author: Wachtler, J. Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Raymond Kenneth Singer, Appellant.
    Argued January 6, 1978;
    decided April 6, 1978

      POINTS OF COUNSEL

      John M. Lockwood for appellant.
    I. The delay in arrest, filing of detainer and subsequent indictment was unconscionable and violated the constitutional right of defendant herein. (United States v Ladson, 294 F2d 535; People v Prosser, 309 NY 353; People v Minicone, 28 NY2d 279; People v Blakley, 34 NY2d 311; Smith v Hooey, 393 US 374; Klopfer v North Carolina, 386 US 213; Nickens v United States, 323 F2d 808, 379 US 905; People v Winfrey, 20 NY2d 138; People v Bryant, 12 NY2d 719.) II. The police had no right to question defendant-appellant knowing that an attorney had represented him on this case. (People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325.)

      Henry F. O’Brien, District Attorney (Charles M. Newell of counsel), for respondent.
    I. The delay between the commission of the crime and the date of arrest did not violate appellant’s right to due process of law. (Hoffa v United States, 385 US 293; United States v Ball, 428 F2d 26; United States v Chadwick, 415 F2d 167; United States v Marion, 404 US 307; United States v DeTienne, 468 F2d 151; United States v Parish, 468 F2d 1129; United States v Harris, 412 F2d 471; Schlinsky v United States, 379 F2d 735; Nickens v United States, 323 F2d 808, 379 US 905; People v Winfrey, 20 NY2d 138.) II. Appellant was not represented by an attorney at the time he waived his right to counsel and confessed to the killing of Eileen Byrne. (People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Hetherington, 27 NY2d 242; People v Ramos, 40 NY2d 610; People v Gunner, 15 NY2d 226; People v Jackson, 36 NY2d 922; People v Robles, 27 NY2d 155, 401 US 945; People v Anthony, 24 NY2d 696; People v Baker, 23 NY2d 307, 898; People v Eisenberg, 22 NY2d 99.)
   OPINION OF THE COURT

Wachtler, J.

The defendant has been convicted of felony murder for causing the death of Eileen Byrne during the course of a rape. The crime was committed on October 22, 1970. The defendant was arrested and charged with the offense on May 9, 1974. He was tried and found guilty by a Suffolk County iury in September, 1975.

After his arrest in 1974 the defendant made a confession. Prior to trial he moved to suppress claiming that the confession was involuntary and had been obtained in violation of his right to counsel. During the hearing evidence was introduced indicating that within two weeks of the girl’s death the police had determined that the defendant was responsible; that no additional evidence was obtained after February, 1971, but that the case was kept open and no charge was made until after the defendant had served his sentence on another homicide, also committed in the fall of 1970. At the conclusion of the hearing the defendant moved to dismiss the indictment on the ground that the delay in the prosecution violated his right to due process of law. The trial court denied both motions and, following defendant’s conviction, the Appellate Division affirmed.

On this appeal the defendant claims that the pretrial motions should have been granted. He argues that the indictment should be dismissed, or, in the alternative, that his confession should be suppressed and a new trial granted.

Initially it should be emphasized that the evidence concerning the delay in prosecution, and the reason for the delay, emerged during a suppression hearing. The evidence concerning the delay was of secondary importance in that proceeding and was never as fully developed as it might have been if the motion to dismiss had preceded the hearing. In addition it is noted that, at the hearing, the parties’ arguments regarding the need to defer the prosecution for further investigation or questioning were, in most respects, contrary to arguments made on the motion to dismiss and on this appeal.

The defendant’s main point at the suppression hearing was that the police had beaten him in order to obtain the confession. He also urged that they had questioned him without the aid of counsel he had initially retained in 1970 to represent him on various homicide charges or investigations, including the Byrne killing. Part of his argument rested on the theory that the police had a motive to obtain a confession at all costs because prior to his arrest in 1974 they did not have sufficient evidence to obtain a conviction. The investigating officers, however, took the position that they had no need for the confession because they had sufficient evidence to arrest and charge the defendant with the death of Eileen Byrne long before his arrest in 1974.

The testimony at the hearing shows that on October 22, 1970 the partially clad body of a 17-year-old high school girl, identified as Eileen Byrne, was discovered in an abandoned garage in Suffolk County. The body was found by a patrolman investigating a report that a blue car had been observed in the garage. Investigators at the scene discovered metallic blue paint scrapings on the white woodwork at the entrance of the garage. Samples were sent to the police lab for analysis.

On October 30, 1970 Glen Patton was shot to death in Suffolk County. On November 4, 1970 detectives from the Suffolk County Homicide Squad arrested the defendant and charged him with the Patton killing. At the police station one of the officers noticed that the defendant’s car fitted the description of the vehicle sought in connection with the Byrne homicide. A patch on the car appeared to have been recently refinished with spray paint. The detective also noted that the defendant resided on the same street as the Byrne family. The police called the defendant’s employer and learned that he had not reported to work on the date of Eileen Byrne’s death.

The police then returned to the room where the defendant was being held; confronted him with the crime scene photographs of Eileen Byrne’s body and said "Ray we know you killed the girl. You want to tell us about it?” At this point the defendant began to sob and then lapsed into a "trance”. A police surgeon was summoned, and diagnosed the defendant’s condition as a hysterical reaction. At the hearing the doctor stated this might indicate guilt, but might also be the reaction of. an innocent man graphically accused of a "gruesome” crime. The defendant was removed to a hospital, and later to a mental institution where he remained for several days. On the day following his arrest the police went to the institution and asked the defendant how he felt. The defendant responded "I know you know about the guy and the girl”, and once again lapsed into a trance.

After the defendant’s arrest on November 4, 1970, a witness identified the defendant’s car as the one he had seen Eileen Byrne enter on October 22. He also recalled part of the license plate number. The police searched the car and submitted certain items for laboratory analysis. Paint chips and tire impressions taken from the car were found to match those at the scene of the crime. Hair and blood, also discovered in the car, were found to match the victim’s. A can of spray paint was recovered from the trunk. Loose hairs found on the victim were matched with samples taken from the defendant.

Apparently the laboratory reports were completed before the end of 1970. All four members of the homicide squad who appeared at the hearing testified that the Byrne case was considered "solved” in 1970 after the defendant’s arrest for the Patton killing. They felt there was sufficient evidence to arrest and charge the defendant with the girl’s death. Two of them had no idea why this was not done. One of them, Detective Halverson, was "vaguely aware that it was decided to leave the investigation opened at the time that Raymond Singer went to jail” on the Patton charge. However, as far as he knew, the investigation was only "opened in the sense that we did not place somebody under arrest.”

Detective Diaz, the officer in charge of the Byrne case, testified that "It was felt at that time [Nov. 4, 1970], and after communications between my superiors and the District Attorney’s office, that we did have a good circumstantial case and that we might in fact further the case by further investigation, to see if we can uncover any new evidence which might be helpful in the case.” At another point he stated that "it was mutually agreed upon, that considering the fact that Raymond Singer was not only suspect in Eileen Byrne, he was also suspect in another double homicide, that a further investigation might be helpful in resolving that one, also.” Diaz did not participate in this decision and he could not recall who had made it. The agreement, he stated was simply "to further the investigation”, that is, "To look into certain areas, to reinterview certain people, to try to interview Raymond Singer.” No decision was made with respect to the defendant’s arrest. And although Diaz had never been told that he should not arrest the defendant, he insisted that the decision was out of his hands.

In early 1971 Diaz went back over the case; reinterviewed certain witnesses and finally tried to question the defendant while he was in the Suffolk County jail awaiting disposition of the Patton indictment. The defendant however refused to talk to him. It was stipulated at the hearing that the investigation uncovered no evidence after February, 1971.

Following the defendant’s arrest in November, 1970 his family retained an attorney, named Lombardi, to represent him on the Patton indictment and the other crimes he was suspected of, including the Byrne homicide. Lombardi attempted to negotiate a plea which would cover these other crimes, but, as noted, the prosecutor refused the offer. Significantly the prosecutor testified at the hearing that he told Lombardi that he refused the offer because "it would be impossible to dispose of any matters upon which he [the defendant] was not indicted. ” (Emphasis added.)

In April, 1971 the defendant pleaded guilty to manslaughter in satisfaction of the Patton indictment. In May he was sentenced to an indeterminate term with a maximum of 10 years.

The defendant remained in State prison until October 30, 1973 when he was released on parole. During the years of the defendant’s imprisonment, Diaz kept a folder on him and "on occasion” he had "done some work on it.” He described this as "minor things” and said that "nothing substantial” was developed. In fact he said that the only thing that remained to be done was to arrest the defendant. But he was not arrested because he "was already in prison * * * [and] there appeared to be no rush to arrest him.” He said that waiting for the defendant to be released from prison "seemed like a logical thing to do.” Diaz realized that he could have filed a detainer warrant or employed "a number of options”, but claimed that the decision to wait had been made by his superiors and members of the District Attorney’s office whose names he could not recall. Following this advice he did little more than contact the prison periodically to determine when the defendant would be released.

In April, 1974 Diaz learned that the defendant had been on parole for six months. Diaz and several of his superiors then met with Patrick Henry, from the District Attorney’s office. Henry testified that he had not previously been involved with the Byrne homicide. But when the police informed him of the evidence against the defendant he advised them that there was sufficient proof to make an arrest and also "to prevail in court.” As a result of that meeting the decision was made to arrest and charge the defendant.

In the latter part of April, Diaz contacted the defendant’s parole officer and attempted to arrange to talk with the defendant at the parole offices. But the plan was abandoned when the parole officer informed Diaz that he would have to obtain the defendant’s consent in advance of the meeting.

