author: Chief Judge Wachtler.

text:
    The People of the State of New York, Appellant, v Bernhard Goetz, Respondent.
    Argued May 28, 1986;
    decided July 8, 1986

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Robert M. Pitler, Mark Dwyer and Gregory L. Waples of counsel), for appellant.
    I. The prosecutor properly instructed the Grand Jury to examine the reasonableness of defendant’s use of deadly physical force under an objective, reasonable person standard. (Shorter v People, 2 NY 193; People v Taylor, 177 NY 237; Allen v United States, 164 US 492; Acers v United States, 164 US 388; Lucenti v Cayuga Apts., 48 NY2d 530; Matter of Trosk v Cohen, 262 NY 430; People v Lumsden, 201 NY 264; People v Ligouri, 284 NY 309; People v Cherry, 307 NY 308; People v Cantor, 36 NY2d 106.) II. There was no reasonable view of the evidence by which defendant was justified in shooting Darryl Cabey and thus any error in the justification charge was harmless as to counts stemming from that act. (People v Lam Lek Chong, 45 NY2d 64, 439 US 935; Shorter v People, 2 NY 935; People v Calbud, Inc., 49 NY2d 389; People v Watts, 57 NY2d 299; People v Collice, 41 NY2d 906; People v Ligouri, 284 NY 309; People v Lumsden, 201 NY 264; People v Patterson, 21 AD2d 356.) III. Allegedly exculpatory information which only became available eight months after the second Grand Jury presentation provided no basis for dismissing nine counts of the indictment. (People v Pelchat, 62 NY2d 97; People v Valles, 62 NY2d 36; People v Calbud, Inc., 49 NY2d 389; People v Friedman, 97 AD2d 738; People v Mitchell, 40 AD2d 117; People v Cwikla, 46 NY2d 434; People v Andre W., 44 NY2d 179; People v Taylor, 65 NY2d 1; United States v

      Basurto, 497 F2d 781; United States v Kennedy, 564 F2d 1329, 435 US 944.)

      Mark M. Baker, Barry Ivan Slotnick and Michael Shapiro for respondent.
    I. The prosecutor’s instructions on the law of justification, which involved, in direct response to the specific question of a grand juror, highly erroneous references to an objective/reasonable man standard of analysis, thereby precluding the Grand Jury from focusing on defendant’s own subjective "reasonable beliefs” at the time of the incident with respect to all counts submitted, caused the Grand Jury proceeding to fail to conform to the requirements of CPL article 190 to such degree that the integrity thereof was impaired and severe prejudice to defendant resulted. (Shorter v People, 2 NY 193; People v Taylor, 177 NY 237; People v Governale, 193 NY 581; People v Kennedy, 159 NY 346; People v Rodawald, 177 NY 408; People v Miller, 39 NY2d 543; People v Santiago, 110 AD2d 569; People v Wagman, 99 AD2d 519; People v Long, 104 AD2d 902; People v Powell, 112 AD2d 450.) II. Under the unreviewable and controlling facts before this court, Criminal Term properly interpreted People v Pelchat (62 NY2d 97 [1984]) to require a re-presentation of those counts which had been supported by "strongly app[arent]” perjurious testimony. (People v Benthall, 65 NY2d 679; People v Van Luven, 64 NY2d 625; People v Thompson, 108 AD2d 942; People v Monroe, 125 Misc 2d 550.)
   OPINION OF THE COURT

Chief Judge Wachtler.

A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for $5. The lower courts, concluding that the prosecutor’s charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.

I.

The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy. The credibility of witnesses and the reasonableness of defendant’s conduct are to be resolved by the trial jury.

On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.

It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated "give me five dollars”. Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur’s arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey’s side and severed his spinal cord.

All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.

While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.

On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

According to Goetz’s statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked "how are you,” to which he replied "fine”. Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said "give me five dollars”. Goetz stated that he knew from the smile on Canty’s face that they wanted to "play with me”. Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being "maimed”.

Goetz then established "a pattern of fire,” deciding specifically to fire from left to right. His stated intention at that point was to "murder [the four youths], to hurt them, to make them suffer as much as possible”. When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot "tried to run through the crowd [but] they had nowhere to run”. Goetz then turned to his right to "go after the other two”. One of these two "tried to run through the wall of the train, but * * * he had nowhere to go”. The other youth (Cabey) "tried pretending that he wasn’t with [the others]” by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been "taken care of’. Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, "I said *[y]ou seem to be all right, here’s another’ ”, and he then fired the shot which severed Cabey’s spinal cord. Goetz added that "if I was a little more under self-control * * * I would have put the barrel against his forehead and fired.” He also admitted that "if I had had more [bullets], I would have shot them again, and again, and again.”

II.

After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a Grand Jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this Grand Jury. On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02), for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

Several weeks after the Grand Jury’s action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second Grand Jury (see, CPL 190.75 [3]). Supreme Court, Criminal Term, after conducting an in camera inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident. Goetz again chose not to testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first Grand Jury.

On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25 [1]), four charges of assault in the first degree (Penal Law § 120.10 [1]), one charge of reckless endangerment in the first degree (Penal Law § 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.

On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged (see, CPL 210.20 [1] [b]), and that the prosecutor’s instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective (see, CPL 210.20 [1] [c]; 210.35 [5]).

On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey’s hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him. The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings, and that Canty had said to him "we were going to rob [Goetz]”. The prosecutor immediately disclosed this information to the court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information. Goetz then orally expanded his motion to dismiss, asserting that resubmission of the charges voted by the second Grand Jury was required under People v Pelchat (62 NY2d 97) because it appeared, from this new information, that Ramseur and Canty had committed perjury.

In an order dated January 21, 1986, Criminal Term granted Goetz’s motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court, after inspection of the Grand Jury minutes, first rejected Goetz’s contention that there was not legally sufficient evidence to support the charges. It held, however, that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz’s conduct was that of a "reasonable man in [Goetz’s] situation”. The court, citing prior decisions from both the First and Second Departments (see, e.g., People v Santiago, 110 AD2d 569 [1st Dept]; People v Wagman, 99 AD2d 519 [2d Dept]), concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant’s state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.

Criminal Term also concluded that dismissal and resubmission of the charges were required under People v Pelchat (supra) because the Daily News column and the statement by the police officer to the prosecution strongly indicated that the testimony of Ramseur and Canty was perjured. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was "severely undermined” by the apparently perjured testimony.

