author: Jasen, J.

text:
    The People of the State of New York, Appellant, v Matthew Salko, Respondent.
    Argued April 24, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Norman Barclay and Robert M. Pitler of counsel), for appellant.
    I. Defendant’s guilt of conspiracy was proven beyond a reasonable doubt by properly admitted evidence. (People v Luciano, 277 NY 348, 305 US 620; People v Connolly, 253 NY 330; People v Gross, 51 AD2d 191; People v Dioguardi, 8 NY2d 260; People v Marshall, 306 NY 223; People v Vaccaro, 288 NY 170.) II. Salko’s guilt of bribery and bribing a witness was proven beyond a reasonable doubt by properly admitted evidence. (People v Plummer, 36 NY2d 161; People v Hardy, 34 AD2d 843; People v Alvarez, 88 Misc 2d 709.)

      Roger Bennet Adler, Gustave H. Newman and Frieda S. Nisnewitz for respondent.
    I. The People’s failure to competently and independently establish a conspiracy as a condition precedent to its use of conversations between the decedent Lindenhauer and Officer Galvin violated Salko’s Sixth Amendment right of confrontation, constituted blatant hearsay, and deprived Salko of a fair trial. (People v Settles, 46 NY2d 154; Pointer v Texas, 380 US 400; People v Rastelli, 37 NY2d 240; United States v Nixon, 418 US 683; United States v Vaught, 485 F2d 320; United States v Oliva, 497 F2d 130; United States v Hoffa, 349 F2d 20, 385 US 293; United States v Santos, 385 F2d 43, 390 US 954; United States v Morton, 483 F2d 573; United States v Spanos, 462 F2d 1012; Carbo v United States, 314 F2d 718, 377 US 953.) II. The admission into evidence of conversations between Lindenhauer and Officer Galvin violated appellant’s Sixth Amendment right of confrontation and thereby deprived him of a fair, independent trial. (Pointer v Texas, 380 US 400; Douglas v Alabama, 380 US 415; Smith v Illinois, 390 US 129; Dutton v Evans, 400 US 74.) III. The evidence was legally insufficient to support a conviction beyond a reasonable doubt. (People v Osarowski, 38 NY2d 481; People v Weiss, 290 NY 160; People v Emieleta, 238 NY 158; People v May, 9 AD2d 508; People v Gordon, 32 NY2d 62; People v Hines, 168 Misc 453, 258 App Div 466, 284 NY 93; People v Wolff, 24 AD2d 828; United States v Rosenblatt, 554 F2d 36; People v Bonsignore, 21 AD2d 309; People v Cleague, 22 NY2d 363.) IV. The trial court’s failure to permit defense witnesses to testify to declarations of N. Henry Lindenhauer, which were against his penal interest and which exculpated Matthew Salko, was error. (People v Brown, 26 NY2d 88; People v Sullivan, 43 AD2d 55; People v Harding, 37 NY2d 130; People v Maerling, 46 NY2d 289; People v Decina, 2 NY2d 133; Matter of Gavin v New York State Bar Assn., 39 AD2d 626; Matter of Bonanno, 344 F2d 830; United States v Stern, 511 F2d 1364; People v Melski, 10 NY2d 78; Chambers

      v Mississippi, 410 US 284.) V. The court erred by refusing to charge the jury it could find the substantive bribery counts were completed on September 7, 1971, prior to the Salko-Galvin meeting. (People v Moore, 62 AD2d 930; People v Sundholm, 58 AD2d 224; United States v Hoopes, 545 F2d 721; United States v Parker, 566 F2d 1304; United States v Borum, 584 F2d 424; People v Intersimone, 266 App Div 280; People v Sanza, 37 AD2d 632; People v Couvertier, 52 AD2d 772; People v Lord, 53 AD2d 650; People v Davis, 53 AD2d 870.) VI. A new trial is mandated by reason of extraneous factors which improperly influenced the jury’s deliberations and deprived respondent of a fair trial. (United States ex rel. Moore v Fay, 238 F Supp 1005; People v Crimmins, 26 NY2d 319; People v Rivera, 26 NY2d 304; People v Durling, 303 NY 382; People v Cocco, 305 NY 282; People v Culhane, 33 NY2d 90; People v McQuade, 110 NY 284; Gold v United States, 352 US 985; People v Sher, 24 NY2d 454.)
   OPINION OF THE COURT

Jasen, J.

This appeal raises an evidentiary question as to the scope and applicability of the exception to the hearsay rule permitting introduction of the declarations of a person engaged in a conspiracy for the purpose of establishing a coconspirator’s complicity in the criminal agreement as well as in the substantive crimes for which the conspiracy was formed.

On August 26, 1971, Eddie Ware and two codefendants were arraigned on a heroin possession charge stemming from an arrest made the previous day by Officer Joseph Galvin. After bail was set, the case was adjourned until September 7 for a preliminary hearing pending the return of a laboratory analysis of the substance confiscated as an incident to the arrest. At the arraignment, Ware was represented by an attorney by the name of N. Henry Lindenhauer, while his codefendants were represented by an attorney from Legal Aid.

On September 7, the scheduled date of the preliminary hearing, Officer Galvin, after advising the District Attorney that the laboratory analysis report had not been completed, sat down in the courtroom to await the calling of the case. While Galvin sat there, Lindenhauer, whom Galvin had never met before, approached and took a seat immediately to the left of Galvin. He then nudged Galvin and informed him that he represented Eddie Ware and that he knew Ware for a long time and that Ware was a "nice guy”. To this statement Galvin said nothing, but nodded. Lindenhauer then opened a briefcase he had resting on his knees and wrote something in a black book, which Galvin believed was a date book. When his attention was directed by Lindenhauer to the writing, Galvin observed the following statement: "An arrangement can be made if its agreeable to you.” Again Galvin nodded and again Lindenhauer wrote something in the book: the numeral "4” and the printed word "Figures” immediately below the numeral. After nodding his head, Galvin told Lindenhauer that he was going out into the hallway for a cigarette.

Galvin immediately made his way to the clerk’s office and called his office to report what he believed was a bribe offer. His superior instructed him to play along with Lindenhauer and that the Internal Affairs Division and the District Attorney’s office would be notified. Shortly after Galvin returned to the courtroom, Eddie Ware’s case was called and adjourned until September 10 because of the unavailable laboratory analysis report.

Upon exiting the courtroom, Galvin was instructed by Lindenhauer to wait for him by the elevators while he spoke to his client and his law partner, Max Fruchtman. At the conclusion of their conversation with Ware, Lindenhauer and Fruchtman approached Galvin; Lindenhauer introduced Fruchtman and requested that he hold his briefcase and stand out in the hallway while he, Lindenhauer, spoke with Galvin. He then informed Galvin that if he would change his testimony concerning Eddie Ware on September 10, the date to which the case had been adjourned, he would give him $1,500. Galvin responded that he would and Lindenhauer reiterated that Eddie Ware was a "nice guy” and that Mattie Salko had said that he, Galvin, was a "good guy”. Without more, Lindenhauer signaled Fruchtman to return and the trio entered the elevator.

When the elevator doors opened on the first floor, there stood defendant Salko, an attorney whom Galvin had observed around the courthouse but did not know personally. Defendant stepped forward and inquired of Galvin: "Are you Galvin?” When Galvin responded affirmatively, defendant motioned Lindenhauer and Fruchtman to the side and told Galvin: "Listen, you can make an arrangement with these two guys”, and that "[wjhatever figure they give you, times it by two because that’s what they’re getting from their clients.” Galvin replied "yeah” and defendant nodded his head signaling Lindenhauer that Galvin was "okay”. At this juncture, Galvin said goodbye to defendant and departed, observing on his way out defendant approach and engage Lindenhauer and Fruchtman in conversation.

The following day, on September 8, Galvin met with Assistant District Attorney Frank Rogers and revealed the content of his conversations with defendant and Lindenhauer. Following Rogers’ instructions, Galvin reported to the Internal Affairs Division on the morning of September 10 and was equipped with a Kel transmitter and a Minifon recorder. While at the courthouse awaiting the hearing, Lindenhauer warned Galvin that the District Attorney was going to try to make Galvin testify to the events as they actually occurred. Galvin indicated his awareness of this problem and asked Lindenhauer what he wanted him to do. Lindenhauer motioned him over to a window, rested his briefcase on the ledge, and wrote a note stating: "I have the money for you, you’ll get it after you testify.” To this Galvin responded that he would not take the stand unless he had the money first. Attempting to convince Galvin of his trustworthiness, Lindenhauer wrote another note urging that Galvin "[c]heck [him] with Mattie Salko.” Galvin took this occasion to inform Lindenhauer of his prior conversation with defendant, specifically the latter’s advice as to the fee to be charged. Lindenhauer laughed, wrote another note indicating that he had $1,500 for Galvin, and took out a billfold containing hundred dollar bills through which he fanned for the benefit of Galvin.

When Galvin continued to balk over not being paid in advance, Lindenhauer suggested in another note that he "let Matty Salko hold it”. Lindenhauer left to locate defendant, but returned when he could not find him. Frustrated in this attempted compromise, Lindenhauer, after coaching Galvin to "lay it down strong” that the search of Eddie Ware was improper, finally passed the money to Galvin. Immediately after the transfer, Lindenhauer was arrested.

As a result of Lindenhauer’s arrest, the District Attorney sought to question defendant, who after having been given his constitutional rights, agreed to speak with him. Defendant admitted that Lindenhauer had on two occasions asked him to "check out” Galvin to determine whether a deal could be made with him and that he had agreed to do so. He also admitted that he knew Lindenhauer intended to bribe Galvin. He further admitted, that he had arranged for a meeting with Lindenhauer in the courthouse prior to Eddie Ware’s hearing on September 7, but that he arrived late and met Lindenhauer, Fruchtman and Galvin exiting from the elevator. Defendant confirmed that he indicated to Galvin that Lindenhauer and Fruchtman were "good guys” and could be dealt with, as well as his advice that Galvin double the fee. His signal to Lindenhauer that Galvin was a "good guy” and could be dealt with was also admitted by defendant. Finally, although defendant maintained that he had informed Lindenhauer that he did not want a direct part in the deal, he admitted when asked if he expected to receive any money for his activities that he might receive $50 for the "whole thing”.

