author: Jones, J. Meyer, J. Jasen, J. Wachtler, J.

text:
    The People of the State of New York, Respondent, v Ricky A. Knapp, Appellant.
    Argued June 8, 1982
    decided October 12, 1982

      John H. Owen, Public Defender, for appellant.
    I. The CPL article 710 notice served below was insufficient on its face and all alleged admissions should therefore have been suppressed. (People v Utley, 77 Misc 2d 86.) II. Appellant had an attorney under retainer in connection with a pending criminal matter at the time all allegedly incriminating admissions herein were made and since that attorney never waived appellant’s right to counsel in connection with any such admissions, all such admissions should have been suppressed. (People v Rogers, 48 NY2d 167; People v Marrero, 51 NY2d 56; People v Skinner, 52 NY2d 24; People v Bartolomeo, 53 NY2d 225; People v Settles, 46 NY2d 154; People v Kazmarick, 52 NY2d 322.) III. A retained attorney had appeared for appellant in connection with the questioning in the Velzy matter prior to the obtaining of any alleged admissions and had expressly foreclosed further questioning of appellant and all alleged admissions thereafter obtained should therefore have been suppressed. (People v McLauren, 38 NY2d 123; People v Marrero, 51 NY2d 56; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Gunner, 15 NY2d 226.) IV. Significant judicial activity had taken place prior to any admissions allegedly obtained at the time of arrest and any oral or written admissions allegedly obtained at the questioning following arrest and these admissions should therefore have been suppressed. (People v Samuels, 49 NY2d 218; Massiah v United States, 377 US 201.) V. A police agent was directed by the police to secure admissions from appellant and was thus required to furnish appellant with the Miranda warnings prior to the elicitation of any alleged incriminating information. (Massiah v United States, 377 US 201; People v Skinner, 52 NY2d 24.) VI. The so-called “spontaneous” admissions should have been suppressed as involuntary. (People v Rogers, 48 NY2d 167; People v Lucas, 53 NY2d 678; People v Stoesser, 53 NY2d 648.) VII. All admissions, written and oral, obtained at the State Police headquarters should be suppressed on the ground that they were involuntary as the product of circumstances involving intoxication, violence, threats and other untoward activities. VIII. All alleged admissions obtained at the State Police headquarters should have been suppressed upon the ground that appellant, after having protested his innocence, was not readministered his Miranda warnings prior to allegedly confessing. (People v Jackson, 41 NY2d 146; Michigan v Mosley, 423 US 96.) IX. The warrants for the search of the car and the residence were básed upon statements by an unreliable informant and the unlawfully obtained confession and the evidence resulting from these warrants should therefore have been suppressed. (Coolidge v New Hampshire, 403 US 443; Johnson v United States, 333 US 10; Lo-Ji Sales v New York, 442 US 319; Silverthorne Lbr. Co. v United States, 251 US 385; Agnello v United States, 269 US 20; People v Bartolomeo, 53 NY2d 225.) X. The warrants authorized search only and therefore anything seized should have been suppressed. (Coolidge v New Hampshire, 403 US 443; Terry v Ohio, 392 US 1; Sibron v New York, 392 US 40.) XI. The evidence dehors the admissions (and the fruits thereof) was not overwhelming but highly dubious and the admissions (and their fruits) were devastating. (People v Almestica, 42 NY2d 222; People v Crimmins, 36 NY2d 230.) XII. The People engaged in improper practices before the Grand Jury in connection with a key witness and the remaining count of the indictment should therefore be dismissed. XIII. The remaining count of the indictment should be dismissed in that, as a matter of law, appellant owed no duty as imputed to him by the said count. (People v Kibbe, 35 NY2d 407; Jones v United States, 308 F2d 307.) XIV. Assuming the existence of a relevant duty, the failure to perform that duty was not proven and the remaining count of the indictment should be dismissed. XV. Assuming the existence of a relevant duty and assuming that the failure to perform that duty was proven, the failure to perform that duty was not proven to be criminally culpable and the remaining count of the indictment should be dismissed. XVI. Assuming the existence of a relevant duty, the failure to perform that duty and that that failure was criminally culpable, that failure was yet not proven to be the proximate cause of death, meaning that there was a concomitant failure to prove the corpus delicti and a concomitant failure to corroborate the confession, and the remaining count of the indictment should be dismissed. (People v Schryver, 42 NY 1; People v Plath, 100 NY 590; People v Eaton, 25 AD2d 692.) XVII. The court below erred in denying appellant’s pretrial motions for a change of venue and this court should order a new trial to be held in an appropriate different jurisdiction. (Sheppard v Maxwell, 384 US 333; People v Di Piazza, 24 NY2d 342.) XVIII. The trial court should have disqualified itself upon pretrial motions and a new trial should be ordered before a different Judge. XIX. Prejudicial error was committed below in connection with the admission into evidence of certain physical evidence and a new trial should be ordered. XX. The trial court improperly admitted into evidence color photographs of the inside of the head of the deceased. XXI. The trial court denied appellant’s application that jury panel members be examined individually in private concerning the publicity that they had been subjected to and the effect thereof, instead requiring appellant to examine the jurors entirely in the presence of the other panel members and the public while foreclosing the defense from inquiring as to the nature and extent of the publicity that the individual panel members had been subject to, and a new trial should therefore be ordered. (Nebraska Press Assn. v Stuart, 427 US 539.) XXII. The trial court, having concluded that sequestration of the jury was indispensable to a fair trial, should have sequestered the jury in a rational fashion rather than in a manner which substantially obviated the advantage of sequestration and a new trial should therefore be ordered. XXIII. The trial court improperly denied defense requests to charge certain lesser included offenses and a new trial should therefore be ordered. XXIV. The trial court erred in charging the jury that a person is presumed to intend the natural consequences of his own act and a new trial should therefore be ordered. XXV. The sentence was harsh and excessive and it should be ameliorated.

      Colin E. Ingham, District Attorney, for respondent.
    I. The notice pursuant to CPL article 710, even if insufficient, does not require suppression. (People v Huntley, 15 NY2d 72; People v Briggs, 38 NY2d 319; People v Rivera, 53 NY2d 1005.) II. An attorney had not entered the proceeding prior to defendant’s waiver of counsel on January 1, 1978. (People v Rogers, 48 NY2d 167; People v Skinner, 52 NY2d 24; People v Kazmarick, 52 NY2d 322.) III. The police had no knowledge that a retained attorney had appeared for this defendant with regard to the matter under investigation. (People v Cunningham, 49 NY2d 203; People v Marrero, 51 NY2d 56; People v Garofolo, 46 NY2d 592.) IV. No significant judicial activity had taken place which would activate defendant’s right to counsel and thereby make defendant’s waiver of counsel, absent counsel, impossible as a matter of law. (People v Samuels, 49 NY2d 218; Kirby v Illinois, 406 US 682; People v Sugden, 35 NY2d 453; People v Coleman, 43 NY2d 222; People v Settles, 46 NY2d 154.) V. Arthur Hitt was not required to give defendant Knapp the so-called Miranda warnings prior to engaging him in conversation concerning the Velzy death in a noncustodial situation. (Miranda v Arizona, 384 US 436; People v Yukl, 25 NY2d 585.) VI. The utterances by this defendant at the grave site were spontaneous, and, as a result, were properly admitted at trial. (People v Maerling, 46 NY2d 289; People v Kaye, 25 NY2d 139; People v Hobson, 39 NY2d 479; People v Del Vermo, 192 NY 470; People v Schompert, 19 NY2d 300, 389 US 874.) VII. Defendant’s oral and written statements at the New York State Police barracks were not the product of coercion, duress, threats, or intoxication, as a result of which, they were properly admitted. VIII. The admissions made by defendant at the State Police barracks should not be suppressed as a result of the failure of the New York State Police to readminister the Miranda warnings to defendant during interrogation. (People v Jackson, 41 NY2d 146.) IX. The warrants for the search of the car and the residence were properly obtained based on appropriate evidence, as a result of which, any evidence resulting from such search was legally admissible. (People v Hicks, 38 NY2d 90; People v Brown, 40 NY2d 183; Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108.) X. The search warrants issued by the local magistrate anticipated seizure of evidence, as a result of which, said evidence was properly admissible. XI. If defendant’s confession was wrongfully admitted into evidence, such error was harmless error and does not require the reversal of defendant’s conviction. (People v Knapp, 82 AD2d 971; People v Kingston, 8 NY2d 384; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230.) XII. The People did not engage in improper practices before the Grand Jury. XIII. The People established the guilt of defendant under Count No. 2 of the indictment beyond a reasonable doubt. (People v Reynolds, 25 NY2d 489; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Kibbe, 35 NY2d 407.) XIV. The evidence established beyond a reasonable doubt that the death of Linda Jill Velzy was a foreseeable result and reasonably related to the acts of defendant. XV. The evidence proved beyond a reasonable doubt that defendant’s conduct evinced a depraved indifference to human life resulting in death. XVI. The actions of defendant were sufficient direct cause of the death of Linda Jill Velzy to warrant the imposition of a conviction for murder in the second degree. XVII. The court below did not improperly deny defendant’s motion for a change of venue. (People v Davies, 275 App Div 726, 300 NY 506; People v Di Piazza, 24 NY2d 342; People v Bonier, 189 NY 108.) XVIII. The trial court did not err in refusing to disqualify itself. (People v McDonald, 8 Misc 2d 50; People v Rowley, 48 Misc 2d 26.) XIX. The admission of certain physical evidence was not prejudicial error. XX. The trial court did not improperly admit into evidence the photographs of the interior of the decedent’s head. (People v Singer, 300 NY 120.) XXI. The court properly conducted selection of the jury in terms of pretrial publicity. (People v Biondo, 41 NY2d 483; People v Corbett, 68 AD2d 772; People v Genovese, 10 NY2d 478.) XXII. The trial court properly sequestered the jury. (Matter of Oliver v Postel, 30 NY2d 171.) XXIII. The trial court properly denied defendant’s request to charge lesser included offenses under the indictment. (People v Asan, 22 NY2d 526; People v Battle, 22 NY2d 323.) XXIV. The court below did not commit error in charging the jury with respect to the presumption that a person intends the natural consequences of his own act. (Sandstrom v Montana, 442 US 510; People v Getch, 50 NY2d 456.) XXV. The sentence imposed by the court was not excessive nor harsh under the circumstances.
   OPINION OF THE COURT