On appeal by the People, a divided Appellate Division affirmed Criminal Term’s dismissal of the charges. The plurality opinion by Justice Kassal, concurred in by Justice Carro, agreed with Criminal Term’s reasoning on the justification issue, stating that the grand jurors should have been instructed to consider only the defendant’s subjective beliefs as to the need to use deadly force. Justice Kupferman concurred in the result reached by the plurality on the ground that the prosecutor’s charge did not adequately apprise the grand jurors of the need to consider Goetz’s own background and learning. Neither the plurality nor the concurring opinion discussed Criminal Term’s reliance on Pelchat as an alternate ground for dismissal.

Justice Asch, in a dissenting opinion in which Justice Wallach concurred, disagreed with both bases for dismissal relied upon by Criminal Term. On the justification question, he opined that the statute requires consideration of both the defendant’s subjective beliefs and whether a reasonable person in defendant’s situation would have had such beliefs. Accordingly, he found no error in the prosecutor’s introduction of an objective element into the justification defense. On the Pelchat issue, Justice Asch noted the extensive differences between the Grand Jury evidence in that case and the case at bar and concluded that the out-of-court statements attributed to Cabey and Canty did not affect the validity of the indictment. In a separate dissenting opinion, Justice Wallach stressed that the plurality’s adoption of a purely subjective test effectively eliminated any reasonableness requirement contained in the statute.

Justice Asch granted the People leave to appeal to this court. We agree with the dissenters that neither the prosecutor’s charge to the Grand Jury on justification nor the information which came to light while the motion to dismiss was pending required dismissal of any of the charges in the second indictment.

III.

Penal Law article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances” (see, People v McManus, 67 NY2d 541, 545). One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15 (1) sets forth the general principles governing all such uses of force: "[a] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person” (emphasis added).

Section 35.15 (2) sets forth further limitations on these general principles with respect to the use of "deadly physical force”: "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * *[ ] or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery” (emphasis added).

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met (see, Robinson, Criminal Law Defenses § 121 [a], at 2). As to the triggering conditions, the statute requires that the actor "reasonably believes” that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes” that such force is necessary to avert the perceived threat.

Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury (see, CPL 190.25 [6]; People v Valles, 62 NY2d 36, 38). The prosecutor properly instructed the grand jurors to consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law § 35.15. The defense does not contend that he committed any error in this portion of the charge.

When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term "reasonably believes”. The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine "whether the defendant’s conduct was that of a reasonable man in the defendant’s situation”. It is this response by the prosecutor — and specifically his use of "a reasonable man” — which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division’s plurality opinion, because section 35.15 uses the term "he reasonably believes”, the appropriate test, according to that court, is whether a defendant’s beliefs and reactions were "reasonable to him”. Under that reading of the statute, a jury which believed a defendant’s testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant’s situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term "reasonably” in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.

Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense (see, e.g., 1829 Rev Stat of NY, part IV, ch 1, tit II, § 3; 1881 Penal Code § 205; People v McManus, supra, at p 546). These provisions have never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness. The 1829 statute, using language which was followed almost in its entirety until the 1965 recodification of the Penal Law, provided that the use of deadly force was justified in self-defense or in the defense of specified third persons "when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished”.

In Shorter v People (2 NY 193), we emphasized that deadly force could be justified under the statute even if the actor’s beliefs as to the intentions of another turned out to be wrong, but noted there had to be a reasonable basis, viewed objectively, for the beliefs. We explicitly rejected the position that the defendant’s own belief that the use of deadly force was necessary sufficed to justify such force regardless of the reasonableness of the beliefs (id., at pp 200-201).

In 1881, New York reexamined the many criminal provisions set forth in the revised statutes and enacted, for the first time, a separate Penal Code (see generally, 1937 Report of NY Law Rev Commn, Communication to Legislature Relating to Homicide, at 525, 529 [hereafter cited as Communication Relating to Homicide]). The provision in the 1881 Penal Code for the use of deadly force in self-defense or to defend a third person was virtually a reenactment of the language in the 1829 statutes, and the "reasonable ground” requirement was maintained.

The 1909 Penal Law replaced the 1881 Penal Code. The language of section 205 of the 1881 code pertaining to the use of deadly force in self-defense or in defense of a third person was reenacted, verbatim, as part of section 1055 of the new Penal Law. Several cases from this court interpreting the 1909 provision demonstrate unmistakably that an objective element of reasonableness was a vital part of any claim of self-defense. In People v Lumsden (201 NY 264, 268), we approved a charge to the jury which instructed it to consider whether the circumstances facing defendant were such "as would lead a reasonable man to believe that [an assailant] is about to kill or to do great bodily injury” (see also, People v Ligouri, 284 NY 309, 316, 317). We emphatically rejected the position that any belief by an actor as to the intention of another to cause severe injury was a sufficient basis for his use of deadly force, and stated specifically that a belief based upon "mere fear or fancy or remote hearsay information or a delusion pure and simple” would not satisfy the requirements of the statute (201 NY, at p 269). In People v Tomlins (213 NY 240, 244), we set forth the governing test as being whether "the situation justified the defendant as a reasonable man in believing that he was about to be murderously attacked.”

Accordingly, the Law Revision Commission, in a 1937 Report to the Legislature on the Law of Homicide in New York, summarized the self-defense statute as requiring a "reasonable belief in the imminence of danger”, and stated that the standard to be followed by a jury in determining whether a belief was reasonable "is that of a man of ordinary courage in the circumstances surrounding the defendant at the time of the killing” (Communication Relating to Homicide, op. cit., at 814). The Report added that New York did not follow the view, adopted in a few States, that "the jury is required to adopt the subjective view and judge from the standpoint of the very defendant concerned” (id., at 814).

In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated (see, e.g., Criminal Law Revision Through A Legislative Commission: The New York Experience, 18 Buff L Rev 213; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469). Following the submission by the Commission of several reports and proposals, the Legislature approved the present Penal Law in 1965 (L 1965, ch 1030), and it became effective on September 1, 1967. The drafting of the general provisions of the new Penal Law (see, Penal Law part I), including the article on justification (id., art 35), was particularly influenced by the Model Penal Code (see, Denzer, Drafting a New York Penal Law for New York, 18 Buff L Rev 251, 252; Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1428). While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.

The provisions of the Model Penal Code with respect to the use of deadly force in self-defense reflect the position of its drafters that any culpability which arises from a mistaken belief in the need to use such force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime (see, ALI, Model Penal Code and Commentaries, part I, at 32, 34 [hereafter cited as MPC Commentaries]; Robinson, Criminal Law Defenses, op. cit., at 410). Accordingly, under Model Penal Code § 3.04 (2) (b), a defendant charged with murder (or attempted murder) need only show that he "believefd] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse” to prevail on a self-defense claim (emphasis added). If the defendant’s belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent, as the case may be, criminal intent (see, Model Penal Code § 3.09 [2]; MPC Commentaries, op. cit., part I, at 32, 150).