Defendant and Lindenhauer were indicted and charged in five counts with: conspiracy in the third degree (former Penal Law, § 105.05, now conspiracy in the fifth degree [conspiracy to commit the crimes of bribery and bribing a witness]); conspiracy in the fourth degree (former Penal Law, § 105.00, now conspiracy in the sixth degree [conspiracy to commit the crime of criminal facilitation]); bribery (former Penal Law, § 200.00, now bribery in the second degree); bribing a witness (Penal Law, § 215.00); and criminal facilitation in the second degree (former Penal Law, § 115.00, now criminal facilitation in the fourth degree). The case was severed and Lindenhauer was tried and convicted of bribery and bribing a witness. The conspiracy and criminal facilitation counts were dismissed on the People’s motion prior to trial.

On defendant’s trial, the court, upon motion by defendant, dismissed at the close of defendant’s case those counts of the indictment charging defendant with conspiracy to commit criminal facilitation and with the substantive crime of criminal facilitation. The remaining three counts were submitted to the jury, which returned a verdict of guilty on each count.

On appeal taken by defendant, the Appellate Division reversed, on the law, the judgment of conviction and dismissed the indictment. Leave to appeal to this court was granted to the People by a Justice of the Appellate Division. There should be a reversal.

In reaching its determination, the Appellate Division concluded that the trial court had improperly invoked the coconspirators’ exception to the hearsay rule in permitting the introduction of certain evidence: to wit, Lindenhauer’s unrecorded conversations with Galvin; his recorded conversations with Gavlin; and several of the notes written by Lindenhauer to Galvin. This conclusion was anchored upon the court’s finding that the People had failed to establish a prima facie case of conspiracy by evidence independent of the declarations of Lindenhauer. We disagree.

As a general rule, an admission made by one defendant is not binding upon a codefendant. (People v Payne, 35 NY2d 22, 27; People v Jackson, 18 NY2d 516, 519; Richardson, Evidence [10th ed], § 232.) The rule is otherwise, however, where codefendants are partners in crime such that each defendant can be viewed as acting as an agent for each defendant engaged in the criminal partnership. (Anderson v United States, 417 US 211, 218, n 6; Krulewitch v United States, 336 US 440, 442-443.) United by this "privity of obligation” (see Fisch, New York Evidence [2d ed], § 802), defendants engaged in a conspiracy are bound by one another’s declarations to the same extent that a principal is bound by the declarations of his agent. (Anderson v United States, supra.) Thus, any declaration by a conspirator made during the course of and in furtherance of the conspiracy is admissible against a coconspirator as an exception to the hearsay rule. (Id., at p 218; Lutwak v United States, 344 US 604, 617; People v Rastelli, 37 NY2d 240, 244, cert den 423 US 995; People v Luciano, 277 NY 348, 358; see, generally, Levie, Hearsay and Conspiracy: A Reexamination of the Co-Conspirators’ Exception to the Hearsay Rule, 52 Mich L Rev 1159.)

This exception is not limited to permitting introduction of a conspirator’s declaration to prove that a coconspirator committed the crime of conspiracy, but, rather, may be invoked to support introduction of such declaration to prove a coconspirator’s commission of a substantive crime for which the conspiracy was formed. (Rodriguez v State, 552 SW2d 451, 454 [Tex].) However, whether utilized to sustain introduction of a hearsay declaration of a conspirator to prove a coconspirator’s complicity in the conspiracy or a substantive crime, this evidence may be admitted only upon a showing that a prima facie case of conspiracy has been established. (People v Rastelli, 37 NY2d 240, supra; see, e.g., People v Lipinski, 65 Cal App 3d 566; People v Jackson, 49 Ill App 3d 1018; Weatherington v State, 139 Ga App 795; State v Marshall & Brown-Sidorowicz, 2 Kan App 2d 182; State v Scanlon, — Minn —, 268 NW2d 63 [Minn]; Floyd v Commonwealth, — Va —, 249 SE2d 171 [Va]; see, generally, Necessity and Sufficiency of Independent Evidence of Conspiracy to Allow Admission of Extrajudicial Statements of Coconspirators, Ann., 46 ALR3d 1148.) Of course, the determination whether a prima facie case of conspiracy has been established must be made without recourse to the declarations sought to be introduced. (See Lent v Shear, 160 NY 462, 471; Matter of Sabatini v Kirwan, 42 AD2d 1022, 1023.)

Turning to an analysis of the case before us, we conclude that quite apart from the declarations of Lindenhauer as to defendant’s participation in their criminal partnership, the evidence presented by the People was sufficient to establish a prima facie case of conspiracy permitting introduction of Lindenhauer’s declarations in their entirety as to both the conspiracy count and the substantive crimes of bribery and bribing a witness. A parsing of the proof in this case reveals that the evidence offered by the People fell into two categories: acts and declarations of Lindenhauer and those of defendant. With respect to the former, Lindenhauer’s nonverbal acts including his approach of Galvin, the fact of their meetings and the ultimate transfer of the money by Lindenhauer to Galvin as testified to by Galvin were clearly admissible as to each count of the indictment without the necessity of first establishing the existence of a conspiracy. (See United States v Nuccio, 373 F2d 168, 170, cert den 392 US 930; United States v Costello, 352 F2d 848, 853-854, vacated 390 US 201.) Distinction has long been made between acts and declarations. The hearsay rule interdicts the introduction of an out-of-court statement offered to establish the truth of its assertion; it has, as a general rule, no application to an act which is not intended to serve as an expressive communication. (See Developments in the Law — Criminal Conspiracy, 72 Harv L Rev 920, 988.) Thus, it is not necessary to resort to the coconspirators’ exception to permit introduction of Galvin’s testimony as to Lindenhauer’s acts. (See Anderson v United States, 417 US 211, 219, supra; Lutwak v United States, 344 US 604, 618, supra; United States v Pope, 574 F2d 320, 327, cert den sub nom. James v United States, 436 US 929; State v Tilley, 292 NC 132, 140.)

As for Lindenhauer’s declarations, distinction must also be made between those statements made solely in explanation of his acts and those in which he volunteered additional information including reference to defendant’s participation in the scheme. Wigmore has stated: "The theory of the hearsay rule (§ 1361 supra) is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply. The utterance is then merely not obnoxious to that rule.” (6 Wigmore, Evidence [Chadbourn rev ed], § 1766 [emphasis in original].) Demonstrative of this principle is a statement or utterance which constitutes a verbal part of an act. Such statements are not hearsay if offered not for the truth of their assertions, but, rather, to attach legal effect to the conduct which they accompany. (Id., at § 1772.)

In the instant case, it is readily apparent that the hearsay rule did not preclude introduction of Galvin’s testimony as to Lindenhauer’s statements accompanying his acts. Without these statements Lindenhauer’s acts — his approach of Galvin, their meetings and even the transfer of money by Lindenhauer to Galvin — would remain equivocal and without legal significance. None of Lindenhauer’s statements, except those in which he referred to defendant, were offered for the truth of their assertions. It was only these latter declarations — for example, Lindenhauer’s statement to Galvin that he had checked him out with defendant and his suggestion that defendant hold the money — that were offered for the truth of their assertions: namely, that Lindenhauer had knowledge that defendant was involved in the conspiracy — and which were, therefore, barred by the hearsay rule. Thus, Lindenhauer’s statements to Galvin, with the exception of those which included references to defendant, were admissible without the necessity of demonstrating the existence of a conspiracy. (See United States v Nuccio, 373 F2d 168, 170, supra; United States v Costello, 352 F2d 848, 853-854, supra.)

With regard to the second category of evidence introduced by the People — the acts and declarations of defendant — the testimony of Galvin and Assistant District Attorney Rogers was clearly admissible. There existed no bar precluding Galvin’s testimony as to his observation of defendant’s acts and to the extent that such acts were intended as expressive communications, they, together with defendant’s actual declarations to Galvin and Rogers were properly received as admissions. (See, e.g., People v Colasanti, 35 NY2d 434, 436.)

Having determined that there existed no necessity to demonstrate the existence of a conspiracy to permit introduction of the testimony of Galvin and Rogers with the exception of Galvin’s testimony as-to Lindenhauer’s declarations referring to defendant, we conclude that this independent evidence was sufficient to establish a prima facie case of conspiracy permitting introduction, under the coconspirators’ exception to the hearsay rule, of Lindenhauer’s declarations further evidencing defendant’s participation in the conspiracy. Not to be slighted in the resolution of this question is the People’s burden of proof: to introduce these declarations they need not prove defendant’s participation in the conspiracy beyond a reasonable doubt, as they must to sustain a conviction, but need only establish a prima facie case of conspiracy. This burden the People have certainly met. Galvin’s testimony established the existence of a bribe by Lindenhauer, as well as a degree of participation by defendant as evidenced by defendant’s conduct in "checking out” Galvin for Lindenhauer. Moreover, defendant’s own statements to Rogers confirmed his agreement with Lindenhauer to "check out” Galvin for purposes of a bribe. Unquestionably most debilitating to defendant’s case was his admission to Rogers that he might receive $50 for the "whole thing”. The Appellate Division discounted the impact of this last statement finding it equivocal in that defendant might have meant only that he would receive this money for legal services rendered, if necessary, at Eddie Ware’s arraignment. Suffice it to say that there is no evidence that defendant performed any legal services on behalf of Eddie Ware. While this admission to Rogers might not have been sufficient alone to sustain defendant’s conviction, it was certainly sufficient when viewed in conjunction with the remaining evidence to establish a prima facie case of conspiracy permitting introduction of the true hearsay declarations of Lindenhauer.

