author: Simons, J. Jasen, J.

text:
    The People of the State of New York, Appellant, v P. J. Video, Inc., Doing Business as Network Video, and James Erhardt, Respondents.
    Argued May 1, 1985;
    decided July 5, 1985

      POINTS OF COUNSEL

      Richard J. Arcara, District Attorney (Jo W. Faber and John J. DeFranks of counsel), for appellant.
    I. A local criminal court does not properly have jurisdiction to suppress a search warrant issued by a Justice of the Supreme Court. (People v Skrynski, 42 NY2d 218; People v Romney, 77 AD2d 482; People v Hickey, 40 NY2d 761; Matter of Michelson v Clyne, 84 AD2d 883; People v Sossa, 77 Misc 2d 98; People v Guenther, 77 Misc 2d 643; Matter of Niagara Falls Power Co. v Halpin, 267 App Div 236, affd sub nom. Matter of Niagara Falls Power Co. v White, 292 NY 705; People ex rel. Swift v Luce, 204 NY 478; People v Darling, 50 AD2d 1038.) II. The court below erred in affirming the suppression as a matter of law of evidence obtained pursuant to search warrant. (Marcus v Search Warrant, 367 US 717; Roaden v Kentucky, 413 US 496; Lee Art Theater v Virginia, 392 US 636; United States v Espinoza, 641 F2d 153; People v Abronovitz, 31 NY2d 160; People v Rothenberg, 20 NY2d 35; People v Potwora, 48 NY2d 91; Stanford v Texas, 379 US 476; United States v Beck, 431 F2d 536.)

      Paul J. Cambria, Jr., and Mary Good for respondents.
    I. A local criminal court properly exercises its statutory jurisdiction in suppressing a search warrant which has been issued by a Justice of the Supreme Court. (Matter of De Joy v Zittell, 67 AD2d 1076; People v Fusco, 75 Misc 2d 981; People v Sossa, 77 Misc 2d 98; People v Guenther, 77 Misc 2d 643; Matter of Steinway, 159 NY 250; People v Skrynski, 42 NY2d 218; Legal Aid Socy. v Scheinman, 73 AD2d 411, 53 NY2d 12; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; I.L.F.Y. Co. v

      Temporary State Hous. Rent Commn., 10 NY2d 263; Hotel Dorset Co. v Trust For Cultural Resources, 46 NY2d 358.) II. The court below properly affirmed the decision of the Village Court Justice. (People v Potwora, 48 NY2d 91; Speiser v Randall, 357 US 513; Stanford v Texas, 379 US 476; Marcus v Search Warrant, 367 US 717; People v Rothenberg, 20 NY2d 35; People v Heller, 29 NY2d 319; People v Abronovitz, 31 NY2d 160; Monserrate v Upper Ct. St. Book Store, 49 NY2d 306; People v Bunford, 107 Misc 2d 622; People v Koch Theatre Enters., 114 Misc 2d 266.)
   OPINION OF THE COURT

Simons, J.

This appeal concerns the very basic issue of what information must be contained in an affidavit supporting a search warrant to authorize the seizure of materials which presumptively are entitled to the constitutional protection of the 1st Amendment. It arises from proceedings instituted in the Village of Depew Justice Court charging defendants with six counts of obscenity in the third degree based upon their possession of allegedly obscene video cassette movies in violation of Penal Law § 235.05 (1). That statute provides:

“A person is guilty of obscenity in the third degree when, knowing its content and character, he:

“1. Promotes, or possesses with intent to promote, any obscene material”.

After arraignment, defendants moved to suppress the seized films contending that the warrant authorizing their seizure was not based upon probable cause. Justice Court granted defendants’ motion and dismissed the informations and County Court affirmed its order. The People appeal by leave of a Judge of this court. They contend that the Justice Court, a local criminal court, was without jurisdiction to invalidate a search warrant issued by Supreme Court, a superior court (CPL 10.10 [2], [3]), and that even if it did have the power to review the Supreme Court warrant it erred in finding that the Supreme Court Justice authorized the warrant without probable cause.

Insofar as the jurisdictional question is concerned, the motion was properly entertained by Justice Court. The Constitution provides that local courts “shall have the jurisdiction prescribed by the legislature” (NY Const, art VI, § 17 [a]) and the Legislature has provided that when an information is pending in a local criminal court, as these informations were, a motion to suppress “must be made in such court” (CPL 710.50 [1] [c]). Moreover, Justice Court had such jurisdiction even though the warrant was issued by a Supreme Court Justice. CPL 690.05 provides that warrants shall be issued by local criminal courts but the Supreme Court Justice was authorized to issue this warrant because at the time he did so he was exercising preliminary — not trial —jurisdiction of the local criminal court, as the Criminal Procedure Law permits him to do (see, CPL 10.10 [3] [f]). Thus, Justice Court acted properly when it reviewed his probable cause determination (see, People v Guerra, 65 NY2d 60). Whether it is wise for a Village Justice, who may or may not be a lawyer, to review a Supreme Court Justice’s warrant authorizations is a matter for the Legislature.

Turning to the merits of defendants’ motion, analysis starts with recognition of the constitutional requirement that no warrant shall issue except upon probable cause (NY Const, art I, § 12; US Const 4th Amend). This requirement was designed to insure that the determination of probable cause (or to use the statutory term, reasonable cause [see, CPL 690.10]), to believe that the property is subject to seizure must be made by a neutral magistrate interposed between police officers and the citizenry and exercising a “ ‘detached and independent judgment’ ” (People v Potwora, 48 NY2d 91, 94; People v Hanlon, 36 NY2d 549, 558; Marcus v Search Warrant, 367 US 717). Before finding probable cause, the magistrate must have before him “the full facts from which inferences might be drawn, and information necessary to determine their reliability” and he must undertake a searching inquiry of them. It is a duty which he may not delegate, in part or in whole, regardless of the qualifications of the person on whom reliance is placed (People v Potwora, supra, at pp 94-95; Lee Art Theater v Virginia, 392 US 636; see also, Monserrate v Upper Ct. St. Book Store, 49 NY2d 306; People v Abronovitz, 31 NY2d 160, 164-165; People v Rothenberg, 20 NY2d 35, 38; People v Hughes, 31 AD2d 235). Moreover, in making that searching inquiry the magistrate is obliged to recognize that 1st Amendment items are presumptively protected by constitutional guarantees of free speech (see, Roaden v Kentucky, 413 US 496). Because their seizure based upon the ideas they contain may constitute a prior restraint, there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films, as distinguished from one seeking to seize weapons or drugs, for example (Roaden v Kentucky, supra, at p 504; Marcus v Search Warrant, 367 US 717, 730-731, supra). In applying the 4th Amendment to such items, the court must act with “scrupulous exactitude” (Stanford v Texas, 379 US 476, 481-485; see also, Maryland v Macon, 472 US _, 125 S Ct 2778, 2780-2782).

Consistent with these rules, the task of the issuing magistrate in this case was not to decide guilt or innocence but to determine in a preliminary way from the information submitted and available to him whether there was probable cause to believe that the material to be seized was obscene within the tripartite definition of the statute (see, People v Potwora, 48 NY2d 91, supra; People v Abronovitz, 31 NY2d 160, supra; People v Rothenberg, 20 NY2d 35, supra). Because the record does not indicate whether the magistrate viewed the films or questioned the investigators, we must judge his warrant authorization solely on the allegations contained in the papers submitted to him.

The applications consisted of an affidavit of the Sheriff’s deputy who rented the 10 cassettes from defendants’ store and separate affidavits relating to each film executed by an investigator from the District Attorney’s office who had viewed the films after the deputy delivered them to him for that purpose. In each affidavit the investigator identified the film by title, indicated the time required to view it, 80-90 minutes generally, and described the sexual activity shown in some of the scenes. Each affidavit contained approximately 15-20 typewritten lines describing the film, the descriptions in the two shortest affidavits containing only 11 lines and in the longest one, 27 lines.

Each affidavit recites that the subject film depicts one or more acts enumerated under section 235.00 (1) (b). Many of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard, but the allegations of the affidavits do not indicate whether they constitute all, most or a few of the scenes presented in the films. Thus, some of the affidavits describe only two or three scenes in the movie and others refer to “one scene”, “a scene”, “another scene”, or “a later scene” without any attempt to describe the film as a whole, the continuity of the action or the pervasiveness of the sexual conduct. The descriptions of the action are not supplemented by references to the narrative or dialogue of the films and the affiant attempted to describe the “character” or “theme” of the movies by settings having nothing to do with plot, phrases such as “a middle class white neighborhood”, “the home of one of the six girls” or “a high school for girls.” He made no attempt to reveal the story line (or lack of one) of the films or demonstrate that their “predominant appeal” was to prurient interest. In short, none of the affidavits permit an inference that the scenes described are more than a catalog of offensive parts of the whole. Undoubtedly, similar lists could readily be compiled by excerpting descriptions of scenes from books and movies having recognized merit. Stanley Kubrick’s “Clockwork Orange” and Federico Fellini’s “Satyricon” come quickly to mind.

The dissent contends that this deficiency is cured because the affidavits allege that certain acts occurred “throughout” the movies (dissenting opn, at pp 580-581). Significantly, the word “throughout” appears in only two of the affidavits. But further than that the statements relied upon are conclusory and patently ambiguous. They may be interpreted as alleging that sexually explicit acts are pervasive in the two films described but they may also be interpreted in other, less inculpatory ways. That being so, the magistrate was required to inquire and clarify the affidavits’ meaning and the record does not establish that he did so.