Jones, J.

Incriminating statements made by defendant to the police after they had been informed that he had an attorney, as well as physical evidence thereafter seized from his automobile, must be suppressed as obtained in violation of his State constitutional right to counsel. The erroneous admission of this evidence cannot be regarded as harmless, nor can it be concluded on this record that the evidence was admissible on any theory of an emergency exception to the right -to counsel rule as now advanced by the dissenters.

Linda Jill Velzy, an 18-year-old student attending the State University College of Arts and Sciences at Oneonta, was last seen alive at approximately 6:00 p.m. on Friday, December 9, 1977. She had just finished visiting several young women who were seeking another roommate to share their apartment. On leaving she told them that she would walk back to the college campus or perhaps hitch a ride. She was reported missing by her roommate the following day. An intensive search was begun and carried out as a missing person investigation. The New York State Police, the Oneonta city police and the college campus security guards joined forces, co-ordinating their efforts and establishing a single command post in the Municipal Building on Main Street in the City of Oneonta. A search was made of the surrounding countryside and woods which included the use of helicopters and bloodhounds. The police interviewed and questioned over a hundred people, including defendant.

When he was questioned defendant informed the investigating officers, Detective Angellotti of the Oneonta police and Investigator Dabreau of the State Police, of his whereabouts on the evening of December 9 and denied any knowledge of the Velzy disappearance. During the course of this conversation, at the request of the officers, defendant agreed to submit to a polygraph examination. The police thereafter from time to time continued to question defendant and communicated with his family.

Defendant at the time was under indictment returned by the November, 1977 Grand Jury in which he was charged with sodomy in the first degree ánd unlawful imprisonment in the first degree. He had been arraigned on these charges on November 9, 1977 and at that time had appeared with his attorney, John H. Owen, Otsego County Public Defender, although the latter had not then been formally appointed to represent him. Defendant again appeared on this indictment before the Otsego County Court on December 12, 1977 on an application to relieve the Public Defender and to permit defendant to retain counsel of his own choosing. The court granted defendant two weeks to obtain an attorney and adjourned the matter to December 28, 1977.

As a consequence of the earlier police request that defendant take a polygraph examination, he contacted attorney Owen, who advised him not to submit to the test. The police continued questioning of defendant on December 12, 13 and 15, until on December 15 or 16, attorney Owen telephoned Detective Angellotti, informed him that he had advised his client not to take the polygraph test, and directed that the police either arrest defendant or cease their harassing questioning of him.

Although direct attempts to question defendant ended in compliance with Owen’s demand and were not resumed until after defendant’s subsequent arrest, later that month members of the consolidated investigating team arranged to question defendant indirectly through an informer named Arthur Hitt. During the course of the missing person investigation Hitt’s attorney had approached the State Police indicating that his client possessed certain information with respect to the Velzy matter. Hitt, the owner of a logging site, for whom defendant occasionally worked, faced pending felony charges. The police were told by Hitt that on Monday, December 12, defendant had asked him to tell anyone who might inquire that he was with Hitt until 8:00 p.m. on Friday, December 9, the evening of Miss Velzy’s disappearance. Although defendant did not then tell Hitt why it was important for him to establish an alibi for that Friday evening, Hitt reported the incident to his own attorney. Thereafter (and after attorney Owen had expressly directed the police to cease questioning defendant about the Velzy matter), on December 21 at a conference in the chambers of the County Court Judge attended by the Judge, the prosecutor, Hitt and Hitt’s attorney, it was agreed that Hitt would be permitted to plead guilty to charges not requiring incarceration and would, in fact, not be sentenced to incarceration, in exchange for his co-operation in the Velzy investigation, provided such co-operation led to the arrest of at least one person criminally responsible for Velzy’s disappearance. Hitt’s attorney testified that he understood the objective at the time to be “to get Knapp”.

During the next 10 days, Hitt made several telephone calls to defendant which were recorded by State Police investigators. In the same period the State Police also outfitted Hitt with recording equipment for several face-to-face meetings with defendant. In only two of these more than half dozen recorded conversations was any relevant or incriminating statement made. Defendant twice repeated his request, without elaboration, that Hitt support defendant’s alibi for Friday evening, December 9. In exchange for Hitt’s agreement to do that, defendant agreed to support an alibi for Hitt’s own pending unrelated charges.

On December 31 the case finally broke open when it was disclosed why it was that defendant wanted an alibi for December 9. It was then that defendant confirmed to Hitt that he had killed Linda Velzy. In an unrecorded conversation, defendant related that he had picked up the Velzy girl while she was hitchhiking on West Street in the City of Oneonta around 6 o’clock or a little after on December 9, that he had had a sexual encounter with her, that as they were coming back into town differences arose between them and she got all upset and jumped out of the car, that she lay in the ditch semiconscious, that he got out of the car and put her in the back seat and told her that he was going to take her to the hospital, and that instead he drove over into Delaware County where he hit her in the throat three times with his fist, killing her. He added that he wanted to move the body to Hitt’s logging site, and Hitt agreed to assist.

Hitt alerted the State Police and on January 1, 1978 informed them that defendant and he were going to move the body of Linda Velzy from the place where it was then located to a grave on Hitt’s logging site on Winney Hill Road. On the basis of this information the police set up a stakeout to await the arrival of defendant and Hitt with the deceased girl’s body. Shortly after 6:00 p.m. defendant and Hitt arrived at the logging site, and defendant was observed dragging the frozen body to a grave which had been prepared by use of a bulldozer furnished by Hitt. The police announced their presence and thereupon seized and arrested defendant. It was the testimony of some of the police witnesses that as he was being grappled to the ground he blurted out, “I am sorry; I am sorry. I killed her. I am no good. Please shoot me.”

Defendant was taken to the State Police station in Unadilla where he was given his constitutionally mandated preinterrogation warnings. He waived his right to counsel and made a full confession of his involvement in the disappearance and death of Linda Jill Velzy which was reduced to typewritten form and signed by him. Based entirely on Hitt’s sworn testimony as to admissions made to him by defendant, the police obtained a warrant to search the car defendant had been driving on December 9. The search uncovered a contact lens, wood chips, cat and dog hairs, blonde human hair and Christmas decoration “glitter squares”.

The January, 1978 Otsego County Grand Jury returned an indictment charging defendant with two counts of murder in the second degree. In count one it was alleged that defendant intentionally caused Linda Velzy’s death by beating her about the head and neck with his fists (Penal Law, § 125.25, subd 1), and in count two it was alleged that defendant, in circumstances evincing a depraved indifference to human life, recklessly created a grave risk of her death and caused her death by failing to transport her for medical care (Penal Law, § 125.25, subd 2).

On pretrial motions by defendant, the trial court denied suppression of the blurted-out expression of guilt and remorse made by defendant when he was apprehended at the grave site, of the two detailed confessions (the oral admissions made to Arthur Hitt before defendant’s arrest and the signed typewritten confession made to the police after his arrest), and of the various items of physical evidence seized from defendant’s car pursuant to the search warrant.

At trial, although none of the taped recordings of defendant’s conversations with Hitt were offered in evidence, Hitt was himself permitted over objection to testify with respect to the statements made to him on December 31 in which defendant detailed his participation in the disappearance of Linda Velzy and the associated subsequent events. The prosecution was also permitted to introduce the items of physical evidence taken from defendant’s car and his signed typewritten confession.

Defendant took the stand and testified that, by Hitt’s own admission to him, it was Hitt rather than defendant who had had the sexual encounter and who had killed the Velzy girl, that Hitt supplied the car and drove it and also furnished the shovel, sheet and bulldozer for the reburial and that it was Hitt who took defendant to the site of the original placement of the body in Delaware County and then requested defendant’s assistance in reburying the body.

