author: Jasen, J. Gabrielli, J. (concurring).

text:
    The People of the State of New York, Respondent, v David Parks, Appellant.
    Argued September 15, 1976;
    decided December 16, 1976

      Matthew Muraskin, James J. McDonough and Eugene Murphy, Mineola, for appellant.

      Denis Dillon, District Attorney (Robert N. Zausmer and William C. Donnino of counsel), Mineola, for respondent.
   Jasen, J.

Appellant David Parks was found guilty by a jury of the crimes of rape in the third degree and endangering the welfare of a child. The Appellate Division affirmed the judgment of conviction, without opinion. On appeal to our court, appellant argues that the petit jury which convicted him was unconstitutionally selected and that the trial court erred in permitting the mentally retarded complainant to testify under oath. An important corollary issue is whether, in assessing the complainant’s testimony, the jury was properly permitted to consider the testimony of her school teacher as to the nature and degree of her mental impairment. We conclude that, under the circumstances presented, the right to trial by jury was not infringed and that acceptance of both complainant’s testimony, and that of her teacher, was not an abuse of discretion. We would, therefore, affirm the order of the Appellate Division.

On June 30, 1974, the complaining witness, then 16 years old and under the statutory age of consent, was admitted to a Long Island hospital. She had been hemorrhaging for a four-day period in the aftermath of an incomplete abortion. While in the hospital, the complainant gave a statement to a policewoman. Based on the information thus received, two Nassau County police detectives went to the home of David Parks. Defendant was informed that the police were conducting an investigation and he voluntarily agreed to accompany them to the station house. Defendant was brought into a squad room and given the now standard preinterrogation warnings. (Miranda v Arizona, 384 US 436.) After being advised of the nature of the investigation, he denied having had intercourse with the complainant. The officers then explained to him that they had a complaint that they would present to the Grand Jury, that it was possible that he would be indicted for rape, that if defendant gave the police a statement he would be arrested but that he would have an opportunity to explain his version of the events to the Grand Jury. Defendant replied that he knew that the girl would get him into trouble and, further, that he knew that she was under the age of consent. Defendant agreed to provide the police with a written statement. On the basis of further conversations with the defendant, a police officer prepared a typewritten statement which was subsequently read and signed by the defendant.

In the statement, defendant set forth his age (43), his place of residence, his telephone number and his place of employment. After acknowledging that he had been advised of his various constitutional rights, he admitted committing three separate acts of intercourse with the complainant between December, 1973 and March, 1974. Defendant was employed by a bus companjr and knew the complainant as one of the children he drove to a special work program conducted by the Board of Cooperative Educational Services (BOCES). In the statement, defendant maintained that each of the acts of intercourse resulted from the persistent sexual advances of the complainaing witness.

On August 16, 1974, defendant voluntarily appeared before the Nassau County Grand Jury. He testified that he had intercourse with complainant on two occasions and gave detailed accounts of both incidents. The import of this testimony was that the sexual contact was originated by the complaining witness and her advances eventually weakened his own moral inhibitions. Defendant was indicted on two counts of rape in the third degree and two counts of endangering the welfare of a child. After conducting a pretrial hearing, the trial court found that the typewritten statement given by defendant to the police had been voluntarily made and a motion to suppress the statement was denied.

The trial was scheduled to commence on January 28, 1975. On that day, counsel for defendant made an oral motion to dismiss the jury panel on the ground that it was selected in violation of the defendant’s constitutional rights. Counsel argued that former subdivision 7 of section 599 of the Judiciary Law, granting to women an automatic exemption from jury service, was in direct conflict with Taylor v Louisiana (419 US 522), decided by the Supreme Court of the United States seven days earlier. The court denied the motion, relying upon a memorandum it had received from the Administrative Judge. In a portion of this memorandum, read into the record without objection, it was stated that: "In Nassau, according to figures supplied by the Commissioner of Jurors, 33 per cent of those available to be selected to serve and actually present as respective [sic] jurors in the central jury room on any given Monday are women. Thus, in Nassau County, women are not for all practical purposes to be excluded from jury service.”

After a luncheon recess, the selection of a trial jury commenced. In accordance with standard New York procedure (see CPL 270.05, 270.15), 12 prospective jurors were summoned to the jury box. Of these 12, 5 were female. Three were challenged peremptorily by the defense. As jury selection proceeded, the defense challenged three more women peremptorily. Ultimately, a jury of nine men and three women was selected.

At the trial, the prosecution called, as its first witness, a teacher who had known the complaining witness for approximately five and a half years and who had taught the complainant for the past two and a half years. Over objection, the teacher testified that the complainant had an intelligence quotient of 73 and, academically, was functioning on a fifth grade level. Although the complainant had a chronological age of 16, her mental development approximated that of a 12- or 13-year-old child. The teacher also stated, in response to a question regarding the type of personality the complainant had, that the complainant "is very quiet in classes, a loner, she doesn’t bother with the other students very much. Doesn’t have very many friends in class or at school.”

After the completion of the teacher’s testimony, the People called the complainant to the witness stand. Based upon the testimony indicating that the complainant was mentally retarded, the court, at the request of defense counsel, conducted a hearing, out of the presence of the jury, to ascertain whether the complainant was competent to testify. In response to questions from the court, the complainant twice stated that she knew what it means to tell the truth and promised that, if she was sworn to tell the truth, she would tell the truth as to what had happened. On the other hand, she was unable to state what would happen if the truth was not told and could not state the difference between telling the truth and telling a lie. At first, she could not recall why she was in court. She remembered speaking to an Assistant District Attorney about what happened in the past year. She stated that she knew the defendant David Parks. She did not respond to several of the questions put to her by the court. At the conclusion of its examination, the court found that the complainant was competent to be given an oath.

After being sworn, the complainant testified that she first met the defendant on the school bus and became friendly with him. She stated that, on two occasions in the winter, defendant wanted to have intercourse with her and did have intercourse with her. The record reflects that there were long pauses between several of the questions by the prosecutor and the response by the complaining witness. On cross-examination, the witness recalled testifying truthfully before the Grand Jury and stated that she knew the difference between the truth and a lie, although she was unable to state the difference. She maintained that she had told the truth on her direct examination, but admitted at one point that she did not recall everything that had happened between herself and David Parks. Although she stated that she knew what was meant by the terms "rape” and "intercourse”, she was unable to provide an explanation. Later in her testimony, she said that she did not know the meaning of the term intercourse and that she first heard the word used by the policewoman who talked with her in the hospital. At the conclusion of her testimony, she was unable to state what the term rape means.

The balance of the People’s case consisted of testimony by complainant’s mother as to complainant’s date of birth and age, the testimony of a police detective regarding the typewritten statement, and the reading of defendant’s Grand Jury testimony. The defendant did not offer any witnesses or evidence. The jury found the defendant guilty on all counts of the indictment.

At the threshold, there is a question as to whether defendant’s challenge to the jury panel was properly presented to the trial court and, thereby, preserved for appellate review. GPL 270.10 provides that a challenge to a jury panel must be made "in writing” before selection of the jury proceeds. We have recently held that an oral motion made before selection of the jury was ineffective to preserve a challenge to the panel, even though written notice was subsequently given after the jury had been selected and the trial court was willing to consider the motion on the merits. (People v Consolazio, 40 NY2d 446, 455.) Here, the suppression hearing, the jury selection, and the trial were all completed on a single day, January 28, 1975. Immediately before jury selection commenced, counsel for the defendant made an oral challenge to the jury panel. “First of all, your Honor, I apologize to the Court. This particular motion is not on paper. My understanding was the date for this case was February 7th. I was notified yesterday that the case was to begin today.” The court replied that “[w]ell, we will waive that formality.”

We believe that, under the unique circumstances of this case, the trial court had the authority to “waive” the formality of a writing and that the issue of defendant’s challenge to the jury panel was preserved for appellate review. It should be recognized that, generally, the absence of a written challenge presents a serious difficulty. (See People v Petrea, 30 Hun 98, 103, affd 92 NY 128.) The evident purpose of the writing requirement is to ensure that the District Attorney and the court have sufficient time to prepare for hearing to resolve disputed issues of fact and law. For this reason, the written challenge must specify “the facts constituting the ground of challenge.” (CPL 270.10, subd 2.) The need for a written notice is obviated where the necessary parties have been apprised of the specific grounds of objection well in advance of jury selection. That the court was expecting defendant’s challenge to the jury panel on the ground that women were excluded from participation is established by the fact that the court immediately produced a memorandum on this topic from the Administrative Judge. Most notably, the prosecution did not object to consideration of the objection on its merits and the People do not now argue that the issue was not preserved for our review. The requirement of a written detailed notice is designed to prevent the unfair surprise inherent in springing an oral motion upon the prosecutor and the court on the eve of jury selection. Where it appears that the parties did have advance notice and there is no claim of surprise or prejudice, the requirement of a written notice becomes a formality that may be waived by the court, in its discretion.

Defendant bases his challenge to the jury panel upon the assertion that the procedure which governed the drawing of the panel conflicts with the Supreme Court’s decision in Taylor v Louisiana (419 US 522, supra). Historically, New York has granted, as a matter of public policy, persons in a number of categories exemptions from jury service. Beneficiaries of exemptions have included, among others, the clergy, physicians, attorneys, members of the armed services, policemen, parents responsible for the care and supervision of minor children, the elderly, and, the category disputed here, women. (Judiciary Law, §§ 507, 599.) Qualified jurors could exercise their statutory exemptions after being summoned for jury service and, in most cases, if the exemption was not then asserted it was waived. (Judiciary Law, §§ 528, 600.) Women, however, were accorded the right to assert their exemptions at any subsequent time. (Judiciary Law, § 600.) In Taylor v Louisiana (supra), the Supreme Court declared unconstitutional provisions of Louisiana law which prevented a woman from being selected for jury service unless she had previously filed with the clerk of the court a written declaration of her desire to be subject to jury service. Within two weeks of the Taylor decision, the Legislature, fearing that the women’s exemption provisions would be declared unconstitutional, repealed the women’s exemption provisions. (L 1975, ch 4, eff Feb. 5, 1975; see Governor’s Memorandum of Approval, 1975 McKinney’s Session Laws of NY, p 1731.) Defendant’s trial was held in the brief period between the rendition of the Taylor decision and the repeal of the pertinent Judiciary Law provisions.

