author: Chief Judge Cooke Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Roland Samuels, Appellant.
    Argued May 1, 1980;
    decided July 3, 1980

      APPEARANCES OF COUNSEL

      Hillard Wiese, William E. Hellerstein and Ellen J. Schneider for appellant.

      Robert M. Morgenthau, District Attorney (Gabrielle Rhodes and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The case comes to us on the following affirmed findings of fact: Detective Fougere observed -defendant enter a novelty shop on 42nd Street and purchase a holster for a .25 caliber automatic pistol. The detective followed defendant down 42nd Street after defendant left the shop, showed his shield and identified himself as a police officer and asked defendant why he purchased the holster. Defendant’s only response was to put his hand into his coat pocket. Told to remove his hand from his pocket, defendant failed to do so. The detective then grabbed defendant’s hand -by grabbing the coat pocket with defendant’s hand in it and in doing so felt a gun.

Defandant argues that Brown v Texas (443 US 47) requires reversal and the granting of his motion to suppress. We disagree. Brown involved no more articulable reason to detain the person arrested than that his passing another person in an alleyway "looked suspicious” (cf. United States v Mendenhall, 446 US 544 [Justices Stewart and Rehnquist]). Here defendant had been observed buying a holster for a gun. While such a purchase is not criminal, it furnished a sufficient basis for the inquiry made by Detective Fougere (see People v Skinner, 48 NY2d 889, 890). There being no display of force nor anything more than the addressing of a question to defendant, the encounter clearly was not a seizure up to that point.

Defendant’s failure to respond without more would not have permitted further action by the police (cf. People v Howard, 50 NY2d 583). But when to that failure is added defendant’s placing of his hand in his overcoat pocket and refusal to withdraw it, Detective Fougere’s interest in his own safety was sufficient basis for his grabbing the hand through the coat for he had reason to believe that he might be dealing with an armed and, therefore, dangerous individual (cf. Sibron v New York, 392 US 40, 64). Under those circumstances it is reasonable to infer, as did the courts below, that he grabbed defendant’s hand to protect himself, even though he never expressly so testified. Under the Supreme Court’s ruling in Terry v Ohio (392 US 1, 27) he had a right to do so "regardless of whether he has probable cause to arrest the individual for a crime.”

People v Prochilo (41 NY2d 759, 763) is distinguishable for there there was nothing to suggest that the heavy object in defendant Bernard’s pocket was a gun, whereas here the purchase of a holster is directly suggestive of the presence of a gun. Though not sufficient evidence of criminality to permit more than an inquiry, the purchase of the holster together with the potential menacing movement of defendant’s placing his hand in his coat pocket was sufficient to warrant Fougere’s protective action (see CPL 140.50, subd 3).

Chief Judge Cooke

(concurring). I agree that there should be an affirmance, but solely on the ground that, in these circumstances, the purchase of a holster designed for use with an automatic weapon furnished reasonable suspicion of criminality. On this view, there is no occasion to reach the question whether the police may detain an individual briefly for questioning on less than reasonable suspicion of criminal activity (compare Brown v Texas, 443 US 47, with United States v Mendenhall, 446 US 544 [Stewart and Rehnquist, JJ.]).

It would appear, under recent authority, that reasonable suspicion of criminality is the minimum standard which would support such a limited stop (see Brown v Texas, supra, at pp 48-50; People v Skinner, 48 NY2d 889, 890; but cf. United States v Mendenhall, supra [Stewart and Rehnquist, JJ.]). Of course, this standard would apply to investigatory stops only, and the police would remain free to elicit information from citizens, for example concerning a lost child, in noninvestigatory and unintrusive street encounters.

Fuchsberg, J.

(dissenting). The circumstances here fell far short of the narrowly circumscribed ones which would have permitted either the initial stop or the ultimate search and seizure of the defendant.

The majority concedes, as indeed it must, that it was perfectly lawful for the defendant to patronize the novelty store in order to purchase a holster. For no law forbids or regulates its sale. It also is not, and cannot be, denied that the item might just as well have been bought as a gift, as a housing for a toy gun or as a container for one of the nearly three quarters of a million handguns whose possession is licensed in New York State (see Annual Report of New York State Police Department [Jan. 31, 1980]). Nor is it as much as suggested that defendant’s conduct in buying and carrying one from the store was in any sense furtive or clandestine.

Yet, on these facts the court is willing to condone what I would have thought was a patently unjustified infringement on a person’s freedom to move about in public without police interference. In this I cannot concur.

We need look no further than the Supreme Court’s recent decision in Brown v Texas (443 US 47, 51) for the demanding principle that the police may detain an individual briefly for questioning only if they "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” (Cf. Delaware v Prouse, 440 US 648.) The objective facts here, however, utterly fail to approach, much less cross, the threshold of ambiguity, and no superimposed interpretation or categorization can remedy the defect (see People v Howard, 50 NY2d 583).

As I see it, in countenancing the police confrontation with Samuels, the court is effectively announcing that anyone who purchases a holster for a not uncommon variety of gun, whether in this store or, say, Abercrombie and Fitch or Modell’s or Herman’s or any other of the numerous novelty and sporting goods shops that sell such articles in New York City, forfeits the constitutional right to be secure from unwarranted harassment. Or, for that matter, by permitting the police to cavalierly compromise the right to privacy in this fashion, the court might just as well be saying that anyone who leaves with a parcel from an establishment that carries holsters as part of its stock is open to such invasion. The same could be said of the "scissors and needles, nails and knives” (Gilbert & Sullivan, Patience, Act II) and the plethora of other everyday articles that our citizens are free to buy and to own without molestation until and unless there is specific, credible reason to believe they are being put to criminal use.

The tone of life and spontaneity of spirit that characterizes a free society could not long survive if the police were allowed to exploit any unusual circumstance, rationalized with 20-20 hindsight as giving rise to suspicion, as a basis for an escalating intrusion into the privacy of anyone who insists on his right to be left alone (see, generally, Greenawalt on Reasonableness and Probable Cause, in Dorsen, The Rights of Americans, p 303 et seq.). This factor is crucial here, for without the initial baseless encounter, the officer could not conceivably claim that he was placed in a position where concern for his own safety compelled him to frisk defendant (see Terry v Ohio, 392 US 1, 27).

. In this connection, it appears appropriate to note that the mushrooming lexicographical distinctions into which the reasonableness of street stops and seizures are being categorized present a disturbing problem. Since the circumstances of no two stops are ever precisely the same, the semantics necessarily employed to effect such compartmentalization, however well intended, in the end make it all the easier to substitute labels for liberties. It is encouraging therefore that such cases as Dunaway v New York (442 US 200, 213) and Brown v Texas (443 US 47, supra) appear to be leading a trend away from the artificial and "unworkable” hierarchy of police conduct erected in People v De Bour (40 NY2d 210, 222-223) (see Note, People v. De Bour: The Power of the Police to Stop and Frisk Citizens, 30 Syracuse L Rev 893).

But, assuming that so much of De Bour as allows an officer to "inquire” has survived, our contemporaneous decision in People v Howard (50 NY2d 583, supra) makes the important point that one to whom an inquiry such as the one made here was directed is free to refuse to respond. Now, the privilege to do so must mean more than that the person addressed may remain mute. Howard itself, for instance, holds that the defendant there was not even obliged to stop. And, by the same token, one would expect that the individual approached would not have to, for example, hearken to a request that he loosen his clothing; remove the contents of his pockets or of the purse or parcels he may be carrying; or refrain from putting his hands in his pockets, keeping them at his sides or, let us suppose, using them to don or doff his hat, to reach into his coat for his cigarettes or to perform any one of the myriad of commonplace things a person normally is permitted to do without yielding up his constitutional right not to be searched or seized.

