author: Alexander, J.

text:
    In the Matter of Lionel F., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued April 24, 1990;
    decided June 7, 1990

      APPEARANCES OF COUNSEL

      Henry S. Weintraub and Lenore Gittis for appellant.

      Victor A. Kovner, Corporation Counsel (Patrick L. Taylor and Pamela Seider Dolgow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Respondent, a juvenile, was charged with acts which, if committed by an adult, would have constituted the crimes of criminal possession of stolen property in the fourth degree, attempted grand larceny in the fourth degree, criminal mischief in the fourth degree, unauthorized use of a vehicle in the third degree, and possession of burglar’s tools. At the fact-finding hearing held October 14, 1987, after the presentment agency rested its case, respondent moved to dismiss the petition for failure to establish prima facie a requisite element of the offense charged, i.e., that the car in which respondent was found was stolen. Family Court reserved decision and recessed for a few minutes. Upon reconvening, the court orally granted respondent’s motion to dismiss on four counts, and reserved decision on the fifth, possession of burglar’s tools. In doing so, it stated that but for the presentment agency’s failure to prove the car was stolen it would have denied the motion in its entirety because all other elements of a prima facie case had been established. The court then recessed for lunch. After lunch the court denied respondent’s motion to dismiss the fifth count. It also entertained the presentment agency’s further argument that it reconsider its ruling with respect to the other four counts. Upon reconsideration, the court vacated its earlier ruling and reserved decision as to all counts in order to afford the parties an opportunity to submit written briefs on the issue.

On November 6, the court granted respondent’s motion to dismiss as to the first (criminal possession of stolen property) and second (attempted grand larceny) counts, but let stand the lesser included charge of attempted larceny as to the second count. The court invited respondent to proceed with his case but when he rested without calling witnesses, it found him guilty of the charges of criminal mischief, unauthorized use of a vehicle and possession of burglar’s tools.

The Appellate Division held respondent had not been placed twice in jeopardy by Family Court’s reconsideration and vacatur of its original decision to dismiss certain counts. It modified the fact-finding order, however, by deleting the finding that respondent committed an act which, if committed by an adult, would have constituted the crime of criminal mischief in the fourth degree. While we agree with the Appellate Division that Family Court’s actions did not expose respondent to double jeopardy, we do so for different reasons.

There is no constitutional impediment to a court’s power to modify its decisions, provided such a modification does not subject an individual to double jeopardy (United States v LoRusso, 695 F2d 45, 54 [2d Cir], cert denied sub nom. Errante v United States, 460 US 1070). In this case the court’s actions did not result in a violation of respondent’s constitutional rights. At the time the court vacated its earlier ruling, the proceeding was still pending before it. The court had not decided respondent’s motion in its entirety. It entertained reargument while part of the motion to dismiss remained under advisement and before the evidence was closed. Under the circumstances, the court’s original decision was not an acquittal for purposes of double jeopardy and its immediate vacatur of its earlier ruling did not subject respondent to a second trial (United States v LoRusso, supra, at 53-54; Rowe v Grizzard, 591 F Supp 389).

In reaching our conclusion, we do not suggest that the entry of a formal order was necessary to terminate the prosecution but merely emphasize the inchoate nature of the court’s decision, made in the context of a continuing proceeding, and without the presentment agency offering additional evidence after the court vacated its dismissal (see, People v Tardbania, 130 AD2d 954, affd on other grounds 72 NY2d 852). Manifestly, the action of the trial court did not implicate those principles underlying the Double Jeopardy Clause which protect an individual from being subjected to "embarrassment, expense and ordeal and compelled] * * * to live in a continuing state of anxiety and insecurity” (Green v United States, 355 US 184, 187).

Respondent relies upon Smalis v Pennsylvania (476 US 140) but that matter involved a prosecutor’s appeal from an order of dismissal in a trial long since concluded. The order had been entered and was clearly final. The Supreme Court held that reversal and retrial were foreclosed by double jeopardy. In this case, in which the court’s original ruling was followed promptly by its vacatur and the continuation of proceedings, we conclude that respondent’s right to be free from double jeopardy was not violated.

Alexander, J.

(dissenting in part). I vote to modify the Appellate Division order by vacating the adjudication on the fourth count in the petition in this juvenile delinquency proceeding because the further prosecution of that count, as well as the other counts dismissed by the trial court for legal insufficiency, was prohibited by the Double Jeopardy Clause. The rule implicit in the majority writing hinges this constitutional protection upon the formalism of entry of the order of dismissal and thereby elevates form over substance and, as occurred in this case, permits the presentment agency to reargue a factual adjudication in respondent’s favor. As a result the majority has allowed precisely the evil which the Double Jeopardy Clause was intended to prevent. Therefore I respectfully dissent.

I

The constitutional prohibition of double jeopardy protects individuals from repeated attempts by the State to obtain a conviction for the same offense (Grady v Corbin, 495 US —, 110 S Ct 2084; Green v United States, 355 US 184, 187). The prohibition prevents the State, with its greater resources and power, from subjecting an accused, as a result of such repeated efforts, "to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Green v United States, 355 US, at 187-188, supra; see also, Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St LJ 799, 804-805 [describing other policies served by the clause].) These concerns are so valued in our jurisprudence that an acquittal, even if erroneous, is an absolute bar to subsequent fact-finding proceedings on the same offense (United States v Ball, 163 US 662).

Unquestionably, a dismissal for legal insufficiency is an

"acquittal” for the purposes of double jeopardy and thus bars both a second trial or " 'further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.’ ” (Smalis v Pennsylvania, 476 US 140, 146, quoting United States v Martin Linen Supply Co., 430 US 564, 570; see also, Sanabria v United States, 437 US 54; Burks v United States, 437 US 1; compare, United States v Scott, 437 US 82 [dismissal on legal grounds unrelated to the sufficiency of the evidence is not an acquittal for purposes of double jeopardy]; Matter of Pastrana v Baker, 55 NY2d 315.) In Smalis, the Supreme Court concluded that such a dismissal is an adjudication of the facts in the defendant’s favor and therefore an acquittal which terminated jeopardy (compare, Richardson v United States, 468 US 317 [hung jury does not terminate jeopardy]). In so holding, the court specifically rejected the State’s argument that jeopardy was not terminated by a ruling made at the close of the prosecution’s case because resumption of the trial proceedings would constitute only " 'continuing jeopardy.’ ” (476 US, at 145, supra.)

Despite the clear import of Smalis, the majority seeks to avoid the application of that rule to this case by characterizing Family Court’s dismissal of the first four counts of the petition as "inchoate” and not "clearly final” (majority mem, at 749, 750). Despite its disclaimer, the court’s decision appears, ultimately, to turn on the fact that Family Court’s order of dismissal had not been entered before it was vacated (majority mem, at 750). The record clearly demonstrates, however, that Family Court rendered an adjudication of the facts in respondent’s favor and the only distinction between this case and Smalis is the fact that Family Court’s order was not entered. That distinction, in my view, cannot be material because a rule which makes the protections of the Double Jeopardy Clause dependent upon the entry of the order of dismissal is inconsistent with the Supreme Court’s double jeopardy jurisprudence and significantly undermines the policies served by the clause.

II

I turn first to the majority’s characterization of Family Court’s order as "inchoate” and not "clearly final”, a characterization which, in my view, finds no support in the record.

After the presentment agency rested its case, respondent moved to dismiss all five counts of the petition, arguing that the presentment agency had failed to establish a prima facie case because it offered no proof that the car in which respondent was apprehended was the same car owned by the complainant. The presentment agency opposed the motion, arguing that the complainant’s testimony as to where her car was parked and the police testimony as to the location and type of car in which respondent and his alleged accomplices were apprehended "would provide such link to the respondents and the owner of the car to establish that the respondents were in [sic] attempting to steal the car owned by [the complainant].” After a brief recess, Family Court unequivocally granted the motion as to the first four counts, stating:

"The Court has made notes of the testimony of the police officer and the testimony of the owner of the car. There is not a sufficient indicia of the incidentals in terms of the description of the vehicle by the police officer that would establish that the vehicle as observed by the police officer is in point and fact the same vehicle as identified in the record by the complaining witness, the owner of the vehicle. For all the Court knows in terms of this record they are different vehicles. There is not sufficient indicia of the nature of the vehicle. I would point out, for example, there is no description as far as the Court can recollect by the police officer as to the make, model, or year of the vehicle in question. There is no testimony by the police officer as to license plate number. There is no testimony as to vehicle identification number by the police officer. There is also insufficient indicia that the vehicle that the police officer observed the respondents in is in point of fact the vehicle as testified to by the owner of the vehicle as the vehicle that she did not give respondents permission to be in that vehicle, [a] 1981 Mazda.

