source: Caselaw Access Project

author: Chief Judge Cooke. Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v James Davis, Respondent.
    Argued May 4, 1981,
    decided June 11, 1981

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Vivian Berger, Mark Dwyer and Philip Kunsberg of counsel), for appellant.
    I. Defendant committed perjury in response to proper questions intended to further the substantive goals of a Grand Jury investigation. Defendant’s answers evince a criminal intent to thwart the investigations with false testimony. (People v Tyler, 46 NY2d 251; People v Pomerantz, 46 NY2d 240; People v Schenkman, 46 NY2d 232.) II. Defendant’s perjurious testimony was material, in that it permitted him to explain his lies to his superiors without conseding that his prior actions had been corrupt. Accordingly, defendant was properly indicted for perjury in the first degree. Moreover, the Grand Jury instructions on which the indictment was based were correct. (People v Samuels, 284 NY 410; People v Stanard, 42 NY2d 74, 434 US 986; People v Calbud, Inc., 49 NY2d 389; People v Clemente, 285 App Div 258, 309 NY 890; People v Ianniello, 36 NY2d 137, 423 US 831; People v Dunleavy, 41 AD2d 717, 33 NY2d 573.)

      Charles T. Brosokas, Richard Hartman and Raymond E. Kerno for respondent.
    I. During the course of the Grand Jury testimony, the prosecutor led the witness into a perjury trap. (People v Tyler, 46 NY2d 251.) II. Defendant’s alleged false statement was not material to the investigation; the legal instructions given to the Grand Jury were incorrect and insufficient. (United States v Icardi, 140 F Supp 383; People ex rel. Hegeman v Corrigan, 195 NY 1; People v Clemente, 285 App Div 258, 309 NY 890.)
   OPINION OF THE COURT

Chief Judge Cooke.

Presented on this appeal is the question whether a perjury indictment should have been dismissed under People v Tyler (46 NY2d 251) as the product of a perjury trap set by the prosecutor. The courts below held in the affirmative. We now reverse, concluding that dismissal of the indictment is unwarranted on the present record.

Defendant was indicted for perjury in the first degree for giving false testimony during a Grand Jury investigation of bribery and official misconduct. Defendant, then a detective in the Seventh Homicide Division and a 19-year veteran of the New York City Police Department, was not a target of the Grand Jury investigation, which was directed at certain organized crime figures, and was granted immunity with respect to his testimony. Specifically, the Grand Jury sought to determine whether the actual target of the investigation or his agents bribed defendant to identify an undercover officer. The Grand Jury investigation was prompted by defendant’s action on the night of December 2, 1977.

The Grand Jury was informed that as part of an investigation of organized crime activity conducted by the New York County District Attorney, Detective Salvatore Rizzo frequented the Posh Place, a bar located on the corner of East 19th Street and Second Avenue in Manhattan. On the night of December 2, Rizzo was at the bar and officially on duty. He observed that two men, one of whom was later identified as defendant, were looking at him. Rizzo left the bar, but noticed one of the men who had been watching him standing in the middle of the block. As he attempted to return to the bar, he saw defendant leaving. As Rizzo tried to enter a nearby building, one of the men asked if they could talk to him. Defendant displayed a police badge but the numbers were not visible. In response to defendant’s request, Rizzo produced identification for his assumed identity. Defendant informed Rizzo that they were from the Bronx Homicide Division investigating a case and asked what kind of car Rizzo was driving. When Rizzo described it, defendant stated that it was the type of car that had hit another person. Rizzo offered to show him the car but defendant declined. Sometime during the conversation, one of the men produced a photograph, a mug shot, and said that Rizzo resembled the man in the photograph. Rizzo denied the likeness. The brief confrontation ended, and defendant and the other man went to a car. Rizzo had never revealed his status as a police officer. As Rizzo left the scene, he noted the license plate. He later discovered that the car was registered to defendant. Following this incident, Rizzo thought he was being watched more closely at the Posh Place and abandoned his undercover activities there.

Within a few days, defendant was questioned about the incident by his superiors, Lieutenant John A. Gulley and Sergeant Vernon Geberth. Defendant informed them that he had been in the vicinity of the Posh Place on December 2 at the request of his friend, Jerry Vassilatos, to help a man named “Louie” locate and collect money from the person who damaged a car for which Louie was responsible. To his superiors, defendant categorically denied ever having left his car.

Defendant was questioned extensively before the Grand Jury. During his testimony, defendant denied personally knowing the target of the investigation and denied that he had been paid or otherwise influenced to identify an undercover officer. He explained his presence at the Posh Place, as he had to his superiors, as a favor to his friend Vassilatos. Defendant then explained to the Grand Jury that he had stopped Rizzo because he thought Rizzo might have been one Armando Colon, a fugitive wanted in The Bronx for numerous homicides. Defendant ultimately had allowed Rizzo to leave because he was sufficiently convinced that Rizzo was not Colon.

Following this explanation of his encounter with Rizzo, defendant was asked whether, as required by the department, he had filed a report of the stop. Defendant admitted that he had not. There was further questioning about the details of the encounter. Defendant was then asked whether he knew the target of the investigation or that the Posh Place was an establishment known to be frequented by the target and others involved in criminal activity. Defendant answered in the negative. He then admitted that he suspected the latter following the discussion with his superiors.

Defendant was asked to describe the meeting. Defendant then related that Gulley first questioned him alone about his presence at the Posh Place. Defendant told Gulley about “Louie” and that Louie thought the man he was looking for owned, worked in or patronized the Posh Place. Gulley told defendant that a big investigation was involved. The conversation ended and a second meeting occurred about 20 minutes later. Sergeant Geberth joined defendant and Gulley at this point.

In response to the prosecutor’s question about “what occurred”, defendant thereafter testified:

“A. Was approximately fifteen or twenty minutes after the first meeting. Lieutenant Gulley mentioned the name Joe Tortorella, he said, 'This Posh Place is owned by Joe does that name ring anything to you’, I says, 'Only that it’s possibly an organized crime person’, he says, 'Well’, he says, ‘I’m telling you this is a heavy investigation, Jim,’ he says, 'What were you doing there’ and I explained it to him again. He inquired if I had spoken to anyone and I said, 'No, I didn’t speak to anyone’ and then he went into a — other conversation and he said, 'Well, we have witnesses that a guy your size’ and I'm six seven and weigh 275 pounds so too there is not many people my size, 'Was on 19th Street and kicking the s — out of somebody’. So, I says, T never got out of the car. I never got out of the car’.

“prosecutor:

“Q. Did you just tell us, tell the grand jury that during this conservation with the Lieutenant and the sergeant you were told by the Lieutenant that there was an allegation that somebody fitting your description had been assaulting somebody?

“A. Seen in the area, yes, sir.

“Q. No, no.

“A. Oh.

“Q. I didn’t say that, please, Detective. Didn’t you just tell us that you were told during this meeting with the Lieutenant and the sergeant by the Lieutenant that someone fitting your description was seen in the area assaulting somebody?

“Yes, sir.

“Q. Go ahead?

“prosecutor:

“Q. Okay. What else occurred?

“A. So, he says, ‘Did you make a phone —’ I said, ‘No, I never made a phone call’, ‘Well, who was with you’ and I told him ‘Jerry and this fellow Louie’ and he says, ‘Well, who else — is Louie’ I says, ‘Jerry introduced me but I didn’t get his last name’. So, he says, ‘Well, when did you — are you sure you didn’t get out of the car’, I says, ‘No, I never —didn’t get out of the car. When Louie — Louie arrived we sat on the car, sat in the car on 2nd Avenue for approximately 45 minutes to an hour and I never got out of the car’. So, he says, ‘Well, Jim’, he says, ‘You know, you better —better, you know, make sure’, he says, ‘Because this is a heavy one. This is — this is — they’re talking about organized crime’, he says, ‘You know the names that I read to you’, I says — said, ‘Well, I heard them in the newspapers I don’t —other than that I didn’t bother with the department it’s not my field. So, I have nothing — I don’t usually — the only time I involve — involved with organized crime when I read it in the papers’.”

Defendant could not recall whether anything else was discussed at the meeting. The prosecutor reviewed defendant’s testimony concerning what he had said to and denied to his superiors. The prosecutor then pointed out that defendant had lied about the incident and concealed material information, i.e., that he had taken police action on the night in question. Defendant responded that his conduct with his superiors was difficult to explain but offered that it was prompted by the absence of constitutional warnings, which he would have expected if there was an allegation of criminal activity.

Defendant was excused and returned on the following day. Defendant was questioned again about his activities on December 2 and the details of his encounter with Rizzo. Defendant was shown photographs of organized crime figures and was asked if he knew or had seen them. Defendant replied in the negative. There was brief questioning about defendant’s meeting with his superiors and about whether defendant had discussed the Grand Jury investigation with Vassilatos. Defendant was again asked whether the target or any agent of the target requested defendant to identify an undercover officer. Defendant answered in the negative. He was also asked about his relationship with Vassilatos, a former police officer who had been convicted of extortion. Although acknowledging that Vassilatos offered him a job after retirement, defendant denied that the stop of Rizzo was related to that or any other payment.

