author: Jasen, J. Jones, J.

text:
    The People of the State of New York, Appellant, v Ricardo Arnau, Respondent.
    Argued November 11, 1982;
    decided December 15, 1982

      POINTS OF COUNSEL

      Elizabeth Holtzman, District Attorney (Alan D. Rubinstein and Barbara D. Underwood of counsel), for appellant.
    I. The police were justified in entering defendant’s apartment without a warrant to prevent the sale or destruction of the cocaine. The subsequent seizure of the cocaine was justified either by the same exigent circumstances or because in addition a warrant was obtained prior to the seizure. (Steagald v United States, 451 US 204; People v Knapp, 52 NY2d 689; People v Calhoun, 49 NY2d 398; Mincey v Arizona, 437 US 385; McDonald v United States, 335 US 451; Johnson v United States, 333 US 10; People v Farenga, 42 NY2d 1092; People v Vaccaro, 39 NY2d 468; People v Clements, 37 NY2d 675; Metzger v New York, 425 US 911.) II. The cocaine was properly admitted into evidence because it was seized pursuant to a valid search warrant and not as the result of the prior warrantless police action of securing the apartment. (United States v Crews, 445 US 463; United States v Ceccolini, 435 US 268; Wong Sun v United States, 371 US 471; People v Boodle, 47 NY2d 398, 444 US 969; People v Lee, 83 AD2d 311; United States v Alvarez-Porras, 643 F2d 54; United States v Fitzharris, 633 F2d 416; People v Plevy, 52 NY2d 58; People v Seidita, 49 NY2d 755; Franks v Delaware, 438 US 154.)

      Donald I. Marlin for respondent.
    I. The initial incursion into and the four-hour occupation of the Arnau home was unconstitutional. (People v Knapp, 52 NY2d 689; People v Williams, 37 NY2d 206; Mincey v Arizona, 437 US 385; Vale v Louisiana, 399 US 30; Johnson v United States, 333 US 10; Agnello v United States, 269 US 20; Matter of Kwok T., 43 NY2d 213; People v Fields, 45 NY2d 986; United States v Allard, 600 F2d 1301.) II. The evidence was directly derived from an illegal search and seizure and is tainted. (United States v Allard, 634 F2d 1182; United States v Crozier, 674 F2d 1293; United States v Griffin, 502 F2d 959, 419 US 1050; People v Jennings, 45 NY2d 998; People v Cantor, 36 NY2d 106; People v Brosnan, 32 NY2d 254; People v Singleteary, 35 NY2d 528.) III. The warrant-less arrest of defendant was unconstitutional. (Payton v New York, 445 US 573.) IV. The search warrant was in any event invalid. (United States v Allard, 634 F2d 1182.)
   OPINION OF THE COURT

Jasen, J.

The issue raised on this appeal is whether evidence seized pursuant to a valid search warrant obtained after the police illegally entered defendant’s apartment should be suppressed even though the search warrant was obtained on the basis of information gathered from lawful sources prior to and independent of the illegal entry.

On June 21, 1977, at 3:55 p.m., an undercover police officer purchased a quantity of cocaine from the defendant at his apartment at 398 Cornelia Street in Brooklyn. After observing the undercover officer leaving defendant’s apartment, Officer Randazzo, the remainder of the narcotics squad surveillance team and the undercover officer met at a prearranged location. When the undercover officer informed the team that he had observed a large quantity of narcotics in defendant’s apartment, a decision was made to enter and secure the apartment immediately.

At 4:30 p.m., Officer Randazzo and other officers entered the building at 398 Cornelia Street, a two-family, three-floor structure occupied solely by defendant and his family, and found defendant in the first floor foyer making house repairs. Defendant was arrested, handcuffed and led to his apartment on the top floor. The officers entered the apartment through an open door and handcuffed defendant to a radiator while the officers checked the apartment for other occupants and additional entrances and exits. No search for evidence was conducted at that time and no evidence was discovered or seized.

Officer Randazzo then called for assistance and at 5:10 p.m. four additional officers arrived to secure the apartment. Thereupon, Officers Randazzo and Scagnelli left the apartment to meet with the undercover officer. At 6:20 p.m., they proceeded to the District Attorney’s office for the purpose of preparing an application for a search warrant. The paper work having been completed at approximately 7:45 p.m., the team, in the company of the Assistant District Attorney, left for the courthouse. The search warrant affidavit, prepared by the team and sworn to by Officer Randazzo, which reflected only information obtained from the undercover officer with respect to the type, quantity and location of the contraband which he observed in defendant’s apartment, was presented to the Presiding Judge. Nothing observed by the officers upon their initial entry into defendant’s apartment was mentioned in the affidavit. Based upon the information contained in the affidavit, the Presiding Judge signed the search warrant at approximately 8:30 p.m.

At approximately 9:00 p.m., the officers bearing the search warrant returned to the premises. After displaying the warrant to the defendant, the apartment was searched. The search uncovered a plastic bag containing cocaine lodged in an ice cream container in the refrigerator; a large quantity of marihuana and a three-beam scale was found in a closet. More cocaine was discovered in a black leather bag inside a metal box in defendant’s bedroom.

After the search was completed at 11:10 p.m., the defendant was taken to the police station and charged with criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the first, third, fifth and sixth degrees, and criminally using drug paraphernalia in the third degree.

A pretrial suppression hearing was conducted, after which defendant’s motion to suppress physical evidence discovered during the search of his apartment was denied. On appeal, the Appellate Division reversed, granted the motion to suppress, and remitted for further proceedings.

The People now appeal from the Appellate Division order contending that the initial entry into defendant’s apartment was lawful because it was necessary to prevent the drugs from being sold or destroyed, and that the subsequent seizure of the challenged evidence was likewise lawful. It is further contended that, regardless of whether or not exigent circumstances existed, the evidence should not be suppressed since it was obtained pursuant to a valid search warrant based solely on information obtáined prior to and independent of the initial entry.

Defendant contends that there was no exigency which justified the initial warrantless entry and, additionally, that the evidence seized should be suppressed as the fruit of the initial illegal entry.

We note at the outset that we are not confronted with a situation where the police have illegally entered a home, discovered contraband, and then sought a search warrant in an attempt to validate the seizure of the fruits of the illegal entry. (United States v Griffin, 502 F2d 959, cert den 419 US 1050.) Furthermore, this is not a situation where a search was conducted pursuant to an invalid warrant (People v Williams, 37 NY2d 206), nor does this case involve a warrantless search of a home which is sought to be justified as incident to a lawful arrest outside that home (Vale v Louisiana, 399 US 30). What we are confronted with here is a situation where the police, having firsthand information that a suspect was currently selling large quantities of narcotics from his home, enter the suspect’s home solely for the purpose of securing the premises and preventing the destruction of evidence and then wait until a search warrant arrives before conducting a search of the premises which ultimately turns up large quantities of illegal narcotics and drug paraphernalia.

in determining whether or not evidence seized pursuant to a search warrant based entirely on information obtained prior to and independent of the initial warrantless entry should be suppressed, we are guided by the realization that the exclusionary rule is a judicially created tool designed to effectuate rights guaranteed by the Fourth Amendment. (Stone v Powell, 428 US 465, 483; United States v Calandra, 414 US 338, 348; People v McGrath, 46 NY2d 12, 21.) The rule provides that evidence which is obtained as a result of illegal police activity may not be used against a defendant at his criminal trial. It must be remembered, however, that the exclusionary rule, when applied, exacts a heavy price by encroaching upon the public interest in prosecuting persons accused of criminal activity and having their guilt or innocence determined on the basis of all the evidence which exposes the truth. (Alderman v United States, 394 US 165, 175; People v Rogers, 52 NY2d 527, 534-535.) Consequently, courts have long held that only evidence which “ ‘has been come at by exploitation of that illegality’” should be suppressed. (Wong Sun v United States, 371 US 471, 488, quoting Maguire, Evidence of Guilt [1959], p 221; 3 La Fave, Search & Seizure, § 11.4, p 613.) As a result of this recognition, the defendant challenging the admission of the evidence has the burden of .showing that the seizure of the evidence was causally related to the illegal police conduct. To use the timeworn phrase used by Justice Frankfurter, only evidence which is the “fruit of the poisonous tree” should be excluded. (Nardone v United States, 308 US 338, 341.)

To resolve this appeal, we consider the independent source rule as one of the exceptions carved from the exclusionary rule. This rule was first articulated in the Silverthorne Lbr. Co. case (251 US 385), wherein the Supreme Court indicated that when the police act illegally during the process of obtaining evidence, “this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others” (Silverthorne Lbr. Co. v United States, supra, at p 392 [emphasis supplied].)

Applying the independent source rule to the facts of this case, it would be inappropriate to order suppression of the evidence which was lawfully seized pursuant to a valid search warrant based solely on information obtained prior to and independent of the illegal entry. An undercover police officer personally observed large quantities of drugs in defendant’s apartment at the time he purchased $325 worth of cocaine from the defendant. This information, as found by both courts below, was sufficient to constitute probable cause to arrest the defendant. After arresting the defendant, the police officers entered defendant’s apartment not for the purpose of searching for and seizing evidence, but merely to secure the premises to assure that the drugs would not be sold or otherwise disposed of. No search for evidence was conducted at that time and no evidence was uncovered or seized. After the apartment was secured, a warrant was obtained based solely on information obtained by the undercover officer prior to and independent of the illegal entry. Only after the warrant arrived did the police search the apartment and uncover the drugs. It was during the course of that lawful search, authorized by a neutral Judge, that the challenged evidence was discovered and seized. Since there is not the slightest hint that the search warrant was in any way tainted by the illegal entry or that the police exploited the entry in an effort to obtain evidence, we hold that the evidence seized is not the fruit of the poisonous tree and that the exclusionary rule is, therefore, inapplicable to this case.

