author: Bellacosa, J.

text:
    [668 NE2d 879, 645 NYS2d 759]
    The People of the State of New York, Respondent, v Evero Vargas, Appellant. The People of the State of New York, Respondent, v Ronald Pondexter, Appellant. The People of the State of New York, Respondent, v Kenneth Hutton, Appellant. The People of the State of New York, Respondent, v De Andre L. Wilson, Appellant.
    Argued May 1, 1996;
    decided June 13, 1996

      POINTS OF COUNSEL

      William B. Carney, New York City, and Daniel L. Greenberg for appellant in the first above-entitled action.
    Appellant was denied his right to be present at a material stage of the trial when the court told him that if he did not waive his right to be personally present at sidebar conferences, there would be no sidebar conferences. (People v Antommarchi, 80 NY2d 247; People v Turaine, 78 NY2d 871; People v Mullen, 44 NY2d 1; People v Torres, 80 NY2d 944; People v Dokes, 79 NY2d 656; People v Epps, 37 NY2d 343; People v Mitchell, 80 NY2d 519; People v Spotford, 85 NY2d 593; People v Davidson, 136 AD2d 66; Matter of Whitley v Cioffi, 74 AD2d 230.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (John F. Carroll Jr., Joseph N. Ferdenzi and Allen H. Saperstein of counsel), for respondent in the first above-entitled action.
    I. There was overwhelming evidence of appellant’s guilt. (People v Simmons, 186 AD2d 95, 81 NY2d 976; People v Napoletano, 185 AD2d 252; People v Espinal, 174 AD2d 500.) II. Appellant was afforded his right to be present at all voir dire conferences but he voluntarily relinquished that right if any of the conferences were to be held outside the hearing of the other jurors. (People v Antommarchi, 80 NY2d 247, 81 NY2d 759; People v Mitchell, 80 NY2d 519; People v Pennick, 204 AD2d 988; People v Iannelli, 69 NY2d 684, 482 US 914; United States v Gagnon, 470 US 522; Illinois v Allen, 397 US 337; Snyder v Massachusetts, 291 US 97; People v Sprowal, 84 NY2d 113; McDaniel v Paty, 435 US 618; Sherbert v Verner, 374 US 398.) III. Even if appellant had a right to sidebar conferences, he was not deprived of his right to meaningfully participate in his trial. (People v Morales, 80 NY2d 450; People v Torres, 80 NY2d 944; People v Velasco, 77 NY2d 469; People v Rodriguez, 76 NY2d 918; People v Kirkland, 199 AD2d 54, 83 NY2d 806; Snyder v Massachusetts, 291 US 97; People v Johnson, 191 AD2d 349; People v Shabani, 203 AD2d 142, 84 NY2d 832; People v Rodriguez, 203 AD2d 92.)

      William B. Carney, New York City, and Daniel L. Greenberg for appellant in the second above-entitled action.
    I. Appellant’s decision to waive his right to be present at all sidebar questioning of prospective jurors was involuntary where the court conditioned his right to be present by requiring that he be "surrounded by court officers at all times.” (People v Antommarchi, 80 NY2d 247; People v Turaine, 78 NY2d 871; People v Mullen, 44 NY2d 1; People v Sloan, 79 NY2d 386; People v Hannigan, 193 AD2d 8, 82 NY2d 896; People v Torres, 80 NY2d 944; People v Dokes, 79 NY2d 656; People v Epps, 37 NY2d 343; People v Mitchell, 80 NY2d 519; People v Spotford, 85 NY2d 593.) II. The court’s refusal to strike the testimony of a witness who indicated that she had earlier lied on the witness stand deprived appellant of his right of confrontation and his due process right to a fair trial. (Bagby v Kuhlman, 932 F2d 131; Davis v Alaska, 415 US 308; People v Becker, 210 NY 274; People v Schwartzman, 24 NY2d 241; People v Chin, 67 NY2d 22; Pointer v Texas, 380 US 400; People v Gissendanner, 48 NY2d 543; Klein v Harris, 667 F2d 274; People v Bagby, 65 NY2d 410.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Barbara Thomashower and Roseann B. MacKechnie of counsel), for respondent in the second above-entitled action.
    I. Defendant failed to preserve his claim that his waiver of his right to be present during Bench conferences with prospective jurors was coerced. In any event, this claim is meritless because defendant voluntarily, knowingly, and intelligently waived his right to be present at the conferences. Moreover, by requiring court officers to accompany defendant to sidebar discussions with prospective jurors, the trial court ensured security and order in the courtroom. (People v Spotford, 85 NY2d 593; People v Lombardo, 61 NY2d 97; People v Sprowal, 84 NY2d 113; People v Velasco, 77 NY2d 469; People v Mitchell, 80 NY2d 519; People v Epps, 37 NY2d 343, 423 US 999; People v Connor,
      63 NY2d 11; La Rocca v Lane, 37 NY2d 575, 424 US 968; Matter of Brostoff v Berkman, 170 AD2d 364, 79 NY2d 938, 506 US 861; Brown v Doe, 2 F3d 1236.) II. Defendant failed to preserve for appellate review his claim that the trial court improperly denied defendant’s motion to strike Sharon Valdez’s testimony after Valdez stated her intention to assert her Fifth Amendment privilege if called to testify for the defense. In any event, defendant’s claim is meritless. (Bagby v Kuhlman, 932 F2d 131, cert denied sub nom. Bagby v Kuhlmann, 502 US 926; United States v Cardillo, 316 F2d 606, 375 US 822; Davis v Alaska, 415 US 308; People v Gissendanner, 48 NY2d 543; Delaware v Fensterer, 474 US 15; People v Chin, 67 NY2d 22; Dunbar v Harris, 612 F2d 690; Klein v Harris, 667 F2d 274; People v Crimmins, 36 NY2d 230.)

      Kannan Sundaram, New York City, and Daniel L. Greenberg for appellant in the third above-entitled action.
    I. Appellant’s exclusion from a sidebar conference concerning a prospective juror’s perceived recognition of him as defendant in a prior trial violated his right to be present at a material stage of the trial, where appellant waived his right to be present at such questioning only after the court refused to allow any private questioning of prospective jurors unless appellant waived his presence. (People v Turaine, 78 NY2d 871; People v Sloan, 79 NY2d 386; People v Antommarchi, 80 NY2d 247; People v Sprowal, 84 NY2d 113; People v Engleton, 207 AD2d 262; People v Epps, 37 NY2d 343; People v Bragle, 88 NY 585; People v La Barbera, 274 NY 339; Johnson v Zerbst, 304 US 458; People v Spotford, 85 NY2d 593.) II. Appellant was deprived of his right to a jury trial and of due process when the court, over defense objection, repeatedly instructed the jury that appellant had been found in possession of the complainant’s property, even though the defense had not conceded that element and, indeed, explicitly contested it by presenting testimony indicating that appellant was not found in possession of the property. (People v Walker, 198 NY 329; People v Flynn, 79 NY2d 879; People v Lewis, 64 NY2d 1031; People v Creeden, 210 AD2d 422; People v Amoroso, 38 AD2d 563; People v Hogue, 139 AD2d 835; People v Andujas, 79 NY2d 113.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Kevin G. Dumbach and Steven J. Chananie of counsel), for respondent in the third above-entitled action.
    I. Defendant voluntarily waived his right to be present at voir dire sidebar conferences with prospective jurors, after the court properly refused, to conduct such conferences unless defendant waived his presence at them. Defendant simply does not have a right to sidebar conferences, which are solely within the court’s discretion to grant. (People v Feliciano, 88 NY2d 18; People v Sprowal, 84 NY2d 113; People v Morales, 80 NY2d 450; People v Spotford, 85 NY2d 593; People v Mitchell, 80 NY2d 519; People v Parker, 57 NY2d 136; North Carolina v Alford, 400 US 25; United States v Dinitz, 424 US 600; McDaniel v Paty, 435 US 618; Brooks v Tennessee, 406 US 605.) II. Defendant’s presence at the sidebar conference with prospective juror Barnhard would have been superfluous, because the juror was excused for cause on consent after the court found that she could not be fair and impartial in this case. Moreover, given the nature and scope of the inquiry at the conference, defendant’s absence was de minimis. (People v Feliciano, 88 NY2d 18; People v Sprowal, 84 NY2d 113; People v Morales, 80 NY2d 450; People v Spotford, 85 NY2d 593; People v Sloan, 79 NY2d 386; Snyder v Massachusetts, 291 US 97; People ex rel. Lupo v Fay, 13 NY2d 253, 1178; People v Mullen, 44 NY2d 1; People v Bragle, 88 NY 585.) III. Defendant’s challenge to the court’s recent and exclusive possession charge is unpreserved for this Court’s review. In any event, when viewed as a whole, the charge properly instructed the jury that defendant’s possession of the car was an issue for the jury to decide. (People v McKenzie, 67 NY2d 695; People v Logan, 74 NY2d 859; People v Balls, 69 NY2d 641; People v Hoke, 62 NY2d 1022; People v Fields, 87 NY2d 821; People v Coleman, 70 NY2d 817.)

      David C. Schopp, Buffalo, Linda S. Reynolds and Barbara J. Davies for appellant in the fourth above-entitled action.
    I. The trial court’s in camera conference with a prospective juror in the absence of appellant and counsel violated appellant’s right to be present during a material stage of the trial and his constitutional right to counsel. (Snyder v Massachusetts, 291 US 97; People v Turaine, 78 NY2d 871; People v Mullen, 44 NY2d 1; People v Velasco, 77 NY2d 469; People v Antommarchi, 80 NY2d 247, 81 NY2d 759; People v Sloan, 79 NY2d 386; People v Mitchell, 80 NY2d 519; People v Darby, 75 NY2d 449; People v Sprowal, 84 NY2d 113; People v Dokes, 79 NY2d 656.) II. The lower court’s decision to excuse a sworn prospective juror in the absence of a challenge by either party was an abuse of discretion mandating reversal of appellant’s conviction. (People v Torpey, 63 NY2d 361; People v Williams, 63 NY2d 882; People v De Jesus, 42 NY2d 519; People v Moulton, 43 NY2d 944; People v Buford, 69 NY2d 290.) III. Appellant was deprived of his right to a jury of his choice by the lower court’s improper discharge of a sworn juror based on the erroneous determination that the juror was "grossly unqualified” pursuant to CPL 270.35. (People v Buford, 69 NY2d 290; People v Ivery, 96 AD2d 712; People v Rodriguez, 71 NY2d 214; People v Cargill, 70 NY2d 687; People v Brantley, 168 AD2d 949; People v Hilton, 145 AD2d 352; People v O’Connor, 106 AD2d 900; People v Anderson, 70 NY2d 729; People v West, 92 AD2d 620.) TV. The trial court’s refusal to allow defense counsel to cross-examine a prosecution witness on a pending criminal action deprived him of his constitutional right to confront witnesses. (Davis v Alaska, 415 US 308; People v Gissendanner, 48 NY2d 543; Alford v United States, 282 US 687; United States v Brown, 634 F2d 819; People v Chin, 67 NY2d 22.)