Thereafter, Gulley and Geberth appeared before the Grand Jury and related the contents of the conversations with defendant. Gulley and Geberth related that defendant was asked whether he was at the Posh Place or stopped anyone. Both denied that either had told defendant that a person fitting his description was seen on 19th Street kicking someone.

Defendant thereafter was indicted for perjury in that he falsely attributed to Lieutenant Gulley the statement concerning an assault. His pretrial motion to dismiss the indictment was granted by Supreme Court on numerous grounds. The Appellate Division affirmed on the authority of People v Tyler (46 NY2d 251, supra), three Justices concluding that the indictment was the result of a perjury trap and two Justices concluding that the prosecutor was obligated to question defendant further about the statement and confront him with the contrary version of the meeting. The People were granted leave to appeal to this court. There should be a reversal.

To be disposed of first is the argument that the false statement for which defendant was indicted was not material to the Grand Jury investigation and thus could not form the basis of a first degree prejury charge, an essential element of which is materiality (Penal Law, § 210.15). In this State, materiality is a question of fact for the jury (People v Clemente, 285 App Div 258, affd no opn 309 NY 890; see People v Ianniello, 36 NY2d 137,144). To be material, the statement need not prove directly the fact in issue; it is sufficient if it is “circumstantially material or tends to support and give credit to the witness in respect to the main fact” (Wood v People, 59 NY 117,123). Thus a statement that “reflect [s] on the matter under consideration” (People v Stanard, 42 NY2d 74, 80), even if only as to the witness’ credibility (see People v Samuels, 284 NY 410, 414; People v Courtney, 94 NY 490), is material for purposes of supporting a perjury charge. Put another way, the test of materiality may be said to be “whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation” (United States v Stone, 429 F2d 138, 140; United States v Carson, 464 F2d 424, cert den 409 US 949). Under any formulation of the test, the materiality of defendant’s statement is manifest.

The purpose of the Grand Jury investigation was to discover why defendant had stopped Detective Rizzo. The prosecutor’s theory was that organized crime figures then under investigation had bribed defendant to reveal the identity of the undercover officer. Defendant’s explanation to the Grand Jury was to the contrary and belied an improper motive for the stop: he was at the Posh Place to help the friend of a friend collect a sum of money and thereafter took police action when he observed a man who resembled a suspect wanted for numerous homicides. The validity of this explanation was seriously undermined, however, by defendant’s false statement to his superiors and his failure to inform them of the police action. The circumstances surrounding defendant’s discussions with his superiors thus were critical for the Grand Jury’s evaluation of his testimony. Confronted with his prior falsehood, defendant acknowledged that he had lied but explained that he thought he was being charged with an assault. This explanation substantially mitigated the damage to his version of the stop as properly motivated police action. Defendant’s response did not simply bolster his credibility generally, it gave substantive aid to his denial of improper motive. Put simply, defendant’s conduct was the very matter being investigated by the Grand Jury. His explanation of his activities to his superiors, the fact that the explanation was a lie and the reason for the lie, had direct bearing on whether defendant’s conduct involved criminality. In such circumstances, there is at least a fact question for the jury concerning materiality.

We turn then to defendant’s main argument in support of dismissal, accepted below, that the indictment represents the prosecutor’s successful effort to “trap” defendant into perjury, a practice condemned in People v Tyler (46 NY2d 251, supra). Tyler does not compel dismissal of the indictment here.

In Tyler, this court dismissed an indictment for perjury committed during a Grand Jury investigation of bribery, bribe receiving and official misconduct. The court concluded that the questioning of the witness, a Supreme Court Justice, was designed not to ascertain facts pertinent to the Grand Jury investigation but to secure a perjury indictment.. The false answers for which the defendant was indicted were in response to questions concerning simply “outward details of place and time” of a meeting between the defendant and an organized crime figure (46 NY2d, at p 254). Although the substance of that meeting was the goal of the Grand Jury investigation, the prosecutor made little attempt to obtain information relative to that meeting. Instead, armed with a complete description of the defendant’s movements from members of a surveillance team, the prosecutor questioned the defendant on “peripheral details” of the meeting without giving the witness even limited cues to refresh what might have been simply faulty recollection (id.). Through the manner and subject of the questioning, the prosecutor “demonstrated no palpable interest in eliciting facts material to the authorized substantive investigation of antecedent crime or official misconduct” (id.). The totality of these circumstances led the court to conclude that the interrogation as a matter of law was merely a “perjury trap”.

Tyler stands for no more than that a perjury indictment requires a demonstration of intentional falsity in response to “purposeful substantive inquiry” (46 NY2d, at p 262) —that such an indictment may not be predicated upon interrogation techniques that have perjury as the sole object. On this record, it must be said as a matter of law that the questioning here does not amount to the practice condemned in Tyler. Indeed, none of the circumstances found compelling in Tyler are present.

As noted earlier, the Grand Jury sought to determine why defendant had stopped Detective Rizzo for identification on December 2. His response to the inquiry was that he was pursuing proper police action. The fact that he had lied when questioned by his superiors and his reason therefor were of critical significance. Without prompting, defendant offered that he had been accused or suspected of an assault. It is true that the prosecutor immediately reiterated defendant’s answer for confirmation. But nothing in the exchange demonstrates that the questioning was designed as a perjury trap. Indeed, the question precipitating the revelation was simply a request for a description of what occurred at defendant’s meeting with his superiors.

To characterize the prosecutor as being preoccupied with trapping defendant simply reads too much into the record at this point. As far as the record reveals, the prosecutor genuinely may have been surprised by defendant’s statement, offered in mitigation of his previous lie. No improper motive can be attributed to the prosecutor as a matter of law simply because he promptly repeated the response, seeking confirmation. Nor can such a motive be found because he did not question defendant further about that particular statement. Defendant was questioned extensively about the contents of the conversation. Answers were routinely repeated by the prosecutor. And, when confronted directly with the fact that he had lied to his superiors about purportedly proper police action, defendant explained that he had not been advised of his constitutional rights, a response consistent with the earlier false statement.

Also significant here is the fact that the subject of the particular line of questioning was a memorable event. And, it was the substance of the meeting to which the inquiry was directed, not merely outward details of its occurrence. Defendant evidenced little inability to recall. In such circumstances, intentional rather than inadvertent falsifying is reasonably demonstrated by the record (cf. People v Pomerantz, 46 NY2d 240; People v Schenkman, 46 NY2d 232).

The absence of further questioning about the false statement does not, as urged, detract from that view. A prosecutor is not obligated in every case to probe a particular response. The prosecutor here was not faced with an apparent inability to recall, such as would prompt him to press further on the subject. He was confronted with an unequivocal statement. There is nothing in the record that shows that the prosecutor knew that the statement just made was not true; Gulley and Geberth had not yet testified before the Grand Jury. There simply is nothing that would or should have alerted the prosecutor to the possibility that defendant’s statement was mistakenly or inadvertently false.

Also unpersuasive here is the suggestion that a perjury trap is shown because the prosecutor did not confront defendant with the contrary evidence. As noted, the record of the Grand Jury proceedings does not show that the prosecutor possessed contrary evidence or knew that defendant was lying at that point. Furthermore, there is no requirement of such confrontation in every case. Faced with a falsehood, a prosecutor is not obligated to offer the witness an opportunity to recant or tailor his testimony to conform to the available information (see People v Tyler, 46 NY2d, at p 261, supra; People v Pomerantz, 46 NY2d, at p 249, supra). The purpose of confronting a witness with contrary facts or of providing even limited cues is simply to assure that the witness’ response is a deliberate falsification (see People v Tyler, 46 NY2d, at pp 261, 262, supra). Such assurance may be unnecessary, however, where there are other indicia that the response is knowingly false. Sufficient assurance is present here.

As was made clear in Tyler, whether a perjury indictment represents a trap set by the prosecutor generally is a question of fact (46 NY2d, supra, at pp 259,262; see People v Fischer, 53 NY2d 178, 183, n 1, [decided herewith]). On this record, it must be said as a matter of law that defendant was not led into a perjury trap requiring dismissal of the indictment.

Finally, the legal instructions to the Grand Jury concerning the elements of perjury in the first degree were sufficient (see People v Calbud, Inc., 49 NY2d 389).

Accordingly, the order of the Appellate Division should be reversed, the indictment reinstated and case remitted for further proceedings on the indictment.

Wachtler, J.

(dissenting). The trial court and the Appellate Division correctly concluded that our decision in People v Tyler (46 NY2d 251) requires dismissal of the indictment. Indeed this case presents an even clearer example of a perjury trap.

The defendant was summoned to appear before a Grand Jury investigating a claim that he had accepted a bribe to expose a police agent working undercover at a night club on December 2, 1972.

Several days after the incident the defendant’s superiors had questioned him about it. The defendant readily admitted to the Grand Jury that he lied to his superiors on that occasion by telling them that he never got out of his car. When asked “what occurred at that meeting?” the defendant provided a narrative in which he volunteered the statement that his superiors had informed him that someone fitting his description had allegedly assaulted someone near the club on December 2. After asking the defendant to confirm that statement the prosecutor abruptly changed the topic and never again returned to that subject in questioning the defendant.

