author: Fuchsberg, J.

text:
    The People of the State of New York ex rel. Preston Knowles, Appellant, v Harold J. Smith, as Superintendent, Attica Correctional Facility, Respondent.
    Argued September 10, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      Joseph A. Shiffett, Rose H. Sconiers, Robert A. Kagan and David Leven for appellant.
    An alleged parole violator has a right to a prompt final decision from a parole revocation hearing. (People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; Morrissey v Brewer, 408 US 471; People ex rel. Clanton v Smith, 75 AD2d 992; People ex rel. Gonzales v Dalsheim, 76 AD2d 952; People v Staley, 41 NY2d 789.)

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegel of counsel), for respondent.

      I. The Parole Board notified appellant of its revocation decision “as soon as practicable”, and it met all statutory-requirements when appellant and his attorney were given notice of revocation within 50 days of the hearing and the revocation decision was “self-evident” in view of the admitted violation of parole. (People ex rel. Fowler v Warden of Ossining Correctional Facility, 74 AD2d 885; People ex rel. Walker v Hammock, 78 AD2d 369; People ex rel. Klose v Smith, 78 AD2d 944.) II. Due process was not adequately raised below and should not be considered. In any event, appellant has no due process right to notice of a parole revocation decision within any particular period of time. (Tumolillo v Tumolillo, 51 NY2d 790; Matter of Collins v Hammock, 52 NY2d 798; Matter of Wattley v LeFevre, 73 AD2d 748; Morrissey v Brewer, 408 US 471; People ex rel. Gonzales v Dalsheim, 52 NY2d 9; People ex rel, Maggio v Casscles, 28 NY2d 415; People ex rel. Durrant v McKendrick, 30 AD2d 1021, 23 NY2d 643; People ex rel. Eich v Wilkins, 17 NY2d 621.)
   OPINION OF THE COURT

Fuchsberg, J.

In this habeas corpus proceeding, brought by a prisoner to secure his return to parole status, we are called upon to decide whether, under the circumstances presented, the timing and notification of the decision in relator’s final parole revocation hearing accorded acceptably with New York’s regulatory scheme and the strictures of due process.

The issue presents itself in the following factual context:

Relator, Preston Knowles, was sentenced to an indeterminate prison term of 15 years maximum and 5 years minimum following his conviction of robbery in the first degree and sexual abuse in the third degree. The sentence was carried out at Attica Correctional Facility, from which, in due time, he was released to parole supervision. Thereafter, upon violation of the conditions on which the parole was granted, he was returned to prison to continue service of his sentence. Enough time having elapsed, he once again became eligible for parole consideration and, indeed, was restored to parole status. However, only months passed when he was arrested anew, this time on charges of unlawful imprisonment. As a consequence, a parole violation warrant issued and was lodged against him. At- the preliminary parole revocation hearing which was promptly afforded to relator, and at which he was represented by counsel, probable cause was found that he had violated his parole.

Though Knowles then became entitled to a final revocation hearing, he asked for and was granted an adjournment until disposition of the pending criminal charges, in satisfaction of which he eventually elected to plead guilty to the crime of attempted assault. When he thereupon informed the appropriate officials that he was ready for his final revocation hearing to proceed, it was scheduled for and completed on September 20, 1979. No issue is raised as to its timeliness. At its conclusion, the hearing officer estimated that he expected to be able to make his decision in three to four weeks.

At this point in our chronology, it may be well to note that the decision-rendering process which follows a final revocation hearing is not without legislative and regulatory oversight.

Thus, section 259-d of the Executive Law, provides: “A hearing officer conducting such proceeding shall be required to make a written report and a recommendation to the state board of parole. Such recommendation shall thereafter be approved, disapproved or modified by a member or members of the state board of parole in accordance with rules adopted by the board.” And, section 259-i (subd 3, par [f], cl [xi]) of the Executive Law further provides: “If the presiding officer sustains any violations, he must prepare a written statement, to be made available to the alleged violator and his counsel, indicating the evidence relied upon and the reasons for revoking or recommending the revocation of parole, and for the disposition made or recommended”. (Emphasis added.) Finally, 9 NYCRR 8005.20(f) reads: “Notification. As soon as practicable after a violation hearing, the alleged violator a^id his attorney shall be advised in writing of the violation hearing decision, or decision and recommendation, including the reason for the determination and the evidence relied upon.” (Emphasis added.)

These provisions in mind, the record tells us that the first formal notification of the decision took place 41 days after the hearing. In the form of a letter dated November 1 from the Division of Parole, initially it went solely to the attorney for the defendant. While the defendant admits that a copy forwarded to him by the lawyer arrived on November 9, he alleges that the copy of the “Finding of Fact and Recommended Disposition” which the letter recited had been enclosed was not included. Further, while the letter, now some 50 days posthearing, informed its reader that Knowles’ parole had been revoked and that he had been declared ineligible for parole re-release consideration for 15 months, absent the “finding of fact”, it did not state “the reason for the determination” or “the evidence relied upon”, both called for by the Executive Law and the afore-mentioned regulation.

It was against this background and an alleged lack of further information, that, on December 10, 1979, on relator’s pro se application, a writ of habeas corpus issued out of Supreme Court, Wyoming County, against the Attica superintendent to whose charge Knowles by then had been returned. Remarking that the letter to the lawyer, as far as it went, was not the notification to “the alleged parole violator” required by 9 NYCRR 8005.20 (f), and that, by then, the 3 to 4 weeks in which to receive a decision, as predicted by the hearing officer, had already become 11, Knowles alleged a denial of due process and a deprivation of the rights “provided by section 259 of the Executive Law”. He sought as a remedy the annulling of the parole revocation determination and a restoration to parole. Respondent’s return tendered no excuse or justification for the delay. It was while the habeas corpus proceeding was pending before Special Term, that, on December 19, Knowles for the first time personally received a copy of the decisional material from Attica’s institutional parole officer.

On January 23, Supreme Court, finding that, in the absence of any showing of prejudice, “notification of the final determination * * * after a period of three months * * * was not so inordinate as to fall outside the statutory scheme”, dismissed the writ. On, appeal, for its part, the Appellate Division, Fourth Department, one Justice dissenting, affirmed, essentially for the reasons stated by Special Term. On the ensuing rationale, there should be an affirmance.

We begin our analysis with the reminder that, though a parolee’s liberty is a conditional one, it is a “valuable” liberty and, as such, it is within the protection of the Fourteenth Amendment (Morrissey v Brewer, 408 US 471, 480-482). So saying, the United States Supreme Court, though it refrained from “writ[ing] a code of procedure”— a task it believed better left to each State — did not hestitate to explicitly indicate that any such “code” must see to it that, inter alia, the revocation hearing “be tendered within a reasonable time” and that “a written statement by the factfinders as to the evidence relied on and reasons for revoking parole” be provided (Morrissey, supra, at pp 488-489). Nor did this impose on our own jurisprudential thinking, for considerably in advance of Morrissey’s pronouncements came our own declaration that parole revocation “ ‘involves a deprivation of liberty just as much as did the original criminal action and * * * falls within the due process provision of section 6 of article 1 of our State Constitution’ ” (People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376, 382).

Ever since, concordantly, our statutory and administrative legislation has manifested concern for promptness and for accountability. Thus, it directs that a preliminary revocation hearing be afforded a parolee within 15 days after a warrant for retaking and temporary detention has been executed (Executive Law, § 259-i, subd 3, par [c], cl [i]). So, too, a final revocation hearing must be made available within 90 days of the probable cause determination (Executive Law, § 259-i, subd 3, par [f], cl [i]). And, recognizing the spirit of these provisions, we have held that failure to afford these rights in timely fashion will bring vacatur of the warrant and restoration to parole (see People ex rel. Levy v Dalsheim, 48 NY2d 1019, affg 66 AD2d 827).

Pursuing the same track, 9 NYCRR 8005.20 (f) mandates notification of a revocation hearing decision “as soon as practicable”. Since it does not further define this phrase, it seems to us that the word “practicable” puts emphasis on the need to respond to the realties of everyday administration, albeit with continuing alertness to the over-all goal that the notification be accomplished promptly. To test whether that has been done, each case, of course, must be judged on its own facts. It therefore would be foolhardy to attempt now to spell out how varied circumstances and contingencies are to be weighed in determining whether notification was sent “as soon as practicable”.

But it hardly needs saying that these almost always will include, for instance, the complexity and length of a case, since either factor usually will affect the duration of the decisional process. The extent of the delay, of course, is always to be weighed in the balance. So, too, are the validity of the explanations offered, for they may excuse what otherwise would appear to be too long a period. In the end, the test must be practical necessity.