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Kimberly A. Phelan and John J. DeFranks of counsel), for respondent in the fourth above-entitled action.
    I. The proceedings with respect to a prospective juror were properly conducted. (People v Antommarchi, 80 NY2d 247; People v Velasco, 77 NY2d 469; People v Kin Kan, 78 NY2d 54; People v Mullen, 44 NY2d 1; Snyder v Massachusetts, 291 US 97; People v Mulinar, 185 AD2d 996, 81 NY2d 844; People v Boatman, 147 AD2d 912, 76 NY2d 731, 846.) II. The trial court did not abuse its discretion in excusing the prospective juror. (People v Culhane, 33 NY2d 90; People v Torpey, 63 NY2d 361; People v Blyden, 55 NY2d 73; People v Williams, 63 NY2d 882; People v Buford, 69 NY2d 290; People v Moulton, 43 NY2d 944; People v Harding, 44 AD2d 800.) III. The trial court did not err in discharging a sworn juror pursuant to CPL 270.35. (People v Buford, 69 NY2d 290; People v Rodriguez, 71 NY2d 214; People v Boston, 182 AD2d 494, 80 NY2d 894; People v Pauley, 281 App Div 223; People v Culhane, 33 NY2d 90.) IV. The court did not err in refusing to permit cross-examination of Ronnette Parker with respect to a prior bad act. (People v Sandoval, 34 NY2d 371; People v Sorge, 301 NY 198; People v Chin, 67 NY2d 22; People v Ventura, 35 NY2d 654; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Bellacosa, J.

A common issue in these four separate cases involves continuing controversies concerning a defendant’s right to personal presence at jury selection sidebar discussions (see, CPL 260.20; People v Antommarchi, 80 NY2d 247, rearg denied 81 NY2d 759). In People v Vargas, People v Pondexter and People v Hutton, respective waivers of that right are challenged because the trial courts elicited defendants’ choices to waive by stating that certain conditions would otherwise be attached to the examination of prospective jurors. In People v Wilson, the Trial Judge engaged in a private conference sought by a frightened potential juror before any examinations began. The discussion was held without the defendant or any attorneys present, but a court reporter transcribed the conference and the Trial Judge sealed the transcript. In People v Pondexter and People v Wilson, other issues are also raised. We affirm the orders of the Appellate Division affirming the convictions in People v Vargas, People v Wilson and People v Hutton, the order in People v Pondexter should be reversed and a new trial ordered.

I.

People v Vargas

Defendant was convicted after a jury trial of robbery in the first degree. He was tried three weeks after this Court decided People v Antommarchi (80 NY2d 247, supra). Before the jury selection process began, the Trial Judge expressed reluctance to hold any sidebars at all if the defendant insisted on presence at the Bench with a prospective juror, because that practice in the court’s experience had resulted in "the distinct uneasiness on the part of the juror.” The court stated that "unless the defendant waives his presence personally now, all questions will be put to the jurors in public, and the jurors will answer all questions in public.”

Defense counsel objected, arguing that exposing possibly sensitive questions to prospective jurors in public might "lead to a situation where a juror has personal or very private information that they do not feel comfortable discussing in open court,” and there also might be a "hidden bias” or other prejudice that the jurors would conceal. Nevertheless, given the trial court’s reluctance to hold sidebars at all with defendant present at the Bench with a prospective juror, the defendant waived his right to be present on the record. The subsequent voir dire examination of prospective jurors included several sidebar conferences without defendant’s presence, but with both sides’ lawyers present and participating.

The Appellate Division affirmed defendant’s conviction, and a Judge of this Court granted defendant leave to appeal.

People v Pondexter

Defendant’s murder conviction after a jury trial arose out of a botched robbery committed by defendant and an accomplice. After the two stole money at gunpoint from two male victims, defendant shot and killed one of the men when the victim refused to give defendant his house keys. The other victim survived and testified, as did a second eyewitness, Sharon Valdez, who claimed at trial to have seen the entire incident from her window overlooking the street.

During the pretrial voir dire, the Judge asked the defendant if he wished to waive his right to be present at sidebars. The defendant, through counsel, initially indicated that he wanted to be present. The court then stated that "if he’s brought up to the bench there’ll be a number of court officers surrounding him at all times.” Defense counsel suggested that the court instead "send the jury out,” but the Trial Judge replied that "I can’t send 60 people out every time somebody wants to come up to me.” After discussing the case further with his lawyer, defendant signed a written waiver.

The day after Valdez testified and was cross-examined, defense counsel told the court in camera that he had spoken to Valdez ex parte after her testimony. Valdez told defense counsel privately — in sharp contrast to her incriminating testimony against the defendant — that she had been asleep on the night of the incident and did not see anything that occurred. Valdez’s mother, Shirley Hudson, later testified for the defendant that her daughter had been asleep at the time of the criminal incident. On the following day, Valdez appeared in court with a court-appointed attorney. Both her attorney and Valdez indicated that she would assert her Fifth Amendment privilege against self-incrimination in response to any further questions.

The trial court ruled that Valdez had a basis to assert the Fifth Amendment and denied defense counsel’s request to have her assert the privilege under oath in the presence of the jury. Defense counsel then requested that Valdez’s testimony be stricken from the record. The trial court, however, denied the requested relief without comment or further inquiry.

The Appellate Division affirmed defendant’s conviction, and a Judge of this Court granted defendant leave to appeal.

People v Hutton

Defendant’s conviction after a jury trial was for criminal possession of stolen property and unauthorized use of an automobile. At trial, the court told defendant that he was free to be present at sidebars, "if any take place,” but added that if the defendant insisted on his personal presence, all jurors would remain in the jury box and be questioned in open court. Because of the "constraints of [the] ruling” and because defense counsel felt that "open comments from the jurors [would] kill their ability to speak forthrightly and honestly as to any prejudices,” defendant personally waived his Antommarchi rights, stating that he did so of his own free will and that no one forced him to waive that right. The Appellate Division affirmed the conviction, and a Judge of this Court granted defendant leave to appeal.

People v Wilson

This case presents a serious variation of the presence scenarios involving juror examination, in that the precipitating event occurred at an earlier stage than the usual prospective juror examinations. Wilson’s second degree murder conviction arose out of his fatal shooting of a friend in a dispute over a woman, Ronnette Parker, who testified at trial as an eyewitness to the shooting. At trial, before the actual questioning of one particular jury panel had begun, one member of the prospective panel — the only juror at issue here — asked the court staff if he could speak to the Trial Judge privately. He did not want to serve as a juror, but neither did he want to speak out in open court, and certainly not in the presence or hearing of the defendant because of the nature of his concern — fear for his safety. He was taken to the Judge, who spoke with him alone without the presence of any of the lawyers or the defendant. Only a court reporter was present to make a record that was later sealed.

The juror stated that he knew the defendant from his neighborhood and was concerned for his safety if he were even considered for this jury service. He and the defendant were sufficiently acquainted to greet each other and speak on the street, but they did not know each other by name. The prospective juror told the Trial Judge he was afraid that the defendant would be mad at him if he said in open court that he did not want to serve as a juror, especially in light of the small number of minority jurors on the panel. The juror is himself African-American. His specific fear was that the defendant would have had friends from the neighborhood — who the juror knew were not then in jail — beat him up, shoot him or kill him. Finally, when the Trial Judge told the juror that defendant’s counsel, if he were present, would have an obligation to tell defendant what occurred, the juror objected strenuously to the attorney’s presence or even knowledge of his expressed fears.

The Trial Judge excused the juror. He informed the lawyers only that he had held an in camera examination relating to jury selection requested by a prospective juror and that he had sealed the transcript. Eighteen months after the defendant’s conviction, the Trial Judge told the prosecutor and defense counsel the details of the excusai, and added that the defendant’s extensive criminal history also supported his conclusion that the juror was credible and genuinely concerned for his safety.

The Appellate Division affirmed defendant’s conviction after a jury trial, holding that the defendant’s right to presence was not implicated, because the questioning of the juror occurred before the customary voir dire of the panel was started, and because the entire purpose of the questioning was to keep from defendant the founded fact of this juror’s fear (211 AD2d 136). The Court added that inviting defendant’s counsel, who would have had an obligation to tell defendant, into the in camera conference was not required. A Judge of this Court granted defendant leave to appeal.

II.

On the general and common issue of waiver, we start with the proposition that defendants have a statutory right to be present during sidebar questioning of prospective jurors on matters of bias or prejudice, since such questioning constitutes a "material stage” of the trial (People v Antommarchi, 80 NY2d 247, 250, supra; see, CPL 260.20). Questioning as to such "bias, hostility or predisposition to believe” certain witnesses over others (People v Sprowal, 84 NY2d 113, 117; see, People v Sloan, 79 NY2d 386, 392) is to be distinguished from that relating solely to ministerial matters, such as availability for jury service, which does not trigger the right to be present (People v Velasco, 77 NY2d 469).

Significantly, the right to be present at sidebars is not rooted in the Constitution but rather in CPL 260.20, which requires that "[a] defendant * * * be personally present during the trial of an indictment” (CPL 260.20; see, People v Sprowal, 84 NY2d 113, 118, supra; People v Mitchell, 80 NY2d 519). This right may be waived (People v Mitchell, supra, at 525) by a voluntary, knowing and intelligent choice (see, People v Spotford, 85 NY2d 593). With respect to statutory rights, as contrasted to constitutional rights, this Court has been more flexible regarding the acceptable form of voluntary waivers by defendants and their lawyers (compare, People v Webb, 78 NY2d 335; and People v Bello, 82 NY2d 862, with People v Parker, 57 NY2d 136; and People v Page, 88 NY2d 1).