The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness (see, MPC Commentaries, op. cit., part I, at 35; LaFave & Scott, Criminal Law § 53, at 393-394). The drafters were also keenly aware that requiring that the actor have a "reasonable belief’ rather than just a "belief’ would alter the wholly subjective test (MPC Commentaries, op. cit., part I, at 35-36). This basic distinction was recognized years earlier by the New York Law Revision Commission and continues to be noted by the commentators (Communication Relating to Homicide, op. cit, at 814; Robinson, Criminal Law Defenses, op. cit.; Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 918-920).

New York did not follow the Model Penal Code’s equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word "reasonably” before "believes”.

The plurality below agreed with defendant’s argument that the change in the statutory language from "reasonable ground,” used prior to 1965, to "he reasonably believes” in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the insertion of "reasonably”. Had the drafters of section 35.15 wanted to adopt a subjective standard, they could have simply used the language of section 3.04. "Believes” by itself requires an honest or genuine belief by a defendant as to the need to use deadly force (see, e.g., Robinson, Criminal Law Defenses, op. cit. § 184 (b), at 399-400). Interpreting the statute to require only that the defendant’s belief was "reasonable to him, ” as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant’s own perceptions could completely exonerate him from any criminal liability.

We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality’s interpretation, as the dissenters below recognized, excises the impact of the word "reasonably”. This same conclusion was recently reached in Justice Levine’s decision for a unanimous Third Department in People v Astle (117 AD2d 382), in which that court declined to follow the First Department’s decision in this case (see also, People v Hamel, 96 AD2d 644 [3d Dept]).

The change from "reasonable ground” to "reasonably believes” is better explained by the fact that the drafters of section 35.15 were proposing a single section which, for the first time, would govern both the use of ordinary force and deadly force in self-defense or defense of another. Under the 1909 Penal Law and its predecessors, the use of ordinary force was governed by separate sections which, at least by their literal terms, required that the defendant was in fact responding to an unlawful assault, and not just that he had a reasonable ground for believing that such an assault was occurring (see, 1909 Penal Law §§ 42, 246 [3]; People v Young, 11 NY2d 274; 7 Zett, New York Criminal Practice H 65.3). Following the example of the Model Penal Code, the drafters of section 35.15 eliminated this sharp dichotomy between the use of ordinary force and deadly force in defense of a person. Not surprisingly then, the integrated section reflects the wording of Model Penal Code § 3.04, with the addition of "reasonably” to incorporate the long-standing requirement of "reasonable ground” for the use of deadly force and apply it to the use of ordinary force as well (see, Zett, New York Criminal Practice, § 65.3 [1], [2]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1500).

The conclusion that section 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here (Denzer & McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 35.15, p 63 [1967]). Nowhere in the legislative history is there any indication that "reasonably believes” was designed to change the law on the use of deadly force or establish a subjective standard. To the contrary, the Commission, in the staff comment governing arrests by police officers, specifically equated "[he] reasonably believes” with having a reasonable ground for believing (Penal Law § 35.30; Fourth Interim Report of the Temporary State Commission on Revision of the Penal Law and Criminal Code at 17-18, 1965 NY Legis Doc No. 25).

Statutes or rules of law requiring a person to act "reasonably” or to have a "reasonable belief” uniformly prescribe conduct meeting an objective standard measured with reference to how "a reasonable person” could have acted (see, e.g., People v Cantor, 36 NY2d 106; Donovan v Kaszycki & Sons Contrs., 599 F Supp 860, 871; Klotter, Criminal Law, at 312; Fletcher, The Right and the Reasonable, 98 Harv L Rev 949; 57 Am Jur 2d, Negligence, §§ 67, 68). In People v Cantor (supra), we had before us a provision of the Criminal Procedure Law authorizing a police officer to stop a person "when he reasonably suspects that such person is committing, has committed or is about to commit [a crime]” (CPL 140.50 [1]; emphasis added). We held that this section authorized "stops” only when the police officer had "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand” (People v Cantor, 36 NY2d, at pp 112-113, supra).

In People v Collice (41 NY2d 906), we rejected the position that section 35.15 contains a wholly subjective standard. The defendant in Collice asserted, on appeal, that the trial court had erred in refusing to charge the justification defense. We upheld the trial court’s action because we concluded that, even if the defendant had actually believed that he was threatened with the imminent use of deadly physical force, the evidence clearly indicated that "his reactions were not those of a reasonable man acting in self-defense” (id., at p 907). Numerous decisions from other States interpreting "reasonably believes” in justification statutes enacted subsequent to the drafting of the Model Penal Code are consistent with Collice, as they hold that such language refers to what a reasonable person could have believed under the same circumstances (see, e.g., State v Kelly, 97 NJ 178, 478 A2d 364, 373-374; Weston v State, 682 P2d 1119, 1121 [Alaska]).

The defense contends that our memorandum in Collice is inconsistent with our prior opinion in People v Miller (39 NY2d 543). In Miller, we held that a defendant charged with homicide could introduce, in support of a claim of self-defense, evidence of prior acts of violence committed by the deceased of which the defendant had knowledge. The defense, as well as the plurality below, place great emphasis on the statement in Miller that "the crucial fact at issue [is] the state of mind of the defendant” (id., at p 551). This language, however, in no way indicates that a wholly subjective test is appropriate. To begin, it is undisputed that section 35.15 does contain a subjective element, namely that the defendant believed that deadly force was necessary to avert the imminent use of deadly force or the commission of certain felonies. Evidence that the defendant knew of prior acts of violence by the deceased could help establish his requisite beliefs. Moreover, such knowledge would also be relevant on the issue of reasonableness, as the jury must consider the circumstances a defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him (see, e.g., People v Taylor, 177 NY 237, 245; Communication Relating to Homicide, op. cit, at 816). Finally, in Miller, we specifically recognized that there had to be "reasonable grounds” for the defendant’s belief.

Goetz’s reliance on People v Rodawald (177 NY 408) is similarly misplaced. In Rodawald, decided under the 1881 Penal Code, we held that a defendant who claimed that he had acted in self-defense could introduce evidence as to the general reputation of the deceased as a violent person if this reputation was known to the defendant when he acted. We stated, as emphasized by Goetz, that such evidence, "when known to the accused, enables him to judge of the danger and aids the jury in deciding whether he acted in good faith and upon the honest belief that his life was in peril. It shows the state of his mind as to the necessity of defending himself’ (177 NY, at p 423). Again, such language is explained by the fact that the threshold question, before the reasonableness issue is addressed, is the subjective beliefs of the defendant. Nowhere in Rodawald did we hold that the only test, as urged by Goetz, is whether the defendant honestly and in good faith believed himself to be in danger. Rather, we recognized that there was also the separate question of whether the accused had "reasonable ground” for his belief, and we upheld the trial court’s refusal to charge the jury that the defendant’s honest belief was sufficient to establish self-defense (177 NY, at pp 423, 426-427).

