author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Julius Lynes, Appellant.
    Argued December 10, 1979;
    decided January 15, 1980

      POINTS OF COUNSEL

      Robert J. Hawley for appellant.
    I. The trial court deprived appellant of a fair trial in admitting into evidence a telephone conversation between an unknown person and a police officer in which the police officer referred to evidence already stricken because of its prejudicial effect and its lack of connection with appellant. (People v Huntley, 15 NY2d 72; Levine & Co. v Wolfs Package Depot, 29 Misc 2d 1085, 1 AD2d 874; Ruegg v Fairfield Securities Corp., 284 App Div 703; Ottida, Inc. v Harriman Nat. Bank & Trust Co. of City of N. Y., 260 App Div 1008; Murphy v Jack, 142 NY 215; People v McKane, 143 NY 455; United States v Frankel, 65 F2d 285, 290 US 682; People v Smirti, 274 App Div 799; Brereton v McEvoy, 44 AD2d 594; Clark v Donovan, 34 AD2d 1099, app dsmd sub nom. Clark v Olson, 31 NY2d 661.) II. The trial court denied appellant a fair trial in admitting into evidence statements allegedly made by appellant upon questioning by a police officer while appellant was in custody and without having been advised of any of his constitutional rights. (United States v Wade, 388 US 218; People v Huntley, 15 NY2d 72; Miranda v Arizona, 384 US 436; People v Kaye, 25 NY2d 139; People v Baez, 49 AD2d 863; People v Gold, 57 AD2d 575; People v Arthur, 22 NY2d 325.)

      Robert M. Morgenthau, District Attorney (Bruce Allen and Jerrold L. Neugarten of counsel), for respondent.
    I. Lynes was proved guilty beyond a reasonable doubt. II. Detective Longo’s testimony relating a telephone conversation with Lynes was properly received into evidence: the timing of the call, the contents of the conversation and other evidence at trial all established that Lynes was the caller. (Van Riper v United

      States, 13 F2d 961, cert den sub nom. Ackerson v United States, 273 US 702; Levine & Co. v Wolfs Package Depot, 29 Misc 2d 1085, 1 AD2d 874; Ruegg v Fairfield Securities Corp., 284 App Div 703, 308 NY 313; United States v Lo Bue, 180 F Supp 955; People v Garcia, 51 AD2d 329, 41 NY2d 861; People v Ashwal, 39 NY2d 105.) III. Lynes’ spontaneous statement was not the product of any verbal police conduct which could be considered an attempt to elicit a statement. (Miranda v Arizona, 384 US 436; People v Kaye, 25 NY2d 139; People v Torres, 21 NY2d 49; People v Ciampa, 57 AD2d 932; People v Maerling, 46 NY2d 289; People v Howard, 62 AD2d 179, 47 NY2d 988; People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106; People v Rivera, 26 NY2d 304.)
   OPINION OF THE COURT

Fuchsberg, J.

Defendant Julius Lynes was convicted, after a jury trial, of rape in the first degree, sodomy in the first degree, robbery in the first degree and burglary in the first degree. His conviction was affirmed by the Appellate Division. The issues on which the present appeal turns are the admissibility at trial of (1) a telephone conversation between a police detective and a caller who identified himself as the defendant and (2) oral statements made to another police officer by the defendant purportedly without first having been advised of his constitutional rights. For the reasons which follow, we hold both were properly received in evidence.

Police attention in this case was directed at defendant after the complainant, happening to observe him with a group of young men on a congested street in the Harlem section of Manhattan, recognized him as her assailant. When the defendant ran into a nearby tenement house, other people who had been standing with him told the complainant that the man was nicknamed Speedy. Acting on her relay of this information to the police, a detective, Donald Longo, repaired to the building into which the man had disappeared, where, in the course of his inquiries of tenants, he came upon a man who identified himself as Speedy’s brother and provided the information that defendant’s formal name was Julius Lynes. However, the man denied knowing where Speedy was at the time and, when he asked why the detective was seeking his brother, was advised that it was in connection with the investigation of an old warrant. Before departing, Longo requested that Speedy telephone him and, for that purpose, left with the brother a slip of paper bearing the detective’s name and telephone number at the Manhattan Sex Crimes Squad. This sets the stage for the call which gives rise to the first of the two evidentiary points with which we treat here.

For, only hours later, Longo picked up a telephone receiver at the other end of which was an unfamiliar male voice that asked for him by name. According to the record, the detective, having then inquired who was calling, received the response, "Speedy — Julius Lynes” and then, "What are you looking for me for?” In reply, the detective said, "Your knife was found in an apartment”, to which the voice was then heard to say "Oh no, oh no”. When the detective thereupon asked if the man who had identified himself as Julius Lynes would come in and talk to the police, the caller refused, saying "you are going to have to find me” and then hung up. It is this conversation which was introduced at trial over the defense’s vigorous objection that Longo admittedly was unfamiliar with the voice and therefore could not personally identify it as that of the defendant. The trial court’s ruling was based generally on the rationale that other circumstances provided sufficient corroboration of the identity of the caller.

Prefatory to focusing on the question so raised, we note that the problem was fundamentally one of authentication, i.e., not merely whether the sound of the voice was recognizable as that of the defendant, but, more broadly, whether a sufficient foundation had been laid to permit a finding that the conversation was one with the party against whom it was offered. Putting the issue another way, in this case was the proof such that a jury could find that defendant was indeed the caller? (See People v Dunbar Contr. Co., 215 NY 416, 422 [Cardozo, J.]; Carbo v United States, 314 F2d 718, 743.)

The question of authentication, of course, presents no great legal difficulty when the witness testifies that he recognizes the voice of the caller, and that is irrespective of whether the familiarity was acquired before or after the conversation (People v Dunbar Contr. Co., supra, p 422; People v Strollo, 191 NY 42, 61). At the opposite end, it goes without saying that, without more, a mere self-serving statement of identity by a caller whose voice is unknown to the listener is not enough to permit it to go in (Murphy v Jack, 142 NY 215; 7 Wigmore, Evidence [Chadbourn rev ed], § 2155, p 760). But that defect need not be fatal where alternative indices of reliability are to be found in surrounding facts and circumstances (see People v McKane, 143 NY 455; Van Riper v United States, 13 F2d 961, 968, cert den sub nom. Ackerson v United States, 273 US 702; Ann., 79 ALR3d 79, 154 et seq.).

Thus, in part on the theory that the customary mode of operation of telephone users provides some assurance of reliability, in some instances the placing of a call to a number listed in a directory or other similarly responsible index of subscribers, coupled with an unforced acknowledgment by the one answering that he or she is the one so listed, has been held to constitute an adequate showing (see, e.g., Mankes v Fishman, 163 App Div 789; Van Riper v United States, supra). In other cases, the substance of the conversation itself has furnished confirmation of the caller’s identity, as, for example, when subsequent events indicated that the party whose identity is sought to be established had to have been a conversant in the telephone talk (see Ottida, Inc. v Harriman Nat. Bank & Trust Co. of City of N. Y., 260 App Div 1008; United States v Frankel, 65 F2d 285, 286-287) or when the caller makes reference to facts of which he alone is likely to have knowledge (see Levine & Co. v Wolfs Package Depot, 29 Misc 2d 1085, 1088; Dege v United States, 308 F2d 534; State v Bassano, 67 NJ Super 526). From all this emerges the rule that, while in each case the issue is one to be decided upon its own peculiar facts, in the first instance the Judge who presides over the trial must determine that the proffered proof permits the drawing of inferences which make it improbable that the caller’s voice belongs to anyone other than the purported caller (see United States v Lo Bue, 180 F Supp 955, 956-957; see, generally, Comment, 11 NC L Rev 344).

So measured, it was not error for the court to overrule the objection. The call was made to the detective after he had made a specific request that the defendant call and had left his name and telephone number for that very purpose with a man purporting to be defendant’s brother. The promptness of the call — within a few hours of this invitation — can be said to impart a quality of reflexiveness that tends to undermine the chance that the invitation and the response are connected by only a post hoc ergo propter hoc rationalization (see People v Conway, 3 111 App 3d 69; People v Kroeger, 61 Cal 2d 236). Moreover, aside from the immediacy of the response, the court could weigh such factors as the caller’s seeming ability to track the message left for the defendant, specifically in asking to speak to Detective Longo and in using his own formal name as provided by the brother as well as the more informal appellation "Speedy”. And, since the record reveals no attempt by Detective Longo to communicate with Lynes other than on the occasion when he left the request to call, the court also was entitled to view defendant’s subsequent admission, made to another police officer, that he knew the detective was looking for him as additional confirmation that the message was delivered intact to its intended recipient. Beyond this, the substance of the conversation supplies further criteria of reliability. Not only did the caller indicate that he knew the detective had been searching for him, but, perhaps above all, what could be found to be his dismayed and spontaneous reaction to the information that the complainant’s attacker had left a knife behind — a fact which Longo had not communicated to the brother — could be taken as telltale evidence that the caller indeed was Speedy.

Moreover, the question here was whether the conversation was admissible and not whether, standing alone, it would suffice to support a finding of guilt beyond a reasonable doubt. In that connection, it is well to remember that the complainant directly described the details of the criminal event and identified the defendant as its perpetrator on the basis of her personal observations at the time of its commission.

In sum, taking these facts and inferences in various combinations or in concert, it cannot be said as a matter of law that the Trial Judge erred in leaving it to the jury — aided as it could be by the instruments of cross-examination, counsels’ arguments and other fact-finding tools available at the trial level — to decide whether, as Learned Hand put it, "The chance that these circumstances should unite in the case of some one [other than the defendant] seems * * * so improbable that the speaker was sufficiently identified” (Van Riper v United States, 13 F2d 961, 968, supra).

