author: Meyer, J.

text:
    Adventurers Whitestone Corporation, Respondent, v City of New York, Appellant.
    Argued March 26, 1985;
    decided May 16, 1985
    POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Peter A. Mound, Joseph I. Lauer and Robert Pfeffer of counsel), for appellant.
    A purported plenary action in New York County for interest on condemnation awards in excess of that paid pursuant to a final decree of the Supreme Court, County of Queens, is an unlawful collateral attack on the Queens decree, an unlawful splitting of plaintiff’s cause of action for just compensation and is barred by res judicata. The decision of the court below is contrary to this court’s ruling in Matter of City of New York (Washington St. Urban Renewal Project — Roteeco Corp.) (33 NY2d 970). (Matter of City of New York [Brookfield Refrig. Corp.], 58 NY2d 532; City of Buffalo v Clement Co., 28 NY2d 241; Cutter v Mayor of City of N. Y., 92 NY 166; Matter of City of New York [Squitieri], 39 AD2d 669; Vanneck Realty Corp. v City of New York, 296 NY 1040; Delaware, Lackawanna & W. Coal Co. v City of New York, 296 NY 1042; Matter of Crane v Craig, 230 NY 452; O’Brien v City of Syracuse, 54 NY2d 353; Smith v Russell Sage Coll., 54 NY2d 185; Matter of City of New York [Brooklyn-Queens Highway], 300 NY 265.)

      Herman Itskowitz and Alfred D. Jahr for respondent.
    I. Plaintiff’s plenary action, to which there is no defense, is expressly authorized by defendant’s own condemnation statute, Administrative Code of the City of New York § B15-28.0 (b). (Matter of Mazzone, 281 NY 139; Matter of New York City Hous. Auth. v Miller, 270 NY 333; Matter of Culver Contr. Co. v Humphrey, 268 NY 26; Matter of City of New York [Fort Greene Houses], 177 Misc 101, 291 NY 788; Story v New York El. R.R. Co., 90 NY 122; North Laramie Land Co. v Hoffman, 268 US 276; Matter of City of New York [Brookfield Refrig. Corp.], 58 NY2d 532; Danforth v United States, 308 US 271; Phelps v United States, 274 US 341; Seaboard Air Line Ry. v United States, 261 US 299.) II. Defendant-appellant’s contention that this plenary action is barred by res judicata has no foundation in fact or in law. (Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304; Matter of City of New York [Bronx Riv. Parkway], 284 NY 48, affd sub nom. A. F. & G. Realty Corp. v City of New York, 313 US 540; Matter of Nassau County [Eveandra Enters.], 42 NY2d 849.) III. Defendant-appellant’s case finds no support in fact of in law, and its attempt to deny plaintiff-respondent’s just compensation is in conflict with both Federal and State Constitutions. (Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304; Matter of City of New York [Hutchinson Riv. Parkway Extension], 262 App Div 487; Matter of City of New York [Mandel], 45 AD2d 962; Matter of City of New York [Squitieri], 39 AD2d 669; Grote v City of New York, 190 NY 235; Heywood v City of New York, 7 NY 314.)

      M. Robert Goldstein for H.G.V. Associates and others, amici curiae.

    The final decree was neither res judicata nor final and conclusive as to 6% interest per annum. (Vanneck Realty Corp. v City of New York, 296 NY 1040; Matter of City of New York [Hutchinson Riv. Parkway Extension], 262 App Div 487; Tandoi v State of New York, 87 AD2d 816; Matter of Crane v Craig, 230 NY 452; City of Watertown v Sullivan, 64 Misc 2d 493; United

      States v 164.25 Acres of Land, 159 F Supp 728; United States v Blankinship, 543 F2d 1272.)

      Michael J. Greco and John E. Watkins, Jr., for Pauline E. Tully and others, amici curiae.

    All condemnees who did not receive 9% interest on moneys held by appellant city after January 1, 1978 are entitled to recover additional interest. (Matter of City of New York [New Mun. Bldg.], 57 Misc 2d 156, affd sub nom. Matter of City of New York [Manhattan Civic Center Area], 32 AD2d 530, 27 NY2d 518; Matter of City of New York [Squitieri], 39 AD2d 669; Matter of Crane v Craig, 230 NY 452; Matter of Murphy v Prendergast, 99 Misc 326,179 App Div 904; Devlin v Mayor of City of N. Y., 131 NY 123; Shephard v City of New York, 216 NY 251; Matter of Rivera v Trimarco, 36 NY2d 747; Matter of Jones v Berman, 37 NY2d 42; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)
   OPINION OF THE COURT .

Meyer, J.

Interest on a condemnation judgment is paid to compensate for delay in payment of the award and is payable at such rate as is fixed by statute. Interest on the value of the property taken is required by the just compensation clauses of the Federal and State Constitutions as a substitute for the beneficial use of the property during the period between the date of the taking and the date of final judgment. It is, nevertheless, payable at the rate fixed by statute unless it is established in the condemnation proceeding that as compared to the prevailing market rate the statutory rate is unreasonable. Plaintiff, having failed to contest the statutory rate in the condemnation proceeding, was entitled only to interest at the statutory rate both pre- and postjudgment, which concededly it has received. The order of the Appellate Division should, therefore, be reversed, with costs, and the complaint dismissed.

I

Plaintiff’s property was taken by the city as part of a capital project on April 4, 1974. During hearings held by Supreme Court, Queens County, in May, September and December 1976, no issue was raised concerning the rate of interest to be paid. Tentative decrees dated September 14, 1978 and November 28, 1978, fixed the value of the property taken, but made no mention of interest. On December 13,1978, the Corporation Counsel was directed to submit a final decree, but no decree was submitted until July 18, 1979. Both parties appealed and on June 8, 1981 the Appellate Division increased the fixture award but otherwise affirmed (82 AD2d 829). On appeal to us, the Appellate Division’s order was affirmed on April 1, 1982 (55 NY2d 345).

On July 12, 1982, the city comptroller offered payment of the principal sum thus fixed, plus 6% interest. Plaintiff responded by letter on July 19, 1982, demanding 9% interest, that rate having been fixed by Supreme Court, Bronx County, in a decision dated August 7, 1981 in Matter of South Bronx Neighborhood Dev. Plan (110 Misc 2d 571), as the fair rate required as of January 1, 1978 to constitute just compensation. The Bronx decree was affirmed by the Appellate Division on September 28, 1982 (89 AD2d 948) and by us (sub nom. Matter of City of New York [.Brookfield Refrig. Corp.], 58 NY2d 532) on May 3, 1983.

On July 21, 1982, plaintiff accepted the city’s vouchers, reserving the right to additional interest as demanded in its previous letter, and on August 12, 1982 filed its notice of claim. Payment having been refused by the city, plaintiff then began this action in Supreme Court, New York County, to recover the difference between 6% and 9% interest from January 1, 1978. The city moved to dismiss the action as barred by res judicata, plaintiff having failed to raise the constitutionality of the interest rate in the Queens County proceeding. Plaintiff cross-moved for summary judgment, arguing that Administrative Code § B15-28.0 (b) authorized its separate action, that the Queens decree made no mention of interest and that the city was not only collaterally estopped but also required as a matter of stare decisis to pay 9% interest from January 1, 1978 as fixed by the Bronx decree. Supreme Court, New York County, denied the city’s motion and granted plaintiff’s cross motion, awarding plaintiff the interest demanded plus attorney’s fees. The Appellate Division modified, on the law, by vacating the award of attorney’s fees but otherwise affirmed (102 AD2d 769), and granted the city’s motion for leave to appeal (CPLR, 5602 [a] [1] [i]).

We conclude (1) that the Constitution requires interest at the prevailing rate only for the period between taking and award and only upon a demonstration that the statutory rate is unreasonably low, (2) that the Administrative Code does not foreclose litigation of the reasonableness issue as part of the condemnation proceeding and (3) that a claimant who fails to litigate the issue in the condemnation proceeding may not maintain an independent action to recover additional interest.

II

There is a material distinction between prejudgment interest and postjudgment interest. Matter of Rochester Carting Co. v Levitt (36 NY2d 264) held that, “Interest accruing prior to the award is payable as a substitute for the beneficial use of real property, and its payment is constitutionally required. Post-judgment interest, by way of penalty or incidental interest, is not constitutionally required, and statutes regulating such interest have as a rule not been deemed to run afoul of the ‘full compensation’ requirement” (36 NY2d, at p 268; accord, Matter of Riccardi v Abrams, 85 AD2d 65, appeal dismissed and lv dismissed 56 NY2d 1033). Thus, postjudgment interest will be increased or decreased from the effective date of a statute changing the applicable rate (Matter of Board of Educ. [Sapsin], 35 AD2d 973 [increase]; Matter of Incorporated Vil. of Hempstead [YMCA of Nassau & Suffolk Counties], 33 AD2d 1036 [increase]; see, Matter of City of New York [Bronx Riv. Parkway], 284 NY 48, remittitur amended 284 NY 701, affd summarily sub nom. A.F. & G. Realty Corp. v City of New York, 313 US 540 [decrease]; People ex rel. Emigrant Indus. Sav. Bank v Sexton, 284 NY 57 [decrease]).

As to prejudgment interest, however, just compensation, under both the 5th Amendment to the Federal Constitution and article I (§ 7 [a]) of the State Constitution, requires not only payment of the value of the property at the time of the taking but also interest on that sum to account for the delay between the taking and the judgment (Matter of City of New York [Brookfield Refrig. Corp.], 58 NY2d 532, 536, supra; City of Buffalo v Clement Co., 28 NY2d 241, 265-266; Matter of City of New York [Bronx Riv. Parkway], 284 NY 48, 54, supra). The amount of interest necessary to bring the payment into accord with the constitutional requirement is a judicial question, although the interest rate fixed by the Legislature will be deemed presumptively reasonable unless the claimant rebuts the presumption with evidence of prevailing market rates establishing that the statutory rate is so “unreasonably low” as not to constitute just compensation (Matter of City of New York [Brookfield Refrig. Corp.], supra, at p 537, and cases cited). But the statutory rate being presumptively reasonable, a claimant who claims to be constitutionally entitled to a higher rate of interest bears the burden of proving the constitutional insufficiency of the statutory rate (see, Heyert v Orange & Rockland Utils., 17 NY2d 352, 364).