Goetz also argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of "reasonableness” without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the "circumstances” facing a defendant or his "situation” (see, e.g., People v Ligouri, 284 NY 309, 316, supra; People v Lumsden, 201 NY 264, 268, supra). Such terms encompass more than the physical movements of the potential assailant. As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant’s circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person’s intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.

Accordingly, a jury should be instructed to consider this type of evidence in weighing the defendant’s actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances”, as explicated above, if a reasonable person could have had these beliefs.

The prosecutor’s instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz’s conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of "circumstances” or "situation” and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury (see, People v Valles, 62 NY2d 36, 38; People v Calbud, Inc., 49 NY2d 389, 394; compare, CPL 190.25 [6], with CPL 300.10 [2]). This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt (see, People v Calbud, Inc., 49 NY2d, at p 394, supra).

In People v Calbud, Inc. (supra, at pp 394-395), we stated that the prosecutor simply had to "provid[e] the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime”. Of course, as noted above, where the evidence suggests that a complete defense such as justification may be present, the prosecutor must charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution. The prosecutor more than adequately fulfilled this obligation here. His instructions were not as complete as the court’s charge on justification should be, but they sufficiently apprised the Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz’s reactions were unreasonable and therefore excessive.

IV.

Criminal Term’s second ground for dismissal of the charges, premised upon the Daily News column and the police officer’s statement to the prosecutor, can be rejected more summarily. The court relied upon People v Pelchat (62 NY2d 97, supra), the facts of which, however, are markedly different from those here. In Pelchat, the defendant was one of 21 persons arrested in a house to which police officers had seen marihuana delivered. The only evidence before the Grand Jury showing that defendant had anything to do with the marihuana was the testimony of a police officer listing defendant as one of 21 persons he had observed transporting the drug. After defendant was indicted, this same police officer told the prosecutor that he had misunderstood his question when testifying before the Grand Jury and that he had not seen defendant engage in any criminal activity. Although the prosecutor knew that there was no other evidence before the Grand Jury to establish the defendant’s guilt, he did not disclose the police officer’s admission, and instead, accepted a guilty plea from the defendant. We reversed the conviction and dismissed the indictment, holding that the prosecutor should not have allowed the proceedings against defendant to continue when he knew that the only evidence against him before the Grand Jury was false, and thus, knew that there was not legally sufficient evidence to support the indictment.

Here, in contrast, Canty and Ramseur have not recanted any of their Grand Jury testimony or told the prosecutor that they misunderstood any questions. Instead, all that has come to light is hearsay evidence that conflicts with part of Canty’s testimony. There is no statute or controlling case law requiring dismissal of an indictment merely because, months later, the prosecutor becomes aware of some information which may lead to the defendant’s acquittal. There was no basis for the Criminal Term Justice to speculate as to whether Canty’s and Ramseur’s testimony was perjurious (see, CPL 190.25 [5]), and his conclusion that the testimony "strongly appeared” to be perjured is particularly inappropriate given the nature of the "evidence” he relied upon to reach such a conclusion and that he was not in the Grand Jury room when the two youths testified.

Moreover, unlike Pelchat, the testimony of Canty and Ramseur was not the only evidence before the Grand Jury establishing that the offenses submitted to that body were committed by Goetz. Goetz’s own statements, together with the testimony of the passengers, clearly support the elements of the crimes charged, and provide ample basis for concluding that a trial of this matter is needed to determine whether Goetz could have reasonably believed that he was about to be robbed or seriously injured and whether it was reasonably necessary for him to shoot four youths to avert any such threat.

Accordingly, the order of the Appellate Division should be reversed, and the dismissed counts of the indictment reinstated.

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.

      . On May 14, 1985, Goetz commenced an article 78 proceeding in the Appellate Division seeking to prohibit a trial on the charges contained in the second indictment on the ground that the order allowing resubmission of the charges was an abuse of discretion. The Appellate Division dismissed the proceeding on the ground that prohibition did not lie to review the type of error alleged by Goetz (111 AD2d 729, 730), and this court denied a motion for leave to appeal from the Appellate Division order (65 NY2d 609). The propriety of the resubmission order is not before us on this appeal.

      . The court did not dismiss the reckless endangerment charge because, relying on the Appellate Division decision in People v McManus (108 AD2d 474), it held that justification was not a defense to a crime containing, as an element, "depraved indifference to human life.” As our reversal of the Appellate Division in McManus holds, justification is a defense to such a crime (People v McManus, 67 NY2d 541). Accordingly, had the prosecutor’s instructions on justification actually rendered the Grand Jury proceedings defective, dismissal of the reckless endangerment count would have been required as well.

      . Subdivision (1) contains certain exceptions to this general authorization to use force, such as where the actor himself was the initial aggressor.

      . Section 35.15 (2) (a) further provides, however, that even under these circumstances a person ordinarily must retreat "if he knows that he can with complete safety as to himself and others avoid the necessity of [using deadly physical force] by retreating”.

      . While the portion of section 35.15 (2) (b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate "retreat” requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general "necessity” requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2) (b).

      . The 1881 provision expanded the class of third persons for whose defense an actor could employ deadly force from certain specified persons to any other person in the actor’s presence.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Michael Matthews, Appellant.
    Argued May 27, 1986;
    decided July 3, 1986

      POINTS OF COUNSEL

      Sean J. Denvir for appellant.
    I. The prosecutor denigrated appellant’s right to a fair trial by a surprise inquiry into a pending criminal charge. (Williams v Florida, 399 US 78; People v Sandoval, 34 NY2d 371; People v Wilson, 75 Misc 2d 471; People v Kenchik, 47 AD2d 907; People v Ventimiglia, 52 NY2d 350; People v Sudler, 100 AD2d 915; People v Lindo, 85 AD2d 643; People v McCormick, 100 AD2d 723.) II. Appellant was denied effective assistance of counsel due to his attorney’s failure to guard against the plethora of inflammatory and otherwise objectionable conduct of the prosecutor. (People v Bennett, 29 NY2d 462; People v Droz, 39 NY2d 457; People v Aiken, 45 NY2d 394; People v Ferrara, 78 AD2d 660; People v Abdul-Malik, 61 AD2d 657; People v Rodriguez, 62 AD2d 929; People v Browne, 106 AD2d 455; People v Nicoll, 3 AD2d 64; United States v Garza, 608 F2d 659; People v Puglisi, 44 NY2d 748.)

