author: Chief Judge Cooke.

text:
    The People of the State of New York, Respondent, v John Eulo, Appellant. The People of the State of New York, Respondent, v Robert Bonilla, Appellant.
    Argued September 5, 1984;
    decided October 30, 1984

      POINTS OF COUNSEL

      Robert F. Quinlan for appellant in the first above-entitled case.
    I. Defendant-appellant was denied due process because the proof that his act was the cause of death was insufficient. (Matter of Eichner [Fox], 73 AD2d 431, mod sub nom. Matter of Storar, 52 NY2d 363; People v Stewart, 40 NY2d 692; Jackson v Virginia, 443 US 307; Murphy v American Home Prods. Corp., 58 NY2d 293; People v Shafer, 30 AD2d 213; People v Scott, 26 NY2d 286; People v Gottlieb, 36 NY2d 629; People v Harding, 37 NY2d 130; People v Cobos, 57 NY2d 798; People v Le Mieux, 51 NY2d 981.) II. The trial court erred in allowing witnesses to take the ultimate question of guilt from the jury, denying defendant-appellant due process of law. (Doughtery v Milliken, 163 NY 527; De Long v County of Erie, 60 NY2d 296; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; People v Cronin, 60 NY2d 430; People v Creasy, 236 NY 205; People v Miller, 257 NY 54; People v Higgins, 5 NY2d 607; People v Raco, 68 AD2d 258; People v Montesano, 84 AD2d 369; People v Graydon, 43 AD2d 842.) III. The trial court erred in failing to suppress the alleged confession and admissions of defendant-appellant as being involuntarily obtained. (Clewis v Texas, 386 US 707; Rogers v Richmond, 365 US 534; Blackburn v Alabama, 361 US 199; People v Durante, 48 AD2d 962; People v Tarsia, 50 NY2d 1; People v Bevilacqua, 45 NY2d 508; People v Coker, 103 Misc 2d 703; People v Sunset Bay, 76 AD2d 592.) IV. The trial court erred in submitting both the intentional and reckless homicide counts to the jury and in allowing those inconsistent verdicts to stand. (People v Patterson, 39 NY2d 288; People v Poplis, 30 NY2d 85; Darry v People, 10 NY 120; People v Kibbe, 35 NY2d 407; People v Lilly, 71 AD2d 393; People v Brown, 32 AD2d 760, 27 NY2d 499; People v Shelton, 88 Misc 2d 136; People v Dercole, 72 AD2d 318.) V. The trial court erred when it denied defendant-appellant’s application for youthful offender treatment as a matter of law.

      Patrick Henry, District Attorney {Mark D. Cohen of counsel), for respondent in the first above-entitled case.
    I. Appellant was properly convicted upon proof beyond a reasonable doubt that his act was the cause of death herein following the court’s proper instructions on the matter. (Evans v People, 49 NY 86; Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002; People v Bonilla, 95 AD2d 396, 60 NY2d 825; Matter of Mora, 107 Misc 2d 290; People v Gonzales, 56 NY2d 1001; People v Jones, 55 NY2d 771; People v Ditta, 52 NY2d 657; People v Smith, 55 NY2d 945; People v Pena, 50 NY2d 400; People v Montanez, 41 NY2d 53.) II. The admission into evidence of the expert testimony of the medical examiner concerning suicide and evidence concerning firearms discharge residue was proper; moreover, a detective’s statement concerning his experience as a homicide detective was, in context and under nonobjected to cautionary instructions, proper. (People v Pavao, 59 NY2d 282; People v Whalen, 59 NY2d 273; Matter of Gonzalez v State Liq. Auth., 30 NY2d 108; People v Cobos, 57 NY2d 798; People v Dekle, 56 NY2d 835; People v West, 56 NY2d 662; People v Robbins, 278 App Div 592, 302 NY 885; People v McCullough, 73 AD2d 310; Haley v Ohio, 332 US 596.) III. Appellant’s confession was voluntary beyond a reasonable doubt. (People v Yukl, 25 NY2d 585; People v Boone, 22 NY2d 476, cert den sub nom. Brandon u New York, 393 US 991; People v Leonti, 18 NY2d 384; People v Curatolo, 76 AD2d 524; People v McMillian, 56 AD2d 662; People v Chaffee, 55 AD2d 736; People v Pooler, 41 AD2d 1011; People v James, 24 AD2d 608, 17 NY2d 552; People v Huntley, 15 NY2d 72; People v Danzinger, 41 NY2d 1092.) IV. The verdict was not repugnant nor did appellant properly preserve his objection in this regard. (People v Satloff 56 NY2d 745; People v Stahl, 53 NY2d 1048; People v McDavis, 97 AD2d 302; People v Figueroa, 96 AD2d 515; People v Tucker, 55 NY2d 1; People v Bullis, 30 AD2d 470; People v Dercole, 72 AD2d 318; People v Murray, 40 NY2d 327; People v Shelton, 88 Misc 2d 136.) V. The trial court’s denial of youthful offender treatment in its discretion is not reviewable in this court and was, iñ any event, wholly proper. (People v Drayton, 47 AD2d 952, 39 NY2d 580; People v Bruce, 57 AD2d 1024; People v Santiago, 51 AD2d 1, revd on other grounds sub nom. People v Carlos S., 40 NY2d 990; People v Kalicki, 49 AD2d 1032; People v Rosati, 39 AD2d 592.)

      David Samel and William E. Hellerstein for appellant in the second above-entitled case.
    I. The evidence was insufficient to prove that appellant caused the death of Orlando Miranda, and thus his manslaughter conviction violated his right to due process. (Jackson v Virginia, 443 US 307; Matter of Eichner [Fox], 73 AD2d 431, mod sub nom. Matter of Storar, 52 NY2d 363; Murphy v American Home Prods. Corp., 58 NY2d 293; People v Stewart, 40 NY2d 692; People v Reed, 40 NY2d 204; People v Kane, 213 NY 260; People v Cobos, 57 NY2d 798; People v Le Mieux, 51 NY2d 981.) II. The court’s refusal to instruct the jury on the definition of death, a material legal principle of the case, violated CPL 300.10 and deprived appellant of due process of law. (Kal

      isch-Jarcho, Inc. v City of New York, 58 NY2d 377; Williams v United States, 131 F2d 21.)

      Elizabeth Holtzman, District Attorney (.Rebecca J. Clement and Barbara D. Underwood of counsel), for respondent in the second above-entitled case.
    I. The People proved beyond a reasonable doubt that defendant caused Miranda’s death, and that the nephrectomy was not the sole cause of death. (People v Stewart, 40 NY2d 692; People v Kibbe, 35 NY2d 407; People v Brengard, 265 NY 100; Cox v People, 80 NY 500.) II. Defendant has not preserved his claim that the court should have charged a cardiorespiratory definition of death. In any event, the charge concerning death was correct. Moreover, if there was error, it was harmless. (People v De Renzzio, 19 NY2d 45; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v English, 75 AD2d 981; People v Jenman, 296 NY 269; Stokes v People, 53 NY 164; Matter of Mora, 107 Misc 2d 290; Henderson v Kibbe, 431 US 145; Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002; Murphy v American Home Prods. Corp., 58 NY2d 293; People v Benzinger, 36 NY2d 29.)

      Jeffrey M. McCrone for Organ Procurement Agencies of the State of New York, amicus curiae.

    I. Brain death has been recognized and accepted by lower courts in New York. (Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002; Matter of Mora, 107 Misc 2d 290.) II. Brain death has been widely recognized and accepted by other States. III. The decision of the court below contains language which is unsupported by the record in this case, is inconsistent with precedent cases in the State of New York and its sister States, and which has an undesirable effect on citizens of this State in need of certain usual, customary and accepted medical treatment. (Matter of Eichner [Fox], 73 AD2d 431.) IV. This court should act to recognize and accept brain death as a standard for determination of death. (Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002; Matter of Storar, 52 NY2d 363.)
   OPINION OF THE COURT

Chief Judge Cooke.

These appeals involve a question of criminal responsibility in which defendants, charged with homicide, contend that their conduct did not cause death.

The term “death”, as used in this State’s statutes, may be construed to embrace a determination, made according to accepted medical standards, that a person has suffered an irreversible cessation of breathing and heartbeat or, when these functions are artificially maintained, an irreversible cessation of the functioning of the entire brain, including the brain stem. Therefore, a defendant will not necessarily be relieved of criminal liability for homicide by the removal of the victim’s vital organs after the victim has been declared dead according to brain-based criteria, notwithstanding that, at that time, the victim’s heartbeat and breathing were being continued by artificial means.

I

People v Eulo

On the evening of July 19, 1981, defendant and his girlfriend attended a volunteer firemen’s fair in Kings Park, Suffolk County. Not long after they arrived, the two began to argue, reportedly because defendant was jealous over one of her former suitors, whom they had seen at the fair. The argument continued through the evening; it became particularly heated as the two sat in defendant’s pick-up truck, parked in front of the home of the girlfriend’s parents. Around midnight, defendant shot her in the head with his unregistered handgun.

The victim was rushed by ambulance to the emergency room of St. John’s Hospital. A gunshot wound to the left temple causing extreme hemorrhaging was apparent. A tube was placed in her windpipe to enable artificial respiration and intravenous medication was applied to stabilize her blood pressure.