* * *

"Accordingly, the prima facie motion join[ed] in by respondents’ counsel is granted. The presentment agency has an exception on the record and if appeal was taken and they say this Court was insufficient and to go to me as the finder of fact they will reserve it. But I can only go on the record as made. I would simply note for the record the record is what the Court must go by. I cannot, since I was not called to take judicial notice of anything else or fact to hoard [sic] the record in which facts were taken and since the presentment agency rested I cannot make out the presentment agency’s case for them.

* * *

"I find [sic] the first four counts of the petition they failed to make out a prima facie case.” (Defendant’s appx, at 61-64.)

While the court initially suggested that the motion was granted as to all five counts, it immediately clarified its ruling to reserve decision on the fifth count until after lunch.

After the luncheon recess, the court repeated its ruling dismissing the first four counts, and denied the motion with respect to the fifth count. Nevertheless, on the presentment agency’s motion, Family Court then granted "reargument”, and permitted the agency to introduce additional legal authority for its position that the circumstantial evidence introduced on the agency’s case was legally sufficient to establish a prima facie case. That Family Court viewed its original order of dismissal as completed is evident from the fact that the court deemed it necessary to "vacate[ ] its ruling on [the] prima facie motion and reinstate[ ] the prima facie motion on behalf of both respondents and reserve[ ] decision.” (Defendant’s appx, at 69.) The court then set a three-week adjourned date "for continued fact finding and resolution of the prima facie motion”. On the adjourned date, after reviewing briefs submitted by the presentment agency and by respondent, the court again decided the motion to dismiss for failure to establish a prima facie case — the first two counts of the petition, charging criminal possession of stolen property and attempted grand larceny were dismissed, but the motion was denied as to the third, fourth and fifth counts, charging, respectively, criminal mischief, unauthorized use of a vehicle, and possession of burglar’s tools. The court also denied the motion to dismiss the act of attempted petit larceny which is a lesser included act of the grand larceny count. Respondent has appealed Family Court’s determination that he committed the acts described in the fourth and fifth counts of the petition.

In light of this record, there can be no question that Family Court, which was also the trier of fact, rendered a factual adjudication in respondent’s favor. The court intentionally and unequivocally dismissed the first four counts of the petition because, in its view, the evidence was legally insufficient to make out the presentment agency’s case. This oral order was in no sense "inchoate” and the fact that it was rendered at the close of the presentment agency’s case and therefore "in the context of a continuing proceeding” (majority mem, at 749) is irrelevant for the purposes of double jeopardy (Smalis v Pennsylvania, 476 US, at 145, supra). Nor does the applicability of the protections of the Double Jeopardy Clause turn upon the timing of the challenge to the acquittal. It is of no moment that the presentment agency sought reargument of the dismissal order after a relatively brief luncheon recess. The court’s order of dismissal either was or was not an "acquittal” at the time it was made, notwithstanding what happened afterwards. Similarly, the fact that in this case, the presentment agency did not introduce any new evidence after the issuance of the order of dismissal (majority mem, at 749) also is not dispositive because reconsideration of the motion to dismiss was itself subsequent fact finding. Thus, the only possibly meaningful distinction between this case and Smalis is the fact that unlike the order in Smalis, Family Court’s order of dismissal was not formally entered before it was vacated.

Ill

The issue therefore, is whether application of the Supreme Court’s holding in Smalis v Pennsylvania (supra) that a dismissal for legal insufficiency is an acquittal barring any further fact-finding proceedings is dependent upon whether the order of dismissal was formally entered. Although it contends otherwise, the majority appears to have concluded that formal entry of the order is necessary to implement the protections of the Double Jeopardy Clause, as is evident from the reliance placed upon United States v LoRusso (695 F2d 45 [2d Cir], cert denied sub nom. Errante v United States, 460 US 1070 [prior to entry of judgment and before discharge of the jury, oral dismissal was not an acquittal for purposes of double jeopardy]) and Rowe v Grizzard (591 F Supp 389 [following LoRusso]). I disagree.

In Smalis v Pennsylvania (supra), the issue of whether a dismissal for legal insufficiency is an "acquittal” reached the court in the context of whether the prosecution could appeal from such an order of dismissal. While the challenged order in that case had been entered, that fact was not material to the court’s decision. Rather, the court emphasized that a ruling that the State’s evidence is legally insufficient is an "acquittal” because it is an adjudication of the facts and therefore, like a jury verdict of acquittal, the dismissal terminates jeopardy and bars any subsequent fact-finding proceedings on the same offense (Smalis v Pennsylvania, 476 US, at 144-145, supra). Significantly, the court’s decision gives no indication that an acquittal by reason of dismissal is to be treated differently than any other acquittal.

Historically, it is in the area of acquittals that the Supreme Court has most stringently applied the mandates of the Double Jeopardy Clause. Thus, unlike double jeopardy issues arising from convictions or declarations of mistrial prior to verdict, where a criminal defendant has been acquitted, the court has repeatedly refused to balance countervailing State interests in determining the scope of the protections of the clause (see generally, Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St LJ 799). It has long been the law that the Double Jeopardy Clause is an absolute bar to further fact-finding proceedings after an acquittal (United States v Ball, 163 US 662, 671, supra). This is true whether the acquittal is by jury verdict (id), verdict rendered at the conclusion of a bench trial (Kepner v United States, 195 US 100), directed verdict in a jury trial (Green v United States, 355 US 184, supra; Fong Foo v United States, 369 US 141) or, dismissal at the close of the People’s evidence for failure to establish a prima facie case (Smalis v Pennsylvania, supra). The policies underlying this rule are so cherished that even an acquittal "based upon an egregiously erroneous foundation” bars subsequent fact-finding proceedings (Fong Foo v United States, 369 US, at 143, supra).

Moreover, the court has repeatedly held of entry of judgment of acquittal is unnecessary for jeopardy to be complete. In United States v Ball (163 US, at 671, supra), the court held that a jury verdict of acquittal barred retrial notwithstanding that the verdict had not been reduced to judgment, stating: "The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to subsequent prosecution for the same offense.” The court reiterated this rule in the context of a verdict orally rendered, but not entered, in a nonjury trial: "It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment he entered on the verdict, and it was found upon a defective indictment.” (Kepner v United States, 195 US, at 130, supra [emphasis added].) Since a dismissal for legal insufficiency is every bit as much an acquittal as a verdict of acquittal, there is no principled basis for making the protections of the Double Jeopardy Clause dependent upon a formal entry of judgment of dismissal where such entry is not required for verdicts of acquittal. The fact that review of a dismissal does not necessitate a new trial, but rather a continuation of a trial already begun is answered by the Supreme Court’s holding in Smalis; the Double Jeopardy Clause bars postacquittal fact-finding proceedings, whether those proceedings be a second trial or simply the resumption of a trial already commenced (476 US, at 145-146, supra). Accordingly, I agree with those courts holding that the Double Jeopardy Clause bars reconsideration of a trial order of dismissal, whether or not the order has been formally entered (People v Lerner, 128 AD2d 641; People v Warren, 80 AD2d 905; Pugh v State, 271 Md 701, 319 A2d 542 [Md Ct App]; State ex rel. C.K., 198 NJ Super 290, 486 A2d 1284 [App Div]; see also, Matter of Frank K., 87 AD2d 1003).

Additionally, the facts of this case illustrate the fallacy of imposing a technical "entry” requirement before giving an acquittal by dismissal its full constitutional effect. Notwithstanding that the presentment agency had rested its case and that Family Court had intentionally and unequivocally ordered the dismissal of the first four counts against petitioner, he was subjected to a second attempt to convict him for those same offenses. The presentment agency had a full opportunity first to present its evidence and second to oppose respondent’s motion to dismiss. If it sensed that it might not succeed on the motion, the agency could easily have sought an adjournment to conduct further research or otherwise shore up its argument. The agency failed to do so and yet had an opportunity to reargue the motion to dismiss both after a luncheon recess and, ultimately, after a three-week adjournment during which it was able to find more authority supporting its original position. It is precisely this evil of repeated efforts to obtain a conviction that the Double Jeopardy Clause prohibits (Green v United States, 355 US, at 187-188, supra).

Moreover, the pernicious nature of the rule implicit in today’s decision will, I fear, be even more evident in future cases. Here, of course, the presentment agency’s motion for reargument came within a relatively short time after the court issued its dismissal order. If however, as the majority apparently concludes, such an order was not an "acquittal” at the time it was rendered, the presentment agency, or any prosecuting authority in a criminal case, would be free to seek reargument of a dismissal weeks and even months later, so long as the order had not been entered. This concern cannot be answered by pointing to the prompt nature of the presentment agency’s challenge in this case. Simply put, a dismissal order intentionally and unequivocally issued either is or is not an acquittal at the time it is made, notwithstanding the timing of a subsequent challenge.