Unlike cases such as Wong Sun v United States (371 US 471, supra) which have applied the doctrine of attenuation in attempting to mark the point at which the police misconduct becomes so far removed from the seizure of evidence that it cannot be said that the evidence was “come at by exploitation” of the misconduct, thus rendering the exclusionary rule inapplicable, this case requires no such analysis. Here, and wherever the independent source rule is applicable, there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure. In cases where this causal nexus is lacking, the exclusionary rule simply does not apply. This is so because the penalty imposed upon the government and, in turn, upon the public by suppressing such lawfully seized evidence cannot be justified. “It is one thing to say that officers shall gain no advantage from violating the individual’s rights; it is quite another to declare that such a violation shall put him beyond the law’s reach even if his guilt can be proved by evidence that has been obtained lawfully.” (Sutton v United States, 267 F2d 271, 272.) So applied, the independent source rule is “unquestionably sound”. (3 La Fave, op. cit., § 11.4, p 617.)

United States v Allard (634 F2d 1182), cited by defendant in support of his position, warrants comment. In that case, the court held that the act of securing an apartment constitutes a seizure of the apartment anpl everyone and everything therein. Thus, the court reasoned that a nexus was established between the entry and the subsequently seized evidence, and that the evidence should be suppressed. We reject this analysis for a number of reasons.

We do not agree that the unlawful act of securing an apartment automatically constitutes a “seizure” of any contraband in the apartment even though no contraband was discovered as a result of the illegal entry. We believe the better rule is that where the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct. To hold otherwise unjustifiably extends the exclusionary rule to suppress all evidence present in a suspect’s home at the time the police illegally entered regardless of whether or not the seizure of that evidence was causally related to the illegal entry.

Such an analysis is entirely inconsistent with the analysis employed in similar cases by this and the United States Supreme Court. In United States v Crews (445 US 463), a case involving the illegal seizure of a robbery suspect and a challenge to three separate identifications of him by one of his victims, the court analyzed each element of the victim’s in-court identification separately to determine whether it was “‘come at by exploitation’ of the violation of the defendant’s Fourth Amendment rights.” (United States v Crews, supra, at p 471, quoting Wong Sun v United States, supra, at p 488.) the court did not analyze the illegal seizure of the defendant and the subsequent in-court identification as one incident requiring suppression of all evidence acquired after the illegal police action but, rather, chose to adhere to the well-established practice of analyzing each act separately to determine whether or not a causal nexus existed.

In Johnson v Louisiana (406 US 356), a case involving a warrantless arrest of defendant in his home and a subsequent lineup identification, the court once again viewed the warrantless entry of defendant’s house and his arrest therein as events analytically separate from the lineup identification. In affirming the denial of defendant’s motion to suppress, the court stated that “[t]he validity of [defendant’s] arrest, however, is beside the point here, for it is clear that no evidence that might properly be characterized as the fruit of an illegal entry and arrest was used against him at his trial.” (Johnson v Louisiana, supra, at p 365 [emphasis supplied].)

Similarly, in People v Rogers (52 NY2d 527, supra), we analyzed the fact that defendant was illegally detained separately from the subsequent discovery of his bloody clothing. Recognizing that it would be inappropriate to analyze those separate incidents as one event automatically requiring suppression of the clothing as the fruit of the illegal detention, we held that the clothing should be admissible at defendant’s trial since it was discovered and seized as a result of subsequent lawful police activity and not as a result of any exploitation of the initial illegality. In response to defendant’s argument, we stated that “[i]t has never been enough to show that evidence must be suppressed simply because it was discovered subsequent to an illegal arrest”. (People v Rogers, supra, at p 535.)

Our decision in People v Knapp (52 NY2d 689) is also instructive. In that case, we stated unequivocally that the County Court erred in failing to differentiate among the various phases of the police officers’ entry into and search of defendant’s home. We held that the police entry into the home and the seizure of drugs in plain view in the kitchen was analytically one event separate from subsequent searches of the basement and bedrooms. This seizure was held to be reasonable and the evidence admissible at trial. With respect to the subsequent searches of the bedrooms and the basement, we analyzed each separately and held that they were unreasonable and ordered suppression of evidence seized pursuant thereto. It logically follows that if the mere entry into defendant’s home had constituted a seizure of all contraband contained therein, it would have been entirely unnecessary for us to analyze the bedroom and basement searches separately.

The weakness of defendant’s position is perhaps best demonstrated by the United States Supreme Court’s decision in Mincey v Arizona (437 US 385). In that case, the court held, inter alia, that a warrantless search of defendant’s apartment where a crime had occurred was violative of defendant’s Fourth Amendment rights. In so holding, however, the court noted with approval the use of a police officer to secure an apartment to protect the crime scene. (Mincey v Arizona, supra, at p 394.) Thus, to say that the mere act of securing an apartment prior to conducting a search thereof is a seizure of the apartment and everything in it is totally at odds with the Supreme Court’s analysis and decision in Mincey.

There can be little doubt that the proper method of resolving Fourth Amendment issues, as demonstrated in the afore-mentioned cases, is to examine each phase of the police officers’ activities as analytically separate events and then decide whether the police acted illegally during any of those phases. If such illegal activity is found to have occurred, it must then be determined whether or not the evidence seized was come at by exploitation of the illegal police activity. Adhering to this method of analysis, and rejecting that used in United States v Allard (634 F2d 1182, supra), we hold that the search of defendant’s apartment pursuant to a valid search warrant based on information obtained prior to and independent of the illegal entry was reasonable and the evidence seized should not be suppressed.

Additionally, we note that to adopt a method of analysis whereby the mere act of securing an apartment constitutes a seizure of everything therein would effectively abrogate the independent source rule which is considered by the courts and scholars to be a sound doctrine. (See United States v Crews, 445 US 463, supra; 3 La Fave, Search & Seizure, § 11.4, p 617.) Furthermore, the logical extension of such reasoning would seem to abrogate the attenuation and inevitable discovery doctrines as well.

Finally, we believe that as a matter of policy it is inappropriate to suppress evidence lawfully seized simply because the police have blundered in a way wholly unrelated to the seizure of that evidence. Since the exclusion of evidence seized pursuant to a valid untainted search warrant was never contemplated by the exclusionary rule, suppression is neither desirable nor required.

Our decision today fully comports with analogous decisions of this court, other State and lower Federal courts, as well as the United States Supreme Court. For example, in cases where a search warrant was issued based in part on illegally obtained information, courts have held that evidence seized pursuant to such warrants need not be suppressed if there was additional information, sufficient by itself to constitute probable cause, derived from sources independent of the illegal activity upon which the decision to issue the warrant was based. (Franks v Delaware, 438 US 154; People v Plevy, 52 NY2d 58, supra; People v Seidita, 49 NY2d 755; United States v Korman, 614 F2d 541.)

Recently, we held that a defendant’s act of throwing a gun out of the police car in which he was riding after being illegally seized was an independent act, not the direct result of, and therefore not tainted by, the illegal seizure. (People v Boodle, 47 NY2d 398.) Since the police officers did not purposefully intend to obtain evidence as a result of the illegal seizure, nor did they exploit the illegality in any way, we stated that “where the police conduct, although illegal, neither provoked the defendant into revealing the evidence seized nor was designed to lead to the discovery of any evidence, the purpose of the exclusionary rule would not be served by granting the motion to suppress.” (People v Boodle, supra, at p 405.)

Defendant’s further contention that the search warrant itself was invalid is wholly without merit. CPL 690.35 (subd 3, par [a]) authorizes the court to issue a 24-hour warrant — i.e., a warrant executable at any time of the day or night, if there is reasonable cause to believe that it cannot be executed between the hours of 6:00 a.m. and 9:00 p.m. Since the challenged warrant was signed at approximately 8:30 p.m. and defendant’s apartment was approximately a 30-minute drive from the courthouse, the finding below that there was reasonable cause to believe that a 24-hour warrant was necessary is amply supported by evidence in the record. Furthermore, the description in the search warrant of the premises to be searched as 398 Cornelia Street, top floor, Brooklyn, New York, was adequate.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division, Second Department, for determination of the facts. (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b].)

Jones, J.

(dissenting). I am in agreement with the majority that the exclusionary rule should not be extended to exclude the introduction of evidence otherwise seized without violation of a defendant’s constitutional rights (as, for instance, pursuant to a validly issued search warrant) merely because the police engaged in illegal activity collateral to the discovery of the evidence, provided that the seizure was not the consequence of any exploitation of that illegality. The recognition of that principle, however, does not dispose of the appeal in this case. It is defendant’s contention that here the seizure occurred when, after the police had entered his apartment before a search warrant had been obtained, they “secured” the apartment, and accordingly that the seizure was the direct consequence of illegal action on the part of the police. I agree with this contention.

Although it is true that the police did not at the time of their initial entry conduct a search for the contraband nor did they take possession of the drugs for the purpose of removing them or otherwise exercising dominion over them, it was the purpose and effect of their action at that time to exclude defendant and others from access to or any further control over any drugs in the apartment. The critical determination for purposes of applying the constitutional proscriptions against unreasonable seizures is whether a proscribed seizure occurs when the police action operates to exclude the defendant from access and dominion, thus effecting a “forcible dispossession of the owner” (see Hale v Henkel, 201 US 43, 76), or only when the police act to establish their own control and dominion over the articles seized. The constitutional proscriptions are framed from the perspective of the owner defendant and

not from that of the police. Thus, the formulation is with respect to the “right of the people to be secure * * * against unreasonable * * * seizures” (i.e., protection of the people’s right to dominion and control), not with respect to a prohibition against unreasonable seizures by the police (i.e., prohibition against police exercise of dominion and control). The proscribed trespass on the rights of the defendant occurs when he is barred from access to and possession of his property.

