text:
    Riegert Apartments Corp., Appellant, v Planning Board of the Town of Clarkstown et al., Respondents.
    Argued September 7, 1982
    decided October 14, 1982

      POINTS OF COUNSEL

      Milton B. Shapiro and Herman M. Pogul for appellant.
    I. As matter of law, it must be found that: (a) neither section 277 of the Town Law, nor (b) section 274-a of the Town Law, nor (c) the State plan regulations issued by the planning board empower it to impose the monetary condition for its approval of petitioner’s site development plan. (Jenad, Inc. v Village of Scarsdale, 18 NY2d 78; Matter of Gershowitz v Planning Bd. of Town of Brookhaven, 69 AD2d 460; Kessler v Town of Shelter Is. Planning Bd., 40 AD2d 1005; Van Deusen v Jackson, 35 AD2d 58, 28 NY2d 608; Matter of Concordia Coll. Inst, v Duke, 29 AD2d 989; Matter of Thurman v Snowden, 28 App Div 705; Matter of Cedar Lane Hgts. Corp. v Marrotta, 17 AD2d 651; Matter of Stateline Plaza v Lehrecke [Planning Bd. of Town of Orangetown], 87 Misc 2d 234; Matter of Anderson v Lockhardt, 62 Misc 2d 815; East Neck Estates v Luchsinger, 61 Misc 2d 619.) II. It is contrary to justice, as well as the law, to let stand the planning board’s stated monetary condition.

      John A. Costa, Town Attorney (.Harold Y. MacCartney, Jr., of counsel), for respondents.
    I. The planning board had the power to require payment of money-in-lieu-of-reservation of parkland as a condition of site plan approval pursuant to section 277 of the Town Law. (Jenad, Inc. v Village of Scarsdale, 18 NY2d 78; Matter of Little Pond Hill v Mendel, 44 AD2d 584.) II. The planning board had the power to require payment of money-in-lieu-of-reservation of parkland as a condition of site plan approval pursuant to section 274-a of the Town Law and the regulations promulgated thereunder.
   OPINION OF THE COURT

Chief Judge Cooke.

Although the Town Law accords towns broad powers to regulate the development of both subdivisions and individual sites, the authority for approving subdivision plats is discrete from that for approving individual site plans. Thus, although a town may require that, before approving a plat, either land or money-in-lieu-of-land be delivered to the municipality for developing parks, no such conditions may be imposed on the approval of a site plan.

Raymond and Nanette Riegert, petitioner’s predecessors in title, owned a 7.40-acre tract in the Town of Clarkstown, Rockland County. In May, 1974, the Riegerts sought an amendment to the town’s zoning ordinance so as to alter the entire tract’s classification from single-family homes to multifamily garden apartments. In December, 1974, the town board made the requested amendment, but subject to certain conditions: (1) no more than 40 one-bedroom units were to be constructed on the premises; (2) a 20-foot road-widening strip was to be conveyed to either the county or the town; (3) a 20-foot buffer strip of trees and shrubbery was to be installed; and (4) the owners were to carry the cost of maintaining all required ponding areas, flood plains, or drainage ways.

Later, the Riegerts sought a further modification to allow a maximum of 56 one-bedroom units on the property. This application was approved in November, 1976, subject to the Riegert’s conveying for flood control purposes about four acres that lay in a 100-year flood plain. The Riegerts satisfied every condition imposed by the town.

Petitioner subsequently purchased the remaining acreage from the Riegerts. In October, 1978, petitioner submitted to the Planning Board of the Town of Clarkstown a site plan showing the proposed construction. On December 5, 1978, the planning board approved the plan on the condition that petitioner deposit $16,800 with the town as “money-in-lieu-of-land” for the purchase and development of parkland. Petitioner contested the legality of this action at the public meeting where the board announced its decision, but eventually paid the entire sum under protest.

Petitioner commenced this proceeding to recover the moneys paid. The kernel of its argument is that sections 276 and 277 of the Town Law concededly authorize planning board review of subdivision plats, including the imposition of land or money-in-lieu-of-land conditions for park development, but site plan approval is subject only to section 274-a of the Town Law, which does not authorize imposing such a condition. Special Term ruled in favor of respondents Town of Clarkstown and its planning board. The Appellate Division unanimously affirmed, without opinion, and this court granted petitioner leave to appeal. The order below should be reversed and judgment entered for petitioner.

The question presented is one solely of statutory interpretation. It is noted that a town and other municipalities derive no power to regulate land use other than through legislative grant (see Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 369-370). The task, therefore, is to construe the pertinent statutes, as written, according to the ordinary meaning of their language, seeking to harmonize the whole and to avoid rendering any part surplusage (see Zaldin v Concord Hotel, 48 NY2d 107, 113; Matter of Albano v Kirby, 36 NY2d 526, 529-531; Matter of Smathers, 309 NY 487, 494).

Section 276 of the Town Law,.originally enacted in 1932 (L 1932, ch 634, § 276), is entitled “Approval of plats; development of filed plats.” Designed to empower local governments to plan and regulate land development, subdivision 1 of section 276, as amended, states that “the town board may by resolution, authorize and empower the planning board to approve plats showing lots, blocks, or sites, with or without streets or highways, and to approve preliminary plats”. The remainder of section 276 sets forth pertinent definitions and prescribes the procedural steps to be followed in approving plats.

Section 277 of the Town Law was originally adopted in the same bill as section 276 (L 1934, ch 634, § 277). Entitled “Approval of plats; additional requisites,” section 277 sets forth substantive matters to be considered by a planning board when approving “a plat showing lots, blocks or sites, with or without streets or highways”. In particular, the section mentions that the existence of park facilities within the plat be weighed in granting or withholding approval (Town Law, § 277, subd 1). The statute specifically authorizes the board to require the inclusion of adequate parks, or, if a suitable park cannot be included within the plat, to require a payment to the town to be held in trust for the purchase of parkland elsewhere (id.).

Section 274-a of the Town Law, first added in 1976 (L 1976, ch 272, § 2), authorizes planning boards to review and approve site plans, while expressly excluding from such review plats subject to approval under sections 276 and 277. When it enacted section 274-a, the Legislature repealed (L 1976, ch 272, §§4-7) several laws that had granted such approval powers to a few municipalities on a piecemeal basis, including a grant to the Town of Clarkstown, respondent here (L 1974, ch 787).

Initially, it is noted that the terms in section 274-a vary from those in sections 276 and 277. The former specifies “site plans” while the latter refers to “plats”. This distinction comports with the general usage of these terms: “A site plan is not a subdivision plat. A site plan usually evidences the proposed development of a single lot, whether for one principal building and permitted accessory buildings, or for a group of buildings (such as a group residential development or an industrial park), intended to remain in one ownership. A subdivision plat contemplates division of one tract into a number of smaller lots with eventual separate ownership of each such lot. The authority which may be conferred upon planning boards with respect to subdivision plats, and the collateral powers of the board and consequences of its determination with respect thereto, are set forth specifically in the planning enabling acts. Site plans are not even mentioned in such acts. A site plan is a plan required to be submitted by the builder, showing the proposed location of the buildings, parking areas, and other installations on the plot, and their relation to existing conditions, such as roads, neighboring land uses, natural features, public facilities, ingress and egress roads, interior roads, and similar features” (2 Rathkopf, Zoning and Planning [4th ed], § 30.04[1], pp 30-13 — 30-14 [n omitted]).

By their very language, the statutes can be seen to intend the continuation of this distinction. The laws are drafted to refer specifically to “site plans” and “plats” without any interchange between the two terms. Indeed, section 274-a (subd 1, par a) carefully excludes plats from its purview. Respondents’ emphasis on the use of “sites” in sections 276 and 277 is a spurious attempt to bring site plans within the scope of those laws; “sites” is used there merely to describe “a plat showing lots, blocks, or sites” and does not refer to site plans per se. Whatever doubt may remain as to the Legislature’s intentions is dispelled by the memorandum issued by Governor Malcolm Wilson when he signed the bill that originally empowered respondents to review site plans (L 1974, ch 787) and that eventually was repealed when section 274-a was enacted (L 1976, ch 272, § 4). In that message, Governor Wilson wrote, “Under existing law, the governing bodies of local governments are authorized to delegate to municipal planning boards the power to approve or disapprove plats showing the division of land into lots, blocks or sites — commonly known as subdivision plats. There is, however, no express statutory authority for a similar permissive delegation of approval power over site plans for developments that do not take the form of subdivisions.” (NY Legis Ann, 1974, p 404.)

Viewed in this light, section 277 cannot be said to authorize the imposition of land or money-in-lieu-of-land donations to build parks as a condition to approving site plans. Section 277 complements section 276; these two sections must be read together and are limited to the review of plats.

Respondents also urge the existence of an implicit authority to impose such conditions under section 274-a. Although section 274-a (subd 1, par a) does refer to consideration of the “impact of the proposed use on adjacent land uses and such other elements as may reasonably be related to the health, safety and general welfare of the community,” it should not be read so broadly as respondents desire. Otherwise, a town would be able to exact a toll twice from the same development: once when the developer seeks approval of the plat; the second time when individual lot owners seek approval of the building plans for their homes. There would, of course, be no real justification for a planning board to demand from the individual lot owners land or money for parks when the developer’s contribution has already been received. By expressly providing for public park dedication in section 277 plat approval and by omitting any reference to parks in section 274-a, the Legislature intended that the burden of major community concerns such as parks be placed on the developer, not the individual lot owner.