During the first week in May, Diaz learned that another officer, named Kirk, was investigating a complaint, made by the defendant’s uncle, that the defendant and his father had removed or stolen certain machinery from the family business. Kirk had requested the defendant to come to the police station to discuss the matter and Diaz asked Kirk to let him know if the defendant appeared. The defendant reported to Kirk at approximately 10:30 on the morning of May 9, 1974 and soon thereafter members of the homicide squad arrested him and charged him with murdering Eileen Byrne.

The defendant was advised of his rights and questioned regarding the girl’s death. For the first two hours he denied knowing her. Then, about 1:30 in the afternoon, he admitted picking her up while she was hitchhiking. By 3 o’clock he had signed a full confession which, according to his testimony at the hearing, had been beaten out of him.

Approximately one hour later the police issued a press release reporting the defendant’s arrest. Several hours later a reporter, seeking information, called Lombardi because the newspaper files indicated that he had represented the defendant after his arrest in 1970. Lombardi had not been aware of the defendant’s arrest but he immediately went to the police station and spoke with the defendant. He also represented him at his arraignment the next morning.

Lombardi testified that he was the defendant’s lawyer from November, 1970 until August, 1974 when other counsel was appointed. Although he had not represented the defendant on his appeal from the Patton conviction, he remained the defendant’s attorney on the other homicides which were still under investigation in 1971. He admitted that he had little contact with the defendant while he was in prison, but he had continued to represent him when necessary. For instance, he had negotiated with the police and a finance company to arrange the release of the defendant’s car which, as noted, had been seized and searched in connection with the Byrne homicide. He also stated that a large portion of his fee for prior services was still unpaid when the defendant was arrested in 1971.

During oral argument at the conclusion of the hearing the defendant claimed that he had been denied due process of law because of the delay in commencing the prosecution. The court agreed that the issue had been raised by the testimony at the hearing. The defendant was permitted to submit a written motion to dismiss, which would be decided in conjunction with the motion to suppress. As indicated, both motions were subsequently denied.

The court rejected the defendant’s claim that the confession had been involuntarily made as a result of a beating. That determination is not challenged on this appeal. The court also found that the defendant "was not represented by an attorney at the time of his arrest on May 9,. 1974, as the record clearly established Mr. Lombardi’s discharge in 1971. The record further clearly established the defendant’s voluntary waiver of his Miranda rights which rendered the assertion of Mr. Lombardi’s purported continuing status as defendant’s attorney academic. 'The assertion that once an attorney appears there can be no effective waiver unless made in the presence of the attorney is merely a theoretical statement of the rule. This dogmatic statement is not the New York law’ (People v Robles, 27 NY2d 155).”

With respect to the motion to dismiss the court held that the defendant had not been prejudiced by the 42-month delay. Although the defendant claimed that the failure to formally charge him with the Byrne homicide at the time of the Patton plea deprived him of the opportunity of entering a plea to both indictments and serving a concurrent sentence, the court found that this was speculative.

The Appellate Division affirmed concluding that the delay was justified by the need to investigate the crime. They held that although all the evidence was actually obtained by May of 1971, and the investigating officers felt that there was sufficient evidence to arrest and charge the defendant at that time, "their superiors and the District Attorney apparently thought otherwise, and directed that there be further investigation.” The Appellate Division also found no merit to the defendant’s claim of prejudice with respect to a concurrent sentence. They concluded that this was contradicted by the evidence since the prosecutor testified that he had refused to dispose of the Byrne homicide as part of the Patton plea. They neglected to note, however, that the prosecutor also testified that the rejection was based on the fact that the defendant had not been formally charged with the Byrne homicide at the time they negotiated the plea to the Patton indictment.

The motion to suppress the defendant’s oral and written confessions should have been granted. The evidence at the hearing established that counsel was initially retained, in 1970, to represent the defendant on several matters, including the Patton indictment and the Byrne homicide. Indeed the Assistant District Attorney who represented the People on the Patton indictment and later handled the prosecution of the Byrne charges testified that the defendant’s attorney repeatedly, although unsuccessfully, offered to negotiate a plea that would include all crimes of which the defendant was charged or suspected. The prosecutor specifically recalled that the Byrne homicide was discussed during these conferences.

As indicated the hearing court found that the defendant was not represented by counsel when he was arrested and interrogated on May 9, 1974 because he had discharged Mr. Lombardi in 1971. The record, however, simply indicates that after the defendant pleaded guilty to the Patton indictment another attorney was appointed to represent him on the appeal from that conviction. There is no evidence that counsel had been discharged on the Byrne matter which was still unresolved at the time the defendant pleaded guilty to the Patton indictment. On the contrary, Mr. Lombardi himself testified that he had not been discharged as defendant’s attorney on the Byrne homicide, which is confirmed by his immediate appearance at the police station after being informed of the defendant’s arrest on May 9, 1974. In short the evidence is insufficient, as a matter of law, to sustain the hearing court’s finding that the attorney, retained to represent the defendant on the Byrne case, had been discharged prior to the defendant’s arrest and interrogation in May of 1974.

The hearing court’s additional, or alternative, holding that the "defendant’s voluntary waiver of his Miranda rights * * * rendered the assertion of Mr. Lombardi’s purported continuing status as defendant’s attorney academic”, was expressly based on People v Robles (27 NY2d 155), which was later overruled in People v Hobson (39 NY2d 479). In Hobson we held (at p 481) that "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer”. This is the rule applicable on this appeal (see, e.g., People v Macedonio, 42 NY2d 944; People v Coleman, 42 NY2d 500). Thus, in view of the fact that the People knew that the defendant had been represented by Mr. Lombardi in 1970 and 1971 in connection with possible criminal liability arising out of the death of Eileen Byrne, and that retainer had never been terminated to their knowledge — over and above which the interrogating officer’s review of defendant’s file on the morning of defendant’s admissions and confession had again revealed that he was represented by counsel — the conclusion that the defendant voluntarily waived his right to counsel cannot be sustained since the defendant’s attorney was not present at the time of the waiver. The defendant’s oral statements and written confession obtained on May 9, 1974, in the absence of counsel must be suppressed and, as a minimum, the defendant should be granted a new trial.

On the record now before us it is not clear whether the court should also have granted the motion to dismiss the indictment because of the delay in arresting and formally charging him with the Byrne homicide.

Initially we note that the Supreme Court has drawn a distinction between delays occurring prior to arrest or formal accusation and those occurring afterward. Characterization of the delay as "preindictment” or "postindictment” is often determinative. Delay in bringing the defendant to trial after indictment or arrest is measured against the Sixth Amendment speedy trial requirement which takes into account a number of factors, including actual or potential prejudice to the defendant’s case through the loss of witnesses and the dulling of memory (Barker v Wingo, 407 US 514). Preindictment delay, on the other hand, is governed by the due process clause which generally requires a showing of actual prejudice before dismissal would be warranted (United States v Marion, 404 US 307; United States v Lovasco, 431 US 783).

The distinction is based essentially on the theory that the speedy trial guarantee was designed primarily "to prevent undue and oppressive incarceration prior to trial, [and] to minimize anxiety and concern accompanying public accusation” (United States v Marion, supra, p 320; see, also, United States v Lovasco, supra). The distinction assumes that these considerations do not become relevant until the defendant has been arrested or formally accused (United States v Marion, supra, pp 320-321). The Supreme Court has recognized, of course, that any delay in bringing the defendant to trial may impair his right to a fair trial, but it has assumed that the Statute of Limitations is the primary safeguard against potential prejudice when there has been a delay in arresting or formally charging the defendant (United States v Marion, supra, pp 321-323).

In the case now before us the nearly four-year delay in prosecution might technically be considered "preindictment” since the defendant was not arrested or formally charged with the Byrne homicide until May of 1974. However, more realistically, it could be said that he was actually — although not formally — accused of the homicide in October of 1970 when he was confronted by the police with the crime scene photographs of the dead girl; informed they "knew” that he did it, and went into a state of shock in response to the charge. Neither the police nor the prosecutor ever disclaimed or withdrew this statement and, in fact, the defendant’s arrest nearly four years later was based on what the police, and the defendant, knew in 1970. In addition throughout the period the defendant was incarcerated. Although he was serving a sentence for another crime — the Patton homicide — the delay in charging him with the Byrne murder could have prolonged his incarceration, as a practical matter, by foreclosing the possibility of a concurrent sentence and by depriving him of any meaningful opportunity for rehabilitation for his activities in October, 1970 (Smith v Hooey, 393 US 374, 378-379). Finally it cannot be assumed that the Statute of Limitations will adequately protect the defendant against the potential prejudice inherent in any delay, since in this State there is no Statute of Limitations for murder or any class A felony (CPL 30.10, subd 2). In short it is arguable that in this case the delay, although technically preindictment, should not be assessed solely according to the limited due process standard established by the Supreme Court.

In this State we have never drawn a fine distinction between due process and speedy trial standards. We have long held that "unreasonable delay in prosecuting a defendant constitutes a denial of due process of law” (People v Staley, 41 NY2d 789, 791; see, also, NY Const, art I, § 6). An untimely prosecution may be subject to dismissal even though, in the interim, the defendant was not formally accused, restrained or incarcerated for the offense (see, e.g., People v Winfrey, 20 NY2d 138; People v Wilson, 8 NY2d 391; People v Staley, supra). Thus the State due process requirement of a prompt prosecution is broader than the right to a speedy trial guaranteed by statute (see CPL 30.20; see, also, CPL 30.30) and the Sixth Amendment (see United States v Marion, 404 US 307, supra; Klopfer v North Carolina, 386 US 213). In some respects the State rule is less rigid in its application than the right to due process recognized under the Federal Constitution because, in a proper case, a lengthy and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown (People v Staley, supra; People v Winfrey, supra).