Ill

Plaintiff argues that interest did not become an issue until the comptroller failed to apply the 9% rate mandated by the Brook-field Refrig. case to the warrant for its award, that under the New York City Administrative Code it could not have litigated the interest issue in the condemnation proceeding, and that it would be illogical to require it to do so when it could not be known at the time of the trial of the condemnation issues when the award would finally be paid.

The last contention need not long detain us for constitutional interest is, as above noted, payable only for the period from taking to judgment, which in most circumstances will follow soon after conclusion of the trial.

Plaintiff’s argument based on the Administrative Code stems from section B15-28.0 (b), which provides that, “In a capital project proceeding, payment shall be made within two calendar months after the entry of the final decree. In default of such payment, the owners or other persons entitled to be paid in the proceeding may at any time after application first made to the Comptroller therefor, sue for and recover the amount due, with lawful interest, and the costs of such suit.” This, it is contended, clearly contemplates a second, plenary suit in which interest is to be litigated. The difficulty with the argument is that it fails to distinguish between prejudgment constitutional interest, which is part of the award, and postjudgment statutory interest, which is not. The reason for providing for suit on the final decree rather than execution upon the condemnation award is unclear, but the Administrative Code does not proscribe the raising of the constitutional interest rate issue in the condemnation proceeding. That interest is not provided for in the condemnation award and is first added in the comptroller’s warrant is not surprising in light of the presumption that the statutory rate is constitutional and the comptroller’s obligation to proceed according to the statute unless after litigation of the constitutional interest question the court has held otherwise as to the period during which that rate applies. It follows that, as we said in Matter of City of New York (Jefferson Houses — Lombardi) (306 NY 278, 282): “Far better is it — and, as we view the laws, consistent with the intent of the Legislature as expressed in the words of the statutes — to permit one court, having the parties then present before it and ready * * * to submit their controversy to that court, to settle all questions” (emphasis in original). Indeed, the interest issue has been litigated before the condemnation court in a number of cases (Matter of City of New York [Brookfield Refrig. Corp.], 58 NY2d 532, supra; Matter of City of New York [Roteeco Corp.], 33 NY2d 970; Matter of City of New York [Manhattan Civic Center Area], 27 NY2d 518, affg 32 AD2d 530, affg 57 Misc 2d 156). There was, therefore, no bar to plaintiff’s raising the issue in the Queens proceeding.

IV

Under usual principles of claim preclusion, plaintiff is barred from raising in a second action an issue which it could have raised in the condemnation proceeding (Matter of City of New York [Roteeco Corp.], supra; Matter of Huie [Furman], 20 NY2d 568; Matter of City of New York [Brooklyn-Queens Highway], 300 NY 265; Tandoi v State of New York, 87 AD2d 816; Matter of City of New York [Squitieri], 39 AD2d 669; Restatement [Second] of Judgments § 18).

Plaintiff argues that the Roteeco decision is distinguishable, but examination of the record in that case shows that there were two separate decrees, the first of which fixed the value of the fee parcels and made no mention of interest and the second of which valued the fixtures and limited interest to 4%. Claimant’s counsel made the same argument here advanced, that the final decree need not speak to interest because it was constitutionally required as a matter of just compensation and, “The addition of interest to awards requires the performance of a purely ministerial act, an arithmetic computation, purely a pro-forma function.” He argued also that the decision in Manhattan Civic Center Area (supra) mandated that the city pay interest at 6% rather than 4% after August 1,1966 on all awards in condemnation. Our decision was (33 NY2d, at pp 971-972) that both the fee and the fixture claimants were foreclosed from obtaining additional interest, the fixture claimant because he was denied interest greater than 4% and took no appeal, the fee claimant because it had not reserved the interest issue and took no appeal, with the result that both decrees “became final and the trial court had no jurisdiction to alter its decree in any matter of substance” (id., at p 972).

The only differences between Roteeco and the instant case are that the Roteeco application for additional interest was by motion in the condemnation proceeding and that the fee claimant in Roteeco did not reserve the interest issue while the present claimant sought by its letter to the comptroller to preserve the issue and brought an independent action. Neither helps the present plaintiff, however. Actions separate from a condemnation proceeding to recover interest have been allowed, but none involved the res judicata question presented by this case. In Grote v City of New York (190 NY 235), the court allowed such an action because of “an express agreement between the parties that the question as to the right to recover interest should be reserved and determined by an action to be brought by plaintiff” (id., at p 237). Vanneck Realty Corp. v City of New York (296 NY 1040) concerned not the rate of interest payable, but whether the city could withhold interest in a capital project proceeding under the provision of then section B15-28.0 (b) of the Administrative Code (later deleted by L 1963, ch 100, § 258), applicable to assessable improvement proceedings, which provided that interest stopped running six months after final decree unless claimant demanded payment within that time. Clearly an issue which could not arise until six months after final decree could not be barred by the final decree. Also distinguishable are Matter of Crane v Craig (230 NY 452) and Matter of Murphy v Prendergast (99 Misc 326, affd 179 App Div 904, lv denied [as recorded in the Craig decision, 230 NY, at p 462]), even though there is language in those opinions differentiating interest which is part of the compensation allowed, for all that those cases hold is that acceptance of less than interest for the full period the statute required interest to be paid did not waive the right to sue for the interest withheld. Neither case concerned the rate of interest, nor was any issue of res judicata presented in either.

Here plaintiff neither raised the question of the rate of interest constitutionally required in the condemnation proceeding nor preserved by stipulation its right to litigate the issue in another forum. Its claim to the higher rate of interest is, therefore, barred by res judicata.

For the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Alexander concur.

Order reversed, etc.

      . At all times relevant to this action General Municipal Law § 3-a (2) has provided that, “The rate of interest to be paid upon any judgment or accrued claim against the municipal corporation arising out of condemnation proceedings or action to recover damages for wrongful death shall not exceed six per centum per annum.”

      . “[N]or shall private property be taken for public use, without just compensation.”

      . “Private property shall not be taken for public use without just compensation.”

      . Kirby Forest Indus. v United States (467 US 1,_, 104 S Ct 2187, 2198) declined to order the payment of interest on a condemnation award under Federal statute but recognized that when there is substantial delay between the date of valuation and the date the judgment is paid, during which time the value of the land changes materially, a new hearing on value may be required. The principle of that case is inapplicable to the present action, which is separate and apart from the condemnation proceeding and which is predicated on a change in interest rate rather than a change in value.

      . Because the statutory rate has remained at 6% during all times relevant to this action and plaintiff has not shown itself to be entitled to more than the statutory rate for the constitutional interest period, we need not determine the exact date of judgment in this case. To be noted, however, is that the condemnation award will normally constitute the judgment (cf. Uniform Eminent Domain Code § 1203,13 ULA 134 [Master ed]) unless the condemning authority appeals unsuccessfully, in which event the judgment finally entered will be determinative (cf. Matter of City of New York [Chrystie St.], 264 NY 319). When the constitutional interest issue has been raised before the condemnation court and during the time necessary to dispose of the appeal the interest rate undergoes a substantial upward change, it may, therefore, be necessary to accord the claimant a further hearing at which that fact can be established (cf. Kirby Forest Indus. v United States, supra, n 4).

      . Compare, Court of Claims Act §§ 19, 20, and EDPL 513, 514, both of which contemplate only a judgment, not a decree followed by suit on the decree.

      . Matter of City of New York (Hutchinson Riv. Parkway Extension) (262 App Div 487) held a motion in the condemnation proceeding to direct payment of the award an improper way to raise issues concerning whether a transfer of tax lien was void and whether the interest rate of 12% on the lien continued after condemnation “did not involve the correction of any part of the condemnation decree” and that petitioner’s “proper remedy, therefore, was to proceed by plenary action” (262 App Div, at p 488) in view of the language of section B15-28.0 (b). It was not concerned with whether the issues could have been raised earlier, nor apparently was any such argument made.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    City of Rochester, Appellant, v Angelo Chiarella et al., Individually and on Behalf of All Payers of Real Property Taxes to the City of Rochester for the Fiscal Years 1974-1975 Through 1977-1978, Appellants, and Stephen J. Sercu et al., Respondents.
    Argued March 18, 1985;
    decided May 2, 1985

      POINTS OF COUNSEL

      Louis N. Kash, Corporation Counsel, for City of Rochester, appellant.
    I. Nonprotesters are entitled to be treated equally with protesters regarding tax refunds in this case, because Rochester has lawfully waived the defense of failure to protest. (Matter of First Natl. City Bank v City of New York Fin. Admin., 36 NY2d 87; Redmond v Mayor of City of N. Y., 125 NY 632; Battlefields, Inc. v County Legislature, 86 Misc 2d 181, 56 AD2d 586; City of Rochester v Chiarella, 58 NY2d 316; Glamm v City of Amsterdam, 67 AD2d 1056, 49 NY2d 714; Matter of Evans v Berry, 262 NY 61; O’Hara v State of New York, 112 NY 146; Farrington v State of New York, 248 NY 112; Cole v State of New York, 102 NY 48.) II. The protesters’ prima facie right to full refunds is countered, at least partially, by Rochester’s equitable defense of value received for money taken. (Matter of First Natl. City Bank v City of New York Fin. Admin., 36 NY2d 87; Battlefields, Inc. v County Legislature, 86 Misc 2d 181, 56 AD2d 586; Federal Ins. Co. v Groveland State Bank, 37 NY2d 252; Friar v Vanguard Holding Corp., 78 AD2d 83; Schank v Schuchman, 212 NY 352; Jenrad, Inc. v Village of Scarsdale, 23 AD2d 784, 18 NY2d 78; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415; County of Oneida v First Citizens Bank &