Accordingly, in this case the seizure of the contraband occurred, after the police had entered, when they secured defendant’s apartment. We must, therefore, determine whether this seizure constituted a violation of defendant’s constitutional rights. On this issue the record supports the conclusion of the Appellate Division that, although probable cause existed for an entry and search of the apartment and the seizure of any contraband found therein, there were no exigent circumstances to justify such a search and seizure without a warrant. Because the seizure here occurred in con sequence of an illegal entry, the evidence then seized (and later reduced to police possession) was therefore properly suppressed (United States v Crozier, 674 F2d 1293; United States v Allard, 634 F2d 1182; United States v Griffin, 502 F2d 959, cert den 419 US 1050; People v Shuey, 13 Cal 3d 835; State v Ramos, 405 So 2d 1001 [Fla]).

Inasmuch as the seizure of the contraband in this case was the product of the initial, illegal entry into defendant’s apartment, the subsequent issuance of the search warrant based on untainted proof of probable cause may not serve retroactively to dissipate the illegality of the seizure. The so-called independent source exception has no application.

It holds that the exclusionary rule need not be applied where the police have dual courses of access to the evidence seized, one legal and the other illegal. It has never been invoked, however, to deny application of the exclusionary rule to evidence seized in violation of a defendant’s constitutional rights because the police subsequently obtained a search warrant under which they could have seized the evidence without constitutional infirmity. To extend the independent source or the inevitable discovery exceptions to such cases would be to vitiate the salutary requirement that, absent exigent circumstances, although the police have probable cause, they must nonetheless obtain a warrant prior to search and seizure (United States v Allard, 634 F2d 1182, 1186-1187, supra; United States v Griffin, 502 F2d 959, 961, cert den 419 US 1050, supra; State v Ramos, 405 So 2d 1001, 1003 [Fla], supra).

For the reasons stated, I would affirm the order of the Appellate Division.

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

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

      . The validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. (Franks v Delaware, 438 US 154; People v Plevy, 52 NY2d 58.)

      . Because we hold that there was no causal nexus between the seizure of the evidence and the officers’ initial entry into defendant’s apartment, we do not reach the question whether exigent circumstances justified that entry. For purposes of our decision today, we assume without deciding that the initial entry by the police was illegal.

      . Defendant also relies on United. States v Griffin (502 F2d 959, cert den 419 US 1050). Griffin, however, is factually distinguishable from the case on appeal in that the police in Griffin discovered contraband after illegally entering the defendant’s apartment but before the police officers returned with a valid search warrant. Under those circumstances, the required causal nexus between the illegality and seizure of the evidence is readily apparent and precludes application of the independent source rule. (See United States v Edwards, 602 F2d 458, 469, n 12.) Consequently, defendant’s reliance on State v Ramos (405 So 2d 1001 [Fla]) is likewise misplaced since the Ramos court reached its decision to suppress by erroneously applying the holding in Griffin to a case similar to the instant case, where the apartment was secured but no search was conducted and no evidence was seized until after a valid search warrant was obtained.

      . A similar result was summarily reached by the California Supreme Court in People v Shuey (13 Cal 3d 835).

      . Our analysis of the independent source rule has been applied in similar cases in Michigan, Alaska and Colorado (People v Woodard, 111 Mich App 528; Cruse v State, 584 P2d 1141 [Alaska]; People v Barndt, 604 P2d 1173 [Col]; see, also, 43 ALRSd 385, 399-402), and by the United States Court of Appeals, First Circuit, in United States v Edwards (602 F2d 458,469, n 12) and the Second Circuit in United States v Segura (663 F2d 411, 416-417).

      . There may be a rough conceptual analogy in the distinction to be found in the law with respect to governmental interference in the use of private property between the power of the State to regulate use by the owner under the police power and the power of the State to “take” the property or an. interest therein under the law of eminent domain, i.e., between a noncompensable regulation and compensable taking (see French Investing Co. v City of New York, 39 NY2d 587, 593-595). A distinction is drawn between restrictions on the owner’s freedom to exercise control over and to determine the use of the property on the one hand and the government’s right to exercise control and to determine the use to which the property shall be put on the other.

      . I cannot accept the distinction the majority would draw with respect to this case. It is true that in Griffin the contraband was in plain view and thus “discovered” by the police on their initial entry, but there was no more nor less a “seizure” of that contraband at that time than there was in the present case, and in my analysis, as I have indicated, it is the question when the seizure occurred that is determinative.

      . The cases cited by the majority presenting questions of attenuation (pp 35-37) are inapposite. The difference between us lies not as to whether the seizure of the contraband was insulated from the illegal entry; we differ only as to when the contraband was “seized”. The majority holds that there was no seizure until the police returned with the search warrant; it is my view that the seizure occurred after the initial entry of the police when they secured the apartment. Nothing suggests that the majority would not suppress the contraband if they were to agree that there was a seizure when the police first entered the apartment.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    Hannelore Adamsons, Respondent, v American Airlines, Inc., Appellant.
    Argued November 10, 1982;
    decided December 15, 1982

      POINTS OF COUNSEL

      John M. Downing and Andrew J. Simons for appellant.
    I. Since, as a matter of law, there was no abuse of discretion, defendant airline is entitled to judgment dismissing the case. (Tishman & Lippv Delta Air Lines, 413 F2d 1401; Lichten v Eastern Airlines, 189 F2d 939; Crosby & Co. v Compagnie Nationale Air France, 76 Misc 2d 990, 42 AD2d 1050, 33 NY2d 521, 416 US 986; Cordero v CIA. Mexicana De Aviacion, S.A., 512 F Supp 205; Williams v Trans World Airlines, 509 F2d 942; Mason v Belieu, 543 F2d 215; Matter of Pell v Board of Educ., 34 NY2d 222; Mobil Oil Corp. v FPC, 417 US 283.) II. Submission of this case to the jury constitutes reversible error. (Matter of Pell v Board of Educ., 34 NY2d 222; Williams v Trans World Airlines, 509 F2d 942; Cordero v CIA. Mexicana De Aviacion, S.A., 512 F Supp 205.) III. Plaintiff’s evidence is legally insufficient to establish that defendant’s denial of air carriage caused plaintiff’s disability. (Blum v Fresh Grown Preserve Corp., 292 NY 241; Quinones v St. Vincent’s Hosp. of City of N. Y., 20 AD2d 529, 16 NY2d 572; Mulligan v Shuter, 71 AD2d 669; Bearman v Prudential Ins. Co. of Amer., 186 F2d 662; McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20; Meiselman v Crown Hgts. Hosp., 285 NY 389; Benson v Dean, 232 NY 52; Hammer v Rosen, 7 NY2d 376; Robbins v Nathan, 189 App Div 827; Matott v Ward, 48 NY2d 455.) IV. Plaintiff’s evidence is legally insufficient to establish negligence on the part of defendant. (Blum v Fresh Grown Preserve Corp., 292 NY 241; Flynn v City of New York, 35 AD2d 936, affd sub nom. Flynn v Poirier & McLean Corp., 29 NY2d 715; Majury v Huyck Preserve, 33 AD2d 621.)

      Robert M. Ginsberg for respondent.
    I. A prima facie case was presented to the jury. (Nader v Alleghany Airlines, 512 F2d 527, 426 US 290; Beascoechea v Sverdrup & Parcel & Assoc., 486 F Supp 169; Williams v Trans World Airlines, 509 F2d 942; Cordero v CIA. Mexicana De Aviacion, SA., 512 F Supp 205.) II. Any supposed error in the court’s charge was not preserved by defendant-appellant for appeal to this court; and in any event the court’s charge was correct. III. There was more than sufficient evidence to support the jury’s determination that plaintiff’s present condition was causally related to defendant’s actions. (Matott v Ward, 48 NY2d 455.)
   OPINION OF THE COURT

Jasen, J.

We are asked on this appeal to determine whether or not the defendant airline properly exercised its authority under the Federal Aviation Act in refusing to transport plaintiff, an invalid paralyzed from the waist down as a result of an undiagnosed illness, on the flight in question.

In January, 1972, plaintiff was stricken with an undiagnosed illness while residing in Haiti. Her affliction first manifested itself on January 21 and during the next 10 days plaintiff suffered chest pains, weakened legs and incontinence. She consulted a number of local physicians who took X rays and performed a variety of blood tests and neurological examinations, all of which proved inconclusive. Finally, after becoming totally paralyzed from the waist down, plaintiff was advised to seek medical attention in the United States.

One of plaintiff’s friends, Mrs. Thelma Hamaty, made arrangements with defendant American Airlines on January 31 for plaintiff to fly to New York City the following day. Mrs. Hamaty informed one of defendant’s agents, Mr. Bayard, that plaintiff was paralyzed and in need of a wheelchair. Mrs. Hamaty further explained that plaintiff could sit up and that her condition was not contagious. Thereupon, a first-class ticket was issued in plaintiff’s name.

On February 1, plaintiff arrived at the Port-au-Prince airport in an ambulance approximately 45 minutes before her flight was scheduled to depart. As the ambulance attendants and defendant’s employees were transferring plaintiff to a boarding wheelchair, she repeatedly cried out in pain. After being strapped into the wheelchair, plaintiff was wheeled toward the airplane. Throughout this process, she was crying, sobbing and obviously experiencing extreme discomfort. Defendant’s personnel then noticed, for the first time, that plaintiff had a catheter and a Foley disposal bag attached to her body. At that point, it was decided by the airline that plaintiff’s health and the safety of the other passengers would be jeopardized if plaintiff was allowed to travel on that flight. Consequently, plaintiff was denied passage.

As the airplane taxied towards the runway in preparation for takeoff, Mrs. Hamaty, for the first time, offered to accompany plaintiff on the flight. The offer was refused for the same reasons plaintiff was denied permission to board.