At the conclusion of the trial the jury was instructed that it could find defendant guilty of either count or neither count but not both. After deliberation the jury acquitted defendant of intentional murder but convicted him of reckless murder.

On appeal, the Appellate Division rejected all but one of the several contentions advanced on defendant’s behalf. As to that contention, each Judge on the panel agreed that the signed typewritten confession had been obtained in violation of defendant’s State constitutional right to counsel. Concluding, however, that the evidence of defendant’s guilt was so overwhelming that the written confession was merely surplusage, the majority affirmed the conviction on a harmless error analysis. One Justice dissented from this analysis.

Although we agree that only the denial of defendant’s motion to suppress merits our discussion, we are compelled under settled principles of State constitutional law to conclude that violation by the police of defendant’s right to counsel required suppression not only of the signed typewritten confession but also of testimony as to his earlier oral admissions made to Hitt, as well as of all physical evidence seized from his car. Only the blurted-out expression at the grave site was admissible. Because the evidence which should have been suppressed constituted the very core of the People’s case, it cannot be concluded that its admission was harmless. Accordingly, defendant’s conviction must be reversed and the case remitted for further proceedings on the second count of the indictment.

We find no ground to disturb the denial of suppression of the police testimony as to the statement that defendant blurted out when he was arrested; both courts below have found that it was spontaneous (cf. People v Lanahan, 55 NY2d 711).

For the purpose of determining whether the admissions made by defendant to Hitt should have been suppressed it must be concluded that at the time, December 31, Hitt was acting as an agent for the police pursuant to the arrangement for that purpose made in the County Judge’s chambers on December 21. It was the State Police who directed and supervised Hitt in his role as their informer, and, of course, they were chargeable with knowledge of the direction given by defendant’s attorney to the Oneonta police that defendant was not to be questioned further in relation to the Velzy matter (cf. People v Garofolo, 46 NY2d 592; People v Pinzon, 44 NY2d 458). In employing Hitt as their agent to obtain incriminating statements from defendant who was represented by counsel, the police violated defendant’s State constitutional right to counsel (cf. People v Rogers, 48 NY2d 167). It follows that Hitt’s testimony as to the incriminating statements made by defendant to him must be suppressed notwithstanding that defendant was not in police custody at the time the statements were made (People v Skinner, 52 NY2d 24).

By similar reasoning the physical evidence obtained pursuant to the search warrant issued on the basis of Hitt’s testimony as to defendant’s admissions to him must be suppressed (cf. Wong Sun v United States, 371 US 471).

Finally, as all the Justices at the Appellate Division agreed, defendant’s signed typewritten statement made after his arrest while he was in police custody, at a time when to their knowledge he was represented by counsel who had directed the termination of all questioning, should have been suppressed.

It remains only to comment briefly on the views advanced in the dissent. Whatever may be said of a missing-person-emergency exception to the right of counsel rule — an issue as to which we decline to express any opinion — it suffices for the purposes of the present appeal to observe that there has been no address to any such theory by either the People or defendant in their briefs or on oral argument. Nor is there any suggestion that this contention was considered by County Court or at the Appellate Division, and neither court made any factual determination on which such an argument could be predicated. Accordingly, it would be jurisprudentially both inappropriate and imprudent for us at this stage to base an affirmance of defendant’s conviction on any such ground. If there is to be an emergency exception in right to counsel cases, its recognition should be based on full development of an evidentiary record and come after the implications and ramifications of such an exception have been explored and considered with full participation of counsel, both at nisi prius and in the Appellate Division.

Moreover, even if the missing-person-emergency rule were to be recognized, its application in this or any other individual case would necessarily depend on a preliminary factual determination, and, as stated by Judge Meyer, the present record would not permit us, as a matter of law, to make the prerequisite factual determination that the police activities with respect to defendant after December 21, 1977 were in furtherance of any emergency search for a missing person. Although the police in a co-ordinated task force initially launched an extensive missing person investigation following Linda Velzy’s disappearance on December 9, the evidence now before us is not so overwhelming as to compel the conclusion that the purpose of the December 21 conference in the County Judge’s chambers and the use of Hitt by the police as their agent on December 31 was in furtherance of the search for Linda and not to obtain evidence of criminal activity on the part of defendant. The lapse of time as well as the other circumstances of the arrangement with Hitt disclosed in the record give rise to no inference that the police entertained an expectation of finding Linda Velzy alive.

Nor would it be proper, in our view, to send the case back for a new hearing, the introduction of new evidence and the possible development of a new theory on which to sustain the admission of the evidence which should, on the present record, have been suppressed (cf. People v Havelka, 45 NY2d 636). There is no contention that, had they chosen to do so, the People could not have offered any evidence available to them to sustain such an emergency exception at the original suppression hearing. That such a theory appears not to have occurred to anyone (until postargument deliberation in our court) provides no justification to grant “the People a second chance to succeed where once they had tried and failed” (People v Bryant, 37 NY2d 208, 211).

For the reasons stated, the order of the Appellate Division should be reversed, defendant’s conviction vacated, testimony as to his oral admissions to Hitt, his signed typewritten confession, and the physical evidence seized pursuant to the search warrant suppressed, and the case remitted to Otsego County Court for further proceedings on the second count in the indictment.

Meyer, J.

(concurring in result). Although I harbor no doubt that there is an emergency exception to the constitutional right to counsel and when next presented with the opportunity to do so will vote in favor of such an exception, no court has yet so held and the possibility that any court might, so far as the present record discloses, was never suggested at the December 21 hearing or to any of the three courts considering this case, or indeed until the conference of this court after argument. I, therefore, cannot agree with my dissenting colleagues that defendant Knapp’s conviction should simply be affirmed, for to do so would be to deny him the opportunity to which due process clearly entitles him to contest whether his statement of December 31 to Hitt, improperly obtained as it otherwise clearly was (United States v Henry, 447 US 264, 274, n 11; Brewer v Williams, 430 US 387; Massiah v United States, 377 US 201; see Rhode Island v Innis, 446 US 291, 300, n 4), was obtained in a manner within that emergency exception. There is a point beyond which the fact that a person is missing may no longer be reasonably viewed as constituting an emergency. To pose £ reductio ad absurdum, the dissenters would not suggest that in a prosecution for the murder of Judge Crater, missing now these many decades, the introduction of a statement obtained under the same circumstances as was the statement obtained from Knapp could be justified on an emergency basis.

Whether an emergency exists is a question of fact, in which the fact that a person is missing is a highly important factor. It is not, however, the only relevant factor (compare Justice Blackmun dissenting in Brewer v Williams, 430 US 387, 439, supra, with State v Beede, 119 NH 620, cert den 445 US 967, reh den 446 US 993). To hold as a matter of law, as would the dissenters, that that fact alone justifies the deliberate, court-sponsored invasion of Knapp’s right to counsel is to permit the exception to swallow the rule and to violate Knapp’s right to due process in order to justify the violation of his right to counsel.

The evidence strongly suggests that Knapp is guilty of the murder of Linda Velzy. But I would rather see one guilty man go free than sanction in the interest of justifiably limiting the right to counsel an exception that will render the rule meaningless in many cases and which in this case cannot be reached without violating the due process clauses of the State and Federal Constitutions.

In my view the matter should be remitted for a further suppression hearing at which the facts concerning the basis on which the police acted could be presented by the State, upon which rests the burden of proof (cf. People v Hodge, 44 NY2d 553, 557; People v Mitchell, 39 NY2d 173, 180), and Knapp would be afforded the opportunity to which due process entitles him to contest those facts. Such a hearing would be permissible in view of the massive media coverage of Linda Velzy’s disappearance which would provide a sufficient check on possible distortion (People v Havelka, 45 NY2d 636, 644; People v Lypka, 36 NY2d 210; People v Horowitz, 21 NY2d 55).

Jasen, J.

(dissenting). Although I did not acquiesce in prior holdings of this court adopting the broad right of counsel rule (People v Rogers, 48 NY2d 167, 175-178; People v Marrero, 51 NY2d 56, 59-61; People v Skinner, 52 NY2d 24, 32-36; People v Bartolomeo, 53 NY2d 225, 236), which would seem to necessitate a reversal of defendant’s conviction of reckless murder, in spite of overwhelming evidence of guilt, I believe that there comes a point at which an appellate court, such as ours, must recognize that the dictates of common sense and reason must be considered in striking a balance between a suspect’s fundamental right to counsel and the fundamental duty of the police to aid persons in trouble, particularly those who may be the victims of violent crimes. A rule that turns criminals free can be justified only by clear and convincing evidence that its benefit to society outweighs its cost to society. In my view, the benefits from applying an inflexible per se right of counsel rule to the particular facts and circumstances surrounding this case falls far short of meeting that test.