We have previously held that the courts should not analyze applications in a grudging or hypertechnical manner when determining whether they meet constitutional standards (see, People v Hanlon, 36 NY2d 549, 559, supra, and cases cited therein). We do not suggest otherwise now. Certainly a screenplay need not be annexed to a warrant application nor need the issuing magistrate view the film or even a part of it before approving a warrant. There must be enough information before him in one form or another, however, to enable him to judge the obscenity of the film, not of isolated scenes from it. The affidavits, if that is all that is relied upon, need not describe the full content of the movie but they must contain enough information to permit the issuing magistrate, applying contemporary community standards, to judge the films as a whole and determine that they are within the statutory definitions of obscenity and thus are not entitled to constitutional protection. Probable cause cannot be inferred from the title of an hour and a half long film or from the description of a few scenes from it, even when the scenes described portray conduct enumerated in subdivision 1 (b) of the statute. Indeed, it is precisely the type of personal view of the “clear and present danger” posed by obscenity, such as that expressed on page 578 of the dissent, which makes it mandatory that the court insist on the sufficiency of the material before the magistrate and that he take a “hard look” at it, exercising care to adhere to the proper legal standards so that his subjective views or those of the police do not infringe upon the constitutional rights of citizens. It is the failure of the affidavits in this case to contain sufficient information to permit this which distinguishes it from decisions cited by the People, cases such as United States v Espinoza (641 F2d 153, cert denied 454 US 841), in which the supporting affidavits purported to describe every picture in the books to be seized, United States v Sherpix, Inc. (512 F2d 1361), in which the affidavit described in explicit detail every scene in the film {id., at pp 1368-1369), United States v Middleton (599 F2d 1349), in which there was a lengthy affidavit describing the conduct in the film in specific detail {id., at pp 1351-1354), and United States v Marks (520 F2d 913, revd on other grounds 430 US 188), in which the affiants were also examined by the court {id., at p 917).

Accordingly, the order of County Court should be affirmed.

Jasen, J.

(dissenting). In this obscenity case, the majority holds that the five affidavits in question, which describe the content and character of video movies as graphically depicting successive acts of deviate sexual conduct, including incestuous intercourse, oral and anal sodomy, and onanism, are insufficient, as a matter of law, to support a magistrate’s determination of probable cause that those video movies were obscene. Because I believe that the materials ordered seized by the magistrate were adequately described in the affidavits, as set forth in full in the appendix to this opinion,* 1 would hold that the magistrate had “enough information before him” to reasonably believe that the video movies were obscene as legislatively defined and, therefore, that the warrant was properly issued.

At the outset, it is important to note that what is before us is not whether the defendants are guilty beyond a reasonable doubt of promoting or possessing obscene material, as that would require a full adversary hearing, but rather, simply whether the magistrate, in issuing the warrant to seize the movies, had probable cause to believe that they were obscene.

The majority today holds that unless obscenity is unambiguously established by the affidavits in question, a magistrate is incapable of rendering a probable cause determination to issue a warrant for the seizure of sexually explicit films, described in those affidavits, solely for evidentiary purposes. This adopted position has never been advanced by the United States Supreme Court, and has been rejected unanimously by the Federal courts and by an overwhelming number of the sister state courts that have considered it (see, infra, at pp 581 to 583). Thus, in my opinion, the majority has undermined the policies advanced by a rigorous enforcement of the obscenity laws; disregarded traditional principles governing judicial review of a magistrate’s determination of probable cause, and blurred the distinction between probable cause and guilt; failed to recognize that the magistrate had reasonable grounds to believe that the affidavits described the content and character of each movie as a whole; and misconstrued the limited purpose of the warrant.

Defendants Erhardt and P. J. Video, Inc., are each charged with six counts of obscenity in the third degree, a class A misdemeanor. The prosecutions stem from investigations of defendants by the Erie County District Attorney’s office. David J. Groblewski, a confidential criminal investigator assigned to the Erie County District Attorney’s office, and previously a member of the New York State Police for 25 years, reviewed 10 video cassette movies which had been rented from defendants by a member of the Erie County Sheriff’s Department. The 10 video cassette movies were selected from the “Adult Cassette Movie List”, which contained a total of 30 films and was printed upon the letterhead of Network Video, the business name under which defendants conducted business. Investigator Groblewski viewed the movies in their entirety and summarized the theme and conduct depicted in each film. Sworn affidavits describing the movies were submitted by Investigator Groblewski, and annexed to the application for a warrant authorizing the search of defendants’ premises. On November 21,1983, Supreme Court Justice Theodore S. Kasler, issued a search warrant which authorized the Village of Depew Police Department to make a search of defendants’ premises. The warrant specifically authorized a search for the following video cassette movies entitled: “California Valley Girls”, “Taboo II”, “Taboo”, “All American Girls”, “Debbie Does Dallas”, “Body Magic”, “Deep Throat”, “Every Which Way She Can”, “Filthy Rich” and “Little Girls Blue”. The warrant also authorized a search for “any personal papers or documents which tend to identify the owner, leasee [sic] or whomever has custody or control over the premises or vehicle searched or the items seized, and seize said property forthwith”. The warrant was based upon the application of Sergeant Scioli, the affidavit of Erie County Sheriff Deputy Costanza, and 10 affidavits prepared by Investigator David Groblewski.

As a result of the execution of the warrant on November 22, 1983, the defendants’ premises were searched and one or two copies of each of the movies named in the warrant application, together with certain documents, were seized as evidence for trial. A sworn itemized inventory statement, dated December 5, 1983 and completed by Sergeant Scioli, clearly indicates that only one or two copies of each cassette tape named in the warrant application were seized. By order dated December 5, 1983, Justice Kasler directed that the seized property be temporarily retained, in the furtherance of justice, pursuant to CPL 690.05 through 690.55. While the 10 films named in the warrant application were seized, defendants were charged with promoting obscenity only with respect to five of those films, to wit: “Taboo”; “All American Girls”; “Debbie Does Dallas”; “California Valley Girls”; “Taboo II”.

Defendants made an omnibus motion before Depew Village Court seeking, inter alia, suppression of the seized films. A review of defendants’ affidavit in support of the omnibus motion, and arguments of defense counsel advanced at the suppression hearing, reveal that the sole ground upon which defense counsel sought suppression was that due to the magistrate’s failure to personally view the films in question, the warrant was constitutionally infirm. Paragraph 73 of defendants’ affidavit contended: “Thus, it is clear that under New York law before a search warrant may be issued regarding materials presumptively protected under the First Amendment, which the video tapes in this case indisputably are (Interstate Circuit v Dallas, 390 US 676 [1968]; Kingsley Pictures Corp. v Regents, 360 US 684 [1959]; Joseph Burstyn, Inc. v Wilson, 343 US 495 [1952]; Monserrate v Upper Ct. St. Book Store, 49 NY2d 306), two distinct procedures must be engaged in by the issuing magistrate prior to the authorizing a search warrant: (a) the issuing Magistrate must himself personally review the facts (i.e., the materials themselves) upon which he is called to render a judgment of probable cause; and (b) the inquiry must ‘focus searchingly’ on the issue of ‘obscenity’.” Paragraphs 74 and 75 of the affidavit clarified the constitutional flaw perceived by defense counsel: “In this case, it is clear that Justice Kasler did not personally review the video tapes but instead unconstitutionally delegated his duty of examining the full facts regarding the films’ obscenity to various law enforcement officers * * * Here, Judge Kasler allowed Investigator Groblewski to determine whether probable cause existed to believe that the films were obscene — a determination which our Courts have long recognized is a matter of personal taste and must be performed by a neutral and detached Magistrate, not a law enforcement officer [citations omitted].”

At the motion hearing, held on February 15, 1984, defense counsel reiterated the thrust of his argument: “The procedure is, at least in this state, a magistrate, in order to fulfill that constitutional requirement of prior judicial scrutiny and focus upon that issue, has to look at the film or magazines or material in question.” Defense counsel stressed: “Continuously, the Court of Appeals said the magistrate is to look at the particular material”. Finally, defense counsel concluded: “I submit, falling clearly within the doctrine that is the facts, the whole facts have to be presented to the judge and I submit that in this state, at least the law is the judge has to look at the material because otherwise he is delegating his authority, which the Court of Appeals says he can’t do.” The proposition that the magistrate unconstitutionally delegated his responsibility to conduct a full and searching inquiry by relying upon investigator’s affidavits was immediately, and sharply, disputed by the Assistant District Attorney.

By order dated March 23,1984, the Village Court granted the motion to suppress, and held: “In this instance, it was an investigator assigned to the District Attorney’s office who made the allegation that the materials seized were obscene”. The order of suppression was affirmed by County Court, Erie County, upon the theory that “[u]nder the circumstances of this case, the Court finds the holding of the Court below that under New York law, the issuing magistrate had failed to make an adequate finding of probable cause for the issuance of the warrant because he relied solely upon the affidavits of the police officers without any further investigation or viewing of the materials to be confiscated, was not an improvident abuse of discretion.”

I begin my analysis by recognizing that the People of New York, through the Legislature, have declared that the evils of obscenity, reasonably created or advanced by its promotion, justifies such invasion of the freedom of expression as is necessary to avoid the danger presented. Defendants have been charged with multiple counts of promoting obscenity in the third degree (Penal Law § 235.05 [1]). Penal Law § 235.05 (1) provides that “[a] person is guilty of obscenity in the third degree when, knowing its content and character, he [p]romotes, or possesses with intent to promote, any obscene material”. Penal Law § 235.00 defines the word “obscene” in the following manner: “Any material or performance is ‘obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience”. This definition, added by the Laws of 1974 (ch 989), was adopted to conform New York’s definition of obscenity to that articulated by the Supreme Court in Miller v California (413 US 15). (See, Memorandum of Approval, Malcolm Wilson, 1974 McKinney’s Session Laws of NY, at 2124.) As Penal Law § 235.00 was adopted with the express purpose of incorporating into New York law the Federal standard of obscenity set forth in Miller, and indeed is identical thereto, application of that statute necessarily entails interpretation of the Federal guidelines. Thus, it cannot fairly be said that the majority opinion rests upon “bona fide separate, adequate, and independent [state] grounds” (Michigan v Long, 463 US 1032, 1041; compare, New York v Uplinger, 467 US 246 [Per Curiam]).