The public also has a need for prompt prosecution of criminal offenders, for many reasons. For example, seeking or obtaining convictions long after the offense was committed disrupts the rehabilitation process (People v. Johnson, 38 NY2d 271, 276; People v Staley, supra) and penal sanctions lose much of their deterrent value when justice is delayed.

Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause (People v Prosser, 309 NY 353; see, also, People v Winfrey, supra; People v Staley, supra). There is, of course, a need to investigate to discover the offender; to eliminate unfounded charges and to gather sufficient evidence to bring the case, or related cases, to court. Thus a determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense (United States v Lovasco, supra). But if commencement of the action has been delayed for a lengthy period, without good cause, the defendant may be entitled to a dismissal although there may be no showing of special prejudice (People v Staley, supra; People v Winfrey, supra).

The defendant’s imprisonment for another crime cannot excuse the delay (People v Prosser, supra; People v Winfrey, supra; Smith v Hooey, 393 US 374, supra). There are procedures for insuring his return from other States and Federal penitentiaries (see, e.g., People v Winfrey, supra). Certainly his incarceration within the State offers no excuse for delaying the prosecution on new charges. Furthermore, waiting for a defendant to complete a current sentence may produce special hardships. His ability to prepare his case may be impaired because of his imprisonment. And, as noted, the delay may effectively extend the period of incarceration by foreclosing the possibility of a concurrent sentence. It may also interfere with his rehabilitation, particularly when he is already aware that he is suspected or "known” to have committed the other offense (Smith v Hooey, 393 US 374, 377-379, supra).

The fact that the investigation, however dormant, may remain open while the defendant is in prison should not alter the result. In a sense the investigation is always open for new evidence until someone is charged with the offense, or the statutory period has run. The point is that the defendant’s incarceration is no excuse for putting off the prosecution, even though there is always the possibility that the delay may fortuitously yield additional evidence.

On the record now before us it is impossible to determine the cause of the delay. It appears that for over three years the police were simply waiting for the defendant to return from prison before they arrested him — perhaps in order to question him under more favorable conditions. However the officers who testified at the hearing stated that they had not made the decision to defer the prosecution and they did not know the reasoning behind it. It may be that those responsible — apparently members of the prosecutor’s staff and senior officers in the police department — had a legitimate reason for timing the prosecution as they did. Although the People have the burden of establishing good cause for the delay their failure to do so on this record should not be conclusive. In view of the fact that there was no hearing on the motion to dismiss and that the issue was not squarely presented at the suppression hearing which preceded the motion, the prosecutor should be afforded an opportunity to present additional evidence. Thus upon remand for a new trial, the order denying the motion to dismiss should be vacated, and the motion should be restored to pending status in order to afford the parties, particularly the prosecutor, an opportunity to produce additional proof.

Accordingly, the order of the Appellate Division should be reversed, the conviction vacated and the case remitted to the Supreme Court of Suffolk County, for further proceedings in accordance with this opinion.

Gabrielli, J.

(dissenting in part and concurring in part). Today this court holds for the first time that a delay between the commission of a crime and the initiation of any criminal proceedings against a suspect deprives, in some inexplicable manner, that suspect of due process, even though the delay in no way hinders or prejudices the suspect’s ability to defend himself. I cannot agree.

Initially, it should be emphasized that this case involves an alleged "delay” prior to the initiation of any criminal proceedings, and thus does not implicate either the speedy trial guarantees of the Federal Constitution (see United States v Lovasco, 431 US 783) or New York’s statutory speedy trial provisions (CPL 30.20-30.30; Civil Rights Law, §§ 10, 12). Also inapplicable are those cases, cited by the majority as supporting their position, which are concerned with the effect of excessive delay following the initiation of criminal proceedings against a defendant. Thus, in People v Wilson (8 NY2d 391), this court invalidated an attempt to avoid the effect of a speedy trial dismissal via the mechanism of a subsequent indictment for the same crime. In People v Winfrey (20 NY2d 138, 143) we indicated simply that a "four and a half years’ delay in prosecuting prior to [defendant’s] indictment, but after the initiation of criminal proceedings, deprived him of due process of law” (emphasis added). Similarly, in People v Staley (41 NY2d 789), the objectionable two and one-half year delay came between a prior arrest and arraignment, followed by a dismissal without prejudice to the filing of a new indictment, and the subsequent filing of an indictment for the same crime.

The rule to be derived from these cases is clear: once the State has actually initiated criminal proceedings against a defendant with respect to a particular crime, due process proscribes undue delay in pressing those proceedings to completion. The effect of such delay, moreover, may not readily be avoided by simply commencing another criminal proceeding with respect to the same crime. In such cases, the injury suffered by a defendant is plain: he has been officially and publicly branded as the person whom the State believes to be guilty. Once he has been placed in such an unhappy position, the presumption of innocence and the legally imposed mandates of basic fairness require that the State proceed diligently to either prove his guilt or to decisively lift the shadow of suspicion from the suspect’s shoulders.

The present case, however, is quite different. Here, no criminal proceedings with respect to the Byrne rape-murder were initiated prior to his arrest in 1974; there was no earlier arrest warrant, no arrest, no arraignment, no indictment. There was at most a statement by a police officer to the defendant that he believed the defendant to be guilty of the Byrne rape-murder as well as the murder for which defendant had been arrested. Thus the rule which is applicable to a situation involving a delay subsequent to the initiation of criminal proceedings should not be blindly applied to the present case.

While agreeing, as they must, that the delay in this case was actually (albeit technically) preindictment delay, the majority would nonetheless treat it as though it had occurred subsequent to the initiation of criminal proceedings. In justification of this novel approach, the court emphasizes the fact that at least one police officer notified the defendant that he considered him a suspect in the Byrne rape-murder case. Apparently the majority equates this with the initiation of criminal proceedings. I fail to see the connection between an expression of suspicion by a police officer and the District Attorney’s action in determining the appropriate time to seek an indictment.

I interpret today’s decision as implying that as soon as a police officer informs someone that he is a suspect, a prosecutor will be placed in the unfortunate and perhaps impossible position of having to prove that any subsequent "delay” is founded on "good cause”, whatever that rather amorphous term may comprise in this context. I shudder to think of the obvious potential practical effect upon the criminal justice and law enforcement system, especially if this same theory should subsequently be applied not only to the full panoply of due process protections, but also to the equally basic right to counsel.

It is axiomatic that a District Attorney has broad discretion in determining whether, when, and in what manner to prosecute a suspected criminal (see United States v Lovasco, supra; People v Bowman, 88 Misc 2d 50; Pitler, New York Criminal Practice Under the CPL, § 5.27, at p 267; 27 CJS, District and Prosecuting Attorneys, § 14 [1]; see, also, People v Harding, 44 AD2d 800; CPL 190.55, subd 2, par [c]). The inevitable effect of today’s decision is to unnecessarily fetter this broad prosecutorial discretion, something which should not be done absent a clear constitutional mandate. In this case, the decision was made to continue the investigation into the Byrne rape-murder, rather than to immediately prosecute the defendant on the basis of certain bare circumstantial evidence. There is no indication, and indeed, no claim, that this decision was made in bad faith. I see no reason to require the courts to second guess a District Attorney faced with such a decision. That the investigation seemed fruitless, and that upon subsequent reconsideration the District Attorney decided it was better to proceed on the basis of the available information than to take no steps to obtain a conviction for this brutal crime, is merely another example of the use of prosecutorial discretion and, once again, there is no indication that this decision was made in bad faith. Thus, I see no reason to hold that defendant may have been deprived of due process.

The Supreme Court of the United States has recently had occasion to consider a very similar situation in United States v Lovasco (supra). While the Lovasco decision does not preclude this court from adopting a more stringent, less flexible rule, the impressive reasoning used by the court in that case certainly merits consideration. There, as here, the delay ensued between the commission of the crime and the commencement of criminal proceedings; there, as here, the bulk of the evidence, upon which the decision to initiate criminal proceedings was eventually made, was actually uncovered shortly after the commission of the crime; there, as here, the delay was for investigatory purposes, but the investigation was fruitless and rather desultory. Mr. Justice Marshall, writing for eight members of the court, engaged in a careful and extensive consideration of the myriad factors and considerations involved in preindictment delay situations. He first noted that: "the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment. Judges are not free, in defining 'due process,’ to impose on law enforcement officials our 'personal and private notions’ of fairness and to 'disregard the limits that bind judges in their judicial function.’ * * * Our task is more circumscribed. We are to determine only whether the action complained of— here, compelling respondent to stand trial after the Government delayed indictment to investigate further — violates those 'fundamental conceptions of justice which lie at the base of our civil and political institutions,’ * * * and which define 'the community’s sense of fair play and decency’ ”. (431 US, at p 790.) Applying that standard, the court found that compelling Lovasco to stand trial would not violate the mandate of due process. The same conclusion is certainly appropriate in the present case.

This is not to say, of course, that delay prior to the commencement of criminal proceedings may never constitute a denial of due process. Such a determination, however, would only be appropriate in certain rather egregious cases, as where any unexcused prosecutorial delay substantially prejudices a suspect’s ability to defend himself (see United States v Lovasco, supra, 431 US, at p 790; United States v Marion, 404 US 307, 324-325). The burden of proof in such cases, however, should rest with the defendant, for these claims are easily made and can be disproved only with great difficulty. In the instant case, the defendant has not shown that his ability to defend himself has in any measure been impaired by the delay.