The defendants in People v Vargas, People v Pondexter, and People v Hutton challenge the efficacy of their waivers only insofar as they claim stated conditions announced by the respective trial courts deprive the waivers of their requisite voluntary, knowing and intelligent character as a matter of law (see, e.g., People v McKenna, 76 NY2d 59, 65). We disagree.

Appellants rely on the claim that "the right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee’s submission to a condition prescribed by the state which is hostile to the provisions of the federal [or State] Constitution” (United States v Chicago, Milwaukee, St. Paul & Pac. R. R. Co., 282 US 311, 328-329 [citations omitted]). Their common argument and theory, however, contain a threshold flaw: the "rights” they are now claiming are being sacrificed do not exist, as such. To succeed, Vargas and Hutton would have to possess an absolute "right” to have jurors discuss issues of bias and prejudice at sidebar instead of in open court, and Pondexter would have to enjoy a "right” to approach the Bench during voir dire sidebars without escort by court officers. The unassailable fact, however, is that neither the State nor Federal Constitution, nor any statute, nor any decision of this Court or the Supreme Court grants such a set of prerogatives for defendants.

We also reject defendant Pondexter’s claim that the true "right” he was forced to give up if he wished to be present at sidebars was the presumption of innocence. The burden of proof remained on the People throughout the entire trial, and defendant was never put at risk on a cognizable presumption of innocence issue. To the extent that defendant attempts to clothe his right as a "due process right to appear before the jury free of physical restraints” under Illinois v Allen (397 US 337, reh denied 398 US 915), that, too, is unavailing. Allen involved a defendant expelled from the courtroom, and contained the following admonition: "no person should be tried while shackled and gagged except as a last resort” (id., at 344). Escort of defendants by court officers to the bench in a courtroom during examination of a juror plainly does not implicate any such due process right.

Trial courts must retain appropriate discretion to control their courtrooms and trial proceedings generally and the process of voir dire examination of prospective jurors in particular (see, People v Jean, 75 NY2d 744, 745 [trial court has discretion to limit examination by counsel on voir dire]; see also, People v Pepper, 59 NY2d 353, 358). This authority necessarily includes the choice whether to employ voir dire sidebars at all (see, People v Mitchell, supra, 80 NY2d, at 527 [voir dire sidebars are "not constitutionally required”]) or, instead, simply to hold all proceedings in public, open court. Moreover, in these cases, the reasonably based experience of trial courts reveals that jurors are less likely to be truthful about biases at sidebars if they are forced to speak of them in close proximity to the defendant (see, People v Vargas instant case record concerning observations to that effect).

Likewise, the trial court’s decision in People v Pondexter that it would require court officers to escort and even surround defendant at the Bench, if he chose to exercise his right to presence at such juror explorations, cannot be said in these circumstances to constitute an abuse of discretion as a matter of law. The Trial Judge was faced with a convicted violent felon on trial for murder, attempted murder, armed robbery and criminal possession of a weapon, and the proximity to a civilian prospective juror at the Bench warranted caution and an appropriate security measure for the courtroom (see, La Rocca v Lane, 37 NY2d 575, cert denied 424 US 968; see also, Brown v Doe, 2 F3d 1236, 1247).

Realistically, the choices posed to the defendants in these three waiver cases are not unlike other hard and even more profound choices with which defendants are routinely faced in thousands of cases and circumstances. For example, defendants regularly have to choose whether to plead guilty or have a trial at all, and even whether to surrender appeal rights as part of a negotiated plea. Such arrangements do not suffer a legal impediment of undue coercion as a matter of law. Indeed, guilty pleas and associated waivers are generally accepted as long as appropriate safeguards against impermissible factual coercion are employed (see, People v Selikoff, 35 NY2d 227, 232-235, cert denied 419 US 1122; see also, Bordenkircher v Hayes, 434 US 357, 363-365, reh denied 435 US 918; People v Callahan, 80 NY2d 273; People v Seaberg, 74 NY2d 1). The defendants here made open and informed decisions to voluntarily waive their Antommarchi right to presence at jury selection sidebars. While trial courts should be vigilant not to overbear with activity that might constitute legally coercive or offensive rulings, we discern no such error in these cases and no legal or record basis to set aside the defendants’ voluntary and informed choices.

Also, in defendant Hutton’s case, reversal would in no event be required because defendant’s presence would have had no impact on the excusai of the one juror at issue (see, People v Feliciano, 88 NY2d 18). This Court held in Feliciano that absence from a voir dire sidebar does not require reversal where "the defendant’s presence could not have afforded him or her any meaningful opportunity to affect the outcome” (id., at 26). Only one prospective juror in Hutton was actually called to sidebar. She stated that she believed that she recognized the defendant from another criminal trial in which she had been a juror six years earlier. The court excused the juror for cause, and both the prosecution and defense consented to that ex-cusal. Thus, the defendant’s right to presence would have been superfluous and reversal would not be required (id., at 24 [ex-cusal "for cause upon consent” would not have required reversal]).

III.

In People v Wilson, defendant also claims that the trial court’s decision to entertain and explore a prospective juror’s fears in private conference violated both his right to be present during material stages of the trial (CPL 260.20; see, People v Antommarchi, 80 NY2d 247, supra) and his right to have the assistance of counsel at trial (see, People v Hilliard, 73 NY2d 584, 586). Because this conference took place before any juror examinations even began and before anyone was sworn, however, we agree with the Appellate Division that it did not implicate the Antommarchi presence protocols. We need decide no other question or aspect on this point, noting, however, that trial courts possess discretionary power in exceptional or potentially dangerous circumstances, even to close courtrooms at the trial itself.

The prospective juror here, first of all, promptly and at the earliest possible opportunity initiated the contact with the Trial Judge. A phase of the trial before voir dire examination begins, at which the Trial Judge explores the founded and credible fear of an importuning prospective juror, including a fear of openly acknowledging that fear to the defendant or his lawyer, is not, under these circumstances, a stage at which the right to presence should categorically apply (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 260.20, at 365). The People v Antommarchi (supra) rationale, thus, has no application in this kind of a situation.

Nor did the trial court deny the defendant his right to "single-minded counsel for the accused” (People v Rosario, 9 NY2d 286, 290, cert denied 368 US 866), by keeping defense counsel out of the in camera conference (see, People v Castillo, 80 NY2d 578, 586-587, cert denied 507 US 1033; see also, People v Darden, 34 NY2d 177, 181). Here, the trial court properly evaluated the juror’s fear for his safety and found it to be genuine. To include defense counsel, who might single-mindedly conclude that a professional obligation bound him to inform the client of the content of the proceedings, as discussed with the frightened prospective juror, would defeat the whole point of the legitimate in camera request and founded basis for ex-cusal. To have acted otherwise would also be an affront to the juror (see, People v Kern, 75 NY2d 638, 651-652 [jury service is a civil right guaranteed by statute and the State Constitution], cert denied 498 US 824) with no cognizable, corresponding advantage to the defendant in these circumstances (see, People v Castillo, supra, 80 NY2d, at 584).

In a sensitive and potentially dangerous development, the trial court in this case appropriately handled and weighed the founded fears of a prospective juror; no corresponding right of defendant was compromised or prejudiced by the court’s actions (see, People v Castillo, 80 NY2d 578, supra).

Finally, the trial court’s sua sponte decision to excuse the juror for cause was not an abuse of discretion, as the court properly recognized that the juror’s negative impressions about the defendant would virtually preclude him from being fair. The record supports the affirmance of the Trial Judge’s conclusion that the juror would have had difficulty "rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20 [1] [b]; see, People v Torpey, 63 NY2d 361).

TV.

A.

In People v Pondexter, defendant raises an independent claim that requires a reversal and new trial. He argues that the trial testimony of Sharon Valdez should have been stricken because she recanted her testimony in a private conversation with defense counsel shortly after she had finished testifying. Before the alleged recantation, Valdez had been fully examined and cross-examined. Defendant urges, however, that Valdez’s subsequent intention to assert her Fifth Amendment privilege against self-incrimination, when defendant wanted to re-call her on a subsequent day of the trial as a witness, prevented defense counsel from fully cross-examining the witness (see, People v Siegel, 87 NY2d 536; People v Chin, 67 NY2d 22; see also, Klein v Harris, 667 F2d 274, 289), and thus denied defendant the right to confront witnesses against him (US Const 6th Amend).

Striking a witness’s testimony is "the most drastic relief’ available when a witness refuses further cross-examination under a claim of self-incrimination, and a court should only invoke it when there are no less drastic alternatives (see, People v Siegel, supra, at 544). But a trial court has an obligation to weigh the options, and the threshold inquiry and exercise were not undertaken and fulfilled here. When the court is faced with a recantation of the crux of a key witness’s testimony under the circumstances as they evolved in this case, the court must at least explore whether that witness has essentially "refused to testify on questions of matters 'so closely related to the commission of the crime that the entire testimony of the witness should be stricken’ ” (People v Siegel, supra, 87 NY2d, at 544, quoting United States v Cardillo, 316 F2d 606, 613 [2d Cir], cert denied 375 US 822). On this record, the trial court did not satisfy the governing prerequisites (see, People v Siegel, supra; People v Chin, 67 NY2d 22, supra; see also, Bagby v Kuhlman, 932 F2d 131, 135, cert denied sub nom. Bagby v Kuhlmann, 502 US 926; Klein v Harris, 667 F2d 274, 287-289, supra). Because of the centrality of Valdez’s testimony to the People’s case, we therefore reverse the order of the Appellate Division sustaining the conviction and we order a new trial.

B.

In People v Wilson, a similar claim is advanced with respect to a prosecution witness, Ronnette Parker, who testified that she saw the defendant shoot the murder victim. Two days after the testimony, defense counsel learned that Parker had previously been the subject of drug possession charges which, at the time of defendant’s trial, had been dismissed. When defendant attempted to re-call Parker to the stand for further cross-examination about these charges, the witness let it be known, on the advice of counsel, that she would assert her Fifth Amendment privilege as to the unrelated drug charges. The trial court denied defense counsel’s request to have Parker’s entire prior testimony stricken or, in the alternative, to re-call the witness to assert the privilege in the jury’s presence.