Finally, there is no policy to be served by adopting such a grudging construction of the Double Jeopardy Clause. While trial courts certainly have the power to correct or modify their rulings, that power is limited by the Double Jeopardy Clause as well as our own jurisprudence (see, e.g., People v Carter, 63 NY2d 530 [trial court which renders guilty verdict after nonjury trial is without power to reassess the facts and change the verdict]). Furthermore, in this case, as in the case of most rulings on defense motions to dismiss for failure to establish a prima facie case, the concerns and consequences of the Double Jeopardy Clause would not even be implicated if only the prosecuting authority and the Trial Judge had exercised a bit more prudence. As already noted, the presentment agency could have sought an adjournment to better prepare its opposition to defendant’s motion before the court rendered a final decision. When it was apparent that the trial court might grant the motion, the court could have easily adjourned the matter on its own, to seek more complete argument of the motion and to deliberate more thoroughly before granting the motion, given the double jeopardy consequences of such a ruling. In the case of jury trials, of course, the preferred practice of reserving on the motion until after the jury verdict avoids double jeopardy concerns entirely (United States v Wilson, 420 US 332; People v Key, 45 NY2d 111, 120). Thus a bright-line rule that an order of dismissal for legal insufficiency constitutes an acquittal barring subsequent fact finding serves the policies underlying the Double Jeopardy Clause, provides guidance to the courts below and is easily administered. The technical rule implicit in the court’s decision today has none of those virtues.

Accordingly, I dissent.

Chief Judge Wachtler and Judges Simons, Kaye, Hancock,

Jr., and Bellacosa concur; Judge Alexander dissents in part and votes to modify in an opinion in which Judge Titone concurs.

Order affirmed, without costs, in a memorandum.

       This conclusion is not only contrary to Supreme Court case law, as discussed, infra, it is inconsistent with our decisions holding that the People’s time to appeal from a trial court’s oral order modifying a defendant’s conviction runs from the time the order is made and sentence immediately imposed thereon, rather than the time of entry of the order (see, People v Coaye, 68 NY2d 857; see also, People v Singleton, 72 NY2d 845).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of James M. Segrue, Respondent, v City of Schenectady, Appellant.
    Argued May 1,1990;
    decided June 7, 1990
    APPEARANCES OF COUNSEL

      James W. Roemer, Jr., and Victor M. DeBonis for appellant.

      Harold D. Gordon for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and respondent’s determination of dismissal reinstated.

In a prior article 78 proceeding challenging petitioner’s dismissal from his position as purchasing agent for respondent City of Schenectady, the Appellate Division sustained respondent’s determination that petitioner had improperly altered or permitted to be altered a bid for the purchase of city property (see, Matter of Segrue v City of Schenectady, 132 AD2d 270). That court found substantial evidence to support the determination of the Hearing Officer, as adopted by respondent’s Mayor, that a bid submitted by petitioner’s friend in the amount of $55.21 had been deliberately altered to read $155.21, so that the friend would be the highest bidder for a particular auctioned item (id., at 275). The court annulled the other counts of misconduct sustained by the Mayor, however, and remitted the matter to the Mayor for imposition of an appropriate penalty. The Mayor subsequently rendered a determination reimposing the original penalty of dismissal and this article 78 proceeding ensued.

Contrary to petitioner’s contention, the record reveals that the Mayor did not improperly base the challenged determination of dismissal on prior unestablished allegations of misconduct in petitioner’s personnel file. The record indicates that the Mayor notified petitioner that she would consider his personnel file and also gave him an opportunity to respond to it (see, Matter of Bigelow v Board of Trustees, 63 NY2d 470). Nevertheless, although the Mayor did in fact review the file, her decision makes clear that it was the sustained count of misconduct and not any allegations in petitioner’s personnel file that was the basis of her determination. The decision discusses the sustained count at length, making only passing reference to the personnel file, and noting that the fact that the prior allegations in the file were from administrators of petitioner’s own political party refuted his claim that the current disciplinary proceeding was purely political.

Thus the only issue before us is the propriety of dismissal as a penalty for the one sustained count of misconduct. In this connection, judicial review of the Mayor’s discretionary determination is limited to whether the penalty of dismissal was so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (Matter of Garayua v New York City Police Dept., 68 NY2d 970, 972; Matter of Pell v Board of Educ., 34 NY2d 222, 233). Petitioner’s position accorded him unsupervised discretion in awarding public contracts of up to $5,000, totaling in excess of $1,000,000 annually. Given the favoritism and breach of public trust involved, the imposed penalty is not shockingly disproportionate to petitioner’s misconduct, and it therefore must be upheld.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, with costs, and the determination dismissing petitioner from his position reinstated in a memorandum.


text:
    Landoil Resources v Alexander. Alexander & Alexander Services, Inc., et al., Third-Party Plaintiffs, v Lloyd’s Syndicate 317, Third-Party Defendant.
    Decided June 7, 1990
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Alejandrina Ortiz, Appellant, v New York State Division of Housing and Community Renewal et al., Respondents.
    Decided June 7, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Bruce Wiacek, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted April 30,1990;
    decided June 7, 1990
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Anna A. Young, Respondent, v Supervisor of the Town of Lloyd et al., Appellants.
    Submitted May 14,1990;
    decided June 7, 1990
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Gary Fields, Appellant.
    Argued May 1, 1990;
    decided June 12, 1990

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Peter J. Pullano of counsel), for appellant.

      Howard R. Relin, District Attorney (Mark W. Pedersen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, upon a jury verdict, of burglary in the second degree and criminal mischief in the fourth degree. The Appellate Division affirmed defendant’s conviction, rejecting defendant’s argument that the trial court improperly denied his requests for a missing witness charge. On appeal defendant contends that the trial court should have granted his requests to charge with respect to two police officers, Severe and Ruvio, who defendant maintains witnessed the station house interrogation of defendant by Detective D’Ambrosio. We agree with regard to one of the officers but, nevertheless, affirm on the ground that the error of the trial court was harmless.

At trial, Detective D’Ambrosio testified that during the station house interrogation defendant confessed to committing the completed crime of burglary. On cross-examination, it was developed that Detective D’Ambrosio had testified inconsistently at a pretrial hearing to the effect that defendant had stated only that he had thought about committing the crime. In this same respect D’Ambrosio’s trial testimony was inconsistent with the pretrial hearing testimony of Officer Severe and with written police reports which, according to D’Ambrosio, had been prepared by Detective Ruvio who, concededly, had witnessed the entire interrogation. It is undisputed that Officer Severe, unlike Ruvio, walked in and out of the interrogation room and could not have heard the entire questioning. In seeking a missing witness charge defendant had the burden to prove “[1] that [the] uncalled witnesses were] knowledgeable about a material issue pending in the case, [2] that such witnesses could] be expected to testify favorably to the opposing party and [3] that such party has failed to call [them] to testify.” (People v Gonzalez, 68 NY2d 424, 427.) Once defendant has made a prima facie showing of entitlement to the charge, "it becomes incumbent upon the [People], in order to defeat the request to charge, to account for the witnessfes’s] absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witnesses were] not knowledgeable about the issue * * * [or that] the testimony would be cumulative to other evidence” (id., at 428). Under these facts, we conclude that defendant was entitled to a missing witness charge, but only with respect to Detective Ruvio who was present during the entire interrogation. There is no question that the testimony regarding defendant’s inculpatory statements involved material issues in the case and that Ruvio, as a police officer, would have been expected to testify favorably to the People. Thus, there was a prima facie showing of entitlement to the charge.

To defeat this showing, the People contend, and the lower courts concluded, that Detective Ruvio’s testimony would have been merely cumulative. We disagree. This case is unlike People v Buckler (39 NY2d 895), upon which the People and the Appellate Division rely, where "there was no showing that the uncalled witness would have given different testimony.” (Id., at 897.) Here, to the contrary, there was evidence that if Ruvio were called, his testimony would have been inconsistent with D’Ambrosio’s testimony. In addition to the other noted inconsistencies with the trial testimony and the pretrial accounts of the interrogation, the written police reports prepared by Ruvio were inconsistent with the trial testimony.