Plaintiff flew to New York City on Pan American Airlines two days later. She was admitted to Columbia Presbyterian Hospital on February 3, 1972, where doctors diagnosed an mtermedulla hematoma on her spinal cord. The surgery performed on February 4, 1972 was unsuccessful and plaintiff remains paralyzed from the waist down.

Thereafter, this action for money damages was commenced wherein it was alleged that defendant was negligent in refusing to accept plaintiff for passage and that the two-day delay in transporting her to New York proximately caused her permanent paralysis. After a trial before a jury, defendant moved for a directed verdict claiming, inter alia, that defendant’s decision to deny passage to plaintiff should not be evaluated by a negligence standard. The motion was denied and the action was submitted to the jury to decide whether the defendant was negligent in refusing plaintiff passage to New York.

The jury returned a verdict of $525,000, which was reduced by the trial court to $500,000, the amount of the ad damnum. On appeal, the Appellate Division affirmed, with one Justice dissenting.

The question before us is whether the airline, in refusing passage to the plaintiff in Haiti, properly exercised its authority of refusal under the Federal Aviation Act. We hold that it did.

Section 1111 of the Federal Aviation Act (US Code, tit 49, § 1511) was enacted by Congress in 1961 authorizing an air carrier to deny passage to any person “when, in the opinion of the carrier, such transportation would or might be inimical to safety of flight.” While it was originally enacted to help combat the serious problem of air piracy (1 US Code Cong & Admin News, 1961, 87th Cong, 1st Sess, pp 520-522; 2 US Code Cong & Admin News, 1961, 87th Cong, 1st Sess, pp 2563-2582), the statute has not been so restrictively applied. (See Angel v Pan Amer. World Airways, 519 F Supp 1173 [refusing passage to handicapped child]; Williams v Trans World Airlines, 509 F2d 942 [refusing passage to wanted criminal]; Cordero v CIA.

Mexicana De Aviacion, SA., 681 F2d 669 [refusing to allow unruly passenger to reboard].)

In implementation of section 1511, defendant filed with the Civil Aeronautics Board its International Passenger Rules Tariff No. PR-2, which, inter alia, allows defendant to “refuse to carry, cancel the reserved space of, or remove enroute any passenger” when the passenger’s physical condition is such as to require special assistance or poses a hazard to himself or others. It is conceded that this tariff has the force of law.

A reading of section 1511 and the tariff filed by the airline makes it abundantly clear that the decision to accept or refuse a passenger for air carriage lies exclusively with the airline. The law endows the airline with discretion in accepting or rejecting a passenger, based upon considerations of safety and problems inherent to air travel, and that such discretion, if exercised in good faith and for a rationál reason, must be accepted. This is understandable when one considers that an airline usually must make such decisions on the spur of the moment, shortly before takeoff, without the benefit of complete and accurate information. There are times when legitimate safety reasons require that the decision be based entirely on a prospective passenger’s appearance and behavior. (See Austin v Delta Airlines, 246 So 2d 894 [La].) Likewise, where in its judgment a sick or invalid person will require extraordinary individual care due to his or her condition, so as to interfere with the airline’s duty to other passengers, the airline may refuse passage to that individual.

We do not believe that Congress, in enacting the Federal Aviation Act, intended to test the airline’s discretion to deny passage to certain persons by standards of negligence. “[AJirline safety is too important to permit a safety judgment made by the carrier * * * to be second-guessed months later in the calm of the courtroom by a judge or a jury, having no responsibility for the physical safety of anyone, on the basis of words which are inadequate to convey the degree of excitement and tenseness existing at the time the judgment was made.” (Cordero v CIA. Mexicana De Aviacion, S.A., 512 F Supp 205, 206-207, revd in part and affd in part 681 F2d 669, supra.)

We hold, therefore, that the trial court erred in submitting to the jury the question of whether the airline acted negligently in refusing to allow plaintiff to board. The determination whether to carry a sick or invalid person lies within the discretion of the carrier, and the standard which should be applied in reviewing the discretion exercised by the carrier, under the facts and circumstances known by the carrier at the time the decision was made, is whether the decision was arbitrary, capricious or irrational, constituting an. abuse of the discretion vested by law in the carrier. (See Williams v Trans World Airlines, 509 F2d 942, 948; see, also, Note, 40 J Air L & Commerce 767, 776 [1974].)

Applying this standard to the facts of this case, we hold that, as a matter of law, defendant did not abuse its discretion in refusing to transport plaintiff to New York. As Justice Silverman correctly stated in his dissent, “[h]ere the airline saw the passenger for the first time three quarters of an hour before departure time, and then for the first time could see concretely how ill the passenger was. It was obvious that the proposed passenger was very sick. The illness was undiagnosed; the possibility of infectious origin had not been ruled out; her legs were paralyzed; she was brought to the airfield in an ambulance on a stretcher and taken from the stretcher to a wheelchair. She obviously experienced great pain and suffering in the very act of being transferred and placed in the wheelchair and of sitting in the wheelchair. She had a catheter, in her attached to a Foley * * * disposal bag. No special preparations, other than the wheelchair — nor any modification of seats — had been made or requested to accommodate her. There was no way of knowing what assistance she might need in the course of the proposed three-hour flight, much of it over ocean. She was traveling alone. Only after the plane had started to taxi on the runway did the friend who was with plaintiff at the airport suggest that she would be willing to accompany the plaintiff to New York.” (87 AD2d 785-786.) Consequently, based upon plaintiff’s condition as it appeared to the airline on February 1, we do not believe that defendant abused its discretion in refusing to transport plaintiff to New York City at that time.

Additionally, plaintiff argues that, apart from the airline’s discretion to refuse to transport her to New York, defendant was negligent in failing to obtain information necessary to make that decision. We disagree.

As discussed earlier, the decision to refuse to transport a prospective passenger often must be made on the spur of the moment. It would, therefore, be imposing an impossible burden on an airline to require that it make a thorough investigation into the nature and extent of a person’s illness before reaching that decision. To adopt such a rule would effectively curtail or eliminate the discretion vested by Congress in the airlines to refuse passage to persons whose presence, in the opinion of the airline, would be inimical to the safety of the flight. We believe that Congress intended airlines to have broad but not unlimited discretion to make such decisions. (See Williams v Trans World Airlines, 509 F2d 942, 948, supra.) Absent a showing of arbitrariness, plaintiff’s argument that defendant was negligent in failing to obtain information necessary to make its decision is unpersuasive. In this case, there was no showing of arbitrariness as a matter of law.

We emphasize that our decision today does not authorize air carriers to unjustly discriminate against sick, elderly or handicapped persons. The carrier’s decision to refuse passage to any person must be premised on a valid concern for the safety of the flight and the individuals on that flight. A carrier who uses the safety issue as a sham in order to accomplish another purpose will not be insulated from liability. (Cordero v CIA. Mexicana De Aviacion, S.A., 512 F Supp 205, 207, revd in part and affd in part 681 F2d 669, supra.) Congress expressly prohibited such conduct when it enacted subdivision (b) of section 404 of the Federal Aviation Act (US Code, tit 49, § 1374, subd [b]).

Accordingly, the order of the Appellate Division should be reversed and the complaint dismissed.

Chief Judge Cooke and Judges Gabrielli, Jones and Meyer concur with Judge Jasen; Judge Wachtler concurs in result for reasons stated in the dissenting memorandum of Justice Samuel J. Silverman at the Appellate Division (87 AD2d 785-786); Judge Fuchsberg taking no part.

Order reversed, with costs, and the complaint dismissed.

      . Section 1511, in full, provides:
      “(a) The Administrator shall, by regulation, require any air carrier, intrastate air carrier, or foreign air carrier to refuse to transport “(1) any person who does not consent to a search of his person, as prescribed in section 1356(a) of this title, to determine whether he is unlawfully carrying a dangerous weapon, explosive, or other destructive substance, or “(2) any property of any person who does not consent to a search or inspection of such property to determine whether it unlawfully contains a dangerous weapon, explosive, or other destructive substance.
      “Subject to reasonable rules and regulations prescribed by the Administrator, any such carrier may also refuse transportation of a passenger or property when, in the opinion of the carrier, such transportation would or might be inimical to safety of flight.
      “(b) Any agreement for the carriage of persons or property in air transportation or intrastate air transportation by an air carrier, intrastate air carrier, or foreign air carrier for compensation or hire shall be deemed to include an agreement that such carriage shall be refused when consent to search such persons or inspect such property for the purposes enumerated in subsection (a) of this section is not given.”

      '2. Tariff No. PR-2 provides in pertinent part:
      “LIMITATIONS OF CARRIAGE.
      “(A) Refusal, Cancellations or Removal.
      “(1) Carrier will refuse to carry, cancel the reserved space of, or remove enroute any passenger when:
      “(a) such action is necessary for reasons of safety;
      “(b) such action is necessary to prevent violation of any applicable laws, regulations, or orders of any state or country to be flown from, into or over;
      “(c) the conduct, age or mental or physical condition of the passenger is such as to “(i) require special assistance of carrier; or
      “(ii) cause discomfort or make himself objectionable to other passengers; or “(iii) involve any hazard or risk to himself or to other persons or to property.
      “(d) Passengers and their baggage are subject to inspection with an electronic detector with or without the passenger’s consent or knowledge.
      “(2) If question arises of any aircraft’s being overloaded, Carrier shall decide which passengers or articles will be carried.”

      . Under its International Passenger Rules Tariff No. PR-2 (supra) defendant has the authority to cancel a passenger’s reserved space, as well as to refuse to issue a ticket in the first place.