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Maureen A. MacPherson of counsel), for respondent.
    I. The trial assistant did not deprive appellant of a fair trial. (People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267; People v Petrucelli, 44 AD2d 58; People v Williams, 46 NY2d 1070; People v Ashwal, 39 NY2d 105; People v Dean, 56 AD2d 242, 45 NY2d 651; People v Safian, 46 NY2d 181, cert denied sub nom. Miner v New York, 443 US 912; People v Rivera, 56 AD2d 897; People v Broady, 5 NY2d 500.) II. Appellant was not denied effective assistance of counsel. (People v Salters, 20 AD2d 731; People v Aiken, 45 NY2d 394; People v Bennett, 29 NY2d 462; People v Tomaselli, 7 NY2d 350; People v Brown, 7 NY2d 359, 365 US 821; United States v Elksnis, 528 F2d 236; United States v DeCoste, 487 F2d 1197; People v Natal, 102 AD2d 496; People v Baldi, 54 NY2d 137; People v Ferrara, 78 AD2d 660.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The defendant has been convicted, after a jury trial, of robbery and related offenses in connection with a hold-up of a bar. The Appellate Division affirmed the conviction and the defendant appeals. The defendant’s primary contention is that he was denied a fair trial when the prosecutor cross-examining him made a "surprise inquiry” concerning an unrelated robbery in another State. The defendant urges that we reexamine the rule announced in People v Sandoval (34 NY2d 371) and shift the burden to the prosecutor of obtaining prior court approval before questioning a defendant about unrelated criminal acts.

On September 10, 1982, a few minutes after midnight, two men armed with handguns entered a bar in Syracuse. While one of the men, later identified as the defendant, took approximately $500 from the bartender, the other robbed the patrons. As the men fled in a green station wagon, one of them, also subsequently identified as the defendant, fired at police officers responding to the report of the robbery. The officers were not injured, but the robbers escaped. They were both arrested later that morning and were subsequently indicted. The defendant was charged with 18 counts, including robbery in the first degree and attempted murder.

While awaiting trial, the defendant was released and left the State. He was subsequently charged in Federal court with robbing a bank in Atlanta, Georgia, on December 13, 1982. The Federal charges, however, were dismissed pending the determination of the New York indictment. The prosecutor in New York was informed of this and passed the information on to the attorney representing the defendant on the Syracuse indictment. Defense counsel then called the Federal prosecutor who confirmed the fact that the charges had been dismissed but would be revived if the defendant was acquitted on the New York indictment.

At the defendant’s jury trial on that indictment in the fall of 1983, the defendant chose to testify on his own behalf. Prior to doing so, he moved, pursuant to People v Sandoval (supra), to preclude the prosecutor from questioning him with respect to certain criminal acts for which he had been convicted or adjudicated a youthful offender. He did not ask the court to also bar the prosecutor from cross-questioning him on the bank robbery in Georgia. The court granted the motion in part, excluding any reference to the youthful offender adjudication and the underlying acts, but permitting cross-examinatian on the later convictions.

After the defendant had testified on direct, the prosecutor asked him on cross-examination if he had gone to Atlanta, Georgia, while awaiting trial in December of 1982. When the defendant admitted being there, the prosecutor asked him if he had committed a bank robbery in that city on December 13, 1982. Defense counsel immediately objected and the court sustained the objection. Defense counsel then moved for a mistrial urging that no curative instructions could remove the prejudice. The District Attorney noted that defense counsel was aware of the Federal charges and had not made any motion with respect to them during the Sandoval hearing. The court denied the motion for a mistrial. Instead, the court offered the defendant an option: he could let the objection stand, and accept curative instructions; or he could withdraw the objection and answer the question, in which case the prosecutor would be bound by the answer. The defendant chose the latter course and in response to the prosecutor’s question, denied committing the bank robbery in Georgia.

The jury found the defendant guilty of three counts of robbery in the first degree (Penal Law § 160.15) and one count of attempted aggravated assault on a police officer (Penal Law §§ 110.00, 120.11). The Appellate Division affirmed (112 AD2d 781).

On this appeal, the defendant urges that the People should not be permitted to question a defendant about unrelated criminal acts unless the prosecutor has sought and obtained prior court approval to do so.

In People v Sandoval (supra), we established a procedure which would permit a defendant who wishes to testify on his own behalf to move prior to trial to have the court prohibit the prosecutor from cross-examining him regarding unrelated criminal or immoral acts, when the probative value for impeachment purposes is outweighed by the potential prejudice to the defendant. We emphasized (at p 378) that the defendant has the burden to "inform the court of the prior convictions and misconduct which might unfairly affect him as a witness in his own behalf’ and "of demonstrating that the prejudicial effect of the admission of evidence thereof for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion”. We also noted (at p 373, n 1) that this procedure would apply only to cases where evidence of prior criminal or immoral acts is used to impeach the defendant, and not to cases where it is introduced as evidence-in-chief to establish an element of the crime charged.

The procedure to be followed in the latter cases was subsequently discussed in People v Ventimiglia (52 NY2d 350) where the prosecutor had, without warning, introduced on his direct case evidence of other crimes for which the defendant had never been charged or convicted, some of which was held to be improperly admitted. There we observed (at pp 361-362): "When a prosecutor, knowing that such evidence is to be presented, waits until objection is made when it is offered during trial before informing the court of the basis upon which he considers it to be admissible, there is unfairness to the defendant, even if his objection is sustained, in view of the questionable effectiveness of cautionary instructions in removing prior crime evidence from consideration by the jurors”. Thus, we concluded that when the prosecutor intends to offer proof of other crimes as part of his direct case, he "should ask for a ruling out of the presence of the jury” before attempting to introduce the evidence (People v Ventimiglia, supra, at p 362).

The defendant urges that the risk of prejudice exists, whether the evidence is offered for impeachment or as evidence-in-chief, and that the prosecutor should therefore be required to obtain an advance ruling whenever he intends to make reference to other criminal or immoral acts. He claims that the existing procedure permits the prosecutor to "surprise” the defendant by cross-examining him about unrelated crimes which the court may subsequently find to be unduly prejudicial.

There is an obvious risk of surprise when the prosecutor introduces evidence of other crimes on his direct case, particularly when, as in Ventimiglia, the defendant has never been charged or convicted of those offenses. Even when the defendant has been charged or convicted, he cannot be expected to anticipate all the evidence that the prosecutor intends to introduce. Since this is a matter wholly within the control of the prosecutor, it is logical and fair to place the burden on the People of obtaining an advance ruling on the admissibility of other crimes sought to be introduced in evidence as part of the prosecutor’s own direct case.