      Trust Co., 264 App Div 212; Wein v State of New York, 39 NY2d 136; Comereski v City of Elmira, 308 NY 248.) III. Class action treatment of this case authorizes and encourages compromise, even over the objections of some class members, provided there is a defense that mitigates prima facie liability and the potential debtor demonstrates that it would be severely financially damaged by a full judgment. (Ray v Marine Midland Grace Trust Co., 35 NY2d 147; Guffanti v National Sur. Co., 196 NY 452; Friar v Vanguard Holding Corp., 78 AD2d 83; Cotton v Hinton, 559 F2d 1326; TBK Partners v Western Union Corp., 675 F2d 456; Grunin v International House of Pancakes, 513 F2d 114; City of Detroit v Grinnell Corp., 495 F2d 448.) IV. The Sercus’ motion was barred because no reply had been pleaded to their counterclaim and there had been no joinder of issue. (Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723; City of Rochester v Chiarella, 86 AD2d 110.) V. The pleadings did not establish joinder of issue either by their terms or by intention of the parties. VI. The court below treated Rochester unfairly and prejudicially on the appeal from Special Term. (Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig] 22 NY2d 333; Matter of Belgrave v Ward, 72 AD2d 898; Omowale v State of New York, 72 AD2d 955; Unitron Graphics v Mergenthaler Linotype Co., 75 AD2d 783; Smith Co. v Jet Dr. Mar. Contr. Co., 72 AD2d 576; Irrigation & Indus. Dev. Corp. v Indag S.A., 37 NY2d 522; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65; Collucci v Collucci, 58 NY2d 834.)

      Kenneth A. Payment and A. Paul Britton for subclass A-2, appellants.
    I. The Sercus’ motion for summary relief ahead of other claimants was improper under earlier procedural rulings in this action. II. The court below erred in disregarding substantial prejudice to nonprotesters. III. The court below erred in failing to preserve options that may be in the best interests of protesters, and improperly precluded the supervising Justice from exercising his statutory responsibilities in a class action. (Air Line Stewards & Stewardesses Assn. v Trans World Airlines, 630 F2d 1164; Cotton v Hinton, 559 F2d 1326; United States v Alleghany-Ludlum Indus., 517 F2d 826; Van Bronkhorst v Safeco Corp., 529 F2d 943; Kincade v General Tire & Rubber Co., 635 F2d 501; Weinberger v Kendrick, 698 F2d 61; TBK Partners v Western Union Corp., 675 F2d 456; In re Traffic Executive Assn. — Eastern R. R., 627 F2d 631; City of Detroit v Grinnell Corp., 495 F2d 448; Armstrong v Board of School Directors, 471 F Supp 800, 616 F2d 305.) IV. The court below wrongly dismissed the financial capacity of the city as a consideration in resolution of the class action. (Weinberger v Kendrick,
      698 F2d 61; City of Detroit v Grinnell Corp., 495 F2d 448; Marshall v Holiday Magic, 550 F2d 1173; Grunin v International House of Pancakes, 513 F2d 114.) V. The court below decided issues not before it. (Collucci v Collucci, 58 NY2d 834.)

      Byron Johnson for subclass B, appellants.
    I. Respondents’ motion for summary judgment is technically deficient. (Bakerian v Horn, 21 AD2d 714; Milk v Gottschalk, 29 AD2d 698.) II. Respondents’ motion for summary judgment does not properly lie in a proceeding such as this which has been certified as a class action.

      Robert A. Feldman for subclass C, appellants.
    Respondents’ motion for summary judgment is both technically deficient and inappropriate at this stage of the class action.

      Douglass Foss, Edward H. Fox and Karl S. Essler for Angelo Chiarella, appellant.
    I. Because issue has not been joined and because respondents’ claims have not been properly presented, the motion for summary judgment was both procedurally and substantively defective. (Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723; Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512; Milk v Gottschalk, 29 AD2d 698.) II. The supervising Justice’s denial of respondents’ motion was within his broad authority to regulate the conduct of this class action. (City of Rochester v Chiarella, 86 AD2d 110; Klurfeld v Equity Enters., 79 AD2d 124; Matter of Reynders v Conway, 79 AD2d 863.)

      Joseph A. Regan for respondents.
    I. The motion for summary judgment was properly granted. (Hurd v City of Buffalo, 34 NY2d 628; Waldert v City of Rochester, 44 NY2d 831; Angelone v City of Rochester, 52 NY2d 982; Flushing Natl. Bank v Municipal Assistance Corp., 40 NY2d 731.) II. Rochester’s proposed equitable defense is meritless and is barred by the doctrine of res judicata. (Schank v Schuchman, 212 NY 352; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415; Waldert v City of Rochester, 90 Misc 2d 472, 61 AD2d 147, 44 NY2d 831; Angelone v City of Rochester, 100 Misc 2d 917, 72 AD2d 445, 52 NY2d 982; Matter of Haas, 33 AD2d 1, 26 NY2d 646, 842; Friedman v State of New York, 24 NY2d 528; Echo Bay Waterfront Corp. v City of New Rochelle, 275 App Div 672; Gerzof v Gulotta, 57 AD2d 821; Weisz v Levitt, 59 AD2d 1002; B.R. De Witt, Inc. v Hall, 19 NY2d 141.) III. The rights of protesters remain unaffected by Rochester’s desire to pay nonprotesters and prior court decisions in this action. (City of Rochester v Chiarella, 58 NY2d 316; Matter of Reynders v Conway, 79 AD2d 863.) IV. The granting of summary judgment to protesters who wish refunds was proper in this class action and does not rule out the possibility of future compromise. (Friar v Vanguard Holding Corp., 78 AD2d 83.)
   OPINION OF THE COURT

Simons, J.

This appeal concerns efforts by Rochester taxpayers to obtain refunds for taxes illegally assessed against them by the city and which they paid under protest. The claims are based upon several earlier rulings of this court. In Hurd v City of Buffalo (34 NY2d 628), we held taxes levied by the City of Buffalo in 1971-1972 invalid because the municipality had violated provisions of the State Constitution which prohibit raising revenues in any year by taxation of real property in an amount exceeding 2% of the average full value of real estate within the municipality (see, NY Const, art VIII, § 10). Buffalo had violated that provision and exceeded its constitutional taxing powers by excluding from the total levy amounts levied to satisfy municipal liability for employees’ benefits. Although we found the taxes unconstitutional, we agreed with the Appellate Division that the declaration of unconstitutionality should not act retroactively to permit recovery of the taxes paid because the city had relied upon a State statute authorizing the practice and to require it to refund the sums collected would impose undue hardship (id., affg 41 AD2d 402, 405-406). Four years later, in Waldert v City of Rochester and companion cases (44 NY2d 831), we invalidated similar tax levies by the Cities of Rochester and Buffalo and the Geneva School District, and the statutes on which they were predicated, on precisely the same ground (see also, Angelone v City of Rochester, 52 NY2d 982). We permitted protesting taxpayers to seek refunds of the excess amount of taxes paid as a result of the unlawful levy, however, finding the statutes and the taxes based on them a “palpable evasion” of the constitutional limitations upheld in Hurd.

The taxpayers’ claims in this action seek to recover the amount paid in excess of the taxes lawfully levied in the tax years 1974-1975 through 1977-1978. They are asserted as counterclaims in a class action instituted by plaintiff City of Rochester pursuant to CPLR article 9. Defendants Stephen and Charlene Sercu are representatives of subclass A-l and represent some of the taxpayers who protested the unlawful tax levies for those years. The Appellate Division granted them and members of their subclass partial summary judgment (see, 100 AD2d 46). Plaintiff city and the other defendants, representatives of subclasses A-2, B, C and D, appeal from that order.

Following our 1978 ruling in Waldert, the city has tried several devices to alleviate the financial burden of paying the anticipated refund claims. Originally, it passed an ordinance directing refund of all overpayments, whether paid under protest or not, and authorized an additional tax to fund the expense. It implemented the ordinance by including an item of additional tax on each property tax bill, the sum needed to pay the individual taxpayer’s claim, and then it “paid” the claim for past overcharges by crediting the taxpayer with payment of the additional charge. It was a paper transaction in which the city, in its own words, “robbed Peter to pay Peter” and the Appellate Division declared the ordinance unconstitutional (see, Angelone v City of Rochester, 72 AD2d 445, 448). After the Appellate Division decision, the city commenced this preemptive class action seeking to avoid a multiplicity of lawsuits and resolve all claims in one forum. Notwithstanding our prior decisions expressly holding otherwise, the city denied in its complaint that it had levied any illegal taxes in the years in question or that it owed refunds to any taxpayer. Urging that many lawsuits to recover refunds had been threatened or instituted, it sought certification of the class action, a stay of all claims or counterclaims until this court reviewed the Appellate Division’s decision in the Angelone action and a declaration that the taxes for the years in question were legal. In the event that it lost the Angelone appeal, the city asked for a declaration of the rights of the parties in the class action and an order directing the method and terms for payment of refunds. We affirmed the Appellate Division order in Angelone (52 NY2d 982, supra) and thereafter Special Term certified the class action, structured several classes, and ordered that all pending actions, including that of the Sercus, be consolidated with it. The defendants answered and asserted counterclaims seeking refunds and the court granted the city an indefinite extension of time to reply to them.