Finally, respondents propose that their action is authorized by the local regulations adopted under the special law (L 1974, ch 787) preceding the enactment of section 274-a (L 1976, ch 272), which also repealed the earlier special law. Respondents argue that the regulations remain in force pursuant to the saving clause in the repeal, “provided, however, that such repeal shall not impair the continued validity, after the effective date hereof, of any action taken prior to such date pursuant to the authority provided by [L 1974, ch 787]” (L 1976, ch 272, § 4). This is not persuasive. The saving clause should be read as nothing more than a protection of both the town and the applicants who acted under the earlier law, particularly where appropriate conditions were placed on approval but which could not be fulfilled before the effective date of section 274-a. No reason is proffered why respondents here should have greater power to impose conditions on site plan approval than the other municipalities in the State. Such power would conflict with the legislative intent of providing a State-wide uniform scheme. Consequently, at least to the extent they conflict with the Town Law, respondents’ site regulations should be deemed negated by the legislation enacting section 274-a (L 1976, ch 272, § 4).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition granted.

Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Order reversed, etc.

      . The portion of section 274-a relevant here provides (Town Law, § 274-a, subd 1, par a): “Planning board approval of site plans. The town board may, as part of a zoning ordinance adopted pursuant to this article or by local law adopted pursuant to other enabling law, authorize the planning board to review and approve, approve with modifications or disapprove site plans, prepared to specifications set forth in the said zoning ordinance or local law and/or in regulations of the planning board, showing the arrangement, layout and design of the proposed use of the land shown on such plan. Such ordinance or local law shall specify the uses for which such approval shall be required and the elements to be included in such plans submitted for approval; such elements may include, where appropriate, those relating to parking, means of access, screening, signs, landscaping, architectural features, location and dimensions of buildings, impact of the proposed use on adjacent land uses and such other elements as may reasonably be related to the health, safety and general welfare of the community. When an authorization to approve site plans is granted to a planning board pursuant to this paragraph, the terms thereof may condition the issuance of a building permit upon such approval by the planning board. When so authorized, a planning board may adopt such rules and regulations as it deems necessary, consistent with the provisions of this article, to exercise the powers so granted. Plats showing lots, blocks or sites which are subject to review pursuant to authority adopted under section two hundred seventy-six of this chapter shall continue to be subject to such review and shall not be subject to review under this paragraph.”

      . Respondents rely on Matter of Little Pond Hill v Mendel (44 AD2d 584) to support the proposition that section 277 encompasses site plans. Little Pond, in turn, cited Matter of Peckham Ind. v Ross (61 Misc 2d 616, affd 34 AD2d 826) for its authority. It appears, however, that the question of the applicability of section 277 to approving site plans was not raised in Peckham. It would seem that Little Pond was wrongly decided.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Thomas Mealer, Appellant.
    Argued September 8, 1982
    decided October 14, 1982

      POINTS OF COUNSEL

      Shirley Werner Kornrich and William E. Hellerstein for appellant.
    I. Appellant’s rights to counsel and to be free from testimonial compulsion were violated when a prosecution witness met with appellant, who was incarcerated at a State prison, at the instruction of the police and District Attorney, and deliberately elicited incriminating statements from him. (Massiah v United States, 377 US 201; United States v Henry, 447 US 264; Beatty v United States, 389 US 45, 377 F2d 181; People v Waterman, 9 NY2d 561; People v Cardona, 41 NY2d 333; People v Jones, 47 NY2d 528; People v Esposito, 37 NY2d 156; People v Maerling, 46 NY2d 289; People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106.) II. The United States Supreme Court decision in Payton v New York (445 US 573) should be retroactively applied to this case. (Payton v

      New York, 445 US 573; Dorman v United States, 435 F2d 385; People v Knapp, 52 NY2d 689; People v Matta, 76 AD2d 844; People v Martin, 50 NY2d 1029; People v Gonzalez, 39 NY2d 122; United States v Peltier, 422 US 531; United States v Ross, 655 F2d 1159; Coolidge v New Hampshire, 403 US 443; People v Crimmins, 36 NY2d 230.) III. The State’s failure to provide appellant with a stenographic transcript of counsel’s summations, jury instructions, and jury deliberation irreparably impaired appellant’s right to judicial review, violating due process and mandating summary reversal of his conviction (US Const, 14th Arndt; NY Const, art I, § 6). (North Carolina v Pearce, 395 US 711; People v Rivera, 39 NY2d 519; People v Montgomery, 24 NY2d 130; People v Pride, 3 NY2d 545; People v Glass, 43 NY2d 283; People v Carney, 73 AD2d 9.)

      Robert M. Morgenthau, District Attorney (Bruce Allen and Amyjane Rettew of counsel), for respondent.
    I. Defendant’s guilt of murder in the second degree was proved beyond a reasonable doubt (and is not contested on appeal). II. Defendant’s right to counsel was not violated by the admission into evidence of his bribe offer to John Gaudet since there is an affirmed finding that Gaudet was not acting as a government agent; at any rate, the bribe constituted a new crime which the police were entitled to investigate. (People v Cardona, 41 NY2d 333; People v Middleton, 54 NY2d 474; People v Ferrara, 54 NY2d 498; Massiah v United States, 377 US 201; United States v Henry, 447 US 264.) III. Given the trial court’s finding, which was affirmed on appeal, that exigent circumstances were present when the police arrested defendant in his home, the propriety of that warrantless arrest is not reviewable in this court; in any event, the record demonstrates clearly that the entry was proper because it was the result of a continuous intensive, and uninterrupted investigation of an armed killer. (People v Rizzo, 40 NY2d 425; Payton v New York, 445 US 573; People v Fitzpatrick, 32 NY2d 499; Dorman v United States, 435 F2d 385.) IV. The missing portion of defendant’s trial transcript has been sufficiently reconstructed to allow appellate review. (People v Montgomery, 24 NY2d 130; People v Glass, 43 NY2d 283; People v Rivera, 39 NY2d 519.)
   OPINION OF THE COURT

Chief Judge Cooke.

A suspect whose right to counsel has attached with respect to a past crime may be subjected to questioning outside the presence of counsel by police who are investigating a new crime in progress, so long as the questioning is legitimately related to the new crime. Evidence thereby obtáined, if not otherwise violative of the suspect’s rights, may be presented to prove the suspect’s guilt of the past crime.

Just before 2:00 a.m., on March 24, 1974, defendant was involved in an altercation with Robert Davis at a Manhattan bar. Defendant felled Davis and, as Davis lay semiconscious, shot him in the head from one foot away. Police soon arrived and began interviewing the six witnesses to the homicide. The bartender identified the assailant as “Tommy”, who had been known to live in the nearby Alexandria Hotel and who had frequented the bar in the past. Other witnesses confirmed the bartender’s description of the assailant as a 6-foot 3-inch black male wearing a red-checked jacket. A police officer assigned to the neighborhood recalled that a man named “Nealer”, who had been arrested one month before, fit the description. At 8:00 a.m., a detective checked the local precinct’s arrest records and found that defendant had recently been arrested for possession of a gun and had given two addresses, including the Alexandria Hotel, as his residence. Early that afternoon, police proceeded without a warrant to the hotel, knocked on the door of defendant’s room, and entered when the door was opened by an unidentified woman. Defendant was arrested, and a red-checked jacket and bullets of the same caliber used in the crime were seized.

Defendant was indicted for murder in the second degree and incarcerated while awaiting trial. During this period, defendant’s wife approached a witness to the shooting and stated that defendant wanted to see him and would be willing to “help him out” if he would contradict his earlier statements to the police. The witness informed the police and was instructed to visit defendant in prison and to “play along” if offered a bribe. On visiting defendant, the witness was offered $300 to perjure himself.

After a jury trial, defendant was convicted of second degree murder. The Appellate Division upheld the conviction. This court now affirms.

Defendant claims that his right to counsel was violated when the witness discussed the bribe offer with him while he was awaiting trial. Defendant reasons that, inasmuch as his right to counsel had indelibly attached upon indictment, he could not be interrogated in the absence of counsel. Defendant argues that the witness, when visiting defendant in prison, operated as a police agent, and, therefore, the uncounseled statements defendant made to the witness should have been suppressed.

There is no question that defendant’s right to counsel had attached with respect to the murder charge (see People v Settles, 46 NY2d 154, 166). Nor can it reasonably be controverted that the witness was acting as a police agent when he met with defendant with the knowledge and encouragement of the police (see United States v Henry, 447 US 264, 270). Defendant’s right to counsel nevertheless was not violated. Here, the witness acted on behalf of the police to investigate defendant’s attempt to suborn perjury, a new crime independent of the pending murder charge. The right to counsel may not be used as “a shield * * * to immunize one represented by an attorney against investigative techniques that capture a new crime in progress” (People v Ferrara, 54 NY2d 498, 508; see People v Middleton, 54 NY2d 474). Defendant’s statements were made “in response to inquiry legitimately related” to the new crime (People v Middleton, supra, at p 482). Moreover, the police investigation into the new crime was not used as a pretext for circumventing defendant’s rights. Thus, defendant’s rights were not violated by police conduct here. The evidence having been properly obtained, and no other objection having been raised, the People were free to use it at defendant’s murder trial.

Defendant next proposes that his warrantless arrest and the seizure of evidence violated the Fourth Amendment. In Payton v New York (445 US 573), the Supreme Court held that, in the absence of exigent circumstances, the police may not make a warrantless, nonconsensual entry into a suspect’s home to effect an arrest. That court recently held that Payton may be invoked retroactively by defendants whose cases are on direct appeal (see United States v Johnson, 457 US 102 S Ct 2579, 2594-2595). The issue having been raised by defendant below, it is properly before us.