With respect to the contention of defendant as to deprivation of counsel, I am constrained to concur with the majority.

Accordingly, I vote to reverse the order of the Appellate Division and to remit the case for a new trial.

Jones, J. (concurring in part and dissenting in part). I am in full agreement with the determination of the majority, and for the reasons stated, that defendant’s oral statements and written confession obtained on May 9, 1974 should be suppressed. On the other hand, as to the effect of delay in prosecution in this case, I am in accord with the conclusion reached by Judge Gabrielli.

Accordingly, I would reverse the order of the Appellate Division and remit the case for a new trial.

Chief Judge Breitel and Judges Fuchsberg and Cooke concur with Judge Wachtler; Judge Gabrielli dissents in part and concurs in part and votes to reverse and order a new trial in a separate opinion in which Judge Jasen concurs; Judge Jones concurs in part and dissents in part and votes to reverse and order a new trial in another opinion.

Order reversed, judgment vacated, motion to suppress granted, order denying motion to dismiss vacated, and the case remitted to the Supreme Court, Suffolk County, for further proceedings in accordance with the opinion herein.

      . The trial court suppressed this statement on the ground that the "People have failed to establish that the defendant while confined in a mental hospital following an hysterical reaction, was capable of knowingly, intelligently and voluntarily making a statement.”

      . It should be emphasized that we do not fully equate the accusation by the police with the formal commencement of criminal proceedings, nor do we consider it the controlling factor in this case, as is suggested by the dissent (see dissenting opinion p 257). We simply hold that in determining basic fairness to the defendant — which requires the State to minimize delay and, hence, anxiety attending a pending charge —we cannot always ignore the period preceding the formal filing of the accusatory instrument. A realistic appraisal must take this period into account when, as here, long before the defendant was formally charged the police informed him in no uncertain terms that they knew he committed the crime and that it was hanging over his head — as indeed it was. This, together with the other factors noted above, should make it clear that there is more at stake in this case than actual prejudice to the defendant’s ability to defend himself at trial (compare United States v Lovasco, supra; United States v Marion, supra).

       It should be noted, however, that when defendant was arrested for the Byrne rape-murder, he confessed, thus providing extremely significant evidence not available when the original decision to continue the investigation was made.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    In the Matter of the Estate of Palma Sylvestri, Deceased. Louise Patti, Appellant; Rocco J. Sylvestri et al., Respondents.
    Argued March 21, 1978;
    decided May 2, 1978

      POINTS OF COUNSEL

      Samuel Lawrence Brennglass for appellant.
    I. The verdict of the jury is against the credible evidence. The proponent’s motion for a directed verdict should have been granted. (Blum v Fresh Grown Preserve Corp., 292 NY 241; Matter of Walther, 6 NY2d 49; Matter of Reid, 298 NY 878; Matter of Herlihy, 13 NY2d 816; Matter of Becker, 15 NY2d 916; Matter of Cottone, 40 NY2d 1007; People ex rel. Hansen v Waldo, 163 App Div 665; People v Caccamise, 271 App Div 362; Hoag v Wright, 174 NY 36; Matter of Shaver, 133 Misc 112, 227 App Div 646.) II. It was error to admit the proponent’s exhibits 2-4 solely for the limited purpose of showing the decedent’s signature. (Matter of Kennedy, 167 NY 163; Matter of Staiger, 243 NY 468.) III. It was error to exclude the proponent’s exhibit 7 for identification and the offer of proof concerning its execution.

      Arthur Karger and Joseph W. Genzardi for respondents.
    I. The verdict of the jury was amply supported by the evidence, and the trial court properly denied appellant’s motion for a directed verdict. (Sadowski v Long Is. R. R. Co., 292 NY 448; Swensson v New York, Albany Desp. Co., 309 NY 497; McDonald v Metropolitan St. Ry. Co., 167 NY 66; Blum v Fresh Grown Preserve Corp., 292 NY 241; Matter of Hohn, 180 Misc 384; Hoag v Wright, 174 NY 36; Matter of Hopkins, 172 NY 360; Matter of Williams, 141 NY 572; Matter of Shaver, 133 Misc 112, 227 App Div 646; Hull v Littauer, 162 NY 569.) II. Appellant’s remaining contentions are also without merit, (a) Exclusion of the contents of appellant’s exhibits 2, 3 and 4. (Matter of Kennedy, 167 NY 163; Matter of Staiger, 243 NY 468; Cassano v Hagstron, 5 NY2d 643; Forman v Azzara, 23 AD2d 793, 16 NY2d 955.) (b) Denial of appellant’s motion for leave to reopen her case to offer certain additional evidence. (Larkin v Nassau Elec. R.R. Co., 205 NY 267; Wright v Reusens, 133 NY 298; Mulligan v Wetchler, 39 AD2d 102, 30 NY2d 951.)
   OPINION OF THE COURT

Jones, J.

We hold that it was not error to affirm a Surrogate’s Court jury’s rejection of a will for lack of due execution based on testimony by a handwriting expert that the signature of the testatrix was not genuine in contradiction of the testimony of three disinterested, credible, attesting witnesses.

In the contest which followed the offer for probate of the alleged will of Palma Sylvestri the single issue submitted to the jury was whether the proponent, a daughter of the decedent and executrix and residuary legatee under the instrument, had established by a preponderance of the credible evidence that the instrument had been signed by her mother. On April 24, 1972, the date of execution appearing on the instrument, Palma Sylvestri was 87 years old, illiterate but able to understand and speak Italian and English, and able to be about. The will left bequests of $1,000 to five of decedent’s seven children and to one grandchild and of $250 to each of seven other grandchildren; the residue was bequeathed to proponent, a daughter who lived next door to her mother and with whom the mother spent her daytime hours.

Witnesses produced by proponent included three attesting witnesses to the instrument, each of whom had been a member of the New York Bar for a number of years, who testified that on the date indicated the decedent had signed and acknowledged the instrument as her will in their presence and that they, at her request, had signed the same in the presence of each other. Each gave an account of the occasion on which the signing took place, describing the place, the persons present both then and in the minutes prior thereto, the physical arrangement of the decedent and witnesses at the table where the signing occurred, and the reading of the will to Mrs. Sylvestri and her response to questions concerning its contents. As to the details of the event, although the witnesses were in general agreement, there were some differences in the particulars to which they testified. One of the witnesses was the draftsman of the instrument and the other two had witnessed a prior will of the decedent executed in 1966 and a codicil executed in 1967. While the latter two attesting witnesses had known each other for several years, one of them had had no prior acquaintance with the third witness (the draftsman) and the other had not been introduced to him prior to the night on which they gathered for the will signing. The two witnesses had been asked to serve, not by the attorney-witness who had prepared the will, but by the son-in-law of the decedent, the husband of the proponent who was himself a member of the Bar.

To refute the attesting witnesses’ testimony of due execution, the objectants called to the stand and qualified a handwriting expert who testified to having compared the signature on the offered instrument with signatures which were undisputedly those of the testatrix on exemplars received in evidence. On this predicate the witness expressed his opinion that the signature on the will had not been written by the same person who had written the signatures on the other papers. He testified in minute detail as to the comparison of distinguishing characteristics of the signatures on which he based his opinion.

In rebuttal proponent also called a handwriting expert, who expressed a contrary opinion — that the same person who had signed certain exemplars had also signed the will. The effect of his testimony was somewhat weakened by the fact that, in the case of two other papers with which he had compared the signature on the will and on which he relied in part for his conclusion as to the genuineness of the testamentary signature, the testimony of other witnesses cast doubt on whether the compared signatures were indeed those of the testatrix.

Following submission to it of the issue of due execution the jury responded with a finding on a vote of five to one that the decedent had not signed the offered instrument. The proponent’s motion to set aside the verdict as against the weight of the evidence was denied by the Surrogate, as had been her prior motion for a directed verdict. The Appellate Division upheld those dispositions in affirming the decree which denied probate on the ground that the paper propounded had not been duly executed by the decedent. We now affirm the order of the Appellate Division.

Appellant-proponent’s principal argument in this court is that, on the evidence produced at the trial in support of the objection of lack of due execution, a directed verdict upholding the instrument should have been granted, because the negative testimony of the handwriting expert called by contestants was not sufficient to create a jury question in face of the positive testimony given by those who, if their testimony were credited, were attesting witnesses to the execution of Palma Sylvestri’s will. Proponent would have us reject as inadequate to create an issue of credibility the opinion of objectant’s handwriting expert, by adopting what is said to be a holding in some other jurisdictions — "that the opinion evidence of experts, standing alone, is insufficient to sustain a finding of forgery in the face of direct and credible evidence of disinterested subscribing witnesses who testified that they saw the testator sign his name”.