In my opinion, the analysis presented by Judge Wachtler in his dissenting opinion, whether viewed as an emergency exception to the right of counsel rule or as a limitation on the further development of that right as it relates to an emergency police inquiry, recognizes the practical realities of a missing persons investigation and the inappropriateness of further applying the per se right of counsel rule enunciated in People v Skinner (supra). Such an investigation by its very nature requires the police to act expediently in the hope of finding a person whose life may be in danger and who may be in need of immediate assistance. While it may be true that the person is missing because of the criminal acts of another, the rights of a potential defendant should not hamper an investigation directed primarily to aid the victim. (Snyder v Massachusetts, 291 US 97, 122.)

Nor is it practical to suggest that the police should know the precise moment their investigation changes from primarily a missing persons investigation to an accusatory investigation. In fact, many such emergency investigations will in the natural course of good police work uncover criminal activity and evidence related to that activity. In recognizing a demarcation between investigatory and accusatory police work, for the purpose of applying the right to counsel rule, we would be fulfilling our obligation to locate the proper balance between competing demands for effective police protection and strict observation of a suspect’s fundamental constitutional rights. However, as a policy matter, we should allow the police adequate discretion to conduct this type of emergency investigation until it is clearly established that a crime has been committed, at which point the investigation would be termed accusatory in nature and would focus only on determining responsibility for the crime.

In the insulated environment of an appellate court, which naturally deals in hindsight, it is easy to pinpoint when such a change in an investigation occurred, but I do not believe that the Constitution requires the police to make such fine distinctions during an emergency investigation oriented to locating a missing 18-year-old college student. (People v Rogers, supra; People v Skinner, supra; People v Middleton, 54 NY2d 474; Hoffa v United States, 385 US 293, 310.) To do otherwise would result in the accused going free, not because the constable blundered, but because the constable lacked the foresight to ascertain the precise nature of the investigation.

It is for this reason that I believe this case is distinguishable from the prior precedents of this court which extended the constitutional right to counsel to the investigatory stages of police work. In People v Skinner (52 NY2d 24, supra), it was ascertained that a murder had been committed and finding the person responsible was the focus of the police investigation. There were no competing concerns regarding the victim’s safety or fate. Nor was there any compelling time constraint such as exists when it is thought that a person may be being held captive. Thus, I believe there is a very real practical distinction to be drawn between a disappearance investigation and the situation where the police know the precise nature of the crime and are conducting an investigation to establish a person’s involvement in that already ascertained crime. I welcome the opportunity to join my dissenting colleagues in recognizing the compelling nature of those practicalities which makes this case distinguishable from prior precedents of this court. (People v Rogers, supra; People v Skinner, supra.)

To hold otherwise would constitute yet another expansion of a person’s right to counsel in a noncustodial setting during the course of an investigation. In my view, this would be an unwarranted expansion of the right to counsel which, once again, would elevate the rights of the potential defendant above the compelling interests of the State. (People v Rogers, supra.) Furthermore, it may well have the dangerous effect of barring the police not only from investigating a crime, but also from aiding a citizen who is the victim of criminal activity.

For all of these reasons, I would affirm the order of the Appellate Division.

Wachtler, J.

(dissenting). The police should not be prohibited from using an informant to obtain information from a person represented by counsel when the police are trying to find and possibly rescue a missing person. The rule precluding the police from questioning a person represented by counsel in order to solve a crime known to have been committed, or to gather evidence for conviction of such a crime, has not been applied, and should not be extended to hinder police officers actively engaged in attempting to provide emergency assistance to those who are or may be in danger. When a person has been reported missing under unusual circumstances the police may reasonably proceed on the assumption that the person may be in danger or in need of police assistance. It should not be for the courts to say that at a certain point, to be revealed after the event, intensive rescue efforts should cease because the police should, as a matter of law, abandon all hope of finding the missing person alive.

In this case the defendant murdered Linda Velzy, an 18-year-old college student, while he was released on bail awaiting trial on an indictment charging him with sodomy and unlawful imprisonment of another young woman. He admitted his guilt on three separate occasions: first, to an erstwhile friend, Arthur Hitt, who was assisting the police in locating the missing student; second, at the time of his arrest while attempting to dispose of his victim’s body; and third, at the police station shortly after his arrest. Additional evidence of his guilt was discovered in his car pursuant to a warrant based entirely on the defendant’s conversations with Hitt. The defendant made a pretrial motion to suppress the evidence claiming some unspecified violation of his constitutional rights. The trial court denied the motion and the jury found the defendant guilty of murder.

The Appellate Division held that the defendant’s third confession at the station house should have been suppressed, but found the error harmless in light of the other evidence of guilt and thus affirmed the conviction.

On appeal to this court the defendant urges that all of this evidence, except the dead student’s body, should be suppressed. He argues that the police should not have approached him or accepted the aid of his confidant, Arthur Hitt, to determine what if anything the defendant knew of Miss Velzy’s disappearance because the police knew that the defendant had recently been indicted for abducting and sexually molesting another young woman in the area, and therefore knew that on that pending charge he had an attorney, who in fact had, at the defendant’s request, directed the police to discontinue their efforts to obtain information from the defendant concerning the missing person. It is contended by the defendant, and the majority, that our prior cases construing the State constitutional right to counsel mandate suppression of the evidence under these circumstances.

In my view the Appellate Division was correct and the conviction should be affirmed. A careful reading of the facts and applicable law shows that the defendant’s argument calls for an extension and, in my view, an unwarranted extension of the right to counsel into an area in which it has never been held to apply, and should not be held to be applicable.

The most important fact in the case is that Linda Velzy disappeared on December .9, 1977 and was not found until January 1, 1978. When informed of her mysterious disappearance on December 10 the Oneonta police opened a “file 5” which, it was noted at the hearing, is the official designation for a missing persons investigation. They also enlisted the aid of the State Police and the campus security force and established a special command post to co-ordinate their efforts to find Miss Velzy.

The search continued throughout December. Large numbers of police officers searched the surrounding woods, helicopters were employed, as well as bloodhounds, and apparently even spiritualists. The police also interviewed over a hundred people including the defendant. Thus accepting Hitt’s offer to determine what, if anything, the defendant might know about Miss Velzy’s disappearance and present whereabouts was just one of the many leads pursued by the police.

All of the defendant’s statements to Hitt were made during this first stage of the investigation, while the police were attempting to locate and possibly rescue a missing person. The only statements the police obtained from the defendant after it was determined that a crime had been committed in connection with the young woman’s disappearance were the second and third confessions.

Although the police naturally considered it possible that she might be dead, they had no evidence supporting that theory until the day before the defendant’s arrest when the defendant informed Hitt that he had killed her. The corpus delicti of the crime was not established until January 1, 1978 when the defendant was arrested dragging her body to a newly dug grave. Prior to that time the police did not know whether she was dead or alive, sick or well, voluntarily absent or criminally abducted and thus were conducting a missing persons investigation, not a homicide case.

A missing persons investigation is not a criminal investigation, as the majority opinion assumes. This is not just a semantic difference. It is a constitutionally recognized distinction (see, e.g., People v Mitchell, 39 NY2d 173), and a point of the utmost significance in this case.

The primary function of the police is to protect the public by preventing crime and rendering emergency assistance to those whose lives or safety may be in jeopardy. After a crime has been committed the police assume their secondary role of determining who is responsible and gathering evidence for prosecution.

The State constitutional rule prohibiting the police from questioning a person represented by counsel in the absence of counsel, limits the investigative techniques available to the police (see, e.g., People v Middleton, 54 NY2d 474). In some cases this merely delays the investigation, in others it may completely frustrate it. Thus far this type of restriction has been imposed on the police only in cases where they are investigating a crime known to have been committed in order to solve the crime or obtain evidence which would insure a conviction (see, e.g., People v Hobson, 39 NY2d 479 [robbery reported]; People v Settles, 46 NY2d 154 [police officer killed]; People v Singer, 44 NY2d 241 [young woman found murdered]; People v Garofolo, 46 NY2d 592 [young woman murdered]; People v Rogers, 48 NY2d 167 [robbery reported]). Significantly, in People v Skinner (52 NY2d 24), which the majority believes to be dispositive in this case, the police found the victim’s dead body on June 25, 1975 and obtained the damaging admissions from the defendant on March 10,1977 nearly two years later. Thus that was also a case in which the victim had been found and any information the police might obtain from the defendant could only serve to aid them in their secondary role of establishing criminal responsibility for a crime known to have been committed some time ago.

In short, the critical distinguishing factor between our prior cases and the one now before us is this: In none of our prior cases was there any possibility that the life or safety of an innocent third party, perhaps in imminent danger, might depend upon the success of the police investigation. Limiting the power of the police to investigate a crime known to have been completed, by precluding them from obtaining information from a person who has retained an attorney, may result in the guilty party going free. Imposing the same restrictions on the police when they are attempting to rescue a person potentially in danger may, and in many cases undoubtedly will, have the added consequence of contributing to the death or injury of the victim.

Well-founded judicial reluctance to interfere with the emergency functions of the police has served as the basis for recognizing limitations on other constitutional rights.