However, there is no reason to generally shift the burden to the prosecutor when he only intends to use such evidence if the defendant testifies on his own behalf. The decision to testify is entirely within the control of the defendant who should anticipate cross-examination regarding prior criminal or immoral acts, and can generally prevent any prejudice by moving to prohibit or limit questioning on these matters before he takes the stand. A defendant who has been charged with or convicted of particular crimes and who chooses to testify can hardly claim surprise if he is asked about them on cross-examination.

The defendant was charged with the Georgia robbery and advised of the status of that charge, long before he testified at trial. Although the charge was dismissed, it was not finally dismissed on the merits, and the underlying act was a proper subject for inquiry by the prosecutor on cross-examination (People v Vidal, 26 NY2d 249, 253). If the defendant believed that any questioning on this point at trial would irreparably prejudice his case, he could have raised his objection in connection with his Sandoval motion prior to testifying. Having waived his right to an advance ruling, he cannot claim to be prejudiced by the fact that the question was asked at trial.

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

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr, concur.

Order affirmed.

       In view of this disposition we need not consider whether the claimed misconduct on the part of the prosecutor in asking the question without warning, was harmless under the circumstances of this case.


author: Kaye, J.

text:
    Royal Bank and Trust Company, Respondent, v Weintraub, Gold & Alper et al., Appellants, et al., Defendants.
    Argued June 3, 1986;
    decided July 8, 1986

      POINTS OF COUNSEL

      James J. Harrington and Robert C. Boneberg for appellants.
    I. The Supreme Court erred in deciding the issue of Royal Bank’s negligence. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Grace v Sterling, Grace & Co., 30 AD2d 61; General Overseas Films v Robin Intl., 542 F Supp 684, 718 F2d 1085; Strip Clean Floor Refinishing v New York Dist. Council, 333 F Supp 385; Ford v Unity Hosp., 32 NY2d 464; Citibank v Dutka, 74 AD2d 520, 50 NY2d 928; Goldstein v County of Monroe, 77 AD2d 232.) II. The Supreme Court misapplied Partnership Law § 27 (1). (Hartford Acc. & Indem. Co. v Oles, 152 Misc 876; Sitchenko v DiResta, 512 F Supp 758; Stockbriar, Inc. v Conservation & Preservation Assn., 94 AD2d 793; Mulvey v Hamilton, 57 AD2d 995, 43 NY2d 646.) III. Weintraub had no authority to bind Weintraub, Gold & Alper. (Hedeman v Fairbanks, Morse & Co., 286 NY 240; Bertran Packing v Transworld Fabricators, 50 AD2d 542; Ford v Unity Hosp., 32 NY2d 464; People v Alfani, 227 NY 334; Farago v Burke, 262 NY 229; Menkis v Whitestone Sav. & Loan Assn., 78 Misc 2d 329; Chelsea Natl. Bank v Lincoln Plaza Towers Assoc., 93 AD2d 216, 61 NY2d 817.) IV. Partnership Law § 66 (1) (b) (I) has no bearing on the present case.

      Francis X. Sexton, Jr., and Dorothy E. Hughes, for respondent.
    I. As evidenced by the conduct of its partners, the partnership of Weintraub, Gold & Alper existed in September 1977. (Goldberg v Goldberg, 276 App Div 1084; Keen v Jason, 19 Misc 2d 538, 11 AD2d 1039.) II. Weintraub had apparent authority and thereby bound the partnership and individual partners of Weintraub, Gold & Alper to his acts. (Ford v Unity Hosp., 32 NY2d 464; Hedeman v Fairbanks, Morse & Co., 286 NY 240; Plymouth Rock Fuel Corp. v Leucadia, Inc., 100 AD2d 842; General Overseas Films v Robin Intl., 542 F Supp 684, 718 F2d 1085; Collision Plan Unlimited v Bankers Trust Co., 63 NY2d 827; Strip Clean Floor Refinishing v New York Dist. Council, 333 F Supp 385; Blake v Gardino, 35 AD2d 1022, 29 NY2d 876; Lomnitz v Town of Woodbury, 81 AD2d 828; Gibbons v Hantman, 58 AD2d 108, 43 NY2d 941; Andre v Pomeroy, 35 NY2d 361.) III. As a matter of law, defendants-appellants Gold and Alper are liable under the principle of partnership by estoppel. (Sitchenko v DiResta, 512 F Supp 758; Mulvey v Hamilton, 57 AD2d 995; Poillon v Secor, 61 NY2d 456.) IV. Even assuming that the firm of Weintraub, Gold & Alper was dissolved, defendants-appellants are liable under Partnership Law § 66. (Bank of Monongahela Val. v Weston, 159 NY 201; Sitchenko v DiResta, 512 F Supp 758; Mulvey v Hamilton, 57 AD2d 995.)
   OPINION OF THE COURT

Kaye, J.

Despite private agreement to dissolve a partnership, partners who continue to carry on business in the firm name with no manifestation of their dissolution, are estopped to deny liability to a party relying on the public indicia of partnership, for a tort committed by a partner acting with apparent authority.

The essential facts are undisputed. On September 27, 1977, Roger Allen sought a short-term loan of $60,000 from plaintiff, the Royal Bank and Trust Company, to enable him to obtain a larger loan from another source. Allen advised plaintiff that the $60,000 would be kept in an escrow account belonging to his attorneys, the firm of Weintraub, Gold & Alper. Allen gave Royal Bank a letter dated September 27, 1977 on the law firm’s stationery, addressed to him and signed by Alfred Weintraub (one of the three named partners), acknowledging that the check would be received by the firm as escrow agent, that it would be placed in the firm’s trust account (identified by number) at the Madison Avenue Branch of Marine Midland Bank, and that the money would be returned to plaintiff by October 5, 1977. Plaintiff learned from its parent, the Royal Bank of Canada, that Allen was a customer with a good credit rating, and that it knew of the proposed transaction. Plaintiff also called its New York attorneys, who advised that they had not heard of the firm Weintraub, Gold & Alper, and that the three named individuals were listed separately in an attorney directory as practicing law at the address given on the firm stationery. Plaintiff’s credit officer found the firm listed in the current Manhattan telephone directory, at the address and number corresponding to the letterhead. When he dialed the number a receptionist answered "Weintraub, Gold and Alper.” He then spoke to Weintraub and confirmed the escrow arrangement set forth in the September 27 letter. Plaintiff that day made the loan, giving Allen a $60,000 check payable to the law firm, which was acknowledged in writing by Weintraub. Despite demand, the check has never been returned. Plaintiff sued Allen and the firm as well as Weintraub, Gold and Alper individually, to recover the funds. Allen has confessed judgment and Weintraub has defaulted, but neither apparently can satisfy the judgment.