While a criminal defendant in the State courts has a constitutional right, by virtue of the Sixth and Fourteenth Amendments to the Federal Constitution, to be tried by a jury that is truly representative of the community (Peters v Kiff, 407 US 493, 500; Duncan v Louisiana, 391 US 145), the States have a wide discretion in formulating procedures for the selection of juries, provided that the source from which juries are derived "reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.” (Taylor v Louisiana, 419 US, at p 528; Brown v Allen, 344 US 443, 474.) Our democratic heritage, as well as the need for confidence in the fairness of the criminal justice system, requires that all segments of the community participate in the administration of justice. Hence, the deliberate exclusion of a particular community group or class of persons from jury service violates the constitutional right to a jury trial. (Taylor v Louisiana, 419 US 522, 530, supra.)

On the other hand, it is equally well established that defendants are not entitled to a jury of any particular composition. (Taylor v Louisiana, 419 US 522, 528, supra; Fay v New York, 332 US 261, 284.) Thus, the standard by which a claim of an illegally constituted jury is to be measured is whether the complainant has submitted proof sufficient to establish the existence of intentional and systematic discrimination in the jury selection process. (People v Chestnut, 26 NY2d 481, 488; People v Horton, 18 NY2d 355, 359-360, cert den 387 US 934; People v Agron, 10 NY2d 130, 141, cert den 368 US 922.) This test is mandated by the Federal Constitution (see Peters v Kiff, 407 US 493, 502-503, supra; Carter v Jury Comm., 396 US 320, 330) and has been applied consistently in the courts of this State, in the Federal courts (see, e.g., Cobbs v Robinson, 528 F2d 1331, 1334-1335), as well as by our sister States (see, e.g., Commonwealth v Martin, 465 Pa 134, cert den 428 US 923; State v Greeley, 115 NH 461; Roth v State, 218 Kan 413).

In Taylor, the Supreme Court noted that while Louisiana law did not disqualify women from jury service, "in operation its conceded systematic impact is that only a very few women, grossly disproportionate to the number of eligible women in the community, are called for jury service.” (419 US, at p 525.) The court concluded that "[i]f the fair-cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn.” (419 US, at p 533.) The court stated that, given the view that the Sixth Amendment entitles the criminal defendant to a jury drawn from panels representative of the community, "we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male.” (419 US, at p 537.)

Applying these principles to the case before us, we conclude that the defendant has not established that the exemption accorded women under then operative provisions of New York law resulted in a systematic exclusion of women from jury service in Nassau County. The appropriate test, as we view it, is not whether the governing statute is on its face unconstitutional, but rather whether the application of the statute led to an impermissible result—i.e., the virtually exclusive male composition of juries. Thus, it is unnecessary to decide whether former subdivision. 7 of section 559 of the Judiciary Law is constitutional. Such a decision would be particularly inappropriate where the offending statute has been repealed by the Legislature. (See Bradley v Judges of Superior Ct. for County of Los Angeles, 531 F2d 413, 418; Matter of Alessi v Nadjari, 47 Ad2d 189, 192; People v Tabb, 80 Misc 2d 431, 435.) It suffices to note that there are several significant differences between the Louisiana procedure under consideration in Taylor and the procedure formerly mandated by our own Judiciary Law. Most notably, the New York statute required qualified women to act affirmatively to exercise their exemption after being summoned and, thus, obtain a release from jury service (see United States v Horton, 526 F2d 884, 889, cert den 429 US 820), whereas Louisiana directed that women had to undertake an affirmative act before they could even be considered eligible for jury service (see People v Moore, 80 Misc 2d 166, 169-170). As we have said, however, the appropriate standard is whether the application of the New York procedure, whatever its differences from Louisiana law, has resulted in particular instances in the systematic exclusion of women from jury service.

The undisputed proof in this case established that, generally, women constituted at least 33% of the prospective jurors in Nassau County. Even granted the fact that women constitute a majority of the population in Nassau County and that a number, therefore, did exercise the exemption accorded by statute, a very substantial number of women did participate on county jury panels. (See People v Sibila, 81 Misc 2d 80.) Moreover, in this particular case, 5 of the original 12 prospective jurors were female and, ultimately, 3 women sat on the petit jury. Under these circumstances, it is impossible to hold that women were systematically excluded from juries in Nassau County.

To conclude our discussion of this issue, we note that Taylor claims have been presented to various courts throughout the State. Almost uniformly it has been found that despite the statutory exemption for women, women have not been systematically excluded from jury service. (People v Sibila, 81 Misc 2d 80 [Nassau County], supra; People v Kessler, 81 Misc 2d 492 [Dutchess County]; People v Moore, 80 Misc 2d 166 [Nassau County], supra; People v Tabb, 80 Misc 2d 431 [New York County], supra; but see People v Moss, 80 Misc 2d 633 [Kings County]; see, also, Matter of Alessi v Nadjari, 47 AD2d 189 [1st Dept], supra; People v Prim, 47 AD2d 409 [4th Dept].)

We turn next to consideration of defendant’s contention that the complainant, a 16-year-old mentally retarded girl, was improperly permitted to testify under oath. As it stood at the time this case was tried, the Criminal Procedure Law provided that any person may be a witness in a criminal proceeding, unless the court finds that, as a result of mental disease or infancy, the person does not possess sufficient intelligence or capacity to justify the reception of the testimony. (CPL 60.20, subd 1.) However, the statute expressly stated that "[e]very witness more than twelve years old may testify only under oath.” (CPL 60.20, subd 2.) Thus, the question is whether the trial court abused its discretion in finding that the complainant did have sufficient capacity to comprehend the nature and obligations of an oath and to give an accurate account of the matters at issue.

The testimonial oath is designed to serve two discrete functions: to alert the witness to the moral duty to testify truthfully and to deter false testimony by establishing a legal basis for a perjury prosecution. (Matter of Brown v Ristich, 36 NY2d 183, 189.) To achieve these purposes, it is evident that the giving of an oath to testify truthfully must be a meaningful exercise. The traditional rule still followed in this State, is that all adults are presumed to be competent to testify and commitment to a mental institution does not in itself work an automatic disqualification. (Matter of Brown v Ristich, supra; People v Rensing, 14 NY2d 210, 213.) The test is whether the prospective witness "has sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what he has seen and heard vis-á-vis the subject about which he is interrogated.” (People v Rensing, 14 NY2d 210, 213, supra; accord District of Columbia v Armes, 107 US 519, 521-522.) The witness must, at a minimum, have "some conception” of the obligations of an oath and the consequences of giving false testimony. (People v Washor, 196 NY 104, 109.)

The resolution of the issue of witness competency is exclusively the responsibility of the trial court, subject to limited appellate review. It is the Trial Judge who has the opportunity to view the witness, to observe manner, demeanor and presence of mind, and to undertake such inquiries as are effective to disclose the witness’ capacity and intelligence. (Wheeler v United States, 159 US 523, 524-525.) "There is no rule by which the extent of the intelligence of an adult who is called as a witness can be measured. It must necessarily be left to the good judgment of the trial court to determine whether such a witness offered by a party to an action shall be sworn. The determination of the trial court should be sustained particularly where the testimony is received and the weight to be given it is left to the jury, unless there is a clear abuse of discretionary power.” (People v Washor, 196 NY 104, 109-110, supra; see People v Nisoff, 36 NY2d 560, 566; Barker v Washburn, 200 NY 280, 283.) Impressions that may be validly drawn only from closehand personal observation cannot be "photographed into the record” for later study by appellate courts. (Wheeler v United States, 159 US 523, 525, supra.) Therefore, the trial court’s determination as to the testimonial capacity of a witness will not be disturbed, particularly where the Appellate Division has sustained the ruling, unless it is plain from the record that the determination was an abuse of discretion. (People v Byrnes, 33 NY2d 343, 350-351.)

In determining whether a particular prospective witness is competent to testify, the trial court may properly consider the testimony of physicians or other persons with information that would shed light on the capacity and intelligence of the prospective witness. (Matter of Brown v Ristich, 36 NY2d 183, 188, supra; Aguilar v State of New York, 279 App Div 103, 105; District of Columbia v Armes, 107 US 519, 522, supra; Richardson, Evidence [10th ed], § 389, pp 367-368.) Thus, in this case, the trial court properly received the testimony of complainant’s teacher for its own consideration in determining the competency of the witness to testify.

As previously noted, the testimony of the teacher was presented to the court in the presence of the jury. In a case of first impression in this court, we hold that it was not error, under the circumstances, to permit the complainant’s teacher to testify, to the jury, with respect to the mental condition of this complainant. Once it has been established to the satisfaction of the trial court that a witness who is about to testify or has testified suffers from a material physical or mental infirmity which affects his or her ability to communicate on the witness stand, the trial court, in a discretion to be exercised with reasonable restraint, may admit evidence which will assist the jury in evaluating the testimony of that witness from another person personally familiar with the infirmity or professionally qualified to testify with respect thereto.