Thus, for instance, the Miranda rule does not require the police to pause and advise an individual of his rights when the officers are merely investigating a suspicious and possibly criminal incident but have not yet determined whether there has been a “definite” and “concluded” crime (People v Huffman, 41 NY2d 29; People v Greer, 42 NY2d 170). The “emergency doctrine” applied in Fourth Amendment cases is the most well-developed example. It was adopted by this court in People v Mitchell (39 NY2d 173, supra) where the police had conducted a “room-by-room” search of a hotel to locate a missing maid, who was eventually found dead in the defendant’s room. The police concededly had no warrant and no probable cause to believe the defendant had committed a crime. However, we noted (at p 178) that the “maid’s disappearance was a mystery and it was not known whether she had been stricken with some illness, suffered an accident or possibly fallen victim to a crime. Each of these three alternatives was possible”. In upholding the police officers’ actions we held that the police have the right to enter and investigate in an emergency inherent in the nature of their duties as peace officers and noted (at p 180) that “ ‘[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would greatly endanger their lives or the lives of others’ (Warden v Hayden, 387 US 294, 298-299).”

Recognizing that the police should not be bound by the unusual restrictions imposed by this State’s constitutional right to counsel when they are conducting a missing persons investigation is consistent with constitutional principles generally and is justified by the demands of that type of investigation. The need to make wide-ranging inquiries is no less important than the need to make sweeping search when the police are attempting to locate a missing person. Delay or frustration of the investigation can be equally fatal for the missing person whether it is occasioned by unrealistic restrictions on the right to search or on the right to inquire. Indeed, the broadened power of the police to search for a missing person is of little value if the authorities do not have the corresponding power to obtain leads by making inquiry of all segments of the community. When a person has disappeared under unusual circumstances, law-abiding citizens or those without attorneys are not the only ones, or even the most likely, to have useful information.

As is the case with other constitutional rights, there are limits to the rule prohibiting the police from obtaining statements from a person who has retained or requested the assistance of counsel (People v Middleton, 54 NY2d 474, supra; People v Ferrara, 54 NY2d 498). In the Middleton case where the defendant, arrested for a traffic infraction, offered the arresting officer a $10,000 bribe after invoking the right to counsel, we concluded that further inquiry by the police as to the reason for the bribe was not prohibited, noting that a contrary holding would (at p 482) “unrealistically * * * limit investigatory procedures relating to bribe offers”. It is even more unrealistic, if not completely irresponsible, to require police officers attempting to locate a missing person, potentially in danger, to abandon a promising lead simply because it would require the use of an informer to obtain information from a person represented by counsel.

The case now before us is an appropriate one to recognize that a defendant cannot employ the right to counsel to frustrate or delay police officers searching for a missing person. Although we now know, as the defendant did from the beginning, that the missing student had been killed or fatally injured on December 9, this was not known by the police on December 21 when they formally accepted Hitt’s offer to attempt to learn if the defendant knew anything about her disappearance. All the authorities knew at that point was that, when last seen, Miss Velzy had indicated that she would probably walk or hitchhike back to the campus; that the defendant had recently been arrested for abducting and sexually assaulting another hitchhiking coed and that he had asked his friend Hitt for a false alibi for the evening of December 9. This, of course, was a lead worth following but it obviously did not provide solid proof or even probable cause to believe that the defendant was responsible for Miss Velzy’s disappearance or that she was dead. Missing persons, even those who have been abducted, are often found alive long after their disappearance, as we know from the Patti Hearst case, and others of lesser notoriety. The defendant’s attempt to obtain an alibi for the night of the disappearance was nothing more than a suspicious circumstance. But even if the police had firmer grounds to suspect him, his involvement in Miss Velzy’s disappearance would not necessarily establish a homicide or rule out other possibilities. Significantly the pending indictment charged the defendant with sodomy and unlawful imprisonment, suggesting that at some point the girl that he had abducted in that case must have been released alive. We do not know how much time elapsed in that case but it is interesting to note that on the trip to Binghamton the defendant had informed Hitt that “he wanted to pick up another girl and take her off in a cabin or something back in the woods out of the way and keep her there for a couple of weeks and then just do away with her”.

The record is not deficient, nor is there any need to remit for additional findings, simply because it does not reveal the subjective intent of the officers involved in the investigation or has lead some to speculate that they were only intent on obtaining evidence against the defendant. With three police forces and so many individuals actively involved in the search over several weeks, it is unlikely that we will find unanimity or any persistently held beliefs. With the limited information available to the police any individual belief would be little more than a hunch. The only practical approach for the courts is to recognize that when a person has disappeared under mysterious circumstances, the police may reasonably proceed on the assumption that he or she may be in danger or in need of police assistance. It does not matter whether all, most, or only some, of the officers assigned to the investigation are fully committed to that belief, whether their supervisors share it, or whether a Judge asked to assist in the case entertains the belief. Until the person has been found, or conclusive evidence of death has been presented there is no reason for the police to abandon all hope of rescue. Neither should the courts say, with hindsight, that the police should have conducted the investigation as if no hope remained. Thus the record as it stands is sufficient and supports our view that the emergency doctrine is applicable to this case.

The issue presented by the facts in this case cannot be ignored or avoided because of any perceived failure on the part of the People to urge that we adopt an emergency exception to the State constitutional right to counsel. Strict requirements with respect to the sufficiency of the record and appellate arguments of counsel have not previously deterred us from reaching the merits when the State’s constitutional right to counsel is involved. In any event the defendant’s contention that his right has been violated necessarily involves consideration of the scope and limits of the right. A defendant’s constitutional rights cannot be extended by default. If the People had completely neglected to submit a brief, or had been precluded for failure to present a timely brief (22 NYCRR 500.7 [b]), we would not be bound to accept the defendant’s arguments simply because they were unopposed. Indeed even if the People had expressly conceded the defendant’s point, that would not “relieve us from the performance of our judicial function * * * [or] require us to adopt the proposal urged upon us” (People v Berrios, 28 NY2d 361, 366-367; see, also, People v Lewis, 26 NY2d 547, 550; People v McGowen, 42 NY2d 905, 907; Sibron v New York, 392 US 40, 58; Young v United States, 315 US 257, 258).

In sum, when the police are investigating a report that a person has disappeared under mysterious circumstances, and has not yet been found, the State constitutional right to counsel should not prohibit the police from approaching any member of the community who may have useful information, including those who have a record of prior convictions or pending charges or who have retained counsel to immunize themselves from police inquiries. A missing persons investigation is not a homicide case when no body has been found and there was no reason why the police in this case should have been bound to conduct the investigation as if Miss Velzy’s life or safety did not depend upon the success of their efforts.

The defendant’s conviction should be affirmed.

Chief Judge Cooke and Judge Fuchsberg concur with Judge Jones; Judge Meyer concurs in result in a separate opinion; Judge Jasen dissents and votes to affirm in another opinion; Judge Wachtler dissents and votes to affirm in an additional opinion in which Judge Gabrielli concurs.

Order reversed, etc.

      . At trial, the lens was matched to one missing from Miss Velzy’s right eye, the wood chips were shown to be similar to a chip found in her pubic hair, the animal hair was proved consistent with hair found on the interior surfaces of her clothing, the human hair was established to be consistent with her own hair, and the glitter squares were seen to be the same as those found in the sheet in which her body was partially wrapped.

      . In this case there is no room for a contention that the purpose of the police in their use of Hitt as an informer was to elicit evidence from defendant as to the commission of a subsequent, discrete criminal transaction (cf. People v Ferrara, 54 NY2d 498; People v Middleton, 54 NY2d 474). Defendant’s incriminatory statements on December 31 were unrelated to any new crime. The record discloses that they were elicited entirely independent of defendant’s request for an alibi; defendant was relating the details of his past crime for a purpose independent of his request for an alibi. In any event any crime of hindering prosecution had been fully committed on December 12 when defendant made his request and when that request was repeated in taped conversations, apparently prior to December 21. There was no occasion for the continued use of Hitt with respect to any such crime. There can be no doubt that on December 31, Hitt was acting as police agent to obtain evidence as to defendant’s participation in Linda Velzy’s disappearance.

       What is overlooked in footnote 4 of the dissent is that there can be no unfairness to the People in permitting Knapp to contest an issue which it was the People’s burden to present.

       I see no reason to require a hearing on the question of whether or not an emergency existed. In my view, an emergency existed by virtue of the missing persons investigation. Thus, the scope of right to counsel in light of the emergency nature of the investigation can be addressed by this court even though it was not considered by the courts below. The very nature of a missing persons investigation, combined with the facts as found by the courts below, clearly constitutes an emergency situation.

      . Contrary to the majority’s holding, the principle recognized in the Middleton and Ferrara cases provides an additional basis for admitting the defendant’s conversations with Hitt. When the defendant requested Hitt to give false information to the police he committed the crime of criminal solicitation (see Penal Law, §§ 100.00-100.15), because he was asking Hitt to commit the crime of hindering prosecution (Penal Law, §§ 205.50-205.65), known at common law as an accomplice after the fact (La Pave & Scott, Criminal Law, § 66, p 523). Statements made in furtherance of a criminal act are not the type of statements entitled to protection under the State Constitution (People v Middleton, supra; People v Ferrara, supra).