Moreover, because a due process right is grounded on principles more fundamental than estoppel, it is not necessary to demonstrate prejudice to invoke the constitutional protection (cf. People ex rel. Gonzales v Dalsheim, 52 NY2d 9, 14, n 2). Needless to say, for a parolee whose continued liberty is conditional and may be ended by an alleged parole violation, apprehension over delay in handing down the awaited decision will be no small matter (see Morrissey v Brewer, supra, at p 482). This is not to say, however, though actual prejudice is not essential to due process, when the claim is one premised on a statute or regulation alone, its presence should be ignored.

These considerations in mind, it cannot be said as a matter of law that the initial written notification of the decision, when sent to the relator’s counsel on November 1, did not occur “as soon as practicable”. A fortiori, it met the more elastic reasonable time standard of due process. True, the formal revocation hearing was short, being concluded in one day. But, while the plea to the criminal conduct which triggered the issuance of the parole revocation warrant may have simplified the primary issue, responsibility for fixing the appropriate period of time for which Knowles would have to be imprisoned before he again could be considered for parole still remained.

Moreover, in the end, the decision and supportive rationale had to be the work products of both the hearing officer and a parole commissioner, the latter’s review mandated by sections 259-d and 259-i (subd 3, par [f], cl [x]) of the Executive Law. There is nothing stereotyped about the adjudicative tasks on which first the hearing officer and then the commissioner had to embark. As in all such cases, Knowles was required to receive highly individualized attention. Yet, as the record shows, the commissioner completed his review by October 26. Since by this date he would have had to study the minutes, digest the file and dissect the hearing officer’s report and proposed decision, it must be assumed that the hearing officer’s report had reached him earlier that month, which conformed to the estimate the officer himself had given at the conclusion of the hearing. It was with equal expedition that the commissioner, once he completed his work, took only five calendar days, inclusive of an intervening Saturday and Sunday, to finalize the decision, prepare the formal notification and dispatch it to counsel.

We turn now to the relator’s complaint that the Division of Parole did not send written notification of the decision and the basis on which it was arrived to him personally until some six weeks after his lawyer had received it and then only after the writ of habeas corpus had issued. In that regard, we note, first and foremost, that it is notification, not personal notification, that is a requirement of due process. Neither our case law, nor, for that matter, Morrissey, suggests differently. Absent legislation to the contrary, therefore, the general rule is that when a litigant appears by an attorney, notice to the attorney will serve as notice to the client.

In this case, the pertinent statutory provision does not provide otherwise. As we have seen, section 259-i (subd 3, par [f], cl [xi]) of the Executive Law, while it speaks of a written statement, requires no more than that it “be made available” to the alleged violator and his counsel. In legal parlance, the statement would be “available” if, as here, it was transmitted to counsel of record in the matter to which it pertains. It may also be observed that as-of-course availability of copies of statements and of decisions at the request of parolees or to their counsel is unquestioned.

It is instructive, too, and the evidence is unchallenged that, according to the letter of notification which went to relator’s counsel, a copy of the statement was enclosed. True, Knowles, as relator, asserted, without contradiction, that the copy of the letter promptly forwarded to him by counsel did not contain the enclosure. While this was some proof that the copy Knowles received did not include the statement, it does not constitute proof that the original one transmitted by the board to counsel did not. Furthermore, it is of more than passing interest that Knowles, who appeared pro se in the habeas corpus proceeding, neither called counsel as a witness, nor accounted for his absence. He also did not indicate that he had ever inquired of counsel as to the latter’s receipt of the enclosures or, if he had, that he had requested that a copy be forwarded to him. Nor is there any showing of a prewrit demand made directly to the board.

Finally, we come to 9 NYCRR 8005.20 (f). This regulation, presumably adopted by the board in implementation of the statutory scheme it is empowered to enforce, is to be read, if possible, in a manner consistent with, rather than in opposition to, the governing statute (see 2 NY Jur 2d, Administrative Law, § 105; McKinney’s Cons Laws of NY, Book 1, Statutes, § 98). It is also a recognized principle of administrative law that great weight is to be given to an administrative agency’s interpretation of its own regulations (see Matter of Harbolic v Berger, 43 NY2d 102, 109). Applying these interpretive tools, we find that, though the regulation and statute differ semantically in some respects, in their delineation of a policy favoring explicit and accountable decision-making, they speak as one voice in their requirement that decisions and the rationale behind them be in writing.

Presenting a contrast, the language of the statute and the regulation, as they bear on whether personal notification is required — “made available to the alleged violator” versus “alleged violator * * * shall be advised” — are best resolved, it seems to us, by reading the regulation as an announcement, for internal guidance, of a preferred norm for giving notice, which, when otherwise provided in conformity with the statute and due process, as it was in the present case, will not, in and by itself, mandate automatic dismissal of parole violation charges and an automatic restoration to parole status (compare Beattie v New York State Bd. of Parole, 47 AD2d 656, affd 39 NY2d 445, with People ex rel. Levy v Dalsheim, 66 AD2d 827, affd 48 NY2d 1019, supra). This is true in the present case, where the petitioner, having received the copy of the division’s letter forwarded by his counsel, in fact had timely notice of the outcome of the revocation hearing so that his ability to request the detailed report and prepare an application for relief was not unduly curtailed.

For all these reasons, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Meyer concur with Judge Fuchsberg; Judge Jones concurs in result only.

Order affirmed.

       Among factors which may contribute to prejudice a parolee are the four noted by Justice Schnepp in his dissenting opinion below: “ (a) absolute loss of freedom; (b) loss of rehabilitation opportunity; (c) loss of available privileges; and (d) delay or effective loss of right to appeal” (78 AD2d, at p 976; cf. People v Taranovich, 37 NY2d 442, 446-447).


source: Caselaw Access Project

author: Wachtler, J. Fuchsberg, J.

license: Public Domain

text:
    Jeffrey Albala, an Infant by his Parents, Bernard Albala and Another, et al., Appellants, v City of New York et al., Respondents.
    Argued October 15, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      J. Irwin Shapiro, Morris J. Eisen and Stephen C. Glasser for appellants.
    I. A cause of action for tortious injury to a child caused by preconception tortious conduct to the mother is cognizable under the law of. New York. (Woods v Lancet, 303 NY 349; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Williams v State of New York, 18 NY2d 481; Tobin v Grossman, 24 NY2d 609; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Helvering v Hallock, 309 US 106; Basso v Miller, 40 NY2d 233; People v Hobson, 39 NY2d 479; Matter of Eichner [Fox], 73 AD2d 431, mod sub nom. Matter of Storar, 52 NY2d 363; Becker v Schwartz, 46 NY2d 401.) II. The child’s cause of action must accrue at the time the child is born. (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Caprara v Chrysler Corp., 52 NY2d 114; Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340; Dincher v Marlin Fire Arms Co., 198 F2d 821.) III. Neither the Statute of Limitation nor the notice of claim requirement constitute a bar to the child’s cause of action. (Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Matter of Beary v City of Rye, 44 NY2d 398.)

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for respondents.
    I. No cause of action has been, or should be, recognized in this State on behalf of an afterborn child for injuries allegedly caused by tortious injury to his mother prior to his conception. (Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109; Vaccaro v Squibb Corp., 52 NY2d 809; Johnson v State of New York, 37 NY2d 378; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Endresz v Friedberg, 24 NY2d 478; Williams v State of New York, 18 NY2d 481; Nolechek v Gesuale, 46 NY2d 332; Gelbman v Gelbman, 23 NY2d 434; Holodook v Spencer, 36 NY2d 35.) II. The instant claim on behalf of the child is time-barred. (Martin v Dierck Equip. Co., 43 NY2d 583; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Cubito v Kreisberg, 69 AD2d 738, 51 NY2d 900; Durante v Grange Silo Co., 12 AD2d 694; Thornton v

      Roosevelt Hosp., 47 NY2d 780; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Matter of Beary v City of Rye, 44 NY2d 398.)
   OPINION OF THE COURT

Wachtler, J.

The question presented on this appeal is whether a tort committed against the mother of a child not yet conceived gives rise to a cause of action in favor of the child if that tort caused injury to the child during gestation. The Appellate Division determined that no cause of action for preconception tort is cognizable under the law of this State and we agree.

On December 27, 1971, Ruth Albala underwent an abortion at Bellevue Hospital during the course of which her uterus was perforated. In June of 1973 she commenced a malpractice action which was ultimately settled in June of 1979 for $175,000. Jeffrey Albala, the infant plaintiff in the case now before us, was conceived sometime in September of 1975, while his mother’s malpractice case was still pending. He Was born on June 3, 1976, four years after the alleged malpractice and three years before that lawsuit was settled.

This action was commenced on behalf of Jeffrey on September 26, 1978. It is contended that as a result of the alleged malpractice of defendants in negligently perforating Ruth’s uterus, seven years prior to this lawsuit, plaintiff was born with a damaged brain.