After the class action was certified, the city submitted a plan for settlement. It proposed to reimburse all taxpayers equally, whether they had protested or not, but to pay them only 50% of the overpayment (utility companies were treated separately). Payment was to be made from a special fund consisting of $35 million received from the State and an additional $1.6 million contributed by the city. After the city submitted its plan, some of the protesters contested the right of nonprotesting taxpayers to be paid. Special Term held for the nonprotesters but the Appellate Division reversed (City of Rochester v Chiarella, 86 AD2d 110) and we affirmed its order (58 NY2d 316). The city then undertook to pay nonprotesters’ claims from the special fund by adopting an ordinance pursuant to General City Law § 20 (5). That statute permits the city to recognize some moral obligation claims by waiving the legal defenses to them. When the appeal challenging the validity of the ordinance reached us, we held the ordinance constitutional and effective to permit refunds to non-protesting taxpayers. In doing so, however, we noted that we did not decide what effect recognition of the nonprotesters’ rights and limiting the source of their recovery to the special fund would have on the right of protesters to full refunds (see, City of Rochester v Chiarella, 63 NY2d 857). That issue is before us on this appeal by the city and defendants as a result of the Appellate Division’s order reversing Special Term and granting the Sercus and the members of subclass A-l partial summary judgment.

Although the city denies it in its complaint, all the parties expressly or tacitly agree that the taxes for the years in question and the statutes authorizing them were unconstitutional and we have held them so repeatedly (see, e.g., Waldert v City of Rochester, 44 NY2d 831, supra; see also, Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; Central Buffalo Project Corp. v City of Buffalo, 52 NY2d 986; Angelone v City of Rochester, 52 NY2d 982, supra; Hurd v City of Buffalo, 34 NY2d 628, supra). Indeed, the city has appealed to this court three times, implicitly conceding the illegality on each occasion and urging that all taxpayers, protesters and nonprotesters alike, should receive equal treatment when refunds are made. In view of that, there would seem to be no reason why the general issue of the invalidity of the taxes should not be removed from the litigation for the benefit not only of the protesting taxpayers but for the nonprotesters also. Thus, it comes as no surprise that the Appellate Division thought no serious question of illegality remained and granted the application of subclass A-l members for partial summary judgment, remitting the matter for proof of the validity of the individual protester’s claims and for assessment of damages.

Appellants object to the Appellate Division order on several grounds. On the merits they contend first that the ordinance recognizing the claims of nonprotesters requires that they be treated equally with protesters and that the effect of the Appellate Division’s order granting summary judgment is to create an improper preference to the assets of the special fund for members of subclass A-l. Second, the city contends that summary judgment must be denied because it possesses a valid defense to the taxpayers’ causes of action for money had and received based on value the taxpayers received in return for their money. Third, appellants contend that since this is a class action, the claims of the Sercus’ and other protesting taxpayers must be subject to the contemporaneous disposition of all claims, protesters and nonprotesters alike, and, considering the city’s financial plight, that the claims must be compromised. Procedurally appellants contend that the motion must be denied because the Sercus had neither the status nor authority to make their motion and that the motion is premature because the city has not yet replied to defendants’ counterclaims.

We agree with the holding implicit in the Appellate Division’s decision that the Sercus had the authority to move for accelerated judgment but hold that the motion is premature because the city has not replied to the counterclaims. We reverse its order, therefore, and address the points advanced by appellants as they are necessary to our decision.

Taxes assessed and collected in violation of constitutional authority or otherwise void for want of jurisdiction may be recovered by the taxpayer in a plenary action for moneys had and received (Matter of First Natl. City Bank v City of New York Fin. Admin., 36 NY2d 87, 93; New York R. T. Corp. v City of New York, 275 NY 258, 264, affd 303 US 573). The taxpayer must establish that the taxes were paid involuntarily to succeed but if he does, he may recover the overpayment in a timely action (City of Rochester v Chiarella, 58 NY2d 316, supra; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 426; and see, Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831, 835; Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262, supra). After obtaining judgment, the taxpayer becomes a judgment creditor and, like any other judgment creditor, is entitled to be paid from general city funds or by executing on city property. If the city is unable to pay the judgment from current funds, it may borrow for that purpose {see, Local Finance Law § 11:00 [a] [33], [33-a]).

Much of appellants’ opposition to this partial judgment is based upon their claim that the Appellate Division order prefers the protesters and gives them an opportunity to consume the assets of the special fund before the rights of other claimants are resolved. They contend that the nonprotesters’ claims, once recognized, are on an equal footing with those of the protesters and that all refunds must be authorized at the same time and paid rateably from the special fund. Nothing about the Appellate Division order mandates payment, however; it only moves the parties closer toward a determination of the individual claims. But more importantly, appellants are mistaken when they assert that the protesting taxpayers are limited to satisfying their claims from the assets of the special fund. The protesting taxpayers’ claims are a matter of legal right (see, City of Rochester v Chiarella, 58 NY2d 316, supra), whereas the nonprotesters’ claims have been created by the city as a matter of grace where none existed before. The city can limit the right of the nonprotesters to recover, as it did here, by directing that nonprotesters be paid “solely from the City’s special fund for tax refunds” (Ord No. 83-162; emphasis in original), but it cannot restrict the source of payment of the protesters claims or make payment of their judgments contingent on the moneys available in the special fund any more than it could limit the rights of other judgment creditors (see, Cherey v City of Long Beach, 282 NY 382, 389).

We see no need to pass on the city’s remaining substantive points. Insofar as it claims a defense based upon value rendered for the taxes paid, that defense goes to mitigation of damages, as the city concedes, not abatement of the claims. Similarly, we see no need to decide at this time what power the court has to compel a disposition of this class action by settlement. A determination on liability will not foreclose either defense if it has merit.

Nor do we agree that the Sercus lacked the standing or authority to pursue this relief. A class representative acts as principal to the other class members and owes them a fiduciary duty to vigorously protect their interests (see, Sonnenschein v Evans, 21 NY2d 563; Spatz v Wide World Travel Serv., 70 AD2d 835; 2 Weinstein-Korn-Miller, NY Civ Prac If 901.15, at 9-55 — 9-56; Homburger, The 1975 New York Judicial Conference Package: Class Actions and Comparative Negligence, 25 Buffalo L Rev 415, 428). That responsibility clearly encompasses the duty to act affirmatively to secure the class members’ rights as well as to oppose the adverse interests asserted by others. Although the order appointing the Sercus directed them to oppose payments to nonprotesting claimants, that did not limit their authority to make this motion and the supervising Judge who appointed them apparently recognized as much when he denied their motion without prejudice to renew. He refused to entertain the motion at that time because an appeal was pending to determine the rights of nonprotesters and because the motion, made pursuant to CPLR 3211 (b) and 3212, was premature in the absence of plaintiff’s reply to the counterclaims. The rights of nonprotesters have now been resolved (see, City of Rochester v Chiarella, 63 NY2d 857, supra). Thus, the only remaining basis for his order is prematurity and it is this ground which requires reversal of the Appellate Division order.

A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to (see, Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723; Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512; Milk v Gottschalk, 29 AD2d 698 [Gabrielli, J.]; Siegel, NY Prac § 279). The Appellate Division recognized this rule but held that the city’s complaint sought a declaration that the taxes were constitutionally levied and that no refunds were due. It held therefore that the counterclaims raised no new issue requiring a reply and it entertained the Sercus’ motion.

The appropriate response to a counterclaim is a reply (CPLR 3011; Siegel, NY Prac § 229). It serves the same function with relation to a counterclaim that an answer serves to a complaint. Because the city had not replied to the Sercus’ counterclaim, their 3212 motion for summary judgment preceded joinder of issue and was untimely (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3212:12, p 432).

A 3211 (b) motion may be addressed to a reply but that motion was not available to the Sercus because there had been no reply to their counterclaim and the motion could not be used to anticipate defenses based upon the general denials of liability alleged in the complaint. Indeed, even when properly asserted, after an answer or reply has been submitted, a 3211 (b) motion cannot be used to strike general denials as contrasted with specific defenses such as those contained in CPLR 3018 (b) (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3211-.38, 1970-1984 Supp Pamphlet, pp 10-11). Finally, CPLR 3211 (c) permits the court, on notice to the parties, to treat a motion to dismiss made pursuant to subdivision (a) or (b) as a motion for summary judgment before issue is joined (see generally, Siegel, NY Prac, at 328). The motion is available to a party attacking a pleading who has not pleaded yet, a defendant moving against a complaint before answering, for example, but it may not be used by a pleader such as the Sercus to foreclose a responsive pleading before an opponent has had a chance to answer the claim. Thus, their motion for partial summary judgment and to dismiss was premature and Special Term properly denied it.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion denied without prejudice to renew after submission of a reply. The certified question should be answered in the negative.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye and Alexander concur.

Order reversed, etc.

       The over-all subclass structure is as follows:
      A — All Protesters
      1. Protesters who oppose refunds to nonprotesters.
      2. Protesters who favor refunds to nonprotesters.

        B — City property owners from 1974-1978 who have transferred their property.
      C — City property owners whose assessments have been lowered since 1974-1978.
      D — Nonprotesters.
      The city and representatives of subclasses A-2, B, C and D have filed appellants’ briefs in this court.