These observations are more than pertinent here. For it must be remembered that there is not even a claim that defendant’s pocket "bulged” (cf. De Bour, supra, at p 213), much less that it presented the outline of a gun. If, therefore, only the fact that the defendant chose to put his hand in his pocket and keep it there was needed to earn him the officer’s threat "to break his head” and to subject him to the forcible removal of his hand and a search of his person, for all practical purposes what the court says in Howard becomes a toothless statement that might just as well have never been written. I believe that this would be a significant impairment of the values which form an important barrier against a police State (see Brinegar v United States, 338 US 160, 176; and People v De Bour, 40 NY2d 210, 227-228 [my dissent] [discussing the balance intended to be struck by the drafters of our Constitutions]). But, since I do not view Howard as embodying such an empty intention, I also believe adherence to that decision and the Fourth Amendment requires that the fruits of the unfounded suspicion on which the police here acted should be suppressed. Concordantly, the order of the Appellate Division should be reversed and the indictment dismissed.

Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Chief Judge Cooke concurs in a separate opinion; Judge Fuchsberg dissents and votes to reverse in an opinion.

Order affirmed.

      . This is not a strained assumption. In this very case, the arresting officer’s testimony indicated that the police made a habit of indiscriminately confronting patrons of the store who as much as examined the holsters offered for sale.

      . In his testimony, the officer himself, unlike the majority in its opinion, never characterized the defendant’s action as menacing.

      . United States v Mendenhall (446 US 544), cited by the majority, does not indorse the De Bour analysis, since a majority of the court there declined to hold that the authorities could confront the defendant with questions as to her identity and business on less than "reasonable suspicion”.

      . In People v Prochilo (41 NY2d 759, 763), even though the police officer was able to observe a visibly heavy object in defendant Bernard’s pocket, we ordered the gun suppressed, in part because the officer was completely unable to connect his observations with the presence of a weapon until after he had taken the impermissible step of reaching into the pocket.

      . These facts derive, as they must, from the police officer’s version of the events, which was found to be credible by Trial Term. It is informative to note, however, that defendant himself testified that his right hand was in his pocket as he left the novelty store; that when the police inquired what he had purchased, he volunteered that it was a holster; that he responded in the negative to the ensuing question whether he had a gun; and that he was nonetheless patted down, two attempts being necessary before the firearm was discovered.


source: Caselaw Access Project

license: Public Domain

text:
    Richard T. Bowen, Respondent, v Ames Co., a Division of McDonough Company, Appellant.
    Submitted June 9, 1980;
    decided July 3, 1980
   Motion for leave to appeal dismissed as untimely (CPLR 5513, subd [b]).


text:
    In the Matter of Robert Buschmann, Appellant, v United New York Sandy Hook Pilots’ Association et al., Respondents.
    Submitted May 5, 1980;
    decided July 3, 1980
   Motion for reargument or, in the alternative, for leave to appeal denied. Cross motion for leave to appeal dismissed as academic. [See 49 NY2d 916.]


text:
    Community School Board District 6, Manhattan, by Leonard Strauss, President, Appellant, v Irving Anker, as Chancellor of the Board of Education of the City of New York, et al., Respondents.
    Submitted June 9, 1980;
    decided July 3, 1980
   Motion, considered as motion to vacate dismissal of motion for leave to appeal, denied with $20 costs and necessary reproduction disbursements. [See 49 NY2d 997.]


text:
    In the Matter of Mary Delmar, on Behalf of Herself and All Others Similarly Situated, Respondent, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant, and Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, Respondent.
    Submitted June 9, 1980;
    decided July 3, 1980
   Motion by appellant Blum for leave to appeal granted. Cross motion by petitioner for leave to appeal from so much of the Appellate Division order as affirmed the denial of class action certification denied.


text:
    State of New York ex rel. Deborah G. et al., on Behalf of Baby Boy G., Respondents, v John Doe et al., Appellants.
    Submitted June 16, 1980;
    decided July 3, 1980
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed an order denying the motion to renew, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Arthur A. Grossman, Appellant, v City of New York et al., Respondents.
    Submitted June 2, 1980;
    decided July 3, 1980
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the judgment of Supreme Court, entered October 5, 1978, denied; insofar as it seeks leave to appeal from so much of the order of the Appellate Division as dismissed an appeal from an order of Supreme Court entered November 14, 1978, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution, with $20 costs and necessary reproduction disbursements.


text:
    North Town Auto Rental, Inc., Appellant, v Sportservice Corporation et al., Respondents.
    Decided July 3, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal pursuant to CPLR 5601 (subd [c]) does not lie where the Appellate Division order does not grant a new trial or hearing (see Cohen and Karger, Powers of the New York Court of Appeals, § 63, pp 284-285).


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Lester Williams, Appellant.
    Argued June 6, 1980;
    decided July 8, 1980

      APPEARANCES OF COUNSEL

      Gary E. Divis and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (William C. Heffernan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Viewing the testimony in a light most favorable to the defendant (People v Steele, 26 NY2d 526), the failure to grant the request to charge the jury on innocent possession of a firearm does not constitute reversible error. It is settled that possession — an essential element of criminal possession of a weapon — does not turn upon physical handling of the prohibited weapon alone. There are instances, therefore, in which possession might result unavoidably from the performance of some lawful act and would not constitute a crime (People v La Pella, 272 NY 81; People v Persce, 204 NY 397, 402; see, also, People v Furey, 13 AD2d 412). While it would be unwise to detail here those instances in which an innocent possession charge might be warranted, it suffices to note that the underlying purpose of the charge is to foster a civic duty on the part of citizens to surrender dangerous weapons to the police (People v La Pella, supra). Thus, to trigger the right, there must be proof in the record showing a legal excuse for having the weapon in his 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 La Pella, supra; People v Persce, supra).

In the present case, the evidence is utterly at odds with any claim of innocent possession. Upon discovering the gun, defendant removed the weapon and secreted it in a new hiding place, removing it when it suited his own purpose and handling it in a manner which may be charitably characterized as reckless. Hence, giving an innocent possession charge in these circumstances was not warranted.

Fuchsberg, J.

(dissenting). On the facts of this case, defendant had the right to have the jury consider his defense of innocent possession. Accordingly, the court’s refusal to so charge was reversible error.

At trial, Williams took the stand and testified that, while he was moving his friend’s furniture to her new apartment, he discovered a handgun lying under the cushions of a couch. Without advising anyone of its presence, he immediately placed the revolver deep into a crevice in the couch and continued transporting the furniture to the new residence. Upon arriving, defendant removed the gun from the couch and placed it in the kitchen under the stove. Later, when he and the others who had volunteered to help were relaxing after their labors, Williams retrieved the weapon from under the stove to show it to another member of the group. He had been holding the pistol for no more than two or three seconds, spinning it playfully like a cowboy, when it suddenly went off, hitting the woman they had helped move. Defendant further testified that he did not know the gun was loaded, did not intend for it to fire, had no intention to keep it and, indeed, had never owned or fired a handgun in his life.

In view of these facts, counsel requested a charge on innocent possession, but the court refused. I would hold this was grievous error.