Notwithstanding this conclusion, our inquiry is not yet at an end, for defendant contends that even if no violation of the hearsay rule occurred upon introduction of the testimony of Galvin, he was nonetheless denied his rights under the confrontation clause of the Sixth Amendment: namely, to confront and cross-examine Lindenhauer, whose declarations referring to defendant were introduced through Galvin’s testimony. While the hearsay rule and the confrontation clause share a similarity of purpose, the protections they afford have not been viewed as entirely equatable. (Dutton v Evans, 400 US 74, 86; see, generally, Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv L Rev 1378.) However, upon the facts of this case, we find no legitimate reason for reaching contrary conclusions on these issues. (Dutton v Evans, 400 US, at pp 88-89, supra.)

In addition to the issues addressed in this opinion, the court considered the other contentions made by defendant-respondent in his brief in support of affirmance and concluded such further contentions were without merit.

Accordingly, the order appealed from should be reversed, and the case remitted to the Appellate Division, First Department, for a review of the facts.

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

Order reversed and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . Prior to defendant’s trial, Lindenhauer died.

        . Prior to the advent of the Federal Rules of Evidence, it would appear that the majority of the circuit courts of appeals employed a prima facie proof requirement for introduction of a conspirator’s declaration against a coconspirator. (See, e.g., United States v Mayes, 512 F2d 637, cert den 422 US 1008.) However, more recent cases interpreting rule 104, which provides in pertinent part:

        "(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
      "(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”
      have adopted a preponderance of the evidence standard. (See, e.g., United States v Petrozziello, 548 F2d 20.) One reason suggested for this departure from the prima facie proof requirement is that subdivision (a) of rule 104, specifically the last sentence, can arguably be interpreted to permit a court to consider the conspirator’s declaration sought to be introduced in determining whether a sufficient showing of a conspiracy has been made to permit introduction of the declaration. (United States v Enright, 579 F2d 980, 985, n 4.)

      . Certiorari was granted in Costello along with United States v Marchetti (352 F2d 848) solely to review a claimed violation of the defendants’ Fifth Amendment rights. Marchetti was reversed on this ground (390 US 39). The Second Circuit’s decision in Costello would have been similarly reversed but for Costello’s intervening death. The court, therefore, vacated the lower court’s judgment.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    Nanuet National Bank, Appellant, v Eckerson Terrace, Inc., et al., Defendants, and Token Carpentry, Inc., et al., Respondents.
    Argued April 26, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      Samuel Kirschenbaum for appellant.
    The construction of section 22 of the Lien Law, by the Second Department is contrary to the legislative intent.

      Donald Tirschwell for respondents.
    I. Where a lender has knowledge of a material misrepresentation of the net sum available for the improvement in the borrower’s affidavit, subsequently filed mechanics’ liens take precedence over the mortgage. (HNC Realty Co. v Golan Hgts. Developers, 79 Misc 2d 696; Ulster Sav. Bank v Total Communities, 55 AD2d 278.) II, The borrower’s statement was materially false and the lender actually knew of such misstatement. III. Legislative history and background of section 22 of Lien Law. IV. Section 13 of the Lien Law does not grant absolution to lenders who knowingly violate section 22 of the Lien Law. V. Courts below erred in ruling that lender’s affidavit which combined three separate improvements and reflected the total sum available for the three improvements was compliance with the requisites of section 22 of the Lien Law.
   OPINION OF THE COURT

Fuchsberg, J.

Resolving a dichotomy among departments of the Appellate Division on a matter of no small consequence to the construction and banking industries, we hold that under section 22 of the Lien Law a lender that knowingly files a building loan contract that materially misrepresents the net sum available to the borrower for the improvement suffers a subordination of its mortgage to subsequently arising mechanics’ liens.

Appellant Nanuet National Bank is the holder of a building loan mortgage on three parcels of real estate developed for residential use by Eckerson Terrace, Inc., which requested an advance of $36,000 on each plot for a total of $108,000. Having agreed to make the loan, the bank saw to it that Eckerson followed the procedure dictated by section 22 for perfecting a lien on the property in favor of the lender. Complying with those requirements, the borrower executed, and the bank thereafter duly filed, a statement of the consideration for the loan and of the "net sum available to the said borrower for the improvement”. The statement indicated that the consideration and the sum available were each $108,000. It also represented that all expenses connected with the loan were to be "paid by borrower”.

It was in the face of record notice of the bank’s lien that respondents Token Carpentry, Inc., and Leon’s Plumbing & Heating, Inc., performed work and supplied materials for which they qualified as mechanics’ lienors on the property. The Token and Leon liens were duly filed. Perforce, subject to the challenge mounted by the contractors in this case, their liens, at least pro forma, were junior to that of the bank.

The parties’ rights started on their collision course when the borrower defaulted in its obligations to the bank. There ensued this foreclosure action, in which the borrower as well as the mechanics’ lienors were named as defendants. The borrower did not contest the suit, but the contractors contended, in essence, that misstatements in the bank’s filing rendered its interest subordinate rather than superior to their own liens. Specifically, they point out that, since the bank expected to, and indeed did, deduct the expenses of procuring the loan from its gross amount, it must have realized that considerably less than $108,000 would in fact be "the net sum available * * * for the improvement”. On the other hand, the bank’s position, stripped of unnecessary trimmings, is that the misstatements, if any there be, were not made by it, but by the borrower on its own behalf and that section 22 does not require that a lender guarantee the accuracy of statements for the filing of which it was only a conduit.

These contentions having been tested on cross motions for summary judgment, Special Term, citing HNC Realty Co. v Golan Hgts. Developers (79 Misc 2d 696), held that the mortgage of a lender knowingly filing a materially false building loan statement is subordinated to subsequent mechanics’ liens. It then proceeded to deny the motions on the ground that whether the statement was materially false and whether the bank had knowledge thereof were disputed questions of fact. The Appellate Division, Second Department, in unanimously affirming, expressly rejected the contrary holding of the Third Department in Ulster Sav. Bank v Total Communities (55 AD2d 278). For the reasons which follow we uphold the determination before us now.

At the outset, we acknowledge that section 22 provides no explicit answer to the dilemma which confronted the courts below. True, the statute tells us that information as to the consideration for the loan, the related expenses, and the net amount available to the borrower must be filed and that "[i]f not so filed the interest of each party to such contract in the real property affected thereby is subject to [subsequent mechanics’] lien[s]”. But it does not specify whether these consequences are to be visited on a lender that does file when it turns out that the information filed is inaccurate. In the face of legislative silence, we therefore must determine whether the words "so filed” refer not merely to the mechanics of the filing but also to the integrity of what is filed (see Becker v Huss Co., 43 NY2d 527, 541).

The intent of the legislators, if ascertainable, is a particularly important guide to our construction. Turning for that purpose to the legislative history of section 22, we first note that the language at issue had its genesis in the economic malaise that prevailed at the end of the 1920’s and into the early 1930’s. The unusually heavy losses which "materialmen, supplymen and laborers” then suffered motivated the Legislature to take action which was thought likely to eradicate its root causes (see Report of the Joint Legislative Committee Investigating the Lien Law, Legislative Document No. 32 [1930]; see, also, Blanc, Mechanics’ Liens, par 46; cf. P. T. McDermott, Inc. v Lawyers Mtge. Co., 232 NY 336, 341-342 [discussing preamendment purpose of statute]). Section 22 was amended to readily enable a contractor to learn exactly what sum the loan in fact made available to the owner of the real estate for the project (see Hearings of the Joint Legislative Committee, p 1209 [1930]). And subdivision (3) of section 13 of the Lien Law was amended to strengthen the statutory provisions under which such funds were deemed to be held in trust.

Consistent with this overriding legislative objective, we believe the more reasonable interpretation of the statute is that which subjects the bank’s interest to the subordination penalty if it knowingly files a materially false statement. Obviously, since a false filing is a snare for the unwary contractor no matter who is responsible for the misleading information, a balanced analysis must focus on optimizing the likelihood that deception will not occur. The threat of a loss of priority is an effective deterrent to a lender’s indifference to the truthfulness of its client’s statement; in contrast, the borrower has no priority to lose. Without attempting to further define the limits of the bank’s obligation, there should be no doubt that it cannot with impunity file a statement it knows is inaccurate. In short, the bank’s role is a responsible one. It is neither perfunctory nor ministerial.

The rule we announce is also consonant with a realistic awareness of the usual interplay among bank, borrower and materialman in the building loan context. The bank’s position is pivotal; without its financial support, contractors might be unwilling to risk their resources in a project run by a developer of perhaps questionable soundness. Frequently the bank is a working partner in the deal in that it co-ordinates its advances to the developer with the actual progress of the construction; at times, it may even bargain for an option to convert its mortgage into an equity interest. The mechanics’ lienor, on the other hand, is likely to find itself in a dependent stance; it must rely not only on the truth of the filed statement that shows how much of the bank’s capital is behind the job but also on the periodic advances which it promises. Our decision also pays heed to the practical consideration that, in many of the cases in which the question of priority arises, the materialman will have no other recourse because the owner is bankrupt (see, generally, Vitt & Bernstein, Convertible Mortgages: New Financing Tool, Real Estate Review, Spring, 1976, at p 33; Practicing Law Institute, Real Estate Development & Construction Financing Handbook [1968], § 5; Marks, Maloney & Paperno, Mortgages and Mortgage Foreclosure in New York [rev ed, 1975], §§ 141-143).

The vital and material parts which lenders tend to play in such transactions are hardly disproportionate to the obligations we have described. After all, the effort required for compliance is modest. Not only does a lender usually operate from a bargaining position strong enough to demand accurate information from the borrower, but the limited nature of the details required to be filed suggests they would in any event be within the lender’s ken.