In support of its motion for summary judgment against the firm, and Gold and Alper individually (defendants), plaintiff produced the following additional uncontroverted evidence to establish the continued existence of the law firm in the year 1977, although none of this information was known to plaintiff at the time the loan was made. The three individuals continued to share what had been the partnership offices until at least November 1977. The receptionist answered the telephone in the firm name to give the appearance to firm clients that the firm still existed. The $60,000 check received September 27, 1977 was deposited in a special account maintained in the firm name. In July 1977, the three partners signed bank documents certifying that the partnership existed, received a loan, and opened new accounts. Liability insurance was obtained for the firm from January 9, 1977 through January 9, 1978. Firm letterhead was used for court correspondence in October 1977. The partnership filed no certificate of dissolution and made no public announcement of dissolution until the withdrawal of Alper in November 1977 when formal notices were sent out and use of the firm name ceased.

The crux of defendants’ opposition to plaintiff’s summary judgment motion is twofold. First, defendants maintain that as of January 1, 1976 the firm, which had existed since 1972 or 1973, dissolved by oral agreement between Messrs. Weintraub and Gold, that it took no new clients thereafter, that its conduct in 1977 was fully consistent with winding up, and that Weintraub therefore had no authority to bind the partnership in September 1977. Continued use of the firm name and letterhead, defendants insist, was to be only for limited duration, as an aid in the transition to individual practices. Second, defendants urge that plaintiff acted negligently, which at the least created an issue of fact sufficient to defeat summary judgment. We agree, however, with both lower courts that in the circumstances defendants are estopped to deny their liability, and that there is no triable issue regarding plaintiff’s negligence.

Acts of a partner in apparently carrying on the partnership business in the usual way are binding on the partnership unless that partner has no authority to act, and the person dealing with that partner knows that fact (Partnership Law §20 [1]). Here, Weintraub’s acts with respect to the escrow deposit were apparently for the benefit of a client and in furtherance of the partnership business. If indeed Weintraub lacked authority to act for the partnership in the particular matter, there is no evidence that plaintiff knew of this. Thus, had no issue of dissolution been raised, unquestionably defendants could have been charged with liability for Weintraub’s acts.

Defendants’ private agreement in late 1975 to dissolve the partnership does not alter this result. Whether or not the partnership of Weintraub, Gold & Alper continued in 1977 despite the intent of its members is an issue we need not resolve, for a partner who makes, and consents to, continued representations that a partnership in fact exists is estopped to deny that a partnership exists to defeat the claim of a creditor (Partnership Law § 27). Here, defendants are estopped to deny their relationship as against plaintiff. Nearly two years after alleged dissolution, the public indicia of the partnership remained undisturbed. Where the firm space, telephone number, telephone book listing and stationery continued in use by the individuals, with no discernible sign of dissolution, we conclude that the partnership continued to be liable as such to a party reasonably relying to its detriment on the impression of an ongoing entity. While partnership by estoppel should not be lightly invoked and generally presents issues of fact, here the undisputed evidence submitted on the summary judgment motion leaves no question for trial (see, Hedeman v Fairbanks, Morse & Co., 286 NY 240, 248-249).

Nor can summary judgment for plaintiff be defeated by defendants’ contention that, owing both to the unusual nature of the proposed transaction and to the separate listings in the attorney directory, plaintiff acted negligently in failing to investigate further. As plaintiff correctly points out, anything unusual about the transaction would have prompted further inquiry about the borrower, not his law firm, and plaintiff did investigate this aspect with its parent. Similarly, individual listing in an attorney directory, when measured against the uncontroverted proof of an apparently existing partnership, was insufficient as a matter of law to give rise to a genuine issue requiring trial (see, Andre v Pomeroy, 35 NY2d 361, 364; Poillon v Secor, 61 NY 456; compare, Weingrad v New York Univ. Med. Center, 64 NY2d 851).

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

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

Order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v Sergio Salcedo, Appellant.
    Argued May 30, 1986;
    decided July 10, 1986

      POINTS OF COUNSEL

      Stephen P. Younger and Gregory L. Diskant for appellant.
    I. Supreme Court erred in granting the People’s disqualification motion and deprived defendant of his right to counsel of his choice. (Matter of Abrams [John Anonymous], 62 NY2d 183; N. A. A. C. P. v Button, 371 US 415; Faretta v California, 422 US 806; Matter of Schumer v Holtzman, 60 NY2d 46; United States v Flanagan, 679 F2d 1072, 465 US 259; United States v Dolan, 570 F2d 1177; In re Gopman, 531 F2d 262; Matter of Grand Jury Proceedings, 428 F Supp 273; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307.) II. Supreme Court improperly ordered the courtroom closed during its inquiry concerning the possible conflict of interest of defendant’s counsel of choice. (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Press-Enterprise Co. v Superior Ct. of Cal., 464 US 501; People v Hinton, 31 NY2d 71, 410 US 911; People v Jones, 47 NY2d 409, 444 US 946; Globe Newspaper Co. v Superior Ct., 457 US 596; People v Brown, 79 AD2d 659, 56 NY2d 242; People v Ludolph, 63 AD2d 77; People v Gonzalez, 74 AD2d 928; People v Roberto, 67 AD2d 687; People v Morales, 53 AD2d 517.) III. Supreme Court admitted into evidence copies of defendant’s tax returns in violation of Federal and State tax secrecy laws. (Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, 44 NY2d 575; Kourakos v Tully, 92 AD2d 1051, 464 US 1070; Matter of Webster v Tully, 81 AD2d 683; United

      States v Praetorius, 451 F Supp 371; People v Jones, 47 NY2d 528.) IV. Defendant was denied a fair trial by certain remarks made by the prosecutor during summation. (People v Whalen, 59 NY2d 273; People v Higgins, 88 AD2d 921; People v Schaaff, 71 AD2d 630; People v Libbett, 101 AD2d 705, 63 NY2d 763; People v Ashwal, 39 NY2d 105; People v Simmons, 110 AD2d 666; People v Demko, 71 AD2d 608; People v Jones, 47 AD2d 761; People v Bailey, 58 NY2d 272.)