      Although as the majority notes this new crime was complete when the defendant made the request, it does not follow that there was no need for the police to utilize Hitt to further investigate the matter. This argument overlooks the fact that evidence of the crime would not be complete until it could be shown that some earlier crime had been committed which the defendant was attempting to cover up (see Penal Law, §§ 205.50-205.65, 100.00-100.15). Indeed the degree or precise nature of the defendant’s offense would depend upon the nature of the earlier crime (Penal Law, §§ 100.00-100.15). Nor is it realistic to focus on the intent of the police in such an investigation. A police officer investigating to determine whether a defendant’s request for a false alibi is an attempt to cover up some earlier crime, cannot do so without also intending to uncover the earlier crime.

      . The example chosen by Judge Meyer in his concurring opinion is not apt or helpful. In this case we are concerned with a potential victim missing approximately 20 days, and not with an historical curiosity which occurred over 50 years ago.

      . The subjective intent of police officers is relevant in Fourth Amendment cases where the emergency doctrine is employed to physically intrude upon the defendant’s person or property, without a warrant, and, indeed without probable cause (see, e.g., People v Mitchell, 39 NY2d 173). It has not been considered relevant in cases involving emergencies where the police conduct is less intrusive. For instance, when the police merely converse with the defendant in order to determine the nature of suspicious, possibly dangerous and presumably criminal activity, the police officer’s “primary purpose” in making the inquiry has played no part in determining whether it was proper to dispense with Miranda warnings (see, e.g., People v Huffman, 41 NY2d 29; People v Greer, 42 NY2d 170). The same rule should apply in this case where the police were merely attempting to determine, by conversations with the defendant and through their agent Hitt, whether the defendant possessed information concerning Miss Velzy’s mysterious disappearance.

      . The view expressed in Judge Meyer’s concurring opinion, that it would be unfair to the defendant to recognize the emergency limitation on his rights at this stage is, at least, ironic. First, it should be emphasized that the defendant never submitted any facts in support of his motion to suppress. He simply claimed, without elaboration, that his statements should be suppressed because they “were involuntary and otherwise obtained in violation of the defendant’s rights under the United States Constitution and otherwise”. Thus he presented no factual basis for suppression or factual issues entitling him to a hearing and was only afforded a hearing because the People consented to grant him one. Secondly, at the suppression hearing which extends through two volumes of the record, the defendant made no legal argument whatsoever in support of his conclusory contention that his rights had been violated, made no attempt to identify for the court or disclose to his adversary the legal basis for the relief he sought, and therefore never afforded the People an opportunity to respond at the hearing to the arguments he has presented on this appeal. As a general rule the defendant’s failure to present the issue in the trial court would preclude the defendant from raising it on this appeal. However, once again, the defendant has been granted a special dispensation because the right to counsel issue happens to be one of those rare points that need not be preserved.
      In short, the defendant has been afforded more of a hearing, both in this court and the trial court, than he would be generally entitled to under the law. The only unfairness is to the People because the conviction is being set aside for their “failure” to respond to an argument the defendant never made.

      . When the record shows that this right has been violated we have consistently granted relief even though the defendant has failed to properly preserve the issue in the trial court (see, e.g., People v Samuels, 49 NY2d 218, 221; People v Charleston, 54 NY2d 622) or has neglected to argue the point on appeal (People v Carmine A., 53 NY2d 816). Similarly, we should deny relief if the record shows that there has been no violation even though the People may not perceive that the defendant’s arguments would extend the right into areas where it would not be applicable.

      . Despite the fact that I write in dissent for three Judges, including myself, it is plain from Judge Meyer’s concurring opinion that at least four Judges of this court are now prepared to recognize the emergency doctrine in principle.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of Edward V. Regan, as Comptroller of the State of New York, Respondent, v Crime Victims Compensation Board, Appellant, et al., Respondent.
    Argued September 2, 1982
    decided October 12, 1982

      POINTS OF COUNSEL

      Paul S. Hudson for appellant.
    I. Appellant acted legally when it declined to find that claimant, Zelik Kotlarski, would not suffer a serious financial hardship if denied an award. II. The interpretation of the Crime Victims Compensation Board of subdivision 6 of section 631 of the Executive Law (serious financial hardship) is not unreasonable or irrational; the Board’s determination on the present claim is not in violation of law and is supported by substantial evidence. (Matter of Lumpkin v Department of Social Servs. of State of N. Y., 59 AD2d 485, 45 NY2d 351; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Howard v Wyman, 28 NY2d 434; Matter of Condé NastPub. v State Tax Comm., 51 AD2d 17, 39 NY2d 889; Matter of Bork v City School Dist. of City of North Tonawanda, 60 AD2d 13; Trans Alaska Pipeline Rate Cases, 436 US 631; Ferraiolo v O’Dwyer, 302 NY 371; Matter of Nyboe v Allen, 7 AD2d 822; Securities v Sloan, 436 US 103; Matter of Stupach, 274 NY 198.) III. The proper standard for judicial review is illegality or excessiveness. (Matter of Elwood Investors Co. v Behme, 79 Misc 2d 910; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 58 AD2d 285; Matter of Lumpkin v Department of Social Servs. of State of N. Y., 45 NY2d 351; Matter of Ward v Nyquist, 43 NY2d 57; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Stupach, 274 NY 198; Matter of Purdy v Kriesberg, 47 NY2d 354.) IV. Article 22 of the Executive Law establishing the Crime Victims Compensation Board and the State Victim Compensation Program is a remedial statute and should be liberally construed in reviewing the award decision herein. (Chamberlain v Western Transp. Co., 44 NY 305; Harrison v Bain Estates, 2 Misc 2d 52, 2 AD2d 670; Archer v Equitable Life

      Assur. Soc. of U. S., 218 NY 18; Mead v Stratton, 87 NY 493; State of New York v Parker, 67 Misc 2d 36, 38 AD2d 542, 30 NY2d 964; Matter of City of New York [Spuyten Duyvil Shore Front Park], 71 Misc 2d 1019; Matter of Machcinski [Ford Motor Co. — Corsi], 277 App Div 634; Matter of Mittleman [Corsi], 282 App Div 587; Matter of Gryziec v Zweibel, 74 AD2d 9; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408.) V. The Comptroller cannot properly delegate his entire decisional and review function under section 629 of the Executive Law to his appointed subordinates. (Matter of Kilgus v Board of Estimate of City of N. Y., 308 NY 620; Matter of O’Dea’s Bar & Rest, v New York State Liq. Auth., 30 Misc 2d 616; Matter of Juno Operating Corp. v Police Dept. of City of N. Y., 22 Misc 2d 676; New York State Dept. of Audit & Control v Crime Victims Compensation Bd., 76 AD2d 405; Matter of New York State Dept. of Audit & Control v Crime Victims Compensation Bd., 76 AD2d 410.) VI. Respondent-petitioner’s service of respondent claimant did not meet constitutional standards of a procedure and practice reasonably designed to give defendant notice and opportunity to be heard. (Matter of Central Hanover Bank & Trust Co. [Mullane — Vaughan], 275 App Div 769, 299 NY 697, revd sub nom. Mullane v Central Hanover Trust Co., 339 US 306; International Shoe Co. v Washington, 326 US 310; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Vazzana v Horn, 42 Misc 2d 989; Rivera v W. & R. Serv. Sta., 34 AD2d 115.)

      Robert Abrams, Attorney-General (Carl E. Stephan and Peter H. Schiff of counsel), for Edward V. Regan, Comptroller, respondent.
    I. The Board illegally awarded claimant $594.01 for loss of earnings where plaintiff had not shown that he would suffer serious financial hardship absent such an award. (Matter of Seitelman v Lavine, 36 NY2d 165; Matter of New York State Dept. of Audit & Control v Crime Victims Compensation Bd., 76 AD2d 410; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Potts v Kaplan, 264 NY 110; Riss v City of New York, 22 NY2d 579; Matter of Gryziec v Zweibel, 74 AD2d 9; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408; Zaldin v Concord Hotel, 48 NY2d 107; Matter of

      Johnsen v Nissman, 39 AD2d 578; Matter of Howard v Wyman, 28 NY2d 434.) II. The Board’s procedural objections are patently meritless. (Matter of Yeannelis v Menides, 259 NY 513; Matter of Seitelman v Lavine, 36 NY2d 165; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Matter of Gryziec v Zweibel, 74 AD2d 9; Matter of Johnsen v Nissman, 39 AD2d 578; Matter of New York State Dept. of Audit & Control v Crime Victims Compensation Bd., 76 AD2d 410.)
   OPINION OF THE COURT

Chief Judge Cooke.

This case, although involving a relatively small sum of money, raises significant issues with respect to the State’s system of compensating victims of crime. Specifically, it concerns the criteria and means used by the Crime Victims Compensation Board (Board) to determine eligibility for compensation of persons who have suffered injuries as direct results of crime. This court holds that the Board exceeded the limits of its authority in making its award to claimant. Consequently, the order of the Appellate Division should be affirmed.