It is a fundamental principle of our system of criminal justice that the record be viewed in the light most favorable to the defendant when ruling on a request to charge (People v Steele, 26 NY2d 526, 529). This is no mere empty cliché. Since the jury is free to credit any portion of the prosecution’s or the defendant’s evidence, only when there is no view of the facts that supports the defense, no "possible hypothesis” under which it is applicable, may a court refuse an appropriate request (cf. People v Asan, 22 NY2d 526, 529-530). Moreover, the rule has constitutional overtones, particularly in a case such as this where the People have the burden of disproving the defense beyond a reasonable doubt (see Penal Law, § 25.00, subd 1) and its subject matter is intimately intertwined with the definition of "possession” itself, an essential element of the crime charged (see, generally, Patterson v New York, 432 US 197; Criminal Procedure, 1978 Ann Survey Am L 17).

These cautions in mind, a fair reading of the authorities demonstrates that defendant’s testimony put him within the compass of the innocent possession defense. The two threads running through each of the cases holding the defense available are the inadvertence of defendant’s original acquisition of the item and the brevity of his exercise of control over it.

Thus, in People v La Pella (272 NY 81) the court held the charge ought to have been given where defendant came upon a firearm in a public rest room and kept it on his person until he surrendered it to a police officer. And, in People v Quintana (260 App Div 13) the defense was applied on behalf of a subway conductor who testified he found a blackjack on a train and kept it overnight. These cases demonstrate that brevity of retention is a relative concept, peculiarly appropriate for resolution by a fact finder in the light of all the circumstances. In La Pella the time span was about 20 minutes, whereas in Quintana it was perhaps eight hours or more. The facts to which Williams testified, which encompassed the brief period involved in making three trips to carry the apartment’s contents between locations only a few city houses apart, were well within this range.

In the end, the question is whether the jury could have found defendant’s possession innocent. It was certainly within their province to believe his testimony that his discovery of the gun was inadvertent, and it was up to them to judge the reasonableness of his responses to this occurrence. After all, he did not have to leave the dangerous weapon in the empty apartment where it might be discovered by one bent upon a criminal purpose. Moreover, the jury might reasonably have construed defendant’s secreting of the revolver under the stove in the new apartment as a further attempt at safekeeping pending a decision as to how to dispose of it. Only an unrealistically unyielding view of the law would demand that the discoverer of a weapon immediately drop everything he is doing, no matter how important, and deliver it to the nearest station house under pain of prosecution for possession. Further, the jury could also have viewed defendant’s handling of the gun for a few fleeting seconds before it went off as nothing more than a reflection of a normal curiosity about an unfamiliar and fascinating discovery.

As to the other "elements” of the defense postulated by the majority, Williams’ possession of the gun was at least as much the result of a "lawful act” as that in People v Trucchio (47 AD2d 934), where a patron in a bar agreed to hold a firearm for an acquaintance while the latter visited a rest room. And, while the jury could have inferred Williams intended to deliver the weapon to the authorities from his assertion that he did not intend to keep it, even the absence of such a design is of little significance, as demonstrated by both Trucchio and People v Harmon (7 AD2d 159), where the defendant divested an attacker of a blackjack and indicated that he had intended to turn it over to his father. (See, also, People v Persce, 204 NY 397, 402 [giving two examples of innocent possession without expressly stating intent to surrender to the police was necessary].)

Finally, I note the lack of authority to support the majority’s suggestion that the weapon must not have been used in a dangerous manner. Quite to the contrary, in People v Furey (13 AD2d 412), cited by the majority itself, the defendant found a gun in the street and picked it up, casually pulling its trigger as he walked along, a use much more likely to endanger others than that involved here. Nevertheless, an innocent possession charge was held to be mandated on the facts of that case.

To sum it up, the plain import of the innocent possession defense has long been to allow the jury to temper the seemingly absolute language of the statute with a pragmatic assessment of the circumstances in order to determine whether the defendant’s conduct was truly culpable. Since Williams testified that his possession was inadvertent, brief and unaccompanied by wrongful intent, however the jury might have weighed it in the end, he was entitled to have the defense charged. We should therefore reverse and remit the case for a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchs-berg dissents and votes to reverse in a separate opinion.

Order affirmed.


text:
    The People of the State of New York, Appellant-Respondent, v Michael Rolston, Respondent-Appellant.
    Argued June 6, 1980;
    decided July 8, 1980

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Barry A. Schwartz of counsel), for appellant-respondent.

      Alexander Potruch, Kenneth Koopersmith and Michael K. Feigenhaum for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, and defendant’s cross appeal should be dismissed.

The People have conceded that it was error for the trial court to deny defendant’s motion to suppress a weapon discovered by the police in the course of an unlawful search. In view of this concession, the Appellate Division was correct in holding that the judgment of conviction entered upon defendant’s guilty plea must be reversed. Although the People had other inculpatory evidence which could have been used against defendant at a trial, we cannot say upon the present record that the erroneous ruling as to the admissibility of the weapon did not exert an influence upon defendant’s decision to plead guilty, and, for that reason, we cannot consider the error to have been "harmless” (People v Grant, 45 NY2d 366, 377-380).

Additionally, we hold that defendant’s cross appeal from the order of the Appellate Division must be dismissed, since the order is not "adverse” to him within the meaning of CPL 450.90 (subd 1). Under that provision, "[a]n order of an intermediate appellate court is adverse to the party who was the appellant in such court when it affirms the judgment, sentence or order appealed from”. Here, the judgment of conviction was reversed by the Appellate Division, and, consequently, its order is not appealable by defendant, who was the appellant in that court, notwithstanding that defendant was "aggrieved” insofar as his request for the suppression of his out-of-court statements to the police was denied (People v Bryant, 44 NY2d 790; People v Shukla, 44 NY2d 756).

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

On the People’s appeal: Order affirmed.

On defendant’s appeal: Appeal dismissed.


text:
    In the Matter of Harder’s Express, Inc., Respondent, v New York State Tax Commission, Appellant.
    Argued June 6, 1980;
    decided July 8, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow, Shirley Adelson Siegel and George A. Barron of counsel), for appellant.

      Jeremiah F. Manning for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum of that court relative to the application of subdivision 3 of section 470 of the Tax Law. Inasmuch as the determination of the State Tax Commission was not predicated on the provisions of section 471-a we intimate no views as to the applicability of that section.

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

Order affirmed, with costs, in a memorandum.


author: Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Paul H. Viau, Appellant.
    Argued June 5, 1980;
    decided July 8, 1980
    APPEARANCES OF COUNSEL

      Frank R. Bell for appellant.

      Richard J. Shay, District Attorney (Karen F. McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Cortland County Court should be reversed and the information should be dismissed.

Until amended by chapter 290 of the Laws of 1969, subdivision 1 of section 240.30 of the Penal Law covered only a person who "communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication”. Chapter 290 added after the word "communicates” the parenthetical phrase "or causes a communication to be initiated by mechanical or electronic means or otherwise”.

Clearly, the original wording did not cover a communication by citizens’ band radio, and we are told by the Practice Commentary to the section that the 1969 amendments "were directed mainly to a mechanical or electronic commercial device which is attachable to a telephone and may be set to make repeated — and doubtless annoying — telephone calls of recordings to prospective customers” (see Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, p 309). Moreover, the parenthetical clause defines only how the communication is initiated, not the means by which it is made. As to the latter, the statute in so many words tells us that statements of which it speaks are ones made "by telephone, mail or any other form of written communication”. Undisputedly, the communication here was not by telephone or by telegraph. Nor was it "mail and any other form of written communication”.

For these reasons, the section cannot be construed in its present form to cover communication by citizens’ band radio.

Chief Judge Cooke

(concurring). While I agree that the order of the County Court of Cortland County should be reversed and the information dismissed, my analysis takes a different path than that of the majority.