In sharp distinction to People v Pondexter, the trial court in People v Wilson acted within its discretion in refusing to strike Parker’s testimony, because it involved only "collateral matters * * * relating to general credibility” (People v Siegel, supra, 87 NY2d, at 544). Moreover, even if the witness had not asserted the Fifth Amendment, the court would have acted within its discretion in the first instance in not permitting the witness to be cross-examined about a dismissed charge (see, People v Rodriguez, 38 NY2d 95, 101) or its underlying facts (see generally, People v Sorge, 301 NY 198, 201; La Beau v People, 34 NY 223, 230; Prince, Richardson on Evidence § 6-304, at 381-382 [Farrell 11th ed 1995]). Thus, no basis is presented for any relief concerning the witness’s prior testimony, upon the assertion of the privilege in this respect and at this stage.

V.

Lastly, the defendant in People v Hutton claims that the trial court shifted the burden of proof in its instruction to the jury on recent, unexplained and exclusive possession of stolen property (see, People v Moro, 23 NY2d 496). He argues that the court stated on more than one occasion that "the proof shows that the defendant was found in possession of stolen property in the grand larceny within fifteen to twenty minutes of the commission of such crime.” As defendant never conceded possession of the car — he instead argued at trial that he was never inside the car — he claims that the court’s statements essentially directed the jury to find that he was in the car.

At the time the prosecutor suggested that the court give the jury this particular instruction on recent exclusive possession, defense counsel objected only on the ground that the charge was not appropriate in a stolen car case because of the mobility of the vehicle. At no time did the defendant request any curative or corrective instruction or that the offending language be stricken or removed, except to remark that "there has been a question as to his actual presence in the car.” The claim is therefore not preserved for appellate review (CPL 470.35 [1]; 470.05 [2]; see, People v Gray, 86 NY2d 10, 19).

Accordingly, the respective orders of the Appellate Division in People v Vargas, People v Wilson and People v Hutton should be affirmed; in People v Pondexter, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

In People v Vargas, People v Wilson and People v Hutton: Order affirmed.

In People v Pondexter: Order reversed, etc.


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [669 NE2d 234, 646 NYS2d 300]
    Connie Goodwin, Respondent, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, Appellant, et al., Defendants.
    Argued April 23, 1996;
    decided June 6, 1996

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Denise A. Hartman, Victoria A. Graffeo, Barbara G. Billet, Robert A. Forte and Peter H. Schiff of counsel), for appellant.
    I. The tenant of record requirement implements the objective of Social Services Law § 131-s to provide emergency assistance to persons only "where no alternative payment or living arrangements can be made”. (Matter of Barie v Lavine, 40 NY2d 565; Childs v Bane, 194 AD2d 221, 83 NY2d 760; Stevens v Perales, 155 AD2d 329; Sutter v Perales, 103 AD2d 1029, 64 NY2d 1095; Matter of Robinson v Perales, 166 AD2d 594, 78 NY2d 851.) II. The tenant of record requirement is in full accord with the language and purpose of the Low-Income Home Energy Assistance Act of 1981 (LIHEAA) and is a proper exercise of administrative discretion by State officials implementing a Federal block grant program. (Suter v Artist M., 503 US 347; Rodriguez v Cuomo, 953 F2d 33.) III. Plaintiff is, in any event, not entitled to attorney’s fees under 42 USC § 1988 because the LIHEAA confers no rights enforceable under 42 USC § 1983. (Maine v Thiboutot, 448 US 1; Suter v Artist M., 503 US 347; Pennhurst State School v Halderman, 451 US 1; Cabinet for Human Resources v Northern Ky. Welfare Rights Assn., 954 F2d 1179; Hunt v Robeson County Dept. of Social Servs., 816 F2d 150; Crawford v Janklow, 710 F2d 1321; Rodriguez v Cuomo, 953 F2d 33.)

      Gerald A. Norlander, Albany, B. Robert Piller and Charles J. Brennan for respondent.
    I. The tenant of record requirement for emergency Home Energy Assistance Program (HEAP) benefits violates 42 USC § 8624 (b) (5) and § 8623 (c) and section 97 of the New York Social Services Law. (Crawford v Janklow, 710 F2d 1321; Boles v Earl, 601 F Supp 737; State Communities Aid Assn. v Regan, 112 AD2d 681, 69 NY2d 821; Rodriguez v Cuomo, 953 F2d 33; Hayes v Human Resources Admin., 648 F2d 110; Cabinet for Human Resources v Northern Ky. Welfare Rights Assn., 954 F2d 1179; Chapman v Houston Welfare Rights Org., 441 US 600; Wilson v Garcia, 471 US 261; Wilder v Virginia Hosp. Assn., 496 US 498.) II. The tenant of record rule violates Social Services Law § 131-s because it adds an eligibility requirement out of harmony with the statute. (Matter of Jones v Berman, 37 NY2d 42; Matter of Harbolic v Berger, 43 NY2d 102; Matter of Robinson v Perales, 166 AD2d 594; Matter of Rivera v Berger, 89 Misc 2d 586, 60 AD2d 605, 44 NY2d 642; Troche v Blum, 78 AD2d 678; Matter of Barie v Lavine, 40 NY2d 565; Childs v Bane, 194 AD2d 221, 83 NY2d 760; Jiggetts v Grinker, 75 NY2d 411; Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88.) III. The tenant of record rule categorically denies a need recognized by the Legislature, emergency utility assistance, in violation of article XVII of the New York Constitution. IV. The tenant of record rule is invidious and irrational, disqualifying plaintiff from emergency utility assistance and emergency HEAP benefits on the basis of her marital status and lack of a real property interest, in violation of plaintiff’s right to equal protection of the law. (Landes v Town of N. Hempstead, 20 NY2d 417; Male v Crossroads Assocs., 469 F2d 616; Goodwin v Perales, 197 AD2d 214; People v Onofre, 51 NY2d 476; Hurley v Van Lare, 380 F Supp 167; Foss v City of Rochester, 65 NY2d 247; Reed v Reed, 404 US 72; Matter of Bernstein v Toia, 43 NY2d 437; U. S. Dept. of Agric. v Moreno, 413 US 528.) V. Plaintiff is a "prevailing party” entitled to an award of attorney’s fees under 42 USC § 1988 because she prevailed on a Federal statutory claim and because her State law claims are pendent to substantial Federal constitutional claims. (Matter of Johnson v Blum, 58 NY2d 454; Matter of Thomasel v Perales, 78 NY2d 561; U. S. Dept. of Agric. v Moreno, 413 US 528; Landes v Town of N. Hempstead, 20 NY2d 417.)
   OPINION OF THE COURT

Chief Judge Kaye.

Can New York require that applicants for emergency public assistance benefits to pay utility bills be "tenants of record” (meaning that they have primary responsibility for making monthly rent or mortgage payments on the dwelling units for which they seek public funds)? We conclude that New York’s tenant of record requirement accords with both the Federally funded Home Energy Assistance Program (HEAP) (42 USC § 8621 et seq.; Social Services Law § 97) and New York’s own State-funded emergency energy program for recipients of public assistance (Social Services Law § 131-s). We therefore reverse the judgment appealed from and the orders of the Appellate Division that declared the regulations invalid.

Facts

Since 1988, plaintiff Connie Goodwin has lived with her three teenage daughters and John Potter (not the girls’ father) in a single-family home in Addison, New York. As owner of the house, Potter is responsible for making all mortgage, tax and insurance payments on the property. Plaintiff, in turn, pays Potter $400 in monthly rent which she now receives under an Aid to Families with Dependent Children (AFDC) grant and other public assistance allowances (18 NYCRR part 352). According to a "Landlord Verification” form certified by Potter and submitted by plaintiff as part of her public assistance application, her rent includes all utilities such as heat, electricity, gas and water. Thus, although Potter is legally responsible for providing plaintiff with electricity, the account with the local utility company at Potter’s home is listed in plaintiff’s — not Potter’s — name.

Having fallen behind on electricity payments and in default of an earlier deferred payment plan with the local utility company, plaintiff in late November 1990 received a final termination notice advising her that electric service would be shut off on December 6 due to an unpaid bill of approximately $450. Threatened by the loss of heat as a result of a shutoff and unable to negotiate a new repayment plan with the utility company, plaintiff on January 4, 1991 applied to defendant Department of Social Services (DSS) for Federal HEAP and New York emergency energy assistance benefits.

Plaintiff’s application was denied on the ground that DSS regulations require all applicants for Federal and State utility benefits to be both the tenant of record and the customer of record in order to receive funds (see, 18 NYCRR 393.4, 352.5). Although plaintiff clearly satisfied the customer of record criterion, she was not a tenant of record under DSS’ definition of that term. As stated in the Notice of Denial:

"Connie resides with a John Potter who is the homeowner. To qualify for Emergency Energy Assistance the applicant/recipient must be the tenant of record and have direct, primary responsibility for the payment of the energy cost. A person residing with a homeowner is not considered the tenant of record.”

After DSS adhered to its original determination on administrative appeal, plaintiff filed her complaint in this lawsuit challenging the tenant of record requirement on statutory and constitutional grounds and seeking declaratory and injunctive relief. Plaintiffs primary contention is that DSS exceeded its statutory authority in promulgating the tenant of record requirement under applicable Federal and State law which, according to plaintiff, provides merely that benefits be provided to those who are in need of them. Plaintiff also argues that the tenant of record requirement violates her constitutional rights to equal protection of the law by denying her benefits which would otherwise be available if she were married.

In separate orders issued 10 months apart resolving plaintiff’s motion for summary judgment, the trial court upheld the tenant of record requirement under the Federal HEAP program, while invalidating it under New York’s emergency energy assistance program. Upon consolidation of the orders, the Appellate Division, agreeing with the trial court in part, concluded that the tenant of record requirement was invalid under both the Federal and State energy assistance programs (197 AD2d 214). The Appellate Division remitted the matter for reconsideration of plaintiff’s application for benefits and for a hearing on her request for costs and attorney’s fees. Neither court reached the merits of plaintiff’s constitutional claims.

Having dismissed an earlier notice of appeal on the ground that no substantial constitutional question was involved and then having granted leave to appeal, we now reverse.

Analysis

New York currently administers two parallel programs for providing emergency assistance to needy persons threatened with imminent loss of utility service as a result of financial hardship. The programs are separately funded — one by the Federal Government, one by the State. Each originates from a separate statutory scheme and each has been implemented by DSS with distinct sets of administrative regulations. We thus examine each separately.

