author: Simons, J.

text:
    The People of the State of New York, Respondent, v Robert Brensic, Appellant. The People of the State of New York, Respondent, v Douglas Young, Appellant.
    Argued April 27,1987;
    decided June 4, 1987

      POINTS OF COUNSEL

      Mary B. Corrarino, Ivan Kline and Eric Berry for appellant in the first above-entitled action.

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent in the first above-entitled action.

      Gary Hoppe and Glenn J. Pogust for appellant in the second above-entitled action.

      Elizabeth Holtzman, District Attorney (Miriam R. Best and Barbara D. Underwood of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Simons, J.

Defendant Robert Brensic has been convicted by a Suffolk County jury of murder, second degree, and manslaughter, first degree, for his role in the asphyxiation death of 13-year-old John Pius. In an unrelated case, defendant Douglas Young has been convicted of rape, first degree, and two counts of robbery, second degree, stemming from his participation in an assault upon a woman which occurred on the grounds of the housing project in which he lived. Although others were similarly charged with the crimes arising from these two incidents, both defendants were tried alone and the common issue presented on these appeals is whether the trial courts improperly admitted into evidence against them the custodial confessions of nontestifying accomplices. The defendants claim that the admission of such evidence as declarations against penal interest violated New York evidentiary law and denied them their rights of confrontation and due process under the Federal and State Constitutions. We agree that admission of the confessions violated the hearsay rule because neither satisfied the prerequisites for reliability set forth in People v Settles (46 NY2d 154) and People v Maerling (46 NY2d 289). Accordingly, we reverse the convictions and order new trials. Because our determinations rest on State evidentiary grounds, we do not reach defendants’ Confrontation Clause claims (see, Lee v Illinois, 476 US 530; Ohio v Roberts, 448 US 56).

I

Out-of-court statements introduced to prove the truth of the matters they assert are hearsay. They may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable (see, People v Nieves, 67 NY2d 125, 131). In these cases the People contend that evidence was properly received as a declaration against penal interest. This exception to the hearsay rule recognizes the general reliability of such statements, notwithstanding the absence of the declarant to testify, because normally people do not make statements damaging to themselves unless they are true.

The exception has been recognized out of necessity and in the belief that the self-inculpating nature of the declaration serves as an adequate substitute for the assurance of reliability usually derived from the administration of an oath and the testing of the statements by cross-examination. Because these traditional guarantees are absent when out-of-court declarations against penal interest are offered, such evidence is admitted cautiously and only after reliability is firmly established (People v Thomas, 68 NY2d 194, 198; People v Geoghegan, 51 NY2d 45, 49; see generally, Fisch, NY Evidence § 891 [2d 1977]). As with all forms of hearsay evidence, a determination of the admissibility of a declaration against penal interest, focusing on the circumstantial probability of its reliability, must be made before it is received; the trial court must determine, by evaluating competent evidence independent of the declaration itself, whether the declaration was spoken under circumstances which renders it highly probable that it is truthful (see, People v Shortridge, 65 NY2d 309, 312-313; see generally, Richardson, Evidence § 206, at 183-184 [Prince 10th ed 1973]; Goodman & Waltuch, Declarations Against Penal Interest: The Majority Has Emerged, 28 NYL Sch L Rev 51 [1983]; Fine, Declarations Against Penal Interest in New York: Carte Blanche?, 21 Syracuse L Rev 1095 [1970]). Thus, before statements of a nontestifying third party are admissible as a declaration against penal interest, the proponent must satisfy the court that four prerequisites are met: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time of its making that the statement was contrary to his penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability (People v Thomas, 68 NY2d 194, 197, supra).

When the declaration is offered by the People to inculpate the defendant in a criminal trial — as distinguished from declarations offered by defendant to exculpate himself — it is subjected to even more exacting standards in recognition of the due process protections afforded defendants charged with crime including, of course, the requirement that guilt be established beyond a reasonable doubt (see, People v Thomas, supra, at 198; People v Maerling, 46 NY2d 289, 298, supra; see, Martin, Evidence: Declarations Against Interest, Confrontation, NYLJ, Jan. 9, 1987, at 1, col 1; at 2, cols 1, 2). In such instances, the trial court must find that the interest compromised is "of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify” (People v Thomas, supra, at 198). This standard raises a rebuttable presumption of unreliability when the inculpatory declaration is the result of custodial questioning because, in such circumstances, the declarant is likely to have a "strong motive to falsify” in order to curry favor, shift blame, receive immunity from prosecution or obtain a favorable plea bargain (see, People v Geoghegan, 51 NY2d 45, 49, supra; People v Settles, 46 NY2d 154, 166-168, supra; and see Richardson, Evidence op. cit. § 260, at 227-228; cf, Lee v Illinois, 476 US 530, supra). Indeed, some authorities hold that a third party’s statements against penal interest obtained during custodial interrogation should never be received in evidence to inculpate a defendant (see, United States v Sarmiento-Perez, 633 F2d 1092, cert denied 459 US 834; Report, New Jersey Sup Ct, Committee on Evidence, at 170-171 [1963]; 4 Weinstein’s Evidence, United States Rules If 804 [b] [3] [03], at 804-156 [1985]; Comment, Declarations Against Interest-Rules of Admissibility, 62 Nw U L Rev 934 [1968]).

When the People seek to introduce the declaration against penal interest of an unavailable third party to inculpate a defendant, through the testimony of an in-court witness, and the defendant claims that such evidence is unreliable, the trial court should conduct a hearing, if there is any dispute concerning the circumstances, to determine whether the criteria for admissibility are actually satisfied (see, People v Thomas, 68 NY2d 194, 198, supra; People v Maerling, 46 NY2d 289, 299, supra). If the court decides to allow such evidence, it should admit only the portion of that statement which is opposed to the declarant’s interest since the guarantee of reliability contained in declarations against penal interest exists only to the extent the statement is disserving to the declarant (see, People v Thomas, supra, at 198 [where the statement — as redacted — did not directly implicate the defendant as a perpetrator of the crime for which he was being tried]; People v Geoghegan, 51 NY2d 45, 49, supra; People v Maerling, supra, at 298-299; and see, Richardson, Evidence op. cit. § 260, at 115 [1972-1985 Cum Supp]). Finally, when the trial court decides to admit a declaration against penal interest through the testimony of a third party, it should give a proper limiting instruction at the time such testimony is introduced and it should also instruct on the use of the evidence during its final jury charge (see, People v Thomas, 68 NY2d 194, 201, supra; see also, 4 Weinstein’s Evidence, United States Rules ff 804 [b] [3] [03], at 804-150 [1985]).

In the two cases before us we are unable to "all but rule out any motive to falsify” on the part of the nontestifying declarants (People v Maerling, 46 NY2d 289, 298, supra). That being so, the People failed to establish the reliability of their statements and it was error to permit the juries to consider them.

II

A

Defendant Robert Brensic has been convicted of killing John Pius. The body was found the day after the homicide, on April 21, 1979, in a wooded area behind the schoolyard of the Dogwood Elementary School in Smithtown, New York, covered by two logs and some twigs and leaves. Forensic examination revealed that death was due to traumatic asphyxia, caused by physical injuries resulting from beating and kicking and by rocks placed in decedent’s mouth. Investigation led the police to Peter Quartararo, age 15, and Thomas Ryan, age 17. The police questioned the boys separately on April 28, 1979 and eventually obtained admissions and a confession from Peter Quartararo which inculpated Brensic. Peter’s confession was admitted at defendant’s trial and defendant contends receipt of that evidence constituted reversible error.

Before receiving the confession, the trial court properly conducted a hearing on admissibility at which the People presented Detective Palumbo to testify about the circumstances underlying Peter’s statements. After hearing this evidence and the legal arguments of counsel for both sides, the court determined that Peter’s confession, recited in his mother’s presence, met the Settles prerequisites and that it was admissible.