In my view, harassing statements violative of law can indeed be made over a citizens’ band radio. Any statement "initiated by mechanical or electronic means or otherwise” (Penal Law, § 240.30, subd 1), may form the basis of an aggravated harassment prosecution. To hold, as does the majority, that in addition to the language quoted above, the statute further requires that the statements be made "by telephone, or by telegraph, mail or any other form of written communication” not only constitutes a hypertechnical misreading of an unambiguous penal statute but effectively insulates a particularly egregious form of harassing conduct from the ambit of the statute as well. Plainly, under the majority’s reading of section 240.30, a person is not guilty of aggravated harassment if he orally communicates directly with his intended victim, since face-to-face conversation is not initiated "by telephone or telegraph, or any other form of written communication”. The structure of the subdivision with its frequent use of the disjunctive negates such a notion. That section 240.30 does not contain a laundry list of those devices through which harassing communications can be made grants courts no license to ignore its plain and express intendment.

However, as section 240.30 proscribes communications which are not necessarily obscene, it must be narrowly construed. The basis of the crime of harassment — a penal sanction that punishes the exercise of speech — is that the proscribed conduct is likely to lead to a breach of the peace. This rationale, of course, loses much if not all of its force where the language complained of is not heard by or directly aimed at the complainant. Thus, constitutionally protected speech which cannot incite to violence because it is not communicated to the complainant may not form the basis of a criminal prosecution (see Cohen v California, 403 US 15; Chaplinsky v New Hampshire, 315 US 568, 572). The crime of harassment by its nature necessitates annoyance, anxiety or worry on the part of complainant caused by the vexing conduct of the defendant (see People v Todaro, 26 NY2d 325, 330; 39A CJS, p 353). Without direct communication to the complainant, a harassment conviction cannot be sustained. Whatever civil liabilities defendant may have exposed himself to as a result of his diatribe, the failure of complainant to hear the broadcast precludes imposition of this criminal sanction.

Judges Jasen, Gabeielli, Jones, Fuchsberg and Meyer concur; Chief Judge Cooke concurs in result in a separate opinion in which Judge Wachtler concurs.

Order reversed and information dismissed in a memorandum.


text:
    The People of the State of New York, Respondent, v Warner-Lambert Company, Doing Business Under the Name of Warner-Lambert Co., American Chicle Division, Arthur Kraft, Ed Harris, James O’Mahoney and John O’Rourke, Appellants.
    Argued April 28, 1980;
    decided July 8, 1980
   Reargument ordered and case set down for argument or submission on October 9, 1980.


text:
    Harry T. Whitley, Respondent, v John L. Klauber et al., Defendants, and Daniel T. Alagna et al., Appellants.
    Argued April 21, 1980;
    decided July 8, 1980
   Reargument ordered and case set down for argument or submission on October 9, 1980.


text:
    Abco Bus Co., Inc., Respondent, v Frank J. Macchiarola, Individually and as Chancellor of the Board of Education of the City of New York, et al., Appellants.
    Submitted June 23, 1980;
    decided July 8, 1980
   Motion to dismiss the appeal denied.


text:
    In the Matter of Carol Belding, Appellant, v Alfred P. Belding, Respondent.
    Submitted June 16, 1980;
    decided July 8, 1980
   Motion to dismiss appeal denied.


text:
    In the Matter of Ralph Caso, a Resident Taxpayer of Nassau County, and All Others Similarly Situated, Respondents, v County of Nassau et al., Appellants.
    Submitted June 16, 1980;
    decided July 8, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and CPLR 5602 (subd [a], par 2) does not apply.

Judge Meyer taking no part.


text:
    Mary K. Goldstein, as Executor of Ralph Goldstein, Deceased, et al., Respondents, v Solomon Katzoff et al., Appellants, et al., Defendants. (And Another Title.)
    Submitted May 27, 1980;
    decided July 8, 1980
   Motion for leave to appeal denied with $20 costs and necessary reproduction disbursements.

Chief Judge Cooke taking no part.


text:
    Kay-Fries, Inc., Respondent, v Frank D. Martino, Individually and as President of International Chemical Workers Union, AFL-CIO, et al., Appellants.
    Decided July 8, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that no substantial constitutional question is directly involved and appellants are not aggrieved by the modification at the Appellate Division.


text:
    In the Matter of the Adoption of Male M. Rosalie A. et al., Appellants; Diane M., Respondent.
    Submitted June 16, 1980;
    decided July 8, 1980
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.

Judge Fuchsberg taking no part.


text:
    George J. Meyer, Respondent, v Kathleen C. Meyer, Appellant.
    Decided July 8, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    The People of the State of New York, Respondent, v Ruby Osgood, Appellant.
    Submitted June 30, 1980;
    decided July 8, 1980
   Motion to dismiss the appeal denied.


text:
    In the Matter of the Patrolmen’s Benevolent Association of the City of New York, Inc., Appellant, v City of New York et al., Respondents.
    Submitted June 9, 1980;
    decided July 8, 1980
   Motion for leave to appeal dismissed upon the ground that the motion does not lie, the prior motion for leave at the Appellate Division having been untimely.


text:
    Zora Persek, Respondent, v Farmers Feed Company et al., Appellants.
    Submitted June 23, 1980;
    decided July 8, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §40).


text:
    Mary E. Philson, Appellant, v Arthur Philson, Respondent.
    Submitted June 23, 1980;
    decided July 8, 1980
   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 (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    J. Beres & Sons Dairy, Inc., Appellant, v J. Roger Barber, as Commissioner of the Department of Agriculture and Markets for the State of New York, Respondent.
    Submitted June 30, 1980;
    decided July 8, 1980
   Motion to dismiss the appeal herein denied.


author: Jones, J.

text:
    In the Matter of the Arbitration between the County of Rockland, Respondent, and Primiano Construction Co., Inc., Appellant.
    Argued' June 3,1980;
    decided July 8,1980

      POINTS OF COUNSEL

      Eugene Schaffel for appellant.
    I. Ambiguities in the contract are interpreted against the drafter of said contract. (Matter of Dutchess Community Coll. [Rand Constr. Co.], 57 AD2d 555; Wilson & English Constr. Co. v New York Cent. R. R. Co., 240 App Div 479; Winkelman Co. v State of New York, 17 Misc 2d 418, 10 AD2d 894; Rusciano & Sons Corp. v State of New York, 201 Misc 690, 281 App Div 733.) II. There is no requirement to submit delay claims to the architect. (Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358; Pearl St. Dev. Corp. v Conduit & Foundation Corp., 41 NY2d 167; Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 AD2d 85; Matter of Board of Educ. [Brentwood Teachers Assn.], 79 Misc 2d 758; Matter of H. R. H. Constr. Corp. [Bethlehem Steel Corp.], 61 AD2d 901.) III. Primiano initiated arbitration within the contractual time provision. (Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358; Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274.)