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Carolyn Young, Appellant.
    Argued February 11, 1985;
    decided May 2, 1985
    POINTS OF COUNSEL

      Irma B. Ascher and William E. Hellerstein for appellant.
    I. Appellant was denied due process by the People’s failure to prove that she was criminally responsible for her conduct, where the only evidence submitted to rebut the insanity defense was the testimony of a single psychiatrist who, while conceding appellant’s acute psychosis at the time of the offense, used an improper standard for assessing criminal culpability. (People v Silver, 33 NY2d 475; People v Kelly, 302 NY 512; People v Rivera, 78 AD2d 1002; People v Mainville, 59 AD2d 809; People v Higgins, 5 NY2d 607; People v Adams, 26 NY2d 129, 399 US 931; Mims v United States, 375 F2d 135.) II. The court deprived appellant of her due process right to a fair trial by refusing to charge the jury that insanity was a defense to manslaughter and by delivering highly misleading supplemental instructions which misstated the elements of the insanity defense and equated the conditions supporting it with guilt of manslaughter. (People v Russell, 266 NY 147; People v Kelly, 302 NY 512; People v Draper, 278 App Div 298, 303 NY 653; People v Gonzalez, 293 NY 259; People v Adams, 26 NY2d 129, 399 US 931; People v Buthy, 38 AD2d 10; Campbell v United States, 307 F2d 597; People v Crimmins, 36 NY2d 230; People v Kvalheim, 17 NY2d 510; People v Fondal, 64 AD2d 638.) III. The court deprived appellant of due process by refusing to instruct the jury on the lesser included offense of criminally negligent homicide. (People v Scarborough, 49 NY2d 364; People v Asan, 22 NY2d 526; People v Lewis, 84 AD2d 715; People v Duncan, 55 AD2d 690; People v Crimmins, 36 NY2d 230.)

      John J. Santucci, District Attorney (Gary S. Fidel and David Berck of counsel), for respondent.
    I. The People’s evidence on the issue of defendant’s sanity was sufficient to create an issue of fact for the jury. Their determination, not being against the weight of the evidence, should not be disturbed. (People v Silver, 33 NY2d 475; People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594; People v Wharton, 46 NY2d 924; People v Alexander, 37 NY2d 202; People v Oden, 36 NY2d 382.) II. The issues pertaining to the court’s main charge were not preserved. The court’s charge, in its entirety, apprised the jury of the alternatives available to it. (People v Le Mieux, 51 NY2d 981.) III. As there was no reasonable view of the evidence to support, a finding that defendant committed criminally negligent homicide, the court properly refused to charge it as a lesser included offense. (People v Cash, 81 AD2d 1002; People v Walker, 58 AD2d 737; People v Davis, 49 AD2d 437.)
   OPINION OF THE COURT

Alexander, J.

The defense of mental disease or defect (Penal Law § 30.05), if accepted by a jury, will absolve a defendant of all criminal responsibility for conduct charged in an indictment whereas the defense of extreme emotional disturbance, if accepted by a jury, will only serve to mitigate the crime of murder in the second degree (Penal Law § 125.25 [1] [a]) by reducing it to manslaughter in the first degree (Penal Law § 125.20 [2]). Because the trial court impermissibly curtailed the jury’s consideration of the insanity defense, and failed to properly instruct the jury as to the application of these discrete defenses, defendant’s conviction of manslaughter in the first degree must be reversed.

As a result of a street encounter on the evening of November 10,1979, Fleeta Evans was stabbed by defendant and died from the single stab wound that pierced her heart. Just prior to the stabbing defendant had been accosted by the deceased and her friend Venus Bradford, and had been struck with an umbrella by one of them. There had been prior hostile encounters between defendant and the two women. On the fatal day, after being struck with the umbrella, defendant went home, obtained a kitchen knife and returned to the stoop of the house where Evans and Bradford were. Further words were exchanged. Bradford and Evans are said to have flailed at defendant again with the umbrella. Defendant struck out with the knife, fatally stabbing Evans.

Defendant was 20 years old at the time and had a long history of mental disturbances. She was described as suffering from constant auditory hallucinations, sometimes hearing noises and other times music. She had suffered meningitis at age two, followed by epileptic seizures which resulted in mental retardation.

The psychiatric evidence adduced at trial was in conflict as to whether defendant suffered from mental disease or defect sufficient to deprive her of the “substantial capacity to know or appreciate either: * * * [t]he nature and consequences of [her] conduct; * * * or [t]hat such conduct was wrong” (Penal Law § 30.05 [1]). Defendant’s expert, Dr. Ruth Finch, found her to be chronically mentally disturbed as well as mentally retarded; a chronically mentally sick person who was actually psychotic. Dr. Finch diagnosed defendant’s psychoses as “the chronic undifferentiated and paranoid types of schizophrenia”. She noted that defendant was extremely frustrated; that defendant recounted that on the day of the incident she was attacked by the deceased and Bradford and called names, such as “bitch” and “mental retard”; that she ignored them for a time, but they kept bothering her; that the deceased knocked her to the ground and beat her with an umbrella. Dr. Finch explained that defendant’s “whole picture is characterized by her pathology, and a person [such as defendant] who is mentally disturbed usually suffers from poor judgment, poor impulse control, poor reality. They sometimes are unable to distinguish between [the] right and wrong of the consequences of [their] acts. They don’t think things through. They are rather pre-occupied with fantasies which come through auditory and visual hallucinations * * * Mentally [defendant] wasn’t able to cope with the stresses of life. And in addition, her psychoses made her much more vulnerable to the point that * * * she ended up in a very explosive and unfortunate act, but that was her whole makeup.”

Defendant also offered the expert testimony of Dr. Jay Harris, who, based upon defendant’s history and his examination, concluded that defendant did not have the ability to understand or appreciate the seriousness or consequences of her acts “due to her mental retardation and superimposed psychosis.” However, he diagnosed her psychosis as “acute” rather than chronic. He defined the condition “acutely psychotic” as involving a person’s loss of “capacity to make judgments about the effect of their actions, and abnormals of thinking, of experiencing, such as hallucinations or delusions, intrude on the world.” It was Dr. Harris’ opinion that defendant possessed an “organic form of acute psychosis” and that any “ordinary life stresses, if they become intense enough, would cause the kind of acute psychosis in a person [such as defendant] who is predisposed on account of organic brain damage”.

The People’s expert, Dr. Nathaniel Lehrman, agreed that defendant was experiencing an acute psychosis at the time of the incident, an “acute psychological disorganization” caused by a “mushrooming explosiveness”. Nevertheless, he testified that in his opinion she knew the consequences of her acts at that time. Dr. Lehrman estimated defendant’s IQ to be around 70, and opined that such a person would be competent to deal with the ordinary problems of life and could distinguish between right and wrong. Dr. Lehrman testified that he believed that “anybody could find an excuse for anything if he is under stress.” It was his opinion that a person lacks criminal responsibility when, so far as the person is concerned “he had no other choice but to do what he did.” Dr. Lehrman believed that defendant “had a choice and was, therefore criminally responsible.”

The indictment charged a single count of second degree murder, that “with intent to cause the death of Fleeta Louise Evans [defendant] caused her death by stabbing her with a knife.” (Penal Law § 125.25 [1].) At the People’s request, the court agreed, additionally, to charge manslaughter in the first degree (Penal Law § 125.20).

The court charged the jury as to the elements of the crime of murder in the second degree, and instructed them as to the insanity defense, charging them that “if you decide that the defendant’s guilt of the crime [of second degree murder] has been established, then consider whether her mental responsibility has been proven to your satisfaction beyond a reasonable doubt according to the definitions I have given you. If not, then your verdict should be not guilty by reason of insanity.” The court then instructed the jury in respect to the crime of manslaughter in the first degree as defined in Penal Law § 125.20 (1) and (2). In defining the elements of manslaughter in the first degree under Penal Law § 125.20 (1), the court said, with respect to intent: “Now, I just referred to intent. I’ve also instructed you as to mental defect and deficiency. If you find at the time of the incident, the defendant, because of mental condition or defect, was unable to form a judgment — of course she would not form a judgment if she’s mentally ill, and of course if you find she could not because of mental conditions, you cannot find intent. If you cannot find intent, which is one of the elements of manslaughter in the first degree, then you must acquit her of this charge.”

The court failed to instruct the jury that even if they found that defendant had the requisite “intent” to inflict “serious physical injury” and thereby “caused the death” of the deceased, they should nevertheless determine whether she possessed “substantial capacity to know or appreciate either * * * [t]he nature and consequences of such conduct; or * * * [t]hat such conduct was wrong” (Penal Law § 30.05 [1]).

The court next instructed the jury in respect to manslaughter involving “extreme emotional disturbance” (Penal Law § 125.20 [2]). The statutory provisions were read to them. The court then charged that “when a defendant, with intent to kill another, unlawfully causes the death of that person or another, it may not constitute murder when the killing is perpetrated under the influence of extreme emotional disturbance. This does not mean that the emotional disturbance exonerates the defendant or renders the killing guiltless. As long as he actually intended to cause the death of another person * * * the killing remains a crime, and remains a homicide, but is punishable as the crime of manslaughter in the first degree”. The jury was told that they should consider the testimony of “the expert witnesses, called the psychiatrists, in determining whether [defendant] was under any emotional strain or stress at the time”, and that if they found that defendant was acting under “the influence of extreme emotional disturbance” they would be justified in returning a verdict of guilty of manslaughter in the first degree under Penal Law § 125.20 (2). It was not made clear to the jury that the psychiatric testimony should also be considered with respect to the insanity defense and that such defense, if established to their satisfaction, relieved defendant of criminal responsibility for manslaughter as well.

The Appellate Division, in affirming the judgment of conviction, concluded that the defense of lack of mental capacity with respect to manslaughter was adequately put before the jury and that, in any event, the issue was not preserved for appellate review because there were no objections to the charge as given nor were there further requests to charge. We disagree.