Consistent with our view, we, of course, cannot accept the theory advanced in the present case by the bank, that a contrary intent is to be divined from the proviso that lenders not be responsible for how borrowers later apply the funds loaned (see Lien Law, § 13, subd [3]). The duties we have articulated do not anticipate supervision of the construction project.

Finally, we observe that, though no express provision in the statute ineluctably compels the construction we have adopted, it also comports with the Lien Law’s broader mandate that its provisions "be construed liberally to secure [their] beneficial interests and purposes” (Lien Law, § 23; see, also, Jensen, Mechanics’ Lien Law [4th ed], § 84). This adds further support to our conviction that, in harmony with the over-all motivation for the statutory enactments, the answer we have found is the very one the Legislature would have given had it addressed the precise point at issue in this case (Gray, Nature and Sources of Law, pp 172-173, cited with approval as to trusts and conveyances as well in 2 Scott, Trusts, § 164.1, and in 3 Restatement, Property, § 241, Comment c, respectively).

For all these reasons, the question certified must be answered in the affirmative and the order of the Appellate Division affirmed.

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

Order affirmed, with costs. Question certified answered in the affirmative.

      . The relevant portions of section 22 read: "A building loan contract either with or without the sale of land, and any modification thereof, must be in writing and duly acknowledged, and must contain a true statement under oath, verified by the borrower, showing the consideration paid, or to be paid, for the loan described therein, and showing all other expenses, if any, incurred, or to be incurred in connection therewith, and the net sum available to the borrower for the improvement, and, on or before the date of recording the building loan mortgage made pursuant thereto, to be filed in the office of the clerk of the county in which any part of the land is situated * * *. If not so filed the interest of each party to such contract in the real property affected thereby, is subject to the lien and claim of a person who shall thereafter file a notice of lien under this chapter.”

      . The contractors even suggest, though somewhat imprecisely, that part of the loan to the knowledge of the bank was to be applied in satisfaction of a prior lien.

      . Relevant portions of this subdivision read: "(3) Every such building loan mortgage and every mortgage recorded subsequent to the commencement of the improvement and before the expiration of four months after the completion of the improvement shall contain a covenant by the mortgagor that he will receive the advances secured thereby and will hold the right to receive such advances as a trust fund to be applied first for the purpose of paying the cost of improvement, and that he will apply the same first to the payment of the cost of improvement before using any part of the total of the same for any other purpose, provided, however, that if the party executing the building loan contract is not the owner of the fee but is the party to whom such advances are to be made, a building loan contract executed and filed pursuant to section twenty-two of this chapter shall contain the said covenant by such party executing such building loan contract, in place of the covenant by the mortgagor in the building loan mortgage as hereinbefore provided. Nothing in this subdivision shall be considered as imposing upon the lender any obligation to see to the proper application of such advances by the owner”.

        . Although the record does not reveal the borrower’s financial condition, as noted, it has not appeared to defend in this action.


author: Chief Judge Cooke.

text:
    Created Gemstones, Inc., Appellant, v Union Carbide Corporation, Respondent.
    Argued April 25, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      Edward L. Sadowsky, Richard Kaye and Glenn M. Reisman for appellant.
    No ascertainable sum is presently due and owing for goods sold and delivered for which summary judgment may be granted because of the buyer’s right to suspend performance and its remedy of recoupment. (Matter of National Cash Register Co. v Joseph, 299 NY 200; Seibert v

      Dunn, 216 NY 237; Keon v Saxton & Co., 257 NY 412; Merry Realty Co. v Shamokin & Hollis Real Estate Co., 186 App Div 538, 230 NY 316; Peuser v Marsh, 218 NY 505; De Forest Radio, Tel. & Tel. Co. v Triangle Radio Supply Co., 243 NY 283; Offset Paperback Mfrs. v Banner Press, 47 AD2d 733, 39 NY2d 770; Atlas Arm Co. v Smith, 25 AD2d 669; Termini v Arthur Exhibitions, 9 Misc 2d 833; Illinois McGraw Elec. Co. v John J. Walters, Inc., 7 NY2d 874.)

      Robert L. Haig, Bud G. Holman and Randall S. Strange for respondent.
    I. Union Carbide’s extension of $200,000 in credit to Created Gemstones did not constitute a repudiation by Union Carbide of the agreement between the parties. (Neal-Cooper Grain Co. v Texas Gulf Sulphur Co., 508 F2d 283; Tenavision, Inc. v Neuman, 45 NY2d 145; Gittlitz v Lewis, 28 Misc 2d 712, 29 Misc 2d 134, 13 AD2d 688, 829; Smith & Co. v Chapin Mfg. Works, 55 AD2d 1023; McCann v John Hancock Mut. Life Ins. Co., 48 Misc 2d 325; Rabouin v National Labor Relations Bd., 195 F2d 906; De Forest Radio, Tel. & Tel. Co. v Triangle Radio Supply Co., 243 NY 283.) II. An alleged issue of fact as to a purported repudiation of the agreement between the parties does not prevent the award of summary judgment to Union Carbide on its uncontested counterclaims. (Columbia Gas Transmission Corp. v Larry H. Wright, Inc., 443 F Supp 14; Omega Equities Corp. v Levy, 34 AD2d 938, 27 NY2d 820; Sunbeam Corp. v Morris Distr. Co., 55 AD2d 722, 41 NY2d 802; Accord Farmers Co-op. v Levine, 36 AD2d 656; Santoiemmo v Syracuse Paper & Twine Co., 52 AD2d 721, 39 NY2d 709; Galaxy Int. v Magnum-Royal Pub., 54 AD2d 875; Petikas v Atco Mar. Corp., 31 AD2d 907; Illinois McGraw Elec. Co. v John J. Walters, Inc., 7 NY2d 874; Dalminter, Inc. v Dalmine, S. p. A., 29 AD2d 852, 23 NY2d 653.) III. There is no evidence before this court that legally cognizable prejudice will result from enforcement of Union Carbide’s judgment. (Stigwood Organisation v Devon Co., 44 NY2d 922; Pease & Elliman v 926 Park Ave. Corp., 23 AD2d 361, 17 NY2d 890; Sunbeam Corp. v Morris Distr. Co., 55 AD2d 722, 41 NY2d 802; Santoiemmo v Syracuse Paper & Twine Co., 52 AD2d 721, 39 NY2d 709; Accord Farmers Co-op. v Levine, 36 AD2d 656; Omega Equities Corp. v Levy, 34 AD2d 938, 27 NY2d 820.)
   OPINION OF THE COURT

Chief Judge Cooke.

We hold that summary judgment may not be granted on a seller’s counterclaim for goods sold and delivered where there are unresolved factual issues, in the buyer’s action for damages, concerning whether the seller breached the underlying contract of sale.

In March, 1972, the parties entered into a written contract whereby plaintiff, Created Gemstones, was appointed distributor of defendant Union Carbide’s synthetic gems. Plaintiff agreed to buy and defendant undertook to sell a minimum of $400,000 worth of the gems each year for a period of 10 years. The agreement apparently was performed without incident until May 30, 1974, when defendant seller informed plaintiff that the latter’s line of credit would be limited to $200,000, and that any purchases in excess of that amount would be payable in cash. Notwithstanding this notice, defendant continued to extend credit to the buyer, as witnessed by plaintiffs $224,681.73 indebtedness to defendant on July 31, 1974.

When plaintiff placed two orders for gems in August, 1974, however, defendant allegedly refused to ship the goods on credit, advising that all orders should be prepaid. Defendant agrees that it insisted on cash payment for orders exceeding the unilaterally imposed $200,000 credit line. Shortly after the orders were rejected, plaintiff instituted this action for breach of contract and sought damages for resulting losses. In its answer, defendant interposed two counterclaims, one for the sum of $224,681.73 due for previous deliveries of gems, and the other for a small overcredit erroneously granted plaintiff.

When defendant moved for summary judgment in respect to the complaint and the counterclaims, Special Term refused to dismiss the complaint, reasoning that whether the seller improperly imposed a credit limit and thus breached the contract is essentially a factual question. Nonetheless, the court granted summary judgment to defendant on the counterclaims on the ground that plaintiffs liability for the goods was clearly established. A divided Appellate Division upheld this portion of Special Term’s ruling.

On this appeal, plaintiff argues that the same factual issues which precluded a grant of summary judgment on the complaint also dictate that summary judgment be denied as to the counterclaims. More specifically, plaintiff contends that defendant’s right to prevail on the counterclaims is dependent upon whether it breached the contract. It is correct.

It must be emphasized that the established rules relating to the discretionary granting of partial summary judgment are not here at issue (see, generally, 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.17; Siegel, New York Practice, § 285, pp 341-342). Plaintiff does not claim, for instance, that the Appellate Division abused its discretion by allowing immediate entry of judgment on the counterclaims, nor does it contend that the counterclaims and the main claim are so inextricably interwoven as to preclude partial summary judgment (see, e.g., Illinois McGraw Elec. Co. v John J. Walters, Inc., 7 NY2d 874, 876-877; Pease & Elliman v 926 Park Ave. Corp., 23 AD2d 361, affd 17 NY2d 890). Rather, plaintiff disputes its substantive liability on the counterclaims, arguing that liability cannot be established, as a matter of law, until it is determined whether defendant breached the contract of sale. Succinctly, the question is not whether summary judgment may be ordered on a counterclaim where defendant has shown a legal right to recover, but whether defendant has in law established its right to prevail. To resolve the issue, the provisions of the Uniform Commercial Code must be examined.