      Marc L. Parris, County Attorney (Martin Hurwitz of counsel), for respondent.
    I. Primiano’s failure to initially submit its claim to the architect required a stay of arbitration. (Pearl St. Dev. Corp. v Conduit & Foundation Corp., 41 NY2d 167; Matter of Opan Realty Corp. v Pedrone, 36 NY2d 943; Matter of American Silk Mills Corp. [Delaware] [Meinhard-Commercial Corp.], 35 AD2d 197; Matter of Frouge Corp. [New York City Housing Auth.], 26 AD2d 269; New York Tel. Co. v Schumacher & Forelle, 60 AD2d 151; Matter of H. R. H. Constr. Corp. [Bethlehem Steel Corp.], 61 AD2d 901; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358; Matter of Raisler [New York City Housing Auth.], 32 NY2d 274; Matter of Rosenbaum [American Sur. Co. of N. Y.], 11 NY2d 310.) II. The record is barren as to any allegation of fault on the part of the architect. (Matter of Dutchess Community Coll. [Rand Constr. Corp.], 57 AD2d 555; Matter of Methodist Church of Babylon [Glen Rich Constr. Co.], 27 NY2d 357.) III. Primiano’s failure to initiate arbitration within a reasonable time also required a permanent stay of arbitration. (Matter of Blends, Inc. [Schottland Mills], 35 AD2d 377, 29 NY2d 575; Matter of Duke Labs. [Lutz Co.], 9 Misc 2d 779; Matter of Greater N. Y. Term. [Horn Constr. Co.], 12 AD2d 820; Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274; Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788; Matter of Schwarzler v Garage Employees Union Local No. 272, I.B.T., 52 AD2d 545; Wright v Bank of the Metropolis, 110 NY 237; Eastern Shopping Centers v Trenholm Motels, 33 AD2d 930; Weisberg v Art Work Shop, 226 App Div 532, 252 NY 572; People ex rel. New York Cent. & Hudson Riv. R.R. Co. v Walsh, 211 NY 90.) IV. Primiano’s claim is barred due to its failure to serve notice of claim pursuant to section 50-e of the General Municipal Law. (Boyle v Kelley, 42 NY2d 88; Matter of Abramowitz v Guido, 61 AD2d 1045; Malcuria v Town of Seneca, 93 Misc 2d 799, 66 AD2d 421.)
   OPINION OF THE COURT

Jones, J.

It is for the courts to determine whether the parties agreed to submit their disputes to arbitration, if so, whether the particular dispute comes within the scope of their agreement, and finally whether there has been compliance with any condition precedent to access to the arbitration forum. In this instance we conclude that the owner and the general contractor under their construction contract agreed that a claim by the latter for damages sustained in consequence of delays in construction allegedly caused by the owner is to be resolved by arbitration without prior reference to the architect. We also conclude that the county’s contention that the demand for arbitration was not made within the contractual period of limitations is to be resolved by the arbitrator.

The County of Rockland and Primiano Construction Co., Inc., entered into a contract pursuant to which Primiano agreed to construct the Core Facilities Building at the Rock-land County. Health and Social Services Complex at Pomona, New York. Following execution by the county and Primiano of a certificate of substantial completion of the project as of January 19, 1977 Primiano contended that the county had not performed its obligations under the contract and that in consequence of the county’s breach Primiano had suffered substantial delay damages. On September 20, 1978 the contractor served a demand that its claim for delay damages be resolved in arbitration.

The county made a timely application for an order staying arbitration on the grounds that under the terms of their contract the contractor was required first to refer its claim to the architect for his decision and that the parties had not agreed, to arbitration until after the architect had made his decision and that, in any event, the demand for arbitration had not been timely made. Primiano cross-moved to compel arbitration in accordance with its demand. Special Term denied the county’s application, holding that reference to the architect was not a prerequisite to arbitration and that the issue of the timeliness of the demand presented a question for determination by the arbitrator. It accordingly granted the contractor’s cross motion to compel arbitration. On appeal by the county the Appellate Division reversed, granting the county’s motion to stay arbitration and denying Primiano’s cross motion. We now reverse and reinstate the order of Special Term.

A general statement of the applicable principles of law will be useful as a preliminary to our analysis of the issues presented on this appeal. On motions to stay or to compel arbitration there are three threshold questions to be resolved by the courts: whether the parties made a valid agreement to arbitrate, whether if such an agreement was made it has been complied with, and whether the claim sought to be arbitrated would be barred by limitation of time had it been asserted in a court of the State (CPLR 7503, subd [a]; 7502, subd [b]; see Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358, 362-363; see, generally, McLaughlin, Practice Cominentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7503; Siegel, New York Practice, § 590; Weinstein-Korn-Miller, Manual, CPLR, p 13-7). We are here concerned only with the first two of these threshold questions.

The parties are entitled first' to a judicial determination whether there was a valid agreement to arbitrate. If the court determines that the parties had not - made «an agreement to arbitrate, that concludes the matter and a stay of arbitration will be granted or the application to compel arbitration will be denied (e.g., Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288; Matter of Doughboy Ind. [Pantasote Co.], 17 AD2d 216). Similarly, if the court concludes that, while the parties may have made á valid agreement to arbitrate, the particular agreement that they made was of limited or restricted scope and the particular claim sought to be arbitrated is outside that scope, there will likewise be a stay of arbitration or a denial of the motion to compel arbitration (e.g., Gangel v De Groot, 41 NY2d 840 [arbitration agreement limited to disputes regarding the "execution” of an insurance policy]; Matter of ITT Avis v Tuttle, 27 NY2d 571 [arbitration agreement limited to controversies over questions of fact arising under employment contract]; see Information Sciences v Mohawk Data Science Corp., 43 NY2d 918 [claims with respect to defaults in payment excluded from arbitration agreement]).

If, however, it is concluded that the parties did make an agreement to arbitrate and that the particular claim sought to be arbitrated comes within the scope of their agreement, there then may be a second threshold question for judicial determination — has the agreement that they made been complied with? This calls for a judicial determination as to whether there is any preliminary requirement or condition precedent to arbitration to be complied with and, if so, whether there has been compliance with such requirement or condition precedent. Thus, the parties may have erected a prerequisite to the submission of any dispute to arbitration, in effect a precondition to access to the arbitral forum. In such event the reluctant party may be forced to arbitration only if the court determines that this portion of the agreement to arbitrate has been complied with — for example, where the parties agreed that disputes must first be submitted to a partnership for determination (Matter of Opan Realty Corp. v Pedrone, 36 NY2d 943); or where contractual limitations are expressly made conditions precedent to arbitration by the terms of the arbitration agreement (Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274; see Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358, 364, supra).

If the court concludes that the parties made a valid agreement to arbitrate, that the dispute sought to be arbitrated falls within its scope, and that there has been compliance with any agreed on conditions precedent to arbitration, judicial inquiry is at an end (absent any issue as to bar by limitation of time) and the parties should be directed to proceed to arbitration.

Sharply to be distinguished from conditions precedent to arbitration are procedural stipulations that the parties may have laid down to be observed in the conduct of the arbitration proceeding itself — conditions in arbitration, e.g., limitations of time within which the demand for arbitration must be made, or requirements as to parties on whom or as to the manner in which service of the demand for arbitration shall be made. As would be expected, questions as to whether there has been compliance with such procedural regulations and, if not, what the consequences shall be, are for resolution by the arbitrator as incidental to the conduct of the arbitration proceeding (e.g., Cooper v Ateliers de la Motobecane, S. A., 49 NY2d 819; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358, supra; Matter of Triborough Bridge & Tunnel Auth. [District Council 37], 44 NY2d 967; see Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274, supra; semble contra, Matter of Niagara Mohawk Power Corp. [Perfetto & Whalen Constr. Corp.], 40 NY2d 986, affg on mem at 52 AD2d 1081).

It is recognized that both conditions precedent to access to the arbitral forum (falling within the judicial ambit) and procedural regulations or conditions in the arbitration proceedings (falling to the arbitrator) may be verbally referred to indiscriminately as "conditions precedent” to arbitration. Such loose description, however, obscures analysis and clarity. Whether the particular requirement falls within the jurisdiction of the courts or of the arbitrators depends on its substance and the function it is properly perceived as playing— whether it is in essence a prerequisite to entry into the arbitration process or a procedural prescription for the management of that process. Under the first heading will come provisions which in point of time are intended to be preliminary to the institution of any arbitration proceeding and in a precise sense are unrelated to it, e.g., a requirement that before any demand for arbitration can be made the dispute between the parties be referred to the architect or to the partnership — "conditions precedent” in the literal meaning of that term. Under the second heading will come provisions relating to the conduct of the arbitration proceeding itself, i.e., requirements or conditions in arbitration, e.g., that the demand be made within a specified time, or be served in a specified manner or on specified persons. Beyond that it is to be remembered that inasmuch as the entire arbitration process is a creature of contract, the parties by explicit provision of their agreement have the ability to place any particular requirement in one category or the. other, to make it a condition precedent to arbitration or to make it a condition in arbitration (cf. Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184, 193).