      . Subdivision (b) of section 1374 provides that: “No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Since plaintiff does not rely on subdivision (b) of section 1374, we do not reach the question whether defendant unjustly discriminated against plaintiff.


author: Chief Judge Cooke. Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v James Carney, Appellant.
    Argued November 12, 1982;
    decided December 15, 1982

      POINTS OF COUNSEL

      Brian Sheppard and William E. Hellerstein for appellant.
    The police did not have reasonable suspicion to precipitously frisk appellant when, while they were investigating a robbery-shooting recently committed in the area by two men, an unidentified person pointed out appellant and a companion as looking “suspicious”. (Delaware v Prouse, 440 US 648; People v Chestnut, 51 NY2d 14, 449 US 1018; People v Cantor, 36 NY2d 106; People v De Bour, 40 NY2d 210; Terry v Ohio, 392 US 1; People v Sobotker, 43 NY2d 559; People v Johnson, 30 NY2d 929; Adams v Williams, 407 US 143; People v McLaurin, 56 AD2d 80, 43 NY2d 902; People v Kinlock, 43 NY2d 832.)

      Robert M. Morgenthau, District Attorney (Catherine M.A. McCaulif and Norman Barclay of counsel), for respondent.
    Officer Morris acted reasonably by engaging in a protective frisk of defendant. (People v De Bour, 40 NY2d 210; People v Chestnut, 51 NY2d 14, 449 US 1018; People v Martinez, 37 NY2d 662; People v Taggart, 20 NY2d 335; People v McLaurin, 56 AD2d 80, 43 NY2d 902; People v Bronk, 31 NY2d 995; People v Green, 35 NY2d 193; People v Earley, 76 AD2d 335.)
   OPINION OF THE COURT

Chief Judge Cooke.

A suspect may not be frisked by a police officer who has no knowledge of facts that would provide a basis for suspecting that the individual is armed or dangerous. The absence of such circumstances leads to the conclusion that the search here was unreasonable as a matter of law and, therefore, the order of the Appellate Division should be reversed.

Shortly before midnight on January 4, 1974, two black men armed with a shotgun attempted to rob a liquor store, shooting the owner while doing so. Officer John Morris went to the scene, but found that other officers had already arrived and that the victim had been taken to the hospital. Officer Morris returned to his radio car and began driving back to the precinct house. Two blocks from the robbery scene, he was flagged down by a man who identified himself as a patron of an establishment named “Fat Man’s Bar”, located approximately one-half block from the liquor store. The man stated that he had heard about the shooting and that two black men who looked “suspicious” had just entered the Fat Man’s Bar.

Officer Morris drove back to the bar, called for additional officers, and entered the establishment. The citizen who had stopped Officer Morris also entered and pointed out defendant and his companion. Without ever asking why the man believed defendant and his companion to be suspicious and without himself making any inquiry or observation of the two men, Officer Morris frisked defendant and his friend. The police officer found and removed a loaded .32 caliber revolver from defendant’s waistband. The other man had ho weapon. The two suspects were taken to the hospital where the liquor store owner was being treated; he stated that the men were not the ones who had attempted to rob him.

Defendant pleaded guilty to attempted felonious possession of a weapon after his motion to suppress was denied.

The seminal case in the area of stop-and-frisk is, of course, Terry v Ohio (392 US 1). There, the Supreme Court upheld the validity of a stop-and-frisk when “the police officer [is] able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Id., at p 21.) The court added: “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” (Id., at p 21, n 18.) Manifestly, the basis for determining the propriety of the pat down is the officer’s personal knowledge of the circumstances, evaluated “in light of his [or her] experience” (id., at p 30; see id., at pp 5-7, 20, 22-23, 27, 28).

This focus on the officer’s personal observation and experience has been recognized in this court’s analysis of stop and-frisk situations. Thus, in People v Benjamin (51 NY2d 267, 270-271), it was noted that a mere anonymous tip of “men with guns” was insufficient to justify a pat down, but that the observations of the experienced officer when he arrived at the scene, in conjunction with the anonymous information, were such as would justify the frisk. In People v Klass (55 NY2d 821), two officers on foot patrol were approached by an unidentified person who described a man with a gun in the hallway of an adjacent building. The officers immediately ran into the building and found Klass, who matched the description just received. Only after Klass refused to give his name or an explanation for his presence did the officers frisk him, thereby discovering a gun. Implicit in this court’s affirmance was the recognition that, although initially acting on secondhand information, the officers had articulable knowledge of circumstances tending to support a reasonable suspicion that Klass was dangerous.

In the present case, the police officer had no knowledge of anything to suggest that defendant possessed a firearm or otherwise posed a threat to the officer’s safety. The citizen’s report that two men were suspicious, without more, does not provide adequate grounds for a frisk. Indeed, whether a person is “suspicious” is the ultimate determination that is to be reached by the officer on the basis of his or her own observations and experience. A frisk would not be justifiable if supported by only the officer’s conclusory statement that the subject looked suspicious; so, too, the infirmity rising from the absence of articulable facts is compounded when the officer relies on an inexperienced lay person’s conclusion that is not grounded on any objective factual elaboration.

In so holding, the court is cognizant of the holdings in Adams v Williams (407 US 143) and People v Moore (32 NY2d 67, cert den 414 US 1011). Critical to the decisions in both those cases was the relevant content and apparent reliability of the information received by the police. In Adams, the officer was approached by an informant personally known to him and from whom he had obtained tips previously. In addition, the information was immediately verifiable at the scene. Notably, the officer’s suspicions were further aroused when the defendant rolled down his car’s window, rather than opening the door as requested by the officer. Similarly, in Moore, the information that the defendant possessed a gun was apparently quite reliable, coming from a man who claimed to be her husband and who was being taken to the police station after brandishing a knife in culmination of a three-day quarrel. These cases require that, before stopping and frisking an individual, the officer must have reliable knowledge of sufficient facts to justify the frisk (see Adams v Williams, supra; cf. People v Green, 35 NY2d 193; People v Moore, supra). The tip here lacked any indicia of reliability and was totally subjective, nonparticularized and conclusory in content. Consequently, the circumstances “require [d] further investigation before a forcible stop of a suspect would be authorized” (Adams v Williams, supra, at p 147).

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted, and the indictment dismissed.

Fuchsberg, J.

(concurring). Increasing concern over unjustified police encounters with our citizenry, epitomized only last month by the argument of Kolender v Lawson (51 USLW 3377) in the United States Supreme Court (see 32 Crim L Rptr 4089), impels me, in this classic illustration of such a case, to articulate my own approach.

To this end, I first observe that, compatible with constitutional respect for each individual’s right to be free from arbitrary intrusion by government, a person may not be subjected to a “stop and frisk” in the absence of at least “reasonable suspicion” of involvement in criminal activity and a concomitant reasonable apprehension of armed resistance (People v De Bour, 40 NY2d 210, 223; People v Carrasquillo, 54 NY2d 248, 252-253; People v Chestnut, 51 NY2d 14, 21-22, cert den 449 US 1018). Thus, the present appeal requires us to decide whether these criteria were met when New York City Police Officer John Morris, who had responded to a Harlem burglary-shooting, forced the defendant, James Carney, and a second man in whose company Carney then was, to raise their hands over their heads and submit to a “frisk”, or “patdown”, essentially because an unnamed individual, who claimed he saw the two men enter a neighborhood bar, thought they looked “suspicious”.

The frisk disclosed that Carney carried a revolver in the waistband of his trousers. Though neither he nor the revolver turned out to have any connection with the shooting, in which a shotgun rather than a revolver had been used, its discovery led to his indictment on a single count alleging unlawful possession. He thereupon moved to suppress the gun on the ground that it was the product of an unreasonable search and seizure conducted in contravention of his constitutional rights (NY Const, art I, § 12; US Const, 4th, 14th Amdts). Upon denial of his motión, Carney elected to plead guilty to attempted felonious possession of a weapon (Penal Law, § 110.00 [Penal Law, former § 265.05, subd 2]), following which, as authorized by CPL 710.70 (subd 2), he was able to, and did, challenge the correctness of the suppression ruling by way of appeal from his judgment of conviction. The Appellate Division having now affirmed, without opinion (86 AD2d 987), the case is here pursuant to leave granted by a Judge of this court (CPL 460.20). For the reasons which follow, I believe the suppression motion should have been granted.

But, initially, as further background for my analysis, I recite whatever little more can be added concerning the circumstances of the police encounter with which we are concerned, necessarily relying for this purpose on the suppression Judge’s special findings as to what the testimony had been. By these we are informed that, by the time Officer Morris arrived at the scene of the burglary, its perpetrators had made their escape, officers other than Morris had taken command of the scene and the victim had been removed to a hospital. Apparently convinced that he was not needed, without more ado Officer Morris was driving back to his station house when, some two blocks from the crime scene, he was stopped by. a man who, identifying himself only as a patron of an establishment known as Fat Man’s Bar, told him that “he had heard about the shooting” and that “two black men who looked ‘suspicious’ had just entered the bar”. On this and no more, Morris and other officers whom he invited to join him went to the bar with the informant, where the latter pointed out the defendant and his companion, each of whom was black. So far as the findings report, then and there and without as much as an inquiry, the two were ordered to raise their hands and subjected to the frisk. When Morris then brought the two men to the wounded man’s hospital bedside, the officer, as the findings tell us, learned from the victim that Carney and his friend “were not the men who had attempted to rob him”.