We turn now to defendant’s second contention, that inculpatory remarks he made to a second police officer, Thomas Czfwzyk, while Lynes was being held on an unrelated charge, should have been suppressed because he had not been advised of his Miranda rights. The occasion for this alleged infringement on defendant’s constitutional rights followed his arraignment on this other charge, during which he was also notified by the court that a warrant had been issued against him by the Sex Crimes Unit.

It was right after this court appearance, and while Czfwzyk, who until then had no knowledge of or connection with the case Detective Longo was investigating, was escorting Lynes into his cell, that defendant asked generally whether he could speak to him and, when the officer said yes, the defendant continued, "What is this warrant about?” The police officer, possessed of no more information than that which could be gathered from the remark which he had just heard the arraigning Judge make to the defendant, responded, "You should know, they are looking for you”. It was at this juncture, and without any invitation, much less urging or coaxing, that defendant poured out an incriminatory comment in the course of which he boasted that he had "taken care of’ a woman in an episode for which he knew the detective who was looking for him.

At an ensuing suppression hearing, the Trial Judge found beyond a reasonable doubt that the statement was one máde voluntarily and spontaneously, and not as the product of any police interrogation. In the affirmed posture of the case now, this determination of spontaneity is beyond our power to review unless no possible reading of the facts supports it (People v Anderson, 42 NY2d 35, 38-39; People v Leonti, 18 NY2d 384, 390).

From that perspective, although we have noted that incriminatory statements are not rendered spontaneous simply because they are precipitated by subtle forms of interrogation rather than blatantly coercive techniques (see People v Garofolo, 46 NY2d 592, 603-604; People v Maerling, 46 NY2d 289, 301-303; People v Howard, 47 NY2d 988, 989), the nature of the brief exchange between the defendant and the police officer in this case does not compel a finding as a matter of law that the statement was not spontaneous. The defendant himself initiated the conversation and the officer’s response need not have been viewed as one designed to elicit some further reply by the defendant. Rather, allowing for the normal variations in the use of language by different individuals, he could at least just as well have intended to discourage further colloquy by indicating that he was not in a position to add anything to what the defendant himself already knew.

The test in such situations cannot be whether, through hindsight, the defendant professes to believe the police intended to provoke an incriminating response. Were that so, virtually any police remark, no matter how innocuous, would constitute an interrogation as long as it was followed by an inculpatory statement. Instead, fully sensitive to the defendant’s rights, yet using an objective standard, the Trial Judge must determine whether the defendant’s statement can be said to have been triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant (see People v Howard, 62 AD2d 179, 181-182, affd 47 NY2d 988). On these facts, it cannot be said that the failure to suppress the statement was error since neither defendant’s right to remain silent nor his right to counsel were abridged.

We therefore conclude that the order of the Appellate Division should be affirmed.

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

Order affirmed.

       [2] We note from his testimony at the suppression hearing that the officer was apparently aware that Lynes had retained counsel on the unrelated charge, and so the defendant should properly be considered to have invoked the right to counsel, thus foreclosing any police questioning on the rape incident as well (see People v

        Rogers, 48 NY2d 167). However, since we conclude that this was not an instance of police interrogation, there was in no event any abridgment of the right to counsel.


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Michael A. Yannett, Appellant.
    Argued January 10, 1980;
    decided February 7, 1980

      POINTS OF COUNSEL

      N. Theodore Sommer and A. Lawrence Abrams for appellant.
    I. The patients had no ownership interest in the payments they made to defendant. Such payments could not be the subject of embezzlement. There was no crime in respect to them. (Thorne v Turck, 94 NY 90; People v Thomas, 83 App Div 226.) II. The assumption by Medicare of the obligation to make payments of nursing home charges for the patients did not give the patients any ownership interest in that obligation or any moneys. Such obligation could not be the subject of embezzlement. There was no crime in respect to this obligation. III. The patients had no ownership interest in Medicare moneys, and payment of the Medicare moneys to defendant did not give them any ownership interest. Medicare moneys could not be the subject of embezzlement. There was no crime in respect to them. IV. There was no express trust in this case which created money or property in which patients had a right of ownership subject to embezzlement. (Matter of Fontanella, 33 AD2d 29; People v Epstein, 245 NY 234; Matter of Travers v Prudential Ins. Co. of Amer., 177 Misc 1044.) V. The trial court wrongfully charged the jury on the essential point of ownership of property alleged to be stolen. (People v Smith, 219 NY 222.)

      Charles J. Hynes, Deputy Attorney-General (Richard D. Carruthers and T. James Rryan of counsel), for respondent.
    I. The evidence at trial proved beyond a reasonable doubt that Yannett stole money belonging to the residents of his nursing home. II. Yannett committed larceny by misappropriating money which he was obligated by Federal law to hold in trust for his Medicare patients. (People v Robinson, 284 NY 75; People v Wrieden, 299 NY 425; Matter of Sigety v Hynes, 38 NY2d 260; Uzzillia v Commissioner of Health of State of N. Y., 47 AD2d 492; Matter of Gordon v Bialystoker Center & Bikur Cholim, 45 NY2d 692; People v Epstein, 245 NY 234; People v Klinger, 165 Misc 634; Pinckney v City Bank Farmers Trust Co., 249 App Div 375; Matter of Hassett, 1 AD2d 741; People v Severino, 63 AD2d 1010.) III. The trial court gave the jury a proper charge.
   OPINION OF THE COURT

Gabrielli, J.

Defendant appeals from an order of the Appellate Division which affirmed a judgment of Broome County Court convicting him of the crime of larceny in the second degree. The conviction is premised upon the claim that defendant embezzled certain funds that were in his possession but were actually owned by certain residents of a nursing home owned and operated by defendant. The dispositive question on this appeal is whether the funds which defendant was convicted of embezzling were held by him on behalf of the residents, or whether those moneys were in fact owned by defendant. For the reasons discussed below, we conclude that defendant was the actual owner of the money in question, although he was otherwise indebted to the residents. Since the mere failure to pay one’s debts cannot sustain a conviction for larceny by embezzlement, defendant’s conviction must be set aside and the indictment dismissed.

Defendant is the owner-operator of the Endicott Nursing Home. As is true of most such facilities, defendant’s nursing home is funded mainly in three ways: payments made by private residents, their families, or some other nongovernmental source; payments from local agencies made pursuant to the State Medicaid program on behalf of needy residents; and payments made by Medicare, the Federal health insurance program, for the care of eligible residents. As a condition to participating in the Medicare program, a nursing home is required to obtain certification from the Federal Government and to enter into a Medicare provider agreement in which it agrees that it will charge those persons eligible for Medicare no more than a set rate established by the Medicare program for that particular home. The home is free, however, to charge private residents a higher rate. Furthermore, Medicare provides the full amount of the Medicare rate for the first 20 days of an eligible person’s stay at the home, while for the next 80 days, Medicare pays that rate less a coinsurance charge which the eligible resident is required to. pay himself. During that full 100-day period, however, the maximum which a home can charge an eligible resident is limited by the provider agreement to the Medicare rate.

As noted above, when a nursing home applies for participation in the Medicare program, it must first be certified and is then required to enter into a Medicare provider agreement. Moreover, before benefits are paid for a particular resident, that person’s eligibility must first be determined by Medicare. All this, of course, may and usually does take considerable time, and in the meanwhile the nursing home needs revenue to operate. The home’s solution in such a situation is to require even those residents who seem eligible for Medicare to pay their own way pending approval by Medicare. During this period the home may, and defendant did, charge the higher, private resident rates, rather than the lower Medicare rate. However, the provider agreement requires the home, upon being notified that a particular person is eligible for Medicare, to refund to that resident the entire amount which the resident had previously paid the home during the period in which he was actually eligible but had not yet been approved, including the difference between the Medicare rate and the higher private resident rate, less the coinsurance charge when applicable. If the payments have been made by someone other than the resident, the refunds are to be made to that person. If the resident has died in the interim, the payments are to be made to the patient’s estate, pursuant to State law. If for some reason the refund cannot be made within 60 days after the nursing home is notified that a particular resident is eligible for Medicare, then the nursing home is required to set aside an amount equal to the refund in a separate account until payment can be made to the proper party. After the nursing home refunds the proper amount to the appropriate person or places it in a separate account if a refund cannot be timely made, then the local Medicare representative (in this State, Blue Cross) reimburses the home at the Medicare rate. It is important to note that under this plan, no payments are required to be made by Medicare to the nursing home until after the nursing home refunds the proper amount to the. resident or sets up a separate account when mandated.

In the instant case, the jury by its verdict necessarily found that instead of making full refunds to certain residents as was required by the Medicare agreement, defendant made only partial and in some cases no refunds. During the period prior to Medicare approval of those residents, defendant charged them at the higher private resident rate, as he was apparently allowed to do under the provider agreement. When he was notified that those persons were eligible for Medicare, he was then required by the agreement to refund to them the full amount of the payments they had made to him, less the coinsurance fee for periods after the initial 20 days. Instead, defendant refunded at most only the amount of the reimbursement payments Medicare was obliged to make to him for those persons, and retained the difference between the higher private resident rate and the Medicare approved rate. This was a clear violation of the provider agreement, which mandated full refunds. Unfortunately, despite defendant’s failure to refund the full amount due the residents, Medicare, through its agent Blue Cross, forwarded the Medicare payments to defendant although he was not entitled to any money under the agreement until he made full refunds to the residents. Defendant now stands convicted of larceny in the second degree on the theory that he embezzled funds owned by the residents to whom he did not give full refunds (see Penal Law, § 155.05, subd 2, par [a]; § 155.35). The Appellate Division affirmed the judgment of conviction, and defendant now appeals to this court. There must be a reversal, since the funds defendant was convicted of embezzling simply were not the property of the residents.