At the suppression hearing, the court considered the circumstances underlying defendant’s arrest. The court found that, in light of the gravity of the crime, the suspect’s possession of and willingness to use a gun, and the likelihood of his attempting to escape, the officers’ failure to procure a warrant before arresting defendant was excusable. On the record below, it cannot be said as a matter of law that this was error, in view of the affirmed findings which we construe as a finding of exigent circumstances.

Finally, defendant argues that, because the stenographic notes of the summations and the jury charge were lost, no adequate record existed from which to prepare his appeal and therefore he was denied due process of law. The right to appeal a criminal conviction is a “fundamental right”, and the State must provide a record of trial sufficient to enable a defendant to present reviewable issues on appeal (People v Rivera, 39 NY2d 519, 522). Here, however, the trial court held a reconstruction hearing at which defense counsel admitted that no objections were stated during the portions of trial now absent from the record. Inasmuch as defendant does not claim any error in either the summations or the jury charge, the loss of the notes cannot be said to have prejudiced defendant.

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

Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Order affirmed.


author: Wachtler, J.

text:
    Marine Midland Bank, N.A., Respondent, v Price, Miller, Evans & Flowers, Defendant and Third-Party Plaintiff-Appellant, et al., Defendant and Third-Party Plaintiff. Culp & Evans, Third-Party Defendant-Appellant.
    Argued September 2, 1982
    decided October 14, 1982

      POINTS OF COUNSEL

      Jeremiah J. McCarthy for appellants.
    I. Marine cannot be a “holder” or “holder in due course” without a proper indorsement of the checks. (United Overseas Bank v Veneers, Inc., 375 F Supp 596; Perini Corp. v First Nat. Bank of Habersham County, Ga., 553 F2d 398; National Bank of North Amer. v Flushing Nat. Bank, 72 AD2d 538.) II. The legend stamped on the back of the checks does not qualify as an indorsement. III. Marine is not a “holder in due course” of the checks. (Underpinning & Foundation Constructors v Chase Manhattan Bank, N.A., 46 NY2d 459; Chemical Bank of Rochester v Haskell, 51 NY2d 85.)

      Paul K. Stecker for respondent.
    I. Marine is “holder” of the checks either because Proctor’s indorsement is not required for Marine to be a “holder” or because the stamp applied to the checks by Marine qualifies it as a “holder”. (Bowling Green v State St. Bank & Trust Co., 425 F2d 81; Perini Corp. v First Nat. Bank of Habersham County, Ga., 553 F2d 398.) II. Marine took the checks “for value”; as transferred to Marine, the checks contained no restrictive indorsement. (Perini Corp. v First Nat. Bank of Habersham County, Ga., 553 F2d 398.) III. Marine took the checks in good faith and without notice of a claim or defense. (Chemical Bank of Rochester v Haskell, 51 NY2d 85.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether the plaintiff, Marine Midland Bank can claim the status of a holder in due course of a check which it cashed without indorsement and stamped “credited to the áccount of the payee herein named”, although the payee, who had presented the check, had no account at the bank. By a divided court the Appellate Division held that the bank had properly supplied the missing indorsement pursuant to subdivision (1) of section 4-205 of the Uniform Commercial Code and was otherwise a holder in due course. The defendant appeals on the basis of the dissent claiming primarily that the bank could not supply the missing indorsement because the payee was not a customer of the bank within the meaning of the statute; that if the bank could supply the indorsement it did not supply a proper indorsement, and if the indorsement was effective the bank did not give value because it did not pay consistent with the indorsement.

The facts are not disputed. The defendant is a Jamestown law firm which in 1978 and 1979 represented clients in connection with construction contracts to be performed by Leo Proctor Construction Company, Inc., a Texas corporation. Pursuant to the contracts Proctor was to construct four Pizza Hut restaurants in New York, and was to receive progress payments for completed work.

On January 3, 1979 the defendant made a progress payment on behalf of its clients by drawing and delivering two checks totaling $36,906.54. The checks were made payable to Proctor as the named payee and had been drawn by the defendant on a trust account it maintained for disbursement of client’s funds at the First National Bank of Jamestown.

On January 4, 1979 a Proctor employee brought these two checks to one of the plaintiff’s branch offices at Jamestown and presented them to the manager with a request that the funds represented by the checks be wire transferred to an account maintained by Proctor at the First National Bank of Bethany in Oklahoma. The checks were not indorsed by Proctor. However, an employee of the plaintiff bank stamped the reverse side of the checks “credited to the account of the payee herein named/Marine Midland Chautauqua National Bank” and then wire transferred the funds to Proctor’s account at the Oklahoma bank. Proctor has never maintained an account with the plaintiff bank.

After the defendant law firm delivered the checks to Proctor it was informed by one of its clients that Proctor was in default on the construction contracts and, at the client’s request, stopped payment on the checks. Thus when the checks reached First National they were stamped “Payment stopped” and were returned to the Oklahoma bank which returned them to the plaintiff.

The plaintiff made a timely demand for payment of the checks by Proctor but was informed that Proctor had filed a petition in bankruptcy. The plaintiff then made a timely demand for payment by the defendant, but the defendant refused to honor the checks. It is conceded that the plaintiff had no knowledge of Proctor’s default on the construction contracts at the time it took the checks.

It is also noted in the agreed statement of facts that the defendant had previously made six progress payments to Proctor commencing in August, 1978. These checks had been accepted by the plaintiff and, at Proctor’s request, the funds were wire transferred to one of Proctor’s accounts in another bank in Oklahoma or Texas. On five occasions the checks were indorsed by Proctor. In the other case the plaintiff had stamped the check as having been credited to Proctor’s account. Every one of these checks had been honored by the defendant.

It also appears that the plaintiff had been cashing some of Proctor’s payroll checks at this particular branch in Jamestown. These checks had been drawn on Proctor’s account in either the Oklahoma or the Texas bank, and were presented to the plaintiff by Leo Proctor and Proctor employees. On the first occasion in May of 1978 the plaintiff’s branch manager had called the Texas bank and determined that Proctor’s credit was good. Each check presented by Leo Proctor in person was cashed only after the plaintiff had confirmed that there were sufficient funds in the account at the drawee bank. In one instance plaintiff refused to cash the check after learning that the funds were insufficient. On another occasion, in the summer of 1978, a check presented by a Proctor employee had been returned for insufficient funds after the employee had been permitted to withdraw against the uncollected funds. This check was being held by the plaintiff’s manager on January 3, 1979.

The parties agree that the defendant has a valid defense against Proctor for lack of consideration and thus against the plaintiff, as Proctor’s transferee, unless the plaintiff can qualify as a holder in due course.

Under the Uniform Commercial Code five requirements must be met before a party can obtain the special protections of a holder in due course. The party must be (1) a holder (2) of a negotiable instrument (3) who took it for value (4) in good faith (5) without notice that it is overdue, has been dishonored, or is subject to a defense or claim on the part of another person (Uniform Commercial Code, § 3-302, subd [1]; see, also, White & Summers, Uniform Commercial Code [2d ed], pp 551-552). Although at common law a depositary bank generally could not achieve that status, the Uniform Commercial Code permits it to qualify provided it meets the five general requirements (Hawkland, Depositary Banks as Holders in Due Course, 76 Commercial LJ 124; Marine Midland Bank-New York v Graybar Elec. Co., 41 NY2d 703; Long Is. Nat. Bank v Zawada, 34 AD2d 1016; Uniform Commercial Code, § 3-206, subd [3]).

With respect to the first requirement the code provides that a holder is “a person who is in possession of * * * an instrument * * * issued or indorsed to him or to his order or to bearer or in blank” (Uniform Commercial Code, § 1-201, subd [20]). In this case it is conceded that the bank is in possession of the check but also conceded that the bank accepted the check without indorsement. This would generally preclude a person from being a holder, and thus a holder in due course.

However, the bank contends, and a majority of the Appellate Division agreed, that subdivision (1) of section 4-205 of the Uniform Commercial Code excuses its failure to obtain Proctor’s indorsement. The statute provides: “A depositary bank which has taken an item for collection may supply any indorsement of the customer which is necessary to title unless the item contains the words ‘payee’s indorsement required’ or the like”. The stated purpose of the section is “to speed up collections by eliminating any necessity to return to a non-bank depositor any items he may have failed to indorse” (Uniform Commercial Code, § 4-205, Comment 1). The defendant contends that this section is inapplicable here because Proctor has no account at the bank and thus could not qualify as a depositor.

It appears that this section was designed to facilitate the collection process in the relatively common situation where a person having an account at the bank deposits a check without indorsement (see, e.g., Clark, Bank Deposits, Collections and Credit Cards, § 4.3, p 4-26). By its terms, however, the statute is not limited to that situation. The bank’s statutory authority to supply a missing indorsement applies to any item submitted for collection by “a customer”, which includes not only persons “having an account with a bank” but also anyone “for whom a bank has agreed to collect items” (Uniform Commercial Code, § 4-104, subd [1], par [e]). Thus the fact that Proctor had no account at the bank did not necessarily preclude the bank from supplying the missing indorsement.

The bank urges that Proctor became its customer when it “agreed to collect the checks for Proctor, as it had in the past”. The defendant disputes this characterization of the transaction. It states: “Had the bank been acting as Proctor’s agent for collection, it would have passed the checks through the normal channels and paid Proctor once they had cleared * * * Marine, however, advanced its own funds to Proctor on the assumption that the checks would clear. It therefore was not seeking to collect the checks in Proctor’s behalf, but rather in its own behalf”. It also claims that the prior transactions were of the same character.