Shortly before 2:00 a.m., the victim was examined by a neurosurgeon, who undertook various tests to evaluate damage done to the brain. Painful stimuli were applied and yielded no reaction. Various reflexes were tested and, again, there was no response. A further test determined that the victim was incapable of spontaneously maintaining respiration. An electroencephalogram (EEC) resulted in “flat,” or “isoelectric”, readings indicating no activity in the part of the brain tested.

Over the next two days, the victim’s breathing was maintained solely by a mechanical respirator. Her heartbeat was sustained and regulated through medication. Faced with what was believed to be an imminent cessation of these two bodily functions notwithstanding the artificial maintenance, the victim’s parents consented to the use of certain of her organs for transplantation.

On the afternoon of July 23, a second neurosurgeon was called in to evaluate whether the victim’s brain continued to function in any manner. A repetition of all of the previously conducted tests led to the same diagnosis: the victim’s entire brain had irreversibly ceased to function. This diagnosis was reviewed and confirmed by the Deputy Medical Examiner for Suffolk County and another physician.

The victim was pronounced dead at 2:20 p.m. on July 23, although at that time she was still attached to a respirator and her heart was still beating. Her body was taken to a surgical room where her kidneys, spleen, and lymph nodes were removed. The mechanical respirator was then disconnected, and her breathing immediately stopped, followed shortly by a cessation of the heartbeat.

Defendant was indicted for second degree murder. After a jury trial, he was convicted of manslaughter. The Appellate Division unanimously affirmed the conviction, without opinion.

People v Bonilla

At approximately 10:30 p.m. on February 6,1979, a New York City police officer found a man lying faceup in a Brooklyn street with a bullet wound to the head. The officer transported the victim in his patrol car to the Brookdale Hospital, where he was placed in an intensive care unit. Shortly after arriving at the hospital, the victim became comatose and was unable to breathe spontaneously. He was placed on a respirator and medication was administered to maintain his blood pressure.

The next morning, the victim was examined by a neurologist. Due to the nature of the wound, routine tests were applied to determine the level, if any, of the victim’s brain functions. The doctor found no reflex reactions and no response to painful stimuli. The mechanical respirator was disconnected to test for spontaneous breathing. There was none, and the respirator was reapplied. An EEG indicated an absence of activity in the part of the brain tested. In the physician’s opinion, the bullet wound had caused the victim’s entire brain to cease functioning.

The following day, the tests were repeated and the same diagnosis was reached. The victim’s mother had been informed of her son’s condition and had consented to a transfer of his kidneys and spleen. Death was pronounced following the second battery of tests and, commencing at 9:25 p.m., the victim’s kidneys and spleen were removed for transplantation. The respirator was then disconnected, and the victim’s breathing and heartbeat stopped.

An investigation led to defendant’s arrest. While in police custody, defendant admitted to the shooting. He was indicted for second degree murder and criminal possession of a weapon. A jury convicted him of the weapons count and of first degree manslaughter. The conviction was affirmed by a divided Appellate Division.

II

Defendants’ principal point in each of these appeals is that the respective Trial Judges failed to adequately instruct the juries as to what constitutes a person’s death, the time at which criminal liability for a homicide would attach. It is claimed that in New York, the time of death has always been set by reference to the functioning of the heart and the lungs; that death does not occur until there has been an irreversible cessation of breathing and heartbeat.

There having been extensive testimony at both trials concerning each victim’s diagnosis as “brain dead,” defendants argue that, in the absence of clear instruction, the juries may have erroneously concluded that defendants would be guilty of homicide if their conduct was the legal cause of the victims’ “brain death” rather than the victims’ ultimate state of cardiorespiratory failure. In evaluating defendants’ contentions, it is first necessary to review: how death has traditionally been determined by the law; how the principle of “brain death” is now sought to be infused into our jurisprudence; and, whether, if at all, this court may recognize a principle of “brain death” without infringing upon a legislative power or prerogative.

(a)

A person’s passing from life has long been an event marked with a variety of legal consequences. A determination of death starts in motion the legal machinery governing the disposition of the deceased’s property (see, generally, EPTL arts 3,4, 5 and 6). It serves to terminate certain legal relationships, including marriage (see NY Jur, Domestic Relations, § 1), and business partnerships (see Partnership Law, § 62, subd 4). The period for initiation of legal actions brought against, by, or on behalf of the deceased is extended (see CPLR 210). And, in recent times, death marks the point at which certain of the deceased’s organs, intended to be donated upon death, may be transferred (see Public Health Law, § 4301, subd 1). In the immediate context, pertinent here, determination of a person’s “death” is relevant because our Penal Law defines homicide in terms of “conduct which causes the death of a person” (Penal Law, § 125.00 [emphasis added]).

Death has been conceptualized by the law as, simply, the absence of life: “Death is the opposite of life; it is the termination of life” (Evans v People, 49 NY 86, 90). But, while erecting death as a critical milepost in a person’s legal life, the law has had little occasion to consider the precise point at which a person ceases to live.

When the question arises as to when death occurs, it has been deemed one of fact (see Matter of Di Bella, 279 App Div 689), in which the fact finder may be called upon to evaluate expert medical testimony (see id.; Matter of Bucci, 57 Misc 2d 1001; Matter of Rose, 201 Misc 470). This has usually been in the context of an attempt by parties to prove the relative survivorship of two or more people killed in a common disaster, when the order of death affected the distribution of the decedents’ estates. And, while many of the efforts by parties attempting to prove survivorship are based on circumstantial evidence as to the relative times of death (see Matter of Di Bella, supra [evidence that wife suffered from asthma and would suffocate in shorter time]; Matter ofBucci, supra [presence of carbon monoxide in the lungs of only one of the decedents]; Matter of Hayward, 143 Misc 401 [greater presence of carbon monoxide in lungs and comparatively greater physical warmth of one corpse]; see, also, People v Lipsky, 57 NY2d 560), it is clear that the criteria used for determining death have been the medical standards (see Matter of Bausch, 100 Misc 2d 817, 818) of irreversible cessation of cardiac and respiratory functions (cf. Matter of Rose, 201 Misc 470, 472, supra; see, also, People v Dlugash, 41 NY2d 725, 730-731; Smith v Smith, 229 Ark 579, 586-587; Thomas v Anderson, 96 Cal App 2d 371, 375).

(b)

Within the past two decades, machines that artificially maintain cardiorespiratory functions have come into widespread use. This technical accomplishment has called into question the universal applicability of the traditional legal and medical criteria for determining when a person has died.

These criteria were cast into flux as the medical community gained a better understanding of human physiology. It is widely understood that the human brain may be anatomically divided, generally, into three parts: the cerebrum, the cerebellum, and the brain stem. The cerebrum, known also as the “higher brain,” is deemed largely to control cognitive functions such as thought, memory, and consciousness. The cerebellum primarily controls motor coordination. The brain stem, or “lower brain,” which itself has three parts known as the midbrain, pons, and medulla, controls reflexive or spontaneous functions such as breathing, swallowing, and “sleep-wake” cycles.

In addition to injuries that directly and immediately destroy brain tissue, certain physical traumas may indirectly result in a complete and irreversible cessation of the brain’s functions. For example, a direct trauma to the head can cause great swelling of the brain tissue, which, in turn, will stem the flow of blood to the brain. A respiratory arrest will similarly cut off the supply of oxygen to the blood and, hence, the brain. Within a relatively short period after being deprived of oxygen, the brain will irreversibly stop functioning. With the suffocation of the higher brain all cognitive powers are lost and a cessation of lower brain functions will ultimately end all spontaneous bodily functions.

Notwithstanding a total irreversible loss of the entire brain’s functioning, contemporary medical techniques can maintain, for a limited period, the operation of the heart and the lungs. Respirators or ventilators can substitute for the lower brain’s failure to maintain breathing. This artificial respiration, when combined with a chemical regimen, can support the continued operation of the heart. This is so because, unlike respiration, the physical contracting or “beating” of the heart occurs independently of impulses from the brain: so long as blood containing oxygen circulates to the heart, it may continue to beat and medication can take over the lower brain’s limited role in regulating the rate and force of the heartbeat.

It became clear in medical practice that the traditional “vital signs” — breathing and heartbeat — are not independent indicia of life, but are, instead, part of an integration of functions in which the brain is dominant. As a result, the medical community began to consider the cessation of brain activity as a measure of death.

The movement in law towards recognizing cessation of brain functions as criteria for death followed this medical trend. The immediate motive for adopting this position was to ease and make more efficient the transfer of donated organs. Organ transfers, to be successful, require a “viable, intact organ.” Once all of a person’s vital functions have ceased, transferable organs swiftly deteriorate and lose their transplant value. The technical ability to artificially maintain respiration and heartbeat after the entire brain has ceased to function was sought to be applied in cases of organ transplant to preserve the viability of donated organs.

Thus, the first legal recognition of cessation of brain functions as a criterion for determining death came in the form of a Kansas statute enacted in 1970. Denominated “[a]n Act relating to and defining death,” the statute states, in part, that death will be deemed to have occurred when a physician applying ordinary medical standards determines that there is an “absence of spontaneous respiratory and cardiac functions and * * * attempts at resuscitation are considered hopeless * * * or * * * there is the absence of spontaneous brain function.”