A distinction must be drawn between the refusal to pay a valid debt and the crime of larceny by embezzlement (see, generally, People v Richardson, 55 AD2d 514). The essence of the crime of larceny by embezzlement is the conversion by the embezzler of property belonging to another which has been entrusted to the embezzler to hold on behalf of the owner (see Penal Law, § 155.05, subds 1-2; People v Meadows, 199 NY 1, 4; People v Robinson, 284 NY 75). In the instant case, the money which defendant has been convicted of stealing never belonged to the residents of his nursing home, nor was it entrusted to defendant to hold on behalf of the residents. Although the residents had a contractual right to receive refunds from defendant equal to the full amount they had previously paid him, minus any coinsurance fees, the money from which defendant was required to make those payments belonged to defendant rather than to the residents. Hence, the failure to pay the full refunds did not constitute larceny by embezzlement.

When the residents initially paid the private resident rate to defendant, that money became the defendant’s money. It was not given to him in trust, and he was free to use it for any purpose he wished, although he was of course contractually obliged to provide the services which comprised the promised consideration for payment of the fees. The fact that defendant had also assumed an obligation to provide a refund should the residents subsequently be approved for Medicare benefits does not in any way modify the legal conclusion that those funds were the property of defendant and defendant alone.

Nor was defendant divested of his ownership interest in that money when he was notified that the residents had been approved for Medicare benefits. At that point, the provider agreement required defendant to make certain payments to the residents. Those payments, however, were to be made from defendant’s own money, not from any property of the residents which was in the possession of defendant. Thus, although the failure to make those payments constituted a breach of the contract, it was not a withholding of moneys owned by the residents, even under the broad definition of "owner” contained in the Penal Law (Penal Law, § 155.00, subd 5; cf. People v Steinberger, 89 Misc 2d 419).

Finally, the fact that Medicare funds were actually paid to defendant does not make his failure to provide full refunds to the residents a theft of property owned by the residents, since the Medicare funds were not the property of the residents, but rather the property of defendant. The funds given defendant by Blue Cross on behalf of Medicare were not intended to serve as the source of the refunds due the residents of the home. Rather, the money from Blue Cross was intended to reimburse defendant for the money which he supposedly had previously refunded to the residents from his own funds. In fact, the money paid to defendant by Blue Cross was less than the amount he was obligated to refund to the residents, since he was required to refund the higher private resident rates, minus any coinsurance charge, while Blue Cross reimbursed him only at the Medicare rate. Indeed, the defendant actually did refund the Medicare rate to several of the residents whose funds he now stands convicted of embezzling. Although defendant could perhaps be said to be subject to criminal prosecution for the theft of Medicare funds from Blue Cross upon a showing that he engaged in practices which constitute larceny by false pretenses (see People v Karp, 298 NY 213), the present prosecution is for the theft of funds belonging to the residents of the home and not for the theft of funds belonging to Medicare or to Blue Cross. Defendant’s receipt of Medicare funds from Blue Cross adds nothing to the claim that he stole funds belonging to the residents of his nursing home.

We note that the result would be different had either the initial payments made by the residents or the funds subsequently paid by Blue Cross been turned over to defendant to hold in trust for the residents or as an agent or bailee for the residents. Were that the case, defendant’s withholding of that money from the residents would constitute larceny by embezzlement (see People v Robinson, 284 NY 75, supra; People v Gelo, 32 AD2d 661). Here, however, no funds belonging to the residents were ever entrusted to defendant. As is noted above, the fees initially paid to defendant by the residents were not to be held in trust for the residents, but rather became the property of the defendant, to be used for his own purposes. Similarly, the funds paid by Blue Cross on behalf of Medicare were not to be held in trust for the residents, but were instead intended to reimburse defendant for the refunds he was previously required to have made to the residents. Although a constructive trust might possibly be imposed upon those funds pursuant to equitable principles applicable in a civil action because of defendant’s failure to have made those prior refunds in full, no actual trust was created by the terms of the provider agreement. It has long been true in this State that the "misuse” of funds upon which a constructive trust could be imposed does not comprise the crime of larceny by embezzlement (see People v Epstein, 245 NY 234, 242-243). This is so because the possible "beneficiaries” of a potential constructive trust simply do not have the requisite pre-existing interest, superior to that of the legal owner of those funds, which is necessary to support a larceny conviction of that legal owner. We see no justification for modifying this rule. It was within the power of the parties to the provider agreement to have created a trust by their agreement, and had they done so defendant might well have been subject to prosecution for the wrongful withholding of trust funds. The parties failed to create such a trust, however, and thus the residents cannot be deemed the owners of any moneys in the hands of the defendant. Accordingly, defendant’s conviction for larceny cannot stand.

The People suggest that in fact the provider agreement did create a trust which defendant has breached. This contention is founded upon those provisions of that agreement which require the nursing home, if it is unable to refund the money to the proper person within 60 days, to set aside a special fund containing the full amount of the refund until the proper recipient of the refund may be determined. Those provisions, however, are inapplicable to this case, since the duty to segregate funds pursuant to the agreement arises only if and when the nursing home is unable to locate the proper recipient of the refunds. Where, as here, there is no failure to pay because of some difficulty in locating the proper recipients, but rather a refusal to pay refunds to presumably identifiable residents or their families or estates, that obligation does not arise. The agreement is quite clear that the primary and first obligation of the nursing home is to actually pay the refunds to the proper party. Where that proper party is identifiable, not only is the nursing home under no duty to create a special fund, but such an action would itself be a violation of the agreement since the nursing home is justified in doing so only if the proper recipient of the refund cannot be located. Indeed, there exists some inconsistency between the asserted basis for criminal liability in this case, the withholding of funds from the proper recipients, and the suggestion that defendant was somehow obligated to set aside those funds. The obligation to segregate arises only if the proper recipient cannot be found; if such were the case, the defendant obviously could not be held liable for failing to make payment to that proper recipient, since the failure to do an impossible act generally may . not form the basis for criminal liability.

In short, our examination of the provider agreement persuades us that it did not create a trust in the circumstances of this case. Hence, since the funds defendant was accused of embezzling were not owned by the residents, he may not be convicted of larceny pursuant to the theory asserted by the People. In light of this conclusion, we are not required to and do not reach the other issues presented by defendant on this appeal.

Accordingly, the order appealed from should be reversed and the indictment should be dismissed.

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

Order reversed, etc.

      . The payment to the nursing home for the care of certain other residents was made by local agencies pursuant to the State Medicaid program, under an arrangement whereby defendant was obliged to repay those amounts to the local agencies should the residents subsequently be approved for Medicare benefits for those periods. Defendant was also indicted and tried for embezzling funds belonging to the local agencies, but was acquitted of those charges.

      .  It may well be that a nursing home operator who does set aside funds for the benefit of unidentified persons entitled to refunds and then converts that money is guilty of larceny by embezzlement, since in such a case he will have actually created a trust with respect to which he is both trustee and settlor, and the res of which may be viewed as the property of the beneficiaries for these purposes. Here, however, criminal liability was posited not upon the theft of funds which were set aside pursuant to the agreement, but rather upon the refusal to make refunds from defendant’s own moneys to identifiable persons. Although the People now suggest that defendant’s liability could be premised upon the theory that the agreement required him in all cases to either make the payment or set aside funds, this contention is without merit since the agreement clearly requires money to be set aside only when payment cannot be made to a proper person. More importantly, such an agreement would at most constitute a promise by the nursing home owner to create a trust from his own property. The failure to create such a trust would not constitute an embezzlement since the funds from which it was to be created would be the property not of the residents, but of the nursing home owner himself, and the failure to create a promised trust from one’s own property is not embezzlement.


author: Per Curiam.

text:
    Patrick D. Monserrate, as District Attorney of Broome County, Respondent, v Upper Court Street Book Store, Inc., et al., Appellants, et al., Defendants.
    Argued January 7, 1980;
    decided February 12, 1980

      POINTS OF COUNSEL

      David Gerald Jay for Upper Court Street Book Store, Inc., appellant.
    I. It was impossible for the County Judge to have spent sufficient time in order to "focus searchingly” upon the question of obscenity as to the items directed to be seized. (Monserrate v Upper Ct. St. Book Store, 62 AD2d 419; Marcus v Search Warrant, 367 US 717; United States v Weaver, 336 F Supp 558; United States v Wallen, 315 F Supp 459; Slettehaugh v Tarr, 322 F Supp 180.) II. The Magistrate who issued the search warrant did not act in a neutral and detached manner. III. The warrant issued by the court was not sufficiently particularized to comport with the requirements of the Fourth Amendment.