Although the People now offer elaborate arguments to show that this apparently collateral matter was material, if not crucial, to the Grand Jury investigation of the alleged bribery, the arguments are belied by the prosecutor’s casual acceptance of the defendant’s answer when he appeared before the Grand Jury. There the prosecutor’s only concern seemed to be to get the defendant to repeat the statement in answer to a question so that it could later serve as a basis for a perjury indictment, as it did.

Although the majority sees little significance in the prosecutor’s apparent acceptance of the defendant’s answer until after he had left the stand never to be recalled, this type of prosecutorial ambush was the key factor in People v Tyler (46 NY2d 251, supra) as well as the companion decisions, People v Schenkman (46 NY2d 232) and People v Pomerantz (46 NY2d 240).

In Schenkman, where the indictment was upheld, we emphasized (at p 234) that “the questioner provided more than enough cues, through restatement and repetition to stimulate her recollection”. Similarly, in Pomerantz, where the indictment was also upheld, we again emphasized (at p 249) that “the key questions were repeated, restated, and elaborated upon until it was apparent that further effort was fruitless”. In Tyler, on the other hand, we dismissed the indictment because the interrogator “evinced no interest in having defendant give a convincing narrative of the meeting” (People v Pomerantz, supra, at p 249). He did not pursue the matter and was “[s]eemingly content with the defendant’s description” (People v Tyler, supra, at p 260). That also describes the prosecutor’s conduct in the case now before us.

In fact what occurred here is less tolerable because in Tyler the defendant was extensively questioned about the details of the meeting (see People v Tyler, supra, at pp 256, 257) and during his testimony disclosed several inconsistencies with the known facts. Here, however, the defendant answered all questions with candor, no matter how damaging, and yet a single answer to a stray question has been used as a basis for a perjury indictment.

The essence of the perjury trap concept is that a Grand Jury investigation should be used tó get at the truth and should not be employed as a means for getting a perjury indictment in the event the primary investigation is unproductive. The question in each case must be whether the record shows that the prosecutor was concerned with getting at the truth, or was he merely concerned with getting a lie on the record for further use as a basis for a perjury prosecution. Here the prosecution’s complete failure to develop the point or attempt, by further questioning of the defendant, to reconcile the conflict between his testimony and that of his superiors when they appeared before the Grand Jury shows either that the point was not as material as he now suggests, or that he was more concerned with preserving the lie than with flushing out the truth. That is precisely what we condemned in People v Tyler where we held, as did both the courts below in the present case, that there was a perjury trap.

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

Order reversed, indictment reinstated and case remitted to Supreme Court, New York County, for further proceedings on the indictment.

       We decline to adopt a rule that a perjury trap is to be found in every case in which the prosecutor does not confront the witness with his or her falsehood, without regard to the circumstances. To do so would unnecessarily restrict the Grand Jury investigatory process.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Charles Fischer, Appellant.
    Argued May 6, 1981;
    decided June 11, 1981

      POINTS OF COUNSEL

      Herald, Price Fahringer for appellant.
    I. Appellant’s answers indicating that he had never been asked to give any money to a court official were sufficiently precise to foreclose a contempt conviction. (O’Connell v United States, 40 F2d 201; People v Saperstein, 2 NY2d 210, 353 US 946; People v Renaghan, 40 AD2d 150; People v Schenkman, 46 NY2d 232; People v Ianniello, 36 NY2d 137; Matter of Ruskin v Detken, 32 NY2d 293; People ex rel. Valenti v McCloskey, 6 NY2d 390; People v Tilotta, 84 Misc 2d 170; People v Tyler, 46 NY2d 251.) II. In an evasive contempt prosecution where a witness is unable to recall a statement allegedly made to him, the prosecution must prove that underlying statement before a person can be convicted of criminal contempt. (People v Ianniello, 36 NY2d 137; Matter of Ruskin v Detken, 32 NY2d 293; People ex rel. Cirillo v Warden of City Prison, 11 NY2d 51; People v Saperstein, 2 NY2d 210; People ex rel. Falk v Sheriff of N. Y. County, 258 NY 437; People v Pomponio, 64 AD2d 930; People v Martin, 47 AD2d 883, 42 NY2d 882; People v Tantleff, 47 AD2d 829, 40 NY2d 862; People v Shapolsky, 8 AD2d 122.) III. The prosecutor’s unconscionable conduct during final argument denied appellant his right to a fair trial guaranteed by the Sixth and Fourteenth Amendments and requires that the judgment of conviction be reversed. (United States v Burse, 531 F2d 1151; People v Alvarez, 65 AD2d 146; People v Levan, 295 NY 26; People v Mason, 71 AD2d 961; People v Christie, 16 AD2d 598; People v Hunnicutt, 15 AD2d 536; People v Walker, 66 AD2d 863; People v Lovello, 1 NY2d 436.) IV. It was error for the prosecutor to play the electronic surveillance tapes to the jury since they were irrelevant to the issue of contempt. (People v Marinaccio, 90 Misc 2d 128.) V. The court committed reversible error when it misinstructed the jury on several critical issues. (People v Barnes, 50 NY2d 375; People v Piazza, 48 NY2d 151; People v Licitra, 47 NY2d 554; People v Von Werne, 41 NY2d 584; People v Morris, 42 AD2d 968; People v Sellers, 73 AD2d 697; People v Argibay, 57 AD2d 520; Mark v Colgate Univ., 53 AD2d 884.)

      Robert M. Morgenthau, District Attorney (Jerrold L. Neugarten and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. (People v Schenkman, 46 NY2d 232; People v Ianniello, 21 NY2d 418, 393 US 827; People ex rel. Valenti v McCloskey, 6 NY2d 390; People v Martin, 47 AD2d 883, 42 NY2d 882; People v Saperstein, 2 NY2d 210.) II. There was no obligation to prove the statements whose very existence was the subject of the Grand Jury inquiry. (People ex rel. Cirillo v Warden of City Prison, 11 NY2d 51; People v Martin, 47 AD2d 883, 42 NY2d 882; People v Ianniello, 36 NY2d 137; People v McGrath, 46 NY2d 12; People v Rappaport, 47 NY2d 308; People v Doody, 172 NY 165; People v Schenkman, 46 NY2d 232; Matter of Kamell, 170 Misc 868, 258 App Div 723; People v Renaghan, 40 AD2d 150, 33 NY2d 991.) III. The challenged remarks of the prosecutor during summation far from “revolting” and “diabolical,” were largely unobjected to. In any event, the remarks were totally appropriate. (People v Santiago, 52 NY2d 865; People v Santarelli, 49 NY2d 241; People v Ashwal, 39 NY2d 105; People v Alicea, 37 NY2d 601; Parker v Randolph, 442 US 62; People v Doody, 172 NY 165; Zemliansky v United Parcel Serv., 175 Misc 829; United States v Kyle, 257 F2d 559; People v Reade, 1 NY2d 459.) IV. The court did not improperly refuse to charge the jury on circumstantial evidence and did not err in telling the jury the trial was a “search for the truth.” Nor was it a “bizarre incident” requiring reversal when one of the jurors asked the prosecutor how to spell her name. (People v Katz, 209 NY 311; People v Le Mieux, 51 NY2d 981; People v Von Werne, 41 NY2d 584; People v Argibay, 45 NY2d 45.) V. It was not error to play, for the trial jury, the tapes played in the Grand Jury. (People v Renaghan, 40 AD2d 150, 33 NY2d 991; People v McGrath, 46 NY2d People v Schenkman, 46 NY2d 232; People v Saperstein, 2 NY2d 210; People v Martin, 47 AD2d 883, 42 NY2d 882; People v Marianaccio, 90 Misc 2d 128.)
   OPINION OF THE COURT

Jones, J.

To sustain a conviction of criminal contempt in the first degree for refusal to answer questions before a Grand Jury, on the premise of contemptuously evasive responses to material questions, it is not necessary for the prosecution to establish that the event, conversation or other fact referred to in the questions did in fact occur.

Defendant, a practicing attorney, was charged with six counts of criminal contempt in violation of section 215.51 of the Penal Law arising out of his appearance and testimony before a Grand Jury investigating suspected misconduct of one Abram Brown, a law assistant in New York County Supreme Court. Defendant’s first trial ended when the jury was unable to reach a verdict and a mistrial was declared. On his second trial he was acquitted of two counts and again the jury was deadlocked on the other four counts. At his third trial, the present, the trial court dismissed one count, defendant was acquitted on two counts, and the jury returned a verdict of guilty on the remaining count. On appeal from this conviction the Appellate Division affirmed, without opinion. Permission to appeal to our court was granted by one of our members to consider an issue of first impression for us.

Defendant was asked whether Abe Brown had told him in words or substance that a fellow law assistant whom Brown identified as his cousin was responsible for a particular decision (allegedly favorable to defendant’s client) and that this law assistant expected a payment of money from defendant. Defendant’s conviction was based on his four responses to that question, and its reiteration in substantially the same form, that he did not recall this conversation or statement. It is the People’s contention that these responses in the circumstances were patently evasive and sufficient to warrant a conviction for criminal contempt. The jury was charged that to find defendant guilty they must find that his responses to the questions asked of him were “the equivalent of refusals to testify”.