Accepting for present purposes the view that the cases cited by objectants do in fact espouse the rule stated, we decline the invitation to adopt such a precept — not heretofore applied by any of our appellate courts — in this jurisdiction. While at one time the comparison of handwritings with an eye to determining genuineness of signatures was of questionable reliability and acceptance (Hoag v Wright, 174 NY 36, 42), as long ago as 1940, when the third edition of Wigmore on Evidence was published, a change in attitude had been identified:

"Though the Opinion rule, then, would admit expert testimony, yet there is further urged an objection resting mainly on the instinctive aversion of the earlier judges to a novel method of testimony — an objection which, the more explicitly it is framed, the weaker its legitimate influence appears; namely, the objection that the opinion of a handwriting-expert is in general inferior to that of an ordinary person who has seen the party write or has corresponded with him.
"There was a time when the scientific aspects of such testimony did not commend themselves even to great judges, who were at first found to distrust it in all its novel forms * * *
"It ought to be now well understood that the identification and the decipherment of documents, including handwriting and all other features, are the subject of scientific study, made by the aid of instruments of precision, and that modern research has elevated the whole subject into the realm of an applied science. Under such conditions, tangible reasons can be given for every opinion, precisely as an engineer can explain the reasons for constructing a bridge of a certain type. A qualified expert’s opinion may therefore now be tested and judged by the reasons on which it is based.” (7 Wigmore, Evidence [3d ed], § 1998, pp 188-190.)

In our view, the adverse opinion of a handwriting expert— which the jury must evaluate and analyze on the basis of the underlying explanations and predicates furnished by the expert — is to be weighed by the jury along with other credible evidence and need not necessarily be regarded as inadequate to rebut the testimony of subscribing witnesses as to the genuineness of a testator’s signature. The better rule is that set out in Wigmore: "[T]he testimony of the attesting witnesses is of course not conclusive in favor of execution even when all agree and when no personal impeachment is attempted. * * * [Specifically, the unanimous testimony of the attesters may fail of credit even though the only opposing evidence is that of the alleged maker’s handwriting as analyzed by expert witnesses. The circumstantial evidence afforded by the handwriting may in a given case be more convincing than the testimony of the attesters. This possibility is one of the results of the modern scientific study of handwriting.” (4 Wigmore, Evidence [Chadbourn rev], § 1302, p 725.) We therefore reject any categorical position with respect to such proof; it cannot now be said to be so inherently suspect, weak or unreliable as, ipso facto, to call for classification as evidence having an impaired or restricted probative worth. Such testimony like other oral and documentary proof must be weighed in the light of the opposing proof in the particular case. We perceive no basis in the present case for discounting the testimony of objectants’ handwriting expert as a matter of law.

Additionally, we observe that, even if the proposition urged by proponent (by which expert opinion evidence, standing alone, would °not be sufficient to overcome testimony of attesting witnesses) were to be adopted, the present case would not fall within its ambit. The record contains other evidence which may be regarded as supportive of the conclusion reached by objectants’ handwriting expert and which, together with his opinion, serve as a sufficient basis for the jury’s rejection of the testimony of the attesting witnesses. Most significant were the exemplars of decedent’s handwriting themselves, the genuineness of which was unchallenged, some of which were signed within weeks or months of the purported will execution. There can be no argument with the statement by the Surrogate that "[e]ven to the untrained eye, marked difference are apparent between the questioned signature upon the propounded instrument and the exemplar signatures upon various exhibits received in evidence.” Conflicts in the testimony of the attesting witnesses themselves as to the details of the will signing and inconsistencies between the testimony and pretrial deposition of the witness-draftsman as to the subject matters of his meetings with the decedent were further factors which could have been considered by the jury and could have influenced them to accept £he opinion of objectants’ expert that the testamentary signature was not genuine. The jury’s resolution of the issue of due execution, with support in the record, is beyond the power of this court to disturb.

Proponent’s claims of error by the Surrogate in the limitation placed on the receipt in evidence of papers executed by the decedent after the date of the propounded instrument and in his refusal to permit the reopening of proponent’s case for the introduction of further evidence provide no basis for reversal of the order of the court below. Insofar as it was urged that the papers signed by decedent to be filed in connection with the estate of her deceased husband seeking the appointment of proponent as administratrix c. t. a. of that estate should have been admitted in their entirety — not simply for the signature — it suffices to note that at most such proof could have given rise to a permissible inference that, some weeks after the execution of her will, the decedent was willing to request proponent’s appointment as administratrix of her husband’s estate. The evidence tendered did not constitute declarations by the decedent with respect to benefits she had conferred on proponent by her will or as to her affection for the proponent in general or her inclination to favor proponent by any testamentary disposition. (Cf. Will — Testator’s Declarations, Ann., 62 ALR2d 855.) In this circumstance we cannot say that it was error to have admitted this documentary evidence for limited purpose only. Finally the Surrogate’s denial of the application to reopen proponent’s case is an instance of the exercise of a judicial discretion in the management of the litigation which is beyond the power of the Court of Appeals to review (Cohen and Karger, Powers of the New York Court of Appeals, § 151).

Accordingly, the order of the Appellate Division should be affirmed, with costs payable out of the estate to all parties filing briefs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, etc.

      . In support of this statement objectants cite Matter of Elias (429 Pa 314); Matter of Porter (341 Pa 476); Matter of Henry (276 Pa 511); Matter of Krugle (134 So 2d 860 [Fla]); Matter of Grant (123 So 2d 560 [Fla]); Matter of Miller (201 Wis 148); Matter of Johnson (170 Wis 436); Matter of Lombardo (205 La 261); Malko v Ferrante (345 Mass 777).

      . For example, while one witness testified that the entire will had been read aloud in Italian to Mrs. Sylvestri, another said that it had not been read completely in that language. One said that she had asked questions of the draftsman concerning various provisions of the will after its reading, but the draftsman denied that she had asked him any such questions. One witness testified on direct examination that he saw the decedent sign the instrument but at an examination before trial he had stated that a will containing the purported signature of the decedent had been handed to him and he had been requested to sign it. (At the trial the witness testified by way of explanation that he had thought the question at the pretrial examination referred to the typed name at the top of the instrument.)


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Fred Davis, Appellant. The People of the State of New York, Respondent, v Alexander George, Appellant.
    Argued March 30,1978;
    decided May 2, 1978

      POINTS OF COUNSEL

      Judith Farris Bowman and William E. Hellerstein for appellant in the first above-entitled action.
    I. The trial court erred in refusing to instruct the jury that appellant could not be convicted as a seller if he acted only as an agent of the buyer, when the evidence presented at trial clearly showed that appellant received no profit from the transaction and readily supported the conclusion that appellant merely accommodated the police officer by directing him to Alexander George. (People v Lindsey., 16 AD2d 805, 12 NY2d 958; People v Munoz, 54 AD2d 844; People v Whitter, 54 AD2d 987; People v Silver-

      man, 23 AD2d 947; People v Buster, 286 App Div 1141; People v Hingerton, 27 AD2d 754, 26 NY2d 790; People v Mussenden, 308 NY 558; People v Johnston, 47 AD2d 897.) II. The trial court failed to exercise its discretion by blanketly refusing to preclude cross-examination as to any of appellant’s six prior convictions, without regard to the fact that two of these convictions were too remote to be relevant and two were narcotics offenses with particularly prejudicial impact in the trial of a narcotics charge. (People v Sandoval, 34 NY2d 371; People v Sorge, 301 NY 198; People v Caviness, 38 NY2d 227; Varkonyi v S. A. Empresa De Viacao Area Rio Grandense [Varig], 22 NY2d 333; People v Tice, 131 NY 651; People v Schwartzman, 24 NY2d 241; Brown v United States, 370 F2d 242; People v Greer, 49 AD2d 297; People v Balsano, 51 AD2d 130.)

      Lewis R. Friedman, Jack T. Litman and Herman Kaufman for appellant in the second above-entitled action.
    I. The court’s denial of the motion by Mr. George to preclude the use of certain material on cross-examination improperly prevented Mr. George from testifying and thereby deprived him of a fair trial. (People v Sandoval, 34 NY2d 371; People v Caviness, 38 NY2d 227; People v Duffy, 44 AD2d 298, 36 NY2d 258; People v Dickman, 42 NY2d 294; People v Yost, 50 AD2d 577; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Johnson, 31 AD2d 842; People v Santiago, 47 AD2d 476; People v Taylor, 50 AD2d 947, 41 NY2d 860.) II. The court improperly admitted into evidence the police report prepared by Detective Nunez. (People v Branch, 34 AD2d 541; People v Singer, 300 NY 120; People v Forest, 50 AD2d 260.)

      Mario Merola, District Attorney (Joyce Marie Andren and Alan D. Marrus of counsel), for respondent in the first and second above-entitled actions.
    I. Defendants’ convictions were based on legally sufficient evidence overwhelmingly establishing their guilt beyond a reasonable doubt. II. The trial court did not abuse its discretion when it refused to preclude cross-examination of appellants regarding their prior convictions. (People v Sorge, 301 NY 198; People v Brown, 284 NY 753; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Poole, 52 AD2d 1010; People v Caviness, 38 NY2d 227; People v Balsano, 51 AD2d 130; People v Wilson, 75 Misc 2d 720; United States v Holley, 493 F2d 581; People v Crosby, 51 AD2d 902; People v Moore, 42 AD2d 268.) III. The trial court properly admitted the UF 61 report into evidence. (People v Singer, 300 NY 120; People v Forest, 50 AD2d 260; Johnson v Lutz, 253 NY 124; Bishin v New York Cent R. R. Co., 20 AD2d 921; People v Kingston, 8 NY2d 384.) IV. The trial court properly refused to charge the jury as to the defense of agency. (People v Lindsey, 16 AD2d 805, 12 NY2d 958; People v Fortes, 24 AD2d 428; People v Bucher, 30 NY2d 708; People v Fisher, 35 AD2d 886; United States v Foster, 469 F2d 1; People v Wright, 20 AD2d 652, 15 NY2d 555; People v Ivory, 27 AD2d 844; People v Miller, 24 AD2d 1023.)
   OPINION OF THE COURT

Fuchsberg, J.