Initially it should be observed that the jury was specifically instructed that if they should find defendant not guilty of murder by reason of insanity, they should acquit her of murder and then “consider whether she is guilty of the crime of manslaughter”. The impression was thus created that the insanity defense related only to the murder charge. Fairly read, the court’s instructions on mental defect or disease with respect to the crime of manslaughter under Penal Law § 125.20 (1) related only to the element of intent and not to the crime itself. Additionally, the instruction respecting extreme emotional disturbance made no reference whatsoever to the insanity defense and impermissibly restricted the jury’s consideration of the psychiatric testimony to a determination of whether or not defendant was under the “influence of an extreme emotional disturbance.”

Indeed when the jury returned to the courtroom for further instructions on the definition of insanity and manslaughter, the court, after reciting the language of Penal Law § 30.05, explained it as “plain and simple language. In other words, to determine whether the person was not mentally unstable [sic]. Did she understand right from wrong? Did she know the consequences of her acts, the consequences of her- conduct?” The statutory definitions of manslaughter were again read and explained as follows: “What the law says and what is here that even though she caused the death of a person, if she was emotionally disturbed to such an extent she didn’t realize what she was doing, she intended to cause injury because she didn’t realize what she was doing because of some emotional disturbance she was suffering, this is part of the mental disease on which I instructed you earlier * * * [w]here the person’s mind is unable to apprehend or does something in a fit of anger, something which would take it away from a direct intent to cause an injury.”

Defense counsel’s attempt to register an objection to this supplementary charge was rejected by the court. This supplementary charge with respect to the insanity defense was patently erroneous and with respect to extreme emotional disturbance, hopelessly confusing. The court’s use of the “understand-ting] right from wrong” language inadvertently adopted the standard espoused by Dr. Lehrman which closely parallels the long-since discarded McNaghton Rule (see, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law former § 30.05, at pp 69-70).

Not only was the use of the “knowing right from wrong” standard erroneous, it contradicted the statutory provisions the court had just read and thereby must have confused the jury. “The question of defendant’s sanity at the time of the commission of the homicide * * * was the only real issue in the case and the only one on which the jury, as a practical matter, could have any serious discussion. Above all else on this record, the charge on the law concerning the subject should have been clear and unambiguous. Instead, it was contradictory and must have been perplexing and confusing to an attentive juror. Despite the fact that it was inadvertent, such a mistake in charging the law on the sole defense interposed, necessitates a reversal of the judgment of conviction.” (People v Kelly, 302 NY 512, 517.)

The court erroneously related the insanity defense solely to the charge of second degree murder (Penal Law § 125.25) and to the element of intent with respect to intentional manslaughter (Penal Law § 125.20 [1]). The Judge failed to make clear the jury’s obligation to determine whether or not defendant’s mental defect was such as would meet the statutory definition of insanity and thus would be “a ‘complete’ defense in the sense that it would relieve the defendant of responsibility for all [her] acts” (People v Segal, 54 NY2d 58, 66), even though the jury found that she “intended” to inflict “serious physical harm” upon the victim and thereby caused her death (see, People v Moran, 249 NY 179; People v Colavecchio, 11 AD2d 161; Donnino, 1984 Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 40.15,1975-1984 Supp Pamphlet, at pp 63-66). The failure to adequately and correctly instruct the jury with respect to the scope and effect of the insanity defense deprived defendant of a fair trial and requires reversal.

Because defendant was convicted of a lesser included offense, the indictment must be dismissed. (People v Beslanovics, 57 NY2d 726; People v Mayo, 48 NY2d 245.)

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur.

Order reversed and indictment dismissed.

      . The Laws of 1984 (ch 668, § 1) repealed Penal Law § 30.05 and reenacted the definition of the insanity defense, without substantive change, in Penal Law § 40.15, which also reconstituted the defense as an “affirmative defense”.

        The new enactment did not apply to any criminal action or proceeding relating to an offense committed prior to November 1, 1984, its effective date (see, Donnino, 1984 Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 40.15, 1975-1984 Supp Pamphlet, at pp 63-66).

      . In tests administered while at Creedmor, Carolyn had scored 39 on one day and in the 80’s on another, a disparity, as explained by Dr. Finch, that could be caused by a person’s mental disease, a “pathology [that] interferes, and emotional imbalance [that] interferes with a person’s intellectual functioning”. Dr. Lehrman did not conduct any detailed tests but estimated her IQ to be “about 70 * * * maybe a little bit more”, and testified that such an IQ “would be sufficient for her to know right from wrong.”


author: Jasen, J. Alexander, J.

text:
    The People of the State of New York, Respondent, v Joseph F. Bertolo, Appellant.
    Argued February 8, 1985;
    decided April 30, 1985

      POINTS OF COUNSEL

      Karl E. Bonheim and John F. Middlemiss, Jr., for appellant.
    The oral, tape-recorded and written confessions given by appellant to Suffolk County police officers should have been suppressed by the hearing court. (People v Rogers, 48 NY2d 167; People v Servidlo, 77 AD2d 191, 54 NY2d 951; People v Smith, 54 NY2d 954; People v Bartolomeo, 53 NY2d 225; People v Yukl, 25 NY2d 585; People v Boone, 22 NY2d 476; People v Pepper, 53 NY2d 213; People v Hauswirth, 89 AD2d 357, 60 NY2d 904; Matter of Kwok T., 43 NY2d 213; People v Rodney P., 21 NY2d 1.)

      Patrick Henry, District Attorney (Daniel J. Murphy of counsel), for respondent.
    The hearing court properly denied appellant’s motion to suppress the oral, tape-recorded and written confessions given by him to the police. (People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225; People v Barnes, 50 NY2d 375; People v Yukl, 25 NY2d 585; People v Boone, 22 NY2d 476; People v Leonti, 18 NY2d 384; People v Curatolo, 76 AD2d 524; People v McMillian, 56 AD2d 662; People v James, 24 AD2d 608, 17 NY2d 552; People v Danziger, 41 NY2d 1092.)
   OPINION OF THE COURT

Jasen, J.

The issue presented on this appeal is whether a suspect’s right to counsel is violated by police questioning about a crime then under investigation, where the police know that the suspect was arrested several months earlier on unrelated minor charges but are unaware that those charges are still pending and that the suspect is represented thereon by counsel.

On October 19, 1980, a 10-year-old female child was forcibly sodomized in a town park in Suffolk County. She, and a friend with whom she had been playing that morning, ran to the victim’s home where her mother telephoned the police. Although defendant was immediately suspected by some of the police due to the information provided by the two young girls, the investigation did not progress until 10 days later, the evening of October 28, 1980, when Detective Matedero received a telephone call from a neighbor of the victim’s family. The caller noted that defendant had been involved in prior incidents with another child in the neighborhood and suggested that he was the sodomist involved in this case as well. The detective thereupon searched the index card file and the arrest book and found that defendant had, indeed, been arrested several months earlier on two separate occasions, April 7, 1980 and May 14, 1980, for public lewdness, a class B misdemeanor (Penal Law § 245.00). The detective did not at that point attempt to locate the case jackets on those charges or to investigate them further. Rather, he sought immediately to interview the caller and other individuals living in the same neighborhood who were familiar with defendant and the earlier incidents. Consequently, he remained unaware that an information complaint had been filed on the prior charges, that they were still pending, and that defendant had been assigned counsel.

Detective Matedero then proceeded to the neighborhood in question and conducted interviews with several individuals who told of defendant’s repeated bizarre and obscene behavior. The detective then visited the young victim in this case and her friend. He took them to the police station where they each viewed a photographic array. However, neither child was able to identify defendant. Detective Matedero then drove them past defendant’s residence, whereupon both girls identified the automobile parked in the driveway as the same one which, as they had described earlier to the police, was driven on the day of the incident by the man who committed the sodomy.

Several hours later, just prior to midnight, Detective Matedero and his partner, Detective Graniello, proceeded to defendant’s home and were admitted into the house by defendant’s father. They advised defendant that they wished to speak with him at the police station about a crime in the neighborhood and would also like him to participate in a lineup. Before leaving defendant’s home, and in the presence of both his parents, Matedero fully advised defendant of his Miranda rights. Defendant explicitly responded that he understood, that he did not wish to contact a lawyer, and that he was willing to speak to the police at the station unaccompanied by one. Upon arrival at the station, defendant was again advised of his Miranda rights, and he repeated that he understood his rights and was willing to speak to the police without an attorney.

When Matedero told defendant that he wished to discuss a recent neighborhood incident, defendant asked if the detective was referring to the occurrence in the town park. When the detective answered yes, defendant proceeded to render a full oral confession. Immediately thereafter, defendant was asked to repeat his statement for a tape recording and, following advisement of Miranda rights for the third time, defendant agreed to do so. Finally, defendant’s confession was typed and, after reading and initialling the preprinted Miranda warnings at the top of the first page, defendant signed the written statement.

Later that same night, defendant consented to both visual and voice identification lineups. The young victim and her friend viewed a five-man lineup separately, but neither could identify defendant. When voice identification procedures were conducted, however, each girl separately recognized defendant’s voice among those of five participants as the voice of the man who had confronted them in the park. While statements concerning the voice identification were being prepared, the young victim’s mother confronted defendant while he sat handcuffed in a squad room. Defendant exclaimed to her that he was sorry for what he had done to her daughter and promised not to go near the park again.

A Grand Jury indicted defendant, charging him with two counts of sodomy in the first degree (Penal Law § 130.50). At a pretrial hearing, defendant moved, inter alia, to suppress all evidence of the oral, tape-recorded and written statements made by him on the night of October 28-29, 1980, on the grounds that they were involuntary (CPL 60.45) and in violation of his right to counsel under the New York State Constitution. The court denied defendant’s motion, finding that defendant had voluntarily accompanied the detectives to the police station, that he had understandingly waived his Miranda rights, and that he had voluntarily given all the statements in question. Further, the court also found that, although the police were aware that defendant had been arrested and charged with public lewdness in connection with two prior incidents, they were unaware of the status of those charges at the time defendant was questioned, they had no knowledge that defendant was being represented by counsel on those charges, and defendant never mentioned to them that he already had an attorney despite having been advised by them, on at least three separate occasions, that he had a right to have a lawyer present and appointed if he so desired. In light of these findings, the suppression court held that defendant’s statements had not been “involuntarily made” within the meaning of CPL 60.45, and that defendant’s right to counsel under the rule enunciated in People v Rogers (48 NY2d 167) had not been violated.