This as background, I next point out that, while “reasonable suspicion” may justify a forcible seizure short of a full-scale arrest, it must be based on “specific” facts so that its propriety may be measured by the “detached, neutral scrutiny of a judge” (Terry v Ohio, 392 US 1, 21). Standing alone, a mere “hunch” or “gut reaction”, since it will not fit this bill, will not serve to make a suspicion reasonable (People v Sobotker, 43 NY2d 559, 564). Nor is the “good faith” of an officer who so proceeds, no matter how sincerely, enough (see Beck v Ohio, 379 US 89, 97). For, recognition that intrusions short of a full-scale search or seizure in some circumstances may be countenanced on “reasonable suspicion” is not intended to obscure the reality that “a patdown for weapons” or, for that matter, any other purpose that involves exploration of the outer surfaces of a person’s clothing all over his or her body, “is a substantial intrusion into one’s privacy” (Ybarra v Illinois, 444 US 85, 108 [Rehnquist, J., dissenting], citing Terry v Ohio, supra, at p 17, n 13; see Priar & Martin, Searching & Disarming Criminals, 45 J Crim L, Criminology & Police Science 481).

Thus, it is clear that the Terry court was not insensitive to the qualitative, even if not quantitative, nature of the intrusion wrought by a stop-and-frisk when, eschewing a “rigid all-or-nothing model of justification”, it held that, in “particular” circumstances, reasonable suspicion rather than probable cause could suffice to support such an event (392 US, at p 17). It therefore has been “careful” to continue to confine the “narrow scope” of the Terry exception (Dunaway v New York, 442 US 200, 210), which, from the beginning, was cautiously conditioned on no less than the existence of justification by way of “articulable facts” and the “rational inferences” to be drawn therefrom (Terry v Ohio, supra, at p 21). This, of course, keeps a weather eye on what may be said to be the touchstone of the Fourth Amendment, its injunction against any search and seizure which is “unreasonable”.

Needless to say, when a confrontation occurs, these concerns for the liberty and privacy of the individual are in tension with the far from inconsequential responsibilities assigned to law enforcement authorities. Stripped of rhetoric, in striking a balance, once we know, as here, the intensity of the intrusion, the focus must be on the reasonableness of the justification for undertaking it.

So examined, it is obvious that neither Officer Morris nor his fellows, when they forcibly imposed themselves on Carney, had any firsthand knowledge of any facts on which they could premise a reasonable suspicion that the defendant or his companion, any more than any other individuals, had committed, were committing or were about to commit a crime (see People v Cantor, 36 NY2d 106, 112; CPL 140.50, subds 1, 3). When, at the informant’s inspiration, their eyes lighted on Carney for the first time, there is nothing to indicate that they observed anything extraordinary or even noteworthy about him or his companion, not in their manner, not in their dress, not in their movements, not in their speech, not, indeed, in anything from which the police could gather the slightest hint of any connection with the crime that was then on their minds. No one even suggests, for whatever it would be worth, that the two men were furtive, tried to conceal their presence, moved their hands, menacingly or otherwise, or avoided the police when the latter approached. Surely, the People’s attempt to gain some succor from the circumstance that Carney wore an overcoat on this New York January night must fail (cf. Ybarra v Illinois, supra, at p 93 [3/4-length lumber jacket worn in Illinois bar in March]). No more remarkable, per se, was the presence of two men among the patrons of a bar on an evening. In short, from what the police observed, there was nothing, unless explained by the informant, to bear out his conclusory characterization of Carney as “suspicious”.

But the officers had neither sought nor received an explanation. This did not occur when the informant initially accosted Morris, or when other officers were being gathered to form the police party which was to enter the bar, or while they were traversing the one and one-half blocks between the place at which the informant stopped Morris and the bar itself. Yet, notwithstanding the absence of any objective fact or factual inference by which the intrusion could be justified, and without so much as the briefest kind of common-law inquiry (see People v Carrasquilla, 54 NY2d, at p 252; People v Howard, 50 NY2d 583, 586; People v De Bour, 40 NY2d, at p 219), the police precipitously proceeded head on to command Carney’s movements and to search his person.

Of course, the action a police officer may or, at times, must take need not depend on his or her own observations. Reasonable police suspicion of criminal activity can be founded, as it perhaps most often is, on information conveyed by a third party (see, generally, 3 La Fave, Search & Seizure, p 98). So here, the People contend that Officer Morris was the recipient of such information when the anonymous informant not only told him that two suspicious looking black men had entered Fat Man’s Bar, but also repaired there with the police to identify them. While conceding that, by itself, ordinarily this “would not have been sufficient to provide the police with reasonable suspicion”, they go on to argue that the informant’s advice took on a different cast in light of the recent violent crime two black men who had not yet been apprehended were reported to have committed. But, especially in this heavily populated area, most of whose residents were black, the commonplace fact that two black men were patronizing a bar that was not far from the scene of the crime was simply not enough to forfeit their constitutional rights. (See Brown v Texas, 443 US 47, 52.)

True, Morris’ election not to ignore the informant’s lead, no matter its scantiness, is easy to understand. Had he acted instead with the requisite respect for constitutional rights dictated by the limited information to which he was privy, he might have deserved applause for conscientiousness. On analysis, however, on the totality of what was within his ken, there was only the remotest, if any, prospect that the individuals to whom his attention had been drawn had any more connection with the crime under investigation than would almost any other two men targeted at random in Harlem. Thus, having no reasonable basis to suspect Carney and his friend of the burglary, Morris could have had none for suspecting that Carney was armed.

Furthermore, the more one thinks of it the more apparent it becomes that the informant’s bare communication of his unsupported suspicion was inadequate to justify the frisk. He never conveyed anything to permit his surmise to rise above the level of a nebulous, baseless, inchoate opinion. Unlike such cases as People v McLaurin (43 NY2d 902) and People v Kinlock (43 NY2d 832), in each of which the informant specifically advised the police that the defendant possessed a firearm, a definitive indication of criminality, the informant in the case before us made the police aware of no fact linking Carney with any crime.

For aught the officer knew, the subjective suspicion the informer ventured could have been the product of anything ranging from prejudice, paranoia or poor vision to a misanthropic view of mankind, an antipathy to strangers or the indulgence of a compulsive desire to engage in amateur sleuthing. Or, perhaps, it was an idiosyncratic reaction to a perfectly normal personality. After all, to one person an individual may appear “suspicious” for no better reason than that his attire is smart, while to another he may so appear because his dress is informal or unconventional; to one person such an opinion may be arrived at solely because the scrutinized individual is talkative, to another because of the target’s taciturnity. In short, speculations as to the cause of unexplained or inexplicable reactions to personality know no end. By no means can they satisfy the Terry standard.

Consequently, at best, all the informer proffered to prompt the police to proceed posthaste against the liberty and privacy of the defendant was a “hunch” or, as some might put it, an undefined “sixth sense”. Had a trained, experienced, objectively stanced police officer, let us say Officer Morris himself, been in Fat Man’s Bar when James Carney entered, he could not have executed a stop-and-frisk on such a subjective reaction alone. A fortiori, he could not rely on a similar reaction by a layman not possessed of police qualifications or responsibilities to justify the shortcutting of Carney’s constitutional rights. All things considered, then, there was no sufficient showing of reasonable suspicion to counterbalance appellant’s right of privacy.

I therefore conclude that the order of the Appellate Division should be reversed, the judgment and plea vacated, the motion to suppress granted and the indictment dismissed.

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

Order reversed, etc.

      . Carney’s companion apparently was similarly uninvolved. Moreover, his frisk uncovered no weapon.

      . Indeed, the Supreme Court, re-emphasizing the great store it places on the values the Fourth Amendment was intended to protect, took the occasion to note that it had “always recognized” that, “ ‘[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ Union Pac.R. Co. v Botsford, 141 U.S. 250,251” (Terry v Ohio, supra, at p 9; see, also, Delaware v Prouse, 440 US 648, 653-654; People v Chestnut, 51 NY2d 14, at p 22, n 7).

      . Section 12 of article I of the State Constitution, using language duplicative of that in the Federal Bill of Rights, affords separate and additional protection against “unreasonable searches and seizures” (see People v Elwell, 50 NY2d 231, 235).

      . The official records of the National Climatic Center of the United States Department of Commerce indicate that, on the date of the frisk, official weather readings taken at Central Park in Manhattan, within a mile or two of Fat Man’s Bar, show that an inch and a half of snow had fallen and the evening temperature approximated 28 degrees Fahrenheit.


text:
    The People of the State of New York, Respondent, v Frank Cousart, Appellant.
    Argued October 15, 1982;
    decided December 14, 1982

      POINTS OF COUNSEL

      Abraham Werfel for appellant.
    Appellant’s motion to dismiss the indictment upon remand for a new trial after a delay of five years in perfecting his appeal should have been granted. (Roberson v State of Connecticut, 501 F2d 305; United States v Massimo, 432 F2d 324; People ex rel. Lee v Smith, 58 AD2d 987; People v Staley, 41 NY2d 789; People v Singer, 44 NY2d 241; People v Nelson, 188 NY 235; Doescher v Estelle, 454 F Supp 943; Strunk v United States, 412 US 434; People v Montgomery, 24 NY2d 130; Griffin v Illinois, 351 US 12; Douglas v California, 372 US 353.) Delay in the appellate process which cannot be attributed to the People or State is not grounds for reversal and dismissal. (Barker v Wingo, 407 US 514; People v Dean, 45 NY2d 651; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Imbesi, 38 NY2d 629; People v Taranovich, 37 NY2d 442; People v Ganci, 27 NY2d 418; People v Prosser, 309 NY 353; People v Dillard, 72 AD2d 932; People v Cascio, 80 AD2d 922; People v Gonzalez, 47 NY2d 606.)

      Thomas R. Sullivan, District Attorney (Anthony L. Galante and George E. McVay of counsel), for respondent.
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are asked to decide whether a delay of almost five years between defendant’s conviction and the Appellate Division’s decision reversing that conviction and ordering a new trial constitutes either a violation of the defendant’s constitutional right to a speedy trial or his right to due process of the law.