At the Settles hearing, Detective Palumbo testified that he questioned Peter for approximately two and a half hours about his knowledge of a certain suspect in the case, Michael O’Neill. Peter eventually told the police that, in fact, Thomas Ryan and defendant Robert Brensic had killed John Pius to prevent him from disclosing that Brensic, Ryan and the Quartararo brothers had stolen a minibike from a house on Brensic’s paper route. Peter admitted that he and his brother Michael were present at the schoolyard at the time of the killing, but stated that they had neither seen nor become involved in it. Palumbo and another detective then took Peter to the crime scene and asked him to. describe where these events had taken place. At that time, Peter gave a new account of the murder, indicating that he and his brother, Michael, had witnessed the murder of Pius by Brensic and Ryan and had helped to bury the body. Upon being told that he would have to testify in court about this, and that Thomas Ryan also had made admissions to the police, Peter gave a third version of the homicide that implicated himself and his brother Michael, as well as Ryan and Brensic. It was then approximately 6:30 p.m. and, for the first time, Peter was given Miranda warnings. He waived his rights because he "wanted to tell the whole thing and get it off his chest.” While walking back to the squad car, Peter recounted the events surrounding the death of John Pius again, but this time he identified Brensic as the person who wanted to make sure Pius did not "rat out” the four for the theft of the minibiké; as the person who started the fight with Pius; and as the person who directed that rocks be shoved down decedent’s throat "to shut him up.”

After leaving the schoolyard, the police attempted to contact Peter’s mother but were unsuccessful. They took Peter to McDonald’s for dinner and then proceeded back to the juvenile service unit. In the meantime, Mrs. Quartararo had called the precinct about her missing son and apparently was not told that he was being questioned by the police. At approximately 8:00 p.m., the police reached Mrs. Quartararo by telephone, informed her of the events which had transpired, and requested her to bring her son Michael to the juvenile service unit. She agreed to do so and, when she and Michael arrived, at approximately 8:30 p.m., the Quartararo brothers and their mother were advised of their Miranda rights. They waived them and agreed to speak without the presence of an attorney. Michael was then asked to leave the room and the arresting officer asked Peter to tell his mother, in his own words, what had happened. Peter gave an account of the circumstances surrounding the death of John Pius in which he admitted his own active involvement, that of his brother Michael, and that of Thomas Ryan and defendant Robert Brensic. After he related his story to his mother, Michael Quartararo was brought back into the room and told of his brother’s confession. Michael vehemently denied any involvement in the killing, although he admitted a part in the stealing of the minibike. Peter Quartararo thereafter recanted his confession and denied any involvement in Pius’ death, telling the police he had fabricated the story because he "thought you guys would let me go.” Mrs. Quartararo, and later Mr. Quartararo, spoke alone with Peter in an attempt to persuade him to reaffirm his confession and not be intimidated by his brother Michael, but Peter refused. The Quartararo boys were released, without charge, at approximately 5:45 a.m. on April 29, 1979. Prior to leaving the precinct, Peter spoke alone with Palumbo and another detective telling them "I’ll tell the truth only if Michael will tell it first. Only if Michael will tell what happened first.”

Defendant Brensic and the Quartararo brothers were indicted in December 1979 and Ryan some months later. Brensic’s case was subsequently severed for trial. Defendant’s first trial ended in a mistrial during the presentation of the People’s case. At the second trial, the People sought to introduce Peter Quartararo’s confession against defendant but Quartararo had been convicted of murder, second degree, in the separate trial and, since his appeal was then pending, he refused to testify. Consequently the People sought to introduce his statements through the testimony of Detective Palumbo. Following the Settles hearing previously discussed, the trial court ruled that only the custodial confession made in the presence of Mrs. Quartararo was admissible as a declaration against penal interest. The court ordered that the statement be redacted to remove references to defendant and the other alleged accomplices. The court gave the jury a limiting instruction before Detective Palumbo testified about the confession, and later, in its charge, the court instructed the jury that Peter Quartararo’s statements could not be considered as evidence of defendant’s guilt, but could only be used to "test the credibility and reliability of other testimony and evidence and to corroborate the testimony of other witnesses in this case.”

On appeal, the Appellate Division determined that, given the prosecutor’s suggestion during summation that the jury consider the confession as corroborating evidence of Brensic’s guilt — coupled with the court’s instructions to the jury — the jury was clearly led to believe it could consider the confession as primary evidence of defendant’s guilt. Hence, admission of the statements raised hearsay and confrontation issues. Nonetheless, the Appellate Division determined that the confession was properly admitted as a declaration against penal interest; that the statement had been properly redacted; and that defendant’s right of confrontation was not violated by admission of the statements. Accordingly, it affirmed defendant’s conviction.

We agree with the Appellate Division that, given the prosecutor’s remarks during summation and the court’s instruction in its jury charge, the jury was led to believe it could use Peter Quartararo’s confession as substantive evidence of defendant’s guilt. Because introduction of the statement through the testimony of Detective Palumbo constituted hearsay, it was properly admitted only if the circumstances surrounding the confession satisfied the prerequisites of a declaration against penal interest as we have stated them. Because we hold that they did not, and that the error was not harmless, we reverse the order of the Appellate Division, vacate defendant’s conviction and grant a new trial.

In its oral ruling on admissibility, the trial court did not determine whether, at the time of the confession, Peter Quartararo had a motive to falsify. In a later written decision, it addressed that issue and found that, once Peter’s mother arrived at the precinct, his obvious motives for falsification no longer became paramount and it was "reasonable to conclude that the statements forthcoming were reliable and worthy of belief’ (People v Brensic, 118 Misc 2d 390, 400). The Appellate Division agreed with this analysis. We conclude, however, that the evidence before the court not only failed to establish the reliability of Peter’s confession, it suggested quite the contrary, that he had a strong motive to fabricate when he confessed to his mother. Accordingly, the confession was unreliable as a matter of law and should not have been received in evidence.

First, the confession was the product of the custodial questioning of a 15-year-old boy for six and a half hours, without his parents’ knowledge, by two police detectives. In the course of this interrogation, Peter gave numerous versions of the events that led to John Pius’ death. In the first account, he clearly attempted to shift the blame by identifying defendant and Thomas Ryan as the murderers, and he claimed that he and his brother did not even see the crime (compare, People v Thomas, 68 NY2d 194, 199-200, supra; People v Geoghegan, 51 NY2d 45, 49-50, supra). Gradually, however, under continual questioning Peter admitted that he and his brother watched the murder and helped bury the body. In none of these versions did he implicate himself in the killing sufficiently for the police to give him Miranda warnings. Finally, he admitted that he and his brother participated in the actual killing, as well, although defendant was clearly identified as the instigator and ringleader. Peter’s admissions became increasingly self-inculpatory as the interrogation wore on, but there is no guarantee that the later version of the killing, recounted in his mother’s presence and implicating defendant, was the accurate one or that the earlier motive to shift blame was not still operative. Certainly his mother’s presence did not automatically insure reliability. Indeed, it is at least possible that a teen-ager who confesses in front of his mother that he and his brother killed a young boy would seek to minimize the degree of their participation and responsibility — particularly when his "difficult younger brother”, as his parents described him, is waiting outside the room. That Miranda warnings were administered to Peter prior to his inculpatory admissions and again prior to this confession — and that the confession was later determined to be voluntary because of their waiver —is not dispositive of the question of reliability. As the Supreme Court recently observed, a finding that a confession was voluntary for Fifth Amendment purposes does not bear on the question of whether the confession was also free of any desire, motive, or impulse to mitigate one’s own culpability by spreading blame or by overstating the involvement of an accomplice (see, Lee v Illinois, 476 US 530, 543-545, supra).