      William E. Seekford, of the Maryland Bar, admitted on motion pro hac vice, and Thomas E. Reilly for Allies Boulevard Book Store, Inc., and another, appellants.
    I. The procedures employed lacked adequate safeguards mandated in seizing and suppressing First Amendment materials under the Fourth and Fourteenth Amendments. (Roth v United States, 354 US 476; Miller v California, 413 US 15; Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643; Huffman v Pursue, Ltd., 420 US 592; Heller v New York, 413 US 483; Lee Art Theatre v Virginia, 392 US 636; Roaden v Kentucky, 413 US 496; Alberts v California, 354 US 476; Marcus v Search Warrants, 367 US 717; Bantam Books v Sullivan, 372 US 58.) II. The court below erred in not permitting the suppression motion to be heard and determined. (Bantam Books v Sullivan, 372 US 58; Bunis v Conway, 17 AD2d 207; Sunshine Book Co. v McCaffrey, 4 AD2d 643; Freedman v Maryland, 380 US 51; United States v Thirty-Seven Photographs, 402 US 363; Southeastern Promotions v Conrad, 420 US 546.) III. This is a quasi-criminal proceeding, illegally seized evidence is inadmissible and portions of complaints founded thereon can be dismissed. (Rogers v United States, 97 F2d 691; Chambers v Rosetti, 36 Misc 2d 779; Chmielewski v Rosetti, 59 Misc 2d 335; Herndon v City of Ithaca, 43 AD2d 634, 35 NY2d 956; Phillips v Kantor & Co., 31 NY2d 307; Matter of Mastrianni, 55 AD2d 784; People v Gatti, 16 NY2d 251; People v Skipwith, 22 AD2d 960; Boyle v Kelley, 42 NY2d 88.)

      Patrick D. Monserrate, District Attorney (Robert S. Rose of counsel), respondent pro se.

    I. The procedures employed provided adequate scrutiny and review of the materials added on the scene to the pre-existing warrants. (People v Allende, 39 NY2d 474; Katz v United States, 389 US 347; People v Potwora, 44 AD2d 207; Kaplan v California, 413 US 115.) II. The warrants themselves, and as executed, provide sufficient safeguards against the exercise of police discretion. (Marcus v Search Warrants, 367 US 717; A Quantity of Books v Kansas, 378 US 205; Heller v New York, 413 US 483.) III. The recent decision of the United States Supreme Court in Lo-Ji Sales v New York should not control the case at bar. (Heller v New York, 413 US 483.) IV. The motion to suppress should not have been decided by Special Term without a formal hearing on the issue, nor should it have directed a return of the evidence and dismissal of a portion of the complaint on affidavits alone. (People v Skipwith, 22 AD2d 960; Boyle v Kelley, 42 NY2d 88; Phillips v Kantor & Co., 31 NY2d 307; Matter of Mastrianni, 55 AD2d 784.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be reversed, without costs, and the order of Supreme Court, Broome County, reinstated. The question certified is answered in the negative.

Before a Magistrate may properly issue a search warrant, he must first conduct a "full and searching inquiry into the facts on which the warrant application is based.” (People v Potwora, 48 NY2d 91, 95.) In this case, County Court fulfilled this obligation with respect to the allegedly obscene materials originally presented to it in support of the warrant application and, thus, these materials were properly seized. However, it is inconceivable that the County Court Judge could have examined the literally thousands of other items seized on the premises and not presented to him in the original warrant application with sufficiently close scrutiny given the limited duration of his inquiry. We do not reach the general proposition whether an on-the-spot inspection of allegedly obscene materials by an issuing Magistrate could ever result in a valid seizure; on the facts of this case we are compelled to conclude that the materials inspected at the scene of the search were illegally seized. (Lo-Ji Sales v New York, 442 US 319.)

This illegally seized evidence was properly suppressed by Special Term. Where, as here, a civil action carries with it the potential for the abridgement of fundamental First Amendment rights (see A Quantity of Books v Kansas, 378 US 205; Marcus v Search Warrant, 367 US 717) and embodies, by its very nature, a significant amount of State action (cf. Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, cert den 396 US 840; Incorporated Vil. of Laurel Hollow v Laverne Originals, 17 NY2d 900), the defendant must be afforded an opportunity to test the constitutionality of the procedures used to obtain the evidence against him and is entitled to seek the suppression of any evidence found to have been illegally seized. (Cf. People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76, 81.)

Having suppressed the illegally seized evidence, Special Term properly dismissed the complaint insofar as it was based upon that evidence. A CPLR 6330 complaint, seeking to enjoin the dissemination of allegedly obscene materials, can only survive a motion to dismiss upon a showing that there is legally admissible evidence supporting the allegation that such material is obscene. Where no evidence of obscenity may properly be brought before the court, the complaint must be dismissed. Such a dismissal, however, should be without prejudice to the commencement of a new action based upon the same subject matter should evidence of obscenity be lawfully obtained in the future.

One remaining point requires mention. In our opinion, the proper procedure to be followed in a case such as this, where defendant claims that the complaint or a portion thereof is predicated upon illegally seized evidence, would be for the defendant to make a motion to suppress such evidence within the civil proceeding. (Cf. CPLR 3103, subd [c].) However, inasmuch as plaintiff did not object to having the legality of the search tested in a motion to dismiss, it must be said that he acquiesced in the procedures employed in this case.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order reversed, etc.


text:
    Board of Education of Lakeland Central School District of Shrub Oak, Respondent, v Joseph Barni, as President of Lakeland Federation of Teachers, Local 1760, American Federation of Teachers, AFL-CIO, Appellant.
    Argued January 7, 1980;
    decided February 12, 1980

      POINTS OF COUNSEL

      Jeffrey S. Karp and James R. Sandner for appellant.
    The parties have agreed to arbitrate their differences in this area. The court below erred in staying the arbitration on the ground that the parties did not intend the just cause provision of the agreement to apply to dismissal. (Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Board of Educ. v New Paltz United Teachers, 44 NY2d 890; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Board of Educ. v Roosevelt Teachers Assn., 47 NY2d 748; Board of Educ. [Fisher] 64 AD2d 757.)

      Murray Steyer for respondent.
    It is clear that the collective bargaining agreement does not contain an "express, direct and unequivocal” agreement to arbitrate the instant dispute. Indeed, section 7 (d) of article XXVII expressly excludes this dispute. (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Candor Cent. School Dist. [Candor Teachers Assn.] 42 NY2d 266; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] 42 NY2d 509; Matter of South Colonie School Dist. [South Colonie Teachers Assn.] 46 NY2d 521; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Matter of Kepp v Springville-Griffith Cent. School Dist., 43 NY2d 767; Matter of South Colonie Cent. School Dist. v Longo,
      43 NY2d 136; Matter of Board of Educ. v West Babylon Teachers Assn., 60 AD2d 577; Matter of Yonkers Federation of Teachers [Board of Educ.], 60 AD2d 583, 46 NY2d 725; Matter of Board of Educ. v Levitown United Teachers, 60 AD2d 629.)
   OPINION OF THE COURT

Gabrielli, J.

As part of its collective bargaining agreement with the teachers’ association, the school district agreed to submit to arbitration all grievances involving "an alleged misinterpretation or misapplication of an express provision of [the] Agreement”. Inasmuch as the grievance of the probationary teacher in this case was based upon a claimed violation of the disciplinary provisions of the contract, it was clearly arbitrable within the meaning of the parties’ unambiguous agreement to arbitrate (see Mineola Union Free School Dist. v Mineola Teachers Assn., 46 NY2d 568, 572; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 513-514). It begs the question to contend, as the school district does, that the grievance is not arbitrable because it involves a dispute that is not unambiguously encompassed by an express substantive provision of the contract. The question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator (Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669; Matter of Board of Educ. v Roosevelt Teachers Assn., 47 NY2d 748).

The decision of this court in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] (supra) does not suggest a contrary conclusion. In Liverpool, we held that arbitration should be stayed in cases where the parties’ arbitration agreement does not unambiguously extend to the particular dispute. There is nothing in our opinion in Liverpool, however, which permits a court to stay arbitration where, as here, the parties’ agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract (Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., supra, at p 671).

Nor may the purported limitations upon the power of the arbitrator which are contained in the parties’ arbitration clause serve as a basis for staying arbitration in this case. Although the contract does prohibit the arbitrator from taking certain actions such as varying the terms of the agreement or usurping the discretionary functions of the school district administrators, these restrictions do not indicate an intention by the parties to circumscribe the otherwise broad contractual definition of arbitrable grievances. Rather, the restrictive language relied upon by the school district was intended only as a set of instructions to the arbitrator to guide him as to the types of remedies he is permitted to formulate once he has interpreted and applied the substantive provisions of the agreement. Since it cannot be assumed in advance of arbitration that the arbitrator will exceed his powers as delimited in the agreement, the restrictive language in the arbitration clause cannot be cited as a ground for staying arbitration (cf. Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the application for a stay of arbitration should be denied.

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

Order reversed, etc.

      .  Submission of the dispute to arbitration did not conflict with any public policies regarding the termination of probationary teachers (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; cf. Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; see Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 512-513, supra).

      . The arbitration clause provides as follows:
      "The arbitrator shall limit his decision strictly to the interpretation or application of the express provision of this agreement submitted to him and he shall be without power or authority to make any decision:
      "(1) contrary to, or inconsistent with, or modifying or varying in any way, the terms of this agreement, or of applicable law, or rules or regulations having the force and effect of law;
      "(2) involving Board discretion or Board policy under the provisions of this agreement, under Board rules or regulations, under regulations having the force and effect of law, or under applicable law;
      "(3) limiting or interfering in any way with the powers, duties and responsibilities of the Board or the Superintendent of Schools under the Board’s rules or regulations, applicable law, and rules and regulations having the force and effect of law.”