Principal reliance is placed upon section 2-717 of the Uniform Commercial Code, which allows a buyer to "deduct all or any part of the damages resulting from any breach of the contract from any part of the price still due under the same contract.” This statutory provision may be traced back to section 69 (subd 1, par [a]) of the Uniform Sales Act, which afforded a vendee a right of recoupment for any breach of warranty by the seller (Personal Property Law, § 150, subd 1, par [a], repealed by Uniform Commercial Code, § 10-102 [eff Sept., 1964]; see, also, Comment, The Uniform Commercial Code: Changes in the New York Law of Damages, 31 Fordham L Rev 749, 761-762). As construed by this court, the Sales Act section operated to extinguish a purchaser’s liability for goods sold and delivered, pro tanto, where he incurred damages by virtue of a breach of warranty (see, also, Ohl & Co. v Standard Steel Sections, 179 App Div 637, 641). Thus, in Peuser v Marsh (218 NY 505), it was held that a breach of warranty may be pleaded as a defense not only where the vendor sues for the unpaid purchase price, but also when replevin of the delivered goods is sought (id., at pp 508-509). In so holding, the court observed that the recoupment defense is "in effect a plea that the breach of warranty has operated to extinguish any further liability on account of the purchase price” (id., at p 508).

No reason can be discerned for holding, in the circumstances of this case, that section 2-717 of the Uniform Commercial Code functions in a different manner than the former Sales Act provision. Indeed, the intent underlying enactment of section 2-717 was not to alter the prior rule, but to expand it "so as to cover any breach of contract” (McKinney’s Cons Laws of NY, Book 62 Uniform Commercial Code, § 2-717, New York Annotations). It follows, therefore, that a buyer may defeat or diminish a seller’s substantive action for goods sold and delivered by interposing a valid counterclaim for breach of the underlying sales agreement. This conclusion, it may be noted in passing, is in harmony with the decisions of those courts which have had occasion to address the issue (see, e.g., Teeman v Jurek, — Minn —, —, 251 NW2d 698, 701-702 [Minn]; American Elec. Power Co. v Westinghouse Elec. Corp., 418 F Supp 435, 460).

Application of this principle to the present case dictates that summary judgment as to the counterclaims be denied. Both Special Term and the Appellate Division found that factual issues exist with respect to whether defendant breached the contract of sale. If, after trial, it is determined that defendant did in fact breach, then plaintiff’s liability on the counterclaims would, be extinguished to the extent that it was damaged by the breach. By the same token, should defendant be found not to have breached, it would be entitled to judgment on the counterclaims. Whatever the ultimate result, proper disposition of the counterclaims must await resolution of this factual question. It was therefore error to grant summary judgment.

Inasmuch as appellant failed to comply with an order of this court dated November 2, 1978, which granted a motion to strike certain portions of the record on appeal, costs are not awarded. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, without cysts, and defendant’s motion for summary judgment on its counterclaims denied.

Judges Jasen, Gabrielli, Jones and Wachtler concur with Chief Judge Cooke; Judge Fuchsberg taking no part.

Order, insofar as appealed from, reversed, etc.

      . The damages sought in the complaint far exceeded the amounts demanded in the counterclaims.

      . In reaching this conclusion, Special Term relied upon section 2-609 of the Uniform Commercial Code, and the following language in the contract: "if Distributor’s credit shall, in Union Carbide’s opinion, become impaired, if Union Carbide shall deem itself insecure, or if Distributor shall default in payment hereunder when due, Union Carbide may by written notice to Distributor declare payments for all shipments of products immediately due”. The propriety of this aspect of the ruling is not now before us.

      . The Appellate Division modified by dismissing one of the causes of action in plaintiffs complaint, not relevant to this appeal, and otherwise affirmed.

      . The appeal, taken by leave of this court, is limited to the question whether summary judgment was properly granted as to defendant’s counterclaims (see 45 NY2d 959).

      . If defendant did indeed refuse to perform unless plaintiff complied with a condition which went beyond the contract, then defendant’s conduct would amount to a repudiation (see McKinney’s Cons Laws of NY, Book 6214, Uniform Commercial Code, § 2-610, Official Comment 2; Wester v Casein Co. of Amer., 206 NY 506, 512; National Farmers Organization v Bartlett & Co., Grain, 560 F2d 1350, 1356-1357; 4 Corbin, Contracts, § 973, at p 910). In such a case, plaintiff would have been entitled to suspend its own performance without committing an independent breach of the contract (Uniform Commercial Code, § 2-610, subd [c]; see Anderson, Repudiation of a Contract Under the Uniform Commercial Code, 14 De Paul L Rev 1, 14).


author: Jasen, J. Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Joseph T. Macerola, Jr., Appellant. The People of the State of New York, Respondent, v Michael Harry Letko, Appellant.
    Argued April 26, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., for appellant in the first above-entitled action.
    I. Appellant Maceróla was denied his Sixth Amendment right to assistance of effective, competent counsel at trial because his attorney failed to inform Macerola of the risks involved in the joint representation by that attorney of Macerola and the codefendant Letko who had conflicting interests. (People v Dell, 60 AD2d 18; People v Gomberg, 38 NY2d 307; People v Gonzalez, 30 NY2d 28, 409 US 859; United States v Alberti, 470 F2d 878, 411 US 919; United States v De Berry, 487 F2d 448; People v Rivera, 62 AD2d 767; Salomon v La Vallee, 575 F2d 1051.) II. Defendant Macerola was denied his Sixth Amendment right to assistance of effective, competent counsel because the Trial Judge failed to make inquiry on the record to determine if Maceróla was aware of the potential risks involved in Macerola and Letko being jointly represented by one attorney. (People v Gomberg, 38 NY2d 307; People v Rivera, 62 AD2d 767; People v Kerr, 61 AD2d 762.) III. Improper conduct by Macerola’s counsel, the Assistant District Attorney, and the Trial Judge resulted in Macerola’s being deprived of his constitutional rights to effective assistance of counsel and a fair impartial trial. (People v De Jesus, 42 NY2d 519; People v Wright, 41 NY2d 172; People v Sandoval, 34 NY2d 371; People v Dickman, 42 NY2d 294; People v Carmack, 44 NY2d 706; People v Watson, 55 AD2d 873; People v Alicea, 37 NY2d 601; Berger v United States, 295 US 78.)

      Sol Greenberg, District Attorney (George H. Barber and F. Patrick Jeffers of counsel), for respondent in the first above-entitled action.
    I. Defendant was not denied his right to the effective assistance of counsel. (People v Brabson, 9 NY2d 173; People v Smith, 31 AD2d 847; People v La Bree, 34 NY2d 257; People v Gonzalez, 30 NY2d 28; People v Gomberg, 38 NY2d 307.) II. The trial court did not err by not asking defendant whether he was aware of the potential risks. (People v Gomberg, 38 NY2d 307; People v Allini, 60 AD2d 886; People v

      Gonzalez, 30 NY2d 28.) III. Defendant received a fair trial. (People v Brabson, 9 NY2d 173; People v Smith, 31 AD2d 847; People v La Bree, 34 NY2d 257; People v Robinson, 36 NY2d 224; People v Patterson, 39 NY2d 288; People v Ruberto, 10 NY2d 428; People v Lovello, 1 NY2d 436; People v Ashwal, 39 NY2d 105; People v McKinney, 24 NY2d 180.)

      Thomas J. Neidl for appellant in the second above-entitled action.
    I. The representation of retained counsel for defendant-appellant was so ineffective as to deny him his right to adequate representation, and the trial court’s failure to inquire and ascertain whether each defendant had an awareness of the potential risks of joint representation constituted reversible error. (Glasser v United States, 315 US 60; People v Gonzalez, 30 NY2d 28, 409 US 859; People v Gomberg, 38 NY2d 307; United States v Truglio, 493 F2d 574; United States v Williams, 429 F2d 158, 400 US 947; United States v Lovano, 420 F2d 769, 397 US 1071; Campbell v United States, 352 F2d 359; United States v Wisniewski, 478 F2d 274; People v Crimmins, 36 NY2d 230.) II. The summation given by the Assistant District Attorney was so prejudicial, improper and inflammatory as to deny defendants a fair trial and militates for a reversal of the conviction. (People v Defense, 51 AD2d 924; People v Davis, 51 AD2d 974; People v Arce, 51 AD2d 1043; People v Cruz, 52 AD2d 1; People v Lombard, 4 AD2d 666.)

      Sol Greenberg, District Attorney (George H. Barber and F. Patrick Jeffers of counsel), for respondent in the second above-entitled action.
    I. The representation of defendant Letko and his codefendant Maceróla by the same retained attorney did not deprive defendant of a fair trial and does not constitute reversible error. (People v Gonzalez, 30 NY2d 28, 409 US 859; People v Gomberg, 38 NY2d 307; People v Brabson, 9 NY2d 173; People v Smith, 31 AD2d 847; People v La Bree, 34 NY 257.) II. The summation given by the Assistant District Attorney was not so prejudicial as to deny defendant a fair trial. In any event, defendant’s failure to object precludes review by this court. (People v Kingston, 8 NY2d 384; People v Robinson, 36 NY2d 224; People v Ruberto, 10 NY2d 428; People v Lovello, 1 NY2d 436; People v Ashwal, 39 NY2d 105; People v Castillo, 16 AD2d 235, 12 NY2d 732; People v Marks, 6 NY2d 67; People v Cicchetti, 44 NY2d 803.)
   OPINION OF THE COURT

Jasen, J.

The issue presented for our determination on these appeals is whether defendants were deprived of the effective assistance of counsel by reason of counsel’s joint representation of defendants at trial. While we had thought the applicable legal principles firmly established by prior decisions of this court, the circumstances of this case compel us to elaborate further on the safeguards which must be employed to ensure that a defendant is afforded adequate legal representation.

The pertinent facts are as follows: Defendants Maceróla and Letko were charged in a three-count indictment with the crimes of burglary in the second degree (Penal Law, § 140.25, subd 1, par [b]) and assault in the second degree (Penal Law, § 120.05, subd 1) as a result of events occurring during the evening hours of March 31, 1976, at the Governor’s Motor Inn in the Town of Guilderland. The indictment alleges, in substance, that defendants knowingly and unlawfully entered the Motor Inn with intent to commit the crime of assault, and that defendants did assault the proprietor and his wife, inflicting serious physical injury.