Subsequently, defendant was convicted, upon a jury verdict, of both counts of sodomy in the first degree and was sentenced, as a predicate felon, to two indeterminate terms of imprisonment of 7 to 14 years to run concurrently. A divided Appellate Division affirmed the judgment of Supreme Court. The court unanimously agreed that defendant’s first oral statement, given immediately upon his arrival at the station, was not suppressible, either by reason of involuntariness or violation of his right to counsel, inasmuch as the statement was freely given and defendant had not yet been placed in custody. Likewise, the court was unanimous in holding that defendant’s statement to the victim’s mother was admissible as a spontaneous outburst unaffected by police presence or prior confessions and, in any event, that defendant chose at the suppression hearing to waive any objection to its admission.

On the other hand, the court divided on the admissibility of the tape-recorded and typewritten statements. There was no disagreement that defendant was repeatedly advised of his Miranda rights, that he gave his statements without coercion or inducement, and that the police who questioned him did not in fact know that defendant was being represented on the prior charges or that those charges were still pending at the time of the interrogation. But there was disagreement on the effect of that lack of actual knowledge. The majority of the court believed the officers’ lack of actual knowledge to be dispositive of the correctness of the suppression court’s rulings, but the two dissenting Justices, relying on this court’s decision in People v Bartolomeo (53 NY2d 225), were of the view that the interrogating police had a duty to inquire whether defendant was indeed represented by counsel in connection with those previous offenses and that their failure to do so was fatal to the admissibility of the custodial statements obtained in that counsel’s absence.

Leave to appeal to this court was granted by one of the dissenting Justices. We now affirm the order of the Appellate Division for the reasons that follow.

At the outset of our analysis, it should be noted that the so-called indelible right to counsel as enunciated by this court in People v Rogers (48 NY2d 167, supra) and People v Bartolomeo (53 NY2d 225, supra) applies only to custodial interrogations. Where the police know that a suspect is represented by counsel on pending charges, or where the police know that charges are pending but fail to make inquiry which would disclose that counsel has been assigned or retained, any custodial questioning of the suspect by them in counsel’s absence is barred. (See, People v Lucarano, 61 NY2d 138,145-146; People v Fuschino, 59 NY2d 91, 98.) By contrast, eliciting inculpatory statements from a suspect under noncustodial circumstances “involves no violation of [the] right to counsel even [where] the police are aware that [the suspect] has counsel on a prior unrelated charge”. (People v Farruggia, 61 NY2d 775, 777; see also, People v Johnson, 61 NY2d 932; People v Hauswirth, 60 NY2d 904, affg 89 AD2d 357.)

Here, based upon the suppression court’s findings, the Appellate Division unanimously agreed that defendant was not in custody when he made his first oral statement at the station. This determination was predicated upon defendant’s agreeing in his own home and in his parents’ presence to accompany the police to the station and to speak with them without an attorney. Additionally, defendant was advised at the time that he need not speak with the police and that he was not under arrest, and testimony at the suppression hearing showed that defendant understood and gave his cooperation voluntarily. It cannot be said, as a matter of law, that the findings of the suppression court and the factual determination of the Appellate Division predicated thereon were erroneous, as there is sufficient evidence on the record to conclude that defendant’s initial statement was voluntarily given under noncustodial circumstances. (See, People v Johnson, supra, at p 934; People v Barnes, 50 NY2d 375, 381; People v Yukl, 25 NY2d 585, 588-589.) Consequently, the police did not violate defendant’s right to counsel under the Rogers-Bartolomeo rule when they obtained his first oral confession at the station.

While we also hold that the tape-recorded and typewritten statements were admissible, they present different questions. The Appellate Division unanimously determined that defendant was arrested and placed into custody upon making the oral confession, but the court was divided as to whether defendant’s indelible right to counsel attached at that point. The majority were of the view that mere knowledge by the police that defendant had twice previously been arrested, without more, did not preclude further questioning inasmuch as defendant was properly advised of his constitutional rights. The dissenters, however, argued that the failure of the police to ascertain that he was presently being represented by counsel on those prior matters required suppression of both custodial confessions.

On this appeal, as at the Appellate Division, defendant contends that the police were chargeable with the knowledge they would have gained from inquiring as to the status of his prior arrests. He argues that under the Rogers-Bartolomeo rule, the police had an absolute obligation to ascertain whether defendant was represented by counsel on the prior matters, regardless of the police officers’ lack of awareness of the actual pendency of charges and the assignment of counsel thereon, and despite the minor nature of those charges and their remoteness in time. We cannot agree.

In People v Rogers (48 NY2d 167, supra), defendant, a robbery suspect, informed the police that he had an attorney on another matter. Thereafter, in the midst of an interrogation, his attorney called and instructed the police to cease further questioning. Under a purported waiver of defendant’s constitutional rights, however, the police continued to question him on unrelated activities. After approximately six hours of interrogation and while still manacled, defendant made an inculpatory statement. The majority of this court held that defendant’s statement should have been suppressed at trial as the police were required to stop questioning defendant in his attorney’s absence as soon as they knew that defendant’s right to counsel had attached, albeit with regard to a prior unrelated charge.

In People v Bartolomeo (53 NY2d 225, supra), the rule adopted in Rogers was somewhat extended. There, defendant had been arrested for arson and was represented by counsel at the arraignment. A mere nine days later, defendant was taken into custody for questioning on a murder charge by officers who had actual knowledge of the outstanding prior arson charge, although not of defendant’s representation by counsel thereon. When they questioned defendant, who had already agreed to speak without an attorney, he made incriminating statements which were introduced at the murder trial. This court vacated defendant’s conviction, the majority holding that the police, having actual knowledge of the very recent arrest and the pending arson charge, had an affirmative obligation to inquire whether defendant had obtained representation on that outstanding matter and, having failed to do so, were charged with constructive knowledge that he had.

Subsequently, this court has further delineated and refined the holdings therein. (See, e.g., People v Lucarano, 61 NY2d 138, supra; People v Fuschino, 59 NY2d 91, supra; People v Miller, 54 NY2d 616; People v Servidio, 54 NY2d 951; People v Smith, 54 NY2d 954; cf. People v Kazmarick, 52 NY2d 323.) In addition to Rogers and Bartolomeo,.defendant relies upon two such progeny: People v Smith (supra) and People v Servidio (supra). In Smith, defendant was interrogated, while in custody as a murder suspect, by a police officer who was aware that defendant had previously been arrested on a felony charge — sodomy — approximately eight months earlier. Although the officer did not actually know whether defendant had an attorney, he acknowledged that he had “assumed” defendant was being represented on that still pending matter. The majority of this court held that defendant’s incriminating statements should have been suppressed, reasoning that, since the officer had “actual notice”, he was obligated to question defendant about his counsel on the earlier charge.

By contrast, in Servidio, decided concurrently with Smith, this court unanimously refused to impose a duty to inquire on the basis of circumstances deemed significantly different. There, defendant was subjected to custodial questioning by a police officer who was unaware of the prior outstanding misdemeanor charges on which defendant had already obtained counsel. As defendant correctly notes, an important consideration in that case was whether actual knowledge of the pending charges was deliberately overlooked or avoided by the police. But this court, relying upon the minor nature of those earlier matters, concluded that there was no reason to believe that there was such deliberate oversight on the part of the police, “even though [the charges] were pending within the same county and presumably the same department, and were but two and one-half months old”. (People v Servidio, supra, at p 953.) Consequently, we held that there was no basis for inferring knowledge of prior representation.

Upon examination of this court’s opinions in the foregoing cases, as well as in others decided shortly before or subsequently, it can be seen that certain factors are critical in determining whether legal representation on prior pending charges bars defendant’s custodial statements elicited in the absence of counsel. The most salient of these are: the extent of the police knowledge; the proximity, severity and notoriety of the prior charges; and the good or bad faith of the police. As this court has clearly stated on a previous occasion, before deciding whether to suppress a defendant’s inculpatory statements, a determination must be made whether the police had “actual knowledge” either that a “defendant’s right to counsel has attached in a prior, unrelated charge” or that “defendant has prior, unrelated charges still pending against him.” (People v Fuschino, supra, at p 98.) Where the police are aware that defendant has counsel on other unrelated charges, they may not question the defendant without his attorney being present. Where the police are unaware that defendant has legal representation but are aware that prior charges are pending against him, they must ask defendant whether he has counsel. Absent some actual knowledge, however, of either defendant’s representation by counsel or the pendency of prior charges, the police have no affirmative duty to cease their questioning or inquire whether defendant has an attorney. (Id.; compare, People v Fuschino, supra, and People v Servidio, supra, with People v Smith, supra, and People v Bartolomeo, supra.)