In the years following enactment of this statute, a growing number of sister States enacted statutes of their own. Some opted for the Kansas approach. Others defined death solely in terms of brain-based criteria as determined by accepted methods of medical practice. And still others retain the cardiorespiratory yardstick, but provide that when artificial means of sustaining respiration and heartbeat preclude application of the traditional criteria, death may be determined according to brain-based criteria, namely the irreversible cessation of brain functions. In the absence of any statute defining death, some jurisdictions have judicially adopted brain-based criteria for determining death. Professional and quasi-governmental groups (including the American Bar Association, the American Medical Association, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, and the National Conference of Commissioners on Uniform State Laws) have jointly indorsed a single standard that includes both cardiorespiratory and brain-based criteria.

(c)

In New York, the term “death”, although used in many statutes, has not been expressly defined by the Legislature. This raises the question of how this court may construe these expressions of the term “death” in the absence of clarification by the Legislature. When the Legislature has failed to assign definition to a statutory term, the courts will generally construe that term according to “its ordinary and accepted meaning as it was understood at the time” (People ex rel. Lichtenstein v Langan, 196 NY 260, 264). If the term at issue has been judicially defined prior to its use in a statute, however, that definition will be assigned to the term, absent contrary indications (People v Richards, 108 NY 137; see People v Most, 128 NY 108, 113; cf. Orinoco Realty Co. v Bandler, 233 NY 24). In every case, of course, the term must be read in accordance with the apparent purpose of the statute in which it is found (see People v Ryan, 274 NY 149; People v Kaye, 212 NY 407).

Bearing these principles in mind, it must be added that statutory construction is not “a ritual to be observed by unimaginative adherence to well-worn professional phrases” (Frankfurter, Some Reflections on the Reading of Statutes, 47 Col L Rev 527, 529). For, as this court has observed, “[f]ew words are so plain that the context or the occasion is without capacity to enlarge or narrow their extension” (Surace v Danna, 248 NY 18, 21). This is particularly true when a “word * * * must be applied under changed conditions” (Dixon v Robbins, 246 NY 169, 173; see, also, People v Hines, 284 NY 93,101-103). The guiding principle is that there must always be fidelity to the fair import of the term (see Dixon v Robbins, supra).

It has been called to this court’s attention that the Legislature has, on a number of occasions, had bills before it that would expressly recognize brain-based criteria for determining death and has taken no affirmative action (see People v Bonilla, 95 AD2d 396,402, n 5 [opn per Rubin, J.]). This legislative void in no way impedes this court from fulfilling its obligation to construe laws of the State. Indeed, advances made in medical science have caused a focus on the issues of when a jury may find criminal responsibility for homicide, of when physicians may transfer donated organs, and of when a person’s body may be accorded the dignity of final repose. It is incumbent upon this court to instill certainty and uniformity in these important areas.

We hold that a recognition of brain-based criteria for determining death is not unfaithful to prior judicial definitions of “death”, as presumptively adopted in the many statutes using that term. Close examination of the common-law conception of death and the traditional criteria used to determine when death has occurred leads inexorably to this conclusion.

Courts have not engaged in a metaphysical analysis of when life should be deemed to have passed from a person’s body, leaving him or her dead. Rather, they have conceptualized death as the absence of life, unqualified and undefined (see Evans v People, 49 NY 86, 90, supra). On a practical level, this broad conception of death as “the opposite of life” was substantially narrowed through recognition of the cardiorespiratory criteria for determining when death occurs. Under these criteria, the loci of life are the heart and the lungs: where there is no breath or heartbeat, there is no life. Cessation manifests death.

Considering death to have occurred when there is an irreversible and complete cessation of the functioning of the entire brain, including the brain stem, is consistent with the common-law conception of death (see Commonwealth v Golston, 373 Mass 249, 254). Ordinarily, death will be determined according to the traditional criteria of irreversible cardiorespiratory repose. When, however, the respiratory and circulatory functions are maintained by mechanical means, their significance, as signs of life, is at best ambiguous. Under such circumstances, death may nevertheless be deemed to occur when, according to accepted medical practice, it is determined that the entire brain’s function has irreversibly ceased.

Death remains the single phenomenon identified at common law; the supplemental criteria are merely adapted to account for the “changed conditions” that a dead body may be attached to a machine so as to exhibit demonstrably false indicia of life. It reflects an improved understanding that in the complete and irreversible absence of a functioning brain, the traditional loci of life — the heart and the lungs — function only as a result of stimuli originating from outside of the body and will never again function as part of an integrated organism.

This court searches in vain for evidence that, apart from the concept of death, the Legislature intended to render immutable the criteria used to determine death. By extension, to hold to the contrary would be to say that the law could not recognize diagnostic equipment such as the stethoscope or more sensitive equipment even when it became clear that these instruments more accurately measured the presence of signs of life.

Moreover, the Legislature has consistently declared, from the time it adopted the Field Commission’s draft of a Penal Code in 1881 through several recodifications, that our Penal Law should be construed “according to the fair import of [its] terms to promote justice and effect the objects of the law” (Penal Law, § 5.00). It is the first object of our Penal Law “[t]o proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests” (Penal Law, § 1.05, subd 1). Therefore, in the instant matters, to construe our homicide statute to provide for criminal responsibility for homicide when a defendant’s conduct causes injury leading to the victim’s total loss of brain functions, is entirely consistent with the Legislature’s concept of death.

(d)

One must be careful to distinguish the effect of this decision — determining when a person has died — from issues raised in related but qualitatively distinct cases — determining when a person may be allowed to die. In Matter of Storar (52 NY2d 363), this court reviewed two separate applications brought on behalf of two terminally ill patients. One sought permission to terminate extraordinary medical care. The other sought permission, over the patient’s mother’s objection, to administer medically necessary blood transfusions that would have prolonged the patient’s short-lived life. A personal right to decline medical care, founded at common law, was applied in the first case as there existed clear and convincing evidence that this was the patient’s personal desire. But, in the second case, the court held that, in the absence of such evidence of personal intent (there, due to the patient’s incompetence), a third party has no recognized right to decide that the patient’s quality of life has declined to a point where treatment should be withheld and the patient should be allowed to die (compare Matter of Storar, 52 NY2d, at pp 370, n 2, 382, with id., at pp 389-391 [Jones, J., dissenting in part]).

Today’s decision is no retreat from that holding. Under existing law, third parties are without authority to determine on behalf of the terminally ill that they should be permitted to die. This court will make no judgment as to what is for another an unacceptable quality of life. But, when a determination has been made according to accepted medical standards that a person has suffered an irreversible cessation of heartbeat and respiration, or, when these functions are maintained solely by extraordinary mechanical means, an irreversible cessation of all functions of the entire brain, including the brain stem, no life traditionally recognized by the law is present in that body.

Ill

Each defendant correctly notes that the respective Trial Judges did not expressly instruct the juries concerning the criteria to be applied in determining when death occurred. Whether medically accepted brain-based criteria are legally cognizable became ah issue in these cases when the respective juries heard testimony concerning the victims being pronounced medically dead while their hearts were beating and before artificial maintenance of the cardiorespiratory systems was discontinued. To properly evaluate whether these diagnoses of death were legally and medically premature and, therefore, whether the subsequent activities were possibly superseding causes of the deaths, the juries had to have been instructed as to the appropriate criteria for determining death: irreversible cessation of breathing and heartbeat or irreversible cessation of the entire brain’s functioning.

The courts here adequately conveyed to the juries their obligation to determine the fact and causation of death. The courts defined the criteria of death in relation to the chain of causation. By specifically charging the juries that they might consider the surgical procedures as superseding causes of death, the courts made clear by ready implication that death should be deemed to have occurred after all medical procedures had ended.

The trial courts could have given express instructions that death may be deemed to have occurred when the victims’ entire brain, including the brain stem, had irreversibly ceased to function. On the facts of these cases, that would have been the better practice. But, as mentioned, the brain-based criteria are supplemental to the traditional criteria, each describing the same phenomenon of death. In the context of a criminal case for homicide, there is no theoretical or practical impediment to the People’s proceeding under a theory that the defendant “cause[d] the death” of a person, with death determined by either criteria.

Even though each of these cases was presented to a jury which had been charged that death should be deemed to have occurred after the medical intervention had ended, testimony concerning the attending physicians’ diagnoses of the victims as dead, according to brain-based criteria, was nonetheless highly relevant. It was these medical pronouncements that caused the victims to be removed from the medical systems that maintained their breathing and heartbeat. If the victims were properly diagnosed as dead, of course, no subsequent medical procedure such as the organ removals would be deemed a cause of death. If victims’ deaths were prematurely pronounced due to a doctor’s negligence, the subsequent procedures may have been a cause of death, but that negligence would not constitute a superseding cause of death relieving defendants of liability (see People v Stewart, 40 NY2d 692, 697-698; People v Kane, 213 NY 260, 270). If, however, the pronouncements of death were premature due to the gross negligence or the intentional wrongdoing of doctors, as determined by a grave deviation from accepted medical practices or disregard for legally cognizable criteria for determining death, the intervening medical procedure would interrupt the chain of causation and become the legal cause of death (see People v Kane, supra, at pp 270-271; see, also, State v Scates, 50 NC 420). Thus, the propriety of the medical procedures is integral to the question of causation.