A. HEAP/LIHEAA

The Federally funded Home Energy Assistance Program, commonly known as HEAP, had its origins during the beginning of the Reagan administration’s effort "to allocate funds to the states in the form of block grants so that they could be used efficiently in meeting the differing needs of local communities” (Rodriguez v Cuomo, 953 F2d 33, 38). Acting in this spirit as part of the 1981 Omnibus Budget Reconciliation Act, Congress decided to repeal an earlier low-income energy assistance statute (42 USC former §§ 8601-8612 [added by Pub L 96-223]) and "replace[ ] it with a fiscally trimmer version * * * which removed many of the federal regulations that had controlled the distribution of federal energy assistance funds” (Clifford v Janklow, 733 F2d 534, 536).

Under the resulting legislation, known as the Low-Income Home Energy Assistance Act of 1981 (LIHEAA) (42 USC § 8621 et seq.), Congress was to make block grants of Federal dollars to qualified States which were then to distribute the funds "to assist low-income households * * * in meeting their immediate home energy needs” (42 USC § 8621 [a]). In keeping with the block grant format, Congress authorized States like New York that participate in HEAP to submit their own plans to administer and distribute the Federal funds for approval by the Secretary of Health and Human Services (42 USC § 8624 [a]). In general, each State’s plan must agree to "provide, in a timely manner, that the highest level of assistance will be furnished to those households which have the lowest incomes and the highest energy costs or needs in relation to income” (42 USC § 8624 [b] [5]).

A household is eligible to receive HEAP benefits if it receives an AFDC grant, food stamps or other forms of public assistance or its combined income does not exceed 150% of the poverty line or 60% of a State’s median income (42 USC § 8624 [b] [2]). In addition, certain individuals — such as those who are in an institution which already receives Social Security benefits— are specifically excluded from receiving HEAP benefits (42 USC § 8624 [i]).

Beyond those relatively broad parameters, however, the LIHEAA expressly delegates to the States the responsibility for formulating criteria as to "the eligibility requirements to be used * * * for each type of assistance to be provided” (42 USC § 8624 [c] [1] [A]). The significance of such delegation is highlighted by the applicable Department of Health and Human Services regulations which provide that "the States are primarily responsible for interpreting the governing statutory provisions. * * * [T]he Department will defer to a State’s interpretation * * * of the block grant statutes unless the interpre-. tation is clearly erroneous” (45 CFR 96.50 [e]). "So long as minimal requirements established under the Act are met, the states are free to design their own programs” (Rodriguez v Cuomo, 953 F2d 33, 34).

Acting upon this delegation as well as under provisions of State law (see, Social Services Law § 97 [2]), New York promulgated regulations establishing eligibility criteria for recipients of HEAP funds (18 NYCRR 393.4). To further assist in the administration of New York’s HEAP program, DSS also issued various administrative directives and manuals with specific instructions to be used by local social services districts when responding to HEAP applications (see, 87 ADM-51, 1990 NY St DSS HEAP Manual).

At issue here is the DSS regulation, initially filed as an emergency measure effective February 27, 1989, which provides that in order to be eligible for emergency HEAP benefits,

"the applicant must document that he/she is the tenant of record with primary responsibility for the payment of his/her heat-related residential energy bill. A tenant of record is a person who has * * * primary responsibility for payment of the monthly rent or mortgage for their dwelling unit. A homeowner whose mortgage has been satisfied is also considered a tenant of record. Individuals who contribute a portion of the monthly rent /mortgage to a person responsible for payment of the rent/ mortgage for their dwelling unit will not be considered a tenant of record.” (18 NYCRR 393.4 [d] [l].)

Because plaintiff contributes her monthly rent to John Potter, the person responsible for making mortgage payments, she does not meet this tenant of record requirement and challenges it as a violation of the LEHEAA.

Faced with a similar challenge to New York’s HEAP regulations, the United States Court of Appeals for the Second Circuit upheld a DSS directive excluding tenants of government subsidized housing with heat included in their rent from receiving nonemergency HEAP funds (18 NYCRR 393.4 [c] [3] [i]) even though the regulation had the effect of excluding persons who otherwise satisfied the minimal eligibility criteria set forth in the statute (Rodriguez v Cuomo, 953 F2d 33 [1992]).

Outlining the extensive legislative history surrounding the LIHEAA as well as the relevant statutory provisions, the Second Circuit concluded that Congress did not intend that States must award HEAP benefits to each and every household which meets the minimal eligibility guidelines set forth in the statute. To the contrary, given the finite limits on Federal dollars, a State may target specified households to receive HEAP benefits in order to fulfill the statutory purpose of assisting those who have the highest energy costs or needs in relation to income.

Citing Chevron U.S.A. v Natural Resources Defense Council (467 US 837), the Second Circuit reasoned that given the express delegation in the LIHEAA from Congress to the States, "the states stand in much the same position as would a federal administrative agency given authority over an analogous federally-controlled program” (id., at 39). Determining eligibility requirements to select the neediest households " 'requires the formulation of policy and the making of rules’ and thus is a determination that falls within the purview of the states’ interpretative authority” (id., at 40-41). Of course, as this Court has repeatedly stated, an "agency’s interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational” (Matter of Rodriguez v Perales, 86 NY2d 361, 367). Applying that standard of review, the Second Circuit determined that New York "rationally conclude[d] that tenants occupying government subsidized housing with heat included in the rent are less in need of HEAP funds than, for example, tenants who do not live in such housing” (Rodriguez v Cuomo, 953 F2d, at 41).

The Second Circuit in Rodriguez v Cuomo thus read great significance into the block grant nature of the HEAP program. So do we. As outlined in the next section of this opinion discussing the validity of the tenant of record requirement under New York law, DSS’ rationale for the tenant of record criterion — that it assures that DSS make payments only to those most in need of them and that it allows DSS to do so in a timely and efficient manner — is fully consistent with the LIHEAA’s purpose and is not unreasonable, irrational or clearly erroneous. It will therefore not be disturbed by this Court on appeal.

B. HEFPA/Social Services Law § 131-s

Fifteen years ago, the New York Legislature enacted various amendments to the Social Services Law, the Public Service Law and the Transportation Corporations Law, collectively known as the Home Energy Fair Practices Act (HEFPA), relating to the supply and termination of utility service to low income New Yorkers (L 1981, ch 895). The broad purpose of this legislation was to coordinate efforts between DSS and local utility companies to identify and protect utility customers receiving or applying for public assistance threatened with disconnection of their utility service as a result of inability to pay their bill.

Although applicable DSS regulations at the time guaranteed payment of utility costs only for a four-month period, a lower court decision apparently interpreted the law to require DSS to pay any arrearage incurred regardless of length or extent (see, Matter of Rivera v Berger, 89 Misc 2d 586, affd 60 AD2d 605). In order to restore the four-month time limit and conserve scarce public resources, the Legislature as part of HEFPA added a new section to the Social Services Law, originally designated section 131-p and changed a year later to section 131-s (L 1982, ch 230, § 4) — the provision at issue here. This new section was intended to clarify that DSS’ responsibility to compensate for unpaid utility bills “would be limited to a customer’s current bill and for four months of any arrearages” (see, Mem of Dept of Public Service, July 16, 1981, Bill Jacket, L 1981, ch 895).

The text of Social Services Law § 131-s is relatively simple. In order to obtain funds to pay a utility bill, an individual like plaintiff applying for or receiving public assistance must be threatened with termination of utility service due to a lack of funds (Social Services Law § 131-s [1], [2] [a]). In addition, in cases where the applicant is already receiving public assistance benefits, the applicant must have fully applied any public assistance funds received (Social Services Law § 131-s [2] [a]) or made a written request to DSS in advance for a utility cost allowance (Social Services Law § 131-s [2] [b]). Assuming that these criteria are met, the statute provides that “the social services district in which such person resides shall, unless alternative payment or living arrangements can be made, make a payment to a gas corporation, electric corporation or municipality for services provided * * * for the most recent four months in which service was rendered prior to the application” (Social Services Law § 131-s [1], [2] [emphasis added]).

Acting on the general grant of authority provided to it to establish rules and policies to administer the public assistance system in this State (Social Services Law § 20 [3] [d]; § 34 [3] [f]), DSS promulgated regulations effective March 27, 1986 (18 NYCRR 352.5) creating a comprehensive methodology for determining eligibility and payment methods under Social Services Law 131-s.

Like the DSS regulations implementing the Federal program providing HEAP benefits on an emergency basis, these regulations require that recipients of public assistance such as plaintiff who seek additional State benefits under Social Services Law § 131-s demonstrate to DSS’ satisfaction that they are actually in need of the funds. To that end, DSS requires applicants to document that they are both the tenant of record and the customer of record with the utility company (18 NYCRR 352.5 [e], [f] [1]). As stated in the regulations themselves:

"Prior to granting energy assistance * * * , it must be documented that the applicant * * * is the tenant and customer of record. A tenant of record is a person who has primary responsibility for payment of the monthly rent or mortgage for the dwelling unit. Individuals who contribute a portion of the monthly rent/mortgage to a person responsible for payment of the monthly rent/mortgage for the dwelling unit will not be considered a tenant of record. A customer of record is a person who has an account in his or her name with a home energy vendor.” (18 NYCRR 352.5 [a] [emphasis in original].)

Relying on Matter of Jones v Berman (37 NY2d 42), plaintiff argues that DSS exceeded its authority in promulgating the tenant of record restriction under Social Services Law § 131-s because it constitutes a new eligibility requirement not found in the text of the statute itself.

Matter of Jones v Berman involved three plaintiffs, two of whom had money and food stamps stolen from them after cashing their public assistance checks at the bank. Invalidating a DSS regulation that prevented these plaintiffs from obtaining an emergency AFDC grant on the ground that their resulting financial crisis was "due to loss, theft, or diversion of a grant already made,” this Court, stressing the plaintiffs’ utter lack of culpability, held that "the summary denial of assistance without regard to the honesty of the loss or the actual destitute circumstances of the people intended to be protected by the act, was both arbitrary and capricious” (37 NY2d, at 52-53). In reaching that result, the Court stated the general proposition that "Administrative agencies can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute” (id., at 53).