The legitimate policies vindicated by vigorous enforcement of obscenity laws have been well explored by the Supreme Court. There exists a social interest in order and morality which is advanced by reasonable governmental restraint over the public distribution and sale of obscene movies. (Paris Adult Theatre I v Slaton, 413 US 49, 61; Roth v United States, 354 US 476, 485; Chaplinsky v New Hampshire, 315 US 568, 572.) This State has made a judgment that the promotion of obscenity has a tendency to injure the community as a whole or jeopardize, in Chief Justice Warren’s words, the “right * * * to maintain a decent society”. (Jacobellis v Ohio, 378 US 184, 199 [dissenting opn].) The Legislature does, of course, have the power to make moral, as well as social, judgments. (People v Onofre, 51 NY2d 476, 494 [Jasen, J., concurring].) Such a judgment was rendered by enactment of laws proscribing the promotion of obscene materials. The underlying social and moral purpose of New York’s restriction upon the promotion of obscenity was highlighted by Judge Scileppi, when he stated: “It is regrettable that freedom of expression — one of our most cherished liberties — is perverted by those who profit from the salacious and obscene at the expense of decency and morality, as a spurious rallying cry to defeat the high purpose contained in our obscenity laws. Obscenity is striking a telling blow at community decency and morality everywhere with impunity.” (Scileppi, Obscenity and the Law, 10 NY L Forum 297, 305 [1964].)

New York’s obscenity laws further serve to protect the participants in the visual depiction of sexual conduct. (New York v Ferber, 458 US 747, 764, revg 52 NY2d 674; see, Jacobs, Patterns of Violence: A Feminist Perspective on the Regulation of Pornography, 7 Harv Women’s LJ 5, 18-23.) The Supreme Court has recognized that there exists a qualitative distinction between the visual depiction of sexual conduct and the printed description of such conduct. (New York v Ferber, 458 US 747, 764, supra.) A state has a heightened interest in the regulation of the photographic portrayal of sexual conduct since it is necessarily connected to participatory conduct of actual parties. The visual depiction of sexual conduct presents the real potential for physical and psychological harm to the participants. In California v LaRue (409 US 109,117), the Supreme Court, speaking through Justice Rehnquist, underscored the vital difference between conduct and printed description: “as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the state has declared tó be illegal when such expression consists, in part, of ‘conduct’ or ‘action’”. The regulation of visually depicted obscenity limits the distribution of materials produced by conduct or action harmful to the participants therein. It is thus unrealistic to suggest that the regulation of obscenity is merely to limit the dissemination of offensive ideas. The promotion of obscenity for profit creates and advances a clear and present danger to the participants in the movies, as well as to women generally, resulting from conceivable instances where a viewer of such films seeks, by compulsion, to simulate that which he has viewed. When this court imposes additional burdens upon the magistrate and law enforcement personnel, and thereby disregards the probable cause standards utilized by virtually every other American court, the legitimate policies of protecting the community, the participants in visually depicted obscenity, and women generally, are unnecessarily undermined.

Applying these principles, it is necessary to review whether the magistrate erred in issuing the search warrant. It is unquestioned that in situations in which the materials to be seized may be entitled to protection under the 1st Amendment, the requirements of the 4th Amendment should be scrupulously honored. (See, Zurcher v Stanford Daily, 436 US 547, 564-565; Stanford v Texas, 379 US 476, 485, reh denied 380 US 926; Marcus v Search Warrant, 367 US 717, 732-733.) While it can be said that the Supreme Court has not provided clear guidelines in determining probable cause for obscenity, nevertheless, there is certainty that 1st Amendment due process requires that a focused judicial determination be made of the character of expression prior to seizure. (Marcus v Search Warrant, supra, at p 732; Monaghan, First Amendment “Due Process”, 83 Harv L Rev 518, 522; cf. Maryland v Macon, 472 US _, 105 S Ct 2778, 2782-2783.) The critical question is whether the affidavits were sufficiently detailed to permit the magistrate to focus searchingly on the question of obscenity. In my view, the procedure utilized by the magistrate and law enforcement personnel demonstrated the requisite sensitivity to freedom of expression, and was both reasonable under the circumstances and constitutional.

I am disturbed by the majority’s departure from the traditional principles governing judicial review of a warrant issued upon probable cause. I had thought, as we have repeatedly held, that search warrant applications should be read in a commonsense and realistic manner and not in a hypertechnical manner. (People v Hanlon, 36 NY2d 549, 558-559.) A showing of probable cause requires much less evidence than does a finding of guilt. (United States v Ventresca, 380 US 102.) In dealing with probable cause, as the name itself implies, we deal with probabilities. (New York v Quarles, 467 US_, 104 S Ct 2626; United States v Pryba, 502 F2d 391, 404, cert denied 419 US 1127.) Where the facts set forth in the police affidavits are sufficient in themselves to warrant a man of reasonable caution in the belief that the subject materials are obscene, probable cause exists and the magistrate may properly issue the warrant. (Illinois v Gates, 462 US 213; Carroll v United States, 267 US 132,162.) Concomitant with the traditional deference paid to a magistrate’s determination of probable cause by reviewing courts, we must recognize that our task is not to substitute our judgment as to probable cause but merely to determine whether there was a substantial basis for the magistrate’s determination. (Id.; see also, United States v Fuller, 441 F2d 755, 759.)

I take issue with the majority that the affidavits furnished the issuing magistrate did not describe the essential nature of the movies as a whole. Each of the affidavits describing the films clearly state at the outset that “the content and character of the above mentioned video movie is as follows.” Inasmuch as the magistrate was reviewing affidavits describing movies which were advertised.by defendants as “adult cassette movies”, it was reasonable for him to believe that the affidavits faithfully and accurately described the substance of each movie as a whole. Each affidavit describes the numerous acts of deviate sexual intercourse and the objectification of women occurring in each film which the majority concede to be offensive. Each film is of relatively short duration. Manifestly, the acts described in each movie consume a substantial time span. Thus, the magistrate may reasonably have concluded that the described, successive acts of deviate sexual intercourse pervaded each film. When the title of each movie is considered together with its plot and setting, its general theme and serious value, if any, may reasonably be discerned. The films were described in each of the five nonconclusory affidavits in such a fashion as to permit the magistrate to focus searchingly on the issue of obscenity. Under these circumstances, there was a reasonable basis for the magistrate to authorize the seizure of the films in question.

It is the majority’s view that the affidavits provided the magistrate with insufficient information to determine probable cause for obscenity since the affidavits purportedly do not indicate whether the acts described “constitute all, most or a few of the scenes presented in the films.” (Majority opn, at p 571.) This statement is factually incorrect. First, as noted above, it is clear that each affidavit recited that it described the “content and character” of each movie. This statement provided the magistrate with a reasonable basis to infer that the affidavits described most or all of the activities portrayed in each film. Second, the allegations in two of the affidavits state that the deviant sexual intercourse depicted in each film is pervasive. The affidavit describing “All American Girls” notes that “[throughout the movie, the [six] girls reminisce about their high school days with each one depicting her sexual acts with her male partner.” (A-3; emphasis supplied.) Also, in the affidavit describing the film entitled “Debbie Does Dallas”, it is stated that “[throughout, the movie depicts some lesbianism along with sexual acts of intercourse, fellatio and cunnilingus.” (A-5; emphasis supplied.) The use of the word “throughout” should certainly convey to any reasonable person that all or most of the movie has been described. It could not be more plainly said to permit a reasonable inference that the films predominantly depicted obscene sexual conduct. Any other reading of the affidavits is to substitute this court’s judgment for that of the magistrate and improperly engage this court in a hypertechnical and semantical review of the affidavits.

The decision of the United States Court of Appeals for the District of Columbia in United States v Pryba (502 F2d 391, cert denied 419 US 1127, supra), which the majority expressly declines to follow (majority opn, at pp 572-573, n 4), is the leading Federal case concerning the sufficiency of affidavits submitted to demonstrate probable cause in obscenity cases. In Pryba, defendant was convicted of interstate transportation of obscene matter and possession of such matter with intent to disseminate. On appeal, defendant challenged the search of his premises on the basis that the affidavit underlying the warrant was insufficient to establish probable cause. The magistrate did not personally view the films alleged to be obscene. The description of the films to be seized was set forth in an affidavit which merely stated that: “The above films depict a man and a female engaged in sexual intercourse, and various other sexual activities by males and males and males and females.” (502 F2d, at p 410 [15].) Applying the constitutional test of obscenity as set forth in Miller (502 F2d, at p 404, n 90), and noting that the affidavit “describes, though in good taste briefly, what the films depict” (502 F2d, at p 404) the D. C. Circuit held: “The question before the [warrant issuing magistrate] was whether, on the allegations of the affidavit, there was probable cause for believing that a violation of obscenity laws had occurred. And ‘[i]n dealing with probable cause, * * * we deal with probabilities’; ‘the term “probable cause” * * * means less than evidence which would justify condemnation’. The affidavit stated that the ‘films depict’ not only ‘a man and a female engaged in sexual intercourse’, but also ‘various other sexual activities by males and males’ as well as by ‘males and females’. We have no difficulty whatever in accepting that information as an adequate foundation for a belief by the [warrant issuing magistrate], if persuaded to so believe, that the films might well be adjudged obscene.” (502 F2d, at p 404 [citations omitted; emphasis supplied].) The D. C. Circuit clearly illustrates the proper role of a reviewing court in adjudging a magistrate’s probable cause determination, and rejects the notion, adopted today by the majority in this court, that the supporting affidavit must unambiguously establish obscenity in order to demonstrate a probability that the film is obscene under the Miller test. (See also, United States v Sherpix, Inc., 512 F2d 1361, 1368, 1369 [DC Cir]; United States v Middleton, 599 F2d 1349, 1356, 1358 [5th Cir]; United States v Sherwin, 572 F2d 196,198, n 3 [9th Cir], all of which expressly embrace the Pryba view.)