Claimant Zelik Kotlarski, a 66-year-old plumber, was mugged while working. The robber injured claimant, forcing him to miss nine weeks of work, and relieved him- of $524 in cash. He filed a claim with the Crime Victims Compensation Board, which determined that his unreimbursed loss of earnings was $594 and awarded him that amount. Pursuant to section 629 of the Executive Law, the State Comptroller requested that the Attorney-General bring this proceeding to review the award. The Appellate Division granted the Attorney-General’s petition to annul the award as illegal and excessive.

It should be emphasized that involved here is not the question of whether the State should attempt to make victims whole. Regrettably, crime touches all too many persons today, and many of its victims sustain financial losses as a result of their injuries. To ameliorate these losses, the Legislature enacted a program to provide restricted financial assistance to certain victims of crimes (see Executive Law, § 620 et seq.). What is to be considered on this appeal is whether there should be strict adherence to the provisions of this statutory scheme governing the distribution of finite State resources to these victims.

When the Legislature created this State’s pioneering system for compensating crime victims, it expressly recognized that large numbers of innocent persons were killed or injured each year by criminals and that “[s]uch persons or their dependents may thereby suffer disability, incur financial hardships, or become dependent upon public assistance” (Executive Law, § 620). The Legislature declared its “intent that aid, care and support be provided by the state, as a matter of grace, for such victims of crime” (id.). In the absence of statutory provision or special undertaking, of course, an innocent victim of a crime has no claim to redress by the State (see Riss v City of New York, 22 NY2d 579, 582-583). As a legislative creation, then, the compensation here must be confined to the terms of the statutes creating the program (see Zaldin v Concord Hotel, 48 NY2d 107, 113).

When the Legislature established the Crime Victims Compensation Board, it directed that awards be made only where the claimant would suffer serious financial hardship without compensation. If the Board “finds that the claimant will not suffer serious financial hardship” if refused compensation to offset lost earnings, the statute directs that “the board or board members shall deny an award” (Executive Law, § 631, subd 6). The statute does not define “serious financial hardship”, but directs the Board to “consider all of the financial resources of the claimant” in establishing by rule specific standards for making such determinations.

In claimant’s case, the award was based on a finding by Board Member Gottlieb that serious financial hardship had been established. The Appellate Division was correct in annulling the award determination. The Board’s standards for assessing financial hardship are not in accord with the relevant statutory provisions. Subdivision 6 of section 631 requires that the Board “consider all of the financial resources of the claimant.” Under the rules promulgated by the Board, however, a wide variety of items are exempted from consideration as part of claimant’s “financial resources”: a homestead or five years’ rent, clothing and personal effects, furniture and appliances, equipment necessary for a trade, an automobile, and life insurance (9 NYCRR 525.9 [b]). In addition, the Board permits the exclusion of an amount not exceeding the claimant’s annual income and as much as $100,000 in inventory and property necessary for the production of claimant’s income (9 NYCRR 525.9 [c]). Finally, the Board’s rules provide that “the board shall, within the limitations of the law, render a decision which will as nearly as possible permit the claimant and/or his family to maintain a reasonable standard of living. Where out-of-pocket expenses and/or loss of earnings or support would lower this standard of living, this may in the discretion of the board be deemed serious financial hardship” (9 NYCRR 525.9 [d]).

The Board’s rules extend beyond the terms of the controlling statute. To the extent that they exempt a claimant’s assets and income from consideration, the rules do not take into consideration “all of the financial resources of the claimant” as directed by subdivision 6 of section 631. Likewise, the Board’s rules permit it to deem a lowering of claimant’s “reasonable standard of living”, no matter how minor or short-lived, to be “serious financial hardship”. Although the Legislature left it to the Board to define the precise limits of what constitutes severe financial hardship, the plain meaning of those words themselves establishes the outer boundaries. A diminution, of unspecified degree, in a person’s “reasonable standard of living” falls outside the boundaries of what can be considered a demonstration of serious financial hardship. The Board’s interpretation of the terms of section 631 is contrary to the clear language of the statute and is therefore entitled to no deference (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). To the extent that the Board’s rules conflict with the statute, therefore, they are invalid.

In annulling the Board’s determination with respect to claimant, the Appellate Division held that there was no demonstration that claimant would suffer severe financial hardship if denied an award. The ruling was correct. The Board found that claimant had savings of $24,000, securities worth $4,275, and an interest in real property worth $30,000. In addition, the Board did not take into consideration other property that was exempt under its rules. Claimant’s assets do not support the Board’s conclusion that claimant would suffer severe financial hardship if denied an award of $594 for lost earnings.

The Board, emphasizing the “double negative” in the statute, maintains that, before it grants an award, it is not required to find that severe financial hardship will result if no award is made, and that only when it finds that hardship will not result is it required to deny an award. Such a reading not only runs contrary to the statute but would render it meaningless. Although subdivision 6 of section 631 directs that the Board deny awards when claimants would not suffer severe financial hardship, it does not follow that the Board is free to circumvent the statute by declining to make any determination with respect to the existence of severe hardship. To support an award, there must be a determination, supported by sufficient findings in the record, that the claimant would suffer severe financial hardship if denied an award.

Contrary to the Board’s assertions, this does not place an impossible burden on either the Board or claimants. Claimants need not exhaust all of their financial resources before receiving an award. Nothing in the statutory scheme prevents the Board from assessing, based on a claimant’s current financial position, lost wages and injuries, the prospective likelihood of claimant suffering severe financial hardship. No claimant meeting the criteria set forth by the Legislature need be denied compensation.

The Board’s remaining arguments have been considered and are found to be without merit.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Order affirmed.

      . At the time New York enacted its program in 1966, only California, Great Britain, and New Zealand had such compensation provisions (see Note, Compensation for Victims of Crimes of Violence, 31 Alb L Rev 120).

      . In full, subdivision 6 of section 631 of the Executive Law provides: “If the board or board member, as the case may be, finds that the claimant will not suffer serious financial hardship, as a result of the loss of earnings or support and the out-of-pocket expenses incurred as a result of the injury, if not granted financial assistance pursuant to this article to meet such loss of earnings, support or out-of-pocket expenses, the board or board members shall deny an award. In determining such serious financial hardship, the board or board member shall consider all of the financial resources of the claimant. The board shall establish specific standards by rule for determining such serious financial hardship.”


author: Wachtler, J.

text:
    Frank Danielenko et al., Respondents, v Kinney Rent A Car, Inc., Appellant, et al., Defendants. (And a Third-Party Action.)
    Argued September 7, 1982
    decided October 12, 1982

      POINTS OF COUNSEL

      T. James Bryan for appellant.
    I. Plaintiffs failed to establish any factual basis for a finding of negligence. (Digelormo v Weil, 260 NY 192; Palsgraf v Long Is. R. R. Co., 248 NY 339; Pulka v Edelman, 40 NY2d 781; Cartee v Saks Fifth Ave., 277 App Div 606; Gattner v Coliseum Exhibition Corp., 17 AD2d 44,12 NY2d 933; Morris v Troy Sav. Bank, 32 AD2d 237, 28 NY2d 619; Polemenakos v Cohn, 234 App Div 563, 260 NY 524; Hubbell v City of Yonkers, 104 NY 434; MacPherson v Buick Motor Co., 217 NY 382.) II. The trial court committed reversible error in its charge to the jury. (Green v Downs, 27 NY2d 205; Johnson v Artkraft Strauss Sign Corp., 45 AD2d 482; Colasurdo v Waldbaum’s Forty-One, 57 AD2d 602; Arroyo v Judena Taxi, 20 AD2d 888.) III. The court’s charge regarding a negative inference that could be drawn against Kinney for failing to produce a document which the court ruled did not have to be produced was erroneous and highly prejudicial. (Noce v Kaufman, 2 NY2d 347; Feingold v Walworth Bros., 238 NY 446; Tupman Thurlow Co. v S. S. Cap Castillo, 490 F2d 302.) IV. The trial court erred in not dismissing the complaints of Spink and Tracealarm alleging a breach of warranty and allowing the other defendants to amend their complaint after the verdict to include a breach of warranty claim. (Codling v Paglia, 32 NY2d 330; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Hoisting Engine Sales Co. v Hart, 237 NY 30; Hoe v Sanborn, 21 NY 552; Antilles Shipping Co. v Texaco, Inc., 321 F Supp 166; Goldberg v Kollsman Instrument Corp., 12 NY2d 432.)