Defendant was convicted, after a jury trial, of criminal sale of a controlled substance in the first and second degrees and criminal possession of a controlled substance in the first and third degrees. Judgment was entered June 4,1975 and defendant promptly filed a notice of appeal and a request to have counsel assigned. Although he had specifically requested that his trial counsel be assigned to handle the appeal, the Appellate Division appointed, over the next three and a half years, several different attorneys to pursue defendant’s case on appeal, before the attorney who would develop and argue defendant’s appeal was appointed. These changes in counsel were precipitated by pro se motions to expedite the appeals.

When the appeal was argued, defendant raised errors allegedly committed during the trial and contended that the excessive delay between the time of conviction and when his appeal was heard violated his right to a speedy trial, to due process and to equal protection of the law. In March, 1980, the Appellate Division reversed his conviction on the ground that defendant’s right to a public trial had been violated when, without any hearing, the courtroom was ordered cleared and closed prior to the testimony of the undercover police officer to whom defendant had allegedly sold drugs. The Appellate Division did not address defendant’s other contentions, including his claims based on the excessive delay. The memorandum opinion states only that those claims did not require summary reversal. (74 AD2d 877, 878.)

Upon remand, defendant, by omnibus motion, again raised the claim that his constitutional rights had been violated by the unreasonable delay and sought to have the indictment dismissed. Special Term denied the motion on the basis of the papers submitted. Prior to trial, defendant pleaded guilty to one count of the indictment in full satisfaction of the charges against him. The judgment of conviction entered on the basis of that plea was unanimously affirmed, without opinion, by the Appellate Division.

Leave to appeal to this court was granted to determine whether the five-year delay in the appellate process had deprived the defendant of a protected right. Although we now affirm defendant’s conviction, we do so on an analysis which does not in any respect condone such excessive delays in the appellate process.

Defendant seeks to equate the right to appeal a conviction with the right to a speedy trial. In his brief to this court, he argues that this constitutional right to a speedy trial has been violated because it was over five years before he would have received his “first ‘fair trial’ ”. The underlying rationale of this argument is that because the Appellate Division found that his constitutional right to a public trial had been violated at his first trial, he had not yet received the trial guaranteed him by the Constitution. Thus, he concludes that a new trial scheduled some five years after the initiation of criminal proceedings against him cannot constitute a speedy trial within the meaning of the Sixth Amendment.

The error in defendant’s analysis is twofold. Defendant’s argument misperceives both the intent and the scope of the Sixth Amendment’s guarantee that everyone accused of a crime shall “enjoy the right to a speedy and public trial”.

The right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution is, of course, a fundamental right applicable in State prosecutions as well as Federal prosecutions. (Klopfer v North Carolina, 386 US 213.) In determining the proper scope of this right, both this court and the Supreme Court have held that “excessive delay between institution of the prosecution — whether by felony information or complaint, detainer warrant or indictment — and the trial” constitutes a violation of an accused person’s right to a speedy trial. (People v White, 32 NY2d 393, 397, citing United States v Marion, 404 US 307, 320; People v Minicone, 28 NY2d 279, 281, cert den 404 US 853; People v Winfrey, 20 NY2d 138, 143-144; People u Prosser, 309 NY 353, 361.)

The Supreme Court has stated that “the purposes of the Sixth Amendment’s speedy trial provision [are] ‘to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.’ ” (United States v Marion, 404 US 307, 320, supra, quoting United States v Ewell, 383 US 116, 120.) While recognizing that undue delay may impair the defendant’s ability to present an effective defense, the court noted that “the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.” (United States v Marion, supra, at p 320.) Rather, the court concluded that the interference with a defendant’s liberty interests — his freedom of movement, the potential disruption of his family life and employment, and the public ridicule and anxiety occasioned by the filing of criminal charges against a person constitute the foundation for the accused’s right to a speedy trial. Thus, the right comes into existence at the time the initial accusatory instrument is filed.

But, here, we are asked to decide at what point in a criminal proceeding it can be said that a defendant has received all the guarantees associated with the Sixth Amendment’s right to a speedy trial. We conclude that the underlying rationale of the Sixth Amendment’s right to a speedy trial extends that fight only until the accused is brought to trial. The fact that, on appeal, the defendant may successfully challenge the propriety of that trial does not extend the Sixth Amendment’s guarantee of a speedy trial throughout the appellate process. When the accused is found guilty and incarcerated even as a result of a procedurally flawed trial, he can no longer be said to be in the “legal limbo” the Sixth Amendment is designed to protect against. The accusations raised against him have been supported and the anxiety of an unknown fate has been resolved. The fact that a State has chosen statutorily to provide the accused with additional protection in the form of appellate review does not serve to expand the scope of an accused’s speedy trial right. Nor does it mean that the purposes behind the speedy trial right will not be served properly. The accused will have been afforded the protections envisioned in assuring that he be promptly brought to trial.

Turning then to the case before us, we conclude that there was no violation of defendant’s Sixth Amendment right to a speedy trial. He was accorded a prompt trial which resulted in his conviction. At that point, the concerns addressed by the Sixth Amendment were served.

Similarly, we see no reason to expand the scope of New York’s statutory speedy trial right (CPL 30.20, 30.30) into the appellate process. The purposes behind the speedy trial right, codified in CPL 30.20 and 30.30, are fundamentally the same as those embodied in the Sixth Amendment. Thus, no additional reason for expanding this right to the appellate process is presented by the existence of a statutory speedy trial right.

It is more significant, we believe, that the Legislature, in establishing by statute both the right to an appeal (CPL 460.10 et seq.) and the right to a speedy trial has chosen to correlate those two rights only to the extent that any reasonable delay resulting from an appeal is not to be included when computing the time within which the People must be ready for trial. (CPL 30.30, subd 4, par [a].) Since the right to have an appellate court review one’s conviction derives not from the common law, but solely from a State’s statutory scheme (McKane v Durston, 153 US 684, 687), it would be within the province of the Legislature to infuse the right to a speedy trial into the statutory right to pursue an appeal.

Of course, once a State grants the right to appellate review, it must insure that the appellate process affords all the protections guaranteed by the right to due process of law. (Griffin v Illinois, 351 US 12,18; Matter of Mitchell, 40 NY2d 153, 157.) Although we have never “drawn a fine distinction between due process and speedy trial standards”, we have held that “the State due process requirement of a prompt prosecution is broader than the right to a speedy trial guaranteed by statute (see CPL 30.20; see, also, CPL 30.30) and the Sixth Amendment (see United States v Marion, 404 US 307, supra; Klopfer v North Carolina, 386 US 213).” (People v Singer, 44 NY2d 241, 253.) The extent of those due process rights, however, cannot be ascertained by the application of an “absolute, simple or single standard.” (People v Staley, 41 NY2d 789, 792, supra.) Delays do not automatically mandate dismissals; rather, particularly in a postconviction proceeding, it is necessary that the defendant show that he has been prejudiced by the delay. (United States v Lovasco, 431 US 783, 789, reh den 434 US 881; People v Staley, supra.) In the past, in considering the due process ramifications of pretrial delay, we stated: “As with the right to speedy trial, the due process right to prompt prosecution must be tested on a balancing analysis, with seriousness of the crime and length of the delay being significant factors, among others”. (People v Staley, supra, at p 792.) Similarly, we hold now that in evaluating claims that a defendant’s due process rights have been violated by an unreasonable delay in the appellate process, the court must weigh factors similar to those considered in determining whether a defendant’s speedy trial rights were violated. (People v Taranovich, 37 NY2d 442; Doescher v Estelle, 454 F Supp 943, app dsmd 597 F2d 281.) Although a five-year delay prior to trial raises a presumption of prejudice (People v Singer, supra, at p 254), such a presumption need not be indulged with respect to delay in prosecuting an appeal, for the principle effects of prejudice — loss of memory by or disappearance of a witness or witnesses — will to a large extent be ameliorated by the availability of the record of the trial which may be used to refresh the recollection of a witness who remains available or read as the prior testimony of a witness who cannot be found. Thus, a hearing will normally be required to determine whether or not in an individual case there has been a violation of the defendant’s due process rights resulting in prejudice which requires dismissal of the charges. At that hearing, it will be the defendant’s burden to show that he has been prejudiced by the delay.

In this case, the defendant’s success when his appeal was heard by the Appellate Division indicates that he suffered no prejudice in pursuing his case on appeal as a result of the delay between his conviction and the hearing of his appeal.

The defendant does argue that he was prejudiced in regard to his retrial because several witnesses disappeared during the five-year period his appeal was pending. Had he properly raised this claim to the trial court by asserting a violation of his due process rights, rather than his speedy trial rights, a hearing could have been held to determine the validity of this claim and whether the prejudice was attributable to the delay in the appellate process. In this case, defendant raised only claims that the indictment should be dismissed because his speedy trial right had been violated and that the interests of justice required dismissal of the indictment. This did not properly alert the court to claims of due process violations, or that a hearing might be required. Indeed, the only reference to due process in the motion are as it would relate to the defendant’s speedy trial rights.

Had the defendant properly alerted the court to potential due process violations, a hearing could have evaluated the claimed prejudice. This court cannot assume, without the benefit of a record compiled at such a hearing or at the retrial, that any prejudice did result. While the disappearance of key witnesses may well amount to prejudice, such cannot be assumed in this case where all those witnesses had testified at the first trial and their testimony would be available at the second trial.

We have considered the other contentions raised by defendant and find them to be without merit.

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

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

Order affirmed.

       Our ruling today would not, of course, preclude a defendant from making a new motion to dismiss the indictment on the ground that delays in the period between the reversal and retrial violated his speedy trial rights at retrial.


author:
      Per Curiam.
     Chief Judge Cooke

text:
    In the Matter of Michael B., a Child Alleged to be Permanently Neglected. Broome County Department of Social Services, Respondent; Darlene B., Appellant.
    Decided January 18, 1983

      APPEARANCES OF COUNSEL

      Spero Pines for appellant.