The recent case of Sequoia Books v McDonald (725 F2d 1091 [7th Cir], cert denied_US_, 105 S Ct 83) is instructive as to the issue at bar. In Sequoia, the Seventh Circuit addressed a claim brought by Sequoia seeking the return of seized magazines and an injunction against future seizures. Certain materials had been seized solely on the basis of a detailed affidavit from a police investigator which described nine magazines. One magazine was thus described: “Magazine entitled ‘Let’s F_’ containing therein pictures describing vaginal intercourse, anal intercourse, eunnilingus and fallatio [sic].” Rejecting defendant’s assertion that the affidavit failed to show probable cause that the seized material was obscene, Circuit Judge Posner, speaking for a unanimous court, stated: “There was, it is true, a possibility that photographs of sexual acts might be redeemed by aesthetic or other values, and hence that the officers might seize constitutionally protected materials. But the possibility was slight. * * * The slight possibility of a temporary suppression of constitutionally protected sex magazines is not enough to invalidate the warrant under the Fourth Amendment.” (725 F2d, at pp 1093-1094.) Sequoia Books, like Pryba, demonstrates the needlessness and irrelevance of the majority’s requirement for mathematical specificity in warrant affidavits submitted at the probable cause stage of an obscenity prosecution. (See also, United States v Christian, 549 F2d 1369 [10th Cir], cert denied 432 US 910; State v Tavone, 482 A2d 693 [RI], cert denied US _, 105 S Ct 1879; People v Hobbs, 59 Ill App 3d 793, 375 NE2d 1367.)

The Federal authorities cited by the majority, which are affirmatively relied upon to demonstrate examples of affidavits containing sufficient information, simply do not support their holding. In United States v Espinoza (641 F2d 153, cert denied 454 US 841 [majority opn, at p 572]), the warrant affidavit was deemed sufficient despite the fact that the 11-line summary of a 36-page magazine failed to indicate whether it encompassed the entire magazine or describe the text accompanying photographs. United States v Sherpix, Inc. (512 F2d 1361, supra [majority opn, at p 572]) merely reiterated the rule set forth by the United States Court of Appeals for the District of Columbia in Pryba, discussed above, and certainly did not require an unambiguous showing of obscenity. In United States v Middleton (599 F2d 1349, supra [majority opn, at p 572]), the affidavit does not purport to summarize every scene, as the majority would here require, and the case relies heavily on Pryba. United States v Marks (520 F2d 913 [majority opn, at p 572]) is of virtually no precedential value since the extremely brief summaries were buttressed by a preseizure obscenity hearing — a procedure never required in New York (see, People v Heller, 29 NY2d 319), and, indeed, the case was later reversed by the Supreme Court (413 US 483).

As a final point, I would note that the scope and execution of the warrant in this case were closely circumscribed to avoid impermissible interference with constitutionally protected expression. The 4th Amendment requirement that warrants particularly describe the item to be seized must be observed with the most scrupulous exactitude when the material to be seized implicates 1st Amendment interests. (Stanford v Texas, 379 US 476, 485, supra.) Strict adherence to the constitutional requirement of particularity eliminates any possibility that the officer in the field will exercise independent discretion and seize materials not judicially determined to be obscene. Ad hoc, nonjudicial determinations of obscenity, made at the site of the seizure, are constitutionally proscribed. (See, e.g., Marcus v Search Warrant, 367 US 717, 731-732, supra.) In this case, however, the particularity requirement was scrupulously honored. The warrant authorized detention of 10 specifically named films which had been individually described in detail in police affidavits. Only those films were ordered detained. Thus, the warrant’s scope was limited and reasonable.

A critical inquiry in a judicial determination as to the constitutional validity of a seizure of presumptively protected materials is the purpose for which the warrant was issued. Seizure may be effected to garner evidence for use in a subsequent criminal proceeding or, alternatively, to suppress and destroy the obscene materials. Where there is a seizure of large quantities of books for the sole purpose of their destruction, a prior judicial determination of obscenity in an adversary hearing is required to avoid abridgement of the public’s right to unobstructed circulation of nonobscene books. (A Quantity of Books v Kansas, 378 US 205, 213; see also, Heller v New York, 413 US 483, 491, supra; Marcus v Search Warrant, 367 US 717, supra.)

Here, however, the purpose of the search of the premises of Network Video and the detention of the 10 films specifically named in the warrant application was solely to secure evidence to aid in the prosecution of defendants for promoting obscenity. There was no actual or constructive “seizure”. As evidenced by the sworn, itemized inventory statement, only one or two copies of each of the films specified in the warrant application were taken during the execution of the warrant. The terms of the. warrant commanded the police officers to enter Network Video and upon finding the named property, “it” was to be detained. In view of the detention of only one or two copies of each film named in the warrant, the executing officer understood the limitations and specificity of the warrant. (See, Stanford v Texas, 379 US 476, 485, supra; Andresen v Maryland, 427 US 463, 493 [Brennan, J., dissenting].) Moreover, there has been no showing that defendants were precluded, by injunction or otherwise, from offering for rental other copies of the movies or restocking their supply of said movies. As in Heller v New York (413 US 483, 490, supra), the films were not subject to any form of “final restraint”. There was no injunction against exhibition or threat of destruction. Rather, one or two copies of each film were merely detained for preservation as evidence (Perial Amusement Corp. v Morse, 482 F2d 515, 525 [2d Cir]). The limited nature of the detention represents a bona fide attempt to strike a proper balance between the need to preserve evidence for use in criminal prosecutions and the right of the public of unobstructed access to nonobscene materials. (See, Sequoia Books v McDonald, 725 F2d 1091, 1093-1094, cert denied_US _, 105 S Ct 83, supra.)

Accordingly, it is my view that the order of County Court should be reversed, the motion to suppress denied, and the case remitted to the Depew Village Court for further proceedings.

Chief Judge Wachtler and Judges Meyer, Kaye and Alexander concur with Judge Simons; Judge Jasen dissents and votes to reverse in a separate opinion; Judge Titone taking no part.

Order affirmed.

APPENDIX

A-l

“TABOO II”

David J. Groblewski, being duly sworn, deposes and says:

I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.

On September 23rd, 1983, I viewed the video tape movie “taboo ii”, which was rented on September 20th, 1983, from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 9:00 A.M. and with several interruptions lasted until 12:12 P.M.

The content and character of the above mentioned video movie: The theme of the movie is a middle-class neighborhood where a home is the place where all the sexual acts are performed. The movie starts with a brother and sister, a white male and white female, fondling each other. The second scene is another house scene where a white male and white female are giving a rubdown to a white female. The sexual acts that follow include cunnilingus and fellatio. There is also intercourse and the scene closes with the male placing his penis between the girl’s breasts and ejaculating into and over her mouth. In another scene there is some incestuous type activity between the brother and the sister where again fellatio and intercourse are performed. At one point during the movie the mother enters the bedroom and observes the two performing the sexual acts and becomes depressed about the situation. In a later scene the son and his mother are on a couch where they become involved in sexual acts of intercourse and fellatio. The movie closes with the mother and father asleep in their bedroom at which time the daughter enters and sleeps next to her father, where they perform incestuous acts of intercourse, and she performs fellatio on her father.

A-2

“CALIFORNIA VALLEY GIRLS”

David J. Groblewski, being duly sworn, deposes and says:

I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.

On September 26, 1983 I viewed the video tape movie “california valley girls”, which was rented on September 20th, 1983, from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 12:00 Noon and lasted until 1:33 P.M.

The content and character of the above mentioned video movie is as follows: Six white females, approximately 18 to 25 years of age, are unemployed and attempt to make a living by becoming prostitutes. The first scene is a bedroom scene where two females are involved in love making, fondling and cunnilingus. The second scene depicts a white male and a white female having intercourse in the back of a van. The third scene is a house scene where six girls, all white females are introduced to the art of love making. One male, approximately 35 years of age, is teaching the girls the art of fellatio with each one of them performing this act on him. The next scene is a bedroom scene in a home where a husband and wife, a white male and a white female, alone with a girl, a white female, perform various sexual acts which include intercourse, fellatio, anal intercourse and cunnilingus. The movie ends with some lesbianism where the wife performs cunnilingus on the girl while she performs fellatio on the husband and they engage in intercourse and anal intercourse.

A-3

“ALL AMERICAN GIRLS”

David J. Groblewski, being duly sworn, deposes and says:

I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.

On September 28th, 1983, Detective Sergeant Vincent Costanza, a Member of the Erie County Sheriff’s Department and I viewed the video tape movie “all American girls”, which was rented on September 27th, 1983 from Network Video, 5868 Transit Road, Depew, New York. This movie was viewed in my office starting at 11:35 A.M., and lasted until 1:00 P.M.