Special Term granted defendants’ motion for summary judgment and the. Appellate Division affirmed with one Justice dissenting. The simplicity with which the issue presented on this appeal may be stated: whether a cause of action lies in favor of a child for injuries suffered as a result of a preconception tort committed against the mother, belies both the delicate nature of the controversy and the analysis required to reach a just and proper resolution. We are of the opinion that the recognition of a cause of action under these circumstances would require the extension of traditional tort concepts beyond manageable bounds and therefore agree with the Appellate Division that the complaint was properly dismissed,.

It is clear from a review of our prior decisions that we are presented with a question of first impression in this State. The instant case differs significantly from Woods v Lancet (303 NY 349) where we upheld a cause of action on behalf of a child for prenatal injuries incurred in útero as a result of a tort committed against the child’s mother during her pregnancy. In that case at the time the tort is committed there are two identifiable beings within the zone of danger each of whom is owed a duty independent of the other and each of whom may be directly injured.

Park v Chessin (46 NY2d 401), although instructive, is similarly distinguishable from the case at bar. There, Hetty Park gave birth to a child afflicted with polycystic kidney disease who died five hours after birth. The Parks then consulted with an obstetrician who had treated Mrs. Park during her first pregnancy to determine the likelihood of reoccurrence in a subsequent child. They were advised that the disease was not hereditary and that the probability of conceiving a second child afflicted with the disease was “practically nil”. Hetty Park subsequently gave birth to a second child afflicted with the disease who died within two and one-half years of birth.

In Park we refused to recognize a cause of action asserted on behalf of the second child on the basis of the allegations that had the negligence not occurred the afflicted child would never have been conceived, or if conceived the pregnancy terminated. We stated that a cause of action for “wrongful life demands a calculation of damages dependent upon a comparison between, the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make” (46 NY2d, at p 412 [citations omitted]).

Park is therefore distinguishable from the instant case for here, assuming the allegations in the complaint to be true, had the alleged negligence not occurred and Ruth Albala’s uterus not been perforated, plaintiff would have in all likelihood been born normal. Here, the defendants’ alleged negligence made the difference between life in an impaired state and life in an unimpaired state, whereas in Park the alleged negligence made the difference between life in an impaired state and nonexistence.

Yet the teaching of Park is not altogether inapposite, for in that case we isolated the central concern which inevitably brings us to the difficult conclusion we reach today. We noted in that case that there is no predicate at common law or in our statutes for judicial recognition of the birth of a defective child as an injury to the child. We noted the staggering implications of any proposition which would honor claims assuming the breach of an identifiable duty for less than a perfect birth and by what standard and the difficulty in establishing a standard or definition of perfection (46 NY2d, at p 411). We recognized then, as we do now, that when faced with a novel cause of action sentiment should be put aside and the law must establish the rules ascribing liability in a manner which avoids the drawing of artificial and arbitrary boundaries (Howard v Lecher, 42 NY2d 109).

We are not unmindful of the point made by the dissent below and by plaintiff on this appeal that at the time Ruth Albala underwent an abortion in 1971 it was foreseeable that she would again conceive and that the health of children born thereafter could be adversely affected by damage to her uterus. We disagree, however, that this foreseeability alone established a duty to plaintiff on the part of defendants. We determined long ago in a case involving policy issues as sensitive as the ones at bar that foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability (Tobin v Grossman, 24 NY2d 609, 615-616; see Pulka v Edelman, 40 NY2d 781, 785).

Thus, were we to establish liability in this case, could we logically preclude liability in a case where a negligent motorist collides with another vehicle containing a female passenger who sustains a punctured uterus as a result of the accident and subsequently gives birth to a deformed child? Unlimited hypotheses accompanied by staggering implications are manifest. The perimeters of liability although a proper legislative concern, in cases such as these, cannot by judicially established in a reasonable and practical manner.

As a final consideration, it is worth noting that the recognition of a cause of action under the circumstances of this case would have the undesirable impact of encouraging the practice of “defensive medicine”. A physician faced with the alternative of saving a patient’s life by administering a treatment involving the possibility of adverse consequences to later conceived offspring of that patient would, if exposed to liability of the magnitude considered in this case, undoubtedly be inclined to advise against the treatment rather than risk the possibility of having to recompense a child born with a handicap. Accordingly, society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger.

While the temptation is always great to provide a form of relief to one who has suffered, it is well established that the law cannot provide a remedy for every injury incurred (Howard v Lecher, 42 NY2d 109, supra). In defining the common law, it is this court’s duty to consider the consequences of recognizing a novel cause of action and to strike the delicate balance between the competing policy considerations which arise whenever tort liability is sought to be extended beyond traditional bounds.

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

Fuchsberg, J.

(dissenting). As the majority acknowledges, the facts pleaded in this case of first impression meet the essential negligence law prescriptions of foreseeability and causation (see Sewar v Gagliardi Bros. Serv., 51 NY2d 752, 758-759, and cases cited thereat [concurring opn]). And, unlike in Park v Chessin (46 NY2d 401, 411-412, 416 [majority opn and concurring opn]), where damage to the child was unascertainable, here we must assume that defendants’ alleged negligence made the legally demonstrable difference between life in an impaired state and life in an unimpaired state. In this connection, it is well to remember the traditional tort rule that the “person responsible for the injury must respond for all damages resulting directly from and as a natural consequence of the wrongful act according to common experience and in the usual course of events, whether the damages could or could not have been foreseen by him” (Steitz v Glifford, 280 NY 15, 20; see 9 Fuchsberg, Encyclopedia New York Law, Damages, § 41).

Yet, the right to recover is now denied because of the novelty of this ground-breaking suit, the possibility that it will lead to an unknown number of similar claims and on other policy grounds. Such alarums, which cut across what conceptually would otherwise be meritorious and legally cognizable cases, are, it seems to me, best addressed to the Legislature. All the more is this so since experience has proved that the prophesies of ’ doom and gloom rarely, if ever, come to pass (see, e.g., discussions in Judge Desmond’s opn in Woods v Lancet, 303 NY 349; and Judge Keating’s dissent in Tobin v Grossman, 24 NY2d 609, 619-621).

I also add a word about the undocumented fear that the pressing of such suits, presumably no matter how just, would lead to the practice of “defensive medicine”. If that means more careful medicine, such as takes place when second surgical opinions are obtained, it would appear to be all to the good. I cannot believe it implies that physicians worth their salt would do other than what is best for their patients.

Chief Judge Cooke and Judges Jasen, Gabrielli and Jones concur with Judge Wachtler; Judge Fuchsberg dissents and votes to reverse in a separate opinion; Judge Meyer taking no part.

Order affirmed.

       Although three cases in other jurisdictions have recognized the validity of a cause of action for preconception tort, we find these eases unpersuasive. Two of these cases, Bergstreser v Mitchell (577 F2d 22) and Renslow v Mennonite Hosp. (67 111 2d 348) were decided on policy grounds based largely on a misplaced reliance upon precedent in prenatal injury cases which, as we noted above, are inapposite. Moreover, both the Bergstreser and Renslow courts relied in part on the Special Term holding in Park v Chessin (88 Mise 2d 222) which was expressly overruled by this court.
      The third preconception tort case relied on by plaintiff and the dissent below, Jorgensen v Meade Johnson Labs. (483 F2d 237), was decided on a products liability theory for which there is strict liability without fault. Under a products liability theory, once a defect in manufacture or design is established or there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care (Codling v Paglia, 32 NY2d 330). Accordingly, the necessity of establishing manageable bounds for liability is conspicuously absent. Since Jorgensen was not therefore concerned with the policy issues presented in the instant appeal, any reliance thereon is misplaced (see, also, Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke LJ 1401, 1436, 1438).


author: Per Curiam.

text:
    Raymond R. Lafferty, as Administrator of the Estate of Anna E. Lafferty, Deceased, Plaintiff, and Helen M. Lafferty, Appellant, v Manhasset Medical Center Hospital et al., Respondents.
    Argued October 13, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      John B. Amrod and Michael J. Creighton for appellant.
    I. Plaintiff Helen M. Lafferty, as a participant in the rendering of aid to the victim of an alleged medical malpractice, is entitled to recover damages for injuries sustained as a result thereof under traditional negligence theories. (Palsgraf v Long Is. R. R. Co., 248 NY 339; Johnson v State of New York, 37 NY2d 378; Battalla v State of New York, 10 NY2d 237; Tobin v Grossman, 24 NY2d 609.) II. Plaintiff Helen Lafferty is entitled to prove her case under a danger invites rescue theory. (Wagner v International Ry. Co., 232 NY 176.)