Despite plaintiffs argument, there is a significant difference between the regulation at issue in Berman and the tenant of record requirement challenged here. In Berman, there was nothing applicants whose public assistance benefits had been stolen from them could do to obtain emergency funds — being the victim of a crime is hardly a status within one’s control. Here, by contrast, all that plaintiff had to do in order to submit a proper application for emergency utility funds was to change the electricity account to Potter’s name as tenant of record. Plaintiff in fact was specifically advised to do so during a hearing on an application for natural gas funds the year before.

As a practical matter, it was incumbent upon DSS to adopt rules and regulations to administer New York’s emergency energy assistance program and to establish a mechanism for the efficient and equitable distribution of finite funds. The particular documentation required to establish eligibility — rarely a topic covered in statutes — is one example of a matter relegated to the agency’s sound discretion. Various provisions in the Social Services Law reinforce this by conferring upon DSS the power to establish "rules, regulations and policies to carry out its powers and duties under this chapter” (Social Services Law § 20 [3] [d]) as well as "regulations for [the] administration of public assistance and care within the state” (Social Services Law § 34 [3] [f|; see also, Matter of Barie v Lavine, 40 NY2d 565, 568).

Thus, despite plaintiff’s broad reading of certain language in Matter of Jones v Berman (see, 37 NY2d, at 53), the law does not foreclose all agency regulations going beyond the text of the statute. Rather, Matter of Jones v Berman permits such regulations as long as they are in harmony with the statute’s over-all purpose (37 NY2d, at 53).

This principle that an agency like DSS may promulgate regulations going beyond the statute itself as long as they are consistent with legislative intent can be found in several of our cases since Matter of Jones v Berman involving challenges to agency-imposed, eligibility requirements for recipients of public assistance benefits. In Matter of Barie v Lavine (40 NY2d 565, supra), for example, we upheld a DSS regulation denying welfare benefits to individuals who failed to participate in a job referral program. Stressing the language in the statute requiring DSS to provide for those "unable to maintain themselves” (Social Services Law § 131 [1]), we concluded that the regulation was a reasonable exercise of administrative discretion in effectuating that purpose since it guaranteed that applicants who were capable of getting a job would be compelled to do so. As the Court explained: "While we are aware that the sanction may appear harsh to the petitioner, and the wisdom of the regulation by which it is employed has not gone unquestioned * * *, it is not the function of this court to sit in review of legislative policy and the rationally based implementation thereof by an administrative agency, so long as no constitutional or statutory mandate is violated” (id., at 569 [citations omitted]; see also, Matter of Mercy Hosp. v New York State Dept. of Social Servs., 79 NY2d 197, 204 ["If (a regulation) is reasonably designed to further the regulatory scheme, it cannot be disturbed by the courts unless it is arbitrary, illegal or runs afoul of the enabling legislation or constitutional limits”]).

Similarly, in a case upholding a regulation setting a maximum shelter allowance for public assistance recipients without making exception for individual circumstances, we concluded that the "regulation reflecting the choice made by the department * * * is beyond our power to disturb unless it is 'so lacking in reason for its promulgation that it is essentially arbitrary’ ” (Matter of Bernstein v Toia, 43 NY2d 437, 448 [citation omitted]; see also, Baumes v Lavine, 38 NY2d 296 [upholding regulation prohibiting public assistance funds from being used to replace worn-out furniture]).

As is evident from its history, the Legislature’s immediate goal in enacting Social Services Law § 131-s was to save money by limiting emergency funds for utility costs to a four-month period. Also implicit in the statute is the principle that emergency energy assistance be made available only to those who legitimately need it. Specifically, the statute provides that benefits are payable only when no "alternative payment or living arrangements can be made” (subds [1], [2]). In fact, prior to adoption of the tenant of record requirement, local social services districts often found themselves in the unfortunate position of unwittingly having to pay the utility costs not only of qualified applicants, but also of individuals living with them who were in a far better economic position and who might otherwise be ineligible for public assistance in the first place.

Intended to deter misuse of the system in this way, the tenant of record requirement was designed to insure that State-funded emergency utility benefits are distributed as carefully as possible by "enhancing] the ability of a social services district to determine eligibility for fuel allowances and * * * promoting] client accountability” (Proposed Rulemaking, Regulatory Impact Statement, NY St Register, Aug. 19, 1987, at 26). In so doing, DSS sought to "strik[e] a balance between the interests of recipients of public assistance and those of the State which must allocate limited welfare funds among those most in need of aid” (Matter of Barie v Lavine, 40 NY2d at 568-569). Low income individuals on public assistance who are unable to support themselves are often not in a position to assume payment responsibility for a bill which provides utility service used by others and which supplies heat or electricity to a building for which they do not have to pay the rent or mortgage. Were DSS to pay the fuel and domestic utility bills of individuals who are not in fact the tenant of record, it would only be encouraging public assistance recipients to assume payment responsibility for utility costs regardless of whether they have the financial wherewithal or legal responsibility to do so. In other words, "[i]t is unlikely that the Legislature intended that payments be made for fuel and utility bills to an individual who does not have or should not have responsibility to pay such bills” (Notice of Adoption, Assessment of Public Comment, NY St Register, Dec. 30, 1987, at 146).

Subsequent amendments to Social Services Law § 131-s (1) further demonstrate this policy of reducing wasteful expenditure of New York public assistance funds by requiring emergency utility applicants whose household income is above the poverty line to sign an agreement guaranteeing repayment within one year and permitting DSS to enforce such agreement by resort to conventional creditor remedies (L 1992, ch 41, § 128; Childs v Bane, 194 AD2d 221).

Certainly, the possibility that no true emergency exists is more than remote here. Potter — not plaintiff — is the owner of the single-family home in which plaintiff lives and is responsible for paying the mortgage. Plaintiff already pays Potter $400 in rent which includes her electricity costs. Thus, it is Potter’s — not plaintiff’s — responsibility to use that money to pay the utility bill.

Moreover, Potter himself was not an applicant for emergency utility assistance or an AFDC recipient and DSS thus had no way of knowing whether or not he was eligible for public assistance funds. If Potter is in fact truly needy, then as the tenant of record he should apply for benefits under Social Services Law § 131-s. If he is not, then he should pay the utility arrearage himself. Unlike the regulation invalidated by the court in Matter of Robinson v Perales (166 AD2d 594), plaintiffs household was not categorically exempt from receiving emergency utility assistance benefits. She was simply the wrong person in the household to apply for them.

C. Equal Protection

Finally, plaintiff’s assertion that the tenant of record requirement violates her constitutional rights to equal protection is also devoid of merit.

"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,’ it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality’ ” (Dandridge v Williams, 397 US 471, 485 [citations omitted]; see also, Lovelace v Gross, 80 NY2d 419, 426-427).

Although plaintiff is correct in asserting that she would satisfy the tenant of record requirement if she were Potter’s wife (see, 18 NYCRR 393.4 [d] [1]; 352.5 [a]), her unmarried status is not what disqualifies her from receiving benefits. What does disqualify her is the fact that she is not the tenant of record. Assuming that Potter were to meet the other eligibility requirements set forth in the DSS regulations, there is no question that he would be entitled to receive emergency utility benefits under both the LIHEAA and Social Services Law § 131-s regardless of the fact that he is not married to plaintiff.

In any event, even if plaintiff were to become Potter’s wife, applicable DSS regulations would not only prohibit Potter from charging her rent paid out of her monthly shelter allowance but also would require that any application for additional public assistance benefits be made by them jointly, with a sworn statement as to the financial situation of plaintiff as well as Potter.

Given these factors, DSS’ decision to treat unmarried persons differently for purposes of determining eligibility for emergency utility benefits under the applicable Federal and State statutes was not unreasonable. "We can find no compelling constitutional or statutory reason to overturn the judgment of public officials charged with the onerous responsibility of disbursing limited welfare funds” (Matter of Barie v Lavine, 40 NY2d 565, 569-570, supra).

Accordingly, the judgment appealed from and the orders of the Appellate Division brought up for review should be reversed, without costs, and judgment granted declaring that the tenant of record rules promulgated at 18 NYCRR 393.4 and 352.5 do not violate Federal or State law in accordance with this opinion.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Judgment appealed from and orders of the Appellate Division brought up for review reversed, without costs, and judgment granted declaring in accordance with the opinion herein.

      . Apparently, this was not the first time plaintiff was unable to pay her utility bill. In June 1989, plaintiff’s application for emergency public assistance utility funds to satisfy an arrearage in her natural gas account was denied on the ground that she was not the tenant of record. At the DSS hearing on that application, plaintiff was advised to list the natural gas account in Potter’s name so as to be eligible for benefits in the future.

      . Given our conclusion that the tenant of record requirement is not violative of any Federal law, it is unnecessary for us to decide whether costs' and attorney’s fees were properly awarded to plaintiff pursuant to 42 USC § 1988 — an issue of Federal law (compare, Crawford v Janklow, 710 F2d 1321, with Hunt v Robeson County Dept. of Social Servs., 816 F2d 150).

      . States are directed to make HEAP funds available on both a regular and an emergency basis. Given the utility company’s threat to shut off her electricity, plaintiff’s HEAP application was limited to a request for emergency or "energy crisis intervention” funds which must be provided to qualified applicants no later than 48 hours after submission of a request (42 USC § 8623 [c] [1]). Although DSS regulations require that applicants for emergency HEAP funds (18 NYCRR 393.4 [d]) must be tenants of record, applicants for regular HEAP benefits do not have to satisfy the tenant of record requirement (18 NYCRR 393.4 [c]).


text:
    [668 NE2d 1362, 646 NYS2d 69]
    The People of the State of New York, Respondent, v Joshua Samuel Huston, Appellant.
    Argued March 26, 1996;
    decided June 13, 1996

      POINTS OF COUNSEL

      Howard, K. Broder, Rochester, for appellant.
    I. The trial court’s refusal to allow the defense to place Jule Huston’s exculpatory Grand Jury testimony before the trial jury deprived defendant of his fundamental constitutional right to present a defense. (Chambers v Mississippi, 410 US 284; People v Tinh Phan, 150 Misc 2d 435; United States v Agurs, 427 US 97; Ohio v Roberts, 448 US 56; United States ex rel. Bracey v Fairman, 712 F2d 315; Washington v Texas, 388 US 14.) II. Prosecutorial transgressions impaired the integrity of the Grand Jury proceeding and, without question, prejudice to defendant may have resulted. (People v Lancaster, 69 NY2d 20; People v Pelchat, 62 NY2d 97; People v Di Falco, 44 NY2d 482; People v Jones, 157 Misc 2d 45; People v Wilkins, 68 NY2d 269; People v Paperno, 54 NY2d 294; People v Hollis, 144 Misc 2d 259; Matter of Grand Jury of County of Suffolk, 117 Misc 2d 197.)

