 Pa Super 534, 450 A2d 55 [robbery victim’s recollections in response to police questioning]; United States v Iron Shell, 633 F2d 77 [8th Cir], supra [sexual assault victim’s statements upon police interview]; Haggins v Warden, 715 F2d 1050 [6th Cir], supra [child rape victim’s answers to police sergeant]; see generally, McCormick, Evidence § 297, at 857 [3d ed]; Annotation, 80 ALR3d 369, 372.) The focus of the inquiry remains the same: the physical, psychological, and emotional condition of the declarant and whether it can be reasonably concluded "that the remarks were not made under the impetus of studied reflection” (People v Edwards, supra, at 497). Unless the questioning causes some interruption of or moderation in declarant’s continued stress and excitement from the shocking event, it does not, standing alone — any more than do other specific circumstances — defeat the admissibility of the responses as excited utterances.

In the present case, there was no showing that the emergency room questioning by Officer Turnbull in any way affected O’Neil’s condition or his continued state of stress and excitement from the shooting. Under these facts, we cannot say that the trial court erred in admitting the hospital statements as excited utterances.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed.

      . The record indicates that Hinds had asked the same question and received the same answer earlier, when O’Neil was still sitting on the house steps. The parties do not, however, distinguish that question and answer from the ones en route to the hospital and, in any event, the same analysis would apply. (See, infra.)

      . In People v Del Vermo (192 NY 470, 483), in holding admissible statements of the deceased victim of a stabbing made after the event, we stated: "[i]t will be observed that this exception contemplates and permits proof of declarations by an injured person made after the event, so that it cannot fairly be said that the words spoken really constituted a part of the thing done” (emphasis in original).

      . This court also noted in People v Edwards (47 NY2d 493, 496, n 1) that the term "excited utterance” was more accurately descriptive of the exception to the hearsay rule at issue and, accordingly, we adopted that nomenclature in our opinion.