      Howard S. Davis and Barry M. Hoffman for respondents.
    I. A witness to a personal injury accident may not recover for alleged emotional harm sustained as a result of viewing such accident even if the witness thereafter aids the accident victim. (Tobin v Grossman, 24 NY2d 609; Howard v Lecher, 53 AD2d 420; Becker v Schwartz, 46 NY2d 401; Vaccaro v Squibb Corp., 52 NY2d 809; Bessette v St. Peters Hosp., 51 AD2d 286; Palsgraf v Long Is. R. R. Co., 248 NY 239; Pulka v Edelman, 40 NY2d 781; Johnson v State of New York, 37 NY2d 378; Provenzo v Sam, 23 NY2d 256.)
    II. The facts of this case do not warrant an extension of tort law to allow for recovery by a witness/bystander of injuries allegedly sustained because of malpractice committed on someone else.
   OPINION OF THE COURT

Per Curiam.

The third and fourth causes of action of plaintiffs’ complaint arise out of an alleged medical malpractice by the defendant Manhasset Medical Center Hospital in transfusing mismatched blood into Anna E. Lafferty who was a patient at the hospital. The plaintiff Helen M. Lafferty was the daughter-in-law of Anna and brings these causes of action in essence, to recover for the emotional distress and the aggravation of a pre-existing heart problem. She alleges that she suffered these conditions as a result of her having been a witness to the negligent blood transfusion and a participant in the events that occurred during the period immediately following the start of the transfusion.

The Appellate Division dismissed the third and fourth causes of action on the ground that they failed to state a cause of action (CPLR, 3211, subd [a], par 7) and we affirm.

The complaint relates an unfortunate incident but does not establish a cause of action cognizable at law. There is no allegation that the defendant hospital was negligent with respect to the plaintiff, as opposed to her monther-in-law. Neither does the plaintiffs’ complaint fit within the recognized limits of the rescuer doctrine (Wagner v International Ry. Co., 232 NY 176). We have never held that a rescurer can recover for psychic injury sustained only as the result of observing the person he or she intended to rescue suffer from the defendant’s negligence.

In essence the case merely represents another effort to extend existing principles of law so as to expand the liability of the negligent actor to include third parties who suffer shock as a result of direct injury to others (Tobin v Grossman, 24 NY2d 609; Howard v Lecher, 42 NY2d 109; Becker v Schwartz, 46 NY2d 401; Vaccaro v Squibb Corp., 52 NY2d 809). As we noted in the Tobin case, the major obstacle to recognizing this theory of recovery is that “there appears to be no rational way to limit the scope of liability” (Tobin v Grossman, supra, p 618). The need for a rationally circumscribed rule of law is not satisfied by the limiting factors suggested in this case.

The fact that the plaintiff in this case made some effort to save her mother-in-law with the acquiescence or even active encouragement of the defendant is, like the mother’s proximity to the accident in Tobin, “quite inconsequential for the shock more likely results from the relationship with the injured party” (Tobin v Grossman, swpra, p 618). Indeed under the theory proposed those who are most closely related to the injured party, and thus most likely to suffer an immobilizing shock, would as a result of that very inability to act be denied recovery while those with little or no prior emotional attachment would be entitled to recover simply because they still possessed the presence of mind to offer some assistance, spontaneously or in response to the defendant’s urgings, however ineffectual.

Our recent decision in Johnson v State of New York (37 NY2d 378) holding the defendant liable for erroneously informing the plaintiff of her mother’s death, does not represent an abandonment of these concerns. That case did not involve an extension of the defendant’s liability for negligently injuring or causing the death of the plaintiff’s mother, who had not been injured by the defendant and was not in fact dead. Liability was based entirely on a duty the defendant had undertaken to inform the plaintiff of her mother’s status. That duty was owed directly to the plaintiff and was breached when the defendant erroneously informed the plaintiff that her mother had died. Although it was also noted in that case that injury to the plaintiff was foreseeable, that alone is not sufficient to establish liability when, as here, there is no showing of any duty owed to the plaintiff (see, e.g., Tobin v Grossman, supra, p 615; cf. Pulka v Edelman, 40 NY2d 781, 785).

Nor does our decision in Matter of Wolfe v Sibley, Lindsay & Curr Co. (36 NY2d 505) mandate a contrary result. In that case recovery was allowed solely on the policy considerations underlying the Workmen’s Compensation Law (Johnson v State of New York, 37 NY2d 378, 383, supra). Liability was predicated on the legal relationship between the parties arising out of the fact of employment not that arising out of any alleged tortious conduct.

In sum, any extension of the defendant’s liability for negligence to include emotional harm to third parties is not reasonably circumscribed by limiting recovery to would-be

rescuers or even rescuers recruited by the defendant, as opposed to volunteers. Whether applied to street accidents or negligence in the hospital, a rule of law which would permit recovery for emotional harm to the helpful bystander but withhold it from the victim’s closest relatives who may be helpless because remote from the scene or, ironically, stunned by its impact, offers neither a rational nor a practical limitation on liability to third parties for unintended fault.

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order affirmed.


text:
    In the Matter of Hime Y., a Child Alleged to be Permanently Neglected. Jewish Child Care Association et al., Respondents; Elaine S. Y., Appellant.
    Argued October 21, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      A. Isadore Eibel for appellant.
    I. The proof was insufficient to establish failure to plan. II. The termination ordered because of the mother’s present mental illness was reversible error. (Matter of Hime Y., 52 NY2d 242.)

      Gerald E. Bodell and David H. Berman for Jewish Child Care Association, respondent.
    I. The allegation in the petition that appellant failed to plan for the future of the child is supported by a fair preponderance of the evidence in the record. (Matter of Orlando F., 40 NY2d 103.) II. The agency exercised diligent efforts to strengthen and encourage the parental relationship. (Matter of Ray A. M., 37 ÑY2d 619; Matter of Karas, 59 AD2d 1022Matter of Seith “SS”, 66 AD2d 914; Matter of Joyce A. R., 52 AD2d 882.) III. Appellant mother was physically and financially able to care for this child. (Matter of Stephen B., 60 Misc 2d 662, affd sub nom. Matter of Behrman, 34 AD2d 527; Matter of Klug, 32 AD2d 915, reh sub nom. Matter of Clear, 65 Misc 2d 32.)

      Janet R. Fink and Lenore Gittis for Law Guardian.
    I. The determination of the court below that appellant failed to plan for the future of her child, within the meaning of section 384-b (subd 7, par [a]) of the Social Services Law, should be affirmed. (Matter of Stephen B., 60 Misc 2d 662, affd sub nom. Matter of Behrman, 34 AD2d 527 ) Matter of Klug, 32 AD2d 915, reh sub nom. Matter of Clear, 65 Misc 2d 323; Matter of Orzo, 84 Misc 2d 482.) II. Respondent agency exercised diligent efforts to encourage and strengthen the parental relationship. (Matter of Ray A. M., 37 NY2d 619; Matter of Ikem B., 73 AD2d 359; Matter of Amos HH, 59 AD2d 795; Matter of Joyce A. R., 52 AD2d 882; Matter of Nicolle “RR”, 51 AD2d 823.) III. Appellant failed substantially and continuously for more than one year to plan for the future of her child. (Matter of Orlando F., 40 NY2d 103; Matter of Ikem B., 73 AD2d 359; Matter of Seith “SS”, 66 AD2d 914; Matter of Davina M., 68 AD2d 531; Matter of Diana S., 68 AD2d 915; Matter of Paul D’A., 56 AD2d 846; Matter of Terry. “D.”, 53 AD2d 957; Matter of Orzo, 84 Misc 2d 482; Matter of Stephen B., 60 Misc 2d 662, affd sub nom. Matter of Behrman, 34 AD2d 527.)
   OPINION OF THE COURT

Per Curiam.

The issue on this appeal is whether respondent’s child, Hime, was shown to be a “permanently neglected child” within the meaning of subdivision 7 of section 384-b of the Social Services Law, because respondent failed for a period of more than one year following the date the child came into the care of an authorized agency “substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship” (subd [a]).

Hime was born on March 10, 1975. She was placed temporarily with the Jewish Child Care Association on April 9, 1975 and on July 8, 1975, after the Family Court determined that she was a neglected child, was plafced with that agency for one year. Respondent was in Bellevue Hospital from April 1, 1975 until June 26, 1975. The proceeding to terminate her parental rights was begun July 22,1976, the petition alleging both mental illness and permanent neglect.

The Family Court Judge found that there had been- no failure to plan and characterized the agency’s efforts as begrudging (92 Misc 2d 652, 655, 657), although his comments in his first opinion, and in the course of a dispositional hearing held a year later, suggest that the root of his findings was the conflict inherent in the agency’s being required to work with the foster parent while at the same time being supportive of the mother rather than the agency’s lack of diligent effort, as that term is defined by section 384-b (subd 7, par [f]). Though he found no mental illness within the meaning of the statute, the Family Court Judge awarded custody to the foster parents on a no-fault best interests basis. The Appellate Division modified on the law and the facts, granted so much of the petition as sought termination of respondent’s parental rights on the basis of her mental illness, and remanded for further proceedings.