But, we do agree with the People that the error was harmless in this case in view of the overwhelming evidence of guilt: the testimony of an eyewitness identifying defendant as the man he saw fleeing from the house which was burglarized, the defendant’s own written statement that he "was thinking of breaking into” the house, the evidence that defendant’s palm print was found at the house, and that defendant was apprehended, within minutes, near the crime scene (People v Crimmins, 36 NY2d 230).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    Lisa Goldman, Appellant, v State of New York, Respondent.
    Decided June 12, 1990
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Charles J. Hynes, Respondent, v Norman George, as a Justice of the Supreme Court, Defendant, and Daniel Ruso, Appellant.
    Submitted May 21, 1990;
    decided June 12, 1990
   Motion for leave to appeal granted. Motion for a stay denied.


text:
    The People of the State of New York, Respondent, v Lawrence McGee, Appellant.
    Argued June 1,1990;
    decided June 14, 1990

      APPEARANCES OF COUNSEL

      Kevin F. Casey and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Carol Teague Schwartzkopf and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed, without prejudice to an application by the People, if they be so advised, to resubmit the charge of attempted robbery in the second degree.

The indictment on which defendant was tried charged him with a single count of attempted robbery in the first degree, on the theory that defendant had displayed what appeared to be a firearm in the course of the crime (Penal Law § 160.15 [4]). Defendant’s pretrial motion to dismiss the indictment was denied, notwithstanding that the court found insufficient evidence to support the charged crime, since the court found that sufficient evidence was presented to the Grand Jury to establish the lesser included offense of attempted robbery in the second degree (Penal Daw § 160.15 [4]; § 160.10 [2] [b]). Ten months later, the People having made no attempt in the interim to supersede the indictment, defendant proceeded to trial.

The dispute in this case centers on the trial court’s decision to grant defendant only the 10 peremptory challenges allowed when the highest crime charged is attempted second degree robbery — a class D felony and the offense actually established by the Grand Jury evidence — rather than the 15 peremptory challenges allowed for the class C felony of attempted first degree robbery, the only crime charged in the indictment (see, CPL 270.25 [2]).

We need not consider the merits of the People’s contention that it was permissible for the trial court, pursuant to CPL 200.70 (1), to grant their motion to "amend” the indictment so as to reduce the charge to attempted second degree robbery, and that there was a "de facto” amendment. As the record reveals, the trial court did not dismiss the attempted first degree robbery count, on the People’s motion or otherwise, until the case was submitted to the jury. Indeed, it is clear from the court’s remarks that the procedure fashioned was the product of frustration with the "fiction” that the top count of the indictment remained in the indictment, despite the insufficiency of the evidence to support it. Understandable though that frustration may be (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 200.70, at 523), the subject is not one for trial court improvisation but for legislative action — as evidenced by the recent enactment of a law authorizing trial courts to reduce charges in an indictment (see, L 1990, ch 209 [signed into law June 2, 1990]).

Although the court made it clear that if the People’s case proceeded as expected, attempted first degree robbery would not be submitted to the jury, that was no substitute for compliance with the clear statutory directive of CPL 270.25 (2), which bases the number of peremptory challenges each party must be allowed on the degree of the highest crime charged. The highest crime charged against defendant was the class C felony of attempted robbery in the first degree. Defendant was therefore entitled to 15 peremptory challenges.

Because the indictment must be dismissed, we do not consider defendant’s other claims, except to note that the trial court’s extremely lengthy predeliberation instructions to the jurors on the importance of harmonizing their differing views was at best unnecessary.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Anonymous, Appellant.
    Argued June 6, 1990;
    decided June 14, 1990

      APPEARANCES OF COUNSEL

      Joseph B. Pachura, Jr., for appellant.

      Robert Abrams, Attorney-General (Julie S. Mereson, O. Peter Sherwood and Peter H. Schiff of counsel), for Nathaniel B. Merrell, respondent.

      Barry M. Donalty, District Attorney (Timothy P. Fitzgerald of counsel), respondent pro se.

   OPINION OF THE COURT

Judgment affirmed, without costs. Prohibition does not lie to challenge the order issued pursuant to CPL 240.40 directing petitioner to submit to a blood test.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    June A. Cutler et al., Appellants, v Travelers Insurance Company et al., Respondents. Edwin C. Smith, Appellant, v Home Indemnity Company, Respondent. Michael J. Burke et al., Appellants, v Federal Insurance Company et al., Respondents.
    Submitted May 7, 1990;
    decided June 14, 1990
   Motions, insofar as each seeks leave to appeal from the Appellate Division order dismissing as moot defendants’ appeal from Supreme Court’s order granting class certification, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motions for leave to appeal otherwise denied.


text:
    Lindiwe Khanyile, Appellant, v Roosevelt Hospital et al., Respondents.
    Submitted May 7,1990;
    decided June 14, 1990
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    LVF Realty Co., Inc., Respondent, v Robert Harrington, as Treasurer of the City of Long Beach, et al., Defendants, and Nesim Pinto, Appellant.
    Decided June 14, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, as untimely (see, CPLR 5611; Farragher v City of New York, 19 NY2d 831).


text:
    Betty O. Muka, Appellant, v State of New York, Respondent.
    (Claims Nos. 78586, 78587, 78588 and 78589.)
    Submitted May 21,1990;
    decided June 14, 1990
   Motion to dismiss the appeals, insofar as taken from the September 18, 1989 and February 26, 1990 orders of the Court of Claims granted, and the appeals dismissed and, on the court’s own motion, the appeals, insofar as taken from the March 13, 1990 judgments of the Court of Claims, dismissed, each unless within 20 days appellant, if she be so advised, serves upon respondent and files in this court a notice that she has abandoned her appeal to the Appellate Division, and stipulates for the withdrawal of that appeal (Parker v Roger-son, 35 NY2d 751). Cross motion to strike the motion papers and affidavit of service, for the imposition of sanctions and for other items of relief, denied.


text:
    Betty O. Muka, Appellant, et al., Plaintiff, v Thomas R. Emnett, Respondent. Betty O. Muka, Appellant, et al., Plaintiff, v Robert Simpson, Respondent. Betty O. Muka, Appellant, et al., Plaintiff, v Emnett and Simpson, Respondent.
    Submitted April 23, 1990;
    decided June 14, 1990
   On the court’s own motion, appeals transferred, without costs, to the Appellate Division, Third Department, each upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for waiver of strict compliance with this court’s Rules of Practice dismissed as academic.


text:
    Betty O. Muka, Appellant, et al., Plaintiff, v John J. Pollock, Respondent. (And Additional Actions.)
    Submitted April 23, 1990;
    decided June 14, 1990
   On the court’s own motion, appeals from the orders of Supreme Court, Tompkins County, dated November 3, 1989 and November 24, 1989, and from the orders of Supreme Court, Broome County, dated September 8, 1989 and January 22, 1990, transferred, without costs, to the Appellate Division, Third Department, each upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for waiver of strict compliance with this court’s Rule of Practice dismissed as academic.


text:
    Salvatore A. Profita, Appellant, v Louise M. Profita, Respondent.
    Decided June 14, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, § 3 [bj; CPLR 5601).


text:
    Benjamin Rothbaum, Respondent, v Stella F. Rothbaum, Appellant.
    Submitted April 23,1990;
    decided June 14, 1990
   Motion for leave to appeal dismissed upon the ground that movant has failed to file with the court copies of each order or judgment, together with its notice of entry, as well as copies of all opinions or memoranda rendered in the courts below as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of Robert S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided June 14, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Joann Slatt, Appellant, v Abner Slatt, Respondent.
    Decided June 14, 1990
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 M [2]).


text:
    Jane Thomassen, Respondent, v J & K Diner, Inc., Doing Business as Concord Restaurant-Diner, et al., Appellants. (And a Third-Party Action.)
    Decided June 14, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation for judgment absolute, under the facts of this case, is illusory and frustrates the purpose of CPLR 5601 (c) (Goldberg v Elkom Co., 36 NY2d 914).


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Dannell Warren, Appellant.
    Argued May 31,1990;
    decided June 28, 1990

      APPEARANCES OF COUNSEL

      Richard Joselson and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Randa D. Maher and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of second degree burglary and related offenses. The evidence at his jury trial included the complainant’s testimony identifying defendant as the person whom she saw in her bedroom just before she screamed, prompting the intruder to flee. There was also identification testimony from the complainant’s brother, who had been sitting in the complainant’s living room when the complainant screamed and had chased the intruder through the neighborhood streets. Finally, identification testimony was given by a neighbor, who stated that he had seen defendant in the area earlier in the day and had joined the complainant’s brother’s chase, losing sight of defendant only when the latter "hid” under a parked car for a few minutes. This witness saw defendant emerge from his hiding place, at which point he was arrested by the police. In addition to the identification testimony, the People’s trial evidence established that jewelry taken from the complainant’s home was found on the ground beneath the parked car, on the seat of the patrol car used to transport defendant to the police station and, finally, in defendant’s own pockets.