      Martin Szold for Frank Danielenko and others, respondents.
    I. Plaintiffs-respondents made out a prima facie case of negligence requiring submission to the jury. (White v Lehigh Val. R. R. Co., 220 NY 131; Snell v MVAIC, 34 AD2d 872; People v Harris, 136 NY 423; Allen v Stokes, 260 App Div 600; Palsgraf v Long Is. R. R. Co., 248 NY 339.) II. The trial court’s charge was in all respects proper. (Mullins v Siegel-Cooper Co., 183 NY 129; Palsgraf v Long

      Is. R. R. Co., 248 NY 339.) III. Appellant did not preserve its right to appeal from the trial court’s refusal to charge as requested. IV. Appellant failed to preserve a right of appeal from that part of the charge regarding a negative inference to be drawn for failure to produce a document, and the charge regarding a negative inference was, in all respects, proper. (Miles v R & M Appliance Sales, 26 NY2d 451.) V. Plaintiffs are entitled to a recovery under breach of warranty since the bailor of a leased chattel warrants that such chattel is reasonably fit for the purpose for which it has been leased. (Hoisting Engine Sales Co. v Hart, 237 NY 30; Matter of Casualty Co. of Amer., 250 NY 410; Standard Oil Co. of N. Y. v Boyle, 231 App Div 101; Gambino v Lucas & Co., 263 App Div 1054; Vander Veer v Tyrrell, 29 AD2d 255; Winant v Approved Ladder & Equip. Corp., 31 AD2d 965, 28 NY2d 529; Atlantic Tug & Equip. Co. v S & L Paving Corp., 40 AD2d 589; Covello v State of New York, 17 Misc 2d 637; Accelerated Trucking Corp. v McLean Trucking Co., 53 Misc 2d 321; Greenberg v Lorenz, 9 NY2d 195.)

      Charles Palella for Harold Spink, respondent.
    I. The evidence was sufficient to submit the question of Kinney’s negligence to the jury. (Sadowski v Long Is. R. R. Co., 292 NY 448; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Havas v Victory Paper Stock Co., 49 NY2d 381; Calvaruso v Our Lady of Peace R. C. Church, 36 AD2d 755; Tripi v Stillwell, 22 AD2d 759; La Rocca v Farrington, 301 NY 247; Richards v Texas Co., 245 App Div 797; Deyo v New York Cent. R. R. Co., 34 NY 9; Pulka v Edelman, 40 NY2d 781.) II. The court’s charge to the jury was proper in all respects. (Bichler v Lilly & Co., 55 NY2d 571; Miles v R & M Appliance Sales, 26 NY2d 451; Matter of Levine v Levine, 60 AD2d 652.) III. Assuming, arguendo, that the evidence was insufficient to support a finding of negligence, the judgments should nevertheless be affirmed on the ground that a cause of action was made out in warranty or strict products liability. (Hoisting Engine Sales Co. v Hart, 237 NY 30; Sarfati v Hittner & Sons, 35 AD2d 1004; Gambino v Lucas & Co., 263 App Div 1054; Tully v Empire Equip. Corp., 28 AD2d 935; Covello v State of New York, 17 Misc 2d 637; Accelerated Trucking Corp. v McLean Trucking

      Co., 53 Misc 2d 321; Natasi v Hochman, 58 AD2d 564; Samaras v Gatx Leasing Corp., 75 AD2d 890; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376.)
   OPINION OF THE COURT

Wachtler, J.

The essential thrust of plaintiffs’ claim is that defendants were negligent in not posting a sufficient number of guards to protect against the surreptitious placement of a bomb in one of their vehicles and in not searching each vehicle prior to rental for detection of hidden harmful devices. Although it is clear that defendants owed plaintiffs a duty of reasonable care, we find that plaintiffs failed to establish a prima facie case of negligence in that they introduced no evidence that defendants in any way breached the duty owed.

Tracealarm, Inc. (Tracealarm), a security agency which transports money under armed guard on behalf of its customers, rents automobiles available to the general public from defendant Kinney Rent A Car (Kinney) for this purpose. Before dawn on May 27, 1971, plaintiff Harold Spink, a Tracealarm employee, arrived at Kinney’s garage at 220 East 40th Street in New York City to obtain a vehicle to be used to transport a payroll to United Airlines at Kennedy Airport.

When Spink arrived, one of Kinney’s attendants was in a portion of the garage below the main street level where the rental vehicles were stored. The three front bay doors located at the street level were open, and Spink observed no one in the office, also located at street level, at that time. After a few moments the attendant came to the main level. Kinney’s records indicated that four employees, including a manager, were on night duty on May 27, 1971.

After obtaining a vehicle from the attendant, Spink drove to the offices of Tracealarm where he parked and locked the car and went into the offices to secure the payroll. He was met by three other Tracealarm employees and the four proceeded to the car with the payroll. Spink drove the vehicle, with the others as passengers, towards Kennedy Airport. While the four Tracealarm employees were driving on the Van Wyck Expressway an explosion occurred which destroyed the vehicle and approximately half of the payroll and seriously injured the occupants. The explosion was apparently caused by a bomb secreted under the front passenger seat, for a police expert testified that he recovered a spring and mechanical dial timer from under that seat.

The four injured Tracealarm employees commenced actions against Kinney sounding in negligence. Spink also sought recovery for breach of warranty. Tracealarm sued Kinney for recovery of the payroll money destroyed by the explosion. Kinney filed a third-party complaint against Tracealarm for negligence in not having established adequate procedures to enable its employees to prevent this type of occurrence. Pursuant to postverdict motions all four plaintiff employees were permitted to plead alternative causes of action for breach of warranty against Kinney.

The plaintiffs offered no evidence at the jury trial regarding when or how the bomb was placed in the automobile or by whom. No evidence was presented to suggest any motive for the bombing. The only evidence which would remotely suggest any motive for the bombing was a vague reference to a previous labor dispute. None of the evidence indicated that any of Kinney’s vehicles had been vandalized in the past or that anyone had ever tampered with one of the vehicles in a manner designed to cause or resulting in injury to a bailee.

In a pretrial deposition of a Kinney security officer, introduced by plaintiffs at trial, it was stated that as a general practice a returned vehicle is prepared for rerental by examining the vehicle’s essential systems, including the lights, brakes, windshield wipers, as well as the oil, battery and wiper fluid levels. Kinney employees would also test drive the vehicle. The brakes were checked by driving the vehicle down the ramp to the main storage area on the lower substreet level.

The jury found Kinney liable by its answers to two interrogatories which asked whether the bomb was in the vehicle when Spink obtained it and whether Kinney’s negligence was responsible for the explosion. The jury also found that Tracealarm was contributorially negligent. In light of these findings the court allocated liability 40% to Kinney and 60% to Tracealarm and, accordingly, entered an order and interlocutory judgment to that effect on the issue of liability only. The Appellate Division, First Department, affirmed, one Justice dissenting (84 AD2d 159). The court then granted Kinney’s motion for leave to appeal on a certified question. We reverse and answer the certified question in the negative.

Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants’ conduct. “If the defendant could not reasonably foresee any injury as the result of his act, or if his conduct was reasonable in the light of what he could anticipate, there is no negligence, and no liability” (Prosser, Torts [4th ed], § 43, p 250). Whether hindsight reveals that greater precautions could have been taken to avoid the harm that eventuated is irrelevant if the injury could not reasonably have been foreseen at the moment the defendant engaged in the activity which later proves harmful (see Green v Sibley, Lindsay & Curr Co., 257 NY 190).

A review of the record reveals no evidence indicating that the exercise of reasonable care required defendants to guard their rental vehicles against the possibility of this type of incident. No attempt was made to prove that acts of sabotage to returned vehicles had ever occurred, thus tending to establish that defendants were on notice of the possibility that the subject bomb might be planted (cf. Nallan v Helmsley-Spear, Inc., 50 NY2d 507).

The Appellate Division supported its determination by finding that defendants were on notice that violent sabotage to their vehicles could occur: “In addition to renting vehicles, Kinney * * * often acts as a garageman in New York City. In that alternative role as bailee, it is aware from experience that theft and vandalism regularly occur in its garages and in other garages in the city.” (84 AD2d, at pp 160-161.)

There is no factual evidence in the record to support this determination. Although the majority below cited several parking garage cases regarding the general vandalism problem in parking garages in New York, none of these cases involved vandalism affecting the safety of the vehicle involved which could lead to personal injury during its subsequent use. Thus, even if defendants knew that vandalism might occur, they had no reason to believe it would subject plaintiffs or the public to any risk of injury.

The most foreseeable event that can be gleaned from the record is that defendants’ automobiles could be stolen or parts taken from them. To protect against this possibility the vehicles were housed in the basement of defendants’ business premises and, in addition to daytime security, four employees were kept on duty at night. Since violent sabotage was not foreseeable, it appears that the duty of reasonable care owed plaintiffs was satisfied by assuring that the bailed vehicle was in sound operating condition.

Finally, defendants contend that the trial court erred in refusing to grant their motion to dismiss the breach of warranty claims of plaintiffs Tracealarm and Spink, and in allowing the other plaintiffs to amend their complaints after the jury’s negligence verdict to plead breach of warranty claims. The resettled order makes no mention of this breach of warranty issue. In view of the jury’s finding of negligence, which rendered the warranty claims academic, and the affirmance of the court below, it is clear that this issue is not encompassed within the limited question certified to this court for disposition which deals only with the resettled order.

The order of the Appellate Division should be reversed, with costs, and the complaints dismissed insofar as they assert causes of action for negligence. Certified question answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg and Meyer concur; Judge Gabrielli taking no part.

Order reversed, etc.