We turn then to apply these principles to the case before us. At the threshold it is not disputed that Primiano and the county made a valid agreement to arbitrate differences that might arise between them under their construction contract. They agreed that "[a]ll claims, disputes and other matters in question arising out . of, or relating to, this Contract or the breach thereof’ were to be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (subpar 7.10.1). The parties, however, divided the "disputes, claims and other matters in question” into two categories — those in one category ("relating to the execution or progress of the Work or the interpretation of the Contract Documents” [subpar 2.2.7]) were to be "referred initially to the Architect for decision” and only thereafter would any continuing difference be submitted to arbitration (subpar 2.2.10); those in the second category, i.e., all other disputes, claims and matters in question, would go directly to arbitration (subpar 7.10.1).

The principal issue before us in our threshold inquiry, it being undisputed that these parties had made a valid agreement to arbitrate and that the claim of Primiano for delay damages falls within the scope of that agreement, is whether this claim comes within the first category, under subparagraph 2.2.7. If so, the parties had agreed that as a condition precedent to arbitration the claim must be referred to the architect for his decision (subpar 2.2.10). Concededly there was no such prior reference in this instance and accordingly we would be called on to direct that, the agreement of arbitration not having been complied with, there should be a stay of arbitration at the present time. On the other hand, if we determine that Primiano’s claim for delay damages does not come within subparagraph 2.2.7, then all the threshold questions reserved for judicial scrutiny will have been resolved in favor of arbitration, and the stay sought by the county should be denied.

Although it is not clear beyond all argument (and no tender of extrinsic evidentiary proof as to the meaning of the subparagraph has been made), we conclude that subparagraph 2.2.7 properly interpreted does not encompass Primiano’s present claim. Examination of the provisions of article 2 of the General Conditions prescribing the duties of the architect discloses that the primary focus of his responsibilities is to "provide general Administration of the Construction Contract” (subpar 2.2.1). He is described as the "Owner’s representative during construction and until final payment” (sub-par 2.2.2). The architect is assured of "access to the Work whenever it is in preparation and progress” (subpar 2.2.3). He is obligated to make periodic visits to the construction site and "to determine in general if the Work is proceeding in accordance with the Contract Documents” (subpar 2.2.4). "The duties, responsibilities and limitations of authority of the Architect as the Owner’s representative during construction * * * will not be modified or extended without written consent of the Owner, the Contractor and the Architect” (subpar 2.2.17). It appears from these and other provisions of article 2, in which, of course, subparagraph 2.2.7 is to be found, that the authority of the architect is centered on the operational phases of the construction. Consistent with this perspective, "claims, disputes and other matters in question between the Contractor and the Owner” which must first be referred to the architect are those "relating to the execution or progress of the Work” (subpar 2.2.7). Claims asserted after substantial completion of the work do not fall within the scope of subparagraph 2.2.7. The present claim of Primiano for delay damages, asserted some two years after substantial completion of the project and occupation of the building comes within this latter classification, outside the compass of subparagraph 2.2.7. Therefore, reference to the architect was not a condition precedent to submission to arbitration in accordance with the provisions of subparagraph 7.10.1.

It remains then to address the other contention advanced by the county, namely, that, even assuming that Primiano’s claim is not within the reach of subparagraph 2.2.7, subparagraph 7.10.2 prescribes that "the demand for arbitration shall be made * * * within a reasonable time after the claim * * * has arisen” and that the demand by Primiano in this instance was untimely within the meaning of that provision. This provision, however (as would be the similar time limits specified in subpars 2.2.10 and 2.2.11 with respect to arbitration of decisions of the architect on subpar 2.2.7 claims and disputes), is not a condition precedent to arbitration but only a procedural stipulation with respect to the conduct of the' arbitration proceeding. Accordingly, it will be for the arbitrator to resolve the contention of the county with respect to the untimeliness of this demand.

Concluding then as we do that Primiano’s present claim does not come within the prescription of subparagraph 2.2.7, we hold that the county’s motion to stay arbitration should be denied, Primiano’s cross motion to compel arbitration should be granted, and the county’s contention that Primiano’s demand for arbitration was not timely made should be left to resolution in the arbitration proceeding.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Special Term reinstated.

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

Order reversed, with costs, and judgment of Supreme Court, Rockland County, reinstated.

APPENDIX

Provisions of the General Conditions of the Contract for Construction.

2.2.7 Claims, disputes and other matters in question between the Contractor and the Owner relating to the execution or progress of the Work or the interpretation of the Contract Documents shall be referred initially to the Architect for decision which he will render in writing within a reasonable time.

2.2.8 All interpretations and decisions of the Architect shall be consistent with the intent of the Contract Documents. In his capacity as interpreter and judge, he will exercise his best efforts to insure faithful performance by both the Owner ánd the Contractor and will not show partiality to either.

2.2.9 The Architect’s decisions in matters relating to artistic effect will be final if consistent with the intent of the Contract Documents.

2.2.10 Any claim, dispute or other matter that has been referred to the Architect, except those relating to artistic effect as provided in Subparagraph 2.2.9 and except any which have been waived by the making or acceptance of final payment as provided in Subparagraphs 9.7.5 and 9.7.6, shall be subject to arbitration upon the written demand of either party. However, no demand for arbitration of any such claim, dispute or other matter may be made until the earlier of:

2.2.10.1 The date on which the Architect has rendered his written decision, or

.2 the tenth day after the parties have presented their evidence to the Architect or have been given a reasonable opportunity to do so, if the Architect has not rendered his written decision by that date.

2.2.11 If a decision of the Architect is made in writing and states that it is final but subject to appeal, no demand for arbitration of a claim, dispute or other matter covered by such decision may be made later than thirty days after the date on which the party making the demand received the decision. The failure to demand arbitration within said thirty days’ period will result in the Architect’s decision becoming final and binding upon the Owner and the Contractor. If the Architect renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence but will not supersede any arbitration proceedings unless the decision is acceptable to the parties concerned.

********

7.10 ARBITRATION

7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

7.10.2 Notice of the demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration shall be made within the time limits specified in Subparagraphs 2.2.10 and 2.2.11 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.

      . In this same category with conditions precedent to árbitration agreed to by the parties are included statutory conditions precedent (e.g., Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283; see Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358, 363, supra).

      . While compliance with periods of limitation imposed by statutes is generally for the courts, compliance with contractual periods of limitation is for the arbitrator (Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 NY2d 599, 607; see Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283, 288-289, supra).

      . The text of the relevant provisions of the General Conditions of the Contract for Construction is set forth in the appendix. From the scope of all arbitration the parties expressly excluded "matters relating to artistic effect” (subpars 7.10.1 and 2.2.9) and claims which have been waived by the making or acceptance of final payment (subpars 9.7.5, 9.7,6). These blanket exclusions are irrelevant for the purposes of the present appeal.