“Before you can find the defendant guilty of criminal contempt in the first degree, you must be satisfied beyond a reasonable doubt * * * that the defendant’s answers were so intentionally false and evasive as to be tantamount to a contumacious and unlawful refusal to answer.

“If you are not satisfied beyond a reasonable doubt as to [this element], you must find the defendant not guilty.”

Defendant first asserts that his answers stating that he had never been asked to give any money to a court official were sufficiently precise to foreclose a contempt conviction, citing our decision in People v Ranaghan (33 NY2d 991). It is accurate to characterize defendant’s answers and denials with respect to the underlying transaction as precise. That this argument is unavailing, however, in the present case stems from the distinction between the “happening” of an event and a “telling” about it — a differentiation between two discrete sets of questions. The questions on which this contempt conviction was predicated concerned Abe Brown’s alleged statement to defendant about the underlying transaction. Precision of response with respect to questions related to the transaction itself does not serve to offset uniform equivocation with respect to questions as to whether Abe Brown had made a statement to defendant about the transaction. In Renag han (in which by a divided court we upheld the Appellate Division’s reversal of a conviction of criminal contempt) the preclusive prior precision had related to the very question with respect to which a conviction had been obtained for subsequent asserted evasiveness. Such is not the case here. We agree with the courts below that there is sufficient evidence in this record to sustain the jury’s verdict.

Defendant places principal reliance for reversal on his conviction on the trial court’s refusal to charge in accordance with his explicit request: “In the first instance, it must, of course, be established by the evidence, beyond a reasonable doubt that the ‘event, conversation or other facts which the defendant claims he does not remember’ did, in fact, occur. Obviously, the law does not require a defendant to remember an event, a conversation or any other fact which may never have occurred at all”, a request which tracked almost verbatim the recommended charge set out in Criminal Jury Instructions (3 CJI [NY], Penal Law, §215.51, p 1650). The requested charge was properly denied, and the trial court correctly instructed the jury that “the People are not required to prove that the acts underlying the question actually occurred”.

As stated, the legal issue posed is one of first impression in our court. Counsel for defendant concedes that no decision of our court is in point and the draftsmen of Criminal Jury Instructions draw attention to no such case, although it does appear that in most, if not all, reported cases upholding convictions for evasive contempt there has in fact been proof of the underlying event, conversation or other fact. That this has been so, while relevant, is not determinative.

Conviction of “evasive contempt” must be based on a determination that there was a refusal to answer a material question before the Grand Jury; it does not suffice that the answer may be found to have been evasive or equivocal. Counsel for defendant readily concedes that a conviction would lie for answers such as “I refuse to answer” or its express equivalent, as well as for failure to recall such unforgettable events as whether the witness was married (described by him as “clearly false on its face”). Conviction of the offense is not to be grounded, however, on the truth or falsity of the answer (to which proof of the underlying event, conversation or fact would be addressed), as would be the case were the defendant charged with perjury. The essence of any conviction for evasive contempt is that the jury shall find beyond a reasonable doubt that the defendant’s response was intended as no answer at all and was thus tantamount to a refusal to answer (People v Ianniello, 36 NY2d 137, 142; People v Ianniello, 21 NY2d 418, 423, 427). It is only when the jury makes this determination that conviction for contempt is warranted. For this purpose it is unnecessary to determine whether the underlying event, conversation or fact did or did not occur. It is not the content of the answer on which a conviction for contempt can be based; it is that in the circumstances in which the question is asked and the response given, whatever may be the normal denotation of the words spoken, the jury is warranted in concluding, as it did in this case, that the words were spoken with intent to evade making an answer. That conclusion can reasonably be reached without respect to whether the state of affairs assumed in the question did or did not exist.

In the present case, the jury might have concluded that defendant’s response, “I do not recall”, was an accurate statement of his failure to recollect or that it was intentionally false. In either of such events they could not have found defendant guilty of evasive contempt, and to reach either of those conclusions it would have been very important for the jury to know whether in fact Abe Brown had made the statement attributed to him. To have convicted defendant of the contempt charge, however, the jury must have found, in accordance with the instructions given by the trial court, that defendant uttered and repeated his “failure to recall” with the intention of evading an answer to the questions asked. For purposes of making or rejecting that critical finding it was immaterial whether Abe Brown had ever said anything to do defendant. The trial court, therefore, properly refused to give the charge requested. Such a charge, if given, would have improperly led the jury into consideration of a collateral and extraneous issue of fact, and indeed, might inadvertently have led them to an unwarranted verdict on the contempt charge based on their evaluation of the truth or falsity of defendant’s answers.

We have examined defendant’s other contentions and find them to be without merit.

For the reasons stated, the order of the Appellate Division should be affirmed.

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

Order affirmed.

      . Defendant also asserts that he was the victim of a “contempt trap”, an argument grounded, by analogy, on the concept of a perjury trap (cf., e.g., People v Tyler, 46 NY2d 251). As in the case of a perjury trap, however, the issue would ordinarily be one of fact to be submitted to the triers of fact for appropriate resolution (id., p 259). No such issue was submitted to the jury in this case, and on the record before us it cannot be concluded as a matter of law that there was a contempt trap.

      . As was indicated in People v Renaghan (33 NY2d 991, supra), if the answer is unambiguous, criminal liability, if any, must be for perjury, not contempt.

      . We do not suggest that evidence that the event, conversation or fact did occur would be inadmissible if offered by the People, or that evidence that it did not occur would be inadmissible if offered on behalf of the defendant.


author:
Chief Judge Cooke. Jones, J.
      Fuchsberg, J.

text:
    In the Matter of Michael Y. Warder et al., as Proposed First Trustees of the Unification Theological Seminary, Appellants, v Board of Regents of the University of the State of New York, Respondents. (And Another Proceeding.)
    Argued April 28, 1981;
    decided June 11, 1981

      POINTS OF COUNSEL

      Peter L. Danziger and Barbara G. Billet for appellants.
    I. Respondents abused the administrative process. (Withrow v Larkin, 421 US 35 ; American Cyanamid Co. v Federal Trade Comm., 363 F2d 757; Berkshire Employees Assn. of Berkshire Knitting Mills v National Labor Relations Bd., 121 F2d 235; Association of Nat. Advertisers v Federal Trade Comm., 460 F Supp 996; Klein v O’Hagan, 70 AD2d 514; Cinderella Career & Finishing Schools v Federal Trade Comm., 425 F2d 583; Texaco, Inc. v Federal Trade Comm., 336 F2d 754; Matter of Newbrand v City of Yonkers, 285 NY 164; Matter of Gabriel v Turner, 50 AD2d 889; Cantwell v Connecticut, 310 US 296.) II. The reasons given for denial of appellants’ application were concocted by respondents in an attempt to justify a preordained result. (Matter of Elite Dairy Prods, v Ten Eyck, 271 NY 488.) III. The statutes, rules and regulations governing provisional charter applications are unconstitutional as they contain no objective standards. (Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Levine v Whalen, 39 NY2d 510; Packer Coll. Inst, v University of State of N. Y., 298 NY 184; Matter of Koelbl v Whalen, 63 AD2d 408, 45 NY2d 838; Board of Educ. v Barnette, 319 US 624.) IV. Summary judgment should not have been granted to respondents. (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Matter of Newbrand v City of Yonkers, 285 NY 164; Matter of Gabriel v Turner, 50 AD2d 889.)

      Donald O. Meserve, Robert D. Stone and Jean M. Coon for respondents.
    I. The review of the Seminary’s application by the Board of Regents was a reasonable exercise of the board’s discretion. (Holy Spirit Assn. for Unification of World Christianity v New York Times Co., 49 NY2d 63; Matter of Stracquadanio v Department of Health of City of N. Y., 285 NY 93; Matter of Marks v Regents of Univ. of State of N. Y., 279 App Div 476, 306 NY 591; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Weinstein v