On appeal to us, we reversed the Appellate Division’s mental illness finding on the law, because the evidence was insufficient to show incapacity “for the foreseeable future” as required by section 384-b (subd 4, par [c]) of the Social Services Law. On remand the Appellate Division found permanent neglect, concluding that respondent did not take any affirmative measures to plan, that the caseworker did make diligent efforts to encourage and strengthen the parental relationship and that respondent was physically and financially able to plan for Hime’s future. The present appeal is from its order granting the petition on the permanent neglect ground. We affirm.

Section 384-b of the Social Services Law carefully balances the interest of a child in foster care not to “experience [an] unnecessarily protracted [stay] in such care without being adopted or returned” (subd 1, par [b]) with the parents’ interest in continuing the parent-child relationship (subd 1, par [a], els [i], [ii], [iii]). It spells out the grounds upon which parental rights may be terminated and the child freed for adoption (subd 4), the burden of proof with respect to each ground (subd 3, par [g]) and the elements of each ground that must be proved (subds 5, 6, 7). On the question of failure to plan, it directs that the plan “must be realistic and feasible, and good faith effort shall not, of itself, be determinative” (subd 1, par [c]), but also provides in subdivision 7 (par [d], cl [iii]) of section 384-b that institutionalization “shall not interrupt, but shall not be part of, a period of failure to * * * plan for the future of a child.” Thus, respondent’s mental illness bears on the present appeal only in the measurement of the one-year period, which runs to June 26, 1976, one year after respondent’s discharge from Bellevue.

In light of the disagreement between the courts below, this court reviews the record to determine which, findings conform to the weight of the evidence (Grant Co. v Srogi, 52 NY2d 496, 511; Rorie v Woodmere Academy, 52 NY2d 200, 204; see Matter of Ray A. M., 37 NY2d 619, 623; Cohen and Karger, Powers of the New York Court of Appeals, p 485).

After careful review of the record, we conclude that the weight of the evidence is with the Appellate Division’s findings. As it noted, on the issue of financial ability respondent not only refused to provide details, thus giving rise to an unfavorable inference, but also testified that she had always supported herself. Clearly, she also had “physical ability” to plan within the meaning of the statute (Matter of Hime Y., 52 NY2d 242, 251; Social Services Law, § 384-b, subd 7, par [d], cl [iii]). On the issues of respondent’s failure to plan and the agency’s diligent efforts, the agency caseworker’s testimony sufficiently established both. While the caseworker was required by the statute to work with both the natural parent and the foster parent, the record contains nothing, other than respondent’s testimony, to suggest that the agency acted in the interest of the latter rather than the former. In concluding that the weight of evidence is with the Appellate Division’s findings, we note respondent’s hostility to all of the caseworkers assigned to Hime’s case as indicated by her testimony and by the Trial Judge’s comments, her refusal to furnish information concerning treatment or employment despite advice that it bore importantly on her right to return of the child (cf. Matter of Leon RR, 48 NY2d 117, 125, supra), and file notations of similar hostility to others who appeared to respondent to be frustrating her desires. On the entire record, therefore, we find the weight to be with the Appellate Division’s conclusions.

For the foregoing reasons, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order affirmed.

       But compare Matter of Leon BR (48 NY2d 117, 126) : “These duties, however, are by no means contradictory; indeed, they are complementary.”


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v David Ortiz, Appellant.
    Argued October 13, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      Brian Sheppard, and William E. Hellerstein for appellant.
    I. Appellant was deprived of his right to due process and to confront the witnesses against him when the prosecutor was permitted, over defense objection, to inform the jury that he had elicited the stenographically recorded confession from appellant. (Berger v United States, 295 US 78; People v Lovello, 1 NY2d 436; People v Puglisi, 44 NY2d 748; People v Carter, 40 NY2d 933; People v Carborano, 301 NY 39; United States v Birdman, 602 F2d 547, 444 US 1032; United States v Puco, 436 F2d 761, 414 US 844; People v Duncan, 13 NY2d 37; Greenberg v United States, 280 F2d 472; People v Tassiello, 300 NY 425.) II. Appellant was deprived of his right to confront the witnesses against him when the court, over objection, effectively permitted the police to testify that two informers not produced at trial had heard appellant make inculpatory statements. (Moore v United States, 429 US 20; People v Ross, 79 AD2d 666; People v Tufano, 69 AD2d 826.)

      Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. II. The trial prosecutor’s conduct was not an issue at trial, so there was no danger that he would become an unsworn witness. The court therefore soundly exercised its discretion when it denied defendant’s motion for a mistrial. (People v Paperno, 77 AD2d 137; Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1; Matter of Napoli v Supreme Ct. of State of N. Y., 33 NY2d 980, cert den sub nom. Napoli v New York, 417 US 947; People v Brown, 48 NY2d 921; People v Duncan, 46 NY2d 74, 442 US 910; People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22.) III. The hearsay testimony about which defendant complains did not incriminate defendant in the commission of the murders, was elicited by defense counsel, and was, in any event, harmless. (People v Jackson, 39 NY2d 64; People v AlKanani, 33 NY2d 260; People v Beyer, 25 NY2d 833; People v De Renzzio, 19 NY2d 45.)
   OPINION OF THE COURT

Gabrielli, J.

Defendant was convicted of three counts of murder in the second degree (Penal Law, § 125.25), one count of robbery in the first degree (Penal Law, § 160.15) and one count of burglary in the first degree (Penal Law, § 140.30). His convictions were affirmed by the Appellate Division, without opinion. On this appeal, defendant seeks reversal of his convictions on the basis of the prosecutor’s actions at the trial, which are claimed to have made him an “unsworn witness” against defendant. As we find no merit in defendant’s argument, there should be an affirmance.

On December 2, 1977, three persons were murdered in their Lower East Side apartment. Defendant was arrested six months later for his part in these murders, which were believed to have occurred during the course of a robbery. After being advised of his Miranda rights, defendant initially denied having taken any part in the crimes. Some time later, however, defendant changed his mind and asked to speak to a homicide detective. Defendant then confessed to his participation in the robbery of the victims, explaining that his accomplice actually shot the three victims during the course of the crime. The detective took down the confession in longhand.

Some time after defendant made this statement, Assistant District Attorney Cooper and a stenographer arrived at the station house to record defendant’s confession. This second confession was essentially the same as the first statement defendant had given to the detective, with some additional details.

Defendant’s pretrial motion to suppress his confessions was denied. The defendant was tried before a jury, but a mistrial was ultimately declared when it was found that information not in evidence had been inadvertently shown to the jurors during their deliberations.

At the start of defendant’s retrial, on the voir dire of the jury, Assistant District Attorney Cooper, who had taken defendant’s second confession, asked the prospective jurors the following question: “Will any of you have any problem with the fact that I took the statement?” The following day, defense counsel moved for a mistrial, because the jury had been informed of the prosecutor’s role in taking the confession, explaining that he had intended all along to request that this information be kept from the jury. Defense counsel argued that the fact that Mr. Cooper had taken the second confession created a risk that he would become an unsworn witness at trial. The court denied the motion, but declared its intention to keep references to Mr. Cooper’s pretrial involvement to a minimum, inasmuch as the voluntariness of the confession would be an important issue at trial.

During the trial, Assistant District Attorney Cooper did make reference to the fact of his presence during defendant’s second confession. On direct examination, he asked a witness, without defense objection, “ did I or anybody else yell at the defendant?” In addition, again without objection, Mr. Cooper read the defendant’s confession to the jury, including its references to himself as the questioner.

Defendant’s convictions were affirmed by the Appellate Division, without opinion. On the present appeal, defendant argues that he was deprived of due process and the right to confront the witnesses against him when the prosecutor informed the jury that he had taken the stenographically recorded confession. As a result of the trial court’s denial of defendant’s motion for a mistrial, it is claimed that the prosecutor effectively became an unsworn witness against defendant.

We believe it appropriate to apply the rule announced in People v Paperno (54 NY2d 294 [decided herewith]), as the present case involves the similar problem of the prosecutor’s becoming an unsworn witness against defendant, although the case does not arise in precisely the same procedural posture. We begin by noting that the decision to grant or deny a motion for a mistrial is within the trial court’s discretion (Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, affd 33 NY2d 980). That we will not interfere with this decision unless it amounts to an abuse of discretion is clear (Hall v Potoker, supra).

We conclude that, on the showing made by defense counsel, the trial court did not abuse its discretion in denying the motion for a mistrial. It was not established that the prosecutor would be called as a witness, nor that there was any significant likelihood that the prosecutor’s conduct would become a material issue at the trial. Rather, in arguing that the voluntariness of the confession would be a major issue at trial, defense counsel focused on the circumstances surrounding the first confession, which was taken by the homicide detective. It was never claimed that the prosecutor himself had coerced or intimidated defendant at the time of the stenographic recording of the second confession.