Defendants, represented by an attorney retained by both, were jointly tried. The jury rendered a verdict finding both defendants guilty of the crimes of burglary in the second degree and two counts of assault in the third degree. On appeal, the Appellate Division, finding no evidence in the record upon which defendant Letko’s burglary conviction could be sustained, modified the judgment of conviction by reversing so much thereof as convicted Letko of burglary in the second degree and vacated the sentence imposed thereon, and, as modified, otherwise affirmed the convictions as to both defendants. Defendants were granted leave to appeal to this court from the orders of the Appellate Division.

It is the contention of the defendants that they were deprived of their constitutionally guaranteed right to the effective assistance of counsel by reason of their representation by the same attorney at trial. Due to the failure of the Trial Judge to ascertain on the record whether each defendant was cognizant of the potential risks inherent in the simultaneous representation of codefendants at trial and due to the conflict which existed between the defenses sought to be established by each defendant, we now reverse the orders of the Appellate Division and order a new trial.

It is indisputable that one accused of committing a crime is entitled to the effective assistance of counsel. Such right is guaranteed by both the Federal and State Constitutions, and by State statute (US Const, 6th Arndt; NY Const, art I, § 6; CPL 210.15, subd 2), and courts must remain ever vigilant in their duty to ensure that a defendant receives effective legal representation. As we have recognized, effectuation of this duty may be significantly impaired where one attorney "simultaneously represents the conflicting interests of a number of defendants.” (People v Gomberg, 38 NY2d 307, 312, citing Glasser v United States, 315 US 60, 70.)

While the joint representation of multiple defendants is certainly not per se violative of one’s constitutional right to the effective assistance of counsel (People v Gonzalez, 30 NY2d 28, 34, cert den 409 US 859; Holloway v Arkansas, 435 US 475, 482), we have charged the trial court, in cases where codefendants are represented by a single attorney, with the weighty responsibility of determining whether "the defendant’s decision to proceed with his attorney is an informed decision.” (People v Gomberg, 38 NY2d 307, 313, supra.) The rationale for imposing such duty is obvious. It is all too apparent that the respective interests of each defendant which must be zealously safeguarded are oftentimes at odds, making crucial decisions by defense counsel during the entire criminal proceeding all the more difficult, and, at times, precluding certain defense strategies. For example, an attorney may be less than willing to engage fervently in plea negotiations to obtain a lesser charge for one defendant if to do so would require that defendant to testify against the other defendants, or to call a defendant to testify on his own behalf when his testimony may be detrimental to other defendants whom the attorney represents. (See, generally, Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn L Rev 119, 125-135.)

Defendants, however, often unschooled in the nature of criminal proceedings, may not always sense when a conflict of interest does exist or perceive how such conflict may run counter to the effectiveness of his attorney’s representation. Thus, before the formal commencement of trial, it is the responsibility of the Trial Judge, independent of the attorney’s obligation to inform his clients of any conflicting interests which may hinder his representation, to "ascertain, on the record, whether each defendant [represented by the same attorney] has an awareness of the potential risks involved in that course and has knowingly chosen it.” (People v Gomberg, 38 NY2d, at pp 313-314, supra; see, e.g., Glasser v United States, 315 US 60, 71, supra; United States v Wisniewski, 478 F2d 274, 285; People v Coleman, 42 NY2d 500, 508-509; People v Rivera, 62 AD2d 767, 770; People v Kerr, 61 AD2d 762; People v Allini, 60 AD2d 886, 889-890; ABA Standards Relating to the Function of the Trial Judge, § 3.4.) While a defendant may choose to retain his attorney, such choice may be made only after the defendant is informed of the possible ramifications which joint representation might spawn when conflicting interests arguably exist. Only after sufficient admonition by the trial court of the potential pitfalls of joint representation can it be said that a defendant’s right to the effective assistance of counsel is adequately safeguarded. If such admonition does appear on the record, appellate courts are able to determine whether a defendant’s decision to retain his attorney is indeed an informed choice.

Here, however, the record is devoid of any indication that the Trial Judge, by proper inquiry, took the necessary precautions to ensure that the defendants perceived the potential risks inherent in joint representation. Thus, because of this absence of a proper inquiry on the record, we are unable to ascertain whether the defendants’ decision to proceed with their attorney was knowingly and intelligently made, or whether they merely acquiesced out of ignorance to their joint representation. Although this omission by the Trial Judge was error, there remains for our consideration whether such failure to inquire mandates that defendants’ convictions be vacated and a new trial ordered.

Insofar as joint representation of codefendants is not per se violative of the constitutional guarantee to the effective assistance of counsel (see, e.g., Holloway v Arkansas, 435 US 475, 482, supra), there exists no compelling reason to adopt a rule which would automatically equate the trial court’s failure to undertake proper precautionary measures with an error of constitutional magnitude requiring reversal in every instance. There may always exist those cases in which joint representation of multiple defendants is, without doubt, justified, and the court’s neglect in admonishing codefendants of the potential risks entailed in joint representation would not deprive, without more, a defendant of his right to the effective assistance of counsel. However, where a Trial Judge has failed to make satisfactory inquiry and a defendant can demonstrate that a conflict of interest, or at least the significant possibility thereof, did exist, a new trial must be ordered for "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Glasser v United States, 315 US 60, 76, supra; see People v Gomberg, 38 NY2d 307, 312, supra; United States v Lawriw, 568 F2d 98, 104-105, cert den 435 US 969, reh den 436 US 951; United States ex rel. Hart v Davenport, 478 F2d 203, 209-211.)

In this case, the record reveals that there was indeed a conflict of interest which endangered each defendant’s right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone. Defense counsel found himself in a very awkward position at trial in that by attempting to establish a separate defense for each defendant, he was, by implication, incriminating the other defendant. Thus, to establish Macerola’s defense to the assault charges, it was necessary for counsel to attribute the responsibility for the physical injuries to Letko. Further, to establish Letko’s defense to the burglary charge, defense counsel had to stress that only Maceróla entered the private office at the Motor Inn. As admitted by defense counsel in his summation: "There’s no testimony in the total record of anyone other than Mr. Maceróla — any other defendant, Mr. Letko — at any time was in that office.”

Nor does the fact that defendants were charged with accessorial liability (Penal Law, art 20) ameliorate the inherent dangers when counsel for defendants attempted to represent their conflicting interests, as the dissent would surmise. Quite to the contrary, it becomes even more critical where one defendant is charged with the criminal conduct of another that he be represented by an attorney who, without the constant need to balance delicately competing interests, is free to demonstrate, by extensive examination of his own client or by penetrating cross-examination of other defendants, that the defendant whom he represents did not harbor the culpability required to sustain a conviction on the theory of accessorial liability. Simply put, when defendants are charged with accessorial liability, this only enhances the need to be represented by separate counsel.

Defendants having demonstrated an apparent conflict, it becomes unnecessary for us to speculate, as the dissent would now do, as to the exact prejudice resulting from the defendants’ joint representation. The right of every person accused of committing a crime to the effective assistance of counsel is too fundamental to tolerate such conjecture by appellate courts, especially where, as here, the prejudice which results when dne attorney represents codefendants with conflicting interests may never clearly manifest itself in the record. (Cf. People v Felder, 47 NY2d 287.) As observed by the Supreme Court: "Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.” (Holloway v Arkansas, 435 US 475, 489-490, supra [emphasis added].) Since the trial court failed to ascertain on the record whether each defendant had an awareness of the potential risks of joint representation and since defendants have demonstrated the existence of a conflict of interest, a new trial is required.

Accordingly, the orders of the Appellate Division should be reversed and a new trial ordered.

Gabrielli, J.

(dissenting). The orders of the Appellate Division should be affirmed and the defendants’ convictions should be sustained in every respect. Therefore, I dissent from the holding by the majority.

It is appropriate to set forth a brief description of what occurred when the defendants entered the motel premises owned by the victims Donald and June Hauffe, with the obvious intention of retaliating for whatever occurred to defendant Macerola’s mother, who apparently had become involved in an altercation on the premises a few nights before. Maceróla sought out the owner, Donald Hauffe, and began to abuse him. Hauffe, frightened by his demeanor, then left Maceróla to call the police. Maceróla followed him into the living quarters, picked up Hauffe and threw him into the corner. When the fracas moved into the public area Letko, Macerola’s codefendant and coconspirator, began punching Hauffe and knocked him to the floor. Letko then broke Hauffe’s nose and began the process of gouging out Hauffe’s eyes. When Mrs. Hauffe came to the aid of her husband, Letko, who is six feet four inches tall and weighs 525 pounds, struck at her, causing her to hit her head on an air conditioner and to fall against a table. Both victims sustained serious injuries, resulting from the obviously unprovoked actions of both Maceróla and Letko. The jury was properly instructed by the court that the defendants were accused and charged as having acted in concert.

It is upon this factual background that defendants claim they were deprived of effective assistance of counsel because of the now perceived possible conflict of interest between the defense which each defendant might have offered. In the context of the factual background revealed by the record in this case, it is inconceivable that there could be any conflict of interest between these defendants or, indeed, any inconsistencies in their respective defenses to the charges. In such circumstances, a claim of deprivation of effective assistance of counsel just cannot be sustained, even under the factual claims made by defendants themselves regarding these brutal assaults.

When defendants Maceróla and Letko were arrested and accused of burglary and assault they retained Armand Riccio to represent them both and conduct their defense. An experienced trial lawyer, as conceded by all, Attorney Riccio furnished both defendants with forceful, competent and effective representation throughout the trial. Now the defendants, appealing their criminal convictions, seek to renege on their choice, complaining that they were somehow denied their right to effective assistance of counsel.