      Bradford, 423 US 147.) II. There is a rational basis in the record for the determination denying a Regents charter and approval of a masters degree program at the Unification Theological Seminary. (Matter of Pell v Board of Educ., 34 NY2d 222; Moore v Board of Regents of Univ. of State of N. Y., 59 AD2d 44, 44 NY2d 593.) III. The statutes and regulations establishing standards for institutions of higher education are constitutional. (Matter of Koelbl v Whalen, 63 AD2d 408, 45 NY2d 838; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Levine v Whalen, 39 NY2d 510; Moore v Board of Regents of Univ. of State of N. Y., 59 AD2d 44, 44 NY2d 593; Institution of Metropolis v University of State of N. Y., 159 Misc 529, 249 App Div 33.) IV. The determination of the Board of Regents should not be set aside because of allegations of bias. (Klein v O’Hagan, 70 AD2d 514, 51 NY2d 784; Matter of Rotwein [Goodman], 291 NY 116; Matter of Fitzgerald v Wells, 9 AD2d 812, 9 NY2d 864; People v Patrick, 183 NY 52; State Div. of Human Rights v Merchants Mut. Ins. Co., 59 AD2d 1054; Laurence Univ. v State of New York, 41 AD2d 463; Cinderella Career & Finishing Schools v Federal Trade Comm., 425 F2d 583; Duke v North Tex. State Univ., 469 F2d 829; Trade Comm. v Cement Inst., 333 US 683; Hortonville Dist. v Hortonville Educ. Assn., 426 US 482.) V. Respondents did not abuse the administrative process. (United States v Ballard, 322 US 78; La Rocca v Lane, 37 NY2d 575; Matter of Sampson, 65 Misc 2d 658, 29 NY2d 745; Perry v Sindermann, 408 US 593; Leis v Flynt, 439 US 438; Board of Curators, Univ. of Mo. v Horowitz, 435 US 78; Matter of Fink v Cole, 1 NY2d 48; Matter of Fredette v Hostetter, 36 AD2d 891; Schwartz v Waterfront Comm, of N. Y. Harbor, 35 AD2d 373; Paterson v University of State of N. Y., 14 NY2d 432; Matter of Bergansky v State of New York Liq. Auth., 39 AD2d 849, 33 NY2d 813.) VI. The courts below properly granted summary judgment for respondents. (Matter of O’Brien v Commissioner of Educ. of State of N. Y., 3 AD2d 321, 4 NY2d 140, 6 AD2d 745, 361 US 117; Matter of Savage v Allen, 13 Misc 2d 489, 8 AD2d 650, 911; Matter of Erlanger v Regents of Univ. of State of N. Y., 256 App Div 444; James v Board

      of Educ., 37 NY2d 891; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56; Mallad Constr. Corp. v County Fed Sav. & Loan Assn., 32 NY2d 285; Matter of Sachs v Board of Educ., 71 AD2d 898; Cohoes Mem. Hosp. v Mossey, 25 AD2d 476.)
   OPINION OF THE COURT

Chief Judge Cooke.

Petitioners, proposed trustees of the Unification Theological Seminary, challenge as arbitrary the denial of a provisional charter by the Board of Regents. The Seminary, an educational institution in Barrytown, New York, is sponsored and financially supported by the Holy Spirit Association for the Unification of World Christianity (“Unification Church”), a religious organization incorporated in California in 1961. Since 1975, the Seminary has offered a two-year graduate program of religious education. Seeking incorporation and the authority to confer Master of Religious Education degrees, petitioners applied to the Board of Regents and Commissioner of Education for a provisional charter. Following a lengthy investigation of the Seminary, its sponsor and the educational program offered, the application was denied.

A review of the proceedings is necessary in order to evaluate petitioners’ claims. The provisional charter application was submitted in April, 1975. The State Education Department reviewed the application, investigated the Seminary and, in June, 1976, the Deputy Commissioner of Higher and. Professional Education issued a report favorable to the Seminary but recommending that action be deferred in light of pending and anticipated investigations of the parent organization. In the fall of 1976, in accordance with Education Department practice, the Seminary was evaluated by two independent consultants. The consultants, while noting certain areas of concern, recommended approval. By February, 1977, the office of counsel for the State Education Department, the Deputy Commissioner of Higher and Professional Education and the Commissioner of Education had recommended approval of the application, which was then forwarded to the Board of Regents for action at the February, 1977 meeting. No action was taken at that time.

In March of that year, legislative resolutions cited recently publicized concern about the policies and practices of the Unification Church and requested the Board of Regents to delay its decision pending investigation. The matter was deferred again following the April meeting of the board, at which Regents Yavner and Griffith, during debate, expressed concern about provisional charter approval, in light of unresolved questions as to faculty and programs and the charges against the Unification Church of involvement with the South Korean government and Korean Central Intelligence Agency (KCIA). They were also concerned about charges that the church and its leaders engaged in or encouraged brainwashing and deceptive practices. Yavner commented critically on the book containing the religious tenets of the church and was of the opinion that it was a political as well as a religious document. Griffith went further to express disapproval of the purposes and activities of the church, which he felt were incompatible with the principles of our society. Yavner moved to delay a decision pending further review by a committee of Regents appointed by the board. The motion carried and Regents Genrich, who would have granted approval and voted against delay, and Yavner together with Bongiorno, another Regent, were appointed to the committee.

Petitioners, dissatisfied with the progress on the Seminary application, commenced an article 78 proceeding in July, 1977 to compel a decision. The proceeding was dismissed upon a determination that the delay was not unreasonable.

In mid-November, 1977, the Regents committee issued a preliminary progress report summarizing the information it had obtained. As to the academic questions, the report summarized the reports of the original consultants and another independent consultant, all of which found the program, facilities and administration adequate. As to the related issues, the committee as yet had found no evidence of a link between the Seminary and the Korean government or KCIA, or of brainwashing at the Seminary or by members of the Unification Church. The committee noted that further investigation by it was necessary because pending investigations by other governmental agencies had not been completed. Furthermore, information obtained by the committee raised questions concerning the Seminary’s stability, financing plan and dependence upon the Unification Church as its source of income, and the church’s alleged policy of deception in fundraising and recruitment. The Seminary was to be questioned on these matters and given an opportunity to respond.

Petitioners thereafter were requested to furnish affidavits concerning KCIA involvement, recruitment and fundraising techniques of the Unification Church and an audited financial statement from the church. The Education Department, under the direction of the committee, issued a staff report on December 7,1977, which noted that it was still awaiting responses to some of the questions raised in the previous report. The staff also had confirmed that the Unification Church of New York, Inc., the organization upon which the Seminary was to rely for financial support through a lease arrangement, had become inactive, having transferred the majority of its assets and liabilities to the California organization. A request was outstanding for the submission of an alternative financing plan. The staff stated that evidence, in the form of affidavits and statements from former church members, was available concerning deceptive practices used by church members in fundraising and recruitment but that there was no evidence of advocacy of illegal activities by leaders of the church or petitioners or at the Seminary and no evidence that the Seminary, petitioners or Unification Church were involved with the KCIA.

Before the December, 1977 meeting of the Board of Regents, petitioners were provided with copies of and invited to respond to the information that had been received by the committee. The December meeting produced a decision to defer action on the application in light of the receipt of additional allegations against the church and Seminary, including representations of deception concerning the Seminary program and noncompliance with admissions and program requirements established by the Seminary. Petitioners were also informed that the financial statement of the Unification Church, the .substituted lessee of Seminary property, was inadequate and were again requested to submit a statement in audited form.

Petitioners were informed on December 19 that a review team from the Education Department would visit the Seminary on December 20 to review its records. Following that visit, the Education Department and Regents committee recommended that the application be denied. The findings were that the Seminary had represented itself through brochures and transcripts as having .degree-granting status, that the student records showed that some graduates had not completed the number of credits or courses represented by the Seminary to be required, that admissions requirements set up by the Seminary, such as submission of GRE scores, letters of recommendation, and undergraduate transcripts, had not been enforced and that no audited financial statement for the Unification Church had been submitted.

Petitioners were given the opportunity to respond to the committee report and submitted denials of and explanations for the perceived deficiencies, including oversight, program evolution and practical difficulties. The Board of Regents, at the January, 1978 meeting, again deferred action to allow the Education Department to consider petitioners’ response. The Education Department and Regents committee issued a final report in February, which addressed issues disputed in petitioners’ response, found the explanations inadequate to remove concern over the deficiencies and adhered to its recommendation for denial. At the February meeting of the board, that body voted unanimously to deny the application based on the findings and conclusions of the Regents committee reports.

Petitioners commenced the second article 78 proceeding challenging the determination as arbitrary on numerous grounds, including bias, administrative abuse and the application of imprecise standards. Respondents’ motion for summary judgment was granted and the petition dismissed. Petitioners appealed this judgment and the judgment in the first article 78 proceeding to the Appellate Division. That court affirmed both judgments, concluding that the delay in the decision was not unreasonable and that no constitutional rights had been violated by the investigation or determination. Petitioners were granted leave to appeal to this court.

Petitioners maintain that the Board of Regents determination should be annulled as arbitrary because it represents an abuse of the administrative process and the violation of petitioners’ substantive and procedural rights, and because the statutes, rules and regulations under which the Board of Regents acted are unconstitutionally vague. Finally, petitioners urge that summary judgment was improper on this record. Their contentions are not persuasive.

It is well settled that in reviewing administrative action a court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious (see Matter of Pell v Board of Educ., 34 NY2d 222, 231, 232). Deference to the judgment of the agency, when supported by the record, is particularly appropriate when the matter under review involves a factual evaluation in the area of the agency’s expertise (see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). These principles in mind, it is concluded that the determination to deny has a rational basis.

The Education Department discovered serious inconsistencies between the Seminary’s practice and the method by which it represented it would operate. Student records did not accurately reflect work done and admissions and program standards set up by the Seminary were not adhered to or were changed without publication or notification to the department (see 8 NYCRR 52.2 [d], [e], 52.1 [b], [e]). The erroneous impression was given that the Seminary had degree-granting status (see Education Law, § 224). The records at the very least evidenced inadequate administration. Although the Seminary explained certain inconsistencies, neither the department nor the board was bound to adopt the explanations as sufficient to dispel the impression of poor administration and conduct of the academic program. Finally, following the discovery that the original sponsoring organization had become inactive and a new organization had been substituted, the Seminary failed to submit audited financial statements for the substituted organization as requested. Thus, the Seminary failed to satisfy the board of its financial resources (see Education Law, § 218). These deficiencies rationally could be considered contrary to the standards necessary for charter approval.