      . The restrictive language contained in the arbitration clause in this case is to be distinguished from that contained in the arbitration clause in Matter of South Colonie Cent. School Dist. (South Colonie Teachers Assn.) (46 NY2d 521), since the restrictions in South Colonie were expressly incorporated into the definition of arbitrable grievances.


author: Meyer, J.

text:
    Fantis Foods, Inc., Plaintiff, v Standard Importing Co., Inc., et al., Defendants. Standard Importing Co. Inc., Respondent, v Synergal, Ltd., Appellant.
    Argued January 7,1980;
    decided February 14, 1980

      POINTS OF COUNSEL

      David P. Langlois and. Leo G. Kailas for appellant.
    I. Jurisdiction over Synergal does not exist because there is no "injury within the State” as required by CPLR 302 (subd [a], par 3). (Hanson v Denckla, 357 US 235, 358 US 858; Sybron Corp. v Wetzel, 46 NY2d 197; Chemical Bank v World Hockey Assn., 403 F Supp 1374; Moore Drug Exch. v Smith, Kline & French Labs., 384 F2d 97; Socialist Workers Party v Attorney Gen. of U. S., 375 F Supp 318; Friedr. Zoellner [New York] Corp. v Tex Metals Co., 278 F Supp 52, 396 F2d 300; Lehigh Val. Inds. v Birenbaum, 527 F2d 87; American Eutectic Welding Alloys Sales Co. v Dytron Alloys Corp., 439 F2d 428; Spectacular Promotions v Radio Sta. WING, 272 F Supp 734.) II. A construction of CPLR 302 (subd [a], par 3) which permits exercise of jurisdiction over Synergal in the circumstances of this case would violate due process. (Kramer v Vogl, 17 NY2d 27; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Gillmore v J. S. Inskip, Inc., 54 Misc 2d 218; Matter of Knickerbocker Field Club v Site Selection Bd. of City of N. Y., 41 AD2d 539; Whitley v Pacific Inds., 28 AD2d 147, 22 NY2d 726; Pennoyer v Neff, 95 US 714; McDonald v Mabee, 243 US 90; International Shoe Co. v Washington, 326 US 310; Hanson v Denckla, 357 US 235, 358 US 858.) III. Standard’s claim against Synergal is for breach of contract as to which there is no jurisdiction in New York. (Lamarr v Klein, 35 AD2d 248, 30 NY2d 757; Charles Abel, Ltd. v School Pictures, 40 AD2d 944; Security Nat. Bank v Ubex Corp., 404 F Supp 471; Fontanetta v American Bd. of Internal Medicine, 421 F2d 355; United States v Montreal Trust Co., 358 F2d 239, 384 US 919, 982; General Motors Acceptance Corp. v Richardson, 59 Misc 2d 744; Amigo Foods Corp. v Marine Midland Bank-New York, 39 NY2d 391; Pride Labs, v Athea Labs., 54 AD2d 976; Warner Bros. Pictures v Simon, 21 AD2d 863, 15 NY2d 836; Cuker Inds. v Crow Constr. Co., 6 AD2d 415.) IV. The forum selection clause in the contract relied upon by Standard should be enforced. (Export Ins. Co. v Mitsui S. S. Co., 26 AD2d 436; Bremen v Zapata Off-Shore Co., 407 US 1; Scherk v Alberto-Culver Co., 417 US 506, 419 US 885; Silver v Great Amer. Ins. Co., 29 NY2d 356; International Assn. of Machin

      ists v General Elec. Co., 406 F2d 1046; Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380; Stern & Co. v Mitsui Bussan Kaisha, Ltd., 385 F2d 158; Hodom v Stearns, 32 AD2d 234; Reavis v Exxon Corp., 90 Misc 2d 980; Fleischmann Distilling Corp. v Distillers Co., 395 F Supp 221.)

      Murray I. Sommer for respondent.
    I. The pleading satisfies the requirements of CPLR 302 (subd [a], par 3, els [i], [ii]) and the court has jurisdiction of Synergal. (Sybron Corp. v Wetzel, 46 NY2d 197; Naples v City of New York, 34 AD2d 577; Garbellotto v Montelindo Compagnie Navegacion, S. A., 294 F Supp 487; Gillmore v J. S. Inskip, Inc., 54 Misc 2d 218; Rich v New York Cent. & Hudson Riv. R. R. Co., 87 NY 382; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Path Instruments Int. Corp. v Asahi Opt. Co., 312 F Supp 805; United States v Montreal Trust Co., 358 F2d 239, 384 US 919; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377.) II. Belated and baseless, the claim of unconstitutionality was properly rejected. (Matter of Raisler Corp. [New York City Housing Auth.], 39 AD2d 862, 32 NY2d 274; Matter of Engle v County of Westchester, 38 AD2d 601; Jahn v Berzon, 255 App Div 1023; S-M News Co. v Simons, 279 App Div 364; Spring Co. v Knowlton, 103 US 49; Brown-Duffy Goatskin Corp. v Henkel, 211 App Div 342; International Shoe Co. v Washington, 326 US 310; Kulko v California Superior CL, 436 US 84; Mullane v Central Hanover Trust Co., 339 US 306.) III. Because enforcement of the forum selection clause is discretionary, that part of the appeal should be dismissed; alternatively, the independent tort, the unreasonableness and unconscionability of the forum selection clause make it inoperative. (Rosemont Enterprises v Irving, 41 NY2d 829; Hodom v Stearns, 32 AD2d 234; Reavis v Exxon Corp., 90 Misc 2d 980; Stern & Co. v Mitsui Bussan Kaisha, Ltd., 385 F2d 158; Meacham v Jamestown, Franklin & Clearfield R. R. Co., 211 NY 346; Export Ins. Co. v Mitsui S. S. Co., 26 AD2d 436; Matthiessen v National Trailer Convoy, 294 F Supp 1132; Mondou v New York, New Haven & Hartford R. R. Co., 223 US 1.)
   OPINION OF THE COURT

Meyer, J.

Whether CPLR 302 (subd [a], par 3, cl [ii]) permits the courts of New York to take jurisdiction of a Greek entity with respect to its claimed conversion of property in Greece or on the high seas, and whether a contract provision selecting Greece as the sole forum for disputes between the parties covers that conversion claim are the issues presented by this appeal. The Appellate Division, two Justices dissenting, held there was sufficient injury within the State upon which to base jurisdiction and that the forum selection clause was no bar. We disagree with the Appellate Division’s conclusions on the jurisdiction issue and, therefore, do not reach the question concerning the effect of the forum selection clause.

The predicate for the appeal is a motion by third-party defendant Synergal, Ltd., to dismiss the third-party complaint served by defendant third-party plaintiff Standard Importing Co. The other actor in the events preceding the dispute is Fantis Foods, Inc., which is plaintiff in the original action against Standard Importing. Synergal is a co-operative association of Greek dairy producers organized under the laws of Greece, having offices in Athens, Greece, and which was served with process in Greece. No claim is made that Synergal is qualified in, has any assets in, or transacts business in New York. Standard is a New York corporation, with offices in New York, Chicago and Athens. Fantis is also a New York corporation with offices in New York City. Standard and Fantis are competitors in the wholesaling of Greek feta cheese.

By contract dated July 26, 1976 Synergal agreed to sell 1,200 barrels of feta cheese to Standard "FOB Piraeus”, the weighing and delivery of the cheese to "take place in the offices of the Factory or the Refrigerated Warehouses of Ioannina” and the cheese to be "[f]rom the time it leaves the factory * * * the responsibility of the Buyer.” The contract included as a separate paragraph a forum selection provision making Greek courts the exclusive forum to decide disputes between the parties.

Standard claims, and it is not disputed, that about three weeks after the contract was signed the 1,200 barrels of cheese were weighed and each barrel stamped with Standard’s trade-mark and that Standard then acknowledged delivery by giving Synergal a certificate of weight and quality. Thereafter Standard directed Synergal to ship the cheese in four lots of 300 barrels each to Chicago. The first 300 barrels were shipped on a bill of lading to the order of a New York bank, which named Standard as the "notify” party and showed Chicago as the destination, the cheese to be forwarded from New York to Chicago in bond.

Though Standard had established the letter of credit required by the contract, Synergal never sought to draw upon it for the 300 barrels shipped, nor has it ever delivered the other 900 barrels to Standard. Instead, for a reason unexplained by the record, Synergal sold the same 1,200 barrels of cheese to Fantis and while the first shipment was on the high seas substituted Fantis on the original bill of lading as the ultimate consignee. While Fantis and not Standard received the last 900 barrels, Standard was able, notwithstanding the bill of lading change, to obtain delivery of the first 300 barrel shipment, for which it has never paid.

Fantis then brought action against Standard, the bank and the shipping company for the diversion of the 300 barrels, claiming as to Standard that it had wrongfully taken possession of them. By its answer Standard stated as a counterclaim against Fantis and a third-party claim against Synergal a cause of action for conversion of the entire 1,200 barrels, which it contends became its property under the terms of its contract upon the weighing of the cheese and its acknowledgment of delivery, Synergal, thereafter, holding the cheese only in a custodial and not in an ownership capacity. It also stated, in what it labeled a fourth "counterclaim”, a cause of action for Synergal’s breach of contract in interfering with the initial 300-barrel shipment and refusing to ship the additional 900 barrels.

Synergal moved to dismiss the claims against it both because of the absence of personal jurisdiction over it and because of the contract provision making Greek courts the exclusive forum for disputes between the parties. Special Term denied the motion and the Appellate Division majority affirmed. Agreeing that the claimed conversion of the final 900 barrels occurred in Greece, it reasoned that Synergal’s virtual monopoly of feta cheese made it foreseeable that favoring one New York based competitor over another would cause injury in New York to the latter. No distinction was drawn either by Special Term or by the Appellate Division between the conversion claim and the breach of contract claim against Synergal. The Appellate Division majority held the forum selection clause inapplicable because the claimed conversion was not an act arising from the contract and because the contract was one of adhesion. The dissenting Judges reasoned that the claim was essentially one for breach of contract, but that, assuming, arguendo, a conversion, any damage in New York was consequential rather than direct and, therefore, an insufficient basis for jurisdiction. The Appellate Division thereafter granted leave to appeal on the certified question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?” The Appellate Division’s order should be reversed, the third-party complaint should be dismissed and the certified question should be answered in the negative.