The testimony of specialists or others with particular knowledge of the witness’ mental or physical condition may provide invaluable assistance to the jury. While it is true that the question of witness competency is a matter of law to be determined by the court, it is the traditional and exclusive province of the jury to determine whether the witness’ testimony should be credited and, if so, what weight it should be accorded. In this case, the court ruled that the complainant was legally competent to testify. The jury, of course, has no authority to challenge that determination. The jury, however, can, in discharge of its appropriate function, find, as a matter of fact, that the testimony of the witness, truthful or not, was too weak to be given any credit. In this restricted sense, it would be both inaccurate and inartful to describe such a determination as a finding of incredibility. The finding by the jury is not that the witness’ testimony is false, but that the witness is, in the mind of the jury, so infirm that the testimony cannot be evaluated in an intelligent fashion and, as a matter of intellectual honesty, should not be a factor in arriving at the ultimate conclusion. In order that the jury may accurately appreciate the nature of the witness’ infirmity, the trial court, in its sound discretion, may permit experts or others with personal knowledge of the witness to explain and describe the witness’ condition. In this case, for example, the purpose of the teacher’s testimony was to explain an apparent mental deficiency on the part of the complainant. The teacher testified that although the complainant was chronologically 16 years old, she was operating on a mental level comparable to a child of 12 or 13. With this information, the jury could, from a scientific perspective, intelligently evaluate the complainant’s testimony.

We are careful to note that the teacher’s testimony was restricted by the court to testimony of an objective nature. In fact, the trial court several times sustained objections to questions calling for conclusions or characterizations. As we view the issue, independent testimony with respect to a witness’ faculties is designed to provide the jury with an objective analytical framework for evaluation of the witness’ testimony. The court may not permit the independent witnesses to stray from scientific and objective data and criteria. Thus, it would be error for the court to permit a witness to express a view as to the credibility or believability of the impaired witness. Notably, this case does not involve a situation where the independent witness attempted to express a view, scientific or otherwise, on the degree of confidence, or lack thereof, to be placed upon the complainant’s testimony. By our holding today, we do not suggest, or even intimate, that an expert may ever pass his own judgment on a witness’ credibility and impart that judgment to the jury. Such testimony would be a serious usurpation of the jury’s prerogative and responsibility. We do hold that objective data can be related to the jury to assist it in performing its proper trial function. Although this precise issue has received scant attention from the authorities (compare 2 Wigmore, Evidence [3d ed], § 497, p 589, with Richardson, Evidence [10th ed], § 389, p 368), we are convinced that sophisticated and modern techniques of physical and psychological evaluation and analysis may play an appropriate but limited role in the trial of cases pursuant to well-founded concepts of the law of evidence.

Moreover, we believe that where a particular witness’ testimony may be crucial to the case and it is established that the witness’ testimonial ability is impaired, independent evidence respecting the nature of the impairment may be presented to the jury prior to the actual testimony of the impaired witness.

The advantage to admitting the preliminary testimony of physicians, teachers, or others with knowledge of the alleged incompetent’s state is that both the court and the jury may be alerted to the nature of the witness’ condition and may be provided with a framework in which the testimony and behavior of the witness may be considered. Such an approach was followed in the ancient case of Regina v Hill (5 Cox Crim Law Cases 259), cited and quoted with approval in the leading American case of District of Columbia v Armes (107 US 519, 522, supra), which in turn was cited in Matter of Brown v Ristich (36 NY2d 183,188, supra). The order of the presentation of witnesses is generally left to the parties themselves, subject to the general supervisory discretion of the court. If it appears advisable to permit introductory testimony to set the stage before the alleged incompetent testifies, the court may do so provided, of course, the incompetent does actually testify and that the testimony is otherwise admissible. Here, the complainant was ruled to be legally competent to testify and did actually testify.

It is crucial that the witness’ ability to testify be in issue. We have little doubt that the complainant’s mental state was in issue prior to the receipt of the teacher’s testimony. The court, the parties, and the jury were all aware that the mental awareness of the complaining witness would be an issue at the trial. Indeed, her apparent mental retardation was known to both the prosecution and to the defendant by virtue of defendant’s very occupation—driver of a bus that transported retarded children to special classes—since it was his occupation that brought him into contact with the complainant. Significantly, the prosecutor, in his opening to the jury, specifically set forth his intended order of witnesses. "Now, the People intend to produce three witnesses, the first witness * * * is a teacher of the complainant * * * and he will testify as to her mental age and her educational background and her general character and personality. The next witness will be * * * the complaining witness and the third and final witness of the People will be Det. Michael Di Benedetto who will testify as to a statement made to him by the defendant.” Although the defense objected to other aspects of the prosecutor’s opening, no objection was made to this mention of witnesses and to the proposed order of proof. The point here is not that the defense was bound to object to the testimony of either the teacher or the complainant at this juncture of the trial, but simply that the defense knew that the cognition of the complainant would be a crucial issue in the case. Hence, the issue was in the case well before the teacher or the complainant physically and formally mounted the witness stand. In truth, the issue of credibility based on mental infirmity, in view of the nature of the alleged crime and its victim, permeated the entire case.

The complainant’s responses to the court’s preliminary inquiry and her later answers to questions propounded on direct and cross-examination .raise significant questions as to the depth of her capacity to recollect events as well as to her intelligence. However, on this record, we cannot conclude that the witness was so deficient, by reason of her mental infirmity, that the reception of her evidence was a clear abuse of discretion. The witness stated that she was able to testify truthfully and that she could distinguish truth from falsity. From these statements, her demeanor and appearance, and the testimony of her teacher, the trial court could properly conclude that she possessed sufficient capacity to testify. Since the court’s determination has a basis in the record, we will not now disturb it. (People v Nisoff, 36 NY2d 560, 566, supra; People v Yonko, 34 NY2d 825; People v Washor, 196 NY 104, supra.) In reaching this conclusion, we are sensitive to the fact that, in particular cases, an overly restrictive approach to the evidentiary rules respecting testimonial capacity could work to deny the mentally infirm the right to complain of their treatment at the hands of those nominally responsible for their care. (See Matter of Brown v Ristich, 36 NY2d 183, 191-192, supra.) While we recognize the need to guard against the occasional abuse of discretionary power, we also refuse to ignore the practicalities imposed by an even harsher reality.

Finally, we find no error in the admission into evidence of the hospital records of the complainant. The case against the defendant rested primarily upon defendant’s twice repeated admissions of guilt. The fact that complainant had an abortion is evidence that a crime (sexual intercourse with an underage female) was committed by someone and, thus, is sufficient to corroborate defendant’s admissions (CPL 60.50; People v Reade, 13 NY2d 42, 45; see People v Daniels, 37 NY2d 624, 629) and was admissible for that purpose. The trial court was careful to charge the jury, as requested by the defense, that "evidence of pregnancy is' no evidence to corroborate the testimony that the defendant was the guilty party.”

The order of the Appellate Division should be affirmed.

Gabrielli, J. (concurring).

We find it necessary to concur in result, only because we do not agree with the majority that the testimony of the complainant’s teacher was properly received. While we conclude that the error was not prejudicial in this case and does not require a new trial, the introduction of the teacher’s testimony nevertheless violated fundamental tenets of the law of evidence. The exception to those rules which the majority attempts to fashion is unjustified in the instant case and permits a proponent to unfairly bolster the credibility of his witness prior to impeachment, if such there be.

The issue of a person’s competency to be a witness, as is the case for the admissibility of evidence in general, is a question for the court rather than the trier of fact (see, generally, 2 Wigmore, Evidence [3d ed], § 487, pp 523-524; Richardson, Evidence [10 ed], § 389, p 368; Fisch, NY Evidence, § 258, p 142; McCormick, Evidence [2d ed], § 70, p 150). It is in this regard that the authorities uniformly hold that the court may examine not only the prospective witness but any other person who may testify as to the witness’ competency (see Richardson, op. tit, p 368, and cases cited therein). At no point, however, does the issue of competency to take the oath become an issue of fact for the jury. This is made clear by the very section of Professor Wigmore’s treatise on evidence relied upon in the majority opinion, in which it is plainly indicated that "[t]he preliminary determination of capacity is for the judge, not the jury * * * and it is therefore an improper practice for the judge to leave the testimony provisionally to the jury, to be rejected by them if found ineligible according to legal standard; the jury have nothing to do with the preliminary questions of admissibility” (2 Wigmore, op. tit., § 497, p 590). The issue of competency, of course, intersects that of credibility and evidence relating to the former may also be admissible with reference to the latter. However, in the absence of an attack upon credibility, the proponent may not introduce evidence sustaining or bolstering a witness’ credibility (see, generally, 4 Wigmore, op. tit., § 1104, p 174; Fisch, op. tit., §§ 489, 492, pp 287-288; McCormick, op. tit., § 49, p 102, and cases cited in n 73 therein). In the instant case, the complainant’s teacher was permitted to testify in the presence of the jury as to the witness’ competency to testify, her mental capabilities and her nonaggressive classroom behavior before the complainant herself even took the witness stand and thus, before her credibility or character ever became an issue in the case. Testimony of the complainant’s classroom behavior amounted to testimony of good character which may not be introduced until the witness’ character or reputation has been impeached (see 4 Wigmore, op. tit, § 1104, p 174). This testimony was neither restricted by the Trial Judge nor limited to "objective” matters. Parenthetically, it should be noted that defense counsel properly objected to the presentation of the witness when the latter took the witness stand and moved for a mistrial following the direct testimony of the teacher-witness. The majority’s startling and novel suggestion, that the objection to the testimony of the complainant’s teacher should have been made at the time of the prosecutor’s opening remarks when he named the witnesses he would produce (p 49), is both unreasonable and unsound. The proper, and indeed the only, time for objection to be made to a witness is when that witness is called and his testimony formally offered (see 1 Wigmore, op. tit, § 18, p 323; Fisch, op. tit, § 19, pp 9-10; Richardson, op. tit, § 537, p 529). To require objection to a witness’ proposed testimony to be made during the proponent’s opening remarks would place an unfair burden on the adversary and require determination of the objection at a most premature stage of the trial.