Unable to challenge the determination on the basis of the findings, petitioners mount a broad-based attack on the entire decisionmaking process as abusive and unlawful and urge that the findings were contrived to mask the board’s predetermined decision to deny the provisional charter.

Initially rejected is petitioner’s argument that the investigation was overbroad, unjustified and impinged upon their associational and religious freedoms. The Board of Regents is charged with broad policy-making responsibility for the State’s educational system (Education Law, § 207) and is specifically empowered to charter institutions of higher education (Education Law, §§216, 217). In the meaningful discharge of those functions and to “encourage and promote education” (Education Law, § 201), the Regents ensure that acceptable academic standards are maintained in the programs offered (see Moore v Board of Regents of Univ. of State of N. Y., 44 NY2d 593). Thus, before an institution may be admitted to the academic community with degree-granting status it must meet established standards (see 8 NYCRR 3.21, 3.22, 52.1, 52.2); its purposes must be “in whole or in part, of educational or cultural value deemed worthy of recognition and encouragement” (Education Law, §216). Given the broad responsibility of the Board of Regents for the quality of education provided in this State, it must be given wide latitude to investigate and evaluate institutions seeking to operate within the system.

It is here urged that the board transgressed permissible limits when it delayed decision beyond February, 1977 to engage in a broad investigation of the policies and practices of the Seminary and its sponsor, even after the favorable recommendations of the Education Department and consultants. Acceptance of this argument in the face of the record would place an unwarranted restriction on the board’s power to discharge its responsibility to the people of this State. The board was not bound by the initial recommendations of the Education Department and the consultants. Areas of concern in the Seminary program identified in the consultants’ reports, such as the extent of faculty accessibility and unclear program objectives and intent, reasonably and justifiably could prompt a request by the board for further study and evaluation. In addition, at the time the application was first submitted to the board for action, substantial public concern about the practices of the Semifiary’s sponsoring organization had been voiced by State and Federal legislators, members of the clergy and others. Reports of KCIA involvement, brainwashing and encouragement of deceptive fundraising and recruitment practices were widespread. The board had a right to investigate the .serious allegations of illegal or unethical conduct on the part of the Seminary sponsors and determine whether the Seminary participated in or encouraged such conduct.

Petitioners do not and cannot dispute that the board validly could deny a provisional charter to an institution that engaged in “brainwashing” and deception. That the broad investigation revealed no evidence of such practices does not mean that it was improperly undertaken in the first instance. The board cannot now be faulted because it discharged its responsibility for ensuring ethical educational programs of quality and in the process discovered serious deficiencies in the conduct of the academic program.

Petitioners also contend that the board’s treatment of the Seminary was discriminatory and infected with bias. Relying on the affidavit of former Education Commissioner Nyquist, they contend that no other applicant has been subjected to such intensive investigation or denied a charter for the deficiencies found. No factual question of discrimination has been raised on this record. Indeed, the only basis for the charge is the Nyquist affidavit, which only conclusorily asserts these statements based on his 25 years experience in the department and his opinion of discriminatory treatment. This is not enough. The applicant’s program deficiencies were amply demonstrated. Nor was it discriminatory to require an audited financial statement of the Unification Church. While the Seminary initially satisfied the Education Department of its financial stability, it did so on the basis of the original financing plan, which relied on the backing of the Unification Church of New York, Inc. Without notice to the department, the plan was changed by substituting the California organization for the now inactive New York corporation. In light of this background, the request for an audited rather than unaudited financial statement was not unreasonable and cannot be termed discriminatory.

Petitioners also maintain that the Board of Regents was biased and unable to render an impartial decision. Of course, an applicant is constitutionally entitled to unprejudiced decision-making by an administrative agency (see Withrow v Larkin, 421 US 35, 46-47; Gibson v Berryhill, 411 US 564). It follows that a determination based not on a dispassionate review of facts but on a body’s prejudgment or biased evaluation must be set aside (see Matter of Rotwein [Goodman], 291 NY 116, 123). But a mere allegation of bias will not suffice. There must be a factual demonstration to support the allegation of bias and proof that the outcome flowed from it. Here, there is neither.

True, two Regents expressed strong opposition to charter approval for the Seminary during the April, 1977 board meeting, noting the charges of political activity, brainwashing and deception. But it was at that same meeting that these Regents requested further investigations. Only one, Regent Yavner, became a committee member. Of the two other members, one was equally outspoken in favor of charter approval. The reports from that committee were frank with respect to the lack of evidence found to substantiate the charges. The Regents’ comments, in the context in which they were made and in the light of subsequent actions of the committee and the board, do not evidence an inability on the part of the particular Regents or the whole board to make an unbiased evaluation of the application once all the facts were in (see Federal Trade Comm. v Cement Inst., 333 US 683). Nor is a question of fact raised as to bias by the isolated statement allegedly made by an unnamed member of the December, 1977 review team that the controversy was political rather than academic and that the team had come to “find” a basis for the decision about to be made by the board. The source of this statement is unnamed and the facts upon which the statement was based are undisclosed. Such a bare assertion does not establish a fact question warranting denial of summary judgment.

Petitioners also maintain that the statutes, rules and regulations under which the board acted are unconstitutionally vague and lacking in objective standards. This court has not hesitated to annul a determination predicated on rules and regulations that allow wholly subjective decisionmaking without adequate “safeguards against the exercise of arbitrary power or simple unfairness” (Matter of Nicholas v Kahn, 47 NY2d 24, 34; Matter of Levine v Whalen, 39 NY2d 510, 519). Here, however, no such unrestrained power is evident. Rather, the scheme for provisional charter approval is integrated with that for program registration and provides sufficiently objective standards to enable meaningful judicial review (see Education Law, §§216, 217, 218; 8 NYCRR 3.21, 3.22, 13.1, 52.1, 52.2; see, also, Moore v Board of Regents of Univ. of State of N. Y., 44 NYd 593, supra). It must be remembered that in the area of determining qualifications for educational institutions, where the nature and quality of programs necessarily will vary, precise criteria cannot be expected or demanded. The statutes and regulations at issue here offer sufficiently concrete guidelines and standards for judging an applicant to prevent the unfettered or arbitrary exercise of discretion.

The record reveals that no material factual question has been raised by petitioners concerning bias or an abuse of the administrative process. Petitioners were not denied due process by the procedures employed. Summary judgment was properly granted.

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

Jones, J.

(dissenting). While I would agree with the majority’s conclusion that there exists a rational basis in the record sufficient to sustain the Board of Regents’ determination denying petitioners’ application for a provisional charter were that the only issue, I cannot agree that there was not a tender of proof sufficient, on a motion for summary judgment, to require a hearing on the issue of administrative abuse, which, if found to have occurred might be judged to have vitiated what would otherwise have been accepted as a rational determination.

It is well settled that summary judgment is a drastic remedy, to be granted only when it appears that no material and triable issues of fact are presented (e.g., Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439). While mere conclusory allegations will never suffice to defeat a motion for summary judgment (e.g., Shaw v Time-Life Records, 38 NY2d 201; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338), where there is doubt as to the existence of such issues, or even if the issues are “arguable”, summary judgment should not be granted (Barrett v Jacobs, 255 NY 520). To avoid the imposition of the drastic remedy, the motion’s opponent must tender proof of facts sufficient to require a trial of any issue of fact (CPLR 3212, subd [b] ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). In this case petitioners have met this burden.

Petitioners contended they were denied their right to an impartial administrative consideration of their application. Specifically, they assert that the Board of Regents, or at least certain of its members, were biased, and that the board prejudged their application for a provisional charter and otherwise abused the administrative process in a calculated effort designed to prevent certification of the Unification Theological Seminary. In support of these contentions, over 600 pages of exhibits, affidavits, letters and other documentary proof were tendered, a sampling of which illustrates that petitioners made a sufficient factual showing to entitle them to present this branch of their case at a full hearing.