A review of the records, viewed in a light most favorable to the People, indicates that there was sufficient evidence for a rational juror to have concluded beyond a reasonable doubt that each defendant’s conduct caused the victim’s death and that the medical procedures were not superseding causes of death (see People v Contes, 60 NY2d 620, 621). There was ample testimony at both trials to the effect that determining death by brain-based criteria had long been an accepted medical practice. Nor were the physicians acting without some legal authority in grounding their determinations on brain-based criteria. In 1975, a lower court construed the term “death,” as used in New York’s enactment of the Uniform Anatomical Gift Act (see Public Health Law, art 43), as embracing brain-based criteria (see Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002). When the instant cases arose several years later, there existed no contrary statement of the law by either the Legislature or any appellate court.

An expert medical witness for defendant Bonilla cast some aspersions on the particular diagnostic tests performed by the doctors in that case. In the face of that testimony, however, there was substantial testimony by other experts indicating that the diagnostic tests comported with accepted medical practice. Defendant Eulo offered no rebuttal to the testimony that the pronouncement of death was made in accordance with accepted medical practices. Thus, there was sufficient evidence for both juries to have found beyond a reasonable doubt that the medical decisions did not break the causal chain linking defendants’ conduct and the victims’ deaths.

IV

Defendant Eulo’s other arguments have been considered and found to be either unpreserved or without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

In each case: Order affirmed.

      . Ordinarily, the precise time of death has no legal significance. Even when relevant, legal fictions or presumptions as to the time of death are often employed, such as when a person has been continuously absent for a period of more than five years (see EPTL 2-1.7, subd [a]; Matter of Katz, 135 Misc 861). Although the statute providing for an action for wrongful death provides a limitation of two years from the time of “death” (see EPTL 5-4.1), we find no cases in which the time of an action’s accrual was at issue. In the same vein are criminal cases applying the common-law rule that conduct, to constitute murder, must cause death within one year and one day (see Burns & Cary v People, 1 Parker Cr Rep 182,185). This rule has long been abrogated in New York (see People v Brengard, 265 NY 100, 105-108; People v Legeri, 239 App Div 47), thereby removing one possible need to measure when death has occurred.

      . In many circumstances, the order in which two people die, for example a husband and wife, may profoundly affect how their respective estates are distributed. At common law, when two or more people were killed in a common disaster, there was no “presumption either of survivorship or simultaneous death” (McGowin v Menken, 223 NY 509, 511; see Newell v Nichols, 75 NY 78, 89). This rule has been altered by statute to provide for equity in the devolution or disposition of property when “there is no sufficient evidence that persons have died otherwise than simultaneously” (EPTL 2-1.6).

      . See, generally, Report of President’s Comm for Study of Ethical Problems in Medicine and Biomedical and Behavioral Research on Defining Death: Medical, Legal and Ethical Issues in Determination of Death (1981) (hereinafter Comm Report), US Supt Docs, No Pr 40.8; ET 3/D34, pp 13-42; Walton, On Defining Death, pp 1-17; Abram, Need for Uniform Law on the Determination of Death, 27 NYLS L Rev 1187,1187-1193; Compton, Telling The Time of Human Death by Statute: An Essential and Progressive Trend, 31 Wash & Lee L Rev 521, 521-532; Capron & Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U of Pa L Rev 87, 87-92.

      . See Comm Report, supra, n 3, at pp 13-18; Walton, supra, n 3, at pp 29-32; Abram, supra, n 3, at pp 1190-1191; see, also, Schwager, Life, Death and the Irreversibly Comatose, printed in Ethical Issues in Death and Dying (Beauchamp & Perlin [eds]), at pp 38-45.

      . 1 Goldenson, Encyclopedia of Human Behavior, at p 192.

      . See Comm Report, supra, n 3, at p 15.

      . See Comm Report, supra, n 3, at p 16; Report of Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 338 (hereinafter Harvard Report).

      . See Comm Report, supra, n 3, at pp 16-17; Capron & Kass, supra, n 3, at pp 89-91; Harvard Report, supra, n 7, at pp 338-339.

      . See Comm Report, supra, n 3, at pp 16-18.

      . See Comm Report, supra, n 3, at pp 21-24; Black, Definitions of Brain Death, printed in Ethical Issues in Death and Dying (Beauchamp & Perlin [eds]), at pp 5-6; Capron & Kass, supra, n 3, at pp 89-91; Harvard Report, supra, n 7, at pp 338-339.

      . See authorities cited, supra, n 10.

      . See authorities cited, supra, n 10.

      . See Comm Report, supra, n 3, at pp 16-17; Black, supra, n 10, at pp 5-6.

      . See Comm Report, supra, n 3, at p 15; Capron & Kass, supra, n 3, at p 89; Harvard Report, supra, n 7, at pp 338-340.

      . See Comm Report, supra, n 3, at pp 21-29; but see Biorck, When is Death?, 1968 Wis L Rev 484. The initial problem for doctors was to devise a technical means of verifying when the entire brain ceases to function. Unlike tests for determining the cessation of breathing and heartbeat, more sophisticated means were necessary to measure the less obvious functioning of the brain. A seminal study was issued in 1968, under the auspices of Harvard Medical School (see Harvard Report, supra, n 7), setting forth a multistep test designed to identify the existence of physical indicia of brain activity. Under it, responsiveness to painful stimuli is to be tested. The subject is also to be observed for any spontaneous movement or respiration and any operation of various bodily reflexes. The absence of brain activity, when demonstrated under these tests, is then sought to be confirmed by reapplication of the tests at least 24 hours later and through the reading of an BEG, which when “flat” has confirmatory value. This test has served as the foundation for currently applied tests for determining when the brain has ceased to function.

      . Capron & Kass, supra, n 3, at pp 108-109; Jonas, Against the Stream: Comments on the Definition and Redefinition of Death, reprinted in Ethical Issues in Death and Dying, at p 51.

      . Comm Report, supra, n 3, at p 23.

      . Id.

      . See authorities cited, supra, n 15.

      . See L 1970, ch 348, Kan Laws 994, codified at Kan Stats Ann, § 77-202.

      . Following the second part of the disjunctive definition, as originally enacted, is the statement: “Death is to be pronounced before artificial means of supporting respiratory and circulatory function are terminated and before any vital organ is removed for purposes of transplantation.” This final sentence, which intimates that the brain-based criteria are to be utilized only in transplant cases, precipitated some criticism of the statute. Two commentators noted that “[t]he primary fault with this legislation is that it appears to be based on, or at least gives voice to, the misconception that there are two separate phenomena of death. This dichotomy is particularly unfortunate because it seems to have been inspired by a desire to establish a special definition for organ transplantation” (Capron & Kass, supra, n 3, at p 109). They added that the two-part definition set forth in the Kansas statute leaves “open the prospect ‘that X at a certain stage in the process of dying can be pronounced dead, whereas Y, having arrived at the same point, is not said to be dead’ ” (id., at p 110, quoting Kennedy, Kansas Statute on Death: An Appraisal, 285 New Eng J Med 946, 948). This provision was subsequently deleted from the statute. (See Kan Stats Ann, 8 77-202, L 1979, ch 199, 8 11.)

      . See, generally, Comm Report, supra, n 3, at Appendix C. Our amicus informs us that, to date, at least 34 States have statutorily recognized brain-based criteria as a means of determining death. At least nine others have judicially adopted these criteria.

      . See, e.g., Md Ann Code, art 43, 8 54F (now Md Ann Code, 8 5-202); NM Stats Ann, 8 12-2-4.

      . See, e.g., Ark Stats Ann, 88 82-537 — 82-538; 111 Ann Stats, ch 110½, § 302; Mont Codes Ann, 8 50-22-101.

      . See, e.g., Ala Code, §§ 22-31-1; Iowa Code Ann, § 702.8; Tex Rev Civ Stats Ann, art 4447t.

      . See, e.g., State v Fierro, 124 Ariz 182, 185-186; Commonwealth v Golston, 373 Mass 249, 253-256; State v Meints, 212 Neb 410, 413-419; State v Johnson, 56 Ohio St 2d 35.

      . The recommended standard provides: “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards” (see Comm Report, supra, n 3, at p 2).

      . In reaching this conclusion, this court is aware of the criticism from some quarters that the perceived motivation for the development and recognition of brain-based criteria for death renders these criteria “theoretically impure.” This is asserted on the ground that the prospect of more easily accessible transplants serves to “adulterate the purity of [the] scientific case by baiting it with the prospect of this extraneous — though extremely appealing — gain” (Jonas, supra, n 16, at p 52 [emphasis in original]). Although, practically speaking, adoption of these supplemental criteria will indeed facilitate organ transplants, it has been found that “the need for viable organs to transplant does not account fully for the interest in diagnosing irreversible loss of brain functions” (Comm Report, supra, n 3, at p 23). The Presidential Commission, charged with evaluating how death should be determined, cited studies reporting “that organs are procured in only a small percentage of cases in which brain-based criteria might be applied” (id.). The Commission itself found that the “medical concern over the determination of death rests much less with any wish to facilitate organ transplantation than with the need both to render appropriate care to patients and to replace artificial support with more fitting and respectful behavior when a patient has become a dead body” (id., at pp 23-24).