The drafters of the Uniform Commercial Code have noted that “Historically, much time has been spent and effort expended in determining or attempting to determine whether a bank was a purchaser of an item or merely an agent for collection” (Uniform Commercial Code, § 4-201, Comment 1). In order to simplify this problem subdivision (1) of section 4-201 of the Uniform Commercial Code establishes a presumption of the bank’s agency status, which prevails unless “a contrary intent clearly appears”. Although this section seems to provide the relevant guidelines for this case, neither of the parties have cited it or addressed themselves to the issues it presents. Nor was the section mentioned or discussed in the opinions at the Appellate Division. However, we need not decide its applicability or effect in this case, because even if it be assumed that the bank was an agent and Proctor a “customer”, the bank’s handling of this transaction does not entitle it to holder in due course status.

If Proctor was the plaintiff’s customer then the plaintiff was entitled to supply the missing indorsement and in our view satisfied that requirement in this case. We find no merit to the defendant’s contention that the “legend” the bank stamped on the reverse side of the check does not constitute an indorsement. On this point the statute expressly provides that “a statement placed on the item by the depositary bank to the effect that the item was deposited by a customer or credited to his account is effective as the customer’s indorsement” (Uniform Commercial Code, § 4-205, subd [1]). Although Proctor did not in fact have an account at the bank capable of being credited that does not impair the effectiveness of the indorsement under the terms of the statute. The section is quite explicit that the statement the bank placed on the check in this case effectively serves as the customer’s indorsement. And as noted earlier, being in possession of an indorsed item would qualify the bank as a holder (Uniform Commercial Code, § 1-201, subd [20]).

However, in order to qualify as a holder in due course the bank must satisfy additional conditions, including a requirement that it give value within the meaning of the code (Uniform Commercial Code, § 3-302, subd [1]). With respect to this requirement the inconsistency between the indorsement and the manner in which the checks actually were paid is significant. On this point the code is equally explicit: “Except for an intermediary bank, any transferee under an indorsement which is conditional or includes the words Tor collection’, Tor deposit’, ‘pay any bank’, or like terms * * * must pay or apply any value given by him for or on the security of the instrument consistently with the indorsement and to the extent that he does so he becomes a holder for value. In addition such transferee is a holder in due course if he otherwise complies with the requirements of Section 3-202 on what constitutes a holder in due course.” (Uniform Commercial Code, § 3-206, subd [3].) Thus, a bank which has made a payment inconsistent with the indorsement cannot be said to have given value for the purpose of claiming the special protections afforded a holder in due course. Furthermore, the statute does not limit the bank’s obligation to pay consistent with a restrictive indorsement, to those cases where the restriction was imposed by the payee. In another context we have held that a bank is bound to observe a restrictive indorsement even when the indorsement was forged (Underpinning & Foundation Constructors v Chase Manhattan Bank, N.A., 46 NY2d 459). The plaintiff’s contention that subdivision (3) of section 3-206 does not apply to a depositary bank which has supplied a restrictive indorsement on its customer’s behalf pursuant to subdivision (1) of section 4-205, finds no support in either statute. Accordingly, inasmuch as the bank did not comply with the conditions of the indorsement which it supplied, it cannot be said to have given value within the contemplation of the code and therefore was not a holder in due course based on that indorsement.

Finally the bank argues that the terms of the indorsement may be disregarded because no indorsement was required. It is urged that the indorsement requirement was meant to prevent a thief or forger from negotiating the instrument and therefore should not be considered necessary when the check has been presented by the named payee.

The code of course does not contain any such generalized dispensation from the indorsement requirement. Even with respect to depositary banks, which are given preferred treatment under subdivision (1) of section 4-205, a customer’s failure to indorse an item must be cured by the bank supplying the indorsement. Although, as the plaintiff notes, some courts have held that this represents a mere formality which should not affect the bank’s status as a holder in due course (see, e.g., Bowling Green v State St. Bank & Trust Co., 307 F Supp 648, affd 425 F2d 81), that holding has been widely criticized (see Clark, Bank Deposits, Collections and Credit Cards, § 4.3, pp 4.26-4.27; Hawkland, Depositary Banks As Holders In Due Course, 76 Commercial LJ, pp 124,127; Note, Bowling Green: The Bank as Holder in Due Course, 71 Col L Rev 302; Note, How Can A Bank Become A Holder and Give Value In Order to Attain Holder in Due Course Status?, 12 Boston Coll Industrial & Commercial L Rev 282), and has been rejected by other courts (see, e.g., United Overseas Bank v Veneers, Inc., 375 F Supp 596). In our view this approach urged by the bank cannot be reconciled with the terms of the applicable statutes or with article 4’s general policy of providing fixed rules, based on sound banking practices, as the best means of insuring the type of predictable results necessary to preserve the free transfer of negotiable instruments. As one commentator has aptly observed “It hardly seems unfair to penalize the bank when it fails to perform such a simple act and then seeks the unusual shelter of the holder in-due-course status” (Clark, op. cit., § 4.3, p 4-29).

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted to the defendant.

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

Order reversed, etc.

      . The case was submitted directly to the Appellate Division on an agreed statement of facts (CPLR 3222).

      . The argument is based in part on the contention that the bank conceded during argument at the Appellate Division that the stamp was not actually an indorsement. The bank makes no such concession on this appeal although, as noted later, it urges that it is not required to supply an indorsement to be a holder and thus should not be bound by the restrictions contained in the indorsement.


author: Jasen, J.

text:
    Nicholas E. Licari, Appellant, et al., Plaintiff, v Arthur L. Elliott, Respondent.
    Argued September 7, 1982
    decided October 14, 1982

      POINTS OF COUNSEL

      Julio J. Marino for appellant.
    I. The court below erred in concluding that plaintiff did not make out a prima facie showing that he had suffered a “serious injury” which resulted in (a) a significant limitation of use of body function or system, or (b) a medically determined injury or impairment of a nonpermanent nature which endured for 90 days or more and substantially limited the performance of his daily activities. (Hezekiah v Williams, 81 AD2d 261; Ayala v Reyes, 66 AD2d 790; Simone v Streeben, 56 AD2d 237; Slack v Crossetta, 75 AD2d 809; Harris v St. Johns-bury Trucking Co., 57 AD2d 127; Sanders v Rickard, 51 AD2d 260; Colenzo v Kernan, 49 AD2d 809; Cohen v Hallmark Cards, 45 NY2d 493; Middleton v Whitridge, 213 NY 499; Montgomery v Daniels, 38 NY2d 41.) II. The court below misinterprets the statute by failing to construe it so as to give effect to the plain meaning of the words used. (Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Albano v Kirby, 36 NY2d 526.)

      Alexander J. Wulwick and L. Kevin Sheridan for respondent.
    The court below properly found that plaintiff did not establish prima facie that he sustained a “serious injury” as defined by subdivision 4 of section 671 of the Insurance Law. (Hezekiah v Williams, 81 AD2d 261; Ayala v Reyes, 66 AD2d 790; Simone v Streeben, 56 AD2d 237; Cohen v Hallmark Cards, 45 NY2d 493.)

      Robert H. Silk for New York State Trial Lawyers Association, Inc., amicus curiae.

    I. The statute was properly charged to the jury. II. The issue was of fact for the jury. (Liddy v Frome, 85 AD2d 716.) III. The court below glossed over and ignored the jury finding of “significant limitation” which by itself suffices as a matter of law to bring plaintiffs across the threshold. (Vidra v Shoman, 59 AD2d 714; People v Cruz, 48 NY2d 419; Chalk v Catholic Med. Center of Brooklyn & Queens, 58 AD2d 822; Bender v Jamaica Hosp., 40 NY2d 560; Allegretti v Mancuso, 37 AD2d 964.) IV. The statute is in derogation of a common-law remedy and must be strictly construed. (Abbasi v Galluzzo, 88 Misc 2d 926; Scarpelli v Marshall, 92 Misc 2d 244; People v Culhane, 33 NY2d 90; Tilbro Home Bldrs. v Leidel, 42 AD2d 578; Hanley v Albano, 20 AD2d 644; Lucenti v Cayuga Apts., 59 AD2d 438; McGraw v Watkins, 49 AD2d 958; Millan v Yan Yee Lau, 99 Misc 2d 630.)
   OPINION OF THE COURT

Jasen, J.

The issue raised on this appeal is whether the plaintiff in this negligence action brought to recover damages for personal injuries has established a prima facie case that he sustained a “serious injury” within the meaning of subdivision 4 of section 671 of the Insurance Law, commonly referred to as the “No-Fault” Law.

On February 13, 1979, plaintiff was injured in a motor vehicle accident. After being examined at the hospital, plaintiff was diagnosed as having a concussion, acute cervical sprain, acute dorsal lumbar sprain and a contusion of the chest. He was released two hours later and went home. Later that day, plaintiff consulted his family physician and, after relating the events of the day, was told to rest in bed. On February 15, 1979, plaintiff again consulted his physician and complained that he was coughing up reddish phlegm. Concerned about possible rib damage, his physician had plaintiff admitted to the hospital for tests. The test results showed no rib damage and that plaintiff’s lungs were clear. The hospital physician examined plaintiff upon his admission and testified at trial that plaintiff’s lungs were clear, reflexes normal, and that he suffered only a “very mild limitation” of movement in the back and neck areas. No further medical testimony was elicited with respect to the extent of plaintiff’s limitation of movement. On February 17, 1979, plaintiff stated that he felt better and requested his release from the hospital. He was discharged and returned home. On March 9, 1979, 24 days after the accident, plaintiff returned to his job as a taxi driver. Immediately upon returning to work, plaintiff resumed driving a taxicab 12 hours per day, 6 days a week, as he had prior to the accident. The only proof of limitation with respect to his work performance was plaintiff’s own testimony that he was unable to help some of his fares with their luggage “if they happened to have luggage.” Plaintiff also testified that he could not help his wife with various household chores as much as he had before the accident. Finally, plaintiff stated he had occasional transitory headaches and dizzy spells which were relieved by aspirin.