      Matthew J. Murphy, III, District Attorney of Niagara County, Lockport (Thomas H. Brandt of counsel), for respondent.
    I. The trial court correctly denied appellant’s request to admit his father’s Grand Jury testimony at trial. II. The Grand Jury proceedings were not defective. (People v DeFreece, 183 AD2d 842.)
   OPINION OF THE COURT

Chief Judge Kaye.

In our State justice system, the critical functions of investigating criminal activity and protecting citizens from unfounded accusations are performed by the Grand Jury, whose proceedings are conducted by the prosecutor alone, beyond public scrutiny. When the Grand Jury is subjected to improper influence and bias, its ability to discharge these essential functions fairly and reliably is necessarily undermined and the integrity of this constitutionally and historically independent institution impaired.

In order to protect the liberty of all citizens, the Legislature requires that an indictment be dismissed where the Grand Jury proceeding is defective (see, CPL 210.20 [c]). Moreover, dismissal of the indictment is specifically compelled by statute when the integrity of the Grand Jury proceeding is impaired "and prejudice to the defendant may result” (CPL 210.35 [5]).

The issue in this case is whether prosecutorial improprieties during presentation of defendant’s case to the Grand Jury rendered the resultant indictment fatally defective. Because the prosecutor’s misconduct was intentional, usurped the function of the Grand Jury and biased the proceedings against the defendant,, it impaired the integrity of the Grand Jury proceedings and created a substantial risk of prejudice to the defendant. We therefore reverse the order of the Appellate Division and dismiss the indictment, as mandated by CPL 210.35 (5), with leave to the District Attorney to seek resubmission of the charges to another Grand Jury.

Facts

On the evening of April 14, 1982, defendant’s wife, Mary Huston, and her mother, Allison Brown, were murdered in their home. Defendant and Mary Huston had been married, divorced and remarried. At the time of the murders, defendant was living at the home of his brother, Frank Huston.

That evening, defendant accompanied the police to the station for questioning and provided them with a statement regarding his whereabouts. Defendant told the police that he had been served with divorce papers that day and went to his wife’s house in the late afternoon to discuss them with her, accompanied by a friend. Later, he made his evening walk past his wife’s house. The police searched the home of Frank Huston with defendant’s consent and also interviewed various family members. Nevertheless, they were unable to link defendant or anyone else to the crime, and no arrests were made.

One and one-half years later, the police resumed their investigation, and Grand Jury proceedings against defendant commenced in November 1983. The first civilian witness called by the prosecutor to testify before the Grand Jury was Emma Threats. Threats was a friend of Vickie Pickles, who lived with defendant’s father, Jule Huston. Threats testified that Pickles came to her apartment at 5:00 a.m. on April 15, 1982, the day after the murders. Threats further testified that Pickles had a drink; Pickles told her that defendant had arrived at their apartment the previous evening, covered with blood and carrying a knife; and that Pickles informed her that defendant had stated to his father, "I told you I was going to do it and I did it.” According to Threats, Pickles also told her that defendant had left the knife at their apartment.

The prosecutor informed the Grand Jury that Threats’ testimony constituted hearsay and that "[i]t is not evidence, that you can use at all against Joshua Samuel Huston.” But he then said:

"I’m asking you now to perform the task of excluding that from your mind with respect to your ultimate deliberation regarding Joshua Samuel Huston. What we’re going to be doing is calling in Vickie Pickles. I’ll have the subpoena served upon her. She’ll be in probably two week[s] from today. At that time we’ll try and get the truth from her. If she’s cooperative and is willing to tell us the truth, then there’s no problem, you’ll just drop out and forget about the testimony entirely that you’ve heard from Emma Threats. If we have problems and if Vickie Pickles, whether it’s from fear or obstinacy, whatever, is not going to cooperate with us and disclose the truth to us, then I will be bringing up the other witness who has similar testimony as this from Georgia and seek a perjury indictment against Vickie Pickles from you. Okay. That’s the purpose of it. And that’s the admonition that I want the record to reflect.”

Two weeks later, Pickles was called before the Grand Jury. She testified that defendant had visited his father earlier in the day on April 14, 1982. Defendant showed up again at 8:00 that evening, with a knife hidden in the sleeve of his blue jacket. Although there was blood on the tip of the knife and on defendant’s hand, she saw no blood on defendant’s clothing. According to Pickles, defendant told his father, "I think I killed them.” He did not leave the knife at their apartment but took it with him after Pickles refused to get rid of it.

Pickles contended that her conversation with Threats the next day took place in the afternoon and in Threats’ van, not her apartment. She further maintained that, while she never informed the police of this incident, she related it to a friend named Charles Jones as well.

The grand jurors themselves asked that defendant’s father be subpoenaed to testify, but the prosecutor expressed reluctance, responding that Jule Huston might be implicated in the commission or facilitation of the crime. Two weeks after Pickles’ testimony, however, Jule Huston testified before the Grand Jury. He maintained that defendant never returned to their apartment after his afternoon visit. According to Jule Huston, Pickles was an alcoholic who suffered from hallucinations.

Notwithstanding Jule Huston’s repeated denials that defendant appeared at their apartment the evening of the murders displaying a knife, the prosecutor continued time and again to assume the existence of these repudiated facts during extended questioning of Huston. For instance, the prosecutor prefaced his questions to Huston with statements such as, "when [defendant] came over to your apartment that night” or "on that evening, when [defendant] displayed the knife.” Even after Huston had steadfastly maintained that he never saw defendant that evening and that defendant never made any statement to him about the murders, the prosecutor asked questions such as, "that night, Wednesday, April 14th, 1982, when [defendant] said that he thought that he had killed both of them, did you indicate to him to just throw the knife into the field?”

During Huston’s testimony, the prosecutor ordered him to stop "running your mouth off without listening.” Huston was examined regarding the fact that, in the past, he had admitted himself to a psychiatric institution and pleaded guilty in a robbery case. He was also asked about his son’s prior drug addiction. Pickles, by contrast, was never questioned about her alleged drinking problem, even though several witnesses before the Grand Jury concurred that she was an alcoholic.

The prosecutor also asked Huston about a laundry list of personal items belonging to Vickie Pickles that remained in Huston’s apartment although Pickles was no longer living there. The prosecutor informed the Grand Jury that he was issuing a subpoena to Huston requiring him to produce all of these items to the District Attorney’s office, who would forward them to Pickles. When Huston was subsequently recalled to the stand, the prosecutor berated him for not bringing these personal belongings with him.

Testimony established that Allison Brown had been stabbed 12 times and Mary Huston 9 times, and the Grand Jury was shown photographs of the victims. The Grand Jury was also shown photographs of a pair of sneakers removed from the home of defendant’s brother and a green jacket that defendant was wearing when questioned by the police on April 14, 1982. Both items had human blood on them, in amounts insufficient to allow any grouping or typing.

During the proceedings, several grand jurors noted that, according to Threats, Pickles had told her defendant was covered with blood. One grand juror thus commented that there "[s]hould have been more blood on his chest someplace,” and another observed, "[a]s a matter of fact, just looking at the number of wounds, punctures, he’d have to have more blood.” The prosecutor dismissed the grand jurors’ concerns, saying:

"No, that’s not accurate. It’s not necessarily the case, even though you see a lot of blood, you also have to keep in mind that they had been lying there for a long time, so for a sufficient period of time, a lot of that blood would have come from bleeding onto the floor, so there’s nothing to indicate, we’ve got no evidence to indicate and it’s not accurate to assume that by the stab, the blood would splatter out and cover him, that kind of thing is not necessarily so.”

A neighbor of Mary Huston further testified that she saw defendant and his wife arguing on the day of her death. She also observed defendant standing in the driveway outside his wife’s home between 7:00 and 7:30 that evening.

The Grand Jury charged defendant with two counts of murder in the second degree. Defendant subsequently moved to dismiss the indictment due to prosecutorial misconduct before the Grand Jury. Although the trial court was "disturbed” by "the way the prosecutor seemed to testify before the Grand Jury,” it orally denied the motion. Defendant proceeded to trial and was convicted of both murder counts. The Appellate Division affirmed the convictions, concluding that defendant had failed to establish any possibility of prejudice resulting from the prosecutor’s misconduct. We now reverse.

Analysis

Our State Constitution guarantees that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury” (NY Const, art I, § 6; see also, CPL art 190). By acting as a "buffer between the State and its citizens,” the Grand Jury shields against prosecutorial excesses and protects individuals from unfounded prosecutions (People v Calbud, Inc., 49 NY2d 389, 394, 396; see, People v Pelchat, 62 NY2d 97, 108). Historically, the Grand Jury has performed, the essential function of investigating criminal activity to determine whether sufficient evidence exists to accuse a citizen of a crime (see, People v Lancaster, 69 NY2d 20, 26, cert denied 480 US 922; People v Calbud, Inc., 49 NY2d at 394)

The Criminal Procedure Law designates both the District Attorney and the court as legal advisors to the Grand Jury (see, CPL 190.25 [6]). Because Grand Jury proceedings are conducted by the prosecutor alone, this function confers upon the prosecutor broad powers and duties, as well as wide discretion in presenting the People’s case (see, People v Di Falco, 44 NY2d 482, 487). In addition to providing legal instruction to the Grand Jury, the District Attorney determines what evidence to present to that body and what evidence should be excluded (see, id., at 486-487).

The prosecutor’s discretion during Grand Jury proceedings, however, is not absolute. As legal advisor to the Grand Jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus "charged with the duty not only to secure indictments but also to see that justice is done” (People v Lancaster, 69 NY2d at 26, supra; see also, People v Pelchat, 62 NY2d at 105, supra). With this potent authority, moreover, comes responsibility, including "the prosecutor’s duty of fair dealing” (People v Pelchat, 62 NY2d at 104, supra). As this Court has explained, "[tjhese duties and powers, bestowed upon the District Attorney by law, vest that official with substantial control over the Grand Jury proceedings, requiring the exercise of completely impartial judgment and discretion” (People v Di Falco, 44 NY2d at 487, supra).