We also reject defendant’s claim that he was deprived of due process by the prosecutor’s conduct at the trial, inasmuch as defendant has not demonstrated a substantial likelihood of prejudice flowing from the prosecutor’s references to his pretrial involvement in eliciting the second confession (see People v Paperno, 54 NY2d 294, supra [decided herewith]). The prosecutor’s pretrial conduct never became, in actuality, an issue at the trial. Although it may have been preferable to avoid all mention of the prosecutor’s pretrial role, we nevertheless conclude, under the circum- . stances of this case, that defendant has not demonstrated the likelihood of prejudice necessary to warrant a reversal of his conviction.

We have examined defendant’s remaining contention, and find it to be without merit.

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

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

Order affirmed.

      . Defense counsel’s excuse for the delay was that it had never occurred to him that the prosecutor would bring this information out on the voir dire. However, it appears that Mr. Cooper had done exactly the same thing on the prior trial in which defense counsel also participated. Thus, defense counsel’s claim of surprise is untenable.

      . In Papernó, defendant had moved to recuse the prosecutor just prior to trial, on the basis that he intended to call the prosecutor as a witness, and on the additional basis that the prosecutor would be in a position to argue his own credibility before the jury. The present case involves a motion for a mistrial on the ground that the prospective jurors had been informed of the prosecutor’s pretrial involvement with the case against defendant. Despite the varying procedural contexts in the two cases, they raise the same essential issue of when the prosecutor’s pretrial role may affect the ability of defendant to receive a fair trial.

      . While the question of timeliness on a motion for a mistrial is not usually a primary consideration, the court would have been within its discretion in considering this factor. In the posture of cases such as this, if it becomes clear that defendant was aware of the potential risk that the prosecutor would become an unsworn witness against him for a lengthy period of time before the trial, it is certainly not without significance that he delayed in making his request until a point in the proceedings where the only possible relief was to abort the trial.

      . We note here, as we recognized in Pwperno, that the trial court might have fashioned a less drastic remedy than mistrial at this point. It might have been preferable for the court to have ordered that those parts of defendant’s confession identifying the prosecutor be redacted. Nevertheless, under the circumstances of this case, we conclude that the court’s failure to do so did not deprive defendant of a fair trial.

      . It is also relevant that defendant never objected to the actions of the prosecutor which are now claimed to have deprived defendant of due process. This may, in a given case, support the view that the prosecutor’s pretrial conduct was not a material issue, inasmuch as the defendant made no effort to object to it at a time when potential prejudice could more likely have been avoided.


author: Gabrielli, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Lloyd Paperno, Respondent.
    Argued October 13, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attroney (Jerrold L. Neugarten, Robert M. Pitler and Daniel J. Castleman of counsel), for appellant.
    Paperno was not deprived of a fair trial by the court’s failure to recuse the trial prosecutor. Moreover, the rule of recusal articulated by the court below is unsound. (Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114; United States vt Jorn, 400 US 470; People v Ashwal, 39 NY2d 105; People v Alicea, 37 NY2d 601; People v Poplis, 30 NY2d 85; People v Bornholdt, 33 NY2d 75.)

      John L. Pollok and Edward Gasthalter for respondent.
    The decision of the court below requiring the recusal of the trial prosecutor was correct inasmuch as the prosecutor’s conduct was a material issue at trial and his role in the investigation of this case made it inevitable that his credibility would be improperly injected into the trial. (Greenbaum-Mountain Mtge. Co. v Pioneer Nat. Tit. Ins. Co., 421 F Supp 1348; United States v Birdman, 602 F2d 547; People v Malkin, 250 NY 185; People v Arabadjis, 93 Misc 2d 926; United States v Block, 88 F2d 618; United States v Puco, 436 F2d 761; Greenberg v United States, 280 F2d 472; Dunn v United States, 307 F2d 883; People v Savvides, 1 NY2d 554.)
   OPINION OF THE COURT

Gabrielli, J.

This appeal raises the question of the circumstances under which a prosecutor who has had significant involvement with the case at a pretrial stage should be disqualified from representing the People at the trial. We hold today that where the defendant, prior to trial, makes a significant showing that the prosecutor’s prior investigative or prosecutorial conduct will be a material issue at the trial, the prosecutor should be recused. Where no such showing is made, however, a conviction will be reversed only when the defendant demonstrates a substantial likelihood that prejudice resulted from the prosecutor’s participation in the trial.

Following the arrest of a law assistant employed by Supreme Court, New York County, for bribe receiving, a Grand Jury' investigation was begun to determine the extent of such activity by court employees. Defendant, a lawyer employed as a Special Referee by Supreme Court, New York County, appeared before the Grand Jury on three occasions under a grant of immunity. On several occasions during his testimony, defendant responded to the prosecutor’s questions by stating that he did not recall the activity or conversation which was the subject of questioning.

As a result of his testimony on these three occasions, an indictment was returned against defendant, charging him with eight counts of criminal contempt in the first degree (Penal Law, § 215.51). The indictment alleged that defendant had contumaciously and unlawfully refused to answer proper-interrogatories of the Grand Jury in that he gave “equivocal, evasive, conspicuously unbelievable and patently false testimony”. The first count was dismissed before trial; the remaining seven counts were tried before a jury.

On the day that the trial was scheduled to commence, defense counsel moved to recuse the prosecutor, Assistant District Attorney Ferrara, who had questioned defendant before the Grand Jury, on the ground that Ferrara might be called as a witness for the defense. Defense counsel argued that the prosecutor’s conduct before the Grand Jury would be a material issue in the case against defendant, because the substance and form of his interrogatories and his tone of voice were relevant to the question of whether defendant had committed the offenses charged. Moreover, defense counsel expressed concern that Ferrara would be in a position to argue his own credibility before the jury.

The trial court found that the motion was untimely, as it was made on the eve of trial, and Ferrara’s participation in the trial could have been anticipated at a much earlier stage of the proceedings. Notwithstanding the court’s belief that the motion was untimely, it also denied the motion on the merits, finding that defense counsel had not made an adequate showing of the necessity for calling Ferrara as a witness.

Mr. Ferrara proceeded to prosecute the case against defendant. During the People’s case, and over defense counsel’s objection, Ferrara participated in the reading of defendant’s Grand Jury testimony. In this regard, Ferrara, acting in his role as prosecutor before the Grand Jury, read the questions posed, and another member of the District Attorney’s staff, acting in defendant’s role, read the responses.

The defense theory focused on defendant’s state of mind while he was testifying before the Grand Jury. In this connection, defendant testified that while in the “pit” of the Grand Jury room, he felt isolated, lonely, confused and frightened. He complained that Ferrara’s questioning took on a loud, insistent, and sometimes threatening tone, that the questions were asked in rapid succession, and that he believed many questions were being repeated. Defendant explained that his answers were not meant to be evasive, rather, they were the result of his fear that the prosecutor was attempting to “trap” him into giving false answers.

On cross-examination of defense witnesses, Ferrara several times referred to his own role in the Grand Jury proceedings, in an apparent effort to demonstrate that defendant’s fears regarding Ferrara’s design were groundless. Furthermore, during summation, Ferrara again referred to his own role in prosecuting the proceedings before the Grand Jury. Defendant was convicted of all seven counts of criminal contempt in the first degree.

The Appellate Division reversed defendant’s conviction and remitted the matter for a new trial, finding that the trial court should have granted defense counsel’s motion to recuse Assistant District Attorney Ferrara. In so doing, the Appellate Division announced a broad rule of recusal based upon the principle that a lawyer must not act as an advocate in any case in which his own conduct is a material issue. Because we disagree with the scope of this rule of disqualification as announced below, we now reverse and remit the matter to the Appellate Division for a determination of the factual issue involved on the basis of the rule we announce today.

As the Appellate Division correctly noted, two legal principles may form the basis of a motion to disqualify the prosecutor because of his pretrial involvement with the case against the defendant: the “advocate-witness rule” and the “unsworn witness rule”.

The advocate-witness rule is embodied in the provisions of Disciplinary Rules 5-101 (B) and 5-102 of the Code of Professional Responsibility, and generally requires the lawyer to withdraw from employment when it appears that he or a member of his firm will be called to testify regarding a disputed issue of fact (see, also, Ethical Considerations 5-9, 5-10). Thus, once representation is undertaken, the lawyer must withdraw as advocate if it appears that he must testify on behalf of his own client, or if it appears that he will be called as a witness to testify for the adverse party, where his testimony may be prejudicial to the client he is representing. These proscriptions also apply to the prosecuting attorney. If the prosecutor will be called as a witness for the People, to testify to a disputed material issue, he should be disqualified from trying the case. Similarly, if it appears that the court will allow the defense to call the prosecutor as a witness, and that the prosecutor will testify adversely to the People, the prosecutor should be disqualified.