After the close of evidence, defendant moved to dismiss the complaint on the ground that plaintiff failed to establish that his injury met any of the threshold requirements of a serious injury as defined in subdivision 4 of section 671 of the Insurance Law. The court reserved decision on the motion and submitted the case to the jury on the theories that, in order to recover, plaintiff had to establish, by a preponderance of the evidence, that he had suffered either a medically determined injury of a nonpermanent nature which prevented him from performing substantially all his daily activities for not less than 90 days during the 180 days immediately following the accident or that as a result of the accident he sustained a significant limitation of use of a body function or system. The jury returned a verdict in favor of plaintiff, finding that plaintiff had proven a serious injury under both definitions. Defendant moved to set aside the verdict on the same ground as his prior motion to dismiss the complaint. The court denied the motion.

On appeal, the Appellate Division reversed and dismissed the complaint, holding that the plaintiff had failed, as a matter of law, to prove a serious injury under either definition. We agree and affirm.

In construing the statutory definition of serious injury, it is necessary to examine the policies and purposes underlying this State’s no-fault legislation. The so-called No-Fault Law was adopted by the Legislature to correct certain infirmities recognized to exist under the common-law tort system of compensating automobile accident claimants. (Insurance Law, art 18, L 1973, ch 13, § 1; Montgomery v Daniels, 38 NY2d 41,49-53.) The Legislature provided that “there shall be no right of recovery for non-economic loss [i.e., pain and suffering] except in the case of a serious injury, or for basic economic loss.” (Insurance Law, § 673, subd 1.) The No-Fault Law, as originally enacted, con-

tained a two-part definition of the term “serious injury” keyed to the nature of the injuries and the amount of the medical expenses. The monetary part provided that if reasonable medical costs exceeded $500, a serious injury would be established. This section was repealed in 1977 when experience demonstrated to the Legislature that the $500 threshold provided a target for plaintiffs which was too easily met and that the standard was unsuitable to fulfill the purpose of the No-Fault Law. (Memorandum of State Executive Dept, 1977 McKinney’s Session Laws of NY, p 2450.) It was replaced with the present definition of serious injury as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” (Insurance Law, § 671, subd 4.)

Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no-fault system. We are required then to pass on the threshold question of whether the plaintiff in this case has established a prima facie case that he sustained a serious injury within the meaning of the statute.

Although the statute sets forth eight specific categories which constitute serious injury, we are only concerned on this appeal with construing two of them, to wit: whether the plaintiff suffered a serious injury which resulted in either (1) a “significant limitation of use of a body function or system”; or (2) “a medically determined injury or impairment of a non-permanent nature” which endured for 90 days or more and substantially limited the performance of his daily activities.

We begin our analysis of these two categories of serious injury by recognizing that one of the obvious goals of the Legislature’s scheme of no-fault automobile reparations is to keep minor personal injury cases out of court. In support of this policy determination made by the Legislature, it seems only proper that the words contained in these two categories should be construed consistent with the legislative intent. Hence, the word “significant” as used in the statute pertaining to “limitation of use of a body function or system” should be construed to mean something more than a minor limitation of use. We believe that a minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute.

Likewise in the last category of the statute — “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” — the words “substantially all” should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment. As to the statutory 90/180-day period of disability requirement, it should be considered a necessary condition to the application of the statute. Where the statute is specific, as it is here, that the period of disability must be “for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”, the Legislature has made it abundantly clear that disability falling within this threshold period must be proved along with the other statutory requirements in order to establish a prima facie case of serious injury.

There can be little doubt that the purpose of enacting an objective verbal definition of serious injury was to “significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium.” (Memorandum of State Executive Dept, 1977 McKinney’s Session Laws of NY, p 2448.) “The verbal definition provided in the [legislation placed] a reasonable restriction and further limitation on the right to sue, in order to preserve the valuable benefits of no-fault, at an affordable cost.” (1977 McKinney’s Session Laws of NY, p 2450.) The Governor voiced his support of these policies when he signed the legislation into law. (NY Legis Ann, 1977, pp 310-311; see, also, Matter of Granger v Urda, 44 NY2d 91, 98.) While it is cléar that the Legislature intended to allow plaintiffs to recover for non-economic injuries in appropriate cases, it had also intended that the court first determine whether or not a prima facie case of serious injury has been established which would permit a plaintiff to maintain a common-law cause of action in tort. (Hezekiah v Williams, 81 AD2d 261; Ayala v Reyes, 66 AD2d 790.)

In light of this mandate, plaintiff’s argument that the question of whether he suffered a serious injury is always a fact question for the jury is without merit. It is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute. By enacting the No-Fault Law, the Legislature modified the common-law rights of persons injured in automobile accidents (Montgomery v Daniels, 38 NY2d 41, supra) to the extent that plaintiffs in automobile accident cases no longer have an unfettered right to sue for injuries sustained. Thus, to the extent that the Legislature has abrogated a cause of action, the issue is one for the court, in the first instance where it is properly raised, to determine whether the plaintiff has established a prima facie case of sustaining serious injury. Since the purpose of the No-Fault Law is to assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trials (Memorandum of State Executive Dept, 1977 McKinney’s Session Laws of NY, pp 2448, 2450), requiring that every case, regardless of the extent of the injuries, be decided by a jury would subvert the intent of the Legislature and destroy the effectiveness of the statute. The result of requiring a jury trial where the injury is clearly a minor one would perpetuate a system of unnecessary litigation. “[I]f the procedural system cannot find a way to keep cases that belong in no-fault out of the courthouse, the system is not going to work.” (Schwartz, No-Fault Insurance: Litigation of Threshold Questions under the New York Statute — The Neglected Procedural Dimension, 41 Brooklyn L Rev 37, 53.) Thus, we believe the Legislature intended that the court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy. If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of subdivision 4 of section 671 of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide. (Montgomery v Daniels, supra.)

Turning to the case before us, plaintiff contends that his injuries were serious within the meaning of the statute in that he was prevented, for at least 90 days, from performing substantially all of the material acts which constituted his usual daily activities. (See Insurance Law, § 671, subd 4.) It is undisputed, however, that plaintiff returned to work 24 days after the accident and that upon his return he immediately resumed his usual schedule of driving a taxi 12 hours per day, 6 days a week. Since plaintiff was able to maintain his daily routine for most of each day after returning to work, it should be abundantly clear that pla,intiff was not prevented from performing substantially all of his daily activities during anything close to 90 days following the occurrence of the injury. Thus, the Appellate Division correctly held, as a matter of law, that plaintiff did not meet the statutory standard of serious injury. A similar conclusion was reached in Hezekiah v Williams (supra), where plaintiff suffered a back injury in an automobile accident. She was released from the hospital six hours after the accident and returned to work three weeks later. Plaintiff testified that she could not eat, dress or bathe without assistance during the three weeks following the accident. The court dismissed the complaint, holding that plaintiff had not made out a prima facie case of serious injury since she proved only that she was disabled for a limited period of time and failed to present medical evidence that her injury was the cause of her disability.

It requires little discussion that plaintiff’s subjective complaints of occasional, transitory headaches hardly fulfill the definition of serious injury. Plaintiff offered no proof that his headaches in any way incapacitated him or interfered with his ability to work or engage in activities at home. In fact, plaintiff testified that such headaches occurred only once every two or three weeks and were relieved by aspirin. We do not believe the subjective quality of an ordinary headache falls within the objective verbal definition of serious injury as contemplated by the No-Fault Law. (See Memorandum of State Executive Dept, 1977 McKinney’s Session Laws of NY, p 2448.) To hold that this type of ailment constitutes a serious injury would render the statute meaningless and frustrate the legislative intent in enacting no-fault legislation.

As to plaintiff’s contention that he suffered a “significant limitation of use of a body function or system” (see Insurance Law, § 671, subd 4), taken in its most favorable light, the evidence at trial established only that plaintiff suffered a painful sprain which limited the movement of his neck , and back. Plaintiff offered no evidence as to the extent of the limitation of movement. The only evidence of the extent of plaintiff’s injury came from the hospital duty physician who examined plaintiff on February 15. This doctor testified that plaintiff had only a “very mild limitation” of movement in his neck and back. Plaintiff’s family physician, who testified on plaintiff’s behalf, did not offer any testimony to the contrary. The other injuries plaintiff complained of were a bruised chest and a concussion. No evidence was offered to show that any of these injuries caused a significant limitation of use of a body function or system. As to the occasional headaches and dizziness plaintiff complained of, no evidence was submitted to indicate that plaintiff suffered any significant limitation of any of his body functions or systems. No proof was offered to show that these ailments ever went beyond mere temporary discomfort, relieved by aspirin. The Legislature could not have intended headaches and dizziness of the type experienced by plaintiff to constitute a significant limitation of use of a body function or system.

After a careful examination of the record, we hold that there was no line of reasoning by which the jury could have concluded that plaintiff suffered a significant limitation of use of a body function or system, or that he was prevented from performing substantially all of his usual daily activities for 90 days. (See Cohen v Hallmark Cards, 45 NY2d 493.) While there is little doubt that plaintiff suffered discomfort as a result of the accident, the court has no choice but to enforce the legislative mandate and dismiss the complaint when a plaintiff fails to meet the burden of proving the threshold requirement of establishing a prima facie case that he sustained a serious injury within the meaning of the statute. (Compare Ayala v Reyes, 66 AD2d 790, supra; Simone v Streeben, 56 AD2d 237, with Liddy v Frome, 85 AD2d 716.)