An exception to the general rule may be desirable in the case of an individual with a physical or mental impediment resulting from conditions such as spasticity, deafness, stroke or other physical or mental causes which affect the ability of the witness to articulate and communicate. In such a case, where the court finds that the ability to communicate is impaired, it may in its discretion permit evidence explaining the nature of the impediment to go before the jury. However, the exception should not be so broad as to include a case such as this where the impediment relates to the ability of the witness to understand and comprehend the nature of the oath, and goes to the very heart of the issue of competency to take the oath, which, as we have noted, is for the court alone to decide. Testimony as to "cognition” or the complainant’s "faculties”, as the majority terms it, is unrelated to the ability of the witness to communicate. Here the complainant’s difficulty in testifying was not a result of a physiological impairment of the ability to communicate but was caused by mental retardation affecting her knowledge of the difference between truth and falsity and, hence, her understanding of the nature of the oath.

Even assuming arguendo the applicability of the majority’s proposed exception to the established rules of evidence in this case, the testimony went far beyond an explanation of the witness’ difficulty in communicating to include evidence of classroom behavior tending to bolster the witness’ credibility. Furthermore, and of great significance, the court provided no limiting instructions to the jury, either at the time objections were made or in the charge, indicating that the evidence offered via complainant’s teacher was being received for the limited purpose we have deemed proper.

Chief Judge Breitel and Judges Jones, Fuchsberg and Cooke concur with Judge Jasen; Judge Gabrielli concurs in result in a separate opinion in which Judge Wachtler concurs.

Order affirmed.

      . The two alternate jurors were male. The identity and gender of the members of the jury was disclosed in the course of a postverdict poll of the jury conducted by the trial court in reference to another issue, whether the jury was influenced by a redacted sentence from defendant’s Grand Jury testimony that was inadvertently read to the jury by the court reporter. With respect to this issue, it suffices to note that several jurors did not hear the comment, and that all the jurors stated that the comment was not discussed by the jury in the course of its deliberations nor did it form a basis for the finding of guilt.

      . In People v Sibila, it was stipulated that 54% of the eligible jurors in Nassau County in 1974 were women, that 70% of the women claimed the statutory exemption, and that 26% to 33% of the 60,000 names in the Nassau County jury wheel that year were female. Based on this evidence, the County Court concluded that the defendant had failed to establish the systematic exclusion of women.

      . The statute has since been amended to permit a person over the age of 12 to testify without giving an oath, provided that the court finds that while the witness cannot understand the nature of an oath, the witness does have suificient capacity to justify the reception of the testimony. (CPL 60.20, subd 2, as amd by L 1975, ch 133; see Bellacosa, 1975 Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.20, p 75.)

      . Here we are not dealing with a constitutional question (cf. People v Reed, 40 NY2d 204).

      . The witness testified that the complainant "sits quietly in class”, was "very pliable, never been any difficulty in high school” and "never had any difficulties with other students physically”.


source: Caselaw Access Project

author: Wachtler, J. Gabrielli, J. (dissenting).

license: Public Domain

text:
    The People of the State of New York, Respondent, v Peter Montanez, Appellant.
    Argued September 10, 1976;
    decided December 20, 1976

      Jerald Rosenthal and Melvin E. Rosenthal, New York City, for appellant.

      Nicholas Ferraro, District Attorney (Barry A. Schwartz and Bruce E. Whitney of counsel), Kew Gardens, for respondent.
   Wachtler, J.

The defendant has been convicted of manslaughter in the second degree for recklessly causing the death of Clifford Mendell. On this appeal he claims that the conviction should be set aside, and the indictment dismissed, because the proof is insufficient, as a matter of law, to establish his guilt beyond a reasonable doubt. In the alternative he argues that there should be a new trial because the court erred in permitting evidence of other crimes to be admitted at the trial.

It is undisputed that the defendant and Clifford Mendell were long-time friends. They had met as teenagers. They later joined the Army and served together in the same unit in Germany. They both returned to New York City and continued to reside, not far apart, in Queens County. Mendell joined the merchant marine, as a seaman; the defendant became a construction worker. Nevertheless they continued to meet whenever Mendell returned from a voyage. It is conceded that this was a close relationship which had lasted for approximately 20 years.

In February of 1973 Mendell, who had recently returned from a trip to the mideast, was living with Gale Dawson at her house in Flushing. According to the defendant, Mendell called him on the afternoon of February 3 and told him to "Drop on over, have a few drinks with me. I’m having some people over tonight.” The defendant arrived at the Dawson home at approximately 7:30 that evening. Mendell met him at the door and brought him into the living room where Gale Dawson, Charles Burthardt, Mendell’s shipmate, and Carol Tsiamis, Gale’s friend, were having drinks. The defendant had met them all on prior occasions. After a brief exchange of greetings, Mendell led the defendant into the kitchen. They remained there for approximately one and one-half hours.

During most of this time the others remained in the living room where they were unable to hear what was being said in the kitchen. At approximately 8:30 Burthardt passed through the kitchen on the way to the bathroom. On the return trip he heard a portion of the conversation. He stated that "they were discussing things in general and something about a little cocaine * * * and there was a $500 discrepancy.” They were "speaking in terms of two thousand dollars worth and five hundred dollars of it hadn’t been any good or hadn’t been paid for, or something or other owed the other five hundred.” That was all he could recall and he could not remember who said what. Shortly after Burthardt left, Gale Dawson went to the kitchen to find out when the two men intended to join the others. It was then approximately 10 minutes to 9. They told her that they would be out in a little while. However, she stated that while she was there, she heard the defendant "talking about cocaine, saying that he had three, and I don’t know how they have it. He just mentioned three and one had gone bad. He lost money, and Cliff said to him 'No you didn’t. You made money.’ ”

Both Dawson and Burthardt stated that the two men were conversing in normal tones. And when the prosecutor suggested that they were arguing, Dawson stated "I would consider it more a disagreement than an argument.” In fact none of the witnesses had ever heard the defendant and Mendell "argue” about anything.

At approximately 9 o’clock a loud popping sound was heard coming from the kitchen. Mendell then staggered into the living room holding a bloody hand against his neck. According to Burthardt and Dawson he said "[w]hat did you shoot me with?” to which the defendant replied that he did not mean to do it "I was just showing it to him” or "I’m sorry. I just wanted to show it to him.” Burthardt testified that the defendant got down on his knees beside Mendell, who was then on the floor, and began crying and hugging him. He also stated that he saw a small revolver in the defendant’s hand which the defendant placed in his pocket before he left the house. Burthardt and Dawson stated that they had never seen a gun in Mendell’s possession. The weapon was never recovered.

That was essentially the case for the prosecution.

The defendant called several character witnesses and then testified in his own behalf. He stated that while he and Mendell were in the kitchen they discussed his job and schooling and Mendell’s experiences with women in Pakistan. There was no discussion of drugs, and he denied using or selling drugs. He said that at about 9 o’clock he decided to leave in order to pick up his wife at a relative’s home. As he turned to put on his jacket, Mendell, who was then behind him said, "Petey, I got a nice piece to show you.” The defendant turned, saw the gun, and as he took it, it went off. He heard Mendell say "I’m hurt” or "I’m shot” and he replied, "Why did you have to show it to me.” He might also have said "I’m sorry”.

He conceded that at the time the shot was fired, the gun might have been in his hand, and that he probably carried it into the living room where he left it beside the body. But he denied bringing the gun to the house and claimed that it belonged to Mendell who collected small arms.

As noted, the jury found that the defendant recklessly caused the death of Clifford Mendell (Penal Law, § 125.15, subd 1). Recklessness, of course, is a higher or more culpable form of negligence (Penal Law, § 15.05, subds 3, 4), and a long "distance separates the negligence which renders one criminally liable from that which establishes civil liability” (People v Rosenheimer, 209 NY 115, 123). Before a person can be held criminally liable for negligently (Penal Law, § 125.10) or recklessly (Penal Law, § 125.15, subd 1) causing the death of another, it must be proven that he engaged in conduct which involved a "substantial and unjustifiable risk” of death and constituted "a gross deviation” from the standard of conduct or care that a reasonable person would observe in the situation (Penal Law, § 15.05, subds 3, 4; see, also, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 15.05). The defendant’s awareness of the risk determines the degree of culpability. If he failed to perceive the substantial and unjustified risk of death inherent in his act, he is guilty of criminally negligent homicide (Penal Law, § 125.10). But if he was aware of the grave risk of death and acted in disregard of it, he acted recklessly (Penal Law, § 15.05, subd 3) and is guilty of manslaughter in the second degree (Penal Law, § 125.15, subd 1).

The People’s theory, at trial and on appeal, is that the defendant "threatened the deceased with a gun he had brought to the house completely disregarding the danger of such action.” Undoubtedly this would constitute reckless conduct within the meaning of the statute (cf. People v Stanfield, 36 NY2d 467). The question is whether there is sufficient evidence to support the theory.

We must of course assume that the jury credited the People’s witnesses and thus must view the facts most favorably to the prosecution (see, e.g., People v Benzinger, 36 NY2d 29, 32). But since no one other than the defendant witnessed the shooting and he denied brandishing the weapon, the People’s case depends solely on circumstantial proof. It is familiar law that when the People rely exclusively on circumstantial evidence to establish guilt beyond a reasonable doubt, "the facts from which the inference of the defendant’s guilt is drawn must be established with certainty—they must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis” (People v Bearden, 290 NY 478, 480; People v Cleague, 22 NY2d 363, 365-366). Circumstantial evidence "is of no value if consistent with either the hypothesis of innocence or the hypothesis of guilt. It is not enough if the hypothesis of guilt will account for all the facts proven” (People v Suffern, 267 NY 115, 127; see, also, People v Lewis, 275 NY 33; People v Foley, 307 NY 490).