The content and character of the above mentioned video movie is as follows: The theme of the movie is a home of one of six girls, all white females who had previously attended high school and were meeting for a reunion. The first scene is two girls in a room performing acts of lesbianism, namely cunnilingus on each other. They are met by a white male and they perform acts of fellatio on him, have intercourse and all leave the room. Throughout the movie the girls reminisce about their high school days with each one depicting her sexual acts with her male partner. The sexual acts which followed included intercourse, fellatio and cunnilingus.

A-4

“TABOO”

David J. Groblewski, being duly sworn, deposes and says:

I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.

On September 29th, 1983, I viewed the video tape movie “taboo”, which was rented on September 27th, 1983 from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 11:00 A.M. and lasted until 11:55 A.M. and watched again commencing at 1:42 P.M. and lasting until 2:23 P.M.

The content and character of the above mentioned video movie is as follows: The first scene is a bedroom scene where two white females and one white male perform various acts of fellatio, cunnilingus and intercourse. The second scene is a house party scene where many white males and white females are involved in various acts of intercourse, fellatio and cunnilingus. There is also a scene where females perform acts of cunnilingus on each other. The movie portrays at one point a bedroom scene with a white male, the son, laying in bed naked, at which time his mother, a white female enters the room. She makes love to him and incestuous acts of intercourse, placing of the penis between her breasts, ejaculation and cunnilingus are performed.

A-5

“DEBBIE DOES DALLAS”

David J. Groblewski, being duly sworn, deposes and says:

I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.

On October 3rd, 1983, Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department and I viewed the video tape movie “debbie does dallas”, which was rented on September 30th, 1983, by Vincent Costanza from Network Video, 5868 Transit Road, Depew, New York. This movie was viewed in my office starting at 2:50 P.M. and lasted until 4:23 P.M.

The content and character of the above mentioned video movie is as follows: The theme of the movie is a girl moving out west for a change of atmosphere. The first scene is a jail scene where a white female is in jail after she had been put there by the so-called Sheriff, a white male, and she performs fellatio on him. The two then perform intercourse, at which time he removes his pants and ejaculates over her buttocks. The second scene is the ranch, a so-called house of ill repute, a bedroom scene in which a white male and a white female are involved in various sexual acts including fellatio, cunnilingus and intercourse. At the end of the scene the male ejaculates in and over the female’s mouth. The third scene, a bathroom scene, depicts some lesbianism involving three girls. They participate in love making, foreplay and performing cunnilingus on each other. Throughout, the movie depicts some lesbianism along with sexual acts of intercourse, fellatio and cunnilingus.

      . The majority have not adopted defendants’ contentions and therefore the extensive discussion of them in the dissent is irrelevant (see, dissenting opn, at pp 575-576). Similarly unnecessary is the inclusion of the full text of the supporting affidavits in the dissent’s appendix. The majority do not dispute that the affidavits describe patently offensive sexual acts defined by Penal Law § 235.00 (1) (b). Our disagreement with the dissent concerns only the question of whether the affidavits are sufficient to meet the additional requirements of paragraphs (a) and (c) of the statute and thereby support a finding of probable cause that the statute has been violated.

      . Penal Law § 235.00 defines “Obscene” as follows: “Any material or performance is ‘obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience” (see also, Miller v California, 413 US 15, reh denied 414 US 881).

      . The dissent contends that this standard has been “rejected unanimously by the Federal courts and by an overwhelming number of sister state courts that have considered it.” (Dissenting opn, at p 573.) It fails, however, to cite any authority to support this sweeping generalization.

      . The dissent relies on Sequoia Books v McDonald (725 F2d 1091) and United States v Pryba (502 F2d 391). Sequoia Books involved an action brought by a store owner against a Sheriff pursuant to 42 USC § 1983 because of the seizure of allegedly obscene magazines. The opinion gives few particulars of the warrant application, reciting only that part quoted by the dissent (see, dissenting opn, at p 582) which it described as the “least unprintable of the descriptions” (725 F2d 1091, 1093). The 1971 Pryba case involved a prosecution for shipments of obscene materials in interstate commerce under the broadly worded definition of obscenity contained in that statute. The court found probable cause for the seizure in an affidavit based upon hearsay which “in good taste briefly” alleged only that the film depicted “a man and a female engaged in sexual intercourse, and various other sexual activities by males and males and males and females” (United States v Pryba, 502 F2d 391,404, n 89, supra). While delicacy and brevity have a place in the world, one would not consider them important or even desirable considerations on a warrant application. While we accord the Federal courts the greatest respect, we are not bound by their decisions and insofar as Pryba may be interpreted as contrary to our decision, we do not follow it.

      . This inclusion of affidavits is necessary to demonstrate what I believe to be the sufficiency of the information contained therein to support a probable cause determination, and is in accordance with the general practice of the courts which have addressed this issue (see, e.g., People v Hobbs, 59 Ill App 3d 793, 375 NE2d 1367, 1370; State v Tavone, 482 A2d 693, 697-698, n 2 [RI]; United States v Middleton, 599 F2d 1349,1351-1354 [5th Cir]; United States v Pryba, 502 F2d 391,410-411 [DC Cir], cert denied 419 US 1127; United States v Christian, 549 F2d 1369, 1370 [10th Cir], cert denied 432 US 910).

      . It is only by review of defense counsel’s arguments before the suppression court that the holding of the Village Court, that the police investigator made the allegation of obscenity, may be understood.

      . Penal Law § 235.00 (7) defines “sodomy” as any of the types of sexual conduct defined in Penal Law § 130.00 (2). Penal Law § 130.00 (2) defines “deviate sexual intercourse” or “sodomy” as “sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva”.

      . See, The Pornography Victims Protection Act of 1985, Senator Arlen Specter, S 1187,131 Congressional Record, 99th Congress, pp S 6853-6855; see also, Senate Resolution 477, Oct. 13, 1970, 116 Congressional Record 36459-60, whereby the United States Senate, in a 60-5 vote, rejected the majority report issued by the President’s Commission on Obscenity and Pornography which found no relationship between obscenity and antisocial conduct.

      . The majority asserts, without illustration, that the statements utilizing the word “throughout” are “patently ambiguous” and “may also be interpreted in other, less inculpatory ways.” (Majority opn, at p 571.) The word “throughout” is defined by Webster’s Third New International Dictionary as meaning “in or to every part: from one end to the other: everywhere”. The use of the word “throughout” hardly creates or contributes to a patent ambiguity. Instead, it was indeed an attempt to describe the films as a whole, the continuity of the action or the pervasiveness of the sexual conduct.

      . The Supreme Court has noted the special problems associated with the preservation of movies as evidence: “We again take judicial notice that films may be compact, may be easy to destroy or to remove to another jurisdiction, and may be subject to pretrial alterations by cutting out scenes and resplicing reels.” (Roaden v Kentucky, 413 US 496, 505, n 6; Heller v New York, 413 US 485, 493.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Dorothy Treyball, Individually and as Personal Representative of the Estate of Eugene Treyball, Deceased, Appellant, v W. Douglas Clark et al., Respondents, et al., Defendant.
    Decided September 12, 1985
    APPEARANCES OF COUNSEL

      Paul F. McAloon for appellant.

      Kevin M. Loftus for W. Douglas Clark, respondent.

      Vincent J. Aceste and J. Russell Clune for Northern Westchester Hospital Center and Edward McNeil, respondents.

      Robert Abrams, Attorney-General (Robert Hermann of counsel), in his statutory capacity under Executive Law § 71.
   OPINION OF THE COURT

Per Curiam.

On this appeal, plaintiff challenges the constitutionality of Judiciary Law § 148-a (8), which authorizes any party to a medical malpractice action to admit in evidence the unanimous recommendation of a medical malpractice mediation panel as to the question of liability. It is contended that Judiciary Law § 148-a (8) deprives plaintiff of the right to a jury trial on the issue of liability (NY Const, art I, § 2), as well as the right to due process of law (NY Const, art I, § 6; US Const 14th Amend).

Plaintiff’s right to a meaningful jury trial, guaranteed by our State Constitution (art I, § 2) has not been infringed by operation of Judiciary Law § 148-a (8). The role of the medical malpractice mediation panel is to assist — not supplant — the trier of fact in reaching a verdict. (Bernstein v Bodean, 53 NY2d 520, 527.) Under the express terms of the statute, the panel’s recommendation is not binding upon the trier of fact, and is to be accorded only such weight as the trier of fact chooses to ascribe to it (Judiciary Law § 148-a [8]) where such an instruction is requested. (PJI 2:151A, 2:151A.l [1984 Supp].) Admission of the panel’s recommendation interposes no obstacle to a full contestation of the issues, including liability, and the jury (or court when serving as trier of fact) remains the final arbiter of questions of fact raised at trial. (See, Meeker & Co. v Lehigh Val. R. R., 236 US 412, 430; Woods v Holy Cross Hosp., 591 F2d 1164, 1180 [5th Cir 1979] [construing Fla law]; Comiskey v Arlen, 55 AD2d 304, 308-310, affd 43 NY2d 696; Note, Medical Malpractice Mediation Panels: A Constitutional Analysis, 46 Fordham L Rev 322, 331-334.) The unanimous, nonbinding recommendation of the medical malpractice mediation panel serves merely as a guide to the jury, and its admission as evidence does not impermissibly burden or nullify plaintiff’s constitutional right to a meaningful jury trial.