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

Chief Judge Cooke and Judges Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Steven Kelly Beam, Appellant. (1978 Conviction.) The People of the State of New York, Respondent, v Steven Kelly Beam, Appellant. (1979 Conviction.)
    Argued August 31, 1982
    decided October 19, 1982

      POINTS OF COUNSEL
    1978 Conviction

      Steven T. Wax, Public Defender, for appellant.
    I. It was error to allow into evidence proof of other sexual assaults allegedly committed by appellant for which he was not on trial. (People v Molineux, 168 NY 264; People v Condon, 26 NY2d 139; People v Shea, 147 NY 78; Coleman v People, 55 NY 81; People v Allweiss, 48 NY2d 40; People v Sharp, 107 NY 427; People v Ventimiglia, 52 NY2d 350; People v Buchalter, 289 NY 181; People v Battles, 83 AD2d 164; People v Fiore, 34 NY2d 81.) II. Introduction of appellant’s admissions concerning the incidents for which he was not on trial was erroneous. (People v Condon, 26 NY2d 139; People v Santarelli, 49 NY2d 241; People v Ventimiglia, 52 NY2d 350.) III. The prosecutor’s effort to cross-examine Mr. Beam about the Zduniak, Barnett and Paulhamus incidents was improper and deprived appellant of a fair trial. (People v Santarelli, 49 NY2d 241; People v Ventimiglia, 52 NY2d 350; People v Sandoval, 34 NY2d 371; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Porter, 47 AD2d 908; People v Hepburn, 52 AD2d 958; People v Pollock, 21 NY2d 206; People v Thomas, 51 NY2d 466; People v Sifford, 76 AD2d 937; People v Zachery, 31 AD2d 732.) IV. Testimony regarding the residence of appellant’s mother was improperly allowed into evidence. (People v Molineux, 168 NY 264.) V. Appellant’s admissions were taken in violation of his rights under the Federal and State Constitutions and should not have been admitted into evidence. (Miranda v Arizona, 384 US 436; People v Skinner, 52 NY2d 24; People v Pepper, 53 NY2d 213; People v Yukl, 25 NY2d 585, 400 US 851; People v Bodner, 75 AD2d 440; People v Cunningham, 49 NY2d 203; Michigan v Mosley, 423 US 96; People v Yut Wai Tom, 53 NY2d 44; People v Anderson, 42 NY2d 35.) VI. Subdivision 8 of section 130.00 of the Penal Law, as amended in 1977, is unconstitutional. (People v Michael, 48 NY2d 1; People v McLucas, 15 NY2d 167; People v Bergerson, 24 AD2d 772; People v Drummond, 40 NY2d 990; People v Ermo, 47 NY2d 863; People v Miles, 289 NY 360; People v Danziger, 41 NY2d 1092; People v Loewel, 41 NY2d. 609; People v Byron, 17 NY2d 64; People v Illardo, 48 NY2d 408.)

      Patrick H. Mathews, District Attorney, for respondent.
    I. Since identity was in issue, and the modus operandi of each incident was sufficiently unique to logically point to defendant as the perpetrator of each incident, it was not error to allow in evidence, on the issue of identification, proof of other alleged sexual assaults by defendant for which defendant was not on trial. (People v Molineux, 168 NY 264; People v Condon, 26 NY2d 139; People v Allweiss, 48 NY2d 40.) II. It was not error to allow the prosecutor to cross-examine defendant concerning the unrelated incidents or to introduce his admission concerning said incidents.
      (Steinbrecher v Wapnick, 24 NY2d 354.) III. It was not improper for the police to question a suspect not in custody where a waiver of counsel was the product of prior consultation with, and the concurrent judgment of, the attorney, but was communicated to the police by the suspect in the absence of the attorney. (People v Yukl, 25 NY2d 585; People v Skinner, 52 NY2d 24; People v Yut Wai Tom, 53 NY2d 44; People v Claudio, 85 AD2d 245.) IV. Subdivision 8 of section 130.00 of the Penal Law, as amended in 1977, is constitutional. (People v Byron, 17 NY2d 64; People v Dawson, 50 NY2d 311; People v Michael, 48 NY2d 1; People v Cruz, 48 NY2d 419.)
    1979 Conviction

      Steven T. Wax, Public Defender, for appellant.
    I. It was error to allow into evidence proof of other sexual assaults allegedly committed by appellant for which he was not on trial. (People v Molineux, 168 NY 264; People v Condon, 26 NY2d 139; People v Shea, 147 NY 78; Coleman v People, 55 NY 81; People v Allweiss, 48 NY2d 40; People v Sharp, 107 NY 427; People v Ventimiglia, 52 NY2d 350; People v Buchalter, 289 NY 181; People v Battles, 83 AD2d 164; People v Fiore, 34 NY2d 81.) II. The evidence of forcible compulsion was insufficient, as a matter of law, to sustain appellant’s convictions of sodomy in the first degree. (People v Thomas, 53 NY2d 983; People v Yanik, 55 AD2d 164, 43 NY2d 97; People v Connor, 126 NY 278; People v Dohring, 59 NY 374; People v Vicaretti, 54 AD2d 236; People v Bianchi, 55 AD2d 993; People v Greer, 42 NY2d 170; People v Oyola, 6 NY2d 259; People v Bercume, 38 AD2d 356; People v De Tore, 34 NY2d 199; Wedra v New York, 419 US 1025.) III. The testimony of Patrolman Weiss regarding the identification of appellant by Mark Zduniak was improperly received into evidence. (People v Trow-bridge, 305 NY 471; People v Nival, 33 NY2d 391, 417 US 903; People v Lagana, 36 NY2d 71, 424 US 942; People v Burnside, 52 AD2d 626.) IV. Subdivision 8 of section 130.00 of the Penal Law, as amended in 1977, is unconstitutional. (People v Michael, 48 NY2d 1; People v McLucas, 15 NY2d 167; People v Bergerson, 24 AD2d 772; People v Drummond, 40 NY2d 990; People v Ermo, 47 NY2d 863; People v Miles, 289 NY 360; People v Danziger, 41 NY2d 1092; People v Loewel, 41 NY2d 609; People v Byron, 17 NY2d 64; People v Illardo, 48 NY2d 408.)

      Patrick H. Mathews, District Attorney, for respondent.
    I. Since identity was in issue, and the modus operandi of each incident was sufficiently unique to logically point to defendant as the perpetrator of each incident, it was not error to allow in evidence, on the issue of identification, proof of other alleged sexual assaults by defendant for which defendant was not on trial. (People v Molineux, 168 NY 264; People v Condon, 26 NY2d 139; People v Allweiss, 48 NY2d 40.) II. The evidence of forcible compulsion was sufficient to sustain a conviction of sodomy in the first degree. (People v Greer, 42 NY2d 170; People v Bianchi, 55 AD2d 993; People v Thomas, 53 NY2d 983.) III. The testimony of Patrolman Weiss regarding a confrontation between Zduniak and defendant was not improperly received. (People v Dawson, 50 NY2d 311; People v Michael, 48 NY2d 1.) IV. Subdivision 8 of section 130.00 of the Penal Law, as amended in 1977, is constitutional. (People v Byron, 17 NY2d 64; People v Dawson, 50 NY2d 311; People v Michael, 48 NY2d 1; People v Cruz, 48 NY2d 419.)
   OPINION OF THE COURT

Jasen, J.

We are asked on this appeal to decide whether evidence of similar crimes allegedly committed by the defendant were properly admitted for the purpose of establishing the defendant’s identity. Additionally, we are asked to consider whether certain statements taken after the defendant had retained counsel were properly admitted into evidence.

Between mid-February and the middle of May, 1978, five young men reported incidents of homosexual assaults to the Binghamton police. In each case, the victim described his attacker as being in his early twenties, approximately 5 feet, 11 inches tall and weighing 160 pounds, with blond hair hanging down around his ears and gold, wire-rimmed, teardrop-shaped glasses. Each young man told the police that he had been approached by the assailant, who offered to share some marihuana with him. These initial encounters all were reported to have occurred in the same general area of Binghamton. After agreeing to share the marihuana, the young men reported that they went with the assailant to isolated locations along the floodwall near the river, or in one case into the football stadium which was similarly nearby and desolate. When they reached their destination, rather than producing the marihuana, the assailant would, according to the reports, overpower his companion, forcing him to engage in French kissing, followed by acts of oral and anal sodomy.

The police, suspecting the defendant on the basis of the victims’ descriptions, began leaving word that he was wanted for questioning. When the defendant heard that the police wanted to question him, he contacted a local attorney. He told the attorney that he thought the police wanted to question him in connection with an incident in which he and another person had had a disagreement which led to some pushing and shoving. He made no mention of any other incident, nor of any sexual aspect to the incident. The attorney advised him to go and speak with the police, but not to sign anything.

At the station house, the defendant was read Miranda warnings and asked about an incident on May 15 when a young man was attacked, although not sexually assaulted. The defendant told the police that he had been attacked by the young man and that he had run away from him.

At that point in the questioning, the attorney whom defendant had consulted called to see if his client had gone to the police station. The attorney spoke with the interrogating officer who told him that the defendant refused to sign the Miranda card and that they were going to question him concerning other similar incidents. The attorney told the officer to tell his client that he could sign the Miranda warning card and could discuss the other incidents, but that he should not sign any statement until his attorney had seen it.