Defendant took the witness stand on his own behalf. He testified that he had been on a street in the neighborhood en route to his mother’s house when he encountered a friend who owed him some money. The friend, who was coincidentally wearing clothing similar to defendant’s, told defendant to wait on the street while he got the money to repay him. Instead of bringing money, however, the friend returned with some jewelry, which he asked defendant to hold for him until the money could be obtained. According to his version, defendant was headed toward his mother’s house when he was accosted by a group of people who cursed and directed racial epithets at him. Fearing for his own safety, defendant fled.

On these facts, the trial court should have instructed the jury on the People’s burden of disproving defendant’s alibi, since defense counsel requested such an instruction and defendant’s testimony that he was on a nearby street at the time of the burglary was legally sufficient to raise the defense of alibi (see, People v Holt, 67 NY2d 819). However, given the facts of this case, the court’s refusal to give such an instruction does not require reversal, since the charge as a whole conveyed the necessary information regarding the People’s burden of proof (cf., People v Victor, 62 NY2d 374; People v Whalen, 59 NY2d 273).

The trial court specifically told the jury that the identity of defendant as the person who had committed the crime must be established by the People beyond a reasonable doubt (see, People v Whalen, supra). Further, there was no reference to the alibi defense in either the court’s instruction or the summations of counsel that could have potentially misled the jury as to the proper allocation of the burden of proof on the question of the defendant’s identity as the intruder (cf., People v Victor, supra, at 377). Indeed, the court specifically told the jury that the People have the burden of proof throughout the trial, that the burden "never, never” shifts to the defendant and, most significantly, that no burden of proof shifts to the defendant by virtue of the fact that he offered his own testimony. Under the facts present in this case, where the only contested issue was whether the accused was, in fact, the person who committed the crime, we need not reverse merely because the court did not tell the jury that the People must prove, beyond a reasonable doubt, both that defendant was the actor present at the crime scene and that he was not elsewhere at the same time.

The trial court’s evidentiary rulings of which defendant complains, if error, were harmless in view of the overwhelming evidence of guilt.

Kaye, J.

(dissenting). I respectfully dissent. The "charge as a whole” referred to by the majority was no more than the boilerplate charge given in all cases concerning the People’s burden of proof. If such a standard charge constitutes adequate instruction on the legal principles applicable to an alibi defense, then there is no need for a jury instruction on alibi in any case, a result impossible to reconcile with our recent decisions in People v Jack (74 NY2d 708) and People v Holt (67 NY2d 819). People v Holt, in particular, cannot be distinguished from this case. In Holt the defendant testified that he was within a half block of the crime scene. The People argued that this was a misidentification defense, and that the court’s general charge sufficiently protected defendant. We rejected that claim there, and I see no reason why the same result should not obtain here.

The majority cites no case, nor have I found any, holding that the failure to deliver a properly requested alibi charge did not require reversal, on the theory that it was unnecessary because of the charge as a whole. The proposition that the absence of an alibi instruction is reversible error only when the court or counsel may have overtly misled the jury concerning the allocation of the burden of proof — a sort of "curative instruction” theory of the alibi charge — is both novel and confusing. It is not to be derived from our opinion in People v Victor (62 NY2d 374), the only cited authority. To the contrary, as we explained in Victor, an alibi instruction is required to "ensure that the jury understands that the People must always meet their burden of proving that the accused actually committed the crime * * * Thus, the People have the burden of disproving an alibi beyond a reasonable doubt, and a Judge must unequivocally state that burden in the jury charge” (id., at 377-378).

It may be unpalatable to reverse defendant’s conviction in a case where the defense appears improbable on the appellate record (we note that the jury did not so readily dismiss defendant’s explanation, and asked to have his testimony read back in its entirety). However, a reversal is preferable to distorting what has up to now been our clear and consistent position concerning failure to deliver proper alibi instructions.

Chief Judge Wachtler and Judges Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye dissents and votes to reverse in an opinion in which Judges Simons and Alexander concur.

Order affirmed in a memorandum.

      . In Victor (62 NY2d, at 378 [emphasis supplied]), the court noted that the Trial Judge’s specific alibi charge "may have conveyed * * * that the defendant must prove the truth of the alibi” and that "[t]hus, viewed in its entirety, the charge was not satisfactory without the additional requested warning”.

      . It is true, as the dissent notes, that we may not have previously had occasion to uphold a conviction, despite the erroneous omission of an alibi charge, on the ground that the charge as a whole conveyed the necessary information (but cf., People v Canty, 60 NY2d 830). However, the principle that the charge as a whole must be considered is an elementary one, required by CPL 470.05 (1) (see, People v Bloeth, 9 NY2d 211, 213; see also, People v Russell, 266 NY 147, 153), and has been applied in at least one other context in which a legally significant charge was improperly omitted (People v Gonzalez, 54 NY2d 729 [omitted "moral certainty” charge]). The principle is equally applicable here.


text:
    The People of the State of New York, Respondent, v Kevin Misevis, Appellant.
    Argued May 30,1990;
    decided June 28, 1990

      APPEARANCES OF COUNSEL

      Perry S. Reich, Steven M. Schapiro, Helen Lefkowitz and Deborah Poulos for appellant.

      Roger H. Mallery, District Attorney (J. Russell Langwig, III, of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s primary argument is that the People failed to prove that he intended to damage the property of another (see, Penal Law §§ 145.00, 145.10). We agree with the Appellate Division that, viewing the evidence in the light most favorable to the People (People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932), the evidence is sufficient. On this record, the jury could properly have concluded that defendant did not have "any reasonable ground to believe” that he was acting under a claim of right. We have reviewed defendant’s remaining contentions and find them to be unpreserved or without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Owners Committee on Electric Rates, Inc., Respondent, v Public Service Commission of the State of New York, Appellant.
    Argued May 31, 1990;
    decided June 28, 1990

      APPEARANCES OF COUNSEL

      Lawrence G. Malone and William J. Cowan for appellant.

      Joel R. Dichter, Martin C. Seham and Virginia Pettinelli for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the Public Service Commission’s motion to dismiss the petition granted for the reasons stated in the dissenting opinion by Justice Howard A. Levine at the Appellate Division (150 AD2d 45, 51-54). Certified question answered in the affirmative.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Benjamin Rush Employees United, Appellant, v Francis J. McCarthy, Jr., Doing Business as Benjamin Rush Center, Respondent.
    Argued May 31,1990;
    decided June 28, 1990
    APPEARANCES OF COUNSEL

      Ira Paul Rubtchinsky and Bernard F. Ashe for appellant.

      Dennis P. Hennigan for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The contractual agreement between petitioner union and respondent center includes an arbitration clause which provides: "The decision of the arbitrator shall be advisory unless accepted by both parties[,] in which case it will become binding.” The grievance of a discharged union employee was tendered by the parties to arbitration in accordance with the agreement, framing the issue as follows: "Was the discharge of grievant * * * for just cause? If not, what shall the remedy be?” The arbitrator’s decision sustained the grievance and recommended the employee’s reinstatement with back pay. The employer promptly rejected the arbitrator’s proposed solution.

The union’s CPLR 7510 proceeding to confirm the arbitration decision was dismissed by Supreme Court on the ground that it was advisory only and could not be confirmed. The Appellate Division affirmed for the reasons stated by Supreme Court, and we granted leave to appeal and also affirm.

Petitioner-appellant first argues that a literal reading of CPLR 7510 requires confirmation, despite the arbitration agreement’s concededly prescribed advisory nature. The statute pertinently provides: "The court shall confirm an [arbitration] award upon application of a party made within one year after its delivery.” The argument is unavailing because, among other reasons, statutory confirmation of an expressly rejected arbitration solution would nullify key provisions of the contract itself, violating a cardinal rule of construction.

Petitioner alternatively urges that respondent, by submitting to the arbitrator the fashioning of a remedy if a grievance was found, transformed the advisory decision into a binding one. This argument ignores the language of the clause at issue, which makes arbitration awards definitively advisory "unless accepted by both parties”. The parties have an express contractual option to accept or reject a decision after the arbitrator renders it. Petitioner’s transformation, therefore, would render the clause a nullity.

Board of Educ. v Yonkers Fedn. of Teachers (46 NY2d 727) is not to the contrary. The arbitration clause there was binding only as to the specific issue submitted, and the agreement provided that the arbitrator was to be so notified. The parties waived the advisory nature of the arbitration by requesting a remedy without including any limitation on the arbitrator’s power to bind them. Here, the clause made the arbitration undeviatingly advisory unless the parties expressly and affirmatively elected to be bound.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Bernard P. Birnbaum, Deceased.
    Submitted May 14, 1990;
    decided June 28, 1990
   Motions to dismiss the appeals granted and the appeals dismissed, with $400 costs and $100 costs of motion, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).