This right actually encompasses two conflicting interests of the defendants, making it necessary to carefully balance them. One interest is, of course, the right to be free of any potential conflict of interest that may arise when one lawyer represents two or more defendants; and, secondly, and of equal importance, is the right of every defendant to select counsel of his choice, and this right may well be interfered with if the trial court injects himself too actively into the advisability of joint representation. As we said in People v Gomberg (38 NY2d 307, 312-313): "[a]n important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant and such choice should not be lightly interfered with. (See United States v Sheiner, 410 F2d 337, 342, cert den 396 US 825.) Once counsel is selected, the evolving relationship of attorney and client becomes increasingly close and intimate. In order to give proper professional guidance to his client, the attorney should be made fully cognizant of the relevant facts. (ABA Standards Relating to the Defense Function, §§ 3.1, 3.2; see Whiting v Barney, 30 NY 330, 332-333.) Trial strategy and tactics must be carefully planned and discussed. In order to insure that the attorney and client have the privacy necessary for effective representation, we have in our State, as a matter of public policy, given confidential attorney-client communications a privileged status. (CPLR 4503; Richardson, Evidence [10th ed], § 411, pp 404-405.) It has even been suggested that the freedom of confidential communication between lawyer and client is as valuable as the privilege against self incrimination. (See People v Lynch, 23 NY2d 262, 271.)”

Recognizing the fine balance that must be struck if these two important but conflicting rights are to be respected, we have evolved the necessary rules for joint representation. First, we note that joint representation is not per se violative of constitutional guarantees of effective assistance of counsel. "This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. * * * 'Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack’ Glasser v United States [315 US 60, 92] (dissenting opinion)” (Holloway v Arkansas, 435 US 475, 482-483; accord People v Gomberg, 38 NY2d 307, supra; People v Gonzalez, 30 NY2d 28).

Any inquiry by the court as to whether counsel has perceived a possible conflict of interest and informed his clients of it should necessarily be limited in scope to avoid interference with the attorney-client relationship (People v Gomberg, supra, at pp 313-314). Given the limited nature of the inquiry, I agree with the majority that it is sophomoric to say that the Constitution mandates a reversal without any showing of prejudice whenever the court fails to inquire.

The record in this case does not indicate that either defendant was in any way prejudiced by the joint representation. They merely intimate how their interests might have conflicted if a different theory of defense was used. This was not a case where a defendant testified and made statements shifting the blame to his codefendant as in Gomberg. Nor is it a case where evidence was admissible against only one codefendant but was nevertheless not objected to on behalf of the other, as in Glasser. Counsel was not precluded from cross-examining any defense witnesses because he was privy to their secrets as in Holloway. It is, pure and simple, a case where the defendants agreed totally on their story, so access to another attorney would not have changed matters.

As in Gonzalez, "both defendants had the same interest in discrediting the testimony of the People’s witnesses” (People v Gonzalez, 30 NY2d 28, 33, supra). Their defense was essentially that Maceróla was legitimately at the Governor’s Motor Inn when he was attacked by Donald Hauffe, and that Letko came to his aid, injuring both Mr. and Mrs. Hauffe. Both defendants directed their trial strategy to convincing the jury that this story, and not the People’s, was the true version of what happened. Certainly there was no conflict between their interests where the common goal was so closely shared. Even the District Attorney, who candidly noted on oral argument that his policy is to inform the court when he perceives any indication of conflict, saw none. Mere speculation of what might have been is not enough. Actual, not imagined, conflict of interest must be shown before a defendant may successfully claim that he was denied the right to effective assistance of counsel (People v Gonzalez, 30 NY2d 28, 32, supra).

The only conflict pointed to in the majority opinion is that defense counsel might have reduced Macerola’s responsibility for the assaults in the eyes of the jury if he had emphasized that Letko caused the injuries. Since the defendants were charged with accessorial liability (Penal Law, art 20) the jury could have convicted Maceróla for Letko’s acts, and since Maceróla was portrayed as the instigator of the crimes it is inconceivable that emphasizing his alleged inactive role in the actual assault would have benefited him. Likewise, any claim of prejudice, as advanced by the majority, because defense counsel should have emphasized that Letko was not involved in the burglary evaporated when his conviction for that crime was set aside by the Appellate Division; and also because the jury properly received the case on the theory of accessorial conduct.

It is of no small moment that it be noted that the Appellate Division attached no significance whatsoever to the claims of the defendants and, indeed, both opinions in that court treated the issue with obvious disdainful insignificance, presumably for the reasons expressed in this dissent.

In sum, absolutely no conflict of interest, or even a possibility thereof, has been demonstrated. Neither has there been any showing of any prejudice whatsoever, in any manner or form and no legal or logical reason to reverse the convictions has been shown. I, therefore, vote to affirm the orders of the Appellate Division.

Judges Jones, Wachtler and Fuchsberg concur with Judge Jasen; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

In each case: Order reversed, etc.

      . The trial court charged assault in the third degree as a lesser included offense of assault in the second degree with respect to the attack upon the proprietor of the Motor Inn, Donald Hauffe. The trial court only submitted the crime of assault in the third degree in reference to the assault upon the proprietor’s wife, June Hauffe.

      . Separate counsel, different from counsel retained by defendants at trial, represented the defendants on their appeals to the Appellate Division and this court.

      . Every attorney is under an ethical obligation to disclose fully to each client the possible implications of joint representation, and a lawyer may not act for the client unless the client has expressly consented to that course of representation. (Code of Professional Responsibility, EC 5-16, DR 5-101, subd [A]; DR 5-105, subds [B], [C]; ABA Standards Relating to the Defense Function, § 3.5, subds [a], [b].) Here, there is no evidence that the defense attorney fulfilled this obligation.

      . As we recognized in People v Gomberg (38 NY2d 307, 312, supra), “an important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant”. By requiring a Trial Judge to apprise a defendant of the potential risks involved in joint representation, no violence befalls the right of a defendant to select an attorney of his own choosing. Rather, we are merely ensuring that such choice is intelligently and knowingly made.

      . The factors and considerations which a Trial Judge should take into account when inquiring of a defendant whether he has an awareness of the potential risks involved when an attorney represents two or more defendants in a criminal proceeding were set forth in detail in People v Gomberg (38 NY2d 307, 312-314, supra.)


text:
    The People of the State of New York, Respondent, v Leonel Castillo, Appellant.
    Argued April 23, 1979;
    decided June 12, 1979

      POINTS OF COUNSEL

      Paul J. Weiner for appellant.
    I. As the record clearly shows that defendant’s conviction on the fourth count rested heavily upon his supposed guilt on the three dismissed counts, the fourth count must also be reversed. (Chapman v California, 386 US 18; People v Plummer, 36 NY2d 161; People v Molineux, 168 NY 264; People v Allweiss, 61 AD2d 74; People v Porter, 47 AD2d 908; People v Jackson, 50 AD2d 905; People v Milano, 59 AD2d 852; People v Boone, 22 NY2d 476; United States v Johnson, 337 F2d 180, 383 US 169; De Pugh v United States, 401 F2d 346.) II. The trial court erred in admitting a police officer’s irrelevant and collateral rebuttal testimony that he had seen defendant walking down certain streets three days after his arrest, with the unmistakable but false innuendo that defendant was engaged in criminal activity. (People v Cook, 42 NY2d 204; People v Tassiello, 300 NY 425; People v Posner, 273 NY 184; People v Spillman, 309 NY 295; People v Gonzalez, 24 AD2d 989; People v Penner, 283 App Div 731; People v Daforno, 48 AD2d 801; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Rosenthal, 289 NY 482; People v Perry, 277 NY 460.) III. There was insufficient evidence of specific intent to commit a crime within a dwelling to convict defendant of attempted burglary on August 29. (People v Gilligan, 42 NY2d 969; People v Henderson, 41 NY2d 233; People v Wachowicz, 22 NY2d 369; People v Dwyer, 56 AD2d 658; People v Lightbourne, 34 AD2d 799; People v Samuel, 20 AD2d 919.) IV. The trial court’s charge that a person intends the natural and probable consequences of his acts amounted to constitutional error. (People v Dellipizzi, 61 AD2d 961; People v Patterson, 39 NY2d 288, 432 US 197; United States v Cangiano, 491 F2d 906; United States v Bertolotti, 529 F2d 149; United States v Robinson, 545 F2d 301; United States v Chianatese, 546 F2d 135; United States v Schilleci, 545 F2d 519; United States v Diggs, 527 F2d 509; United States v Durham, 512 F2d 1281, 423 US 871.) V. The trial court improperly allowed the prosecution to call two highly prejudicial rebuttal witnesses in an attempt to rebut defendant on the collateral question as to when he normally started work, and allowed defendant’s employer to testify that he had fired defendant, but then improperly refused to allow any further testimony by defendant on the grounds that the issue was collateral. VI. The improper introduction of defendant’s alleged admissions violated both Miranda v Arizona and Harris v New York. (Miranda v Arizona, 384 US 436; Harris v New York, 401 US 222; People v Gold, 57 AD2d 575.) VIL A Wade hearing should have been held as to the identification testimony of Northan Bing, Jr., and Northan Bing, Sr. VIII. The prosecution failed to prove that the charged crimes of burglary and attempted burglary occurred at "night” under the statutory definition. IX. Defendant never received a fair trial.