It is undisputed that the two men were alone in the room when the shot was fired. From the statements they allegedly made at the time, as well as the defendant’s own trial testimony, the jury could conclude that the defendant had his hand on the weapon when it discharged. And it would appear that one or both of the men were at least negligent in the handling of the revolver. But there is nothing which leads inescapably to the conclusion that the defendant was responsible or that his conduct, if negligent, constituted "a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law, § 15.05, subds 3, 4).

True, there was testimony that there was a disagreement and it is possible that this heated into an argument and that the defendant seized the weapon in order to threaten Mendell. But it is equally possible that the disagreement remained a calm discussion and that the production of the weapon was totally unrelated, perhaps displayed, in friendship and carelessly discharged as the result of ordinary negligence. Certainly the undisputed evidence concerning the relationship between the two men and their conduct throughout the discussion is not inconsistent with this hypothesis. Thus even assuming that the weapon was in the defendant’s hand at the time of the shooting, neither this circumstance nor any other factors in the case compels the inference that the manner in which the defendant handled the weapon, if negligent, rose to the level of a criminal act (cf. People v Bearden, supra, p 482).

One other point deserves brief discussion. The defendant claims that he was denied a fair trial because he was constantly confronted with evidence that he was somehow involved in selling drugs. This was first introduced into the case when the People sought to prove that prior to the shooting the defendant and Mendell were involved in an argument over drugs. Of course proof that there was an argument of some sort would have been sufficient. However the trial court has the discretion to admit some evidence of other crimes when it is needed as background material (see, e.g., People v Stanard, 32 NY2d 143) and the People’s case might well have been prejudiced if their witnesses had given only generalized accounts of an argument without supplying any particulars.

The defendant’s primary complaint is that Charles Burthardt was also permitted to testify that Mendell had previously smuggled large quantities of drugs into the country. The prosecutor claims that this could not have prejudiced the defendant because it was never connected to him. But in view of the other testimony concerning the discussion between the two men, Burthardt’s statement about Mendell’s activities placed the defendant squarely in the midst of a large scale and apparently international drug traffic.

This evidence had little or no probative value. At best it merely supplied background to the background. On the other hand the prejudice to the defendant was manifest.

The defendant was on trial for recklessly causing the death of his friend. There was no intent to kill or even injure alleged or proven and the crime charged involved a low degree of criminal culpability. But the evidence of the uncharged drug activities involved the fullest measure of evil intent and culpability—crimes, in fact, which are so reprehensible and inexcusable that the Legislature has seen fit to impose the maximum penalties (see, e.g., People v Broadie, 37 NY2d 100). Obviously this testimony could radically alter the jury’s conception of the case and the defendant’s culpability. In short this is a classic example of a case where the prejudice to the defendant outweighed the probative value of the evidence (see, e.g., People v McKinney, 24 NY2d 180).

Thus, even if the evidence had been sufficient to sustain the conviction, the defendant would be entitled to a new trial. However, since we have found that the evidence is insufficient to sustain the conviction for the crime charged, or any included offense, the indictment must be dismissed.

Gabrielli, J. (dissenting).

I respectfully dissent and vote to affirm the defendant’s conviction. On this appeal, in which the sufficiency of the evidence is placed in issue, it is recognized that the People’s witnesses must be credited and the evidence as a whole viewed in the light most favorable to the prosecution (People v Benzinger, 36 NY2d 29, 32; People v Cleague, 22 NY2d 363, 366). Upon the facts of the instant case, I am compelled to conclude that sufficient evidence was adduced by the People to support a jury finding of guilt beyond a reasonable doubt and that "every reasonable hypothesis of innocence” was excluded to a moral certainty (People v Benzinger, supra, p 32; People v Cleague, supra, pp 365-366).

This case is not terribly complex and the facts pointing to guilt may be simply stated. First, there is the testimony of the prosecution witnesses that, while perhaps not rising to the level of a heated argument, there was a disagreement between the defendant and the deceased relating to narcotics dealing; this disagreement tended to establish a motive for brandishing the gun, whether or not accompanied by an intent to use it (which is not involved in this case). Secondly, there is the unequivocal statement of the deceased after he suffered the mortal wound, "My God, Peter. What did you shoot me with,” and the response of the defendant that he was "sorry” and that he "didn’t mean to do it” which justifies the inference that it was the defendant who fired the shot and brought about the fatal injuries. Strengthening this inference is the testimony of the decedent’s girlfriend, with whom he resided, that he did not own a weapon. Importantly, entitled to some weight when considered with the other evidence in the case, is the proof of defendant’s placing of the gun into his coat pocket and unexplained flight from the scene immediately after the shooting (People v Lagana, 36 NY2d 71, 74; People v Florentino, 197 NY 560, 567-568; People v Nowakowski, 221 App Div 521, 523; Richardson, Evidence [10th ed], § 167, p 135; 2 Wigmore, Evidence [3d ed], § 276, p 111). I would thus hold that there was sufficient evidence to logically support the inference that defendant caused the death of his friend, while in a mental state constituting the requisite mens rea for criminal liability (cf. Penal Law, § 15.05, subd 3; § 125.25, subd 2) and to exclude as a reasonable hypothesis the possibilities that the gun was discharged as a result of no act of the defendant or some degree of negligence below the culpable mental state required for homicidal liability. Considering the totality of the prosecution’s evidence the jury was entitled to find that the defendant’s guilt was established beyond a reasonable doubt for, under the facts proved here, "common human experience would lead a reasonable man, putting his mind to it, to * * * accept the inferences asserted for the established facts” (People v Wachowicz, 22 NY2d 369, 372; see, also, People v Borrero, 26 NY2d 430, 435).

I would note, finally, that the testimony relating to the drug dealings of the decedent and the alleged involvement of the defendant therein was properly admitted. The majority concedes that some such evidence was admissible to supply the basis and background for the disagreement between the defendant and the decedent over narcotics and thus this evidence was relevant to motive (People v Molineux, 168 NY 264, 294-299). It was not introduced for the sole purpose of establishing a predisposition to commit the crime charged (People v Fiore, 34 NY2d 81; People v Goldstein, 295 NY 61, 64). The testimony relating to the past smuggling of hashish into the United States by the decedent may have strayed a bit too far afield but it was also related to the nature of the discussion between the decedent and the defendant and the possible motive for a crime arising therefrom. Thus, I cannot conclude that the Trial Judge abused his discretion in admitting such testimony or that the probative value of the testimony was outweighed by its possible prejudice to the defendant (see People v McKinney, 24 NY2d 180, 184).

Chief Judge Breitel and Judges Jones, Fuchsberg and Cooke concur with Judge Wachtler; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed and the indictment dismissed.

       Carol Tsiamis said that she saw and heard nothing after Mendell entered the living room. Apparently she immediately escorted Gale Dawson’s 10-year-old daughter out of the room and remained with her until the police arrived.


author:
      Per Curiam.
     Fuchsberg, J. (concurring). Jasen, J. (dissenting).

text:
    The People of the State of New York, Appellant, v Francis R. Belge, Respondent.
    Argued November 23, 1976;
    decided December 20, 1976

      Jon K. Holcombe, District Attorney (John A. Cirando and David E. Peebles of counsel), Syracuse, for appellant.

      Francis R. Belge, pro se, and George T. Mahshie, Syracuse, for Francis R. Belge, respondent.

      Melvin B. Lewis, Chicago, Illinois, Stuart Kinard, Houston, Texas, and Mary Beeman, Houston, Texas, for The National Association of Criminal Defense Lawyers, amicus curiae.

   Per Curiam.

County Court dismissed the indictment in this case on two grounds, the existence of the client-attorney privilege of confidentiality, a ground constituting a legal basis under CPL 210.20 (subd 1, par [h]), and, alternatively, in the interest of justice pursuant to CPL 210.20 (subd 1, par [i]) and 210.40. The Appellate Division affirmed the order of dismissal. The present appeal, pursuant to leave granted by a Judge of our court (CPL 460.20), is from the order of the Appellate Division.

There can be no doubt that the order affirming the dismissal of the indictment is appealable to us (CPL 450.90, subd 1; 450.20, subd 1). We are obliged to conclude, however, that in this case it is not reviewable in our court. To the extent that the dismissal, affirmed by the Appellate Division, was granted in the interest of justice, only questions with respect to the exercise of discretion would be tendered for appellate review. Our court’s jurisdiction, however, with exceptions not material here, is limited to review of questions of law (NY Const, art VI, § 3, subd a). Consequently, insofar as the dismissal of this indictment was granted in the interest of justice it is outside the scope of our review, unless it could be said that there was an abuse of discretion as a matter of law. There is no predicate for any such contention in the record now before us. Since we are required to affirm on the basis of one of the alternative grounds on which the disposition of County Court was based, we proceed no further to review the actions of the court below.

Without intending to reflect on the dismissal in this case, we are also obliged to take this opportunity to express discomfiture with CPL 210.40 in its present form. To the extent that the section now fails to prescribe specific criteria for the responsible exercise of the discretion granted by the section and fails to require the court to articulate the manner and extent to which the particular case meets such criteria, it is open to misuse and effective appellate review is made difficult, if not impossible. In our view while efforts of the judiciary to fill the void are commendable (cf. People v Clayton, 41 AD2d 204), the issue involves policy of a dimension more appropriate for legislative resolution. Most important, the history of criminal procedure in this State has been to add safeguards against misuse or abuse of authority in criminal courts of first instance. Those safeguards, experience has demonstrated, are most effective if there be appellate review, possible only if there are standards. Justice for victim and defendant merits no less. We invite the attention of the Legislature to this predicament.

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

Fuchsberg, J. (concurring).

I unhesitantly agree with the court’s disposition of this case and with its reasoning, but I cannot join completely in the reflections on CPL 210.40 with which it concludes its opinion.