      . In passing we observe that in a literal sense it might be asserted that the determination whether Primiano’s claim comes within subparagraph 2.2.7 necessarily involves "interpretation of the Contract Documents” and as such should initially be referred to the architect under the provision in subparagraph 2.2.7. No argument to this effect has been advanced by the county, however, nor has the issue been addressed by the contractor. Undoubtedly this stems from the recognition of the parties that this provision should be held to relate only to the substantive provisions of the contract documents as to which the architect might be expected to have a special competence. To hold that the clause extended as well to interpretation of the provisions relating to arbitration would be to accord to the architect initial authority (subject to subsequent arbitration) to determine whether the parties had made a valid agreement to arbitrate and, if so, its scope and whether it had been complied with. At least in the absence of explicit language employed by the parties commanding this result, such a bootstrap argument should be rejected.


author: Jasen, J. Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Andre Chestnut, Appellant.
    Argued June 4, 1980;
    decided July 8, 1980

      POINTS OF COUNSEL

      Judith Zerden and William E. Hellerstein for appellant.
    Appellant’s forcible gunpoint detention by police, who ordered him to lie face downward on the ground because a suspected robber handed him an unidentifiable object, violated appellant’s right to be free of unreasonable searches and seizures (US Const, 4th, 14th Arndts; NY Const, art I, § 12). (Terry v Ohio, 392 US 1; Brown v Illinois, 422 US 590; Wong Sun v United States, 371 US 471; People v De Bour, 40 NY2d 210; People v Oden, 36 NY2d 382; People v Martin, 32 NY2d 123; People v Griffith, 63 AD2d 138; People v Trapier, 47 AD2d 481; People v Shivers, 21 NY2d 118.)

      Robert M. Morgenthau, District Attorney (Richard P. Kaye, Vivian Berger and Jerrold Tannenbaum of counsel), for respondent.
    The stop and frisk of defendant was reasonable since defendant was accompanying a suspect in a recent armed robbery, had just been handed an object by the suspect, and had acted in a furtive manner when he first observed the police officers. (People v Cantor,. 36 NY2d 106; People v De Bour, 40 NY2d 210; People v Hayden, 51 AD2d 1009, 39 NY2d 824; People v Meyers, 85 Misc 2d 1068; People v Rivera, 14 NY2d 441, 379 US 978; People v McLaurin, 56 AD2d 80, 43 NY2d 902; People v Mack, 26 NY2d 311, 400 US 960; People v Arthurs, 24 NY2d 688; People v Griffith, 63 AD2d 138; People v Trapier, 47 AD2d 481.)
   OPINION OF THE COURT

Jasen, J.

Our task on this appeal is limited to determining whether law enforcement officers, given the facts of this case, acted reasonably in ordering defendant and a cohort to lie on the ground in order to effectuate a "stop and frisk”. Resolution of this issue is determinative of whether defendant’s motion to suppress was properly denied.

The relevant facts, as found by the courts below, are as follows: Police Officer John Dieterich and his partner, Officer Gary Stryker, were on anticrime patrol in the vicinity of 64th Street and West End Avenue in New York City during the evening hours of January 4, 1977. Both officers were dressed in plainclothes. While traveling southbound on West End Avenue in an unmarked taxi, the officers spied three persons, two males and one female, huddled in a phone booth at the corner of 64th Street. Their suspicions aroused, the officers turned their car in a northbound direction, and stopped at the intersection of 63rd Street, from where they observed the individuals for approximately one minute. One male, later identified as Anthony Hernandez, then left the booth and commenced walking south on West End Avenue towards 63rd Street. As he walked away, Hernandez glanced over his shoulder several times to peer back towards 64th Street. Hernandez turned east onto 63rd Street, but returned to the corner to look back in the direction of the phone booth.

Officer Dieterich exited the taxi and followed Hernandez á short distance down 63rd Street, at which time Hernandez entered a housing project schoolyard. At this point, Dieterich returned to the car and the officers drove north on West End Avenue, turned east on 64th Street, and stopped on the north side of the playground. Officer Dieterich again left the car in an attempt to find the persons he and Officer Stryker had seen earlier with Hernandez in the phone booth. Stryker, who continued to keep Hernandez under observation, saw Hernandez engaged in an apparent conversation with another young male, the defendant herein, and further observed "Hernandez hand something to [defendant].” At this time, Stryker received a radio message that a robbery had just occurred at the intersection of 64th Street and West End Avenue. The perpetrator was described as "a young male, black, wearing a blue type ski jacket, and black * * * flop hat” and it was also stated that the perpetrator was "armed with a silver gun.”

Officer Stryker then called Dieterich back to the taxi and informed him as to the contents of the radio call. The officers agreed that Hernandez fit the broadcast description.

Hernandez and defendant then began walking out of the playground towards the parked taxi. Upon approaching the automobile and seeing the officers, the two men abruptly reversed direction and returned to the playground, where they were joined by a female. Officer Dieterich told Stryker to transmit an alarm over the air that they were following a possible suspect in the robbery and, then, Dieterich set out on foot to follow the trio who were walking through the housing project towards Amsterdam Avenue. Stryker swung the taxi down Amsterdam Avenue to intercept Hernandez and defendant. He attempted to contact his communications dispatcher on the portable radio, but no acknowledgment was received.

Stryker parked the taxi and began walking south along Amsterdam Avenue. As the trio approached, Stryker identified himself as a police officer, showed his shield, drew his revolver, and shouted, "Police Officer, freeze. Don’t move, lay face down on the ground.” The group did not comply with the request immediately, but, upon turning around and seeing Officer Dieterich approach, both Hernandez and defendant did as ordered, the female stepping aside. While the two men were on the ground, Dieterich, without touching either man, inquired, "Where is the gun?” Defendant responded, "it’s right here”, and pointed to his right-hand pocket. Dieterich removed a silver-plated revolver, and both men were handcuffed and arrested.

A short time later, more police officers arrived, accompanied by the compláining witnesses who identified the revolver as the same weapon used in the robbery. Hernandez and defendant were transported to the police precinct, where they were informed of their constitutional rights. Defendant denied any participation in the robbery, but admitted ownership of the revolver. Defendant explained that he allowed Hernandez "to hold it”.

A search of defendant at the station house revealed three manila envelopes containing marihuana and two $5 bills, which defendant stated were given to him by Hernandez. Two $10 bills were also found on Hernandez. According to the two robbery victims, they each had been robbed of one $5 and one $10 bill.

Upon these facts, Supreme Court denied defendant’s motion to suppress the physical evidence (the revolver and money) and the statements made by defendant at the time the gun was seized and, later, at the station house after his arrest. The court was of the view that the police officers had probable cause to arrest Hernandez and that the surrounding circumstances justified a stop and frisk of defendant. Further, the court found that defendant’s statement, "it’s right here”, made in response to Officer Dieterich’s question as to the location of the gun, was not the product of custodial interrogation.

After his suppression motion was denied, defendant pleaded guilty to one count of criminal possession of a weapon in the third degree (Penal Law, § 265.02) in full satisfaction of the indictment, and was sentenced to five years probation. On appeal, the Appellate Division, one Justice dissenting, affirmed, ruling that defendant’s motion to suppress evidence was properly denied. Leave to appeal to this court was granted by the dissenting Justice below. We now affirm.

Defendant urges, as his sole ground for reversal, that his right to be free from unreasonable searches and seizures, guaranteed by both the Federal and State Constitutions (US Const, 4th Arndt; NY Const, art I, § 12) was violated by the actions of Officers Dieterich and Stryker. Defendant contends that inasmuch as the seized revolver and his inculpatory statements were products of unlawful police action, they must be suppressed. We disagree.