Fred Davis and Alexander George have been found guilty of selling four glassine envelopes of heroin to an undercover police officer for $19 and of concomitantly possessing 11 additional envelopes containing the same drug. Each defendant has been sentenced to two concurrent indeterminate terms of imprisonment not to exceed seven years. The Appellate Division, First Department, Presiding Justice Francis T. Murphy dissenting, has affirmed.

We focus on two of the issues raised on this appeal. One is the claim that defendants were denied a fair trial when the trial court denied motions to preclude cross-examination on their prior convictions. The other is that it was prejudicial error for a so-called UF 61 report — containing the undercover officer’s officially filed description of his reasons for making the arrests — to be received in evidence on the theory that his testimony at trial had been attacked as a recent fabrication.

The first issue presents no doctrinal difficulty. Determination of the extent to which an accused may be cross-examined concerning previous criminal convictions requires a "sensitive, informed reconciliation of the interests of the People and the rights of the defendant” (People v Sandoval, 34 NY2d 371, 375). At least two competing legal values are at stake: The People’s interest in exploring the veracity of a witness, including an accused, must be balanced against the risk that the presumption that a defendant is innocent may go by the board solely because of a jury’s natural tendency to conclude, despite limiting instructions, that a defendant who has committed previous crimes is either the kind of person likely to have committed the crime charged or is deserving of punishment in any event (see People v Mayrant, 43 NY2d 236; People v Dickman, 42 NY2d 294, 297; Griswold, The Long View, 51 ABAJ 1017, 1021; McGowan, Impeachment of Criminal Defendants by Prior Convictions, 1970 Ariz State LJ 1; statistical support can be found in Kalven & Zeisel, The American Jury, pp 124, 126-130, 144-146, 160-162).

These opposing forces, however, are easier to comprehend than to apply. Required, therefore, is the exercise of a sound discretion on the part of the Trial Judge.

In the present case, before the openings to the jury both defendants’ counsel invoked that discretion. They moved for an informational ruling setting limits on the District Attorney’s cross-examination as to their clients’ earlier criminal offenses. The motions were directed to two unenviable records. Davis’ police dossier listed two convictions for assault and robbery antedating the crime for which he was on trial by six and seven years respectively, another for driving while intoxicated, yet another for grand larceny committed about four years before the trial, and, finally, two more recent episodes (occurring within two years) one of which was highlighted by possession and the other by sale of drugs. George’s pedigree was shorter but spread over more years. It included a 13-year-old sodomy charge which had resulted in a youthful offender adjudication for assault and a conviction for grand larceny only a year later; in the ensuing 12 years his only reported offenses were one instance of gambling and, most recently, three drug sales.

The Trial Judge, deferring decision, indicated generally that, as "just a trooper [in] the field”, he would "stand on what the highest court of [the] state holds.” When pressed for a determination upon renewal of the motions at the end of the People’s case, the Judge denied them while expressing the view that he was "barred” from exercising discretion unless the prior crimes were extremely similar as to modus operandi or "if the cross-examiner brings out every dirty detail only to inflame [the] jury”. The court thus made clear that any restraints it might thereafter impose would not preclude the cross-examiner from resorting to any of the prior crimes but would only apply to future and undescribed excesses if and when they occurred. Defendants thereupon informed the court they would rest "because of [this] ruling.” They did not take the stand.

As we read the record as a whole, we are compelled to conclude that the court did not exercise the requisite discretion. Its wholesale rejection of defendants’ applications was not the result of an assessment of the probative relevancy of each conviction or of its potential for impermissible prejudice, or of whether and to what extent each outweighed the other. It made no effort to distinguish between the two cases. Vocally at least, it gave no thought to the possibility of limiting multiple convictions as an available means to lessen the likelihood that inferences of propensity might outbalance the need to expose lack of veracity.

True the ruling here was made considerably before we handed down People v Sandoval (34 NY2d 371, supra), where we articulated the concerns which permeate such considerations. And apparently the court labored under the mistaken impression that our earlier decision in People v Sorge (301 NY 198) permitted it to restrict cross-examination as to previous crimes in no instances other than those where the previous crime or a uniform history of offenses was similar to those charged.

Sandoval did not create a new rule of substantive law. In sanctioning a procedural device for the early exercise of a discretion already extant in the trial courts (see People v Caviness, 38 NY2d 227, 233; but cf. People v Zabrocky, 26 NY2d 530, 535), it looked to the more efficacious accommodation on a case-by-case basis of jurisprudential considerations whose existence had long been recognized (e.g., People v Schwartzman, 24 NY2d 241, 247, cert den 396 US 846; People v Sorge, supra, pp 201-202; People v Webster, 139 NY 73, 84; People v Tice, 131 NY 651, 657-658; People v Duffy, 44 AD2d 298, 301 [Shapiro, J.], affd 36 NY2d 258, cert den 423 US 861).

Here scant attention was paid to the nature of the varied offenses. The probative value of specific convictions for crimes whose nature was self-evident were not evaluated on the issue of credibility. For instance, the effect of a factor such as the age of each of the older convictions, which, while not necessarily determinative of a court’s discretion, might be found to have diminished in probative value with the passage of time, was not explored. Also, though proof of the commission of prior offenses similar to those for which a defendant is tried demands close scrutiny, defendants’ prior drug offenses received no meaningful attention; indeed, the court expressly refused to consider them separately, insisting "I am not going to draw a distinction”. As Justice Murphy’s dissent at the Appellate Division aptly points out, this void in exercising discretion is all the more glaring since the matching crimes here involved violations of the narcotics law, whose offenders are widely believed to be unusually habitual in their practices (People v Sandoval, supra, pp 377-378; see, also, People v Carmack, 44 NY2d 706.)

Under the circumstances, it cannot be said that the default in exercising discretion did not have an effect disproportionate to its probative worth on the issue of credibility. Nor can we gainsay the assertion that it deterred the defendants from taking the witness stand. The entire defense was based upon a claim that the case was a "frame-up” against individuals whose unsavory records made them easy prey. Whatever the merits of that theory, its chance of success as a practical matter was reduced to nought by their failure to testify. The blanket rejection of their applications thus had a tendency to impair the fact-finding process.

Consequently, there should be a new trial (People v Mayrant, 43 NY2d 236, supra; People v Dickman, 42 NY2d 294, 298, supra; People v Caviness, 38 NY2d 227, 233, supra). In so deciding, we do not now undertake to determine how the cross-examination of the appellants should be circumscribed. On remand, it will be for the Trial Judge upon full exercise of his sound discretion to make an appropriate disposition of their application (see People v Mayrant, supra, pp 239-240).

We turn now to the second issue. It is premised on the following trial event:

The undercover officer, during his direct examination by the People, swore that he paid $19 for the heroin. He also testified that the UF 61 report, which was marked for identification while he was on the stand, was the source of his recollection. During cross-examination, the defense, pursuing its theory that the entire case was concocted, developed the fact that, both during a preliminary hearing and before the Grand Jury the officer repeatedly testified that he had made the purchase with a single $20 bill and not with at least six bills, the minimum number aggregating that sum.

On redirect, the People, over objection, were permitted to introduce the document into evidence expressly on the ground, urged by the prosecution alone, that the witness’ story had been attacked as a recent fabrication. The report, shown to the jury without limiting instructions, contained a statement that the officer had received $19; it also otherwise confirmed his testimonial version of the events leading to the arrests. The defense takes the position that the recent fabrication rule is inapplicable because the report was not made prior to the time when a motive to falsify arose and therefore its admission into evidence constituted nothing more than an impermissible and prejudicial bolstering of the witness by means of his own prior self-serving statement.

It is now firmly settled in this State that an impeached witness cannot be rehabilitated by his antecedent consistent statements unless the cross-examiner has created the inference of, or directly characterized the testimony as, a recent fabrication (Crawford v Nilan, 289 NY 444; People v Williams, 62 AD2d 1026). In such instances only, prior consistent statements made at a time when there was no motive to falsify are admissible to repel the implication or charge (People v Gilliam, 37 NY2d 722, revg on dissent at 45 AD2d 744; People v Coffey, 11 NY2d 142, 146; People v Singer, 300 NY 120 [Desmond, J.]; cf. People v Mirenda, 23 NY2d 439, 451-453).

Unlike the standard prevailing in some jurisdictions (e.g., State v Bethea, 186 NC 22), not every inconsistency developed on cross-examination triggers the exception (see People v Forest, 50 AD2d 260, 262 [Stevens, P.J.]). As our court has defined the term "recent fabrication”, it "means * * * that the defense is charging the witness not with mistake or confusion, but with making up a false story well after the event (see Commonwealth v. Retkovitz, 222 Mass. 245, 250). 'Recently fabricated’ means the same thing as fabricated to meet the exigencies of the case” (People v Singer, supra, p 124).

In the case before us, the only questions on cross-examination addressed to motive to fabricate related to a fabrication of the entire case from, and perhaps before, its very inception. This was consistent with the theory of the defense. Since its attack was readily interpretable as a claim that the arrests were made in furtherance of a plan to bring trumped up charges, for the prior consistent statement to have been admissible it would have to have been shown that it preceded the making of the plan. But there was no such showing. The UF 61, as a postarrest police report, could not have been made prior to the time when the charged motive to falsify arose (People v Branch, 34 AD2d 541). Consequently, it was irrelevant (see People v Carter, 52 AD2d 829, 830; cf. People v Moore, 26 AD2d 954).