That statute constitutes the current codification of earlier enactments which expressed the need for a residuum of inherent discretion to act in the unusual case that cries out for fundamental justice beyond the confines of conventional considerations of "legal or factual merits of the charge or even on the guilt or innocence of the defendant” (People v Clayton, 41 AD2d 204, 206; see, also, People v Quill, 11 Misc 2d 512; People v McLeod, 25 Wend 483; State v McDonald, 10 Okla Cr 413, 415). I might add that the case before us is an excellent example.

While a requirement for adequate expression of the reasons supporting the exercise of such discretion and appellate review to safeguard against its abuse would indeed be salutary, I believe that a prescription of "specific criteria” would tend to undermine the flexibility called for to meet the needs of the very cases in which freedom to exercise discretion is most urgently required.

Jasen, J. (dissenting).

It is true, as the majority puts it, that there is no predicate for a holding that the County Court abused its discretion as a matter of law. The reason is that there is no predicate at all for the action taken in this case. The court never set forth its reasons as required by statute, for its dismissal of the indictment in the interest of justice. Since the reasons why justice required dismissal were never stated, it is impossible as a matter of law to review the grounds for dismissal.

An indictment may be dismissed in the interest of justice where "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.” (CPL 210.40, subd 1.) However, a court, in dismissing an indictment on this ground, "must set forth its reasons therefor upon the record.” (CPL 210.40, subd 2.) The statute is an old one and the writing requirement was designed as a "wholesome restraint” on an otherwise untrammeled discretion. (Code of Criminal Procedure, Reported Complete by the Commissioners on Practice and Pleading, Assembly Doc No. 18 [1850], p 341.)

In this case, the County Court issued an opinion which discussed the legal issue involved: namely, whether the actions of the defendant were protected by the relationship of attorney and client. The court stated that it was necessary to balance "the importance of the general privilege of confidentiality in the performance of the defendant’s duties as an attorney, against the inroads of such a privilege on the fair administration of criminal justice as well as the heart tearing that went on in the victim’s family by reason of their uncertainty as to the whereabouts of Alicia Hauck.” (83 Misc 2d 186, 190.) The court concluded that the client-attorney privilege outweighed the interest in "the trivia of a pseudo-criminal statute” (p 191). The court took note of the fact that the Grand Jury chose to indict the defendant and did not indict his cocounsel. From this, it was stated that the Grand Jury appeared to be "grasping at straws” (p 191). The court stated its conclusion in two sentences: "It is the decision of this court that Francis R Beige conducted himself as an officer of the court with all the zeal at his command to protect the constitutional rights of his client. Both on the grounds of a privileged communication and in the interests of justice the indictment is dismissed” (p 191).

Aside from the conclusory statement that the indictment should be dismissed in the interest of justice, the court never discussed "justice” principles. In my view, a discussion of "law” principles cannot camouflage an unreasoned interest of justice of dismissal. To overlook the absence of specific reasons, as the majority does, is to remove a "wholesome restraint” and to encourage instead broad and potentially abusive employment of what should be narrowly confined, rarely exercised judicial remedy.

Moreover, the criticism of the present statute is not appropriate. The statute is over 120 years old and has appeared in three separate versions, having been enacted by at least three separate Legislatures. Although some Judges may not approve of it, it is the judicial function to apply the statute as it was meant to be applied and not to put on blinders in the hope that someday the Legislature will repeal it. Moreover, the Legislature specifically left the justice standards open-ended, recognizing the futility of developing all-encompassing rules to cover all situations of injustice. However, it is justice that requires dismissal and here we have been given no reasons why justice demands the dismissal of this indictment.

I would reverse the order of the Appellate Division and remit the case to County Court for further consideration, particularly for the full statement of reasons required by statute.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur in Per Curiam opinion; Judge Fuchs-berg concurs in result in a separate opinion; Judge Jasen dissents and votes to reverse in another opinion.

Order affirmed.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Jerry Stewart, Appellant. The People of the State of New York, Respondent, v Donald Williams, Appellant.
    Argued November 15, 1976;
    decided December 20, 1976

      Richard A. Greenberg and William E. Hellerstein, New York City, for appellant in the first above-entitled action.

      Eugene Gold, District Attorney (Stephen Riddell of counsel), Brooklyn, for respondent in the first above-entitled action.

      Susan A. Powers, William E. Hellerstein and William J. Gallagher, New York City, for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney (Jane Deutscher and Peter L. Zimroth of counsel), New York City, for respondent in the second above-entitled action.
   Wachtler, J.

Both these cases involve the use of anonymous telephone information by the police as a predicate to approach individuals on the street. In People v Williams the order of the Appellate Division should be affirmed; in People v Stewart the order of the Appellate Division reversed.

The ratio decidendi for the instant cases will be clearer if the standards which were enunciated in People v De Bour and People v La Pene (40 NY2d 210) are reiterated. Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual. Thus, the predicate established defines the scope of permissible police conduct. Of course, the justification for police intervention must be based on constitutionally cognizable factors. In People v De Bour (supra), we noted that these factors are essentially gradations of the probable cause standard, with the proviso that they be objective and susceptible of articulation (People v De Bour, supra).

In evaluating the role of the exclusionary rule as a deterrent factor in this area, it is clear that the deterrent effect is directed not at the initial predicate (which can be the amalgam of any number of factors) but at the intensity of the police action. Articulated in another manner we can consider the predicate as a stimulus and the police conduct as the response. Aside from the obvious objective of deterring the police from acting without any cognizable predicate, i.e., arbitrarily and capriciously, the deterrent purpose of the exclusionary rule must take into account the appropriateness of the police response.

The distinguishing element between the instant cases rests both in the predicate for the police conduct, and more important, in the intensity of the police confrontation. On the records before us, we conclude that the police officer in Williams responded in a reasonable manner while the officer in Stewart did not.

The events leading to the discovery of Donald Williams’ illegal possession of a revolver were related at the suppression hearing by Patrolman Paul Glennan. On March 1, 1974, at approximately 5:15 p.m., while he was on duty at the 26th Precinct, Officer Glennan received a telephone call from an unknown informant. The caller stated that he had knowledge that a person standing in front of the Super Fly Bar was "packing a weapon”. When asked for a description the informer indicated that the person was a "little dude” wearing a black overcoat and black hat and his name was Donald. Officer Glennan then pressed the caller for his identity, but he refused to identify himself.

As a result of this call, Officer Glennan and several other plainclothesmen proceeded immediately to the Super Fly Bar in an unmarked car. On arrival Officer Glennan observed the defendant, exactly as described, standing on the sidewalk in front of the bar. There were a few other people in the vicinity but none fitting the description of the man with a gun. Officer Glennan recognized this individual as Donald Williams, a person he had questioned only a few days before and on several previous occasions.

As Officer Glennan approached the defendant he observed a bulge in the left side of his overcoat. When he got close to Williams, Officer Glennan told him not to move and proceeded to pat him down. By virtue of his previous experience in numerous weapons arrests, Officer Glennon determined that the source of the bulge was a gun in the defendant’s left breast pocket. He reached into the pocket and extracted a loaded revolver. Williams was immediately placed under arrest.

After his motion to suppress was denied, Donald Williams pleaded guilty to possession of a weapon as a felony. The Appellate Division affirmed the conviction with one Judge dissenting. We agree and would affirm.

The factual events in People v Stewart are somewhat similar; however when analyzed in accordance with De BourLa Pene principles, there are several critical differences which compel the opposite result. In Stewart, the arresting officer, Joseph Castellano, testified that on April 1, 1973 he was in uniform on radio motor patrol when at about 5:00 p.m. he received a radio message from his precinct, reporting that a man with a gun, described as a male Negro wearing a long green coat, was in front of 101 South Oxford Street. The officer proceeded to that street and was traveling the wrong way down a one-way street when he observed the defendant with four or five other' males. Patrolman Castellano called for Stewart who was wearing a long green coat to stop. The other persons continued walking but Stewart began to walk toward the officers. As he was doing so, Officer Castellano noticed that defendant’s coat was unbuttoned and observed a bulge in defendant’s left front trouser pocket.

The officer testified that, despite all his experience as a policeman and a soldier, he could not possibly have known that the pocket bulge was a gun. Indeed, as it turned out, it was not a gun—nevertheless, without any sort of inquiry the officer proceeded to touch the outside of the bulged pocket and felt a hard cylindrical object. Although the officer knew that the object he felt was not a gun he reached into Stewart’s pocket and removed eight .38 caliber bullets. The defendant was then frisked and the policeman uncovered a loaded revolver which he found in a shoulder holster under the defendant’s coat. The defendant was immediately arrested.

Defendant Stewart’s argument that the search violated his constitutional rights was rejected by the suppression court which believed that it constituted a valid stop and frisk (CPL 140.50). The Appellate Division affirmed with one Judge dissenting. We disagree with the majority of that court and would reverse.

The primary issue is whether or not the police possessed sufficient knowledge at the outset to sustain the subsequent intrusions on the privacy of the individuals accosted (People v DeBour, 40 NY2d 210, 224, supra; People v Lypka, 36 NY2d 210). Looking at the predicate of the police action first we note that while both arrests were precipitated by anonymous telephone reports of a man with a gun, there are critical differences between the cases.

In light of the principles articulated in La Pene (supra) it is clear that where an anonymous phone tip giving a general description and location of a "man with a gun” is the sole predicate, it will generate only a belief that criminal activity is afoot (People v Cantor, 36 NY2d 106; People v De Bour, supra). That type of information will not of itself constitute reasonable suspicion thereby warranting a stop and frisk of anyone who happens to fit that description (People v La Pene, supra; CPL 140.50). In that situation, the police have only the common-law power to inquire for purposes of maintaining the status quo until additional information can be acquired (Adams v Williams, 407 US 143, 145).