Street encounters between private citizens and law enforcement officers are inherently troublesome. This is so because two competing, yet equally compelling, considerations inevitably clash, to wit: the indisputable right of persons to be free from arbitrary interference by law enforcement officers and the nondelegable duty placed squarely on the shoulders of law enforcement officers to make the streets reasonably safe for us all. While in an ideal society the two might never clash, a quick glance through our newspapers reveals that our society is far from perfect. Thus, the judiciary is put to the task of balancing these competing considerations, so that they can reasonably coexist.

Defendant stresses that the balance has been struck in his favor, and cites the Supreme Court’s recent opinion in Dunaway v New York (442 US 200) as authority for this contention. In Dunaway, the Supreme Court held that a seizure which was tantamount to an arrest, whether formal or de facto, is reasonable only if supported by probable cause. (Id., at pp 208-216.) Defendant argues that since the police officers did not have probable cause to arrest him, an assertion with which we have no quarrel, his seizure must be labeled unreasonable, thus barring the "fruits” of the seizure from evidence. While defendant’s logic may have superficial appeal, this appeal arises due to its simplicity, rather than a sound application of constitutional principles.

We refuse to accept defendant’s characterization of the police activity with respect to him as an arrest, but, rather, find it analogous to the classic "stop and frisk” procedure. In so finding, we recognize that the concept of arrest should not be artificially limited by traditional notions so as to circumvent the probable cause requirement inherent in the constitutional proscription against unreasonable searches and seizures. (See Brinegar v United States, 338 US 160.) Indeed, when the intrusion involved is of sufficient magnitude, an "arrest” will be said to occur, whether or not the person is eventually transported to the police station and charged with a crime. However, it is equally as clear that not every seizure constitutes an arrest. (See Terry v Ohio, 392 US 1.) Thus, even though it is concluded that a person is seized, this does not mean that the law enforcement officer’s actions must be measured, in all instances, against the probable cause standard.

Although it is difficult to delineate, in abstract principles, the degree of intrusion which elevates a seizure into an arrest, we believe that the actions of Officers Dieterich and Stryker did not constitute an arrest of defendant. It is true that defendant was ordered to lie on the ground, but it is simply inconceivable that the constitutional protection against arbitrary interference by police officers turns upon whether the detainee is positioned against a wall so that a frisk may be effectuated or ordered to lie on the ground. As aptly noted by the majority below, "[w]e are unaware of any statute or decisional authority that states that there is only one constitutionally acceptable manner of accomplishing a frisk.” (69 AD2d, at p 48.) Further, the search was circumscribed; Officer Dieterich reached into defendant’s pocket to remove the revolver only after defendant, in response to a single inquiry, had disclosed its location.

Nor does the fact that the officers approached the two men with guns drawn mandate that a different conclusion be reached. The officers had reason to believe that Hernandez had just committed a robbery, armed with a revolver. Certainly, they were justified in taking precautionary measures to ensure their own safety and well-being, not knowing for certain whether Hernandez or the defendant has possession of the gun. To hold that policemen, thrust into emergency situations where the difference between life and death is often measured in seconds, must isolate those persons whom they have probable cause to arrest from all bystanders before they can draw their guns is patently absurd. We simply cannot accept the premise, urged by defendant, that once a gun is drawn all persons being addressed by the officer are necessarily under arrest. Given the particular facts and circumstances of this case, the presence of the drawn gun did not transform the stop and frisk of defendant into an arrest.

Although we now conclude that defendant was not arrested, our inquiry is not yet completed, for the question whether the officers were justified in stopping and frisking defendant remains for our determination. It is beyond dispute that defendant was seized within the meaning of the Fourth Amendment and the parallel provision of our State Constitution. Thus, we must find that the officers could reasonably suspect that they were in danger of physical injury and that defendant posed a threat to their safety. (See, e.g., Pennsylvania v Mimms, 434 US 106, 111-112; Terry v Ohio, 392 US 1, 27, supra; People v Prochilo, 41 NY2d 759; People v Green, 35 NY2d 193; CPL 140.50, subd 3.) Of course, the answer to this inquiry must turn upon the particular facts of this case.

Here, there can be no doubt that Officers Dieterich and Stryker had probable cause to arrest Hernandez. They observed Hernandez acting in a highly suspicious manner, and their concerns were heightened when they received a radio message that a gunpoint robbery had just occurred at the corner where they observed Hernandez. Further, the broadcast description of the perpetrator matched the physical attributes of Hernandez. Before they could seize Hernandez, however, Stryker saw him "hand something to [defendant].” It is true, as defendant argues, that the officers could not identify the object passed as a weapon, but, certainly, Officer Stryker could have reasonably suspected that the revolver changed hands. Hernandez had an obvious motive to divest himself of the incriminating weapon, and the transfer occurred a short distance from the crime site. Certainly the officers, highly trained in criminal investigatory techniques, could reasonably suspect that Hernandez handed the gun to defendant. Reasonable suspicion, not absolute certainty, is the applicable standard, and it is clear that the officers’ concerns were predicated upon specific and articulable facts.

It should also be noted that when Officer Stryker approached Hernandez and defendant, he knew that his efforts to secure reinforcements had been unsuccessful. He had cause to believe that he was coming face-to-face with a man who had just committed an armed robbery and a companion who he reasonably suspected now possessed the revolver, and that Officer Dieterich, trailing these persons, was his only assistance.

Under these circumstances, we now conclude that the actions of the law enforcement officers in the instant case were reasonable. By ordering the two men to lie on the ground, Officer Stryker did no more than maintain the status quo until additional. information could be elicited. Further, the single question posed by Dieterich — "Where is the gun?” — was certainly justified in order to protect the officers’ welfare. Courts simply must not, in this difficult area of street encounters between private citizens and law enforcement officers, attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented.

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

Chief Judge Cooke

(dissenting). In my view, when the police approach an individual with a drawn weapon, order him to freeze, and then direct him to lie face down on the ground, they have effected a seizure more intrusive than a traditional stop and frisk. Especially is this so where, as here, the officer states that he made an arrest. Thus, I feel compelled to dissent, for the relevant reasons stated in the dissenting opinion by Mr. Justice Arnold L. Fein at the Appellate Division.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur with Judge Jasen; Chief Judge Cooke dissents and votes to reverse in a memorandum.

Order affirmed.

      . Defendant was charged, by indictment, with one count of criminal possession of a weapon in the third degree (Penal Law, § 265.02) and two counts of criminal possession of stolen property in the third degree (Penal Law, § 165.40).

      . It is now axiomatic that "[p]robable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that [an] offense has been committed” by the person to be arrested. (People v Oden, 36 NY2d 382, 384; Brinegar v United States, 338 US 160,175-176.)

      . The People do not now contend that the police officers had probable cause to arrest defendant.

      . Officer Dieterich’s negative response when asked on cross-examination whether this was a stop and frisk is of little consequence. A fair reading of the suppression hearing transcript indicates that Dieterich was responding to the nature of the forms completed after the police activity had terminated and was not characterizing his actions when he initially encountered defendant. After the revolver was found on defendant’s person, it is beyond dispute that the officers had probable cause to arrest defendant.

      . As stated in People v Cantor (36 NY2d 106, 111): "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment”.

      . The Supreme Court has phrased the applicable standard as follows: "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Terry v Ohio, 392 US 1, 27, supra.)

      . Of course, the key principle of the Fourth Amendment and the constitutional analogue of New York State is reasonableness. (E.g., Delaware v Prouse, 440 US 648, 653-654; People v Cantor, 36 NY2d 106, supra.)

      . We are of the opinion that this single question did not constitute custodial interrogation, and, thus, the response given by defendant — "It’s right here” — need not be suppressed even though defendant was not informed of his constitutional rights before answering. (See People v Huffman, 41 NY2d 29.)