The answer clearly pleads two distinct third-party claims, the first for conversion and the second for breach of contract. Both have been sustained, the contract claim notwithstanding the total absence from the papers of any suggestion of a basis that would support jurisdiction of such a claim, on the apparent theory that because the same acts gave rise to both claims jurisdiction over both could be supported by CPLR 302 (subd [a], par 3). However, the Judicial Conference Report to the Legislature, which preceded enactment of chapter 590 of the Laws of 1966 adding present paragraph 3 to the section, shows that premise to be false, for it expressly noted that the jurisdiction to be conferred by the new provision would be "limited to a cause of action arising out of such tortious act” (Twelfth Ann Report of NY Judicial Conference, 1967, p 343). While a breach of contract may give rise to a separate tort liability (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 179; Albemarle Theatre v Bayberry Realty, 27 AD2d 172, 176), the two are conceptually distinct liabilities, and the cause of action for breach of contract is conceptually unrelated to the tortious nature of the act which constitutes the breach (Amigo Foods Corp. v Marine Midland Bank-New York, 39 NY2d 391, 396, on second app 46 NY2d 855). It was, therefore, clearly erroneous not to dismiss Standard’s contract claim (fourth "counterclaim”) against Synergal.

It was likewise error not to dismiss the tort claim, because there was neither an injury in New York nor foreseeability of New York consequences within the meaning of CPLR 302 (subd [a], par 3). That provision authorizes our courts to exercise personal jurisdiction over a nondomiciliary who

"commits a tortioiis act without the state causing injury to person or property within the state * * * if he

* * *

"(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.”

Since the complaint pleads that Synergal is a Greek entity Standard must, in order to establish jurisdiction, show (1) Synergal’s commission of a tort outside New York, (2) injury to Standard in New York, (3) that Synergal should reasonably have foreseen New York consequences, and (4) that Synergal derives substantial revenue from international commerce.

Standard’s first "counterclaim” alleges, and Synergal has not denied, that Synergal exports each year to United States purchasers more than 250 tons of dairy products worth in excess of $1,000,000. For purposes of this decision we accept that as a sufficient showing that facts "may exist” (Peterson v Spartan Ind., 33 NY2d 463, 466) to establish the fourth (substantial revenue) requirement (cf. Allen v Canadian Gen. Elec. Co., 65 AD2d 39; Allen v Auto Specialties Mfg. Co., 45 AD2d 331). Whether facts to sustain the first requirement "may exist” is more problematical, for Standard’s first "counterclaim” does not plead the law of Greece (see CPLR 3016, subd [e]) and we have neither been requested to take judicial notice of that law nor furnished the information necessary to our doing so (see CPLR 4511, subd [b]). It is not entirely clear, therefore, that Standard’s contentions that it acquired title upon acknowledging delivery after the weighing of the cheese and that Synergal’s acts thereafter constituted a wrongdoing can be sustained under the law of Greece, where the contract was to be performed and where the claimed wrongful acts occurred. If, however, we assume for purposes of decision that New York law applies, that title passed at Ioannina in view of the express provision for weighing and delivery there (cf. Uniform Commercial Code, § 2-319, subd [1], par [a]), and that Synergal’s acts in attempting to divert the first 300 barrels and in fact diverting the other 900 barrels to Fantis constituted a conversion, Standard still cannot sustain jurisdiction in this case.

The difficulty is that the conversion occurred either in Greece or on the high seas. The usual measure of damages for conversion is the value of the property at the time and place of conversion, plus interest (Wallingford v Kaiser, 191 NY 392; Adams v Loomis, 44 Hun 627, opn in 7 NY St Rep 592; Fuchsberg, Encyclopedia of New York Law, Damages, § 902). Profits lost are generally disallowed (Wehle v Haviland, 69 NY 448; Moravec v Grell, 78 App Div 146), though they may be recoverable if they may reasonably be expected to follow from the conversion (Barrington v Offenbach, 163 NYS 423; see 10 NY Jur, Conversion, § 75, p 591; Fuchsberg, Encyclopedia of New York Law, Damages, § 915). If, however, we assume that the allegation that Synergal is the "sole or dominant exporter and seller” of Greek feta cheese is sufficient to establish for jurisdictional purposes that the converted cheese could not be replaced by Standard and that it, therefore, would be entitled to lost profits if successful on its first counterclaim, there is still no basis for finding loss of profits from a New York transaction or reasonable foreseeability of such a loss. In final analysis the only possible connection between the claimed conversion and any injury or foreseeable consequence in New York is the fact that Standard is incorporated and maintains offices there. It has, however, long been held that the residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the. indirect financial loss resulting from the fact that the injured person resides or is domiciled there (see Sybron Corp. v Wetzel, 46 NY2d 197, 205; Kramer v Hotel Los Monteros, S. A., 57 AD2d 756, 757, app den 43 NY2d 649; Black v Oberle Rentals, 55 Misc 2d 398, 400; Lehigh Val. Inds. v Birenbaum, 527 F2d 87, 94; American Eutectic Welding Alloys Sales Co. v Dytron Alloys Corp., 439 F2d 428, 433; Friedr. Zoellner [New York] Corp. v Tex Metals Co., 396 F2d 300, 303; Chemical Bank v World Hockey Assn., 403 F Supp 1374, 1380; Spectacular Promotions v Radio Sta. WING, 272 F Supp 734, 736-737; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C302:20, pp 87-88; ibid., 1979-1980 Supp, pp 26-27; Siegel, New York Practice, § 88, p 105). If a plaintiff could satisfy the requirements of CPLR 302 (subd [a], par 3, cl [ii]) on so attenuated a consequence of defendant’s act as has been accepted by the courts below, it would "burden unfairly non-residents whose connection with the state is remote” (Memorandum of Judicial Conference, McKinney’s Session Laws of NY, 1966, p 2911; Twelfth Ann Report of NY Judicial Conference, 1967, p 342). So to hold would be contrary to the legislative intent thus expressed and to the rule that a statute is to be construed so as to avoid grave doubts concerning its constitutionality (McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, p 324).

For the foregoing reasons the order of the Appellate Division should be reversed, with costs, the third-party claims stated in Standard’s first and fourth counterclaims should be dismissed, and the certified question answered in the negative.

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

Order reversed, etc.

      . As to the first 300 barrels there was either no conversion, as the majority reasoned, or, in any event, no damage since Standard actually obtained possession of them.

      . For the genesis of the provision see Sybron Corp. v Wetzel (46 NY2d 197).

      .  Sybron Corp. v Wetzel (46 NY2d 197) is not to the contrary for we there found that the defendant who was accused of stealing plaintiffs trade secrets had actively solicited and obtained orders in New York from plaintiffs prior "major customer”, Eastman Kodak (46 NY2d, at pp 205-206). Here by Standard’s own admission, confirmed by the ultimate destination shown on the bill of lading for the first 300-barrel shipment, the cheese was to be delivered to Chicago, not New York. The probability of a direct New York injury is, therefore, at best speculative.

      .  We recognize that "foreseeability relates to forum consequences generally and not to the specific event which produced injury within the state” (Twelfth Ann Report of NY Judicial Conference, 1967, p 344), but note that here in view of the destination of the cheese there is no basis other than sheer speculation for finding loss of any New York sales. We are also aware of the Supreme Court’s holding in World-Wide Volkswagen Corp. v Woodson (444 US 286, 297) that "the foreseeability that is critical to due process analysis is * * * that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there”, but do not find it necessary to consider the effect of that holding on the provision under discussion since Standard has not established foreseeability under our more broadly worded statute.


author: Chief Judge Cooke.

text:
    In the Matter of Quinton A. (Anonymous), Appellant. The People of the State of New York, Respondent; Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued' January 3, 1980;
    decided February 20, 1980

      POINTS OF COUNSEL

      Janet R. Fink, Charles Schinitsky and Nancy Duncan for appellant.
    I. Subdivision 2-a of section 753-a of the Family Court Act is unconstitutional in that it deprives appellant of his right to due process and equal protection under the law. (Meachum v Fano, 427 US 215; Montanye v Haymes, 427 US 236; Morrissey v Brewer, 408 US 471; Board of Regents v Roth, 408 US 564; People ex rel. Wayburn v Schupf, 39 NY2d 682; Matter of Gault, 387 US 1; Breed v Jones, 421 US 519; Matter of Winship, 397 US 358; McKeiver v Pennsylvania, 403 US 528; Matter of Felder, 93 Misc 2d 369.) II. Subdivision 2-a of section 753-a of the Family Court Act should not have been applied as it directly and irreconcilably conflicts with the paramount intention and express provisions of article 7 of the Family Court Act. (Matter of Cecilia R., 36 NY2d 317; Matter of Andre L., 64 AD2d 479.) III. The Family Court committed reversible error in applying the mandatory placement provisions of subdivision 2-a of section 753-a of the Family Court Act in the absence of competent proof of age of the victim. (Matter of Winship, 397 US 358; Mullaney v Wilbur, 421 US 684; Berlin v Bulkowstein, 249 App Div 630; Hostetter v Goldenberg, 132 Misc 772; Nelson v X-Ray Systems, 46 AD2d 995; Matter of Robert P., 40 AD2d 638; Swanston v Blattberg, 61 AD2d 864; People v Roth, 11 NY2d 80; Williams v Alexander, 309 NY 283.) IV. The Family Court committed reversible error in admitting appellant’s statement into evidence. (Wong Sun v United States, 371 US 471; People v Waddy, 63 AD2d 492; Nardone v United States, 308 US 338; Brown v Illinois, 422 US 590; Draper v United States, 358 US 307; Brinegar v United States, 338 US 160; People v Oden, 36 NY2d 382; People v Valentine, 17 NY2d 128, 869; Terry v Ohio, 392 US 1; People v Evans, 43 NY2d 160; People v De Bour, 40 NY2d 210; People v Cantor, 36 NY2d 106.) V. The Family Court committed reversible error in not severing appellant’s case from that of Darrell R. and in considering their statement together. (Bruton v United States, 391 US 123; People v Payne, 35 NY2d 22; People v Armstrong, 64 AD2d 535; People v Salko, 60 AD2d 307; People v Meyers, 56 AD2d 853; People v Riservato, 51 AD2d 561; People v Cassidy, 30 AD2d 795; People v Bajramovoc, 28 AD2d 622.)