Thus while Officer Castellano was justified in approaching Stewart, he exceeded his authority when he felt the cylindrical object in the trouser pocket. As we noted in De Bour (supra, p 221), a bulge in the pocket, unlike a waistband bulge, could be caused by any number of innocuous objects. Moreover, the officer conceded that he could not have possibly known from the location and character of the bulge that the defendant was carrying a weapon. On this knowledge the patrolman in Stewart would have been justified if he had made a verbal and visual inquiry while taking due precaution for his own safety (see, e.g., People v De Bour, supra; People v Rosemond, 26 NY2d 101, 105; People v Trapier, 47 AD2d 481; People v Bronk, 66 Misc 2d 932, 934, affd 31 NY2d 995). As it was however, the physical intrusion on Stewart’s person was not warranted here. Before a police officer "places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so” (Sibron v New York, 392 US 40, 64).

Williams is distinguishable in that the predicate was greater by virtue of Officer Glennan’s personal handling of the tip and his recognition of Donald Williams together with the precision of the description. Indeed the United States Supreme Court in Draper v United States (358 US 307) held that similar information coming from a known informant would constitute probable cause. Moreover, the extent of the intrusion, an exterior patdown in the area of the bulge, was similar to, if not actually less intrusive than, the conduct in DeBour (supra), where the defendant was asked to open his jacket. Balancing the individual’s interest to be unfettered by official interference with society’s interest in stopping crime without subjecting policemen to inordinate physical danger (Terry v Ohio, 392 US 1, 21-22) we believe that this minor intrusion was justified. Accordingly, the revolver and ammunition was properly deemed admissible in Williams thereby precluding any claim that his subsequent statements were the fruits of an illegal search and seizure.

However, in light of our determination that the weapon and ammunition in Stewart should have been excluded, we must consider whether or not the illegal seizure precludes admissibility of his postarrest statements. We believe that it does.

Unlike the situation in People v Martinez (37 NY2d 662) where we held that the incriminating statements were so attenuated from the initial unconstitutional search, Stewart’s statements were integrally related to his arrest. The key factors in Martinez were the absence of purposeful exploitation of the initial illegality by the police, the lack of a causal link between the challenged police conduct and the statements made and the existence of a valid independent basis for the subsequent interrogation.

In the instant case after Stewart was given his constitutional warnings he was questioned in the precinct interrogation room by Officer Castellano as to where he got the weapon. He responded that he took it from a man during a robbery. Stewart was subsequently charged in a multicount indictment for various counts of robbery, grand larceny, burglary and assault as well as felonious possession of a weapon. He pleaded guilty to a count of robbery in the first degree, admitting that he participated in a robbery on Waverly Avenue where he took money and the gun. On these facts we cannot say that the incriminating statements were so attenuated from the initial illegality as to be free of taint. In contrast to Martinez, the interrogation here was conducted by the same officer within a limited time frame, and the fruit of the arrest, the gun, was an integral part of the subsequent admission. Consequently, the inculpatory statement should have been suppressed along with the weapon. However, the entire indictment should not be dismissed because it is possible that the People have independent proof of the commission of the additional crimes charged in the indictment. The eighteenth count, which charges possession of a loaded revolver, should be dismissed (see People v Cantor, 36 NY2d 106, supra).

Accordingly, in People v Williams the order of the Appellate Division should be affirmed. In People v Stewart the order of the Appellate Division should be reversed, the weapon, bullets, and the statement suppressed, the eighteenth count of the indictment dismissed and the remaining counts of the indictment restored to prepleading status, and the case remitted to the trial court for further proceedings on the indictment.

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

In People v Stewart: Order reversed, the weapon, bullets and statement suppressed, the eighteenth count of the indictment dismissed, the remaining counts of the indictment restored to prepleading status, and the case remitted to Supreme Court, Kings County, for further proceedings on the indictment.

In People v Williams: Order affirmed.


author: Chief Judge Breitel.

text:
    Harold G. Lacks, Respondent, v Irene R. Lacks, Appellant.
    Argued November 17, 1976;
    decided December 20, 1976

      Myrna Felder, New York City, for appellant.

      Samuel Gottlieb, Emanuel Baetich, Eugene H. Feldman and Milton Shalleck, New York City, for respondent.
   Chief Judge Breitel.

Defendant wife in a protracted litigation, one of several between the parties, by postjudgment motion sought to set aside the final judgment of divorce against her on the ground that the court never had subject matter jurisdiction (CPLR 5015, subd [a], par 4). Plaintiff husband started the action, originally only for a separation, in August, 1965. After an appeal and two trials the husband obtained the judgment of divorce in 1970. The Appellate Division affirmed that judgment in 1972, and both that court and this denied leave to appeal to the Court of Appeals. Special Term, in 1975, granted the wife’s motion to set aside the judgment, but the Appellate Division modified the order by denying the motion and reinstating the final judgment of divorce. Defendant wife appeals.

In the postjudgment motion, by a newly retained lawyer, made four years after the final judgment and almost two years after appeal had been exhausted, the wife argued that the Supreme Court had been without subject matter jurisdiction. There had been failure, she contended, to satisfy the durational residence requirement by the husband in order for him to obtain a divorce under the State’s liberal divorce laws enacted while the action was pending. Her theory is that the Supreme Court’s jurisdiction in matrimonial actions for separation and divorce is exclusively statutory and absent the basic facts upon which to ground such actions the court is without subject matter jurisdiction, which, she argues, may never be cured, waived, or overcome. The issue is, therefore, whether, as the wife argues, the residence requirements in matrimonial actions, often described as jurisdictional, involve a kind of subject matter jurisdiction without which a court is powerless to render a valid judgment.

The order of the Appellate Division should be affirmed. Just as one of the statutory grounds in section 170 of the Domestic Relations Law must exist to obtain a divorce, the existence of at least one of the connections with the State set forth in section 230 of the same law is equally essential. The requirements of section 230, however, go only to the substance of the divorce cause of action, not to the competence of the court to adjudicate the cause. Hence, a divorce judgment granted in the absence of one of the specified connections with the State, even if erroneously determined as a matter of law or fact, is not subject to vacatur under CPLR 5015 (subd [a], par 4). Of course, for the judgment to be invulnerable in other States of the Union the minimal contacts with the State required under Federal constitutional standards, and satisfied in this case, must also be present (see Sosna v Iowa, 419 US 393, 407-408; Williams v North Carolina, 325 US 226, 229-230). On this view, the court need not decide whether, in this case, the requirements of section 230 were in fact met.

The parties were married in New York in 1938. After an apparently turbulent marriage, marked since 1953 by a series of bitter litigations, the husband, on August 10, 1965, began this action for a separation on the ground of cruelty. After nonjury trial, Supreme Court, on June 28, 1967, dismissed the complaint, but, on March 26, 1968, the Appellate Division reversed, and ordered a new trial. At the second trial, plaintiff husband, in reliance upon the then recent liberalizing changes in the divorce law, added a prayer for a judgment of absolute divorce, on the same allegations and proof as the earlier cause for separation. The husband was granted a judgment of divorce on March 16, 1970, and, after modifications not now relevant, the judgment was affirmed by the Appellate Division on October 26, 1972. Leave to appeal to the Court of Appeals was denied by both the Appellate Division and this court. The final judgment was thus beyond further review.

Then, nearly two years later, defendant, through her most recently retained lawyer, moved to vacate the judgment, contending that the court had been without subject matter jurisdiction to entertain the divorce action. She argued that the husband had not been a resident of New York for a full year preceding the commencement of the original action, and that the court had thus erroneously granted a divorce judgment in violation of the provisions of section 230. This defect, she urged, deprived the court of subject matter jurisdiction, and all the proceedings and the judgment were a nullity.

There are complications of fact and law of only marginal relevance. For example, when the original separation action was begun there was no durational residence requirement for seeking either a separation or a divorce, but divorce was then available only on the ground of adultery. When the Domestic Relations Law was amended to liberalize the grounds for divorce, evidently to prevent the courts of this State from becoming "divorce mills”, a durational residence requirement was imposed. The wife has repeatedly changed lawyers and there have been multiple actions in this State, Florida, Puerto Rico, and France. During the years of the multiple litigations, the husband moved to Puerto Rico, to France, returned to New York, and then moved to Florida. He recently remarried. While these factors have contributed to a swollen and confused record, they have no direct bearing on the principal issue: whether an otherwise valid divorce judgment, depends, jurisdictionally, upon a correct determination of the statutory residence requirements, that is, whether the competence of the court depends upon a correct determination of the residence requirements.

The confusion, if there be confusion, starts with a line of decisions dating back to the last century and continuing into the present in which this court has said with less than perfect meticulousness that "jurisdiction” of New York courts in matrimonial cases is limited to the powers conferred by statute (Matter of Seitz v Drogheo, 21 NY2d 181, 185; Langerman v Langerman, 303 NY 465, 469-471; Caldwell v Caldwell, 298 NY 146, 152; Ackerman v Ackerman, 200 NY 72, 76; Walker v Walker, 155 NY 77, 80; Erkenbrach v Erkenbrach, 96 NY 456, 463-465). Jurisdiction is a word of elastic, diverse, and disparate meanings (see Nuernberger v State, 41 NY2d 111).

A statement that a court lacks "jurisdiction” to decide a case may, in reality, mean that elements of a cause of action are absent (see, e.g., McNamara v Allstate Ins. Co., 3 AD2d 295, 299). Similarly, questions of mootness and standing of parties may be characterized as raising questions of subject matter jurisdiction (see, e.g., Sosna v Iowa, 419 US 393, 398, 402, supra; Massachusetts v Mellon, 262 US 447, 484-485). But these are not the kinds of judicial infirmities to which CPLR 5015 (subd [a], par 4) is addressed. That provision is designed to preserve objections so fundamental to the power of adjudication of a court that they survive even a final judgment or order (see, generally, 5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.10).