When the questioning resumed, the police told the defendant that they had tried to stop someone matching the defendant’s description to question him concerning an assault on April 11, but the person had run away. The defendant admitted he was that person and stated that he

had run because he was afraid the police wanted him for something. In response, the police said that they had wanted to discuss the recent homosexual assaults. The defendant then attempted to bargain with the police by offering to tell them about the incidents if, rather than charging him with anything, they would allow him to sign himself into a mental hospital. He was told that he would have to be charged. At this point, he indicated that he wished to call his attorney and questioning ceased.

Later that afternoon, a lineup was arranged, at which a partner of the attorney that defendant had contacted was present. Another associate of the lawyer had also been allowed to talk with the defendant earlier in the day. On both occasions, he was told not to talk to anyone and no further statements were made. At the suppression hearing, the defendant sought to suppress his statements which indicated knowledge of the crimes, most particularly his offer to tell the police about them if they let him commit himself to a hospital.

A 12-count indictment was returned stemming from four assaults which involved sodomy and from the attack on the young man not sexually assaulted. A motion for separate trials was made and granted. This appeal arises from the second and fifth trials, both of which resulted in the defendant being convicted of first degree sodomy.

At each trial, the victim identified the defendant as the person who had attacked him. Each also testified that he had accompanied the defendant to these isolated locations after defendant had approached him and offered to share some marihuana. Instead of supplying the marihuana, each testified that the defendant attacked and overpowered him. Although each story of the attack and sexual assault involved slight variations, each testified to a specific scenario which involved French kissing and then oral sodomy followed by anal sodomy.

On cross-examination, defense counsel raised issues concerning the validity of the identification. In response, the People sought the court’s permission to allow several other of the victims to testify so that they might identify the defendant and describe the nature of the attacks against them. The defense objected on the ground that the prejudicial effect of allowing testimony concerning similar crimes allegedly committed by the defendant outweighed the probative value of the testimony.

Trial court allowed the testimony of several of the other victims under what has come to be known as the identity exception first articulated by this court in People v Molineux (168 NY 264). Proper limiting instructions were given to the jury immediately prior to the testimony of each victim and again during the charge. Defense counsel raised further objections, arguing that identity was not in issue to the extent necessary to allow testimony concerning other crimes and that this was not a proper application of the identity exception.

On appeal, the Appellate Division, Third Department, found this argument to be “unconvincing”. (People v Beam, 84 AD2d 653, 654.) That court noted that identity was put into issue by the cross-examination of the victim which raised questions concerning the validity of the identification, and by the defendant’s own testimony, during which he denied any contact with the victim. The nature of the attacks was sufficiently similar, the court reasoned, to allow the testimony for the limited purpose of identification.

In considering the defendant’s claim that statements made by him to the police should have been suppressed because they were taken in violation of his right to counsel, the Appellate Division found that the statements were properly admitted. The majority reasoned that the statements had been voluntarily made by the defendant after consultation with his attorney, and the fact that the defendant had misled his attorney as to the severity of the charges should not inure to the defendant’s benefit by effectively enlarging his right to counsel to include receiving specific advice. Neither did the majority believe that the retaining of counsel imposed an affirmative duty on the police to see that the client has been candid with the attorney when seeking the attorney’s advice.

The dissenter argued that since the police knew the defendant had retained counsel, they could not question the defendant unless he waived his right to counsel. Furthermore, this could only be done by the defendant, not the attorney, and only with the attorney present.

For the reasons that follow, we agree with the majority at the Appellate Division that both the testimony concerning the other assaults and the statements made by the defendant to the police were properly admitted by the trial court. We would also add that, like the Appellate Division, we find no merit to defendant’s other claims that the People failed to prove the use of forcible compulsion as defined by subdivision 8 of section 130.00 of the Penal Law or that that statute is unconstitutionally vague. While it is true that forcible compulsion is an abstract concept, the statute cannot be termed ambiguous. There was adequate evidence in both cases that the defendant used physical force and intimidation in order to force his victims to comply with his desires.

Turning then to the propriety of allowing other victims to testify and identify the defendant as their attacker, it must be noted that this testimony was admitted for the limited purpose of establishing the defendant’s identity and proper limiting instructions were given. The question thus presented is whether the defendant’s modus operandi was sufficiently unique to tend to establish his identity and accordingly make use of the identity exception proper. (People v Molineux, 168 NY 264, supra; People v Condon, 26 NY2d 139; People v Allweiss, 48 NY2d 40; Richardson, Evidence [Prince, 10th ed], § 180, p 149.)

It has long been the general rule that evidence of uncharged crimes is not admissible because it is feared that the jury may convict the defendant not of the crime charged, but rather because of his predisposition to criminal conduct. (People v Molineux, supra, at p 291; People v Condon, supra, at p 143; People v Allweiss, supra, at pp 46-47.) However, when the evidence of the other crimes is relevant to an issue other than the defendant’s criminal tendency, it may be admitted on the basis of an exception to the general rule, but only for the limited purpose for which it is relevant. (People v Allweiss, supra, at p 47; People v Ventimiglia, 52 NY2d 350, 359-360.)

In People v Molineux (supra), this court stated what has come to be known as the five Molineux exceptions to the rule forbidding introduction of evidence of similar crimes. The fifth exception is “when the evidence of an extraneous crime tends to identify the person who committed it as the same person who committed the crime charged in the indictment”. (People v Molineux, supra, at p 313.) But the court was quick to note that this exception was of limited application. The mere fact that similar crimes were committed in a similar manner would not particularly aid in identifying the defendant unless the similarities were unusual enough to compel the inference that the defendant committed both. Thus, the defendant’s modus operandi must be sufficiently unique to make the evidence of the uncharged crimes “probative of the fact that he committed the one charged”. (People v Condon, supra, at p 144; People v Allweiss, supra, at pp 47-48; Richardson, Evidence [Prince, 10th ed], § 180, at p 150.)

The threshold issue is whether or not identity is even an issue in the case. Other jurisdictions have limited the application of this exception and will not allow its use if the defendant’s identity has been established by other evidence. (29 Am Jur 2d, Evidence, § 322, p 373; People v Condon, supra, at p 142; People v Ventimiglia, 52 NY2d 350, supra.) This court, however, in People v Condon (supra), stated the rule in New York as: “[U]nless the defendant’s identity is conclusively established, the identity exception set forth in Molineux should apply to enable the prosecution to adequately prove the defendant’s identity.” (People v Condon, supra, at p 142.)

In this case, we find that the assailant’s identity remained in dispute. It was put into issue by the defense cross-examination of the victim which raised questions concerning the validity of his identification of the defendant and by the defendant’s testimony that he was not the person who had attacked the victim. His own testimony, above all, kept the issue of identity viable. It may seem clear that the victim’s testimony which included verification of the description he had given the police at the time of the attack would be significantly more credible to the jury than the defendant’s assertions that he was not the right man. But this would not remove the issue of identity from the case.

The use of the identity exception was thus proper if it can be said that the alleged conduct was sufficiently unique to be probative on the issue of identity. (People v Condon, supra, at p 144; People v Allweiss, supra, at p 47; McCormick, Evidence, § 190; Richardson, Evidence [Prince, 10th ed], § 180, at p 150.) The defendant contends that the modus operandi supposedly employed amounts to nothing more than the type of activity normally associated with homosexual encounters and thus fails to establish the required uniqueness. A review of the testimony of all the victims indicates that the pattern of these attacks was sufficiently unique to justify the use of the identity exception.

The same essential story was told by each victim, except the one who managed to fight off his assailant. All the victims were young men in their late teens who were approached by a man they described as being approximately 19 or 20. He offered to share some marihuana with each victim, thereby luring him to an isolated location. Three of the young men were approached in the same general area of the City of Binghamton and, with the exception of the young man who went to the football stadium, they went with the defendant to isolated areas along the river. At some point during their initial conversation, the defendant told three of the young men that he was from out of town and on his way elsewhere. When they reached the location chosen by the defendant, he assaulted them’ forcing them to partially disrobe and perform oral sodomy on the defendant. He then forced them to allow him to sodomize them. The scenario in each case concluded with acts of anal sodomy. All the victms also testified that he forced them to engage in French kissing during the encounter. Although there are .minor differences in each attack, the pattern of the initial encounter and the specifics of the sexual attacks, all of which followed the same pattern, indicate a unique modus operandi. While it is true, as defendant contends, that any one individual aspect of the encounter is not unique behavior for a homosexual episode, the over-all pattern does serve to establish this as a modus operandi.

In each case, the initial ruse used to attract the young men was the same, as was the story, in three of the four instances, about defendant being from out of town. Each victim was taken to an isolated location and was then assaulted. The pattern of the assault itself was also sufficiently unique to indicate that one person was responsible. It is not necessary that the pattern be ritualistic for it to be considered unique; it is sufficient that it be a pattern which is distinctive. This is not to say each element of the pattern must be in and of itself unusual; rather the pattern, when viewed as a whole, must be unique. Thus, even though other homosexual attacks might, by chance, follow the same pattern, the pattern used by the defendant in these cases was sufficiently unusual to establish a specific modus operandi, making the evidence of the other attacks highly probative of the assailant’s identity. (People v Allweiss, 48 NY2d 40, supra.)

We turn now to consider defendant’s claim that his right to counsel was violated so that statements made to the police during his interrogation should be suppressed. While these statements do not constitute a specific confession, they do indicate that the defendant had knowledge of the crimes.

It is clear from the facts that the police knew the defendant had an attorney. But it is equally clear that the defendant, on the advice of his attorney, agreed to be questioned without the attorney present. This was then confirmed in the telephone conversation between the interrogating officer and the attorney. We perceive no obligation on the part of the police to seek some form of independent assurance that the decision of the suspect and his attorney to waive the suspect’s right to remain silent and to have his attorney present is good advice. Nor do we perceive any responsibility on the part of the police to assure that the communication between the attorney and the client which led to the decision was open and honest.