It is further contended that Judiciary Law § 148-a (8) interferes with plaintiff’s substantive right to damages for medical malpractice injuries by permitting the introduction as evidence of a recommendation reached by means of a hearing less formal than a judicial proceeding. (NY Const, art I, § 6; US Const 14th Amend.) This claim should be rejected. If the challenged provision is reasonable in relation to its subject and adopted in the interests of the community, it does not violate substantive due process. (West Coast Hotel Co. v Parrish, 300 US 379, 391.) Only when a law effectuates an arbitrary deprivation of liberty will it violate the substantive due process guarantee. (Nowak, Rotunda and Young, Constitutional Law, at 410.) Judiciary Law § 148-a represents a legislative response to a perceived problem of increasing malpractice rates (Bernstein v Bodean, 53 NY2d 520, 526, supra) and serves to better equip the parties to mediate a settlement, if warranted, and preserve quality health care for residents of New York. Since the challenged statute manifestly has some fair, just and reasonable connection with the promotion of the health, comfort, safety and welfare of society, Judiciary Law § 148-a (8) does not violate plaintiff’s right to due process of law. (Nettleton Co. v Diamond, 27 NY2d 182, 193, appeal dismissed sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; People v Pagnotta, 25 NY2d 333,337.) For the correction of alleged deficiencies in the statutory scheme, plaintiff’s “appeal lies to the ballot and to the legislative processes of democratic government, not to the courts”. (Maresca v Cuomo, 64 NY2d 242, 249.)

We have considered plaintiff’s other contentions and find them to be either without merit or unpreserved.

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

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in Per Curiam opinion; Judge Titone taking no part.

On review of the submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs.


author: Titone, J.

text:
    Gayle H. Aronson, Appellant, v Ronald J. Wiersma, Respondent.
    Decided September 12, 1985

      APPEARANCES OF COUNSEL

      Edward F. Beane for appellant.

      George W. Scapolito for respondent.
   OPINION OF THE COURT

Titone, J.

In this defamation action, plaintiff appeals from an order of the Appellate Division, Second Department, which, by a divided court, reversed an order of Special Term and directed dismissal of the complaint. The issue is whether she has stated a cause of action. We agree with the Appellate Division that she has not, and affirm the order of dismissal.

Plaintiff, who describes herself as a linguist completing studies to earn a Ph.D., was employed by the City of Mount Vernon as a legislative assistant to the Mount Vernon City Council. The City Council terminated her employment by resolution duly passed, and plaintiff thereafter commenced this action, sounding in defamation, against defendant, the City Council President.

The complaint sets forth three causes of action, two sounding in libel, one sounding in slander, all involving incidents transpiring prior to plaintiff’s termination. The causes of action sounding in libel revolve around a letter, dated June 11, 1982, which “expressed dissatisfaction with [plaintiff’s] * * * performance”, explained that certain chores she had been directed to undertake had not been completed, and stated that if these matters were not attended to by a specified council meeting date, she would be terminated. Defendant signed that letter on behalf of the City Council and circulated it to Council Members on two occasions.

The oral defamation allegedly occurred while defendant was having his hair cut. Plaintiff claims that, in the presence of barbers, hair stylists, and others, defendant stated “I’ve got to fire a person * * * one of my workers * * * I can’t get her to hand in time sheets * * * I can’t get her to do anything * * * The person is neglectful in her job *** The person isn’t doing their job * * * I’ve got to let her go * * * That’s it”.

Special Term denied defendant’s motion to dismiss. The Appellate Division reversed, by a divided court, and plaintiff appeals. We now affirm.

Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance (Tracy v Newsday, Inc., 5 NY2d 134; Sprecher v Dow Jones & Co., 88 AD2d 550, affd 58 NY2d 862). The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (see, e.g., Carney v Memorial Hosp. & Nursing Home, 64 NY2d 770; James v Gannett Co., 40 NY2d 415, 419-420; November v Time Inc., 13 NY2d 175,178; Tracy v Newsday, Inc., supra, p 136; Schermerhorn v Rosenberg, 73 AD2d 276).

As a matter of law, the June 11,1982 letter cannot be read as defamatory (Moran v Hearst Corp., 40 NY2d 1071; Mencher v Chesley, 297 NY 94, 100; Wehringer v Allen-Stevenson School, 46 AD2d 641, affd 37 NY2d 864, cert denied 424 US 924). The mere expression of unhappiness with plaintiff’s fulfilling her duties as a legislative assistant is not libelous per se (see, Tufano v Schwartz, 95 AD2d 852; Shaw v Consolidated Rail Corp., 74 AD2d 985; Fink v Horn Constr. Co., 58 AD2d 574; Amelkin v Commercial Trading Co., 23 AD2d 830, affd 17 NY2d 500). The letter also appears to be absolutely privileged for it was written and published by the President of the City Council, a public officer, in the course of official duties (see, Clark v McGee, 49 NY2d 613; Murphy v News Syndicate Co., 12 NY2d 1092; Duffy v Kipers, 26 AD2d 127; 2 NY PJI 119 [1984 Supp]; Ann., 26 ALR3d 492).

The alleged oral utterance made by defendant while he was having his hair cut is similarly not actionable. Aside from the question of whether the statement can be read to be “of and concerning plaintiff” (see, Allen v Gordon, 56 NY2d 780, affg 86 AD2d 514; Julian v American Business Consultants, 2 NY2d 1, 17), it does not, on its face, defame plaintiff in her trade, business or profession and thus does not constitute slander per se, actionable without proof of special damages (Prosser and Keeton, Torts § 112, at 791 [5th ed]). The language, at worst, relates to a “general reflection upon the plaintiff’s character or qualities,” not “a matter of significance and importance” and is not a “defamation of a kind incompatible with the proper conduct of * * * [her] business” (ibid.). Whether or not plaintiff fails “to hand in time sheets” or “is neglectful” is no reflection upon her performance as a linguist or her ability to be a good writer or researcher.

That extrinsic facts could, as plaintiff urges and the dissenting Justice at the Appellate Division implied, render the statement defamatory with respect to plaintiff’s trade, business or profession, is irrelevant. In this State, statements cannot be slanderous per se if reference to extrinsic facts is necessary to give them a defamatory import (Newsday, Inc. v Peck Contr., 87 AD2d 326, 327, appeal dismissed 57 NY2d 885; 2 NY PJI 107 [1984 Supp]).

Plaintiff has not pleaded special damages in her complaint and her effort to do so in her affidavit in opposition to the motion to dismiss, in which she itemized the loss of salary and benefits, does not suffice. Inasmuch as she held her position “at the pleasure of the City Council” and there is no causal connection between the loss of that position and the alleged oral defamation, plaintiff cannot establish special damages as a matter of law (see, Matherson v Marchello, 100 AD2d 233, 235; Prosser and Keeton, Torts § 112, at 797 [5th ed]; Sack, Libel, Slander and Related Problems, VII.2.2, at 345-346; cf. James v Board of Educ., 37 NY2d 891).

For these reasons, the order of the Appellate Division should be affirmed, with costs.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs.


author: Jasen, J.

text:
    Janice Tauber, Respondent, v Melvin Lebow, Appellant.
    Decided September 17, 1985

      APPEARANCES OF COUNSEL

      Morton S. Minsley for appellant.

      Robert Kruger for respondent.
   OPINION OF THE COURT

Jasen, J.

The principal issue presented on this appeal is whether the causes of action for arrears in alimony and child support are barred by the Statute of Limitations.

The parties were married in 1963 and had two children. On December 4, 1970, they executed a separation agreement, the terms of which were incorporated by reference, but not merged, into a Mexican divorce decree entered on February 9, 1971. Plaintiff wife remarried on April 30,1976, thereby terminating her right to receive alimony. The present action claiming alimony and child support arrears and counsel fees was commenced by a complaint stating 11 causes of action. Except for the eleventh cause of action seeking counsel fees, the odd numbered causes of action are grounded on the separation agrees ment and the parallel even numbered causes of action are grounded on the Mexican divorce decree.

By its resettled order, Supreme Court, inter alia, dismissed defendant husband’s affirmative defense of the Statute of Limitations, granted summary judgment to plaintiff on her first, second, third, fourth, ninth and tenth causes of action, dismissed the fifth and sixth causes of action on consent, and directed entry of judgment against defendant in the sum of $80,000 with interest. The court held, in part, that a 20-year limitations period was applicable to plaintiff’s first and second causes of action for arrears and, consequently, rejected defendant’s contention that a six-year limitations barred that portion of plaintiff’s arrears claim. Subsequently, judgment was granted to plaintiff for counsel fees.

The Appellate Division, without opinion, reduced the judgment against defendant to $75,400, but otherwise affirmed the order and judgments of Supreme Court. This court granted defendant leave to appeal. We now modify for the reasons that follow.

Plaintiff’s first cause of action, predicated upon the separation agreement, incorporated into but not merged with a divorce decree, is governed by the six-year Statute of Limitations applicable to contractual obligations. (Galyn v Schwartz, 56 NY2d 969, modfg 77 AD2d 437; CPLR 213 [2].) To the extent that a portion of plaintiff’s claim is for arrears in alimony and child support payments which became due more than six years prior to the commencement of this action, that part of the cause of action is time-barred.

Plaintiff’s second cause of action, predicated upon the foreign divorce decree, is likewise governed by a six-year time limitation. The 20-year Statute of Limitations provided in CPLR 211 for the enforcement of a money judgment is inapplicable. Alimony and child support payments awarded in a divorce decree do not constitute a judgment debt until the arrearages are reduced through further proceedings to a judgment. (See, Mason v Belski, 82 AD2d 939, lv denied 54 NY2d 609; Snow v Snow, 8 AD2d 516; Domestic Relations Law § 244; Family Ct Act § 466 [c] [i].) Rather, because there is no time limitation specifically prescribed by statute, the six-year period provided in CPLR 213 (1) applies. (See also, CPLR 201.) Hence, as with the first cause of action, the claim for any arrearages under the second cause of action which were owing more than six years prior to commencement of this action is time-barred.