      Eugene Gold, District Attorney (A. David Stern of counsel), for respondent.
    I. Appellant fails to fulfill his burden of establishing the incorrectness of the determination of the court below with respect to the application of Roberson’s confession against him. (Bruton v United States, 391 US 123; People v McNeil, 24 NY2d 550; People v Rizzo, 40 NY2d 425; People v Clements, 37 NY2d 675, cert den sub nom. Metzger v New York, 425 US 911; People v Alexander, 37 NY2d 202; People v Glass, 43 NY2d 283; Chapman v California, 386 US 18; People v Almestica, 42 NY2d 222.) II. The victim’s detailed description of her assailants and Officer Herlihy’s observations established probable cause to arrest. Rights to counsel and silence were waived by appellant and his mother. Appellant’s confession was admissible. (Draper v United States, 358 US 307; Carroll v United States, 267 US 132; People v Russell, 34 NY2d 261; People v Valentine, 17 NY2d 128; People v Brady, 16 NY2d 186; People v Tolentino, 40 AD2d 596; Smith v United States, 358 F2d 833, 386 US 1008; Brinegar v United States, 338 US 160; People v White, 16 NY2d 270; People v Oden, 36 NY2d 382; Aguilar v Texas, 378 US 108.) III. Mrs. Schwartz’ age was proven by properly admitted hospital records and by observation of her as she testified by the trier of the facts. (Matter of Pell v Coveney, 37 NY2d 494; Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298; Williams v Williams, 23 NY2d 592; Abood v Hospital Ambulance Serv., 30 NY2d 295; Matter of Capone v Weaver, 6 NY2d 307; Matter of Astman v Kelly, 2 NY2d 567; Matter of Marcellus, 165 NY 70; Swarthout v Ranier, 143 NY 499; McSweeney v Bazinet, 269 App Div 213, 295 NY 797; Smith v Farley, 155 App Div 813.) IV. Restrictive placement of juvenile delinquents who inflict serious physical injury on persons over 62 years old during the commission of designated felonies promotes the legislative scheme reflected in the Juvenile Justice Reform Act of 1976. Established principles of statutory construction require the enforcement of subdivision 2-a of section 753-a of the Family Court Act as enacted. (McKeiver v Pennsylvania, 403 US 528.) V. Appellant’s due process and equal protection rights were not violated by enforcement of subdivision 2-a of section 753-a of the Family Court Act.

      Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), intervenor-respondent.
    I. Appellant lacks standing to attack the application of subdivision 2-a of section 753-a of the Family Court Act to him. (Chicot County Dist. v Bank, 308 US 371; Long v Somervell, 175 Misc 119, 261 App Div 946; Federation of Labor v Mc-Adory, 325 US 450; United States v Herrera, 584 F2d 1137.) II. Subdivision 2-a of section 753-a is consistent with article 7 of the Family Court Act as a whole and relevant provisions of article 7 in particular. (Matter of Vega v Bell, 47 NY2d 543; People v Newman, 32 NY2d 379, 414 US 1163; Matter of Kyle S., 64 AD2d 666; Matter of Richard C., 43 AD2d 862; Matter of Harold F. v Helen R, 90 Misc 2d 122; Matter of Jose L., 64 AD2d 598.) III. Subdivision 2-a of section 753-a of the Family Court Act satisfies procedural due process. (San Antonio School Dist. v Rodriguez, 411 US 1; Meachum v Fano, 427 US 215; Black v Beame, 419 F Supp 599; Child v Beame, 412 F Supp 593; Matter of Levy, 38 NY2d 653; Jones v Beame, 45 NY2d 402; McKeiver v Pennsylvania, 403 US 528; Kent v United States, 383 US 541; Matter of Gault, 381 US 1; Matter of Winship, 397 US 358.) IV. Subdivision 2-a of section 753-a of the Family Court Act satisfies substantive due process. (Mc-Keiver v Pennsylvania, 403 US 528; O’Connor v Donaldson, 422 US 563; Lora v Board of Educ., 456 F Supp 1211; Nelson v Heyne, 491 F2d 352, 417 US 976; People ex rel. Wayburn v Schupf, 39 NY2d 682; Smith v Organization of Foster Families, 431 US 816; Dandridge v Williams, 397 US 471; Matter of Lavette M., 35 NY2d 136.) V. Subdivision 2-a of section 753-a of the Family Court Act satisfied equal protection. (Meachum v Fano, 427 US 215; Corbitt v New Jersey, 439 US 212; Craig v Boren, 429 US 190; Matter of Patricia A., 31 NY2d 83; Matter of Lalli, 43 NY2d 65; People v Drayton, 47 AD2d 952, 39 NY2d 580; Carmona v Ward, 576 F2d 405; Drayton v New York, 556 F2d 644, 434 US 958; Royster Guano Co. v Virginia, 253 US 412; McGowan v Maryland, 366 US 420.)
   OPINION OF THE COURT

Chief Judge Cooke.

We hold that subdivision 2-a of section 753-a of the Family Court Act, which provides for mandatory restrictive placement of the State’s most violent juvenile offenders, is constitutional. However, an error in the fact-finding stage of this proceeding mandates reversal of appellant’s juvenile delinquency adjudication.

The statute under attack here provides that, where a youth between 14 and 15 years of age is found to have committed a designated felony act involving the infliction of serious physical injury upon a person who is 62 years of age or more, the Family Court is required to order restrictive placement of the juvenile in a secure facility operated by the Division for Youth (Family Ct Act, § 753-a, subd 2-a). After a fact-finding hearing, appellant was found to have committed acts which, if committed by an adult, would have constituted the crimes of robbery in the first degree (Penal Law, § 160.15) and burglary in the second degree (Penal Law, § 140.25), both designated felony acts (Family Ct Act, § 712, subd [h]). Since appellant was found to have caused serious physical injury (Penal Law, § 10.00, subd 10) to a 73-year-old woman, at the subsequent dispositional hearing Family Court was obliged to order a restrictive placement (Family Ct Act, § 753-a, subd 2-a). On this appeal, appellant maintains that the mandatory nature of his restrictive placement denied him due process and equal protection of law.

Before addressing the constitutional challenge, the relevant statutory scheme should be outlined. Alarmed at what was perceived to be a dramatic increase in crime by seemingly remorseless juveniles, and in an attempt to deal more effectively with these juveniles without surrendering them to the criminal justice system, the Legislature enacted the Juvenile Justice Reform Act of 1976 (L 1976, ch 878). The purpose of the juvenile justice system was redefined to direct the courts to consider "the needs and best interests of the [juvenile] as well as the need for protection of the community” (Family Ct Act, § 711; see People ex rel. Wayburn v Schupf, 39 NY2d 682, 687). The act accommodates the needs of the juvenile and society at large by affording the offender intensive rehabilitative treatment, albeit in a setting removed from his previous environment (see, generally, Gottfried, Barsky & Baron, Juvenile Crime: Report of Recommendations and Summary of Findings, NYS Assembly Comm on Child Care [1976]).

Perhaps the most significant change made by the Juvenile Justice Reform Act is availability of restrictive placements for those juveniles found to have committed a designated felony act. In most cases, restrictive placement is ordered where the court, after a dispositional hearing, finds that the juvenile requires such placement (Family Ct Act, § 753, subd 1; § 753-a, subd 2). But where a juvenile is found to have committed a designated felony act which causes serious physical injury to a person 62 years of age or older, the court must restrictively place the juvenile without regard to the availability of other alternatives for treatment (id., § 753-a, subd 2-a). The majority of restrictive placements are composed of three distinct phases during which the juvenile is afforded rehabilitative and therapeutic treatment: an initial period of six months to one year in a "secure facility” (Executive Law, § 515-a), followed by a second phase of the same duration in a residential facility and concluding with "intensive supervision” until expiration of the three-year placement period. During the placement period, the juvenile may not be discharged from the custody of the Division for Youth, but placement may be extended, after a hearing, until the juvenile reaches 21 years of age (Family Ct Act, § 753-a, subd 4; for a more detailed analysis of the Juvenile Justice Reform Act of 1976 see 45 Fordham L Rev 408).