There was before Special Term an affidavit of former Commissioner of Education Ewald B. Nyquist, who had been Commissioner of Education for a period of over seven years and during more than 25 years’ service with the Department of Education had been “directly involved in investigating, evaluating, reviewing and supervising the processing of applications from numerous institutions which applied for Provisional Charters”, and who was commissioner-at the time of petitioners’ application. On the basis of such experience and with personal knowledge of a substantial portion of the investigation, evaluation and review of petitioners’ application and individual participation in the decision-making process related thereto prior to Jtme 30, 1977, he stated, inter alia: that “members of the Board of Regents and staff of the State Education Department * * * acted in an arbitrary, capricious and discriminatory manner”; that they “delayed making a decision on the application for an unconscionable length of time in the hope of uncovering negative findings on which to base a denial”; that “after almost two years of investigation and evaluation, no reason existed for denial of the Seminary’s application nor did a reason exist for further delaying a decision”; that “[m]embers of the Board of Regents had on numerous occasions discussed and expressed concern over various non-academic questions, including an alleged association between the leaders of the Unification Church and the Korean Central Intelligence Agency, alleged deceptive practices of the Unification Church, alleged brainwashing techniques employed by the Unification Church”; that “the Board of Regents have chartered institutions with greater deficiencies and/or fewer strengths than the Seminary possesses”; that “the Seminary has been subjected to greater scrutiny and has been held to higher requirements than other applicants for a Provisional Charter”; that “the Board of Regents has never before delayed a decision for an application for Provisional Charter for such an extended period of time when its consultants, staff and counsel recommended approval”: that “[o]ne of the reasons stated as a ground for denial was the lack of demonstration of necessary financial resources * * * [based on the] failure to submit audited financial statements”; and that “ [i] n my over twenty-five years with the State Education Department the submission of an audited financial statement by a sponsoring entity was never a requirement to demonstrate adequate financial resources of the applicant.”

Also tendered were excerpts from the journal of the April, 1977 meeting of the Board of Regents which included the statement of Regent Griffith that “the Unification Church is a political arm of the South Korean government (which I consider to be totalitarian) and possibly of the South Korean CIA”, and that “I disapprove of the Church’s purposes and activities. So I must, in logic and conscience, reiterate my disapproval of the charter for the Church’s - seminary.”

There is an affidavit of David Sperling, who attended the April, 1977 meeting of the Board of Regents, attesting that Regent Yavner “accused the Unification Church and its leaders of engaging in ‘brainwashing’ ” and stated that “ ‘if proof is needed, we need time to get that proof’ ”. Sperling further attested that Yavner stated he had read the Divine Principle, which contains the religious beliefs of the Unification Church, and found it “dangerous”, analogizing it to Hitler’s Mein Kampf.

The significance of these statements in context is revealed in the statement of Regent Clark: “I am not satisfied that the questions raised and the reasons offered in support of the motion to delay action upon this application justify any delay. This body has granted temporary certification to other applicants in the past without raising these types of questions. In regard to this application, it is my personal belief that serious questions of discrimination, civil liberties and first amendment issues are at stake.”

The record also contains a copy of the March 22, 1977 Joint Resolution of the New York State Legislature directed to the Board of Regents memorializing them to delay action on petitioners’ application because “the Unification Church and its founder, Reverend Sun Myung Moon have made headlines recently for alleged sophisticated brainwashing techniques on young people luring them away from family and community ties.”

There was a letter to petitioners’ attorney from the counsel to the Board of Regents dated six days prior to the December, 1977 meeting of the Board of Regents revealing the existence of six letters and affidavits adverse to the Unification Church, some dated months earlier and all unsubstantiated, giving petitioners five days to respond.

There was also an affidavit by the dean of the Unification Theological Seminary attesting that a Department of Education “review team” conducted an on-site inspection of the Seminary records on December 20, 1977 with almost no forewarning at a time when the school registrar and other staff familiar with the recordkeeping system were away for the holidays.

Finally, there was proof that substantially all of the reasons ultimately articulated in the final report of the Regents recommending denial of petitioners’ application were developed in the last two months of the 34-month period of investigation and review, primarily from information garnered during the on-site inspection of December 20, 1977, and that prior to that time no reasons had been identified for denying the application.

This tender of proof in admissible form, although clearly subject to contravention and to explanation, denigration and even demolition as to probative significance, in the context of the undisputed facts that the application was initially submitted April 29, 1975, that in the course of the following 30 months of investigation the departmental reports were uniformly favorable to the application and no ground had been advanced to support its denial, and that it was not until after the hastily announced visitation of December 20, 1977 that articulable grounds were specified on which the application was denied, showed facts sufficient to require a trial as to whether the investigative procedures and decision-making process of the Board of Regents was infected with such bias, prejudice or predisposition to ultimate determination as to call for the vacatur of what would otherwise have been a rational determination by the administrative agency charged with responsibility therefor and vested generally with broad discretion in connection therewith. I would deny respondents’ motion for summary judgment seeking as it does to obviate the necessity for a full evidentiary hearing to which petitioners have demonstrated that they are entitled.

Fuchsberg, J.

(dissenting). Besides concurring in the dissent-in-chief, I add this comment for myself:

Presented in this proceeding is a sharp issue as to whether the board acted solely to discharge its responsibility for ensuring educational programs of quality or whether, on the bases summarized so well by Judge Jones, its judgment was colored by the beliefs and practices of the petitioners. Without reflecting on the ultimate merits, suffice it to say that there is enough shown by each side to make it salutary as well as mandatory that the facts be aired in the plenary and pensive atmosphere of a full hearing. One would think that those who undertook the unprecedentedly attenuated administrative investigation in this case would themselves welcome the opportunity to dissipate the cloud that might otherwise attach to their determination. Whether the petitioners entertain beliefs that may be disturbing to a majority of the residents of our country is besides the point. As I see it, my duty as a Judge, as was that of the Regents, is to apply the law, in all its strength, equally to those whose philosophies are popular or those whose are not.

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

Orders affirmed.

       An unidentified person at the Seminary had been contacted by telephone on December 19 at 4:30 p.m. by Dr. Tubbs of the Department of Education who stated that five staff members would arrive the following morning at 9:00 a.m. to conduct an inspection.


author: Chief Judge Cooke. Fuchsberg, J. Meyer, J.

text:
    In the Matter of Clarence Dickson, Appellant, v John Lascaris, as Commissioner of the Onondaga County Department of Social Services, et al., Respondents.
    Argued April 29, 1981;
    decided June 16, 1981

      POINTS OF COUNSEL

      Maurie Heins for appellant.
    I. The doctrine of extraordinary circumstances cannot be applied to this case in the manner envisioned by Matter of Bennett v Jeffreys (40 NY2d 543) because of the involvement of the Department of Social Services in the placement of appellant’s children. (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Smith v Organization of Foster Families, 431 US 816); People ex rel. Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382; Matter of Sanjivini K., 47 NY2d 374; Matter of Bennett v Jeffreys, 40 NY2d 543.) II. Assuming that the Bennett test of extraordinary circumstances can be applied to this case, the result, as a matter of law, must be that there are no extraordinary circumstances in this case. (Matter of Tyrrell v Tyrrell, 67 AD2d 247, 47 NY2d 937; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; People ex rel. Wilson v Wilson, 56 AD2d 794; Raysor v Gabbey, 57 AD2d 437.) III. The trial court erred in considering the racial composition of appellant’s family in determining the best interests of appellant’s children. (People ex rel. Portnoy v Strasser, 303 NY 539; Raysor v Gabbey, 57 AD2d 437.) IV. Both the trial court and the court below failed to weigh the best interests of the children in the manner mandated by this court in Matter of Bennett v Jeffreys. (Matter of Bennett v Jeffreys, 40 NY2d 543.) V. The court’s failure to weigh evidence which impeached appellee’s credibility was erroneous.

      Richard C. Kram for Ruby Kelly, respondent.
    I. The doctrine of extraordinary circumstances was appropriately applied to this case. (Matter of Wesley L., 72 AD2d 137; Matter of Tyrrell v Tyrrell, 67 AD2d 247, 47 NY2d 937; Smith v Organization of Foster Families, 431 US 816; Matter of Sanjivini K., 47 NY2d 374; Guzzo v Guzzo, 66 AD2d 833; Raysor v Gabbey, 57 AD2d 437; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; Matter of Benning [Nigro], 303 NY 775.) II. The courts below correctly determined that the best interests of the Dickson children would be served by continuing custody with respondent Kelly. (Matter of Lamond B., 64 AD2d 625; Matter of Ray A. M., 37 NY2d 619; Matter of Orlando F., 40 NY2d 103.) III. There is substantial evidence in the record to support the determination of the trial court and the court below which, in a matter such as this, are entitled to great weight. (Matter of Ray A. M., 37 NY2d 619; Bunim v Bunim, 298 NY 391; Matter of Corey L v Martin L, 45 NY2d 383.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal addresses the denial of appellant’s petition to regain custody of his children, not from his spouse or a former spouse, but from a third party. Family Court, concluding there were “extraordinary circumstances” present, applied the best interests of the children standard and denied the petition for custody. A sharply divided Appellate Division affirmed. We now reverse.

Petitioner is the father of three children born in 1971, 1972 and 1974. During the summer of 1974, after his wife refused to share responsibility for the children or the household, petitioner undertook to care for the children himself. A series of temporary arrangements proved unsuccessful, and petitioner then entrusted the children to respondent Kelly, who was a friend of his father.

Family Court found that petitioner visited the children in the fall of 1974 and made four payments of support pursuant to a support order. Support payments were discontinued and, during 1975 petitioner had only one or two contacts with his children. At one point, the court found, petitioner refused to consent to an operation for one of his children.

Apparently, petitioner re-established regular contact with the offspring sometime in 1976. Beginning in 1977, petitioner made efforts to obtain their custody and, following his divorce and remarriage in the fall of that year, commenced this custody proceeding. At the time of commencement, petitioner was in regular contact with his children.