Moreover, where the prior charges are relatively recent, police officers aware of the earlier arrest will almost certainly know that the charges are still outstanding. (See, People v Lucarano, supra, at p 146.) Where the earlier charges are remote in time, however, no such presumption is warranted. (People v Fuschino, supra, at pp 98-99 [prior arrest was 14 months earlier]; compare with, People v Bartolomeo, supra [9 days].) Concomitantly, it is reasonable to presume that the police would have cause to know of the continuing pendency of a serious felony charge, even after a considerable time past the arrest. Such is not the case with a relatively minor prior offense which is less likely to have earned notoriety within a police department and is more likely to have been disposed of at an early date. (Compare, People v Servidio, supra [prior charges involved minor misdemeanors, two and one-half months old], with People v Smith, supra [felony offense, i.e., sodomy, eight months earlier].) Indeed, as Justice Niehoff aptly noted in his concurring opinion below, since the People must be prepared for trial in considerably less time as the severity of an offense decreases, it is entirely reasonable for a police officer to assume that minor misdemeanor charges would be disposed more quickly than would serious felonies. (See, CPL 30.30 [1].) Allowing for possible adjournments and other delays which could extend the pendency of prior charges, the speedy trial time limitations are not an unreasonable factor to consider when determining whether a police officer’s belief, that charges have been disposed of, was justified. (See, People v Bertolo, 102 AD2d 193, 208 [majority opn], at pp 217-219 [Niehoff, J., concurring].)

Finally, where the police do not actually know that earlier charges are pending, there is no warrant for imputing constructive knowledge that the suspect already has legal counsel absent some measure of bad faith on their part. (See, People v Lucarano, supra, at p 145, n 3; People v Fuschino, supra, at p 99; People v Servidio, supra, at p 953; cf. People v Kazmarick, 52 NY2d 322, 328, supra.) It is true, that where the police are guilty of some misfeasance a different result may obtain. So, for example, such knowledge has been imputed by this court where there was a surreptitious effort by the police to accomplish through agents what they could not do directly (see, People v Knapp, 57 NY2d 161,173); where the interrogating officer chose to disregard his correct assumption that defendant had obtained an attorney on an outstanding charge (see, People v Smith, supra); where the police officers’ failure to facilitate access by counsel foreclosed the latter’s communication with defendant (see, People v Garofolo, 46 NY2d 592, 601); where counsel’s efforts to reach defendant were frustrated by police misinformation and inadequate operating procedures (see, People v Pinzon, 44 NY2d 458, 464); and where the police chose to resolve their somewhat questionable doubts against defendant’s having obtained counsel (see, People v Ramos, 40 NY2d 610, 617-618). By contrast, however, constructive knowledge that defendant has an attorney on an unrelated pending matter is not chargeable to the police where they have not thus acted in bad faith or without sufficient deference to defendant’s right to counsel. There is simply no justification for imputing such knowledge where the police have conducted their investigation and questioning in good faith and with due regard for defendant’s rights. (See, People v Lucarano, supra, at pp 147-148; People v Fuschino, supra, at pp 97-100; People v Servidio, supra, at p 953; cf. People v Adams, 53 NY2d 1, 9.)

Under the circumstances presented in this case, there is no reason to impute knowledge nor, therefore, to suppress defendant’s tape-recorded and typewritten statements. At the time defendant was questioned at the station, the interrogating officers had no actual knowledge that defendant was represented by counsel on prior charges. Indeed, they were not even aware that those prior charges were still pending. Moreover, although they knew that defendant had previously been arrested, the earlier charges involved minor offenses of public lewdness, a class B misdemeanor (Penal Law § 245.00), and those charges were each several months old — 5V2 and 6V2 months respectively — more than enough time in which to expect their final disposition. Hence, it was entirely reasonable for the officers to believe that those charges were no longer pending.

Additionally, there is no indication of any misfeasance or deception on the part of the police. Rather, the record shows that the officers specifically asked defendant at least three times whether he wished to contact a lawyer and each time he unequivocally declined. Instead, he volunteered to speak with the police and, moreover, never mentioned having legal representation on the earlier charges or anything about the charges themselves. Further, the courts below found that there was no credible evidence that the officers improperly induced defendant to give his statements or that they discouraged him from seeking counsel, and there is no basis in the record whatsoever that the police avoided knowledge of defendant’s prior legal representation or that defendant’s attorney was in any manner deliberately foreclosed from communicating with him. Rather, the police expeditiously and diligently pursued information on a recent serious felony offense and, in the course of their investigation, conducted an interrogation of defendant while they were wholly unaware that defendant was under pending charges on which he had obtained legal representation, and only after they had dutifully apprised him of all his rights and had obtained his willing and voluntary cooperation. In the absence of some actual knowledge or any bad faith on their part, the police were under no obligation to take additional measures to ascertain whether defendant’s prior unrelated offenses were still pending and whether he was represented thereon by counsel.

With regard to defendant’s final oral statement, his exclamatory outburst to the victim’s mother, no motion to suppress was made at the pretrial hearing. Indeed, the hearing court explicitly inquired whether defendant sought to suppress that statement in addition to the others, and, in response, defendant’s counsel acknowledged that he was making no such motion. As the Appellate Division correctly noted, defendant thereby affirmatively waived any objection he might have raised to the introduction of that statement. (See, People v Schiavi, 64 NY2d 704; People v Corales, 56 NY2d 767.)

Accordingly for the foregoing reasons, the order of the Appellate Division should be affirmed.

Alexander, J.

(dissenting). The majority holds today that in spite of having acquired actual knowledge through his own limited investigation that a defendant has been recently arrested on two prior occasions, an interrogating police officer has no duty to inquire whether or not charges resulting from those arrests are pending and whether defendant is represented thereon by counsel.

Because this ruling, in my view, impermissibly diminishes the right to counsel and countenances an uncounseled waiver of that fundamental right, I respectfully dissent.

The facts of this case are amply set forth in the majority opinion and the several opinions at the Appellate Division. From these circumstances the majority concludes that because defendant’s prior arrests were for public lewdness, considered to be a “minor offense”, and had occurred some five to six months previous, it was “reasonable” for the officer to “assume” that no charges resulting from these arrests were pending and, therefore, that he was under no duty to make any effort to confirm that “assumption” or otherwise to ascertain whether defendant was represented thereon. Nor, the court holds, is the officer chargeable with the information that he would have obtained had the inquiry been made. In so holding, the majority places undue emphasis on the officer’s lack of actual knowledge as to the pendency of the charges and his subjective view of whether the offenses for which the prior arrests were made were “minor” and “remote” in time.

In the seminal cases of People v Rogers (48 NY2d 167) and People v Bartolomeo (53 NY2d 225), we held that uncounseled waivers of a custodial suspect’s right to counsel are ineffective when the police either are aware of the suspect’s representation on pending charges (Rogers, supra) or have actual knowledge of a recent arrest and fail to inquire whether the suspect is still represented in the matter (Bartolomeo, supra). The Bartolomeo rule was later applied in People v Smith (54 NY2d 954) in which we held that where an officer knew that a suspect had been arrested by the same police department eight months earlier on a sodomy charge, “the officer was ‘under an obligation to inquire whether [the suspect] was represented by an attorney’ ” (People v Smith, 54 NY2d 954,956, supra [quoting Bartolomeo, supra, at p 232]). While in Smith, the officer decided “to disregard his correct assumption” that the defendant would be represented on the prior charge, it seems clear that the operative fact, central to the court’s decision imposing the “obligation to inquire”, was the officer’s actual knowledge of the prior charge. The actual knowledge possessed by the officer here, imposed no less an obligation.

“This court has jealously guarded the individual’s * * * right to counsel, demanding that th[is] fundamental right be accorded the highest degree of respect by those representing the State” (People v Rogers, supra, at p 170). Consciousness of the judiciary’s vigilant concern for the promotion of this right was imputed to law enforcement personnel by the Bartolomeo court in charging them with the knowledge that would be gained through minimal efforts to ascertain the status of matters already within their knowledge (see, People v Bartolomeo, supra, at p 231). In imposing a duty on the police to utilize information known to them to assist in effectuating the goal of protecting a suspect’s right to counsel, the court has not compelled them to take “extraordinary measures” that would vitiate this benefit by hampering effective law enforcement (see, People v Lucarano, 61 NY2d 138, 147). Rather, it has burdened the police only to “make a simple inquiry of defendant” (People v Lucarano, supra, at p 147). Such an inquiry in the present case would have revealed, despite Detective Matedero’s contrary assumptions and regardless of whether his assumptions were reasonable, that defendant was represented on pending charges and thus could not, on his own, effectively waive his right to counsel.

In balancing the benefit gained in determining that a suspect is represented by counsel against the de minimis burden imposed on the police to ascertain this information in circumstances where they have actual knowledge of two recent arrests of a suspect by their very same department, any doubt should be resolved by requiring the police to inquire about the status of the prior charges. Although there may be situations where a prior charge is so remote in time as to negate the obligation to inquire as to whether or not it is pending, I cannot agree that this is such a case. Here, the officer neglected to either check defendant’s case jackets, which were readily available, after ascertaining defendant’s recent arrests or to ask defendant prior to the custodial interrogation whether charges were pending. “Failing such an inquiry, the police were chargeable with whatever information the inquiry would have disclosed” (see, People v Lucarano, 61 NY2d 138,146, supra). Should the suspect “den[y] that he is represented on a pending unrelated charge, the police [would be] under no obligation to make further inquiry, so long as it is reasonable to believe the defendant’s disclaimer of representation” (People v Lucarano, supra, at p 148). The State’s concern for the vindication of a defendant’s right to counsel should not depend on the interrogating officer’s subjective evaluation of the severity of the prior charges or their temporal remoteness.

On the facts of this case, defendant’s motion to suppress the tape-recorded and typed confessions should have been granted. Although I agree, that suppression of defendant’s noncustodial confession, and of his statement to the complainant’s mother was properly denied, admission of the two confessions made while in custody cannot be deemed harmless error (see, People v Garofolo, 46 NY2d 592) and requires that the Appellate Division order affirming defendant’s judgment of conviction be reversed, defendant’s motion granted to the extent of suppressing his taped and typewritten confessions, and a new trial ordered.

Chief Judge Wachtler and Judges Simons and Kaye concur with Judge Jasen; Judge Alexander dissents and votes to reverse in a separate opinion in which Judge Meyer concurs.

Order affirmed.