CPLR 105 (q) does not require a different result. A “money judgment” is therein defined as “a judgment, or any part thereof, for a sum of money or directing the payment of a sum of money.” If considered in isolation, this definition might appear to encompass a divorce decree incorporating a separation agreement which, in turn, provides for continuing alimony and child support payments. When, however, the definition is viewed in light of the aforecited provisions of the Domestic Relations Law and the Family Court Act dealing with the enforcement of matrimonial decrees, it can be seen, more properly, to apply to a judgment for arrears — i.e., a judgment directing the making of alimony and child support payments which have already accrued. It is such a judgment for arrears, not the divorce decree itself, which is enforced in the “manner provided by law for the collection of money judgments.” (Domestic Relations Law § 244 [emphasis added]; see also, Family Ct Act § 466 [c].) Accordingly, it is a judgment for arrears,, not the mere accrual of arrears under a divorce decree, which has a 20-year limitation period under CPLR 211.

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

For the foregoing reasons, the order of the Appellate Division should be modified and the case remitted to Supreme Court for proceedings in accordance with this opinion.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to appellant, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Frank H. Klein, Appellant.
    Decided May 7, 1985

      APPEARANCES OF COUNSEL

      Robert E. Goldman for appellant.

      Edward J. Kuriansky, Deputy Attorney-General (Bonnie H. Stein of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for reasons stated in the memorandum at the Appellate Division (105 AD2d 805).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    Bernard A. Maitland et al., Appellants, v Trojan Electric & Machine Co., Inc., et al., Respondents.
    Decided May 7, 1985

      APPEARANCES OF COUNSEL

      Michael A. Greco for appellants.

      Joel D. Hanig for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this case, plaintiffs failed to comply with an order of the trial court to answer interrogatories within 30 days of the entry of its order. In response to plaintiffs’ noncompliance, defendants sought an order vacating plaintiffs’ note of issue and certificate of readiness, and an order imposing sanctions for neglecting to comply with the prior disclosure order. Special Term dismissed plaintiffs’ cause of action, but did not indicate whether its order was on the merits. Plaintiffs subsequently commenced a second action alleging causes of action identical to the first action. The second action was met with defendants’ motion to dismiss based, inter alia, upon the doctrine of res judicata. Special Term denied the motion to dismiss. The Appellate Division reversed this judgment and granted defendant’s motion to dismiss, holding the second claim to be precluded. Where, as here, a dismissal of a cause of action occurs prior to the close of proponent’s evidence, the dismissal will not be deemed on the merits so as to preclude the commencement of a second action. (CPLR 5013.) This is not a case such as Strange v Montefiore Hosp. & Med. Center (59 NY2d 737) where plaintiff’s second action constituted an attempt to circumvent an order of preclusion or summary judgment, the function of which is to effectively foreclose proponent’s offer of proof. (See also, Barrett v Kasco Constr. Co., 56 NY2d 830.) Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and defendants’ motion to dismiss the complaint denied in a memorandum.


text:
    In the Matter of the Claim of Michael Lubrano, Claimant, v Christopher Malinet, Doing Business as Chris’ Service Center, et al., Respondents. Workers’ Compensation Board, Appellant.
    Decided May 7, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Howard B. Friedland and Robert Hermann of counsel), for appellant.

      John Kearney for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.

Claimant was a 16-year-old youth employed as a “gas jockey” at a service station when he incurred the injuries for which he seeks compensation. During working hours one day, a fellow employee showed him that it was possible to toss a lighted match into a bucket containing a residue of oil, gasoline and grease without causing an explosion. This “trick” had previously been demonstrated to the fellow employee either by a third employee or by one of the owners of the station.

Two days later, claimant was visited at the station by a friend. During an idle period in which he was waiting for customers or a work assignment, claimant attempted to repeat the lighted match trick in order to impress his friend, but this time the residue in the bucket exploded, causing extensive burns on claimant’s body. The Workers’ Compensation Board determined that claimant’s injuries were the product of “cumulative horseplay” and were thus compensable, but the Appellate Division reversed that decision, holding that the horseplay was an isolated incident of foolery that was not related to claimant’s employment.

Injuries or deaths arising from employee horseplay are compensable under the Workers’ Compensation Law if they result from conduct which “may reasonably be regarded as an incident of the employment” (Matter of Burns v Merritt Eng. Co., 302 NY 131, 135). These commonly known risks of employment occur when employees momentarily abandon work to play, tease, test one another or satisfy their curiosity (Matter of Industrial Commr. v McCarthy, 295 NY 443, 446; Matter of Leonbruno v Champlain Silk Mills, 229 NY 470, 472; Matter of Verschleiser v Stern & Son, 229 NY 192, 199; see generally, 1A Larson, The Law of Workmen’s Compensation § 23). Here, in light of claimant’s youth (see, Matter of Leonbruno v Champlain Silk Mills, 229 NY 470, 472, supra), and the fact that the injury occurred during an idle period and resulted from curiosity about materials related to his work (see, Matter of Piatek v Plymouth Rock Provision Co., 15 AD2d 405; Matter of Miles v Gibbs & Hill, 225 App Div 839, affd 250 NY 590), the Board was warranted in concluding that the incident which caused claimant’s injuries was related to his employment. Furthermore, because there was testimony that at least two other workers at the station had previously engaged in the same conduct, the Board’s determination that it was cumulative horseplay, and not an isolated incident, is supported by substantial evidence.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    Westmount International Hotels, Inc., et al., Appellants, v Sear-Brown Associates, P. C., Respondent.
    Decided May 7, 1985

      APPEARANCES OF COUNSEL

      Harold A. Kurland for appellants.

      Thomas G. Smith for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division dismissing the complaint should be reversed, with costs, and the order of Special Term denying both parties’ motions for summary judgment should be reinstated.

The action is for engineering malpractice in that defendant, retained to advise plaintiffs whether a new ballasted roof could be installed on their hotel, advised plaintiffs that such a roof would not meet requirements of the New York State Building Construction Code and should not be installed. The malpractice alleged is that defendant used but one of two methods of analysis permissible under the Code and failed to inform plaintiffs of the existence of the second. Defendant moved for summary judgment, arguing that a professional does not commit malpractice where he chooses among acceptable alternatives (Schreiber v Cestari, 40 AD2d 1025, 1026; Gielskie v State of New York, 10 AD2d 471, affd 9 NY2d 834; see generally, Topel v Long Is. Jewish Med. Center, 55 NY2d 682). The difficulty with the argument is that its motion papers nowhere state whether its agreement with plaintiffs was written or oral or what the agreement required it to do. If defendant was hired to give its professional judgment as to whether a ballasted roof should be installed, its decision to use the test it considered best and not to inform plaintiffs of any alternatives would not be actionable under the professional judgment rule. But if defendant was hired to determine whether a ballasted roof could be installed under the Code, they would be required under the terms of the contract to inform plaintiffs of the alternative method of analysis which was more likely to produce a favorable finding (cf. Fund of Funds v Andersen & Co., 545 F Supp 1314, 1376). Having moved for summary judgment but failing to tender evidentiary proof in admissible form establishing what its contract with plaintiffs was, defendant was not entitled to summary judgment (Hayes v Riccardi, 97 AD2d 954; see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and order of Supreme Court, Monroe County, reinstated in a memorandum.


text:
    Salvatore Lo Breglio et al., Appellants-Respondents, v Flora S. Marks et al., Respondents, and Jacob H. Schiff Center, Respondent-Appellant.
    Decided May 7, 1985

      APPEARANCES OF COUNSEL

      Carl Radin for appellants-respondents.

      Harold M. Foster and Elliot L. Evans for respondent-appellant.

      Wayne E. Borgeest for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum at the Appellate Division (105 AD2d 621), with costs to the respondents against the appellants and the cross appellant.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye. Taking no part: Judge Alexander.


text:
    In the Matter of David Gentile Nursing Services, P. C., Doing Business as Personalized Care Nursing Services, Respondent. Lillian Roberts, as Commissioner of Labor, Appellant.
    Decided May 7, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Steven Segall and Robert Hermann of counsel), for appellant.

      William J. Gilberti, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and decision of the Unemployment Insurance Appeal Board reinstated for reasons stated in the dissenting memorandum by Justice Paul J. Yesawich, Jr., at the Appellate Division (106 AD2d 763, 765).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    European American Bank & Trust Company, Respondent, v Leonard Masonry, Inc., et al., Defendants, and Irma Burstyn, Appellant.
    Submitted April 8, 1985;
    decided May 7, 1985
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that no substantial constitutional question is directly involved (CPLR 5601 [b]).

Cross motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that movant has failed to file a copy of the record or appendix of the court below or a brief to the Court of Appeals before the statutory return date of the motion (22 NYCRR 500.11).


text:
    Van Wagner Advertising Corp., Appellant-Respondent, v S & M Enterprises et al., Respondents-Appellants.
    Submitted April 15, 1985;
    decided May 7, 1985
   Motion for a stay denied as unnecessary (CPLR 5519 [a]).

Judge Alexander taking no part.


text:
    George V. Whalen, Respondent, v Contracting Plumbers Cooperative Restoration Corporation, Appellant.
    Submitted April 8, 1985;
    decided May 7, 1985
   Motion to dismiss the appeal denied.


text:
    Paquita Negri et al., Appellants, v Stop and Shop, Inc., Respondent.
    Decided May 9, 1985

      APPEARANCES OF COUNSEL

      Eugene J. Adams and Thomas N. O’Hara for appellants.

      Howard Karger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and remitted to that court for consideration of the facts and of other issues not previously addressed.