Appellant maintains that the mandatory aspect of subdivision 2-a of section 753-a transgresses both his procedural and substantive rights. This argument proceeds on the premise that during the adjudicatory stage of a juvenile proceeding the juvenile surrenders some of the basic rights which are available in the criminal justice system. Notable among these are the right to trial by jury (McKeiver v Pennsylvania, 403 US 528), bail (People ex rel. Wayburn v Schupf, supra) and indictment (see Matter of Vega v Bell, 47 NY2d 543). This relinquishment, appellant maintains, imposes a correlative duty on the State to furnish treatment in the least restrictive setting appropriate to the juvenile’s individualized needs as well as the needs of the community. The statute, however, renders the presentation of evidence at the dispositional hearing an empty ritual except for the limited purpose of determining the initial duration of secure confinement. This loss of liberty with no evidence that the restrictive placement was necessary for community safety or appropriate for his needs constitutes, according to appellant, a deprivation of due process.

In assessing appellant’s due process challenge, it is well to remember that the primary thrust of article 7 of the Family Court Act is treatment and rehabilitation, rather than deterrence or retribution — concerns traditionally associated with criminal law (see Mack, The Juvenile Court, 23 Harv L Rev 104). Hence, in most cases the Legislature has chosen not to brand the juvenile who commits an act which would otherwise be a crime a criminal, but recognizes that he is a person not fully responsible for his conduct (see Matter of Samuel W., 24 NY2d 196, revd on other grounds sub nom. Matter of Winship, 397 US 358; but see L 1978, chs 478, 481). It has taken a path designed not solely to punish the malefactor but to extinguish the causes of juvenile delinquency through rehabilitation and treatment (see McKeiver v Pennsylvania, supra).

At the same time, however, it must be remembered that proceedings such as this are, at the very least, quasi-criminal in nature (Matter of Gregory W., 19 NY2d 55, 62). While supervision and even confinement of the juvenile is aimed primarily at rehabilitation, the incapacitative and deterrent aspects of restrictive placement cannot be disguised. Any restrictive placement necessarily combines, in varying degrees, elements of deterrence, punishment and rehabilitation. Enactment of the Juvenile Justice Reform Act, where the Legislature recognized that confinement of juveniles, whose conduct endangers the public safety as a legitimate State concern, acknowledges this fact. Good intentions on the part of the court and flexible vocabulary as to the goals of the juvenile justice system do not alter this reality.

Thus, restrictive placement is a deprivation of liberty which the State may not accomplish without first affording appellant due process of law. But given a finding beyond a reasonable doubt (Family Ct Act, § 744, subd [b]), that appellant committed acts which would have been felonious if committed by an adult, appellant’s liberty interest has been diminished to the point where utilization of a rehabilitative program requiring restrictive placement is not violative of due process unless the selection of that program lacks a rational basis or its application constitutes cruel and unusual punishment (cf. Meachum v Fano, 427 US 215, 224). Thus, the notion that, in the postadjudicative stage, therapeutic treatment in the least restrictive setting is the cornerstone for an adjudication of juvenile delinquency is rejected. It is unnecessary to decide whether there is some right to treatment within the confines of the due process clause (compare Matter of Lavette M., 35 NY2d 136, 142, and Rouse v Cameron, 373 F2d 451, 452-456, with O’Connor v Donaldson, 422 US 563, 578-579 [Burger, Ch. J., concurring]), as it is undisputed that restrictively placed juveniles are indeed being afforded treatment.

It may properly be taken that the Legislature concluded, in the light of the statistics and other evidence available to it, that the increase in juvenile crime and in crimes of violence against senior citizens were causally related. "There is generally a very strong presumption that 'the Legislature has investigated and found the existence of a situation showing or indicating the need for or desirability of the legislation’ ” (Matter of Taylor v Sise, 33 NY2d 357, 364, quoting Matter of Van Berkel v Power, 16 NY2d 37, 40). On this basis it is rational further to conclude that juvenile offenders who perpetrate crimes of violence on older persons, most exposed to depredation and least able to protect themselves, may properly be classified for treatment purposes in a different category from other juvenile offenders, and that their rehabilitation may best be attempted, and hopefully accomplished, in the controlled setting of restrictive placement. At the same time and incidentally the legitimate interests in the protection of the community and particularly its older citizens will be advanced. It is for the Legislature to determine the proper environment for that treatment within constitutional bounds; the courts are ill-equipped to decide which of the myriad of views regarding the treatment of juveniles best serves the interest of all parties concerned (cf. Jones v Beame, 45 NY2d 402, 408).

In making this determination, moreover, the Legislature is certainly competent to take into account not only the rehabilitative needs of the juvenile himself, but also the nature . of his offense and the interests of the community. Thus, in mandating restrictive placement for youths such as appellant, the Legislature may be assumed to have recognized that for many juveniles treatment in the very environment that spawned the delinquency is inimical to vigorous rehabilitative efforts. For some, treatment in an institution removed from the setting in which the previous misconduct occurred is a more suitable alternative. Mandatory restrictive placement of those who prey on the elderly additionally affords the community a measure of protection from its most violent children while affording those children the individualized treatment they so desperately require (see Executive Law, §§ 515-a, 516).

Appellant’s equal protection argument is bottomed on the assumption that the discriminatory treatment visited upon juveniles who perpetrate crimes against the elderly may only be justified upon the showing of a compelling State interest. Appellant thus maintains that strict scrutiny is the proper test. However, this test is invoked only where the challenged law classifies persons along suspect lines, e.g., race, or where it impinges upon some fundamental constitutional right such as liberty (see, e.g., Loving v Virginia, 388 US 1; People ex rel. Wayburn v Schupf, 39 NY2d 682, supra [pretrial detention of juveniles]). Appellant concedes that subdivision 2-a does not involve any suspect class and it is obvious that the juvenile delinquency adjudication itself constitutionally diminished appellant’s fundamental liberty interest. Since only the extent and duration of that deprivation is at issue here, there is no occasion to apply the strict scrutiny standard of review. Rather, the inquiry is whether it was rational for the Legislature to have afforded juveniles who commit crimes of violence against the elderly treatment disparate from those who perpetrate crime against the general populace (see Meachum v Fano, 427 US 215, supra).

In enacting subdivision 2-a the Legislature was entitled to take into account not only the rehabilitative needs of juveniles but the special problems juvenile crime poses to the elderly as well. As stated, the elderly are peculiarly susceptible to crimes of violence for age has, to a large extent, diminished their physical capacities marking them out as easy prey for the criminally disposed. The Legislature thus could reasonably conclude that juveniles who prey upon the elderly present a problem requiring unique treatment. In this regard, it is important to recognize the means selected by the Legislature are directed at conduct deemed to present a special and serious problem and amounts to a considered policy choice by that branch of government vested with the power to make that selection (cf. Corbitt v New Jersey, 439 US 212).

Equal protection does not demand that classifications be ideal. Indeed where the Legislature undertakes to act in areas fraught with rehabilitative and sociological uncertainties, courts are reluctant to intervene. This is true in part because legislative policy entails an assessment of contemporary standards and community needs. This deference is enhanced with the recognition that specification of the nature of treatment to be afforded miscreant juveniles is peculiarly one within legislative parameters.

Notwithstanding the constitutionality of subdivision 2-a of section 753-a of the Family Court Act, an error of magnitude in the fact-finding stage of this proceeding requires reversal of appellant’s delinquency adjudication.

Prior to the fact-finding hearing, Family Court was aware that both appellant and his alleged accomplice, one Darrell R, had made statements inculpating themselves in criminal activity. Though both statements were subsequently ruled voluntary and hence admissible, their content was markedly different. Darrell admitted that on the date complainant was robbed he had taken $15 from an elderly woman matching complainant’s description at her address in a manner consistent, to a fault, with that in which complainant was robbed. Darrell indicated that appellant had assisted him in perpetrating the robbery. Appellant’s statement, however, was appreciably less detailed than that of his cohort. While appellant admitted taking an undisclosed sum of money from a woman, he did not identify the date, time, location or the victim of the transaction. Moreover, while Darrell admitted striking complainant in a manner consistent with her testimony, appellant specifically denied inflicting any injuries upon the victim. Complainant could identify neither of her attackers.

Family Court denied appellant’s motion to sever and, over strenuous objection, ruled that the confessions were interlocking so that the two statements could be "read together and * * * supply the sufficient connection” to the offenses charged in the petition. Even given the dubious assumption that the two statements were in fact interlocking (see People v McNeil, 24 NY2d 550; Parker v Randolph, 442 US 62), it is a fundamental principle of evidence that, with limited exceptions not relevant here, a confession may be considered only against its maker (People v Payne, 35 NY2d 22, 26; People v Jackson, 22 NY2d 446, 450; People v Ryan, 263 NY 298, 305; People v Fisher, 249 NY 419, 432). In some cases, the court may avoid the necessity for a severance, by forcefully cautioning the trier of fact that admissions of one defendant may not be considered against another (compare People v Safian, 46 NY2d 181, with Bruton v United States, 391 US 123).

Here, however, rather than receiving each statement into evidence only against its maker, the court expressly stated that Darrell’s confession could be used to supply critical details absent from the statement of petitioner. This ruling mandates reversal.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court, Kings County, for a new hearing.

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

Order reversed, etc.

        The essence of procedural due process is that a person must be afforded notice and an opportunity to be heard before government may deprive him of liberty or a recognized property interest (Memphis Light, Gas & Water Div. v Craft, 436 US 1, 9; Board of Regents v Roth, 408 US 564, 577). Since Family Court may not order restrictive placement until after it affords a juvenile a statutorily required dispositional hearing on notice (Family Ct Act, §§ 743, 746, 753), the statute fully comports with procedural due process strictures.