Next, there is evidence that certain events occurred after Peter Quartararc’s confession to his mother which further undermine its reliability. For example, when his brother refused to admit any involvement in the murder, Peter recanted his confession. Although the People point to Peter’s statement to police that "I’ll tell the truth only if Michael will tell it first” as evidence that the now-recanted confession was reliable, there is no guarantee that the "true” version the brothers might have told would have implicated defendant as did the confession Peter recited to his mother.

Finally, there is evidence in the record to support the inference that Peter did not fully realize that his various admissions and confessions were contrary to his penal interest. He admitted participation in the murder after Detective Palumbo told him in the schoolyard that Brensic and Ryan would be tried for murder, and that he would have to testify against them. He then replied "I may as well tell the truth.” Thus, the possibility exists that Peter thought that only defendant and Ryan would be charged, and his involvement would be limited to testifying as a prosecution witness. Following Peter’s confession, he and his brother were not charged, ánd when they left the precinct the police expected that they would cooperate with the investigation. Moreover, there is no evidence that Peter Quartararo was specifically told that, if he confessed, he would be tried for murder. Palumbo testified that he did not tell Peter he would go to jail for what he was admitting. Significantly, on cross-examination at the admissibility hearing Palumbo stated that, prior to his recantation of the confession, Peter pleaded with his brother to confess saying "Mike, I told him everything. Please tell the cops. Please tell him everything. Let’s get out from under this” (emphasis supplied). There also was evidence that, after his son recanted his confession, Mr. Quartararo urged him to tell the truth "to save your skin”.

Given this substantial evidence that the confession was but one of several, each containing material differences, that it was obtained from a juvenile after lengthy custodial questioning and that it was given under circumstances which suggest that it was induced by the hope of leniency, the confession should not have been placed before this jury as evidence of defendant’s guilt. Nor is the argument for reliability stronger because part of Peter’s confession was consistent with other evidence before the jury. The test is whether the confession was truly against the declarant’s penal interests and the People failed, as a matter of law, to establish in this case that it was.

Moreover, the error in admitting the confession cannot be deemed harmless because there is a significant possibility that the jury would reasonably have acquitted defendant had the confession not been admitted (see, People v Crimmins, 36 NY2d 230, 242). There was no physical evidence connecting defendant to the killing. The only other evidence offered at trial that directly implicated him was the testimony of two witnesses who recounted purported admissions of defendant concerning his participation in John Pius’ death, and the testimony of a third witness who related an alleged confession made by defendant while in the county jail. Each of these witnesses presented credibility problems, but the jury was invited to use the evidence of Peter Quartararo’s confession to bolster their credibility and to corroborate their testimony.

B

In People v Young, the issue is presented in a slightly different posture. In Young, the court did not conduct a Settles hearing, although defendant objected to admission of the evidence. Thus there is no record of the circumstances under which the inculpatory statements were acquired, and we are unable to rule on reliability as a matter of law.

Defendant Douglas Young and three of his friends were charged with various crimes arising from the rape and robbery of 50-year-old Teresa Ocasio at approximately 3:00 a.m. on October 9, 1982. The incident occurred behind a building in the housing project in which defendant lived and was observed by two eyewitnesses who later identified the four assailants. Defendant and Jerome Portis were arrested on October 13, 1982 and taken to the police station for questioning. Detective Foley, who was assigned to investigate the crime, questioned defendant first. After being apprised of his constitutional rights, defendant gave an oral statement indicating that he had observed portions of the attack on Ms. Ocasio, but did not participate in it. Defendant then gave the police a handwritten statement, as did each of the other suspects.

All four defendants moved to suppress their statements and a Huntley hearing was held on their motions. After the testimony of Detective Foley was completed, David Littles and Jerome Portis each pleaded guilty to one count of robbery, first degree, in satisfaction of all seven counts in the indictment against them. Following the presentation of all the evidence, but before the court’s ruling on the suppression motions, Willie Portis similarly pleaded guilty to one count of robbery, first degree. Defendant declined to plea bargain, and his motion to suppress his statements to Detective Foley was denied.

Defendant came to trial before a Judge who had not presided over the Huntley hearing or the codefendants’ plea allocutions. Prior to trial, the People moved for a ruling permitting the admission of the accomplices’ statements on its direct case as evidence of the occurrence and nature of the crimes in which defendant was alleged to have participated. After hearing legal arguments from counsel on the motion, but without taking any evidence, the court ruled that the statements were admissible if properly redacted. On the first day of trial, defense counsel renewed his objection to the admission of the accomplices’ statements, arguing that no evidence had been taken concerning the circumstances surrounding them. Defense counsel also contended that the statements had not been properly redacted, that they would link defendant to the crime, and that admission of the statements would violate defendant’s right of confrontation.

In fact, only David Littles’ confession was admitted into evidence at defendant’s trial. As developed at the Huntley hearing, Littles’ oral and written statements had been taken by Detective Foley several hours after the arrest of defendant and Jerome Portis when Littles had come voluntarily to the police station for questioning and, upon his arrival, saw defendant and Jerome Portis detained in cells. His written confession implicated defendant in the attack.

The parties had stipulated that Littles was unavailable to testify at defendant’s trial because he intended to invoke his privilege against self-incrimination if called. Hence, the confession, as redacted, was admitted through the testimony of Detective Foley without a limiting instruction by the court. Upon being asked if this statement was the sum and substance of David Littles’ statement, Detective Foley said it was not, "The Court said I can’t read”. The prosecutor cut off the witness’ response. Defense counsel’s motion for a mistrial was denied, and the court instructed the jury that they had heard all they were legally entitled to hear of the statement. During summation and without defense counsel’s objection, the prosecutor several times referred to Littles’ confession as evidence upon which the jury was entitled to rely as direct evidence of defendant’s active involvement in the crimes. Although defense counsel asked for an instruction that Littles’ confession could not be used to directly inculpate defendant, but rather only to show that more than one person participated in the crime, the trial court did not give this requested charge. Rather, after discussing how the jury should assess the credibility and weight of Littles’ statement, the court instructed the jury that it could consider the statement as substantive evidence of guilt but that it must be corroborated. The jury convicted defendant of rape, first degree, and two counts of robbery, second degree. On appeal, the Appellate Division affirmed the convictions, holding that Littles’ confession was admissible because it was clearly against his penal interest, the redacted statement did not clearly inculpate defendant, and there were sufficient "indicia of reliability” to survive a Confrontation Clause challenge. We disagree.

Given the remarks of the prosecutor during summation, and the trial court’s instructions to the jury, it is clear that the jury was invited to consider the written confession of David Littles for the truth of the matter asserted in it. Consequently the confession constituted hearsay and was inadmissible unless it satisfied the criteria for the admission of declarations against penal interest (see, People v Settles, 46 NY2d 154, supra; People v Maerling, 46 NY2d 289, supra). In contrast to the procedure followed in Brensic (supra), the Trial Judge did not conduct an inquiry into the circumstances surrounding David Littles’ confession but, instead, ruled that the availability of Detective Foley at trial, through whom the confession would be introduced, would substitute for a cross-examination of Littles.