The record contains some evidence tending to show that defendant had constructive notice of a dangerous condition which allegedly caused injuries to its customer. There was testimony that the injured plaintiff, while shopping in defendant’s store, fell backward, did not come into contact with the shelves, but hit her head directly on the floor where “a lot of broken jars” of baby food lay; that the baby food was “dirty and messy”; that a witness in the immediate vicinity of the accident did not hear any jars falling from the shelves or otherwise breaking during the 15 or 20 minutes prior to the accident; and that the aisle had not been cleaned or inspected for at least 50 minutes prior to the accident — indeed, some evidence was adduced that it was at least two hours.

Viewing the evidence in a light most favorable to the plaintiffs and according plaintiffs the benefit of every reasonable inference (see, Sagorsky v Malyon, 307 NY 584), it cannot be said, as a matter of law, that the circumstantial evidence was insufficient to permit the jury to draw the necessary inference that a slippery condition was created by jars of baby food which had fallen and broken a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy the condition. (Cf. Cameron v Bohack Co., 27 AD2d 362, 365; Torregrossa v Bohack Corp., 81 AD2d 884; Wheeler v Deutch, 242 App Div 641.) Plaintiffs having made out a prima facie case, .it was error to dismiss the complaint. If the jury verdict be deemed by the Appellate Division to be against the weight of the evidence, that court’s power is limited to ordering a new trial. (Sagorsky v Malyon, supra; see also, Imbrey v Prudential Ins. Co., 286 NY 434, 440-441.)

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Jo Bacchetta, Respondent, v James Conforti, Jr., et al., Appellants.
    Decided May 9, 1985

      APPEARANCES OF COUNSEL

      Raymond A. Bragar for appellants.

      Robert J. Rapoport for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (107 AD2d 616).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    The People of the State of New York, Respondent, v Jeffrey Evans, Appellant.
    Decided May 9, 1985

      APPEARANCES OF COUNSEL

      Craig Gurian and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Deborah E. Seidenberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The finding by the courts below that the initial stop of defendant by the police was justified presents a mixed question of law and fact which is beyond the review powers of this court if the evidence at the hearing supported the determination made by the lower courts (People v Harrison, 57 NY2d 470, 477; People v Wharton, 46 NY2d 924, 925).

The evidence adduced at the hearing indicated that the arresting officers, while on routine patrol in an unmarked car in The Bronx, observed defendant running from the 196th Street train station carrying a white shopping bag and looking back over his shoulder several times. Defendant was further observed running south on Grand Concourse, trying to gain entrance to one apartment building, and failing that, continuing on to the next building where he pushed several doorbells in an attempt to gain entrance. There was also evidence that the officers were informed by the superintendent of the building that he did not recognize the defendant as a tenant. Although each factor, standing alone, could be susceptible to an innocent interpretation, a view of the entire circumstances indicates that the officers entertained a reasonable suspicion that the defendant had committed a crime in the subway and was attempting to flee. The initial stop of defendant was based on reasonable suspicion and, therefore, the Appellate Division order should be affirmed.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur; Judge Alexander taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    In the Matter of Linda Fargnoli, Respondent, v Donald Faber, Respondent. Tonni Faber et al., Appellants.
    Decided May 9, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the Rural Legal Rights Foundation, purportedly acting by its attorneys on behalf of infants Tonni and Tammi Faber, are not the authorized legal representatives of such infants.


text:
    In the Matter of Alan Manning Miller, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted March 18, 1985;
    decided May 9, 1985
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division, absent the direct involvement of a substantial constitutional question (NY Const, art VI, § 3; CPLR 5601; Cohen and Karger, Powers of the New York Court of Appeals § 47, at 208).


text:
    Anthony Audino et al., Appellants, v Lincoln First Bank of Rochester, as Executor of James H. Hamill, Deceased, Respondent. (Action No. 1.) Katherine H. Giordano et al., Respondents, v Louis P. Attoma et al., Appellants. (Action No. 2.)
    Decided May 16, 1985

      APPEARANCES OF COUNSEL

      Thomas G. Collins for appellants.

      John W. Branch for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (105 AD2d 1091).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    In the Matter of Ellen M. Larsen, Appellant, v William Canary et al., Constituting the Suffolk County Board of Elections, et al., Respondents.
    Decided May 16, 1985

      APPEARANCES OF COUNSEL

      Alan D. Oshrin for appellant.

      Martin Bradley Ashare, County Attorney (Roy Dragotta of counsel), for William Canary and another, constituting the Suffolk County Board of Elections, respondents, precluded.

      John R. McNulty for Albert J. Krupski, respondent, precluded.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (107 AD2d 809). (See also, Matter of Corrigan v Board of Elections, 38 AD2d 825, affd 30 NY2d 603.)

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    The People of the State of New York, Respondent, v Anthony Gaggi, Appellant.
    Argued April 30, 1985;
    decided May 16, 1985
   Appeal dismissed upon the ground that the Appellate Division’s determination of reversal was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Terri Landon, an Infant, by Her Father and Natural Guardian, Leonard Landon, et al., Plaintiffs, and Marlene Landon, Appellant, v New York Hospital et al., Respondents.
    Argued March 26, 1985;
    decided May 2, 1985

      APPEARANCES OF COUNSEL

      J. Irwin Shapiro, Daniel M. Kolko and Morion M. Berger for appellant.

      Daniel F. Doman, Gary A. Wagner and John P. O’Shea, Jr., for New York Hospital and another, respondents.

      Charles L. Bach, Jr., Luke M. Pittoni and Walter R. Marklein for Donald R. Skog, respondent.

      Harold Kenneth King, Jr., for Virginia E. Pomeranz, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (101 AD2d 489).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Kane. Judge Jasen dissents and votes to reverse in an opinion. Taking no part: Judge Meyer.

Jasen, J.

(dissenting). By its holding today, the majority fails to take cognizance of the independent duty of care flowing from the physicians to the parents by virtue of their professional relationship. The transmission of misinformation to the parents as to the diagnosis of their child’s illness, to wit: bacterial meningitis, interfered with the parents’ moral and statutory duty, and constitutional right, to secure adequate and timely medical care for their seriously ill child. Since there exists a direct duty to the parents independent of that owed by the physicians to the child, appellant’s cause of action seeking damages for emotional harm is cognizable at law.

At the threshold, it is necessary to emphasize that the Legislature has imposed upon the parents of a child the nondelegable affirmative duty to provide their child with adequate medical care (Family Ct Act § 1012 [f], [i] [A]; Matter of Hofbauer, 47 NY2d 648, 654). The determination of the choice of medical care to be administered to the child is the primary responsibility of the parents. (Weber v Stony Brook Hosp., 60 NY2d 208, 211.) By necessity, parents must generally retain the professional services of a physician to advise them in fulfilling their moral and statutory duty to secure adequate medical care for their child. This professional relationship between the retained physician and the parents of a child has thus been described: “a parent, in making the sensitive decision as to how the child should be treated, may rely upon the recommendations and competency of the attending physician if he or she is duly licensed to practice medicine in this State, for ‘[i]f a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment.’ Obviously, for all practical purposes, the average parent must rely upon the recommendations and competency of the attending physician since the physician is both trained and in the best position to evaluate the medical needs of the child”. (Matter of Hofbauer, 47 NY2d 648, 655-656 [citation omitted], supra.) The law of this State compels a parent to seek a physician’s advice when reasonable prudence dictates. (People v Pierson, 176 NY 201, 206.) While this court has in the past recognized the professional relationship between parents and the physician — a relationship to which the child is, prior to the surrender of custody to the physician or hospital, essentially a third-party beneficiary — the majority fails to do so today.

In Johnson v State of New York (37 NY2d 378), we held defendant liable for the emotional harm suffered by plaintiff, where defendant erroneously advised plaintiff of her mother’s death. Liability in Johnson was predicated entirely upon a duty the defendant had undertaken to inform plaintiff of her mother’s status. It is precisely such a duty to inform which was breached in the instant case. Indeed, the duty to advise plaintiffs here is even clearer since there existed a professional relationship between plaintiffs and defendants, and the information sought by the parents was to be utilized to fulfill their statutory and moral duty to secure adequate and timely medical care for their child. In language particularly relevant to this controversy, Chief Judge Breitel noted: “In this case, however, the injury was inflicted by the hospital directly on claimant by its negligent sending of a false message announcing her mother’s death. Claimant was not indirectly harmed by injury caused to another; she was not a mere eyewitness of or bystander to injury caused to another. Instead, she was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital’s breach of that duty”. (Johnson v State of New York, 37 NY2d 378, 383 [emphasis added], supra.) As in Johnson, defendants owed plaintiffs a duty to refrain from transmitting erroneous information and diagnosis concerning the health status of the individual within their care. The misinformation and the tragic events immediately flowing from its receipt were, it is alleged, the proximate cause of plaintiffs’ emotional harm.

This court has noted that, as a matter of policy, the major obstacle to recognition of a cause of action for emotional distress has been the difficulty in defining rational limits of liability. (Lafferty v Manhasset Med. Center Hosp., 54 NY2d 277, 279.) That problem is not herein presented. The law of New York charges parents with the affirmative duty to provide their children with adequate medical care. The perimeter of liability is sharply restricted by statute, and defined by case law, as extending only to parents. Where the law confers upon a party an absolute duty of care, and that party retains professional assistance to fulfill that duty, it is disingenuous to suggest that a direct duty has not been established between that party and the retained professional. Recognizing that the pain suffered by the parents was no less real, nor the duty breached any less clear, than in Johnson, I would reinstate appellant’s causes of action.

Order affirmed, etc.

       Designated pursuant to NY Constitution, article VI, § 2.