      Elizabeth Holtzman, District Attorney (Shulamit Rosenblum and Barbara D. Underwood of counsel), for respondent.
    I. Defendant has failed to preserve for review his current claim that the prosecution failed to make an adequate showing of need for defendant’s testimony to warrant disqualification over his objection; moreover, the trial court properly disqualified counsel based on its factual finding, affirmed on appeal, that defendant’s waiver of the actual conflict of interest was neither knowing nor voluntary. (People v Tutt, 38 NY2d 1011; People v Dancey, 57 NY2d 1033; People v Dawson, 50 NY2d 311; People v Winchell, 64 NY2d 826; People v Whitaker, 64 NY2d 347; People v King, 61 NY2d 969; Morris v Slappy, 461 US 1; Cuyler v Sullivan, 446 US 335; Matter of Abrams [John Anonymous], 62 NY2d 183; People v Hall, 46 NY2d 873.) II. Defendant has failed to preserve for review his claim regarding removal of spectators and closure of the courtroom during part of the disqualification proceedings; in any event the clearing of the courtroom did not implicate defendant’s right to a public trial and the court ruling was a proper exercise of discretion. (People v Thomas, 50 NY2d 467; People v Tineo, 64 NY2d 531; United States ex rel. Lloyd v Vincent, 520 F2d 1272, 423 US 937; People v Jones, 82 AD2d 674, 55 NY2d 751; Matter of Abrams [John Anonymous], 62 NY2d 183; People v Brown, 79 AD2d 659, 56 NY2d 242; People v Gonzalez, 74 AD2d 928; People v Roberto, 67 AD2d 687; People v Morales, 53 AD2d 517; People v Ludolph, 63 AD2d 77.) III. Disclosure of tax returns by a private person violates neither the Federal nor the State tax confidentiality provisions; moreover, the remedy for such disclosure is not suppression. In any event, error, if any, resulting from admission of such evidence is not of constitutional dimension and is harmless in this case. (United States v Claiborne, 765 F2d 784; Marvin v United States, 732 F2d 669; United States v Barnes, 614 F2d 121, 446 US 907; People v Crimmins, 36 NY2d 230.) IV. Neither of the summation remarks complained of deprived defendant of a fair trial; moreover, error, if any, was harmless. (People v Galloway, 54 NY2d 396; People v Marks, 6 NY2d 67; People v Shaw, 112 AD2d 958; People v Ketchum, 35 NY2d 740.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The defendant appeals from an order of the Appellate Division affirming his conviction of arson and reckless endangerment. His primary contention is that he was deprived of his right to counsel of his choice when the trial court disqualified his retained counsel on application of the prosecutor. We agree with the defendant and, accordingly, reverse the order of the Appellate Division.

In 1980 the defendant was indicted for setting fire to a grocery store which he owned. Almost a year later the defendant’s cousin was indicted in connection with another arson incident, and retained the same attorney to represent him. Approximately one month prior to the date scheduled for the defendant’s trial the prosecutor moved to have the defendant’s lawyer disqualified from continuing to represent the defendant. In support of the motion the prosecutor claimed that a recent investigation showed that the defendant’s cousin and certain other family members were involved in an arson conspiracy, that several of them had been indicted and the investigation was still continuing with respect to certain homicides, that the defendant had knowledge of the conspiracy which the prosecution wished to use against the other family members, particularly his cousin, but that the defendant refused to cooperate when offered a lesser plea in exchange for his assistance. The prosecutor urged that joint representation of the defendant and his cousin by the same attorney created a conflict of interest for the attorney, and that the attorney should therefore be disqualified from continuing to represent the defendant.

In response, defense counsel stated that he had advised the defendant of the prosecutor’s plea offer and the potential conflict, that the defendant’s position was that he had no information to offer and did not wish to assist in the prosecution of relatives, and that he wished the attorney to continue with the joint representation. Defense counsel urged that the defendant had the right to waive the apparent conflict, particularly where the defendant and his cousin had been separately indicated for separate incidents, and that the grounds asserted by the prosecutor were, without more, insufficient to deprive the defendant of the right to continue to be represented by counsel of his choice.

At the hearing on the motion, the court advised the defendant of the prosecutor’s position, the possible conflict, and the defendant’s right to conflict-free counsel. The defendant stated that he understood and nevertheless chose to continue with the attorney, prompting the court to remark that the defendant did indeed seem to understand. The court then held an in camera hearing where the People produced witnesses tending to show that-the defendant did have knowledge of the alleged conspiracy. At the conclusion of the hearing, the court disqualified the attorney without providing any reasons.

Thereafter, the defendant was represented by court-op-pointed counsel. He still refused, however, to accept the prosecutor’s plea offer and, after a jury trial, was found guilty of arson and reckless endangerment.

In an opinion filed nearly two years after the disqualification, and about one year after the defendant’s conviction, the court stated that it had granted the People’s motion to disqualify defendant’s counsel because it found that there was a conflict, and the defendant did not waive his right to conflict-free counsel knowingly and intelligently. This determination was based on the fact that the defendant was nervous during the hearing, appeared reluctant to speak, directed one-word responses to the court and generally spoke softly through assigned counsel and did not communicate "any real understanding of the nature of the court’s concern.”

Initially we note that the court should have stated the reasons for the decision to disqualify the defendant’s attorney when that decision was made. Issuing the opinion regarding demeanor so long after raises questions particularly when, as here, it contains statements inconsistent with comments made by the court at the time of the hearing. However, accepting the latter statements as the basis for the court’s decision, we nevertheless find that the court’s action was unwarranted.

The decision to disqualify defendant’s retained attorney cannot be justified on the ground that this was essential to secure evidence for the People. On that point, it is sufficient to note that the court made no finding to this effect and there was no evidence in the record that the People had exhausted all other investigative means (Matter of Abrams [John Anonymous], 62 NY2d 183, 197-199). The court rested its decision entirely on the conflict of interest and the defendant’s failure to make a knowing and intelligent waiver during the court’s inquiry. The prosecutor urges that the court had the power to disqualify counsel on that ground.

The prosecutor’s argument misconceives the purpose of the court’s inquiry relating to an alleged or apparent conflict of interest on the part of defense counsel representing two or more defendants (People v Monroe, 54 NY2d 35; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307). The object of the inquiry is not to determine whether the defendant should be permitted to waive his right to conflict-free counsel. The decision whether to waive the right is for the defendant to make (People v Macerola, supra, p 263). The court’s role is simply to insure through adequate warnings that the defendant’s decision has been made with awareness of his rights and the potential risks (supra). If the defendant indicates that he does not understand the warnings, the court should act to correct that problem by repeating the warnings, perhaps in simpler or clearer terms. That should suffice to insure that the defendant has made "an informed decision” (People v Gomberg, supra, p 313), unless the defendant is incompetent, in which case he should not be standing trial (CPL art 730).

Accordingly, the order of the Appellate Division should be reversed and the case remitted for a new trial.

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed and case remitted to Supreme Court, Kings County, for a new trial.

       The court further concluded that the defendant’s "appearance and demeanor” also demonstrated that "any decision [he] might have made with respect to [retained counsel’s] continued representation was not a voluntary one”. In the context this apparently refers to the fact that a decision cannot be said to be voluntary unless it is knowing and intelligent. In any event, there was no finding that the defendant had been coerced into retaining the attorney or continuing the representation and thus we need not consider what measures a court should take in that extraordinary circumstance.