The trial court’s ruling was erroneous, because a hearing to determine admissibility is required whenever there are unresolved factual issues concerning the reliability of the proffered statement (see, People v Thomas, 68 NY2d 194, 198, supra; People v Maerling, supra, at 299). In this respect, declarations against penal interests differ from other hearsay statements, such as dying declarations or spontaneous declarations, which are also exceptions to the general rule (cf., People v Egan, 78 AD2d 34). The reliability of declarations against penal interest is predicated entirely on their disserving character and, as we have recognized many times, they may be uttered for a variety of motives, many of them for the declarant’s benefit. Thus, an inquiry is generally required to resolve whether the statement was in fact against the declarant’s interest (see, People v Thomas, 68 NY2d 194, 198, supra) and that the declarant was not motivated by factors casting doubt on its reliability (see, e.g., People v Shortridge, 65 NY2d 309, supra). It is important to know, for example, the relationship of the declarant and the witness, whether the statement was made under the constraints of custodial questioning or spontaneously to disinterested parties, whether it was made to hurt an enemy or help a loved one. Moreover, defendant may assert grounds to believe that the declarant suffers from emotional or psychological instability or is a pathological liar (see, id., at 313). The evaluation of reliability is a matter entrusted to the trial court, and it is only after a determination of admissibility is made that the jury may assess the credibility of the third-party witness whose statement has been introduced (see, People v Settles, 46 NY2d 154, 170, supra; and see, People v Thomas, supra, at 199).

The trial court did not make such a determination here and there is sufficient evidence to hold that it should have done so. Judging from the evidence at the Huntley hearing (which the Trial Judge did not hear and apparently did not consider) and the evidence at trial, David Littles was under arrest at the time he gave his written statement, raising the presumption of the unreliability of his custodial confession (see, People v Geoghegan, 51 NY2d 45, 49, supra; People v Settles, supra, at 166-168). He confessed after seeing his alleged accomplices Jerome Portis and defendant Douglas Young in detention at the police station, suggesting that defendant’s inculpating statement was made at a time that Littles had a motive to falsify his account to spread blame or curry favor (compare, People v Thomas, 68 NY2d 194, 200, supra). Finally, Littles’ statement at his plea allocution differed from the admitted confession in its detail of defendant’s participation in the robbery. These were matters which required that the court either deny the motion to use the confession or, at least, hold a hearing to examine the surrounding circumstances for the purpose of determining reliability.

The error in admitting Littles’ confession against defendant as a declaration against penal interest cannot be deemed harmless (see, People v Crimmins, 36 NY2d 230, 242, supra). As in the Brensic case (supra), the jury was invited to use the statement to support other evidence adduced at trial directly implicating defendant in the crimes. Apart from the confession, the only evidence of defendant’s active and intentional participation in the rape and robbery is found in the testimony of the victim and of one eyewitness, and both of these accounts were impeached by the prior inconsistent statements they had made.

Accordingly, in each case, the order of the Appellate Division should be reversed, the conviction vacated and a new trial ordered.

Chief Judge Wachtler and Judges Alexander, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye taking no part.

In each case: Order reversed, etc. [See, 70 NY2d 722.]

      . Prior to Peter Quartararo’s trial, the court held a Huntley hearing on his motion to suppress the admissions and confessions. The suppression court ruled, inter alia, that Peter Quartararo’s confession in his mother’s presence, was admissible. The Appellate Division agreed (see, People v Quartararo, 113 AD2d 845, 848). Leave to appeal to this court was denied (66 NY2d 921).

      . Because our determination in this case is based on the improper admission of Peter Quartararo’s confession as a declaration against penal interest, we do not reach defendant’s claim that the prosecutor’s suggestion during summation that defendant had destroyed a pair of sneakers that would have linked him to the murder — a claim which was unsupported by any evidence adduced at trial — deprived him of a fair trial.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Patrick T. Maney, a Justice of the East Greenbush Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued April 28, 1987;
    decided June 2, 1987

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., and Robert M. Cohen for petitioner.

      Robert H. Tembeckjian and Gerald Stern for respondent.
   OPINION OF THE COURT

Per Curiam.

In November 1983, petitioner was elected to his fourth four-year term as Justice of the East Greenbush Town Court. As the stipulated facts before the Judicial Conduct Commission show, he immediately launched a campaign within his own political party to ensure his renomination. Petitioner began this campaign by recruiting a friend to serve on the Town Democratic Committee and recommending the friend’s appointment to the party chairman during a fund-raising dinner. When the existing party chairman was replaced by an individual who petitioner believed was antagonistic to his candidacy, petitioner openly advocated the new chairman’s removal, expressing his dissatisfaction with the current leadership to friends, legal clients and the Town Supervisor. Additionally, petitioner held a meeting with the party chairman in his own office and, in the presence of the Town Supervisor and others, asked the chairman to resign.

After petitioner’s efforts to secure the chairman’s resignation proved unsuccessful, petitioner agreed with the Town Supervisor and his friend that an attempt should be made to oust him at the next party caucus. In furtherance of this plan, petitioner sought possible replacement candidates, discussed the manner in which the caucus should proceed, urged friendly party members to attend the caucus and recruited a temporary chairman to conduct the proceedings. Petitioner then personally attended the caucus and took an active role in the ouster effort, nominating the temporary chairman, speaking about his own dissatisfaction with the party leader and even advocating that an immediate vote be taken when a question was raised concerning the legality of the caucus’ procedure.

On the basis of these facts, the Judicial Conduct Commission unanimously concluded that petitioner’s conduct represented a "callous disregard for the applicable ethical standards” and that, consequently, he should be removed from judicial office. In reaching this determination, the Commission took into account both petitioner’s actions and his asserted position.

We agree with the Commission’s conclusion. Petitioner violated both the letter and spirit of the rules forbidding political activity by Judges (Rules Governing Judicial Conduct, 22 NYCRR 100.7 [c], [d], [e]; Code of Judicial Conduct canon 7 [A] [1] [c]; [2], [4]). Those rules provide that Judges must hold themselves aloof and refrain from engaging in political activity, except to the extent necessary to pursue their candidacies during their public election campaigns.

Far from removing himself from politics, petitioner became involved in partisan political maneuvering immediately after his public campaign for reelection had ended and nearly four years before his next one was to begin. Indeed, petitioner never really terminated his intense political involvement after his election to judicial office, but instead openly engaged in a long-term struggle for control of the local Democratic Party leadership. Moreover, he actively solicited support for his own faction among party members and assumed a partisan stance in the relatively public setting of a party caucus. Such conduct, particularly when coupled with petitioner’s own statements before the Commission concerning his unwillingness to forgo political activity during his tenure as a sitting Judge, reflects insensitivity to the judiciary’s ethical obligations.

Nor can we accept petitioner’s attempts to justify his partisan involvement on the ground that it was necessitated by the political realities that face elected Judges. Notwithstanding that some political activity is necessary in a jurisdiction such as ours, which selects most of its Judges by public election, the boundaries of permissible political activities are clearly delineated in the Rules Governing Judicial Conduct and the Canons of Judicial Ethics (see, Matter of Rosenthal v Harwood, 35 NY2d 469, 473). Those rules and canons permit Judges to campaign for themselves when they become announced candidates in respect to a presently impending election. Even then the rules only allow active involvement in a political organization under narrowly circumscribed conditions. Petitioner’s ongoing immersion in the affairs of a political party represented a flagrant disregard of ethical restraints. We further note that petitioner was censured on a prior occasion for "ticket fixing.”

Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Determined sanction accepted, without costs.

       The Commission in this case inappropriately relies on Matter of Hayden (41 NJ 443, 197 A2d 353) and Matter of Pagliughi (39 NJ 517, 189 A2d 218), two cases decided in New Jersey, where almost all Judges, including the magistrates involved in the cited cases, are appointed. Obviously, the considerations applicable to appointed Judges cannot govern a situation where Judges must stand for election.


author: Kaye, J.

text:
    In the Matter of The Associated Press et al., Respondents, v Howard E. Bell, Individually and as a Justice of the Supreme Court of the State of New York, et al., Appellants.
    Argued June 1, 1987;
    decided June 4, 1987

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Lawrence S. Kahn, O. Peter Sherwood, Andrea Green and Frederic L. Lieberman of counsel), for Howard E. Bell, appellant.