In Thrasher v United States Liab. Ins. Co. (19 NY2d 159, 166), this court, in discussing subject matter jurisdiction, drew a clear distinction between a court’s competence to entertain an action and its power to render a judgment on the merits (accord Burnet v Desmornes, 226 US 145, 147 [Holmes, J]). Absence of competence to entertain an action deprives the court of "subject matter jurisdiction”; absence of power to reach the merits does not.

The implications of this distinction are serious. It is black-letter law that a judgment rendered without subject matter jurisdiction is void, and that the defect may be raised at any time and may not be waived (see 21 CJS, Courts, §§ 108-110, 116). Thus stated, the rule is grossly oversimple. The problem requires better analysis, and one long overdue (see, e.g., Dobbs, Validation of Void Judgments: Bootstrap Principle, 53 Va L Rev 1003, 1241). Nevertheless, the breadth with which the rule is often stated indicates the importance traditionally attached to so-called subject matter jurisdiction, really competence of courts, and the grave consequences, including denial of res judicata effect to judgments, which may result from a lack of true subject matter jurisdiction or competence. Beyond the confusion engendered by a misapplication of the terminology and concept of subject matter jurisdiction, there is more created by the locution that in this State the courts’ power in matrimonial actions is exclusively statutory. Yet in counterpoint, it has often been said: "the Supreme Court is a court of original, unlimited and unqualified jurisdiction” and "competent to entertain all causes of action unless its jurisdiction has been specifically proscribed” (Kagen v Kagen, 21 NY2d 532, 537; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166, supra; see NY Const, art VI, § 7).

Against the State Constitution’s broad grant of jurisdiction to the Supreme Court, defendant offers the language of section 230 of the Domestic Relations Law. It provides merely that "[a]n action * * * for divorce or separation may be maintained only when” the residence requirements are met. Not even the catchall word "jurisdiction” appears in the statute, much less an explicit limitation on the court’s competence to entertain the action. In no way do these limitations on the cause of action circumscribe the power of the court in the sense of competence to adjudicate causes in the matrimonial categories. That a court has no "right” to adjudicate erroneously is no circumscription of its power to decide, rightly or wrongly.

The case law is similarly unavailing to the wife. None of the cases in this court which have rather broadly stated that, absent statutory authorization, the Supreme Court has no "jurisdiction” over matrimonial actions, has dealt with a party seeking to vacate a final judgment after direct appeals had been exhausted. Instead, in some the court was dealing with the initial appeal of the trial court’s determination on the "jurisdictional” issue (Langerman v Langerman, 303 NY 465, 469, supra; Ackerman v Ackerman, 200 NY 72, 74-75, supra; Walker v Walker, 155 NY 77, supra; Erkenbrach v Erkenbrach, 96 NY 456, 463, supra). In others, the jurisdictional pronouncements were general relevant observations not decisive of any issue (Matter of Seitz v Drogheo, 21 NY2d 181, 185, supra; Caldwell v Caldwell, 298 NY 146, 152, supra). Hence, although some of these were not matrimonial actions as now defined in CPLR 105 (subd [o]), each case is explained on the basis that, absent statutory authority, no matrimonial cause of action exists and absent the essential elements prescribed it may not prevail.

The court has never before considered the unlikely question, until this case, whether the judicial error on an essential element of the cause of action was so fundamental as to permit vacatur of a final judgment, collaterally or after final judgment beyond ordinary appellate review. Had that ever been the problem unlikely until this case, perhaps the need for a less elastic and encompassing term than the word "jurisdiction” would have been apparent.

Moreover, even if defendant’s dubious interpretations of prior case law be accepted, this court has held that the 1962 revised article VI of the State Constitution expanded the Supreme Court’s jurisdiction to include "any proceeding not recognized at common law” (Kagen v Kagen, 21 NY2d 532, 536-537, supra; Matter of Seitz v Drogheo, 21 NY2d 181, 185-186, supra). Matrimonial actions were not known to the common-law courts, but were instead a creation of the ecclesiastical courts (Langerman v Langerman, 303 NY 465, 469-470, supra). It would appear, therefore, that by virtue of the constitutional amendment, the Supreme Court is now vested constitutionally with "subject matte! jurisdiction” in matrimonial cases, assuming that such an assertion is necessary to give the Supreme Court a competence in matrimonial causes equal to that in common-law or equity causes.

Hence, any error of law or fact which might have been committed in the divorce action did not deprive the court of jurisdiction to adjudicate the case, CPLR 5015 (subd [a], par 4) is inapplicable, and Special Term erroneously vacated the final judgment.

In sum, the overly stated principle that lack of subject matter jurisdiction makes a final judgment absolutely void is not applicable to cases which, upon analysis, do not involve jurisdiction, but merely substantive elements of a cause for relief. To do so would be to undermine significantly the doctrine of res judicata, and to eliminate the certainty and finality in the law and in litigation which the doctrine is designed to protect.

In concluding the jurisdiction-competence issue it is not assumed that the courts in the action made any error of law or fact in determining the durational or initial residence requirements to maintain an action for a separation or a divorce. Nor is it assumed that the same courts did not consider and determine the issues of residence, whether or not raised by the wife. On the contrary, there was considerable evidence of residence by the husband, and the court obviously determined that the husband had some residence even if not of the duration to satisfy the matrimonial statutes. The point is that the litigation having gone to final judgment, the right to review by appeal having been exhausted, that is and should be the end of the matter.

On the foregoing analysis it has been unnecessary to dissect the elements of subject matter jurisdiction, because it turns out that the contentions of the wife are not addressed to bases for subject matter jurisdiction. Rather, despite her characterization of subject matter jurisdiction in order to invoke CPLR 5015 (subd [a], par 4) to undo a final judgment of four years’ standing, the defects to which she points relate only to substantive elements in a cause of action adjudicable by the Supreme Court, a court competent to decide all the substantive issues.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, without costs. Question certified answered in the affirmative.


text:
    In the Matter of Mary G. Martin, Respondent, v State Liquor Authority, Appellant.
    Argued November 24, 1976;
    decided December 22, 1976

      Joseph S. Ryan and Alan J. Gardner, New York City, for appellant.

      David Goldstein, New York City, for respondent.
   Memorandum. The judgment of the Appellate Division is affirmed. The State Liquor Authority found that petitioner had suffered or permitted gambling on the licensed premises on six separate occasions between April 1 and April 24, 1974 in violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law. The Appellate Division annulled that determination on the ground that there was insufficient evidence to support a finding that the licensee should have discovered the gambling activity by the exercise of due diligence. We agree.

The Half Moon Restaurant had operated for 15 years without incident, except for a minor violation some eight years prior to these charges. The licensee and owner, Mary Martin, had employed Rose Unnerberg as a daytime barmaid for approximately five years. Between April 1 and April 24, 1974 a plainclothes policeman had observed Unnerberg accepting horse racing bets on the licensed premises on six separate occasions, resulting in her arrest and eventual plea of guilty to promoting gambling. But the mere fact that an illegal activity occurred on the licensed premises is not sufficient to support a violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law. It is required that there be substantial evidence to support a finding that the licensee "suffered or permitted” gambling on the premises. Our interpretation of the meaning of this language has been guided by the oft-quoted passage of Judge Cardozo in People ex rel. Price v Sheffield Farms Co. (225 NY 25, 30): "Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence.” Thus the pivotal issue in this case is whether there was substantial evidence to find that the licensee, through the exercise of reasonable diligence had an opportunity to learn of the illegal gambling and thus can be said to have impliedly acquiesced in such activity (Matter of Leake v Sarafan, 35 NY2d 83; Matter of Migliaccio v O’Connell, 307 NY 566).

There was no evidence whatsoever that the licensee had actual knowledge of the gambling activity. Indeed, there was a specific finding that the licensee had no knowledge of any such activity. Further, there was also a finding of fact that Unnerberg had only limited supervisory responsibility, despite the fact that the only evidence in the proceeding on this subject came from the licensee to the effect that Unnerberg had no such responsibility. Absent a finding that the licensee had given the barmaid unequivocal supervisory responsibility, Unnerberg should not be deemed an agent whose knowledge could be imputed to the licensee (see Matter of Triple S. Tavern v New York State Liq. Auth., 31 NY2d 1006, affg 40 AD2d 522; Matter of Reuben, Inc. v State Liq. Auth., 268 App Div 981, affd 294 NY 730; Matter of Stevensville Lake Holding Corp. v O’Connell, 269 App Div 804). The licensee visited the premises each morning for the purpose of ordering supplies and was in and out of the premises intermittently every day. The record further indicated that the licensee admonished Unnerberg when hired not to engage in gambling or any activity which would jeopardize the license and that immediately on learning of Unnerberg’s arrest she was discharged. Unnerberg had been employed without incident for five years and during this time the licensee had actively participated in the business, providing ample opportunity to observe her employee. The pattern of intermittent visits to the restaurant and the prior unblemished employment record of the barmaid can in no way serve to impute knowledge of illegal gambling to the licensee and the record is devoid of any further evidence warranting such an imputation. We find insufficient evidence to support a finding that through due diligence the licensee had an opportunity to discover and prevent the gambling activity of Unnerberg. Further the proof in this record is insufficient to impute knowledge to the licensee on the basis of a continuous and permanent activity (Matter of Triple S. Tavern v New York State Liq. Auth., supra). Thus the Appellate Division was correct in holding that this record lacked substantial evidence to support a finding that the licensee had constructive notice of the gambling.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur; Judges Jasen and Cooke dissent and vote to reverse for the reasons stated in the dissenting memorandum by former Justice Fred J. Munder at the Appellate Division (49 AD2d 941).

Judgment affirmed, with costs, in a memorandum.