As indicated, the bolstering range of the erroneously received report went much beyond the discrepancy in dollars. It also appears that the bills themselves were not vouchered, that their serial numbers were not recorded and that they were not retained as evidence. And the witness’ fellow officer, who was observing the transaction in a "back-up” capacity, testified that he did not observe any exchange of money at all. The error, therefore, by no means was harmless.

For the reasons stated, on both grounds, the orders of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Orders reversed, etc.

      . In the courts below, appellants had pressed a double jeopardy claim premised on previous pleas to attempted criminal possession of a dangerous drug in the fourth degree (former Penal Law, § 220.15, L 1969, ch 788; Penal Law, § 110.05). After the trial court indicated that, because of the probation report, it would not follow the District Attorney’s recommendation as to sentence, the pleas were vacated. The Appellate Division unanimously found that the court did not act "unilaterally” in setting the pleas aside and in effect had acted on defendants’ consent (54 AD2d 410). That point has been abandoned on the appeal to this court.

      . The only exception was recognition that a youthful offender adjudication may not be shown to affect a witness’ credibility (People v Cook, 37 NY2d 591, 595; People v Vidal, 26 NY2d 249, 253).

      . While there is no requirement that a motion to limit cross-examination on prior convictions be made at any particular juncture of a trial, it is evident that when, as here, it is made early in the proceedings, to defer a ruling until the very threshold of the defendant’s case may present a handicap to the preparation of the defense and to put it off until after "excesses” have taken place unnecessarily creates a danger that by then irretrievable prejudice may have already occurred.


text:
    In the Matter of Louis Resnick et al., Respondents, v County of Ulster et al., Appellants, and Robert H. Kuhlmann et al., Respondents. Raymond Rebeor, Petitioner, and Hugh L. Carey, as Governor of the State of New York, Intervenor-Appellant, v David Wilcox, as Oswego County Clerk, et al., Respondents. In the Matter of William J. McCarthy, Individually and as a Member of the Oswego County Legislature, Appellant, and Hugh L. Carey, as Governor of the State of New York, Intervenor-Appellant, v Oswego County Legislature, Respondent.
    Argued March 22, 1978;
    decided May 2, 1978

      POINTS OF COUNSEL

      Abram F. Molyneaux, County Attorney (Francis T. Murray of counsel), for appellants in the first above-entitled matter.
    I. Pursuant to section 10 of the Municipal Home Rule Law, a noncharter county is authorized to enact a local law providing for the filling of vacancies in the office of county legislator. (Nydick v Suffolk County Legislature, 81 Misc 2d 786, 47 AD2d 241, 36 NY2d 951; Matter of Dworsky v Farano, 41 NY2d 780.) II. Section 400 (subd 7) of the County Law is not a general law; a local law providing for the filling of vacancies in county legislative office is not inconsistent with that statute or section 43 of the Public Officers Law. (Nydick v Suffolk County Legislature, 81 Misc 2d 786.) III. A local law, which provides that vacancies in the office of county legislator shall be filled by appointment by the county legislature, is not subject to a mandatory referendum by reason of section 23 of the Municipal Home Rule Law.

      Louis M. Klein, respondent pro se, and for Louis Resnick, respondent in the first above-entitled matter.
    I. A noncharter county may not adopt a local law which allows its county legislature to fill vacancies in the office of county legislator. II. Local Law No. 1 of the Local Laws of 1976, even if otherwise valid, is defective, invalid and unenforceable because of the failure of the Ulster County legislature to make the effective date of such local law, subject to its approval at a mandatory referendum. III. Section 400 (subd 7) of the County Law and section 43 of the Public Officers Law do not violate the constitutional rights of the people or their representatives of a local government to select their own officers. (People ex rel. Bolton v Albertson, 55 NY 50.)

      Louis J. Lefkowitz, Attorney-General (William J. Kogan and Ruth Kessler Toch of counsel), for Hugh L. Carey, respondent in the first above-entitled matter.
    Application of the clear language of the New York State Constitution and the county law requires that a vacancy in the office of Ulster County legislator be filled by the Governor. (Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298; People v Shakun, 251 NY 107; Polhemus v Fitchburg R. R. Co., 123 NY 502; Hoey v Gilroy, 129 NY 132; People ex rel. Davidson v Gilon, 126 NY 147; Matter of Roher v Dinkins, 32 NY2d 180; Nydick v Suffolk County Legislature, 36 NY2d 951; Matter of Cutler v Herman, 3 NY2d 334; Matter of Enders v Rossi, 45 AD2d 447, 34 NY2d 966.)

      John T. Sullivan for appellant in the second above-entitled matter.
    I. Local Law No. 2 of 1971 violated the Municipal Home Rule Law of the State of New York, in that it embraces more than one subject. (Burke v Kern, 287 NY 203.) II. A local law which changes the power of appointment must be approved by the voters in a mandatory referendum. III. Oswego County is a nonchartered county and thus the county legislature cannot be empowered to fill vacancies. IV. The courts have held that a nonchartered county may not enact a local law empowering it to make appointments to a county legislature. (Resnick v County of Ulster, 55 AD2d 222; Matter of Knauf v County Legislature of County of Monroe, 53 Misc 2d 917, 28 AD2d 643.) V. Even if section 400 (subd 7) of the County Law were to be interpreted narrowly as not giving the Governor the power to fill vacancies, section 43 of the Public Officers Law would so empower the Governor to act, in the event there were no validly enacted local laws to the contrary. (Kasperek v Wilcox, 80 Misc 2d 1024.) VI. Equity dictates that the decision below be affirmed. (Morrison v Board of Supervisors of Oswego County, 62 Misc 2d 416.) VIL The local law in question was enacted under the county reapportionment law, not under the county charter law, and should be construed in that light.

      Louis J. Lefkowitz, Attorney-General (William J. Kogan and Ruth Kessler Toch of counsel), for intervenor-appellant in the second above-entitled matter.
    A literal application of the clear language of the New York State Constitution and the county law requires that a vacancy in the office of Oswego County legislator be filled by the Governor. (Le Drugstore Etats Unis

      v New York State Bd. of Pharmacy, 33 NY2d 298; People v Shakun, 251 NY 107; Polhemus v Fitchburg R. R. Co., 123 NY 502; Hoey v Gilroy, 129 NY 132; People ex rel. Davidson v Gilon, 126 NY 147; Matter of Roher v Dinkins, 32 NY2d 180; Resnick v County of Ulster, 55 AD2d 222; Nydick v Suffolk County Legislature, 36 NY2d 951; Matter of Dworsky v Farano, 41 NY2d 780; Matter of Cutler v Herman, 3 NY2d 334.)

      Robert J. Nicholson, County Attorney, for respondents in the second above-entitled matter.
    I. The county legislature had the authority, pursuant to the Constitution and laws of the State of New York, to provide for the filling of vacancies in its body. (Nydick v Suffolk County Legislature, 81 Misc 2d 786, 47 AD2d 241, 36 NY2d 951; Resnick v County of Ulster, 55 AD2d 222.) II. The county legislature exercised its authority within the authorized framework of the Municipal Home Rule Law in adopting Local Law No. 2 of 1971. (Matter of City of New York [Clinton Ave.], 57 App Div 166, 167 NY 624; Matter of Yaras, 283 App Div 214.) III. The appointment by the Mayor of the City of Fulton is invalid. (Matter of Knauf v County Legislature of County of Monroe, 53 Misc 2d 917, 28 AD2d 643.)
   OPINION OF THE COURT

Fuchsberg, J.

Each of these two cases requires us to decide whether county legislatures in noncharter counties may, in carrying out their home rule functions, enact local laws providing that a vacancy in the office of county legislator occurring other than by expiration of its term is to be filled by the remaining membership of the body. In each case the local law is attacked on the ground that it is incompatible with the State Constitution and with various State statutes; in each it is asserted that the power to appoint interim county legislators rests with the Governor. Rejecting these contentions, we hold the local laws valid.

Matter of Resnick comes to us in the following posture. The local law there was adopted by the Ulster County Board of Supervisors acting as that county’s legislature. Louis Resnick, a county resident and taxpayer, and Louis M. Klein, a county legislator, thereupon petitioned the Supreme Court, inter alia, for a declaration of the local law’s invalidity. Special Term, converting the proceeding into a declaratory judgment action (see Boryszewski v Brydges, 37 NY2d 361, 365), held the law invalid as contrary to subdivision 7 of section 400 of the County Law which vests the power to appoint "county officers” in the Governor. Though recognizing that our decision in Nydick v Suffolk County Legislature (36 NY2d 951, affg on opn at 81 Misc 2d 786) had rejected a similar reading of section 400 of the County Law, the court thought it sufficient reason to distinguish the cases that Nydick dealt with a county government established pursuant to a charter while Ulster County’s government was nonchartered. In upholding this decision, the Appellate Division, Third Department, also chose to read the State Constitution’s language that "the [State] legislature shall provide for filling vacancies in office” (art XIII, § 3) as barring the county legislature, in the absence of authorization by the State Legislature, from adopting a scheme for filling vacancies in local office (55 AD2d 222).

Rebeor v Wilcox arises out of a similar course of events in Oswego County, which too does not possess a charter. Acting pursuant to the like local law it had adopted, the county legislature selected William E. Dyer to fill a recent vacancy. At about the same time, the Governor, acting under authority with which he believed the State Legislature had endowed him, appointed Raymond Rebeor to fill the self-same vacancy. Two suits, heard by the courts below as one, promptly ensued. First, the minority leader of the county legislature, William J. McCarthy, instituted a proceeding seeking a declaration that Dyer’s appointment and the new local law under which it had been effected were both invalid. Rebeor, for his part, sought an order directing the Oswego County Clerk to accept his oath of office. By stipulation, the Governor intervened in both cases. Special Term, believing itself bound by the Third Department’s decision in Resnick, declared the Oswego law invalid. However, the Appellate Division, Fourth Department, which heard the appeal in the Rebeor proceedings, found that Nydick governed, and reversed (58 AD2d 186).