      Roger L. Stavis, Jack T. Litman and Richard M. Asche for Robert E. Chambers, appellant.

      David A. Schulz, Richard N. Winfield, Thomas J. Lilly, Daniel F. Primer, David A. Thurm and Marjorie Thalheimer Coleman for The Associated Press and others, respondents.

      Devereux Chatillon, Floyd Abrams, Craig A. Newman, Seth Goodchild, Sandra S. Baron, Jack R. Friedman and Laura V. Jones for National Broadcasting Company, Inc., and others, respondents.

      Terrence M. Connors for National Association of Criminal Defense Lawyers, amicus curiae.

   OPINION OF THE COURT

Kaye, J.

This appeal in a highly publicized murder case centers on the tension between the constitutional right of an accused to a fair trial and the constitutional right of the public and the press to attend the proceedings. While defendant insists that an open courtroom during a Huntley hearing will imperil his right to secure an impartial jury, we conclude — as did the Appellate Division — that closure was improper here because of the absence of the requisite factual and legal predicates.

Defendant, Robert Chambers, is charged with the murder of a young woman, Jennifer Levin, in Central Park during the early morning hours of August 26, 1986. A combination of violence, youth, sex and privilege, the case has already attracted extensive public attention.

On May 7, 1987 — the eve of the Huntley hearing — defendant moved that the courtroom be closed to the public and the press, on the ground that disclosure of any suppressed statement would threaten the later impaneling of an impartial jury, and thus deny him his constitutional right to a fair trial. Instead, defendant proposed that, after a jury was sworn, the media be furnished with transcripts of the hearing, redacted to exclude any suppressed statements. The only particular statements referred to by defense counsel in his argument for closure consisted of a lengthy videotaped interview given by defendant shortly after the crime, to an Assistant District Attorney and a police officer. Counsel represented, without any specificity, that "[m]any of the details of what is in there have never been reported to the press,” and that "there is, therefore, much information and much detail that has not come out at all.”

The People have consistently urged that the hearing be open, contending that in substance defendant’s statements have already been fully disclosed to the public. In opposing closure of the suppression hearing, which involves challenges to police and prosecutorial conduct, the prosecutor argued additionally that the public had a right to know about the events leading up to defendant’s arrest.

In its decision announced the morning of May 8, 1987, the trial court, quoting extensively from Matter of Gannett Co. v De Pasquale (43 NY2d 370, affd 443 US 368), granted defendant’s request, concluding: "the court feels in view of the strong language of the Gannett case that I read and re-read, that it reluctantly and with great emotion, frankly, must exclude the press from this portion, that is, the Huntley portion of the hearing.” The court noted that — while it did not know what tainted evidence (if any) there might be and it did not know whether disclosure of potentially suppressible evidence would impede obtaining an impartial jury — it could not "gamble with the possibility of tainted evidence being printed, and the possibility of our having to call another three hundred members of a panel before we are able to select twelve Constitutionally fair jurors.” The court observed that much of the publicity in the case had its source in defendant’s own filings. However, it made no specific findings regarding the existence of any additional, nonpublic statements, or the presence of prejudice that closure would prevent, or alternatives to closure.

The media petitioners that very day commenced the present article 78 proceeding against the Trial Judge and defendant, to enjoin the court from going forward with closed pretrial proceedings. On May 13, 1987, the Appellate Division granted their petition and vacated the closure order. In concluding that defendant failed in his burden to establish justification for denying access, the court noted that defendant had "made detailed statements to the public and press disclosing most, if not all, of the information he now seeks to keep secret. Indeed, this record discloses that defendant, in his own pretrial motions, has made the matters he now seeks to suppress freely available to the media.”

In a line of cases beginning with Matter of Gannett Co. v De Pasquale (supra), this court and the United States Supreme Court have weighed an accused’s right to a fair trial against demands of the press for access to the courtroom. In Gannett, we upheld a trial court’s closure of a pretrial suppression hearing, recognizing that "[a]t the point where press commentary on those hearings would threaten the impaneling of a constitutionally impartial jury * * * pretrial evidentiary hearings in this State are presumptively to be closed to the public” (43 NY2d, at 380, supra). The Supreme Court affirmed, concluding that under the Sixth Amendment the right to a public trial belongs to the defendant, not the public (443 US, at 390-391, supra).

"[T]he content of constitutional immunities is not constant, but varies from age to age.” (Cardozo, Nature of the Judicial Process, at 82-83.) Just one year after Gannett, the Supreme Court for the first time established that the public and the press have a constitutional right — implicit in the First Amendment — of access to criminal trials (Richmond Newspapers v Virginia, 448 US 555, 580; see also, Globe Newspaper Co. v Superior Ct., 457 US 596, 603; People v Harris, 57 NY2d 335, 347, n 4, cert denied 460 US 1047). As the Supreme Court acknowledged, without a public right of access "important aspects of freedom of speech and 'of the press could be eviscerated’.” (Richmond Newspapers v Virginia, 448 US 555, 580, supra.)

Plainly the First Amendment right of access is not limited to the criminal trial itself. The many policy concerns favoring open proceedings — articulated time and again by the courts (see, e.g., Globe Newspaper Co. v Superior Ct., 457 US 596, 605-606, supra; Richmond Newspapers v Virginia, 448 US 555, 569-572, supra; Gannett Co. v De Pasquale, 443 US 368, 383, supra; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 437-438) — obviously may pertain equally to other phases of a criminal action. In Press-Enterprise Co. v Superior Ct. (464 US 501 [Press-Enterprise I]), for example, the Supreme Court recognized that this right extends to jury selection, and in Press-Enterprise Co. v Superior Ct. (478 US 1 [Press-Enterprise II]), the court found it applicable as well to preliminary hearings as conducted in California. While the First Amendment right has not yet specifically been applied by the Supreme Court in a case involving a suppression hearing, the court only recently concluded — albeit in a case where defendant opposed closure — that the complementary Sixth Amendment right of the accused to a public trial was applicable to suppression hearings. The court noted that the "need for an open proceeding may be particularly strong with respect to suppression hearings.” (Waller v Georgia, 467 US 39, 47.)

We recognize that suppression hearings pose a peculiar risk in that adverse pretrial publicity could inflame public opinion and taint potential jurors by exposing them to inadmissible but highly prejudicial evidence (Press-Enterprise II, 478 US 1, 14-15, supra; Gannett Co. v De Pasquale, 443 US 368, 378, supra; see also, Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 439, supra; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 380, supra). By the same token, suppression hearings frequently challenge acts of the police and prosecutor — as indeed appears to be the case here — giving particular value and significance to conducting such hearings in the public eye (see, Waller v Georgia, supra). Taking these considerations into account, it is apparent that a hypothetical risk of prejudice or taint cannot justify categorical denial of public access to suppression hearings because, as a general matter, the important interests of both the accused and the public can be accommodated. In individual cases, through careful voir dire a court can identify any potential jurors whose prior knowledge of the case would deter them from rendering an impartial verdict, and thus protect the right of the accused to a fair trial (Press-Enterprise II, 478 US 1, 14-15, supra). We conclude, therefore, that the public and the press may have a First Amendment right of access to pretrial suppression hearings.

This right of access is not, however, absolute. Although open criminal proceedings in general and open suppression hearings in particular serve to assure fairness and integrity, there are circumstances where the right of the accused to a fair trial might be inhibited or undermined by unrestricted publicity (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 443-444, supra). Where a defendant’s right to a fair trial is threatened "the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access” (Press-Enterprise II, 478 US 1, 9-10, supra).