Judge Hancock, Jr., taking no part.


text:
    In the Matter of Murray F. Lewis, an Attorney, Appellant. Committee on Professional Standards, Third Judicial Department, Respondent.
    Submitted May 14, 1990;
    decided June 28, 1990
   On the court’s own motion appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Appellant, v Earl Banks, Respondent.
    Decided July 2, 1990

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (James M. McGuire of counsel), for appellant.

      Lawrence A. Vogelman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings pursuant to CPL 470.40 (2) (b).

Even when viewed in the light most favorable to the defendant (People v Steele, 26 NY2d 526), there is no reasonable view of the trial evidence upon which the jury could have found defendant’s possession of a loaded .38 calibre automatic pistol to be innocent and lawful. Accordingly, the trial court properly denied defendant’s request for a charge on the defense of temporary and lawful possession.

Although the People sought to prove that the police recovered the gun from a brown paper bag in defendant’s- pants pocket after he and his codefendant Carson Love had committed a robbery, the defendant testified that he acquired the gun by disarming another in a fight. According to defendant, when he accompanied Love to a park in Manhattan to conduct a marihuana transaction with one Freddie Benes, Love and Benes began to fight. When somebody yelled that Benes was going to get something, defendant grabbed Benes’ arm and picked up a paper bag from the ground before Benes could grab it. Defendant felt the shape of a gun in the bag, put the bag in his pants pocket and as they left the park defendant told Love about the gun. Although defendant claimed that he did not throw the gun away in the park because he was afraid someone there would use it against him, he told Love that he intended to take it to Queens and testified at trial that he intended to throw the gun down a sewer in Queens.

While it is settled that the mere possession of a weapon is not criminal in every instance, we have said that "to trigger the right [to a charge of temporary and lawful possession] there must be proof in the record showing a legal excuse for having the weapon in [defendant’s] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner”. (People v Williams, 50 NY2d 1043, 1045.) Here, after initially acquiring the weapon by "taking” it from Benes under circumstances that could be deemed justified, defendant concealed the weapon on his person and determined to transport it through the streets and on the subway into Queens where he proposed to "throw it down a sewer.” This evidence was " 'utterly at odds with any claim of innocent possession’ ” (People v Snyder, 73 NY2d 900, 902, quoting People v Williams, 50 NY2d, at 1045, supra) temporarily resulting from disarming a wrongful possessor (People v Persce, 204 NY 397, 402).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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 case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    Claire Remba, Appellant, v Federation Employment and Guidance Service, Respondent.
    Argued May 30,1990;
    decided July 2, 1990

      APPEARANCES OF COUNSEL

      Eugene Prosnitz for appellant.

      David H. Diamond, Jerold D. Jacobson and Richard A. Levin for respondent.

      Lisa R. Lipman for New York Plaintiff Employment Lawyers Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff maintains that she was discharged because she objected to, and refused to participate in, defendant’s purported fraudulent billing of New York City, and that such retaliatory action is prohibited under Labor Law § 740 (2) (c) (the “Whistleblower” Law). This contention is unavailing, however, primarily because we agree with the Appellate Division that Labor Law § 740 (2) (c), like section 740 (2) (a), is triggered only by a violation of a law, rule or regulation that creates and presents a substantial and specific danger to the public health and safety (see, Easterson v Long Is. Jewish Med. Center, 156 AD2d 636, lv denied 76 NY2d 704; Kern v DePaul Mental Health Servs., 152 AD2d 957; Leibowitz v Bank Leumi Trust Co., 152 AD2d 169, 175-177).

In addition, after reviewing the legislative history, we conclude that the conduct complained of — fraudulent billing — is not the type of violation which creates a “substantial and specific danger to the public health or safety” (see, Leibowitz v Bank Leumi Trust Co., supra [fraudulent banking activities]; Vella v United Cerebral Palsy, 141 Misc 2d 976 [improper purchasing practice]; Givens, Practice Commentaries, McKinney’s Cons Laws of NY, Book 30, Labor Law § 740, at 546, 554-557; but cf., Civil Service Law § 75-b [2] [a] [public employees protected from retaliation when they report conduct which they reasonably believe constitutes a violation of any Federal, State or local law, rule or regulation]). Finally, although the present "Whistleblower” statute has been criticized by commentators for not affording sufficient safeguards against retaliatory discharge (see, Minda and Raab, Time for an Unjust Dismissal Statute in New York, 54 Brooklyn L Rev 1137, 1138, 1182-1187 [1989]; Dworkin and Near, Whistleblowing Statutes: Are They Workingf, 25 Amer Bus LJ 241, 253 [1987]), any additional protection must come from the Legislature (see, Sabetay v Sterling Drug, 69 NY2d 329, 336).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a concur.

Order affirmed, with costs, in a memorandum.


text:
    Banque Worms, Plaintiff, v Bank America International, Defendant and Third-Party Plaintiff. Security Pacific International Bank, Third-Party Defendant.
    Decided July 2, 1990
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Evelyn Voulgarelis, Respondent, v Nikos Voulgarelis, Appellant.
    Decided July 2, 1990
   Appeal from the Supreme Court orders transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Second Department, upon the ground that the direct appeal does not lie (NY Const, art VI, § 3 [b]; § 5 [b]; CPLR 5601). Appeal from the Appellate Division order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent-Appellant, v John Loughlin, Appellant-Respondent.
    Argued June 1,1990;
    decided July 5, 1990

      APPEARANCES OF COUNSEL

      William, J. Breuer and Paul J. Kenny for appellant-respondent.

      John J. Santucci, District Attorney (Michael O’Brien of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

As a result of an automobile collision in which the driver of the other vehicle was killed and two passengers seriously injured, defendant was charged in a five-count indictment with vehicular manslaughter, second degree, criminally negligent homicide, two counts of vehicular assault and driving while intoxicated. At the conclusion of the trial, the court instructed the jury that vehicular manslaughter consisted of criminal negligence, while intoxicated, which caused a death, that criminally negligent homicide consisted of exactly the same elements, except intoxication, that vehicular assault consisted of criminal negligence, while intoxicated, resulting in serious physical injury. It directed the jury to consider first vehicular manslaughter and instructed it that if it found defendant guilty of that count it did not have to consider criminal negligence or driving while intoxicated but it could proceed to the vehicular assault counts. The only charge down was operating a motor vehicle while ability impaired as a lesser included offense of count 5, operating a motor vehicle while under the influence of alcohol.

After commencing deliberations, the jury returned to the courtroom and asked the court to explain the difference between vehicular manslaughter and criminally negligent homicide. The court repeated its earlier instructions, reminding the jury that a conviction of the first required a finding that defendant was driving his vehicle while intoxicated and that the latter did not. Having clarified the distinction, the jury continued its deliberations but subsequently returned to the courtroom and requested the court to redefine criminal negligence. After receiving the court’s supplemental instructions on this issue, the jury found defendant guilty of criminally negligent homicide and two counts of vehicular assault.

The jury was polled and confirmed its verdicts. Before it was dismissed defense counsel requested that the jury be returned to the jury room pursuant to CPL 310.50 to reconsider its verdict or that the verdicts be set aside as repugnant. The court refused both requests, entered the verdicts and directed the parties to prepare posttrial submissions on repugnancy. The court subsequently set aside the vehicular assault counts but left standing the criminally negligent homicide verdict. The Appellate Division affirmed the disposition of the verdicts but modified the sentence.

Whether verdicts are repugnant or inconsistent (the difference is inconsequential) is determined by examining the charge to see the essential elements of each count, as described by the trial court, and determining whether the jury’s findings on those elements can be reconciled (see, People v Tucker, 55 NY2d 1, 6-7). The critical concern is that a defendant should not be convicted of a crime when the jury has found that he did not commit one or more of its essential elements (id., at 6).

In this case, the jury had been specifically instructed that the only difference between vehicular manslaughter and criminally negligent homicide was the element of intoxication. It rejected the claim that defendant had driven while intoxicated and accepted the claim that he was guilty of criminal negligence. Accordingly, its finding of guilt on the vehicular assault charges was inconsistent with the acquittal on vehicular manslaughter and the court correctly set them aside. Moreover, having been instructed on the difference between vehicular manslaughter and criminally negligent homicide, the jury rejected one and proceeded to weigh the other, asking for further instructions on negligence before eventually convicting defendant of it.