We are aware that in each of the cases before us the term for which the interim appointment was made has now expired and that, for all practical purposes, these cases are now moot. However, the events which precipitated them are not only recurrent but, because appointments to vacancies terminate with the next general election (NY Const, art XIII, § 3; Matter of Roher v Dinkins, 32 NY2d 180), cases such as these are not readily reached for final determination during incumbencies. Moreover, the conflict between two departments of the Appellate Division on the central issue before us casts a cloud on the legitimacy of the functioning of interim legislators so chosen. We therefore deem it appropriate to decide this issue (see Matter of Gannett Co. v De Pasquale, 43 NY2d 370; Matter of Oliver v Postel, 30 NY2d 171).

In doing so, we need not look far to find the guiding legal principle by which these cases are to be determined. The bill of rights for local governments directs that "[a]ll officers of local government whose election or appointment is not provided for by this constitution shall be elected by the people of the local government, or of some division thereof, or appointed by such officers of the local government as may be provided by law” (NY Const, art IX, § 1, subd [b]). The importance of this principle to the scheme of government in this State is emphasized by the specific grant of legislative authority to each local government to "adopt and amend local laws [relating to the] mode of selection and removal * * * of its officers” (NY Const, art IX, § 2, subd [c], par [1]). Recognition of the force of this stress on home rule is further evidenced by its reiteration in the statute which effectuates the constitutional mandates (Municipal Home Rule Law, § 10, subd 1, par [ii], cl a, subcl [1]). "We begin, therefore, with the premise that the State Constitution vests local government with the right to confer upon their officers the authority to appoint other officers of local government” (Matter of Dworsky v Farano, 41 NY2d 780, 781).

Clear as this view may be today, it has not always been so. The idea that local officials should be chosen by local constituencies is one with deep roots in our democratic polity (see People ex rel. Town of Pelham v Village of Pelham, 215 NY 374, where Judge Samuel Seabury reviewed case law which had already developed on that subject by the early part of this century; see, also, People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Comrs., 174 NY 417, 431-435, affd 199 US 1; cf. McBain, The Doctrine of an Inherent Right of Local Self-Government II, 16 Col L Rev 299, 303-308). But the local laws before us do not deal primarily with guaranteeing the basic choice of local officers by local electorates. More narrowly, as indicated, they focus on how these officers are to be chosen for interim periods when it is not practicable to refer the matter to the voters.

The allocation of the authority to decide how such a selection is to be made was not well defined in the constitutional provisions which preceded article IX as it was reshaped in 1964 (compare, e.g., section 9 with section 12 of article IX as they read in the period between 1959 and 1964). In the main, the older, more limited constitutional home rule provisions which existed before 1964, insofar as they dealt with internal structure, applied essentially to cities and villages. Counties were left largely to a choice among alternative forms of chartered or unchartered local government organization outlined by the State Legislature; at that time, if a county desired to design its own structure, it had to pursue a cumbersome and discouraging course (NY Const, art IX, §§ 1-4 [as amd 1959]; Diamond, Some Observations on Local Government in New York State, 8 Buffalo L Rev 27, 38-39).

Yet, even in the era when a very narrow interpretation was given to the home rule provisions, municipalities were accorded great autonomy in experimenting with the manner in which their local officers, including legislative officers, were to be chosen. In some instances, this was predicated directly on the provision dealing with the "mode of selection and removal” of their officers (Bareham v City of Rochester, 246 NY 140; Matter of Blaikie v Power, 13 NY2d 134, 144-145). At other times, it was derived more generally from the concept that such measures fell within the scope of their power to manage their "property, affairs or government” (Baldwin v City of Buffalo, 6 NY2d 168, 173).

All the changes made by the 1964 home rule amendment and its contemporaneously adopted implementing statute were expansive. With some exceptions, identical grants of authority were made to all local governmental units — counties and towns, as well as cities and villages. The manifest intent was to encourage local governments to make a living document of the bill of rights for local governments (NY Const, art IX, § 1 [as amd 1964]). In this perspective, the decisions of the Ulster and Oswego County legislatures to enact the local laws involved here were well within both the philosophy and the explicit formulations of the constitutional and State legislative enactments.

Thus, if the challenges to these local laws were founded on a clearly articulated decision by the State Legislature to intrude upon a domain which county legislatures presumptively control, we might face the more difficult task of determining where it is that our Constitution has set the dividing line between these two levels of legislative authority (cf. Wambat Realty Corp. v State of New York, 41 NY2d 490; Adler v Deegan, 251 NY 467). The present cases rest, however, only on implications which may be drawn from constitutional and statutory sections not directly related to the questions before us. The most significant of these spring from the constitutional provision that "the legislature shall provide for-filling vacancies in office”. (NY Const, art XIII, § 3.) Those critical of the local laws assert these words should be construed as limiting the power of local governments, unless authorized by the State Legislature, to devise their own solu-. tions for filling interim vacancies in office. They argue that, for counties which operate under county charters, authorization is implicit in the act of approving the charter itself, but that for other counties no such authorization may be inferred. We find neither strand of this argument convincing.

First, it would be contrary to the spirit of home rule to allow the issue of whether county legislatures may adopt provisions relating, as these do, to their "affairs or government” to turn on the existence or nonexistence of county charters. Our statutes, as they have evolved, now allow counties considerable latitude to choose that structure of local government which is best tailored to serve particular community needs. An aspect of government organization as limited as the method of filling legislative vacancies can hardly have been intended to be excepted. To resort to implication to find that power nonexisting unless it is included in a comprehensive county charter would not only confine the authority of local governing bodies far more closely than the import of any language in the home rule article suggests, but, by its over-restrictive nature, would tend to undermine initiative on the part of local government. It would also run counter to article IX’s command that the rights and powers granted to local governments "shall be liberally construed” (NY Const, art IX, § 3, subd [c]).

Nowhere in the statutory guidelines for county charters is there any reference to filling vacancies in office (see Municipal Home Rule Law, § 33). That it may in fact be incorporated in some individual charters is no reason, therefore, to believe that the fundamental power possessed by a charter county to adopt such a provision is rooted any less than that of a nonchartered county in the general authorization granted all local governments to determine the mode of selection of their officers. In short, nothing turns here on whether the filling of vacancies is covered by local law or county charter.

Secondly, we do not read the constitutional provision on filling vacancies as vesting the State Legislature with such exclusive authority that all other provisions bearing on that subject are to be ignored. Article IX in its current form was adopted much later than section 3 of article XIII, the source of the State legislative power on which those who challenge the local laws rely. This is not the first time that we have been asked to strike down locally adopted provisions for selecting local officers on the ground that there are supposed inconsistencies between the home rule article and other parts of the Constitution. As we held in Bareham v City of Rochester (246 NY 140, 145, supra), if inconsistencies in the Constitution do exist, the later amendment controls.

The home rule article and statutes receive their inspiration from the deeply felt belief that local problems should, so long as they do not impinge on affairs of the people of the State as a whole, be solved locally. The county governments, in seeking to make their own provisions for continuity of representation of local constituencies, were not acting out of harmony with these enactments. To invalidate the local laws because of the rationalizations urged upon us in these cases would be to take a step in the direction against which Cardozo warned when he observed that the home rule enactments "adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts * * * ignore the new spirit that dictated their adoption” (Matter of Mayor, etc., of New York [Elm St.], 246 NY 72, 76).

Finally, we note that we have reviewed the procedural objections which have been urged against the manner in which these local laws were adopted and we likewise find them to be without merit.

Accordingly, we hold Ulster County Local Law No. 1 of 1976 and Oswego County Local Law No. 2 of 1971 valid and, therefore, in Resnick the order of the Appellate Division, Third Department, must be reversed and the matter remitted for the entry of judgment declaring the law valid and, in Rebeor, the order of the Appellate Division, Fourth Department, must be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

In Matter of Resnick v County of Ulster: Order reversed, without costs, and matter remitted to Supreme Court, Ulster County, for entry of a judgment declaring Local Law No. 1 of 1976 valid.

In Rebeor v Wilcox: Order affirmed, without costs.

      . Rebeor had also obtained an appointment from the Mayor of the City of Fulton to fill the legislative vacancy, whose constituency included a fair portion of the city’s residents. As the office was on a county body, albeit the boundaries of the district were determined by the alignment of city wards, Special Term properly held the Mayor powerless to make such an appointment (see Kasperek v Wilcox, 80 Misc 2d 1024; Matter of Knauf v County Legislature of County of Monroe, 53 Misc 2d 917, app dsmd 28 AD2d 643).

      . Those resting on subdivision 7 of section 400 of the County Law and on section 43 of the Public Officers Law were rejected when we affirmed on the opinion of Special Term in Nydick (36 NY2d 961, supra).

      . Ulster County Local Law No. 1 of 1976 provides: "If a vacancy occurs in the office of County Legislator, otherwise than by expiration of the term, the County Legislature shall fill the office * * * by appointing to said office, any [qualified] resident of the district in which the vacancy occurred”.

      . Oswego County Local Law No. 2 of 1971 (§ 2) provides: "In the event of a vacancy * * * before the expiration of the term of any member of the Legislature, such vacancy shall be filled by appointment of the County Legislature of a qualified person”.