      . This court has rejected judicial attempts to formulate detailed legal standards governing procedures leading to medical diagnoses (see Matter of Storar, 52 NY2d 363, modfg 73 AD2d 431). Today we decline to set forth what particular medical diagnostic tests should be performed before a person’s brain functions may be found to have irreversibly ceased. Any attempt to establish a specific procedure might inhibit the development and application of more sophisticated diagnostic methods. Therefore, it is sufficient that a particular determination be made according to accepted medical standards.

      . When any function of the brain persists, of course, death may not be deemed to have occurred. For example, a person may have suffered an irreversible loss of higher brain functions and, yet, the brain-stem functions subsist. This condition is “usually called a ‘persistent vegitative state’ or ‘persistent noncognitive state.’ Such persons [suffering this condition] may exhibit spontaneous, involuntary movements such as yawns or facial grimaces, their eyes may be open and they may be capable of breathing without assistance. *** The case of Karen Anne Quinlin has made this condition familiar to the general public [see Matter of Quinlan, 137 NJ Super 227, mod 70 NJ 10, cert den sub nom. Garger v New Jersey, 429 US 922]. With necessary medical and nursing care * * * such patients can survive months or years, often without a respirator.” (Comm Report, supra, n 3, at p 18 [nn omitted].)


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Thomas M. Torpey, Appellant.
    Decided November 20, 1984

      APPEARANCES OF COUNSEL

      Philip S. Glickman for appellant.

      Howard R. Relin, District Attorney ('Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Wachtler, J.

After a jury trial the defendant, Thomas Torpey, was convicted of criminal mischief in the second degree (Penal Law, § 145.10), coercion in the first degree (Penal Law, § 135.65), attempted assault in the second degree (Penal Law, §§ 110.00,120.05) and conspiracy in the fourth degree (Penal Law, § 105.10) and acquitted of five other charges. On this appeal his primary argument is that the trial court committed reversible error in refusing to allow his challenge for cause of a prospective juror under CPL 270.20 (subd 1, par [b]).

The charges against the defendant stem from an incident at a bar in Rochester on November 7,1981. The indictment alleges that the defendant, and several other persons, started fights and then caused substantial property damage as part of a conspiracy to commit grand larceny by extorting money from the owner of the bar.

The jury selection process revealed that many of the prospective jurors had heard or read about the incident in question. The publicity surrounding the incident was probably due in part to the fact that Torpey had been the subject of previous media reports, some of which had linked him to organized crime. The juror, whose prospective selection is the subject of this appeal, Mrs. Raleigh, was married to an investigator for the Monroe County Sheriff’s Department, and was one of several jurors who had heard or read about Torpey prior to the reports on the incident of November 7, 1981. The relevant portion of her examination is as follows:

EXAMINATION BY COURT:

“Q. Now, you got up when I said have you heard anything about that name. You got up. Tell us what you know about it, if you have heard anything where you heard it?”

mrs. raleigh: “A. Well, probably in the paper.

“Q. All right. Listen, we don’t live in a sanitized society. It is not a crime to read the paper or watch TV. What do you remember about it?

“A. Well, also, I think maybe I heard the name at home.

“Q. In what respect?

“A. Well, my husband is an investigator for the Sheriff’s Department and I probably heard his name through him. I’m not positive.”

EXAMINATION BY MR. CASTRO: (Prosecutor)

“Q. And I guess like every husband he comes home and tells you about the things he works on once in a while?

“A. Uh-huh.

“Q. Then, you have heard the name Thomas Torpey?

“A. I think so, yes.

“Q. Have you heard that name in connection with any other names?

“A. I don’t know if it is at home but in the paper it was in connection with mafia.

“Q. Based on what your husband may have said have you reached an opinion? When he has told you these things over the years did you reach an opinion one way or the other as to the kind of person Mr. Torpey was, his reputation?

“A. I think probably to a certain degree, yes.

“Q. Would that be a negative opinion of him?

“A. Probably, yes.

* * *

“Q. With regard to the papers and some association with the mafia, do you recall what you have read?

“A. Specifically, no. But I think it had to do with — I don’t know if I’m supposed to say that but that he was a hit man. Can I go now?”

* * *

examination by mr. lapine: (Defendant’s lawyer)

“Q. How are you doing? Now, look, let’s be honest with each other here. You have an impression that Mr. Torpey is connected with the mafia. It is an impression you have gained from either what your husband has talked about or the newspapers, right?

“A. Right.

“Q. You have also heard that he might be a hit man? “A. Right.

“Q. He has a couple of big strikes against him?

“A. Yes, sir.

“Q. Now, it wouldn’t be fair to have someone with you frame of mind sitting in judgment of him?

“A. Probably not.”

EXAMINATION BY THE COURT:

“Q. You have heard of people that reputations that are not necessarily true?

“A. That’s right.

“Q. And are you willing to put aside whatever you may have heard and listen to this case and give both sides a fair trial based on the evidence in this courtroom and nothing else?

“A. I think I can.”

Torpey’s counsel challenged Mrs. Raleigh for cause several times, but the Trial Judge denied the challenge each time. Counsel eventually used a peremptory challenge to exclude her. Because Torpey exhausted his peremptory challenges before the completion of jury selection, he may and does assert on this appeal that the denial of the challenge for cause was reversible error (CPL 270.20, subd 2; People u Blyden, 55 NY2d 73, 76).

The Appellate Division, with one Justice dissenting, held that the Trial Judge acted within his discretion in not allowing the challenge for cause and affirmed the convictions.

CPL 270.20 (subd 1, par [b]) allows a challenge for cause where a prospective juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial”. This provision reflects the long-standing recognition that “[njothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury” (People v Branch, 46 NY2d 645, 652; see People v McQuade, 110 NY 284, 300).

At common law, any prospective juror who expressed an opinion as to the defendant’s guilt, or who otherwise demonstrated that he was “ ‘not indifferent between the parties’ ”, was disqualified as a matter of law (People v Culhane, 33 NY2d 90,102 [quoting Greenfield v People, 74 NY 277, 281]; see People v McQuade, 110 NY 284, 300, supra). In 1872, the Legislature enacted a modified version of the common-law rule (L 1872, ch 475, § 1) and the substance of the 1872 act was codified in subdivision 2 of section 376 of the Code of Criminal Procedure (People v McQuade, 110 NY 284, 300, supra). This statute allowed a challenge for cause of a juror based on a prejudicial state of mind (“actual bias”), but added that an opinion or impression as to the guilt or innocence of the defendant was not a basis for disqualifying a juror if “he declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict”.

In virtually all of the cases decided by this court where a prospective juror has been challenged for cause based upon an actual bias, the challenge has been premised on the juror having expressed an opinion as to the guilt of the defendant for the charges being tried (see, e.g., People v Culhane, 33 NY2d 90, supra; People u Hampartjoomian, 196 NY 77; People v Wilmarth, 156 NY 566). The prejudice to the defendant of a juror who holds an opinion as to his guilt is obvious. Actual bias, or, as stated in the current provision, a state of mind that is likely to preclude a juror from rendering an impartial verdict based upon the evidence at trial, is not limited, however, to situations where a prospective juror has formed an opinion as to the defendant’s guilt. Thus, in People v Blyden (55 NY2d 73, supra), where a black defendant was being tried, we held that the Trial Judge erred in not allowing a challenge for cause based upon CPL 270.20 (subd 1, par [b]) to a prospective juror who had expressed a prejudice against minorities, including blacks, based upon particular incidents.

Our prior cases have not addressed the situation present here, where a prospective juror has an unfavorable impression of the defendant which is based upon having heard or read about him in a context apart from the specific crimes for which he is being tried. It is clear, however, that such an impression can create as much of an actual bias as where the prospective juror has an opinion as to the defendant’s guilt of the crime charged, or is prejudiced against a minority group of which the defendant is a member. The principles underlying Blyden and Culhane apply regardless of the cause of the prospective juror’s actual bias, and both CPL 270.20 (subd 1, par [b]) and its predecessor refer broadly to the presence of a “state of mind” which indicates the actual bias.

The statements by Mrs. Raleigh that she associated the defendant with the Mafia, that she had the impression for several years that he was a “hit man”, that she “probably” had a negative opinion of him, and that it would “probably not” be fair to the defendant to have somebody with her state of mind on the jury indicate that she had “a state of mind that [was] likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced at the trial”. We reaffirm the holding in People v Williams (63 NY2d 882, 885) that not every predisposition with respect to general bias subjects a prospective juror to disqualification for actual bias, but find here that as a matter of law “there is a substantial risk that [Mrs. Raleigh’s] predispositions will affect [her] ability * * * to discharge [her] responsibilities”.