A defendant who asserts that his right to a fair trial may be compromised by an open proceeding bears the burden of supporting that contention. In order to override the qualified right to access of the public and the press, and close the courtroom, there must be "specific findings * * * demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.” (478 US, at 12-13.) No such record had been made here.

While the requirement of "specific findings” cannot be so stringent as to, in effect, divulge that which is sought to be kept confidential, neither defendant in his submission nor the trial court in its findings met the standards required for excluding the public and the press from the courtroom. Defendant himself only hinted at "much information and much detail that has not come out at all”. The trial court acknowledged that it did not know what — if any — tainted evidence there might be, and did not know whether any such evidence would threaten impaneling an impartial jury, but nonetheless closed the hearing on the "possibility” that there might be such evidence and that it might affect jury selection. In this court, defendant submitted the sealed transcript of his videotaped interview, and no other statements; the media petitioners, in support of their contention that the challenged statements have already been made public, submitted portions of a 50-page affidavit filed by defense counsel months earlier in connection with several defense motions. That affidavit summarized and indeed excerpted large segments of the videotape, supporting the conclusion reached by the Appellate Division that the contents of the videotape have in substance already been disclosed. There was no specific finding of a substantial probability that the defendant’s right to a fair trial would be prejudiced by publicity that closure would prevent, and no finding that reasonable alternatives to closure could not adequately protect defendant’s fair trial rights. Indeed, such findings would not have had support in this record, and we therefore reject the request of respondent Bell that the matter simply be remitted for findings.

By denying public access to the suppression hearing on a "possibility” that there might be tainted, nonpublic evidence that might impair the selection of an impartial jury — which could very likely be said of every suppression hearing in every highly publicized case — the trial court improperly closed the door on petitioners’ First Amendment rights.

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

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

Judgment affirmed, without costs.


text:
    The People of the State of New York, Appellant, v Ernest Hohmeyer, Respondent.
    Argued April 30,1987;
    decided June 9, 1987

      POINTS OF COUNSEL

      John C. McDonald, District Attorney (Mary Dawn Herkenham of counsel), for appellant.

      Charles E. Walsh for respondent.
   OPINION OF THE COURT

Per Curiam.

On September 20, 1985, defendant was arrested on the charge of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). In response to a request by defendant (CPL 100.25 [2]), on September 30, 1985, the People served on him and filed with the court a supporting deposition on a form labeled "Supporting Deposition & DWI Bill of Particulars & 710.30 Notice”. The form includes spaces to fill in general information about the charge, chemical test information, and two and a half columns of potentially applicable police observations of defendant’s behavior before and after the stop, with a box next to each, to be used by the arresting officer in checking those which apply. Thereafter, on December 10, 1985, the People filed with the court and served on defendant a statement of readiness for trial. Both the supporting deposition and the statement of readiness were accepted without objection.

On January 15, 1986, defendant moved for dismissal of the charge on the grounds that the People were not ready for trial within "ninety days of the commencement of [the] criminal action” (CPL 30.30 [1] [b]) and that the simplified traffic information was defective (CPL 170.30, 170.35, 100.40 [2]) because the supporting deposition "was no more than a check sheet of multiple choice information containing no factual allegations of an evidentiary nature supporting the charge” and, thus, did not meet the requirements of CPL 100.20 and 100.25 (2). Town Court agreed with defendant, holding that use of this form of supporting deposition denied defendant "his right to require the officer to express, in his own words, what his observations and conclusions are.” Concluding that the supporting deposition was insufficient, Town Court granted what it termed defendant’s "motion to suppress” it. Having found the deposition to be a nullity, the court held that it necessarily followed that the People’s statement of readiness was also a nullity; because there was no statement of readiness, the court granted the motion to dismiss the criminal action under CPL 30.30. County Court affirmed "for the reasons stated” in the Town Court and the People appeal by leave of a Judge of this court. The People contend that the courts below erred in holding that the preprinted supporting deposition failed to contain allegations of fact required by CPL 100.20 and 100.25 (2). We agree.

A supporting deposition must be a "written instrument”, "subscribed and verified”, and "containing factual allegations of an evidentiary character * * * which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein” (CPL 100.20). In addition, CPL 100.25 (2) mandates that the supporting deposition contain "allegations of fact * * * providing reasonable cause to believe that the defendant committed the offense or offenses charged”.

Here, the factual statements in the deposition are communicated by check marks made in boxes next to the applicable conditions and observations signifying the complainant’s allegations as to the existence of those conditions and the truth of those observations. We hold such signification sufficient to meet the requirements of CPL 100.20 that the supporting deposition be a "written instrument” containing "factual allegations of an evidentiary character” which "support or tend to support the charge or charges contained therein”. The supporting deposition alleges that the defendant was driving erratically and speeding and that when the officer stopped him, defendant’s eyes were glassy, his speech slurred, his motor coordination impaired, and he smelled of alcohol. In addition, it is alleged that defendant admitted he had been drinking and was driving from one bar to another. The supporting deposition meets the requirements of CPL 100.25 (2), in that it contains factual allegations "providing reasonable cause to believe that the defendant committed the offense or offenses charged”.

The order of County Court should be reversed and the simplified traffic information reinstated.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order reversed, etc.


text:
    In the Matter of Badem Buildings, Petitioner, v Robert Abrams, as Attorney-General of the State of New York, Respondent. State of New York, Appellant, v Louise Dembeck et al., Respondents, et al., Defendants.
    Argued April 30,1987;
    decided June 9, 1987

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter W. LaVigne, O. Peter Sherwood and Frederick K. Mehlman of counsel), for appellant.

      J. Joseph Bainton and Steven J. Riegel for Badem Buildings, respondent.

      Richard Brewster for Louise Dembeck and another, respondents.
   OPINION OF THE COURT

Simons, J.

The Attorney-General commenced this action, pursuant to article 23-A of the General Business Law (Martin Act, General Business Law §§ 352 — 359-h), alleging that defendants Louise Dembeck, Giora Neeman and Badem Buildings had engaged in a fraudulent scheme to consummate an eviction-type cooperative conversion plan by executing leases with non-bona fide, illusory tenants and by declaring the plan effective on the basis of subscription agreements executed by these tenants, in violation of General Business Law § 352-c (1) (a). By doing so, the Attorney-General alleged, defendants withheld the plan from various subtenants, which he deemed the bona fide tenants in occupancy, thereby depriving them of the opportunity to purchase the apartments. He also alleged that the defendants’ declaration of effectiveness contained material false statements and failed to include pertinent information concerning the plan.

Supreme Court, after a nonjury trial, determined that defendants had committed a fraudulent practice in violation of the Martin Act by reserving a portion of their building for persons whom they reasonably believed would not occupy the units or would occupy them only for a brief period, conscious of the fact that such tenants, having only the investment potential of the apartment in mind, would be more likely to subscribe to the conversion plan than would occupying tenants. Although it held against defendants, the court expressly found that they had neither solicited tenants who would sublet rather than occupy their respective apartments nor induced the tenants to execute subscription agreements.

The Appellate Division modified by setting aside the Martin Act violation. The court stated that, although a number of the prime tenancies could be considered illusory and that finding could support denial of the conversion plan, "their existence as such did not show 'persistent fraud’ or a pattern of fraud” warranting civil sanctions under the Martin Act (120 AD2d 372, 373).

We granted leave to appeal and now affirm. In view of Supreme Court’s express finding that there was no collusion between the landlords and the prime tenants of record, we hold that renting units in an apartment building to persons whom the landlord may have reasonably believed would not occupy the units or would occupy them only briefly, even if the landlord is aware that tenanting the building with such prime tenants will facilitate a cooperative conversion, cannot, by itself, be a fraudulent or deceptive practice sufficient to support a civil prosecution under the Martin Act. Absent evidence of such collusive activity, the mere presence of what may be "illusory tenancies” in a building slated for cooperative conversion is an insufficient basis upon which to impose Martin Act penalties.