In denying the petition, Family Court first noted that under Matter of Bennett v Jeffreys (40 NY2d 543) an abandonment was an “extraordinary circumstance” which would trigger the best interests of the children test. The court then went on to conclude that, in custody matters, an abandonment may be established by a lesser showing than the concept traditionally requires. Thus, the court held that a “passive” abandonment — i.e., conduct on the part of the parent not rising to the level of a statutory or common-law abandonment, constitutes an “extraordinary circumstance” within the meaning of Bennett.

On appeal, the Appellate Division refused to adopt the “passive” abandonment concept, but found extraordinary circumstances in the length of custodial interruption, coupled with other “extenuating circumstances”. Two Justices dissented, reasoning that the court was unjustifiably diluting the rule of Bennett.

Historically, it has been the law in this State that, as between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity (e.g., Matter of Bennett v Jeffreys, 40 NY2d 543, 548, supra; People ex rel. Anonymous v Anonymous, 10 NY2d 332, 335; People ex rel. Kropp v Shepsky, 305 NY 465, 468-469). Although earlier characterized as involving the “primacy of parental rights” (People ex rel. Kropp v Shepsky, supra, at p 469; People ex rel. Portnoy v Strasser, 303 NY 539), the rule in actuality is founded upon the “generally accepted view that a child’s best interest [is to be] raised by its parent unless the parent is disqualified by gross misconduct” (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204). Rather than artificially exalting the “rights” of the parent at the expense of the well-being of the child, this rule fosters both interests by recognizing that they ordinarily converge.

Only recently, we had occasion to review and characterize the narrow situations in which a court is warranted in considering whether the best interests of the child dictate displacement of parental custody. Absent “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” the court declared, the “State may not deprive a parent of the custody of a child” (Matter of Bennett v Jeffreys, 40 NY2d 543, 544, supra). Even when such “extraordinary circumstances” are present, however, the court must first inquire into the best interests of the child before making a custody determination (id., at p 548). -In certain circumstances, those interests may best be served by reposing custody in the parent.

Nowhere does the opinion in Bennett undertake to define the concept of abandonment. At the same time, Bennett does not suggest that the traditional concept of abandonment was being discarded. Indeed, the court expressly noted that abandonment was not involved (40 NY2d, at p 545, supra). Reliance upon Bennett for the proposition that something less than an actual abandonment constitutes an extraordinary circumstance is thus misplaced.

Examination of prior decisions likewise reveals no basis for relaxing the definition of abandonment when evaluating whether extraordinary circumstances exist. To the contrary, the cases have applied the prevailing standard for abandonment (see, e.g., People ex rel. Anonymous v Anonymous, 10 NY2d 332, 337, supra) before supplanting parental custody. Nor would it be wise or desirable to create an open-ended, amorphous concept to replace the now well-developed law of abandonment. Such replacement would signify that we would have arrived at a tragic pass in social history — when parental rights could be overlooked and lost so easily.

Thus, it was error for the court to have concluded, in the absence of an abandonment as defined by statute, that petitioner abandoned his child (see, also, Matter of Bennett v Jeffreys, 40 NY2d 543, 544, supra). The definition of abandonment for determining whether an extraordinary circumstance is present within the meaning of Bennett v Jeffreys (supra) simply does not differ from the classic abandonment principle, as modified by modern developments (see Matter of Corey L v Martin L, 45 NY2d 383, 388-392).

Finally, there is no basis on this record for finding such a prolonged interruption of custody as to constitute an extraordinary circumstance. As this court recently noted, where a period of separation is attributable to the parent’s efforts to regain custody lawfully, that separation is entitled to little, if any, consideration (Matter of Sanjivini K., 47 NY2d 374, 381-382). Although Sanjivini involved termination of parental rights, rather than custody, the. court also stated that “it is doubtful whether it could be found to be in the child’s best interests to deny her [parent’s] persistent demands for custody simply because it took so long * * * to obtain it legally” (47 NY2d, at p 382). Since a large portion of the separation here occurred during the father’s informal and formal attempts to obtain custody, the custodial disruption does not rise to the level of an extraordinary circumstance. Quite bluntly, a child is not a piece of property over whom title may be acquired by adverse possession.

Accordingly, the order of the Appellate Division should be reversed, and the matter remitted to Family Court, Onondaga County, with directions to grant the petition.

Fuchsberg, J.

(dissenting). My concurring opinion in Matter of Sanjivini K. (47 NY2d 374, 383) concluded with the observation that “[o]nce the foster relationship has, willy-nilly, shifted from a ‘temporary’ to a ‘permanent’ one, best interest factors in another case could contraindicate disruption of that relationship and instead dictate an opposite result [citations omitted]”. As I view its facts and circumstances, what we have here is such a case. Thus, unless the natural parent-child relationship must dominate at all odds, a position to which neither good law nor good pediatric psychiatry need subscribe, I believe the determinations reached at the Family Court and at Appellate Division should be upheld (see, also, Matter of Bennett v Jeffreys, 40 NY2d 543, 549).

Meyer, J.

(dissenting). I would affirm. Abandonment of the character upon which the majority insists in this custody proceeding is clearly appropriate when the issue is whether a parent’s constitutional right to raise his or her child or children should be terminated. Matter of Bennett v Jeffreys (40 NY2d 543) was, however, an effort to enunciate a more fluid concept relating to custody as distinct from termination proceedings. Phrased as “extraordinary circumstances” the test is not so stringent as abandonment, though abandonment can constitute an extraordinary circumstance. A finding of extraordinary circumstances by itself, however, is not sufficient; that finding is but a predicate for balancing factors relative to each contestant in order to determine where lies the best interests of the child or children whose custody is in issue.

Thus, while it is true that Bennett was not an abandonment case, that fact is irrelevant. Bennett applied the best interests test to determine custody as between a parent and foster parent, because the court found “extraordinary circumstances” in “the protracted separation of mother from child, combined with the mother’s lack of an established household of her own, her unwed state, and the attachment of the child * * * to the custodian” (at p 550). To make the determination of this custody proceeding turn on whether there was “an abandonment as defined by statute” (at p 209), rather than whether the findings made by the Family Court Judge and affirmed by the Appellate Division are sufficient to trigger the best interests test is, simply put, to apply the wrong rule of law.

In my view, the affirmed findings establish extraordinary circumstances. Petitioner did not just refuse to consent to an operation for one of his children (at p 207). Told in July, 1975 of his child Janice’s brain tumor and asked to sign a consent form because the hospital insisted upon it, he not only refused but told respondent (the foster parent) “If she going to die ain’t nothing we can do about it, let her die”, made no effort to help with the other children though asked to do so by respondent who was visiting the hospital daily, and saw the ill child once in the hospital and once when she came home, and then disappeared from the lives of respondent and his children for over a year. If that does not by itself constitute “callous disregard” and “complete indifference” (People ex rel. Anonymous v Anonymous, 10 NY2d 332, 336), the failure to visit with the children on any meaningful basis from the time they were turned over to respondent in the fall of 1974 until respondent sought petitioner out in July, 1975 in the effort to get his consent concerning Janice, or to provide support for them, financial or psychological, at any time, adds enough to come within Bennett’s “extraordinary circumstances" rubric.

Not only are extraordinary circumstances established by this record, but also the affirmed findings establish that custody in respondent is in the best interests of the children. As I had occasion to write in Matter of Norman (26 Misc 2d 700, 704): “Second only to love in the parent-child relationship is stability.” Petitioner has given his children neither; respondent has given them both. Petitioner’s parental rights have not been “lost so easily” as the majority (at p 209) suggests; rather he has consciously disregarded them. It may well be that he can establish a new relationship with the children, for even if custody remained, as I think it should, with respondent, he would be entitled to visitation, and, of course, unless his parental rights are hereafter terminated according to statute, he can bring another custody proceeding whenever he has established a relationship with them that warrants his doing so.

Judges Jasen, Gabrielli, Jones and Wachtler concur with Chief Judge Cooke; Judges Fuchsberg and Meyer dissent and vote to affirm in separate dissenting opinions.

Order reversed, without costs, and the matter remitted to Family Court, Onondaga County, with directions to grant the petition.

      . The trial court, as it was entitled to do, discredited petitioner’s testimony that 'he visited frequently and instead adopted respondent Kelly’s testimony . that contact was infrequent.

      . Given our disposition of the matter, we find it unnecessary to explore further the possible meanings of the term “passive” abandonment. It would seem, however, that the concept is open-ended enough to apply whenever a parent acquiesces in another having custody of the children, no matter how frequent or substantial the contact between parent and child.

      . Involved here is a private, unsupervised placement and thus common-law principles are applicable (Matter of Bennett v Jeffreys 40 NY2d 543, 545, supra). It is not contended on this appeal that agency involvement in this case, of which there was some, brought statutory law into play.

      . We have no occasion to reach the issue of the best interests of the children, but note that it is by no means certain that such inquiry should lead to disruption of parental custody in these circumstances.

       After petitioner’s refusal the hospital, because of the urgency of Janice’s situation, accepted a consent signed by respondent acting under power of attorney given respondent the previous year by petitioner.