CPL 270.20 (subd 1, par [b]), unlike subdivision 2 of section 376 of the Code of Criminal Procedure, does not set forth an “expurgatory oath” which can be used to overcome a previously expressed actual bias. While the expurgatory oath is thus not automatically available as a “facile method for purging a prima facie showing of bias” (People v Culhane, 33 NY2d 90,104, n 2, supra), it still retains some validity as “an effective means of resolving doubt about a prospective juror’s impartiality” (People v Blyden, 55 NY2d 73, 77, supra; see People v Branch, 46 NY2d 645, 651, supra). Thus, where there is a prima facie showing of actual bias, the Trial Judge should require the prospective juror to “expressly state that his prior state of mind * * * will not influence his verdict, and * * * that he will render an impartial verdict based solely on the evidence” (People v Biondo, 41 NY2d 483, 485).

In cases which arose under the old Code of Criminal Procedure this court required strict adherence to the terms of the expurgatory oath as set forth in the statute (People v Culhane, 33 NY2d 90, 106, and cases cited at pp 106-107, supra). The prospective juror had to make express declarations which unequivocally set forth the elements of the oath (People v Biondo, 41 NY2d 483, 485, supra; People v Culhane, 33 NY2d 90, 107, supra). These requirements still exist if the expurgatory oath, or an equivalent, is to be used to overcome an expression of actual bias (see People v Blyden, 55 NY2d 73, 77-78, supra). Furthermore, in determining whether a prospective juror has made unequivocal declarations, it is necessary to look at his entire testimony; that the prospective juror once made the “proper” declarations does not necessarily mean that he has “purged” the bias (id.; People u McQuade, 110 NY 284, 301, supra).

Because, as noted above, virtually all “actual” bias cases involve a prospective juror who has formed an opinion as to the defendant’s guilt, the expurgatory oath has been discussed and employed most frequently in that context. An opinion as to the defendant’s guilt will most frequently be based upon something which the juror had read or heard about the criminal incident in question. As the evidence at trial will be addressed to that particular criminal incident, it can supplant whatever information about the defendant the juror has acquired and rebut any prior opinion. Thus, there is a logical basis for allowing a juror to “purge” a previous opinion as to the defendant’s guilt by expressly declaring that he will not be influenced by his prior opinion and will decide the case based only upon the evidence at trial.

Where, as here, the juror’s impression of the defendant concerns his over-all reputation or is based upon alleged prior acts which have nothing to do with the charges against him, the evidence at trial might not address the basis of the juror’s impression and thus may not alter this impression. For example, a juror such as Mrs. Raleigh who has the impression that the defendant has been a Mafia “hit man” might still have that impression after hearing all of the evidence even if she then has doubts as to whether the defendant is guilty of the crimes he is being charged with, and thus might vote for a conviction notwithstanding such doubts. Therefore, where a potential juror’s actual bias is caused by a highly unfavorable impression of the defendant’s over-all reputation or character, the test for whether such bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant’s guilt. In a case such as the present one, the prospective juror should be dismissed if there appears to be any possibility that his impressions of the defendant might influence his verdict (cf. People v Blyden, 55 NY2d 73, 78, supra).

Mrs. Raleigh’s declarations which were aimed at purging her expressed bias revealed some uncertainty and, especially when read with the rest of her testimony, did not overcome the bias. The trial court thus erred in denying the defendant’s challenge to her for cause. In addition we again note, as we have in the past, that it is “almost always wise * * * to err on the side of disqualification” since “the worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror” (People v Culhane, 33 NY2d 90,108, n 3, supra; see People v Branch, 46 NY2d 645, 651-652, supra; People v Blyden, 55 NY2d 73, 78, supra).

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

Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and a new trial ordered.


author: Simons, J.

text:
    Panos Alifieris et al., Respondents, v American Airlines, Inc., Defendant, and Don Cooper et al., Appellants.
    Argued October 16, 1984;
    decided November 20, 1984

      POINTS OF COUNSEL

      John J. Reilly and Leonard J. Meiselman for appellants.
    I. Plaintiff must plead and prove compliance with section 50-e of the General Municipal Law in order to prevail in an action in tort against a police officer acting within the scope of his authority. (Norr v Spiegler, 72 AD2d 20; Goldstein v Brickers, 49 AD2d 760; Kritzer v County of Nassau, 47 AD2d 950.) II. There is sufficient factual showing that appellant Cooper was a police officer known to plaintiff as such and acting within the scope of his authority. III. Since there is no ambiguity present in the language of subdivision 2 of section 50-j of the General Municipal Law, as amended in 1975, the clear language of “his jurisdiction” consists of the entire State of New York in pari materia with CPL 140.10 (subd 3). (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Malpica-Orsini, 36 NY2d 568.) IV. The legislative intent sustains an interpretation to save harmless police officers for negligent acts while discharging duties outside employer boundary lines and thus comports with the plain meaning of the language of the statute. (Matter of Albano v Kirby, 36 NY2d 526.) V. Since a narrow construction would have a deleterious and widespread effect on the conduct of all police officers and on the safety of all inhabitants in this State such construction would create hardship and injustice for all. (Matter of Rappl & Hoenig Co. v New York State Dept, of Environmental Conservation, 61 AD2d 20, 47 NY2d 925.)

      Frank V. Floriani, Harry H. Lipsig and Pamela Anagnos Liapakis for respondents.
    I. The service of a notice of claim is not a prerequisite to the maintenance of an action against a private individual wherein the allegations made relate only to his acts as a private individual. (Goldstein v Brickers, 49 AD2d 760; Kalpin v Cunningham, 60 AD2d 997; Beyer v Werner, 299 F Supp 967; O’Hara v Sears Roebuck & Co., 286 App Div 104.) II. The court below addressed an issue not raised by plaintiff’s complaint.

      Martin Bradley Ashare, County Attorney {V. Anthony Maggipinto of counsel), for County of Suffolk, intervenor.
    I. The issue presented requires the construction of a section of the General Municipal Law. II. Statutes in derogation of the common law must be strictly construed. (Berger v City of New York, 260 App Div 402; Doty v Village of Port Jervis, 23 Misc 313; Maxmilian v Mayor of City of N. Y., 62 NY 160; Wilcox v City of Rochester, 190 NY 137.) III. The Legislature chose not to extend civil liability beyond the jurisdiction of a police officer’s employer.
   OPINION OF THE COURT

Simons, J.

Plaintiff Panos Alifieris was injured at JFK International Airport during the course of his employment with third-party defendant Olympic Airlines, allegedly as the result of the tortious conduct of defendant Mary Cooper, an employee of defendant American Airlines, Inc., and her husband, defendant Don Cooper. Alifieris and his wife sued defendants, claiming that Don Cooper had intentionally assaulted him and that Cooper and his wife had negligently struck him. The complaint also alleged a cause of action for punitive damages, another against defendant American Airlines based on vicarious liability, and one against all defendants on behalf of plaintiff Cleo Alifieris to recover damages for loss of consortium. Defendant Don Cooper then instituted third-party actions against Olympic Airlines and the County of Suffolk. In his third-party complaint, he alleged that he was employed by Suffolk County as a police officer, although off duty at the time, and that if he caused the injuries and damages which plaintiffs claim, he did so in that capacity. Accordingly, he sought indemnity from his employer in the third-party action and, consistent with this claim for indemnity, he also asserted as his third affirmative defense to the main action plaintiffs’ failure to comply with the notice of claim provisions of section 50-e of the General Municipal Law (see General Municipal Law, § 50-e, subd 1, par [b]; § 50-j, subds 2, 3). It is the merit of this claim for statutory indemnity in the third-party action and the affirmative defense alleged in the main action because of it which presents the issue to be resolved on this appeal.

Plaintiffs moved to dismiss the affirmative defense, noting that they had sued defendant as an individual and not in his capacity as a police officer, and they contended, therefore, that they had no obligation to plead or prove service of a notice of claim on Cooper’s employer. Special Term granted the motion and the Appellate Division unanimously affirmed. In affirming, however, the Appellate Division dismissed the affirmative defense because Suffolk County had no duty to indemnify Cooper for damages he may have caused at JFK Airport. It held that Cooper was entitled to indemnification only for damages sustained as a result of off-duty conduct occurring within the corporate limits of his employer. Inasmuch as this incident occurred in Queens County, the court concluded that defendant was not entitled to indemnification pursuant to section 50-j of the General Municipal Law and accordingly plaintiffs were not required to comply with the notice of claim provisions of section 50-e of the General Municipal Law.

Prior to the enactment of section 50-j, courts had held in tort actions against police officers that no notice of claim was required to be filed with the municipality as a predicate for suit because there was no statutory provision requiring the city to indemnify the officers (see O’Hara v Sears Roebuck & Co., 286 App Div 104; Hawkins v Dominy, 18 Misc 2d 221). In 1974, the Legislature added two different indemnity sections to the General Municipal Law, both labeled 50-j. The first, relevant here, relates to the indemnification of police officers and the second covers the indemnification of police officers and correction officers for damages assessed against them in Federal court. Both of these sections originally referred to cities with a population of over one million and therefore applied only to the City of New York. They permitted indemnification of off-duty police officers when incidents arose within the geographical limits of “such city”. Thus, under prior law, New York City was not obliged to indemnify its off-duty police officers for tortious acts committed outside of its geographical limits. In 1975, however, section 50-j was amended to apply its terms to police officers of “every city, county, town, village, authority or agency” within the State and to change the phrase “geographical limits of such city” to “geographical limits of his jurisdiction” (L 1975, ch 843, § 1). The relevant language is found in subdivision 2 and it establishes two criteria for determining when an employer must indemnify an off-duty police officer for tortious conduct. First, the officer must have acted within “the geographical limits of his jurisdiction”. Second, the officer must be “engaged in the immediate and actual performance of a public duty imposed by law”, not in private matters. Defendant Cooper contends that the Appellate Division erred in applying the first criteria and that it misinterpreted the statute because the “geographical limits of his jurisdiction” are State-wide, not limited to the jurisdiction of his employer. He contends that Special Term erred in applying the second criteria because, at the least, his motion papers established a jury question on the public nature of his conduct.