Where, as here, the charges facing the defendant are of the most serious nature, society’s interest in justice is especially great. Nevertheless, the prosecutor who submitted defendant’s case to the Grand Jury disregarded his role as public officer and his "duty of fair dealing.” The Grand Jury minutes are rife with instances of the prosecutor imparting his personal opinion regarding the proper inferences to draw from the testimony or physical evidence, asking impermissible and inflammatory questions, and conveying — both directly and indirectly — his belief in defendant’s guilt.

An example of such misconduct was the prosecutor’s use of the concededly inadmissible hearsay testimony of Emma Threats, relating Vickie Pickles’ narration to her of defendant’s appearance with a bloody knife and his admission to the murders. Importantly, the prosecutor openly acknowledged that Threats’ testimony was not offered for any legitimate purpose. Rather, his articulated purpose for introducing Threats’ hearsay testimony before calling Pickles to the stand was to force Pickles to conform her account to the factual rendition already given by Threats and prevent any repudiation or modification.

Such deliberate tactics to influence a witness’ Grand Jury testimony jeopardize "the goal of fostering free and truthful testimony” (People v Sayavong, 83 NY2d 702, 708). We have, moreover, long condemned any Grand Jury practice that might incline a witness to give an inaccurate account of her knowledge of a crime (see, e.g., People v Minet, 296 NY 315 [forbidding the presence of one witness during the Grand Jury testimony of another]).

Even worse, the prosecutor proceeded to use Threats’ inadmissible testimony as a platform to convey to the Grand Jury his personal belief in defendant’s guilt. He repeatedly informed the Grand Jury that the version of events recounted by Threats was "the truth.” He further vouched for the reliability of Threats’ hearsay testimony by advising the Grand Jury that there was another witness in Georgia with "similar testimony.” The prosecutor thus became an unsworn witness against defendant, creating the danger that the Grand Jury, "impressed by the prestige of the office of the District Attorney, [would] accord great weight to [his] beliefs and opinions” (People v Paperno, 54 NY2d 294, 301).

The prosecutor’s comments usurped the function of the Grand Jury, which "remains the exclusive judge of the facts with respect to any matter before it” (People v Pelchat, 62 NY2d at 105, supra; accord, CPL 190.25 [5]). The CPL provides that a Grand Jury may issue an indictment only where there is legally sufficient evidence and "competent and admissible evidence before it provides reasonable cause to believe that [a] person [has] committed [an] offense” (CPL 190.65 [1] [b]). "Reasonable cause” exists

"when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10 [emphasis added]).

Reasonable cause "dictates the degree of certitude grand jurors must possess to indict” and, unlike legal sufficiency, is exclusively within the province of the Grand Jury (People v Jennings, 69 NY2d 103, 115). Consequently, determination as to whether Pickles or Jule Huston was the more reliable witness and the weight to accord each witness’ testimony was to be made solely by the Grand Jury, uninfluenced by the opinion of the prosecutor (cf., People v Batashure, 75 NY2d 306 [prosecutor may not inform the Grand Jury that, as a matter of law, he or she has determined that legally sufficient evidence has been presented]).

Nor was this an isolated instance. To the contrary, the prosecutor’s exploitation of Threats’ inadmissible testimony was part of an over-all pattern of bias and misconduct. The prosecutor again acted as an unsworn witness, usurping the fact-finding function of the Grand Jury, when he informed it of the inference it should draw from the fact that only a small amount of human blood was found on defendant’s sneaker and jacket — the only physical evidence connecting defendant to the murders. Specifically, he informed questioning grand jurors that it was "not accurate” that, given the number of stab wounds, more blood should have been found on defendant’s clothing. He further stated, "we’ve got no evidence to indicate and it’s not accurate to assume that by the stab, the blood would splatter out and cover him.” Whether this physical evidence was sufficiently persuasive to warrant belief that defendant committed the crime, however, was a question reserved exclusively for the grand jurors.

Throughout his questioning of Jule Huston, moreover, the prosecutor communicated his disbelief in Huston’s testimony to the Grand Jury. Although Jule Huston repeatedly denied that the bloody knife incident ever took place, the prosecutor continued to ask questions that assumed defendant did indeed appear at Huston’s apartment with a bloody knife and admit to killing his wife and mother-in-law. While a prosecutor who believes a witness is not being forthright may vigorously question or press that witness, the prosecutor here simply went too far.

Manifestly, the prosecutor’s misconduct was pervasive. Under the CPL, however, the Grand Jury proceeding in a criminal action must be defective to warrant dismissal of the indictment (see, CPL 210.20 [1] [c]). We must therefore next determine whether the prosecutor’s behavior rendered the indictment fatally defective.

CPL 210.35 (5) provides that a Grand Jury proceeding is defective when "the integrity thereof is impaired and prejudice to the defendant may result.” The exceptional remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice (see, People v Di Falco, 44 NY2d at 487, supra). Although this statutory test "is very precise and very high” (People v Darby, 75 NY2d 449, 455), it does not require actual prejudice (see, People v Sayavong, 83 NY2d at 709, 711, supra; People v Wilkins, 68 NY2d 269, 276). Indeed, two earlier drafts of CPL 210.35 (5) required a showing of actual prejudice before an indictment could be dismissed as the result of defective Grand Jury proceedings. The Legislature, however, rejected a requirement of actual prejudice in favor of the current provision — requiring only that "prejudice to the defendant may result” (CPL 210.35 [5] [emphasis added]; see, People v Di Falco, 44 NY2d 482, 487, supra; Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 210.35, at 676).

Dismissal of indictments under CPL 210.35 (5) should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias.

Certainly, not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment (see, People v Avant, 33 NY2d 265, 271). Likewise, isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice.

Here, however, the prosecutor did not simply introduce concededly inadmissible hearsay testimony — he did so with the stated goal of influencing upcoming testimony. The prosecutor then further thwarted the ability of the Grand Jury to uncover the facts accurately and conduct a reliable investigation by repeatedly conveying his personal assessment of critical witnesses and the physical evidence. As a result, the integrity of the Grand Jury proceedings was substantially undermined (see, People v Caracciola, 78 NY2d 1021 [misleading legal instructions to the Grand Jury impaired the integrity of the proceedings and mandated dismissal of the indictment]).

The risk of prejudice to defendant from the prosecutor’s impermissible tactics is manifest. The two crucial pieces of inculpatory evidence before the Grand Jury were the testimony of Vickie Pickles and the two items of defendant’s clothing containing small amounts of blood. Pickles’ version of events, however, was vigorously contested by Jule Huston. By informing the grand jurors that Vickie Pickles’ account was the truth, while undermining the credibility and character of Jule Huston, the prosecutor made it substantially more likely that the Grand Jury would believe Pickles.

Likewise, defendant’s sneaker and jacket, while circumstantial evidence implicating his guilt, did not irrefutably lead to the conclusion that defendant committed the murders. Indeed, several grand jurors themselves questioned whether the small amount of blood found on these items could be reconciled with the number of stab wounds and amount of blood at the crime scene. The prosecutor’s assurances that these concerns were unfounded surely created at least the possibility of prejudice, since "the grand jurors and the prosecutor will not invariably see eye to eye about what the evidence establishes, particularly when more inchoate questions such as * * * inferences to be drawn from circumstantial evidence are critical” (People v Batashure, 75 NY2d at 311, supra).

In rarq cases such as this where irregularities in presenting the case to the Grand Jury rise to the level of impairing those proceedings and creating the risk of prejudice, "the indictment [can]not be permitted to stand even though it is supported by legally sufficient evidence” (People v Calbud, Inc., 49 NY2d at 395, supra).

An important principle at the root of the statute compels this result: the Grand Jury acts as " 'the shield of innocence * * * and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source’ ” (People v Minet, 296 NY at 323, supra [citation omitted]). It is thus fundamental that the Grand Jury and those testifying before that body remain insulated from improper influence (see, People v Di Falco, 44 NY2d at 488, supra ["(s)ecrecy is a vital requisite of Grand Jury proceedings”]; see also, CPL 190.25 [4]). Where this tenet is flagrantly violated, society’s interest in the integrity of the criminal process itself is jeopardized.

To countenance such conduct by a District Attorney that was overwhelmingly likely to influence the proceedings whenever legally sufficient evidence was otherwise adduced would overlook that the CPL requires not only legally sufficient evidence as a prerequisite to indictment but also reasonable cause to believe the person committed an offense. Given "the crucial nature of the prosecutor’s role . . . vis-á-vis the Grand Jury,” it would also significantly jeopardize the essential function of the Grand Jury to protect our citizenry (People v Di Falco, 44 NY2d at 485, supra). The statutory remedy of dismissal thus not only protects the defendant but also safeguards the liberty of all citizens by ensuring that improper prosecutorial influence during secret Grand Jury proceedings will not lead to unfounded prosecutions.

Likewise, conviction after trial does not cure defective Grand Jury proceedings (see, People v Wilkins, 68 NY2d at 277, n 7, supra; see, e.g., People v Sayavong, 83 NY2d at 702, supra [dismissing indictment of defendant convicted after jury trial, where impairment of Grand Jury proceeding potentially prejudiced defendant]). This is supported by the statutory scheme — while the Legislature has provided that claims of insufficiency of evidence to support the indictment are barred upon conviction after trial (see, CPL 210.30 [6]), no similar provision exists for claims of defect based upon impairment of the Grand Jury proceedings.

In sum, in this unusual case, the cumulative impact of the prosecutor’s improper tactics during presentation of defendant’s case to the Grand Jury sufficiently impaired the integrity of the proceedings as to warrant dismissal of the indictment. Because the CPL provides for reindictment of defendant, this remedy will allow another Grand Jury to pass upon defendant’s case after a presentation not tainted by bias and misconduct (see, CPL 210.20 [4]).

In light of this determination, it is unnecessary to reach defendant’s remaining claim.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed with leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order reversed, etc.

       We thus reject the People’s similar argument that defendant’s conviction after trial — where Pickles’ testimony again constituted the primary evidence against him — demonstrates that no possibility of prejudice arose from the prosecutor’s improper admission of Threats’ testimony before the Grand Jury, since no such error took place at trial. In any event, unlike the Grand Jury proceedings, Pickles’ trial testimony was not challenged by the contrary testimony of Jule Huston, since defendant’s father had previously died and his Grand Jury testimony was precluded at trial.