I

Badem Buildings is a partnership composed of Louise Dem-beck and Frederick and Helene Baum. In September 1979, the partnership purchased a 30-unit residential building located at 469 West 57th Street in Manhattan which has been managed by Dembeck and her husband, Giora Neeman. Of the 30 units in the building, 28 were residential and, upon purchase, Badem commenced renting the apartments as they became available.

In May 1980, Badem submitted to the Attorney-General a proposed offering plan for the conversion of the building to cooperative ownership. At the time the offering was accepted for filing by the Attorney-General, in December 1981, the law then in effect required that, for an eviction-type offering plan to be declared effective, 35% of the tenants in occupancy on the date the plan is accepted for filing by the Attorney-General must have agreed to purchase the stock entitling them to proprietary leases for such dwelling units without discriminatory repurchase agreement or other discriminatory inducement (see, Administrative Code of City of New York former § YY51-6.0 [c] [9] [a] [Rent Stabilization Law], amended by L 1982, ch 555 [now § 26-511 (c) (9-a)]; General Business Law former § 352-eeee [1] [b]; [7] [i], repealed by L 1982, ch 555). In computing the 35% requirement, purchases by tenants of record of subleased apartments could be included, but subtenants had no right to purchase unless approved by the tenant of record (Code of Rent Stabilization Association of New York City, Inc. § 61 [4] [a] [v] [Rent Stabilization Code], adopted pursuant to Administrative Code § YY51-6.0 [b] [now § 26-511 mi

Badem presented its first offering plan in January 1982 but the plan failed to receive the requisite 35% subscription, largely because of opposition to it by the tenants’ association. In September 1982, the Attorney-General accepted for filing a second amendment to the original plan, which included various modifications designed to encourage subscription. Thereafter, in November 1982, Badem filed a third amendment to the plan declaring that the 35% subscription level had been met. The amendment was accompanied by the affidavit of Louise Dembeck which, among other things, listed the names of the 12 subscribers who had purchased prior to service upon the tenants of the notice declaring the plan effective and who were counted toward the requisite 35% minimum. These 12 subscribers, who are central to the present dispute, were either social or business acquaintances of one or more of the principals. In December 1982, the Attorney-General rejected the third amendment asserting that it appeared to contain misrepresentations falsely indicating compliance with section 61 of the Rent Stabilization Code because it stated that all subscribers included in the sponsor’s calculations were bona fide tenants, because it failed to disclose that five Conciliation and Appeals Board (CAB) complaints had been filed by the subtenants occupying the apartments claiming that they were the true tenants and because it falsely stated that all tenants in occupancy were accorded the exclusive right to buy, as required by section 61. The latter allegation was based upon the Attorney-General’s position that some or all of the subtenants who had instituted proceedings with the CAB would establish their right to be treated as prime tenants, and that if they did, the sponsor would not have complied with section 61 by virtue of having failed to offer them the exclusive right to buy.

In April 1983, Badem brought an article 78 proceeding seeking to compel the Attorney-General to accept the third amendment. The petition was granted to the extent of directing the Attorney-General to issue a more complete and detailed deficiency letter. In response, in October 1983, the Attorney-General issued a second deficiency letter, expanding upon the first letter and, among other things, detailing why the prime leases to the 12 individuals were illusory. He accused Badem of improperly relying upon subscriptions from nine of these illusory prime tenants and charged that Badem had not complied with the Rent Stabilization Law and the Rent Stabilization Code because it failed to serve the plan on nominal subtenants who, according to the Attorney-General, were the bona fide tenants entitled to purchase. In the same month, the Attorney-General commenced the present action alleging that defendants Badem, Dembeck, Neeman and the Baums had engaged in various fraudulent practices with regard to the conversion plan in violation of the Martin Act and Executive Law § 63 (12). In essence, the Attorney-General asserted that defendants had made representations in the third amendment and the affidavit which they knew or should have known were false and deceptive, that defendants failed to disclose either that the 35% requirement was met by including subscriptions from illusory prime tenants who were not bona fide tenants in occupancy on the date the plan was accepted for filing or that CAB complaints had been filed, and that defendants had otherwise engaged in fraudulent or deceptive conduct in violation of the Martin Act and Executive Law § 63 (12). In February 1984, Badem brought another article 78 proceeding to compel acceptance of the third amendment. The court subsequently consolidated the two article 78 proceedings, but summary relief was denied to both parties on the ground that issues of fact existed with respect to the questions of fraud and illusory tenancies. Thereafter, the article 78 proceedings and the Attorney-General’s fraud action were consolidated for trial in Supreme Court.

After trial, the court found that some prime tenants who had either a direct or indirect relationship to one or more of the principals had sublet their apartments without ever taking occupancy, that they had sublet to subtenants who had, in most cases, been found by the landlord, paid rent and security deposits directly to the landlord, signed subleases prepared by the landlord, and had "expectations of receiving a prime lease.” The interaction between the landlord and the prime tenant and between the landlord and the subtenant was such, the court noted, that the prime tenant, knowing that the owners were considering a cooperative conversion, could and did freely speculate without any significant risk. Although the court found that the landlords neither sought out tenants who would sublet rather than occupy their apartments nor exacted any promise from potential tenants to execute subscription agreements, it accepted the Attorney-General’s contention that a fraud occurred when the landlord acted upon its self-interested desire to tenant its building with those who would sublease, with a view toward facilitating a cooperative conversion. Accordingly, it determined that defendants Badem Buildings, Dembeck and Neeman had engaged in fraudulent behavior in violation of the Martin Act. It did not pass on the allegations of misrepresentation and, in view of its findings of the Martin Act violation, it dismissed Badem’s article 78 proceedings. The court found that Frederick and Helene Baum did not know or have reason to know of the details of the tenancies and therefore dismissed the complaint against them. The court permanently enjoined defendants from engaging or attempting to engage in the public offer or sale of securities, including cooperative interests in realty, within or from New York State but it did not assess a civil fine against them.

On appeal by Badem, Dembeck and Neeman, the Appellate Division modified, on the law and the facts, to the extent of reversing the finding of a Martin Act violation, and otherwise affirmed.

II

The rent stabilization laws were enacted to meet a serious housing shortage and to protect those who are able to afford only reasonable rents. To this end, the New York City Administrative Code provides that it should be applied "to prevent exactions of unjust, unreasonable and oppressive rents and rental agreements and to forestall profiteering, speculation and other disruptive practices” (Administrative Code § YY511.0 [now § 26-501]). An illusory tenancy is defined generally as a residential leasehold created in a person who does not occupy the premises for his or her own residential use and subleases it for profit, not because of necessity or other legally cognizable reason (see, Hutchins v Conciliation & Appeals Bd., 125 Misc 2d 809, 811; see also, Matter of Avon Furniture Leasing v Popolizio, 116 AD2d 280, 284). Such tenancies are condemned because they permit the unscrupulous to use the provisions of the rent stabilization laws for financial gain, at the expense of those entitled to the laws’ protections to obtain living quarters at reasonable cost, and thereby frustrate the laws’ purposes. Thus, both the courts and the administrative agencies charged with overseeing rent stabilization have readily formulated remedies to prevent the use of illusory tenancies to evade the provisions of the Rent Stabilization Code and to prevent illusory tenants from violating the rights of bona fide tenants occupying stabilized property (see, e.g., Matter of Perlbinder v New York City Conciliation & Appeals Bd., 67 NY2d 697; Matter of Avon Furniture Leasing v Popolizio, supra; Yellon v Reiner-Kaiser Assocs., 89 AD2d 561).