No more than a question of statutory construction is presented by the first issue. The guiding principle in such cases is to give effect to the legislative intent and that intent is to be sought first in the words of the statute under consideration (Department of Welfare v Siebel, 6 NY2d 536, 545). Its terms are construed according to their ordinary usage in the context in which they are used (see Matter of Kamhi v Planning Bd., 59 NY2d 385, 391; Riegert Apts. Corp. v Planning Bd., 57 NY2d 206, 209; Matter of Albano v Kirby, 36 NY2d 526, 529-531) and extrinsic aids are considered only when examination of the words makes the intent ambiguous or unclear.

Defendant’s construction of 50-j is supported by the plain meaning of the statute’s words. The pronoun “his” refers to the noun “police officer” in the statute, and thus contemplates the jurisdiction of the police officer, not the jurisdiction of the municipality. If there were any doubt about that construction, the legislative history confirms it for it establishes that the statute was amended for the avowed purpose of extending the scope of municipal liability to indemnify police officers (Bill Jacket, L 1975, ch 843, § 1, Memorandum of Division of Criminal Justice Services dated July 8, 1975; Bill Jacket, L 1975, ch 843, § 1, Memorandum of Secretary of State dated Aug. 1, 1975). Indeed, a letter from the Conference of Mayors submitted to the legislators before adoption of the amendment to 50-j specifically warned that the legislation would extend municipal indemnity to off-duty officers for acts occurring outside the municipal corporate limits, thus establishing beyond cavil that the legislators were aware that the statute could be so interpreted and that they intended just that result (see Bill Jacket, L 1975, ch 843, § 1, Letter from Conference of Mayors dated May 5, 1975).

A “police officer’s jurisdiction” is delineated in CPL 140.10 (subd 3), a statute in pari materia with 50-j, and it provides that the officer’s jurisdiction is State-wide. Accordingly, if defendant Don Cooper was acting in his capacity as a police officer on a public matter he was entitled to indemnity from his employer, the County of Suffolk, for the tortious act he allegedly committed in Queens County.

This construction of the statute also conforms with sound public policy. Police officers are responsible for enforcing the law any time anywhere in the State. That is a basic precept of their training, the breadth of their statutory powers, and commonly, as in this case, the obligation of their employment as spelled out in the contract between employer and employees. If, however, police officers are exposed to potential civil and criminal liability for arrests made outside of the employer’s jurisdiction, they may understandably refrain from doing their duty, thereby eroding the vitality of CPL 140.10 and resulting in a consequent loss in public safety. The indemnity statute was intended to avoid this and it should be construed in favor of coverage in order to encourage diligent law enforcement.

Inasmuch as defendant may be entitled to indemnity, subdivision 3 of section 50-j requires that plaintiffs file a notice of claim. That section provides that “[n]o action * * * shall be prosecuted or maintained against the municipality * * * or such police officer unless notice of claim shall have been made and served upon such municipality * * * in compliance with section fifty-e of this-chapter.” In turn, the pertinent provisions of section 50-e (subd 1, par [b]) provide that: “If an action * * * is commenced against such person [police officer], but not against the public corporation [Suffolk County], service of the notice of claim upon the public corporation [County] shall be required only if the corporation [County] has a statutory obligation to indemnify such person [police officer] under this chapter or any other provision of law” (words in brackets supplied).

It remains to consider the second criteria, whether the defense should be dismissed because Cooper was acting in a private matter and thus was not “engaged in the immediate and actual performance of a public duty imposed by law”. Special Term believed that he was and struck the defense for that reason. Plaintiff may not limit the proof to defendant’s detriment, however, when defendant’s motion papers raise a question of fact on the issue, as was the case here. If defendant was pursuing his public duties acting in his capacity as a police officer at the time of the incident, the affirmative defense is valid; if he was not, plaintiffs were not required to submit a notice of claim.

Accordingly, the order of the Appellate Division should be modified to deny the motion to dismiss defendant Don Cooper’s third affirmative defense and, as so modified, affirmed, with costs to defendant Don Cooper. The certified question is answered in the negative.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer and Kaye concur with Judge Simons; Judge Jasen dissents and votes to affirm for reasons stated in the opinion by Justice Guy J. Mangano at the Appellate Division (98 AD2d 206).

Order modified, with costs to appellant Don Cooper, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

      . The action was originally brought in New York Supreme Court but was then removed to Federal District Court because of the presence of Olympic Airlines. The main action was subsequently remanded to Supreme Court, with only the third-party action remaining in Federal court, and after the action against Olympic Airlines was discontinued, the third-party action against Suffolk County was also remanded from Federal to State court.

      . Section 50-j of the General Municipal Law provides as follows:
      “Section 50-j. Liability of police officers for negligence in the performance of duty
      * ** *

        “2. For purposes of this section, a police officer of any such municipality, authority or agency, when within the geographical limits of his jurisdiction, although excused from official duty at the time, shall be deemed to be acting in the discharge of duty when engaged in the immediate ánd actual performance of a public duty imposed by law and such public duty performed was for the benefit of all the citizens of the community and the municipality, authority or agency derived no special benefit in its corporate capacity.”

      . “Section 140.10. Arrest without a warrant; by police officer; when and where authorized. * * *
      “3. A police officer may arrest a person for a crime, pursuant to subdivision one, whether or not such crime was committed within the geographical area of such police officer’s employment, and he may make such arrest within the state, regardless of the situs of the commission of the crime. In addition, he may, if necessary, pursue such person outside the state and may arrest him in any state the laws of which contain provisions equivalent to those of section 140.55.”

      . Defendant Mary Cooper also has appealed from the order striking the third affirmative defense. Inasmuch as she was not an employee of Suffolk County, she may not raise the issue and the Appellate Division properly affirmed the order striking the affirmative defense as to her.


text:
    Susan Cohen et al., Respondents, v Herbal Concepts, Inc., et al., Defendants, and The Hearst Corporation et al., Appellants.
    Argued October 8, 1984;
    decided November 20, 1984

      POINTS OF COUNSEL

      Lola Sullivan Reynolds, Ralph P. Huber and Nancy K. Nadler for appellants.
    I. The court below erred in failing to conduct a threshold analysis on the issue of the identifiability of plaintiffs which, correctly applied, requires a finding that plaintiffs were not capable of being identified from an objective viewing of the photograph alone. (Allen v Gordon, 86 AD2d 514, 56 NY2d 780; Wojtowicz v Delacorte Press, 58 AD2d 45, 43 NY2d 858; Toscani v Hersey, 271 App Div 445; Levey v Warner Bros. Pictures, 57 F Supp 40; People v Scribner’s Sons, 205 Misc 818; Loftus v Greenwich Lithographing Co., 192 App Div 251; Negri v Scbering Corp., 333 F Supp 101; Ali v Playgirl, Inc., 447 F Supp 723; Branson v Fawcett Pub., 124 F Supp 429; Carlucci v Poughkeepsie Newspapers, 57 NY2d 883.) II. The court below erred in considering the affidavit submitted on behalf of plaintiffs and finding that it raised a question of fact on the issue of identifiability. (Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Platzman v American Totalisator Co., 45 NY2d 910; Indig v Finkelstein, 23 NY2d 728; Branson v Fawcett Pub., 124 F Supp 429; Bernstein v National Broadcasting Co., 129 F Supp 817, 232 F2d 369.)

      Herman Schmertz for respondents.
    Prohibited conduct under section 51 of the Civil Rights Law is by no means restricted to unauthorized publication of the pictures of celebrated figures who are well known to the public. The statute equally protects ordinary citizens as well, such as plaintiffs herein, from precisely the type of harm which was inflicted upon them. (Negri v Sobering Corp., 333 F Supp 101; Brinkley v Casablancas, 80 AD2d 428; Flores v Mosler Safe Co., 7 NY2d 276; Blake v Niagara Mohawk Power Corp., 48 NY2d 875; Taylor v New York City Tr. Auth., 48 NY2d 903; Griffin v Medical Soc., 7 Misc 2d 549; Feeney v Young, 191 App Div 501; Loftus v Greenwich Lithographing Co., 192 App Div 251; Branson v Fawcett Pub., 124 F Supp 429; Missan v Schoenfeld, 95 AD2d 198; De Curtis v St. Lucy’s R. C. Church, 51 AD2d 920, 40 NY2d 801; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)
   OPINION OF THE COURT

Simons, J.