In the case before us, the Appellate Division correctly concluded that the advocate-witness rule did not require the disqualification of Mr. Ferrara. Defense counsel did not establish, on the pretrial motion, that Ferrara was to be called as a witness for the People. Moreover, although defense-counsel expressed a desire to call Ferrara as a witness during the presentation of the defendant’s case, he did not establish that the testimony he sought would be adverse to the People. Indeed, the record of the pretrial motion indicates that any testimony Ferrara could give would be adverse to the defendant.

The unsworn witness rule poses more subtle problems in our efforts to preserve the right to a fair trial. This rule has no definitive contours, but generally stands for the proposition that the prosecutor may not inject his own credibility into the trial. Thus, we have reversed convictions where the prosecutor, to the prejudice of the' defendant, has expressed his personal belief on matters which may influence the jury (People v Tassiello, 300 NY 425), has argued his own credibility on summation (People v Lovello, 1 NY2d 436, 439; People v Carter, 40 NY2d 933), has vouched for the credibility of the People’s witnesses (People v Puglisi, 44 NY2d 748), or has, by cross-examination, suggested the existence of facts not in evidence (People v Duncan, 13 NY2d 37). The primary rationale for so limiting the prosecutor’s conduct is rooted in a concern that the criminal process be fair. Such conduct on the part of the prosecutor amounts to a subtle form of testimony against the defendant, as to which the defendant may have no effective means of cross-examination. Hence, the rule is founded upon the possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor.

Thus, in the application of the unsworn witness rule, we seek to preserve the defendant’s right to a fair trial by recognizing the prosecutor’s role as that of advocate for the People. This same concern exists in cases where the prosecutor’s pretrial involvement with the defendant raises the possibility that the prosecutor’s conduct will be an issue at the trial. The Appellate Division, seeking to effectuate the “spirit” of the unsworn witness rule, held that, in any case in which the prosecutor’s pretrial conduct is a material issue, he must be recused. Although we recognize that the utility of such a per se rule rests in the ease of its application, we believe it is too broad a rule of recusal, for it fails to take into account the interest of the District Attorney’s office in choosing the lawyer it wishes to have act as trial counsel, and fails to allow for consideration of less drastic alternatives which might afford full protection to the defendant under such circumstances. A more flexible approach is needed to deal with the problems of disqualification of the prosecutor — one that accommodates both the interest of the defendant in a fair trial and of the District Attorney’s office in choosing its own representative.

We begin with the proposition that, on a pretrial motion to disqualify the prosecutor, it is incumbent upon the defendant to make an adequate showing that the pretrial activity of the prosecutor will render his participation in the trial unfair. A mere assertion by the defendant that he intends to question some aspect of the prosecutor’s conduct is insufficient. Rather, the defendant must demonstrate that there is a significant possibility that the prosecutor’s pretrial activity will be a material issue in the case.

Thus, in an evasive contempt case such as the present one, where the prosecutor’s conduct before the Grand Jury is called into question, the defendant must demonstrate on the pretrial motion that such conduct will have a bearing on the substantive issues to be raised at trial. If, for example, the defendant makes a substantial and satisfactory showing prior to trial that the attitude and questioning of the prosecutor before the Grand Jury were the cause of his “evasive” answers, disqualification of the prosecutor will be required. It is not a sufficient basis for recusal, however, to merely claim that the prosecutor observed the defendant giving his testimony, or otherwise observed the circumstances under which testimony was given. In another situation in which this type of problem is likely to arise, where the prosecutor has participated in taking the defendant’s confession, the defendant must establish, not simply that the prosecutor observed the defendant’s demeanor or the activity of others, but that the prosecutor’s own conduct will be relevant to a material issue, such as the voluntariness of the confession (see People v Arabadjis, 93 Misc 2d 826).

The court should also consider, as bearing on the need for recusal, defendant’s showing of necessity for calling the prosecutor as a witness to testify regarding a material issue on the trial. While this decision to allow the defense to call the prosecutor as a witness rests in the sound discretion of the trial court (People v Poplis, 30 NY2d 85), this may be the most appropriate point for the court to consider such a request. In addition, the timeliness of the motion may be considered, in determining the likelihood that the defendant’s motion is made in good faith and not just for the purpose of gaining a tactical advantage.

We emphasize that the necessary showing of the need to recuse the prosecutor must be made at this pretrial stage. In those cases in which the defendant has not made the necessary showing, but there is nevertheless some danger that the prosecutor’s pretrial activity might allow him to unfairly influence the jury by injecting his own credibility into the trial, the court should take steps to avoid prejudice to the defendant in this regard. Thus, for example, if the prosecutor has participated in taking defendant’s confession and the voluntariness of the confession is a major part of the defense case, those portions of the confession suggesting the prosecutor’s prior involvement may, in an appropriate case, be redacted. This procedure will lessen the opportunity for improper suggestions that the prosecutor personally stands behind the validity of the confession as a result of his personal involvement in the circumstances under which it was taken. Of course, the prosecutor must himself scrupulously avoid informing the .jury of his prior role in dealing with the defendant.

Notwithstanding the precautions that may be taken by the court and by the prosecutor, subsequent developments at the trial may demonstrate that defendant was deprived of a fair trial. Where the court has denied the motion to recuse the prosecutor or has fashioned a less drastic remedy, the defendant’s conviction will be reversed only if he satisfactorily establishes a substantial likelihood of prejudice flowing from the prosecutor’s subsequent conduct (considering whether timely protest had been registered with respect thereto). Thus, where the prosecutor’s pretrial conduct in fact becomes a material issue at the trial and his conduct at the trial improperly allowed him to become an unsworn witness against the defendant, thereby causing the defendant to suffer such a likelihood of prejudice, the defendant’s resulting conviction cannot stand.

Accordingly, as the Appellate Division applied a rule of disqualification which we do not find proper, its order should be reversed and the matter remitted for a consideration of the facts and application of the rule we announce today.

Meyer, J.

(dissenting). I agree with the procedural steps relating to recusal outlined in the majority opinion, but disagree with its remittal to the Appellate Division. That court concluded that reversal by it was required, because, among other reasons, the Assistant District Attorney’s “re-enactment of the questioning before the Grand Jury constituted a subtle form of unsworn evidence which substantially blurred the line between Ferrara [the Assistant District Attorney] as an advocate and as a witness.”

The majority notes (p 298) defendant’s objection to the reading to the trial jury of his Grand Jury testimony, with Ferrara “acting in his role as prosecutor before the Grand Jury, read [ing] the questions posed, and another member of the District Attorney’s staff, acting in defendant’s role, read [ing] the responses”, but does not thereafter mention or pass upon that objection. The Appellate Division’s reversal of defendant’s conviction was proper on that ground alone. Any question of the application of the recusal procedures we now establish may arise if Ferrara is again designated to conduct the retrial, but since recusal was denied by the trial court I fail to see the need for reversal and remittal to the Appelate Division rather than affirmance, though on only one of the grounds it used, of its order granting defendant a new trial.

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

Order reversed and case remitted to the Appellate Divisision, Second Department, for further proceedings in accordance with the opinion herein.

      . On his prior pretrial omnibus motion, defendant had also raised the claim that the sole purpose of defendant’s appearance before the Grand Jury was to have him commit the crimes of perjury and contempt.

      . The record discloses a dispute over the timeliness of the motion. Defense counsel insisted that he learned of Mr. Ferrara’s participation in the trial only a short time prior to the making of the motion. The- prosecutor claimed that defense counsel knew he would be trying the case for a significantly longer period of time, and argued that the motion to disqualify him should have been made at a much earlier time.

      . The Appellate Division based its holding on the “spirit” of rule 3.9 of the American Bar Association’s proposed Model Rules of Professional Conduct, which provides, in pertinent part, as follows: “A lawyer shall not act as advocate, except on the lawyer’s own behalf, in litigation in which the lawyer’s own conduct is a material issue or in which the lawyer is likely to be a witness”.

      . These Disciplinary Rules provide, in relevant part, as follows:
      “DR 5-101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
      “(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      “ (1) If the testimony will relate solely to an uncontested matter.
      “ (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
      “(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
      “(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”
      “DR 5-102. Withdrawal as Counsel When the Lawyer Becomes a Witness.
      “(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B) (1) through (4).
      “(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”

      . One exception to this rule is that withdrawal is not required where to do so “would work a substantial hardship on the client” (DR 5-102 [A]; DR 5-101 [B] [4]; see, also People v Baldi, 54 NY2d 137, 149, n 1).