The police in this case did everything required to honor the defendant’s right to counsel. When told that he had been instructed by his attorney to come and answer their questions, but not sign anything, it was permissible for the police to infer from the defendant’s conduct that he agreed with his attorney’s advice. The attorney then cannot be said to have waived the defendant’s right to counsel, but rather to have confirmed defendant’s waiver of his right to remain silent and that the waiver was made on the advice of counsel. The right to counsel does not serve as an absolute barrier between the State and the accused; rather, it is designed to insure that individuals have counsel in dealing with the complexities of the legal system. (People v Rogers, 48 NY2d 167; People v Skinner, 52 NY2d 24.) But there are occasions when the best counsel will lead a suspect to waive one of his rights. Plea bargaining in exchange for information is, of course, the most obvious such situation. When a person has had the benefit of counsel and then chooses to waive one of his rights, the police are not required to question the validity of that decision as long as they are assured that the decision was made in consultation with the suspect’s attorney. (People v Cunningham, 49 NY2d 203; People v Bartolomeo, 53 NY2d 225.) Usually such information will come when all the parties, the client, the attorney and the police are present, but there is no requirement of physical presence of the attorney. Such an assurance by the attorney who consulted with defendant is just as valid when made over the telephone. (People v Yut Wai Tom, 53 NY2d 44, 53-54.)

Moreover, in this case, the defendant misinformed his attorney as to the nature of the incident about which the police were seeking to question him. Were we now retroactively to give him the benefit of the advice he might have received had his attorney been fully informed, we would be allowing a distortion of the constitutional right to counsel.

That right is designed to assure that a person have the aid of an attorney when he is dealing with the State. (People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167, supra; People v Skinner, 52 NY2d 24, supra.) We have repeatedly indicated our sensitivity to assuring that an individual’s constitutional right to counsel be afforded the utmost protection. (People v Rogers, supra; People v Samuels, 49 NY2d 218; People v Skinner, supra; People v Bartolomeo, 53 NY2d 225, supra.) Because of our concern that

the individual needs the assistance of counsel in dealing with the State, we have held that once an individual invokes his right to counsel, a waiver of that right will not be deemed voluntary and intelligent unless made in the presence of counsel. (People v Cunningham, supra; People v Skinner, supra; People v Bartolomeo, supra.) But, in this case, we are not faced with a waiver of the defendant’s right to counsel. In fact, the police were told that he had come to speak with them on the advice of his attorney and the attorney confirmed this. Later, they properly ceased questioning as soon as the defendant indicated he wanted to speak with his attorney again.

In retrospect, one may argue that the attorney’s advice was poor, but it was precipitated, at least in part, by defendant’s own conduct which misled his attorney. As long as the police honored the defendant’s right to counsel, and determined that he was speaking with them on advice of counsel, the defendant was afforded all the protections encompassed by the constitutional right to counsel.

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

Chief Judge Cooke and Judges Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Orders affirmed.


author:
      Per Curiam.

      Meyer, J.

text:
    The People of the State of New York, Respondent, v Paul Ira Ferber, Appellant.
    Argued October 13, 1982
    decided October 21, 1982

      POINTS OF COUNSEL

      Herald, Price Fahringer and Paul J. Cambria, Jr., for appellant.
    This court’s original decision, declaring unconstitutional section 263.15 of the Penal Law because it prohibits the promotion of nonobscene sexual performances by a minor, should be sustained under New York’s free speech clause contained in section 8 of article I of our State Constitution. (Cooper v Morin, 49 NY2d 69, cert den sub nom. Lombard v Cooper, 446 US 984; Roth v United States, 354 US 476; People v Richmond County News, 9 NY2d 578; Mishkin v New York, 383 US 502; Bellanca v New York State Liq. Auth., 54 NY2d 228.)

      Robert M. Morgenthau, District Attorney (.Robert M. Pitler, Mark Dwyer and Donald J. Siewert of counsel), for respondent.
    Section 263.15 of the Penal Law is in complete accord with the free speech and press clause of the State Constitution. (Bellanca v New York State Liq. Auth., 54 NY2d 228; Doran v Salem Inn, 422 US 922; People v Ponder, 54 NY2d 160; Matter of Koffler, 51 NY2d 140, 450 US 1026; People v Kahan, 15 NY2d 311; Barry E. v Ingraham, 43 NY2d 87; United States v Various Arts, of Obscene

      Mdse., 600 F2d 394; Miller v California, 413 US 15; Broadrick v Oklahoma, 413 US 601.)

      Edmund J. Burns, Gregory A. Loken and William A. Cahill, Jr., for Covenant House, amicus curiae.

    I. The production and distribution of child pornography produce harms to children of such intensity as to become compelling concerns of the State. (Finlay v Finlay, 240 NY 429.) II. Article XVII of the New York Constitution mandates the protection of sexually exploited children from the harms of distribution of child pornography. (Matter of Sanjivini K., 40 NY2d 1025; Matter of Storar, 52 NY2d 363; Matter of Bennett v Jeffreys, 40 NY2d 543; People v Ewer, 141 NY 129; Sinhogar v Parry, 53 NY2d 424; Matter of Bates v Toia, 45 NY2d 460; Bartels v County of Westchester, 76 AD2d 517; Matter of Lee v Smith, 43 NY2d 453; Tucker v Toia, 43 NY2d 1; Matter of Bernstein v Toia, 43 NY2d 437.) III. The State Constitution’s protection of “liberty of speech” has no application to the statute in question, which is a proper exercise of the State’s paternal power on behalf of sexually exploited children. (Pathe Exch. v Cobb, 202 App Div 450, 236 NY 539; Board of Educ. v Nyquist, 57 NY2d 27; Matter of United Press Assns. v Valente, 308 NY 71; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Richmond Newspapers v Virginia, 448 US 555; People v Street, 20 NY2d 231; Ali v Playgirl, Inc., 447 F Supp 723; Chaplinsky v New Hampshire, 315 US 568; Bookcase, Inc. v Broderick, 18 NY2d 71, app dsmd sub nom. Bookcase, Inc. v Leary, 385 US 12.) IV. This case presents no fit occasion for considering the statute’s validity with respect to literary, scientific and educational materials. (Karaduman v Newsday, Inc., 51 NY2d 531; Cianci v New Times Pub. Co., 639 F2d 54; Lerman v Chuckleberry Pub., 496 F Supp 1105; Ali v Playgirl, Inc., 447 F Supp 723; Hidley v Rockefeller, 28 NY2d 439; People v Drayton, 39 NY2d 580; Urowsky v Board of Regents of Univ. of State of N. Y., 38 NY2d 364.)

      Henry R. Kaufman, Roy Gainsburg, Arthur N. Eisenberg and Steven R. Shapiro for Association of American Publishers, Inc., and others, amici curiae.

    I. This court should hold that section 263.15 of the Penal Law violates section 8 of article I of the New York State Constitution. (Chaplin-

      sky v New Hampshire, 315 US 568; People v Elwell, 50 NY2d 231; Cooper v Morin, 49 NY2d 69, cert den sub nom. Lombard v Cooper, 446 US 984; People ex rel. Donohoe v Montayne, 35 NY2d 221; Bellanca v New York State Liq. Auth., 54 NY2d 228; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Matter of Koffler, 51 NY2d 140, 450 US 1026; Schad v Mount Ephraim, 452 US 61; First Nat. Bank of Boston v Bellotti, 435 US 765.) II. Alternatively, section 263.15 of the Penal Law should be construed and limited so as to reach only materials lacking serious literary, artistic, educational, scientific, medical or other similar value. (Miller v California, 413 US 15.)
   OPINION OF THE COURT

Per Curiam.

The United States Supreme Court has remanded this case for our reconsideration. That court held, for the first time, that a State is not prohibited under the First Amendment of the United States Constitution from proscribing certain nonobscene sexual depictions of children. The Supreme Court has also indicated that such a law may be upheld unless it reaches impermissible applications (New York v Ferber, 458 US_, 102 S Ct 3348, 3362). The only question remaining in this case is whether the defendant’s rights under this State’s Constitution were violated.

The protection afforded by the State constitutional right of free expression (NY Const, art I, § 8) is as broad as that provided by the First Amendment and, as the Supreme Court has noted, may in fact provide greater protection (PruneYard Shopping Center v Robins, 447 US 74). However, the type of performance prohibited by the statute, which was the subject of this prosecution, is not entitled to that greater protection.

Thus we conclude that the statute (Penal Law, § 263.15), as applied to this case does not violate the right of freedom of expression guaranteed by the State Constitution. We decline the invitation of the appellant and the amici to address or to anticipate questions as to the constitutionality of the statute as applied to other factual situations.

The order of the Appellate Division should be affirmed.

Meyer, J.

(concurring). While I agree that the statute as applied to the instant case does not violate the State Constitution, I would as a matter of State constitutional law recognize an affirmative defense for literary, scientific, educational, governmental or other similar justification, paralleling that now set forth in subdivision 1 of section 235.15 of the Penal Law. Each of the four Supreme Court opinions warns that the statute will have some unconstitutional applications (New York v Ferber, 458 US , —, —, _, _, 102 S Ct 3348, 3363, 3364, 3365, 3366, 3367). In my view, without such a defense, the chilling effect of section 263.15 of the Penal Law upon serious depictions which do not actually threaten the harms addressed by that statute will cause greater harm to this State’s interest in free expression than is constitutionally permissible.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Meyer concurs in a separate opinion in which Judge Fuchsberg also concurs.

Upon reargument, following remand by the United States Supreme Court, order affirmed.