The State maintains that in this case the 12 questioned tenancies in defendants’ building are illusory, that by entering into these leases defendants have denied the subtenants the right to purchase and have enabled social and business acquaintances to use the law to profit undeservedly from the protection afforded rent-stabilized tenants during cooperative conversions. It contends that the magnitude of this situation is sufficient to show that defendants created the tenancies to aid in converting the property by counting subscription agreements from these illusory tenants toward the effectiveness of the conversion plan and that this is precisely the type of fraudulent and deceitful conduct prohibited by the Martin Act. Implicit in the State’s argument is the notion that violations of the Rent Stabilization Code, which this may well be, also constitute Martin Act fraud.

ra

Section 352-c (1) (a) of the General Business Law prohibits the use of fraud, deception or concealment to induce or promote the sale or exchange of securities in this State. The statute was enacted to protect the public from fraudulent exploitation in the offer and sale of securities, and its provisions are to be liberally construed to give full effect to its remedial purpose (All Seasons Resorts v Abrams, 68 NY2d 81, 86-87; Matter of First Energy Leasing Corp. v Attorney-General of State of N. Y., 68 NY2d 59, 64; People v Lexington Sixty-First Assocs., 38 NY2d 588, 595; People v Federated Radio Corp., 244 NY 33, 37, 38). Thus, in People v Federated Radio Corp. (supra), we gave the words "fraud” and "fraudulent practice” a wide meaning and we stated that "fraud” in a broad sense includes "all deceitful practices contrary to the plain rules of common honesty” (id., at 38, 39). In that case, we held that the statute was broad enough to encompass "equitable fraud” for which "scienter” is not needed and that scienter, therefore, need not be alleged and proved in order to sustain Martin Act liability (see, id., at 40-41). Subsequently, in People v Lexington Sixty-First Assocs. (supra), we applied the Martin Act to sponsors of cooperative and condominium ventures, who had engaged in a profit-sharing scheme with illusory prime tenants.

Notwithstanding the breadth of these rules, we agree with defendants that their conduct is not conduct which rises to the level of a fraudulent or deceitful practice under section 352-c (1) (a) as it has been interpreted. Renting to persons of a certain economic category — whom defendants did not solicit or induce to subscribe to a conversion plan as a condition to either renting or subletting — and offering the right to purchase to (and counting as subscribers) those tenants to whom defendants were legally obligated and permitted to is not conduct proscribed by the Martin Act.

The trial court’s finding of fraud was based upon its conclusions (1) that defendants were “conscious” of the “fact” that nonresident tenants were more likely to subscribe to the conversion plan than were resident tenants and (2) that, with knowledge of this fact, and acting in their own self-interest, defendants elected to lease to nonresident tenants. None of these conclusions is supported by evidence in the record but, even assuming the correctness and logic of the court’s determinations of the propensities of nonresident, nonoccupying tenants and defendants’ alleged understanding and/or exploitation of such propensities, it simply is not fraudulent or deceitful for a landlord to rent to a prospective tenant based solely on the landlord’s economic self-interest in the hope that these tenants will, when the time comes, act in a manner consistent with the landlord’s interests.

The Attorney-General argues that because the landlord discovered some of the subtenants and managed the leases and rents for the prime tenants there is sufficient circumstantial evidence to support an inference of a common scheme or plan between the landlord and the prime tenants to effectuate the conversion for their profit and at the expense of the rights of the tenants in residence. The short answer to that argument is that the court did not draw any such inference: it expressly found otherwise.- Moreover, the evidence in the record establishes why the court could not draw any inference of collusion or concerted action. The record reveals that two apartments were vacant when defendants acquired the building and that these and other apartments were leased to friends and business acquaintances who had inquired only as apartments became available. There is no evidence that defendants forced resident tenants out of units so that they could facilitate a cooperative conversion, or that rentals to the prime tenants were conditioned on the tenant not occupying the apartment or on agreeing to subscribe to a conversion plan, or that defendants expressed any desire not to rent to a prospective tenant if he or she wanted to occupy the apartment. Indeed, it appears that some of the prime tenants involved here, rather than acting in concert with the landlord, were members of a tenants’ organization which opposed the first offering plan and overwhelmingly declined to subscribe to it. As a result, defendants had to amend the plan to offer the tenants better terms and conditions to encourage subscription and, even after it did so, one of the suspect prime tenants decided not to subscribe.

Fraudulent or deceitful conduct cannot be imputed to defendants simply because prime tenants, acting in their own self-interest, rent and hold on to their apartments for possible future financial gain. Although the participation of illusory tenants may prevent the adoption of a conversion plan, it does not necessarily warrant the conclusion that the landlords have committed fraud under the Martin Act. These defendants, unlike those in similar cases the people rely on, did not solicit any prospective tenants to rent with the intent to influence the voting, or enter into any agreement whereby defendants secured promises to subscribe in return for permitting the prime tenant to sublet, or enter into any agreement whereby the leasing and ultimate purchase of the apartment were tied to a resale profit-sharing arrangement intended to encourage subscriptions (see, People v Lexington Sixty-First Assocs., 38 NY2d 588, supra). Nor did defendants employ a "strawman”, acting as the landlord’s agent or in cooperation with the landlord, to help the landlord control the voting on the plan (see, Hutchins v Conciliation & Appeals Bd., 125 Misc 2d 809, 813, supra [citing Stutt v Unique Restorations Co., 96 AD2d 1039; and Yellon v Reiner-Kaiser Assocs., 89 AD2d 561, supra]). Absent similar evidence indicating collusion, coercion or discriminatory inducement, the mere presence of a number of illusory tenancies cannot support a determination that defendants engaged in fraudulent or deceitful conduct in violation of the Martin Act.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . General Business Law § 352-eeee (2) (d) (i) (as added by L 1982, ch 555) currently provides that an eviction plan "may not be declared effective unless at least fifty-one percent of the bona fide tenants in occupancy of all dwelling units in the building * * * on the date the offering statement * * * was accepted for filing by the attorney general * * * shall have executed and delivered written agreements to purchase under the plan pursuant to an offering made in good faith without fraud and with no discriminatory repurchase agreements or other discriminatory inducements.” Chapter 555 of the Laws of 1982 states that a "plan accepted for filing by the department of law on or before the effective date of this act [July 20, 1982] shall continue to be governed by the provisions of section three hundred fifty-twoeeee of the general business law as they had existed immediately prior to the effective date of this act.”

      . General Business Law § 352-c (1) (a), (c) provides, as follows:
      "1. It shall be illegal and prohibited for any person, partnership, corporation, company, trust or association, or any agent or employee thereof, to use or employ any of the following acts or practices:
      "(a) Any fraud, deception, concealment, suppression, false pretense or fictitious or pretended purchase or sale; * ** *
      "where engaged in to induce or promote the issuance, distribution, exchange, sale, negotiation or purchase within or from this state of any securities or commodities, as defined in section three hundred fifty-two of this article, regardless of whether issuance, distribution, exchange, sale, negotiation or purchase resulted.”

      . None of the prime tenancies involved here had previously been determined to be illusory in a CAB proceeding (see, e.g., Matter of Perlbinder v New York City Conciliation & Appeals Bd., 67 NY2d 697; Hutchins v Conciliation & Appeals Bd., 125 Misc 2d 809), an eviction proceeding (see, e.g., Tirschwell & Co. v Chiari, NYLJ, Nov. 23, 1983, at 11, col 1 [App Term]), or a declaratory judgment action (see, e.g., Yellon v Reiner-Kaiser Assocs., 89 AD2d 561; cf., Stutt v Unique Restorations Co., 96 AD2d 1039), which would have entitled the nominal subtenants to be accorded the full rights of a prime tenant under the Rent Stabilization Code.