On this appeal, defendant urges that when the inconsistent verdicts were returned the court was required to direct the jury to deliberate further. While it may have been advisable for the court to do so, we held in People v Robinson (45 NY2d 448) that CPL 310.50 (2) did not create a per se rule: "resubmission is required only where the verdict returned by the jury exhibits a confusion on the part of the jury such that its intention with respect to individual counts of the indict-merit is uncertain.” (Id., at 453.) We find no evidence of confusion here and none establishing that the jury held defendant guilty of a crime on which it had found he did not commit an essential element (see, People v Tucker, supra). Manifestly, the jury’s verdicts in the vehicular manslaughter and vehicular assault counts are irreconcilable because in one they found defendant was not intoxicated while in the others they found he was. There is no view of the verdicts, however, which would demonstrate that the jury found defendant both was and was not guilty of criminal negligence. It is clear that it believed that the defendant acted with criminal negligence and was guilty of criminally negligent homicide, despite its inconsistent verdicts as to the crimes that had intoxication as an element. Because the jury’s intent as to this count of the indictment was unequivocal, there was no need to resubmit the case to the jury.

Defendant also urges that that evidence was legally insufficient to support the jury’s verdict of criminal negligence. There was evidence that defendant had been drinking and that he was driving at an excessive rate of speed on an obstructed street under construction in a residential neighborhood. The jury was entitled to accept this evidence and it was sufficient to support its verdict (see, People v Boutin, 75 NY2d 692; People v Paul V. S., 75 NY2d 944; People v Ricardo B., 73 NY2d 228).

The issue raised by the People on their cross appeal has not been preserved for our review.

Kaye, J.

(dissenting in part). Where the jury’s verdict is contradictory, today’s decision authorizes judicial resolution of the contradiction in virtually all cases, and is a substantial step beyond the carefully limited exception to CPL 310.50 (2) established by People v Robinson (45 NY2d 448). Because I believe that CPL 310.50 (2) represents a precisely contrary legislative intent — that the jury is where such problems should be settled and guilt or acquittal of particular charges decided — I dissent.

The relevant language of CPL 310.50 (2) is mandatory: "If the jury renders a verdict which in form is not in accordance with the court’s instructions or which is otherwise legally defective, the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and to render a proper verdict.” (Emphasis added.)

In Robinson, the jury failed to comply with the court’s instructions to consider the counts of criminal possession with intent to sell a controlled substance and the inclusory concurrent counts of simple possession in the alternative. Instead, it returned a guilty verdict on both sets of counts. After recording the verdict, the trial court dismissed the simple possession counts over counsel’s objection that the case should be resubmitted to the jury. We rejected the defendant’s literal interpretation of subdivision (2) of CPL 310.50, stating that "absent the return of a verdict about which confusion exists as to the intention of the jury, the jury’s failure to comply with the trial court’s instructions does not, per se, require submission of the case to the jury for reconsideration of its verdict.” (People v Robinson, 45 NY2d, at 452.) Indeed, we noted that "to a jury unschooled in the doctrine of lesser included offenses, a verdict of guilty on those counts of the indictment charging criminal possession with intent to sell as well as those charging criminal possession of a controlled substance must appear quite consistent. ” (Id., at 453; emphasis added.)

That cannot be said of the present case. The jury convicted defendant of negligent homicide, but acquitted him of vehicular manslaughter. Thus, the jury necessarily found that the People had failed to prove intoxication. However, the jury also convicted defendant on the vehicular assault charges — a finding that was utterly inconsistent with a determination that intoxication had not been proved. Unlike Robinson, here such a verdict could not possibly "appear quite consistent” to a jury.

In Robinson, we went on specifically to distinguish the factual situation presented in People v Salemmo (38 NY2d 357), "in which the jury returned with a verdict convicting the defendant of criminal sale of a dangerous drug and possession of a dangerous drug with intent to sell, but acquitting him of simple possession. In such a case, the jury’s apparent confusion is evident in its return of an inherently inconsistent verdict.” (45 NY2d, at 453.) Exactly that happened here: the jury’s apparent confusion is evident in its return of an inherently inconsistent verdict.

The majority now declares that unless "the jury held the defendant guilty of a crime on which it had found he did not commit an essential element,” there is "no evidence of confusion” (majority mem, at 807), and resubmission is not required. This is, of course, an entirely new rule. It cannot be derived from the commonsense observation in People v Robinson (supra, at 453), that there is no resubmission requirement where the jury’s verdict is, in fact, completely consistent. To the contrary, as a matter of common sense and usage, it is difficult to understand how the majority can perceive "no evidence of confusion” when the jury apparently determined that defendant both was, and was not, intoxicated. Indeed, even applying the rule the majority now creates, the case should have been resubmitted, as the jury did find defendant guilty of a crime (vehicular assault) of which it also found he did not commit an element (intoxication).

The explanation for the result reached is that, relying on Robinson’s passing reference to uncertainty concerning the jury’s "intention with respect to individual counts of the indictment” (People v Robinson, 45 NY2d, at 453, supra; emphasis added), the court has somehow determined that it is clear that the jury intended to convict defendant of negligent homicide. Such judicial smoothing over of obvious juror confusion is a direct intrusion into the determination CPL 310.50 (2) commits to the jury. Notably, the statute requires the trial court to record an acquittal on an individual count if it is clear that the jury intended to find the defendant not guilty on that count, but contains no similar authorization for the trial court to determine that it is clear the jury intended to find the defendant guilty on a particular count despite the inconsistency of the verdict. The new rule advanced by the majority might be acceptable if the inconsistency in the verdict involved counts completely unrelated to the one at issue. Even if, as the majority surmises, it is "clear” that the jury "believed” defendant was guilty of criminally negligent homicide, it is far from clear that they grasped the trial court’s instructions concerning the law of criminal negligence —an element common to the counts on which their verdict demonstrated their confusion. If indeed the jurors understood all of the relevant concepts, then upon resubmission they would again have found defendant guilty of criminally negligent homicide. However, it is not for us retrospectively to guess the source of the jury’s apparent confusion.

Finally, I would note that the new rule is at odds with our longstanding insistence that a claim of repugnancy in a verdict be raised before the jury is discharged in order to preserve the error for appellate review. We have explained this strict rule as one designed to "permit[ ] the court to resubmit the matter to the jury to obtain a consistent verdict” (People v Alfaro, 66 NY2d 985, 987). In a case such as this, that requirement is pointless if courts will now be permitted to resolve the matter on their own.

Chief Judge Wachtler and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye dissents in part and votes to reverse on defendant’s appeal in an opinion in which Judge Alexander concurs.

Orders affirmed in a memorandum.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Rodney Harris, Appellant.
    Argued May 31,1990;
    decided July 5, 1990

      APPEARANCES OF COUNSEL

      Joseph W. LaFay and Gerald T. Barth for appellant.

      Robert E. Wildridge, District Attorney (Lisa Sapino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

Defendant was tried on charges arising out of an incident during which he imprisoned the complainant in her home, threatened to kill her, choked her, sodomized her and threatened to do the same to her two young daughters. While the jury was deliberating they sent the Judge a note asking for a readback of trial testimony. The Judge, accompanied by defense counsel and the prosecutor, and with their consent, then went to the door of the jury room and requested clarification of the readback request. Although this communication with the jury was not transcribed at that time, the Judge put the following on the record shortly thereafter when he returned the jury and the defendant to the courtroom to respond to the request:

"the court: Judy, both lawyers, Defendant is present, the Jury is here.
"Mrs. Dill, I have a message. I’ll read it into the record so we won’t misplace it. 'We want to hear the testimony about [complainant] from the second time Judy Flint knocks on the door until [complainant] arrives at her neighbor’s.’
"Now, I’ve brought both lawyers into the Jury Room, and I said you wanted to hear the testimony of the victim, [complainant], That’s what the question was in regard to wasn’t it?
"mrs. dill: Right.
"the court: We found that information that’s in the record. We’re going to read that to you. (Whereupon Court Reporter read requested portion of the testimony from Page 206, Line 17 to Page 208, Line 9.)”

We reject defendant’s contention that this brief communication with the jury in his absence violated CPL 310.30 and denied him his constitutional right to be present at a material stage of his trial.