      . As the motion for recusal is made before the trial begins, it may be difficult for the Trial Judge to ascertain the likelihood that the prosecutor’s conduct will be a material issue on the trial. A mere assertion by the defendant that this will be the case should, therefore, be generally insufficient to disqualify the prosecutor. By endeavoring to protect the rights of the defendant, we do not intend that he be given “veto power” over the District Attorney’s choice of prosecutor. The rule that we announce today will prevent the use of the recusal motion as a mere tactical strategy.

      . Case law dealing with defense requests to call the prosecutor as a witness, particularly in the Federal courts, offers some guidance regarding the relevant considerations on a motion to recuse the prosecutor. When the defendant 'seeks to call the prosecutor as a witness, the courts generally undertake an inquiry into both the nature of the testimony sought from the prosecutor and the issues on which it is sought, in order to determine its necessity to the defense. If the testimony sought relates to an undisputed or collateral issue, or is merely cumulative in nature, the request to call the prosecutor will and should be denied (see Fisher v United States, 231 F2d 99; Gajewski v United States, 321 F2d 261, cert den 375 US 968; Hayes v United States, 329 F2d 209; United States v Schwartzbaum, 527 F2d 249; cf. United States v Birdman, 602 F2d 547, cert den 444 US 1032). Moreover, the timeliness of the request is a relevant consideration (Hayes v United States, supra).

      . Of course, if it appears that the court will grant, at this pretrial stage, defendant’s request to call the prosecutor as a witness and that the prosecutor will testify in defendant’s favor, this alone would suffice to disqualify the prosecutor from trying the case, under the advocate-witness rule.

      . This relief may not suffice to avoid prejudice to defendant under some circumstances. For example, where the confession is video taped and will be played-.for the jury under circumstances where the prosecutor’s identity will be readily apparent, redaction may not serve to keep the fact of the prosecutor’s involvement from the jury (see, e.g., People v Bonilla, 101 Misc 2d 146).


text:
    The People of the State of New York, Respondent, v Robert Edelstein, Appellant.
    Argued October 19, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      Roger Bennet Adler and Deborah A. Schwartz for appellant.
    I. Criminal term erred in denying defendant’s motion to controvert the eavesdrop orders and in failing to suppress the intercepted conversations. (People v Washington, 46 NY2d 116; United States v Gigante, 538 F2d 502; People v Sher, 38 NY2d 600; People v Darienzo, 68 AD2d 806; People v Weiss, 63 AD2d 662, 48 NY2d 988; People v Pecoraro, 58 AD2d 462; People v Guenther, 81 Misc 2d 258; People v Scaccia, 55 AD2d 444; People v Brenes, 52 AD2d 78, 42 NY2d 41.) II. The indictment must be dismissed because the indicting Grand Jury was improperly extended and therefore the Grand Jury lacked the power to return the indictment. (Matter of Tyler v Polsky, 57 AD2d 422; People v Stern, 3 NY2d 658; Matter of Seidenberg v County Ct. of County of Rockland, 34 NY2d 499; Matter of McClure v County Ct. of County of Dutchess, 41 AD2d 148; United States v Fein, 504 F2d 1170.) III. The indictment must be dismissed because the Assistant District Attorney failed to properly fulfill the obligation of legal advisor to the Grand Jury. (People v Rastelli, 37 NY2d 240; People v Salko, 47 NY2d 230; People v Bell, 48 NY2d 913; People v Settles, 46 NY2d 154; People v Maerling, 46 NY2d 289; People v Calbud, Inc., 49 NY2d 389.)

      Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
    I. The court properly denied defendant’s motion to suppress evidence gathered by means of court-ordered electronic suveillance. (Oswaco Lake Cemetery v Teller, 110 App Div 450; People v Hall, 169 NY 184; People v Cona, 49 NY2d 26; People v Rodriguez, 52 NY2d 483; People v Herskowitz,
      41 NY2d 1094; People v Chapman, 13 NY2d 97; United States v Vento, 533 F2d 838; United States v Pacheco, 489 F2d 554, 421 US 909; United States v Martinez, 588 F2d 1227.) II. The term of the Grand Jury was properly extended. (Matter of Coonan v Roberts, 71 AD2d 563; Matter of McClure v County Ct. of County of Dutchess, 41 AD2d 148; Matter of Seidenberg v County Ct. of County of Rockland, 34 NY2d 499. III. The legal instructions given to the Grand Jury were proper. (People v La Ruff a, 34 NY2d 242, 423 US 917; People v Kazmarik, 52 NY2d 322; People v Cohen, 52 NY2d 584; People v Savino, 44 NY2d 669; People v Tarsia, 50 NY2d 1; People v Salko, 47 NY2d 230; People v Calbud, Inc., 49 NY2d 389.)
   OPINION OF THE COURT

Gabrielli, J.

Defendant was charged with three counts of bribery in the second degree (Penal Law, § 200.00) and one count of conspiracy in the third degree (Penal Law, § 105.05) by an indictment which alleged, among other things, that the defendant conspired with one Harry Shapiro to bribe Abram Brown, a law assistant employed by Supreme Court, New York County, and that he had bribed Brown to secure judicial decisions favorable to defendant’s interest in two cases. By motion, defendant sought to suppress certain intercepted conversations obtained by wiretaps placed on Abram Brown’s personal and business phones. Following the denial of this motion, defendant entered a plea of guilty to the indictment and the Appellate Division thereafter affirmed the convictions, without opinion.

Defendant now asserts several challenges to the admissibility of the wiretap evidence, including the alleged failure of the People to minimize (GPL 700.30, subd 7) and their failure to seal the tapes immediately upon the expiration of the period of the eavesdropping warrant (GPL 700.50, subd 2). Raised in connection with each of these challenges is the question of defendant’s standing to contest the admissibility of conversations in which he took no part. In regard to the minimization requirement, we conclude that defendant has no standing to challenge the interception of third-party conversations. The minimization requirement is rooted in the Fourth Amendment’s ban upon unreasonable searches and seizures, and defendant has no standing to assert the Fourth Amendment rights of another (see Rakas v Illinois, 439 US 128). Without standing to assert the failure of the police to minimize in regard to third-party conversations, defendant’s remaining minimization arguments are wholly without merit. In contrast, we conclude that defendant does have standing to challenge the failure of the People to seal the tapes in accordance with the dictates of the statute (GPL 700.50, subd 2). The sealing requirement is designed, among other things, “to prevent tampering, alterations or editing” (People v Nicoletti, 34 NY2d 249, 253). Since this requirement goes to the very integrity of the tapes, rather than to the intrusion created by the wiretap, it has been held that a defendant does have standing to challenge the failure of the People to seal tapes properly, even though the tapes contain only the conversations of third parties (People v Trevorah, 63 AD2d 662, affd 48 NY2d 988).

In the present case, however, although defendant has standing to challenge the allegedly untimely sealing of the tapes, we nevertheless conclude that the defendant’s motion to suppress the tapes was properly denied. While the requirement of immediate sealing must be strictly construed, the eavesdropping statute also mandates that the courts consider whether the People have offered a satisfactory explanation for any delay which might have occurred (People v Washington, 46 NY2d 116, 123-124). Defendant asserts error in the failure of the People to seal immediately the tapes authorized by the first set of warrants and the two subsequent extensions of those original warrants. The original warrants were to expire at midnight on Saturday, March 19, 1977. The tapes from the tap on Brown’s business phone were sealed on Monday, March 21, and the tapes from Brown’s home phone were sealed on the following day. The Justices who issued both of these orders were, however, unavailable on the intervening Sunday. In addition, the People demonstrated that the tapes from Brown’s home phone were not sealed on Monday because, when the Assistant District Attorney in charge of the tapes discovered that one of the recordings had been left at the taping site, he promptly telephoned the issuing Justice to advise him that there would be a delay and was then told by the court to bring the tapes in for sealing on Tuesday. For the reasons stated in and upon the rationale of People v Washington (supra, p 124, n 8), these delays in sealing do not warrant suppression in this case. Similarly, the tapes attributable to the first extension warrants, due to expire at midnight on Monday, April 18, 1977 and sealed on the following day, were properly ruled admissible. Finally, it is sufficient to note that the tapes obtained pursuant to the second extensions were sealed no later than the day following the termination of the period of the warrants. Furthermore, the arrest of Abram Brown two days prior to the expiration of the warrants authorizing the taps on his telephones did not necessarily serve to reduce the period of the eavesdropping warrants. We conclude that the sealing of tapes on the day following the termination date of a wiretap warrant is generally sufficient to comply with the requirement of immediate sealing and observe, in addition, that the People have offered satisfactory explanations for the brief additional delays which occurred here.

We have considered defendant’s remaining contentions and find them to be without merit.

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

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

Order affirmed.

       CPL 700.50 (subd 2) provides that: “[i]immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communications made pursuant to subdivision three of section 700.35 must be made available to the issuing justice and sealed under his directions”.