Plaintiffs bring this action pursuant to section 51 of the Civil Rights Law seeking damages from defendants for publishing photographs of them for advertising purposes. It is conceded for purposes of this appeal that plaintiffs are the persons shown in the photographs and that defendants used the photographs as claimed without their consent. The legal issue submitted is whether a photograph of the nude plaintiffs, mother and child, which shows their bodies full length as viewed from a position behind and to the right of them, and which does not show their faces, reveals sufficiently identifiable likenesses to withstand defendants’ motions for summary judgment. We hold that it does.

The action arises from these facts.

On the July 4th weekend in 1977, plaintiffs were visiting friends in Woodstock, New York, and Susan Cohen and her four-year-old daughter, Samantha, went bathing in a stream located on their friends’ private property. Without their consent, defendant James Krieger took photographs of plaintiffs and subsequently sold them to defendant Herbal Concepts, Inc., a seller and advertiser of consumer products. Herbal Concepts used one of the photographs in an advertisement for Au Naturel, a product designed to help women eliminate body cellulite, those “fatty lumps and bumps that won’t go away”. The advertisement appeared in two editions of House and Garden, which is published by defendant Conde Nast Publications, Inc., and in single editions of House Beautiful and Cosmopolitan, which are published by defendant Hearst Corporation. Ira Cohen subsequently recognized his wife and daughter in the advertisements while reading one of the magazines and this action followed.

Plaintiffs Susan and Samantha Cohen alleged causes of action seeking compensatory and exemplary damages based upon violations of section 51 of the Civil Rights Law and defamation and plaintiff Ira Cohen alleged causes of action seeking damages for loss of his daughter’s services and loss of consortium. Defendants moved first for summary judgment on the defamation and derivative causes of action and Special Term granted those motions. They then moved for summary judgment on Susan and Samantha Cohen’s causes of action based upon section 51 of the Civil Rights Law. Special Term granted those motions also and dismissed the complaint in its entirety. Plaintiffs appealed to the Appellate Division from the second order. It reversed and reinstated the privacy causes of action and granted defendants Hearst and Conde Nast leave to appeal to this court.

Special Term dismissed the privacy actions because it concluded “the identities of the plaintiffs cannot be determined from the picture.” Although the Appellate Division Justices were unanimous for reversal, they differed in their reasons for doing so. Two Justices held that section 51 requires only an identifiable likeness capable of being recognized by others, not an identifiable facial representation. They thus concluded that the identification of plaintiffs was a question for the jury. Two other Justices concurred, stating that in their view it was sufficient that the picture was of the plaintiffs and that plaintiffs could identify it as such. Justice Asch agreed with Special Term that plaintiffs’ privacy causes of action lacked merit because neither person in the advertisement was capable of being identified. He concurred in the result, however, after finding that plaintiffs possessed a valid claim for unjust enrichment.

The history of New York’s privacy statute has been recited before and need not be repeated here (see Shields v Gross, 58 NY2d 338; Arrington v New York Times Co., 55 NY2d 433, cert den 459 US 1146; Flores v Mosler Safe Co., 7 NY2d 276, 280-281; Prosser and Keeton, Torts [5th ed], ch 20). Although the tort has assumed various forms in other jurisdictions (see Restatement, Torts 2d, § 652A et seq.), in New York privacy claims are founded solely upon sections 50 and 51 of the Civil Rights Law. The statute protects against the appropriation of a plaintiff’s name or likeness for defendants’ benefit. Thus, it creates a cause of action in favor of “[a]ny person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without * * * written consent”. The action may be brought to enjoin the prohibited use and may also seek damages for any injuries sustained including exemplary damages for a knowing violation of the statute. We are concerned in this case with the appropriation of plaintiffs’ likenesses. Defendants claim that there has been no wrong because even if the photograph depicts plaintiffs, they are not identifiable from it.

The statute is designed to protect a person’s identity, not merely a property interest in his or her “name”, “portrait” or “picture”, and thus it implicitly requires that plaintiff be capable of identification from the objectionable material itself (see Allen v Gordon, 86 AD2d 514, 515, affd 56 NY2d 780; Wojtowicz v Delacorte Press, 58 AD2d 45, 48, affd 43 NY2d 858; Loftus v Greenwich Lithographing Co., 192 App Div 251; Ali v Playgirl, Inc., 447 F Supp 723, 726; Negri v Schering Corp., 333 F Supp 101,103; Levey v Warner Bros. Pictures, 57 F Supp 40, 42; see, generally, Prosser and Keeton, Torts [5th ed], pp 849-854). That is not to say that the action may only be maintained when plaintiff’s face is visible in the advertising copy. Presumably, by using the term “portrait” the Legislature intended a representation which includes a facial reproduction, either artistically or by photograph, but if we are to give effect to all parts of the statute, it applies also to the improper use of a “picture” of plaintiff which does not show the face. Manifestly, there can be no appropriation of plaintiff’s identity for commercial purposes if he or she is not recognizable from the picture and a privacy action could not be sustained, for example, because of the nonconsensual use of a photograph of a hand or a foot without identifying features. But assuming that the photograph depicts plaintiff, whether it presents a recognizable likeness is generally a jury question unless plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image. Before a jury may be permitted to decide the issue, to survive a motion for summary judgment, plaintiff must satisfy the court that the person in the photograph is capable of being identified from the advertisement alone and that plaintiff has been so identified.

The sufficiency of plaintiff’s evidence for purposes of the motion will necessarily depend upon the court’s determination of the quality and quantity of the identifiable characteristics displayed in the advertisement and this will require an assessment of the clarity of the photograph, the extent to which identifying features are visible, and the distinctiveness of those features. This picture depicts two nude persons, a woman and a child, standing in water a few inches deep. The picture quality is good and there are no obstructions to block the view of the subjects. The woman is carrying a small unidentified object in her left hand and is leading the child with her right hand. Neither person’s face is visible but the backs and right sides of both mother and child are clearly presented and the mother’s ; right breast can be seen. The identifying features of the subjects include their hair, bone structure, body contours and stature and their posture. Considering these factors, we conclude that a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement. Although we do not rely on the fact, it is also reasonable to assume that just as something in the advertising copy may aid recognition (see, e.g., Ali v Playgirl, Inc., 447 F Supp 723, supra [use of phrase “The Greatest” under drawing identified as Muhammad Ali]; Negri v Schering Corp., 333 F Supp 101, supra [use of motion picture actress Pola Negri’s photograph to advertise Polaramine Repetab Tablets]), identifiability may be enhanced also in a photograph depicting two persons because observers may associate the two and thus more easily identify them when they are seen together.

The plaintiffs also submitted evidence that they were identified as the persons in defendants’ advertisement by Ira Cohen’s affidavit in which he stated that while leafing through one of defendants’ magazines he “recognized [his] wife and daughter immediately.” That was prima facie sufficient (see Richardson, Evidence [10th ed], § 364, subd [a]).

Defendants contend Mr. Cohen’s affidavit is not probative on the issue of identification because he was present when the photograph was taken, as indeed he was. He was not only present, he was incensed by the photographer’s intrusion and chased him away. Essentially, defendants’ contention is that Mr. Cohen’s identification is tainted by this independent knowledge that plaintiffs were photographed by defendant Krieger while bathing. Although Mr. Cohen’s presence when the photograph was taken may have increased his ability to identify his wife and child, the motion court or the jury at trial could conclude that he also recognized them from the photograph and his presence when it was taken, standing alone, does not disqualify him from offering evidence that he did so. The cases cited by defendants on the point are neither controlling nor persuasive. In Branson v Fawcett Pub. (124 F Supp 429) and Brauer v Globe Newspaper Co. (351 Mass 53), the courts found the witnesses in question were incapable of identifying the plaintiffs absent independent knowledge of the photographing because neither photograph contained sufficient identifying characteristics of plaintiffs. In Branson the plaintiff was not visible at all, and in Brauer the photograph depicted only one ear and the partial outline of the back of a boy’s head.

Finally, defendants rely on three cases involving books, plays, and motion pictures in support of their motion for summary judgment. They, too, are readily distinguishable. In both Wojtowicz v Delacorte Press (43 NY2d 858, affg 58 AD2d 45, supra) and Toscani v Hersey (271 App Div 445), defendants had not violated the statute because neither plaintiffs’ names nor their pictures were published. In Allen v Gordon (86 AD2d 514, affd 56 NY2d 780, supra), the only similarities between the plaintiff and the fictional character in the book were that both had the name “Dr. Allen” and both practiced psychiatry in Manhattan. The record demonstrated that these similarities were mere coincidence and that defendant’s fictional portrayal of “Dr. Allen” did not identify plaintiff and thus violate his right of privacy. In this case, the similarity of the details between plaintiffs and the persons appearing in the photograph is complete because concededly plaintiffs were the persons in the picture, not fictional characters. The only question was whether the details were sufficiently identifiable so that plaintiffs could be recognized (cf. People v Scribner’s Sons, 205 Misc 818, 822-823).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

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

Order affirmed, etc.

       While it might be sufficient for plaintiffs to identify themselves since the interest protected by sections 50 and 51 of the Civil Rights Law is their own “sentiments, thoughts and feelings” (Flores v Mosler Safe Co., 7 NY2d 276, 280) rather than their reputations in the eyes of others, as in defamation, we do not reach the issue because plaintiffs presented no evidence by Susan or Samantha Cohen that they recognized themselves.