A criminal defendant has, as a matter of due process, an absolute right to be present, with counsel, "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge” (Snyder v Massachusetts, 291 US 97, 105-106; People v Ciaccio, 47 NY2d 431, 436). This includes the right to be present during instructions to the jury "where the court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts” (People v Ciaccio, 47 NY2d, at 436, supra; see also, People v Johnson, 145 AD2d 932) as well as the court’s instructions in response to the jury’s questions about the evidence (People v Mehmedi, 69 NY2d 759). These aspects of a defendant’s constitutional right are also protected by CPL 310.30 (People v Mehmedi, 69 NY2d, at 760, supra; People v Ciaccio, 47 NY2d, at 437, supra), which provides that when a deliberating jury requests further information or instruction the court "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (CPL 310.30; see also, Maurer v People, 43 NY 1).

In this case, the court’s communication with the jury in defendant’s absence consisted solely of a question to clarify whether a readback request for "testimony about [complainant]” was a request for "testimony of the victim, [complainant]” (emphasis added). The jury was given no "information or instruction” within the meaning of CPL 310.30. Moreover, this ministerial communication was wholly unrelated to the substantive legal or factual issues of the trial. Consequently, it cannot be said that defendant’s presence during this communication would have borne any relation, let alone any reasonably substantial relation, to his opportunity to defend against the charges. His presence, therefore, was not constitutionally required (Snyder v Massachusetts, 291 US, at 105-106, supra).

We have considered defendant’s remaining contention and conclude that it is without merit.

Titone, J.

(dissenting). I dissent. There is little room for dispute about the basic legal principles that are applicable here. CPL 310.30 requires the personal presence of the accused whenever "information or instruction” is given to a deliberating jury. Further, the Due Process Clauses of the State and Federal Constitutions (US Const 5th, 14th Amends; NY Const, art I, § 6) require the defendant to be present "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend” (Snyder v Massachusetts, 291 US 97, 105-106; People v Ciaccio, 47 NY2d 431, 436). The question that divides üs is how those simple principles should be applied to these facts.

The majority has held that neither the statutory nor the constitutional right to be present was violated here because, in its view, no "information or instruction” was imparted and the postsubmission colloquy between Judge and jury was merely "ministerial”, involving no "substantive legal or factual issues”. The assertion that the colloquy "was wholly unrelated to the substantive legal or factual issues of the trial” (majority mem, at 812) is, to say the least, puzzling, since the colloquy directly concerned which portions of the trial testimony would be reread — clearly a matter of substance of crucial significance to the trial.

Even more difficult to accept is the majority’s conclusory characterization of the Trial Judge’s inquiry as a mere "ministerial” matter. Black’s Law Dictionary defines "ministerial” acts as those that are performed "in a prescribed manner * * * without regard to the exercise of [one’s] own judgment” (Black’s Law Dictionary 899 [5th ed]). Further, "ministerial” acts are those that demand "no special discretion, judgment or skill” (id.). In a related context, we recently held that even the simple act of conveying the Trial Judge’s one-sentence directive to the jury to continue deliberating cannot be dismissed as a mere "ministerial act” (People v Torres, 72 NY2d 1007). A fortiori, the same is true where, as here, an in-person dialogue between the Judge and the jury was involved.

The brevity and simplicity of the colloquy that occurred in this case should not obscure the importance and complexity of the inherently judicial task of clarifying a jurors’ request for additional information. The Trial Judge’s duty to ask jurors to make their requests clearer when some ambiguity exists is a well-settled corollary of the court’s duty to give meaningful postsubmission instructions (see, e.g., People v Gezzo, 307 NY 385, 397; People v Gonzalez, 293 NY 259, 261). Indeed, in People v Malloy (55 NY2d 296, 301-302, cert denied 459 US 847) and People v Almodovar (62 NY2d 126, 131-132), we gave substantive significance to the Trial Judge’s power and obligation to ascertain the precise meaning of a jury’s inquiry by holding that the results of any clarifying colloquies are factors to be considered in determining whether the jury has been given a "meaningful response”.

Manifestly, in light of its importance to the sound exercise of the trial court’s discretion to determine what additional information must be given under CPL 310.30, this task of clarifying a jury’s inquiry can hardly be regarded as ministerial. To the contrary, it is one requiring a high degree of judicial sensitivity and knowledge. In practical terms, a court faced with an ambiguous jury request must make an educated guess, based on its experience and awareness of the trial issues, as to what additional information the jurors really want. Further, in framing its own "clarifying” questions, the court must be careful not to suggest a "proper” response or to make remarks which might convey potentially prejudicial material. The activity is thus the very antithesis of what is ordinarily deemed "ministerial”, since it demands the utmost use of the court’s specialized judicial discretion, judgment and skill.

Moreover, the need for the defendant’s personal presence is obvious in these situations. Having heard the evidence and observed the reactions of the jurors during trial, the defendant, no less than his attorney, may perceive subtleties in the jurors’ inquiry that were lost on the Judge and may therefore make suggestions for further "clarifying” questions or a more complete response to the jury’s request (cf., People v Almodovar, supra, at 131-133). Indeed, in decisions such as Malloy (supra) and Almodovar (supra), this court has made the function of clarifying ambiguous or incomplete juror requests an important part of the adversarial system, since the scope and nature of the responsive instructions required now depend on the outcome of the inquiry. Thus, the "fulness of [an accused’s] opportunity to defend” is unquestionably implicated when the defendant is excluded from a "clarifying colloquy” such as this one, and the constitutional due process requirements which the majority cites are, plainly, unsatisfied (see, Snyder v Massachusetts, supra).

Finally, the trial court’s action in this case was violative of CPL 310.30, which requires the defendant’s presence whenever the court, in response to a juror inquiry, "give[s] such requested information or instruction as the court deems proper”. The distinction the majority has apparently attempted to draw between giving "information or instructions” and merely asking questions to "clarify” the jurors’ request is, in my view, too artificial to provide a sound and realistic basis for a sensible rule of law. As most experienced Trial Judges are aware, the task of ascertaining precisely what the jury wishes to know is, more often than not, inextricably intertwined with the task of giving instruction or information. When the jury has asked for an unadmitted exhibit, for example, the trial court must instruct that the exhibit is not evidence that may be considered before it can go on to ascertain which items of admissible evidence, if any, would be helpful in resolving the jury’s problem. Similarly, where the jurors have made an overly broad request for a readback of testimony, the court may well have to give an overview or summary of the trial evidence in order to help narrow the request. Even in this case, where the exchange between trial court and jury was apparently quite brief, information about the nature of the trial evidence was necessarily conveyed — i.e., that a request for testimony about, rather than by, the complainant was not appropriate.

In any event, the question before us is whether, irrespective of the specific content of the particular colloquy, communications between Trial Judges and jurors to "clarify” the meaning of a CPL 310.30 juror request are part of the instructional process and therefore require the defendant’s personal presence under the explicit mandate of that statute. A contrary rule based on whether the discussion did or did not include instructional matter is unrealistic and pragmatically unworkable, because it makes the determination as to whether the defendant’s presence is required turn upon the court’s prescience as to what might, or might not, have to be said to the jurors in order to obtain the needed clarification. Additionally, there is little to be gained from a practice of excluding the defendant during these preinstructional "clarifying” colloquies, since, in any event, the defendant will have to be produced in court when the requested information or instruction is actually given.

For these reasons, and because of the mandate of the State and Federal Due Process Clauses, the better rule would be to hold that when the jury requests information or additional instruction on a matter of substance, court should be simply reconvened before any colloquy before the Judge and jury takes place. Such a rule would seem to be closer to what the drafters of CPL 310.30 had in mind when they provided that "[u]pon * * * a request [for further instruction or information], the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information” (emphasis supplied). Moreover, such a rule would obviate the need to draw elusive distinctions about what is, or is not, "information” or "instruction”.

Under that view of CPL 310.30, the trial court’s action in engaging in colloquy with the juror outside defendant’s presence was error. Since a violation of that statute requires reversal even where no objection was made and no concrete prejudice is shown (People v Mehmedi, 69 NY2d 759), I conclude that this defendant’s conviction must be reversed.

Chief Judge Wachtler and Judges Simons, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion in which Judge Kaye concurs.

Orders affirmed in a memorandum.

         We have recognized that such an error would implicate "the organization of the court or the mode of proceedings prescribed by law” (People v Mehmedi, 69 NY2d 759, 760) and thus defendant’s claim presents a question of law for appellate review notwithstanding his attorney’s express consent to the procedure (id.; see also, People v Ahmed, 66 NY2d 307, 310; People v Patterson, 39 NY2d 288, 295, affd 432 US 197).

       The majority’s characterization might have been apt if we were considering a communication about the logistics of the deliberative process, such as the timing of the jury’s eating break (cf., People v Agosto, 73 NY2d 963, 970 [leaving open whether compliance with CPL 310.30 was required where jury asked about possibility of deliberations extending into the Sabbath]). Here, however, a communication which went to the very heart of the jury’s work was involved.