      Thomas B. Oakes for respondent.

      G. Peter Van Zandt, Law Guardian, for Michael B.
   OPINION OF THE COURT

Per Curiam.

In cases in which, prior to the decision of the Supreme Court of the United States in Santosky v Kramer (455 US 745), the Family Court has found that permanent neglect on the part of a mother has been established by a fair preponderance of the evidence, the Appellate Division may properly review the record on appeal under the constitutional standard announced in Santosky — clear and convincing evidence — without the necessity of an automatic remittal for a new hearing under that standard by the Family Court. The evidence in this record, however, is insufficient to meet that constitutional standard.

In this instance Family Court made a finding that permanent neglect on the part of appellant mother had been established by a fair preponderance of the evidence and ordered removal of her son, thereby terminating the parental rights of the mother. While the appeal by the mother was pending at the Appellate Division, the decision of the Supreme Court in Santosky came down, holding that the constitutionally mandated standard of proof in a proceeding leading to permanent termination of parental rights is clear and convincing evidence. The Appellate Division reviewed the evidence in the record, and, applying this higher standard of proof, affirmed the determination of Family Court. We granted leave to appeal to consider the mother’s arguments that proper application of Santosky required a remittal to Family Court for a hearing de novo and that, in any event, the evidence in this record is legally insufficient to meet the clear and convincing standard. We reverse the order of the Appellate Division on the latter ground.

The Appellate Division properly reviewed the record in this proceeding to determine whether the Department of Social Services had established the grounds for termination of parental rights by reason of permanent neglect pursuant to section 614 of the Family Court Act under the Santosky standard. In view of the authority of the Appellate Division to review factual determinations and, in a case tried without a jury, to make a final disposition of the litigation predicated on its evaluation of the evidence, no new hearing was automatically required. Nothing contained in the Santosky opinion compels a contrary conclusion with respect to permanent neglect proceedings in which the hearings preceded the decision of that case. Appellant mother was not prejudiced because it was later determined that the burden of proof of the agency at the evidentiary hearing was higher than that assumed by the parties at the time. (The situation would be different, however, if the agency were the appellant.)

Nevertheless, in the present case a new hearing must be had, because the evidence did not establish failure by the mother either to maintain contact with or to plan for the future of the child by clear and convincing evidence. Over the one-year period after appellant’s son had come into the custody of the agency she made several visits to him at the foster home where he lived and she complied with the department’s requirement that she procure living accommodations and financial means for her son. Her failure to have undergone psychological tests, although initially the result of her refusal, ultimately resulted from a misdelivery of the notice of the appointment which she had sought from the clinic to which she had been referred. That failure, in any event only one factor to be weighed (Social Services Law, § 384-b, subd 7, par [c]), was not sufficient to constitute the failure to plan for her child’s future referred to in section 614 (subd 1, par [d]) of the Family Court Act.

Because the prior hearing was held at a time when both counsel and the court believed that the fair preponderance of evidence standard set out in section 622 of the Family Court Act controlled, a new hearing on all issues must be held at which the department will have an opportunity, with an awareness of the heavier burden applicable to it, to present evidence in support of its petition seeking permanent termination of the mother’s parental rights.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the case remitted to Family Court for such further proceedings.

Chief Judge Cooke

(concurring). I agree with the majority that this case should be remitted to the Family Court for a new hearing because the Department of Social Services failed to establish by clear and convincing evidence that the mother had failed to maintain contact with her children or plan for their future.

Inasmuch as the case can be disposed of on this ground, there is no reason to reach out to determine whether the holding of the Supreme Court in Santosky v Kramer (455 US 745) requires a new hearing in every case that was determined under the lower evidentiary standard applied before Santosky.

As the majority has addressed the issue, however, I must express my disagreement with its conclusion. As this court has observed, in a proceeding to terminate parental rights, “which turns almost entirely on assessments of the credibility of the witnesses and particularly on the assessment of the character and temperament of the parent, the findings of the nisi prius court must be accorded the greatest respect” (Matter of Irene O., 38 NY2d 776, 777). In such cases, “the assessment is of persons, character, and their capacity to fulfill responsibilities and not only to intend what they say but to fulfill what they intend” (id.). To determine whether the new criteria established by Santosky have been met, it is crucial that the fact finder directly observe the various witnesses, rather than merely read the transcript of proceedings conducted in some other court.

A proceeding to terminate parental rights involves the State’s intrusion into the most fundamental and private of social bonds — that of the family. The warmth and complexity of such relationships should not be assessed against the typed words of a cold record.

Judges Jasen, Jones, Wachtler and Meyer concur in Pet Curiam opinion; Chief Judge Cooke concurs in a separate opinion in which Judge Fuchsberg concurs; Judge Simons taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, and matter remitted to Family Court, Broome County, for further proceedings in accordance with the opinion herein.

       In view of the number of permanent neglect cases in the appellate process when the decision in Santosky was announced and the overriding importance of prompt determinations in litigation involving the custody and status of children, we deem it appropriate to address and resolve this issue which has been considered by the Appellate Division (Matter of John AA., 89 AD2d 738, mot for lv to app den 58 NY2d 605) and fully briefed and argued by the parties in this case, notwithstanding that this appeal could be disposed of, as noted in the concurring opinion, without reaching the issue.


author: Per Curiam.

text:
    Gloria Elliot, as Guardian of Bridgette Elliot, an Infant, Respondent, v Green Bus Lines, Inc., Appellant.
    Argued January 11, 1983;
    decided February 10, 1983
    POINTS OF COUNSEL

      J. Irwin Shapiro and Stephen C. Glasser for appellant.
    I. The court below erred in holding that respondent could assert the general toll of infancy under CPLR 208 as a defense to her failure to confirm the arbitration award within one year as required by CPLR 7510 since CPLR 7512 — and not CPLR 208 — governs extensions of time to confirm the award. (Teachers Assn. of Tarrytowns v Tarrytown Bd. of Educ., 59 AD2d 890; Matter of Belli [Matthew Bender & Co.], 24 AD2d 72; Palidoro v Feuer Transp., 35 Misc 2d 385; Gregoire v Putnam's Sons, 298 NY 119; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Ratka v St. Francis Hosp., 44 NY2d 604; Chilford v Centred City Cold Stor. Co., 166 Misc 780; Carrick v Center Gen. Hosp., 51 NY2d 242; Insurance Co. of Greater N. Y. v 156 Hamilton Realty Corp., 72. AD2d 403; Matter of Erhardt v MVAIC, 53 AD2d 962.) II. Respondent, having initiated an arbitration proceeding and successfully obtained an arbitration award on the merits, was bound to comply with the other procedural requirements of CPLR article 75, including that of CPLR 7512. (Frehe v Schildwachter, 289 NY 250; Gundershein v Bradley-Mahony Coal Corp., 295 NY 539; Rembrandt Inds. v Hodges Int., 38 NY2d 502; Matter of Singleton v MVAIC, 41 Misc 2d 469; Matter of Silver, 72 Misc 2d 963.)

      Bertram Herman, P. C., for respondent.
    I. The failure to plead the Statute of Limitations as an affirmative defense in any of the actual pleadings, waives the defense of Statute of Limitations. (Nassau Ins. Co. v Hernandez, 65 AD2d 551; Matter of Yak Taxi v Teke, 41 NY2d 1020; McDonald v Ames Supply Co., 22 NY2d 111; Ratka v St. Francis Hosp., 44 NY2d 604; Matter of Scuderi v Board of Educ., 49 AD2d 942.) II. The special proceeding required to be commenced to confirm the arbitrator’s award was done in a timely manner. (Sadler v Horvath, 44 AD2d 905; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379.) III. CPLR 7512 has no application in the within matter. (Matter of Saddler Textiles [Winston Uniform Corp.], 39 AD2d 845; Ratka v St. Francis Hosp., 44 NY2d 604; Pulsifer v Olcott, 63 Misc 2d 524, 41 AD2d 781; MVAIC v Eisenberg, 18 NY2d 1; Matter of Smith [Great Amer. Ins. Co.], 29 NY2d 116.) IV. The commencement of the special proceeding to confirm the arbitrator’s award is a separate special proceeding wherein the tolling provision of CPLR 208 applies. It is not a continuation of an action in progress.
   OPINION OF THE COURT

Per Curiam.

The toll for infancy prescribed in CPLR 208 does not apply to an application pursuant to CPLR 7510 to confirm an arbitration award.

The infant petitioner suffered injuries while riding on one of respondent’s buses on January 8, 1977. A guardian ad litem was thereafter appointed to institute a no-fault arbitration proceeding on behalf of the infant. An award was made in favor of the infant on May 1, 1979. For reasons which do not appear, the application made by the guardian to confirm the award was delayed until December, 1980, well beyond the one-year period prescribed in CPLR 7510.

Special Term denied the application as time-barred. The Appellate Division reversed and remitted the proceeding to Special Term for determination of the merits, holding applicable the toll for infancy of CPLR 208. We reverse and dismiss the petition.

The special provisions governing applications for confirmations of awards in arbitration are expressly prescribed in CPLR article 75. CPLR 7510 provides that the application to confirm an award must be made within one year after its delivery. CPLR 7512 authorizes the court to extend the time within which an application to confirm an award must be made in the event of the death or incompetency of a party. Conspicuously omitted is any comparable provision with respect to the infancy of a party. In this circumstance it must be concluded, the more specific provisions overriding the more general, that the general tolling provisions in the event of infancy set forth in CPLR 208 have no application. In all but perhaps the most unusual case this would not work unacceptable hardship. Inasmuch as the appointment of a guardian ad litem will be required for the institution of the arbitration proceeding, that guardian will be available and authorized to make a timely application to confirm any award which may be made in the infant’s favor.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Simons concur in Per Curiam opinion; Judge Meyer taking no part.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.