      Mario Merola, District Attorney (Charles L. Bach, Jr.', and Alan D. Marrus of counsel), for respondent.
    I. Appellant was
    proven guilty of the crime of attempted burglary in the second degree by overwhelming evidence. (People v Mitteager, 44 NY2d 927; People v Gilligan, 42 NY2d 969; People v Castro, 44 AD2d 808, 37 NY2d 818.) II. The court below properly exercised its discretion in affirming appellant’s conviction of attempted burglary in the second degree without ordering a new trial. (People v Castillo, 62 AD2d 938; People v Munger, 24 NY2d 445; People v Molineux, 168 NY 264; People v Johnson, 51 AD2d 851; People v Peterson, 42 AD2d 937, 35 NY2d 659; United States ex rel. Tarallo v La Vallee, 433 F2d 4, 403 US 919; People v Bornholdt, 33 NY2d 75, 416 US 905; People v D’Argencour, 95 NY 624; People v Moore, 18 AD2d 417, 13 NY2d 1070.) III. No reviewable legal issue exists concerning the jury instructions given by the trial court on the definition of the element of intent. (People v Patterson, 39 NY2d 288, 432 US 197; People v Gurley, 42 NY2d 1086, 43 NY2d 793.) IV. The trial court properly exercised its discretion in allowing the People to call two witnesses to rebut appellant’s defense and in refusing to allow surrebuttal testimony. (People v Duffy, 36 NY2d 857, 423 US 861; People v Sorge, 301 NY 198; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Koerner, 154 NY 355.) V. The trial court properly admitted the postarrest statements of appellant. (People v Berrios, 28 NY2d 361; People v Vidal, 26 NY2d 249; People v Ross, 21 NY2d 258; Bloodgood v Lynch, 293 NY 308.) VI. The trial court properly denied appellant’s motion for a Wade hearing. (People v Smith, 46 AD2d 639, 38 NY2d 882; Manson v Brathwaite, 432 US 98.)
   OPINION OF THE COURT

Fuchsberg, J.

After a jury trial, defendant Leonel Castillo was convicted on charges that grew out of two separate criminal incidents two days apart. The counts relating to the earlier criminal episode — first degree robbery, first degree burglary and first degree sexual abuse — were dismissed by the Appellate Division on the facts and in the interest of justice. The case was then remanded for sentencing on the surviving count, one for attempted burglary that resulted from his participation in the later incident. Castillo now contends that there was no proof of his intention to commit attempted burglary and that that charge must now be dismissed or, alternatively, that in any event the jury’s consideration of his guilt or innocence on that count was so infected (1) by the evidence and charge relating to the now dismissed counts, and (2) by evidence that he was walking around in the vicinity of the crimes on a day subsequent to his arrest that a new trial is required. For the reasons that follow, we agree that retrial and not dismissal is warranted.

The first incident occurred at approximately 4:00 a.m. on August 27, 1975 at the third floor apartment of a Bronx family when their adult daughter was awakened by a male intruder. The man threatened her, took a sum of money, kissed her face, fondled parts of her body and then fled when she screamed. Because the room was unlit, she could describe her assailant to the police only as a Black teenage male and provided no further identifying characteristics. In particular, though the intruder spoke during the incident, she noticed nothing distinctive about his speech.

On August 29, again in the early morning hours, the victim’s father and brother awoke to discover a man walking along a window ledge outside the apartment. According to the father, the man was trying to pull open the bathroom window. The police were summoned but the intruder was gone when they arrived. However, they found defendant, who answered the general description of the perpetrator furnished to them, walking on the street a short distance from the building. He was then taken to the premises, where he was identified by the father and son as the man they had seen on the ledge. The daughter, viewing Castillo through a peephole in the door, at that time also identified him as the man who had assaulted her two nights previously.

Defendant, a Guatemalan native who speaks halting and heavily accented English, was at the time of these crimes 28 years of age. At his trial, after producing several character witnesses, he took the stand in his own defense and denied any involvement in either crime. His version of the events of August 29 was simply that he had been walking on his way to the butcher shop where he was employed when the police came upon him. According to Castillo, his job commenced at 5:00 a.m. and the street on which the apartment house, where the crimes occurred, is located was roughly half way between his home and his place of employment. As to the August 27 incident, Castillo asserted that he had taken a bus to work that morning and did not leave his home until 4:15 a.m.

In reversing the counts pertaining to the August 27 episode, the Appellate Division found that "under all the circumstances, there exists a substantial possibility of misidentification leading inevitably to the creation of a reasonable doubt” (62 AD2d 938, 939). In remanding for resentencing on the remaining count, the court did so to afford the Trial Judge the opportunity to cure the taint that the dismissed counts might have worked on his exercise of sentencing discretion; it otherwise allowed the conviction on that count to stand. We hold that this limited remedy was insufficient. As it turned out, the joinder of the August 29 count with the counts that must now be viewed as based entirely upon a misidentification worked ineradicable prejudice on Castillo’s right to a fair trial on the charge of attempted burglary.

That prejudice was preordained by the very tenor of defendant’s trial, the product of an assiduous effort by the prosecutor to orchestrate the evidence relevant to both incidents into a single theme: that Castillo was engaged in a pattern of criminal activity. Doubtless the Assistant District Attorney’s strenuous opposition to the defendant’s prompt motion for severance was motivated in part by a desire to use to full advantage the undeniable similarities as to time and place in the two criminal episodes, a motivation at least conceptually proper before the weakness of the identification testimony revealed itself (see People v Molineux, 168 NY 264, 305-306). Thus, the trial strategy blurred the separate features of each incident to a point where it cannot be said that the proofs relating to one episode did not supplement deficiencies in the proof on key elements of the other.

Specifically, the earlier incident tended not merely to bolster the witnesses’ identification of Castillo as the man on the ledge and to undermine Castillo’s defense, but, further, provided the prosecution with a compelling argument as to the defendant’s intent on August 29. In fact, the Trial Judge instructed the jury that "On the question of the intent to commit a crime in the dwelling * * * you may infer such intent from the manner of attempted entry and considering the time of night or if you ñnd that this defendant was, in fact, the perpetrator of the acts alleged to have occurred on August 27th * * * then you may infer from such prior acts on these premises an intent to commit the same or similar crimes on August 29th.” (Italics supplied.) Defendant’s counsel took exception and the court twice reformulated the latter half of its instruction, but it only served to emphasize to the jury that the inference could be drawn from defendant’s participation in the earlier incident: "if as I say you find he was the person on both occasions * * * you may infer from the acts on August 27th an intent on August 29th to repeat the same or similar criminal action or conduct.” Despite the phrasing of the intent charge in the alternative, the option to determine that intent from the subsequently dismissed counts could easily have overborne the jury’s consideration of the circumstances of the attempted entry.

In comparison to the bare circumstance of Castillo’s having been seen on the window ledge tugging at the window, the impact of the August 27 proof was utterly damning. Most obvious was its almost irresistible tendency to connect the defendant with a prior course of criminality, curious in its similarity. This evidence, since found to be admissible against Castillo on the dismissed counts only, was calculated to play upon the jury’s natural inclination to view a defendant who has been accused of committing such crimes in the past as either the kind of person likely to have commited the crime charged or as deserving of punishment in any event (see People v Jackson, 39 NY2d 64, 67-68; People v Molineux, 168 NY 264, 293, supra; cf. People v Davis, 44 NY2d 269, 274). Aggravating the prejudice was the inflammatory nature of that prior crime. Further, and most devastating when combined with the Judge’s charge on intent, was the fact that the prior crime placed Castillo inside the apartment.

All this tended to deny the defendant his right to have the jury fairly evaluate only the evidence admissible against him on the attempted burglary count. Left to infer the defendant’s intent to commit a crime within the apartment from the proof relating to that uncompleted event alone, the jury could have found he had engaged only in trespassing or voyeurism or, since only one witness testified that he "pulled on the window” and it is conceded that he never gained access to the apartment, even the lesser included offense of attempted trespass (see People v Henderson, 41 NY2d 233, 236-237). These outcomes were precluded by the Appellate Division’s restriction of its remand to the matter of the sentence.

We now address, though only briefly because of the magnitude of the prejudice which flowed from the point we have already considered, defendant’s assignment of additional error in the prosecutor’s use of testimony that Castillo was observed three days after his arrest "wandering around” at about 4:00 a.m. in the neighborhood where the prior incidents occurred. This proof was employed in summation to strengthen the District Attorney’s contention that Castillo was engaged in a consistent course of criminality. It is apparent that there was nothing so unique in this conduct as to make it probative in some relevant respect of his participation in the criminal acts committed at an earlier time (see People v Spillman, 309 NY 295, 302-303; People v Rosenthal, 289 NY 482, 488). Moreover, the proof of Castillo’s conduct on this occasion did not support the prosecutor’s argument that he might be guilty of other crimes, a suggestion to which even the Trial Judge fell prey; the introduction of this evidence also was error (cf. People v Daforno, 48 AD2d 801, 802; People v Gonzalez, 24 AD2d 989; People v Penner, 283 App Div 731).

While, on the foregoing analysis, we agree that the defendant is entitled to a new trial as to the August 29 charge, we reject his contention that we go further and dismiss on the ground that there was no proof sufficient to establish his intent to commit a crime inside the building.

Of course, since there was no proof of an open expression of intent by the perpetrator of this act, it had to be established by circumstantial evidence. So, in deciding whether the People met their burden, we are required to say whether, considering the facts proved and the inferences that could reasonably be drawn therefrom, a jury could conclude that there was no reasonable doubt that the defendant, if found to be the culprit, intended to burglarize the apartment (see People v Bracey, 41 NY2d 296; La Fave & Scott, Criminal Law, § 59, p 429, n 80). Although credibility is thus for the trier of facts and, in judging whether a prima facie case has been made out, the questions of fact must be assumed to have been decided for the People (People v Benzinger, 36 NY2d 29), the foundation for the findings must be facts and inferences that are so reasonable that they cannot be confused with mere conjecture or suspicion.

That does not mean, however, there may not be more than one inference that it is possible for the jury to adopt. A choice between competing inferences, as a choice between competing facts, is available to the trier of facts so long as the one arrived at is found beyond a reasonable doubt. And, because intent is almost always a matter of indirect proof where the crime is an inchoate one, unless the ability to prove intent is almost universally to be frustrated, a realistic view sensitive to the gradation of offenses incorporated into the law (see Hall, Criminal Attempt — A Study of the Foundations of Criminal Liability, 49 Yale LJ 789, 840) recognizes that findings derived from hard evidence of overt behavior carried forward within a dangerous proximity to the criminal end to be attained are sustainable (People v Bracey, supra, p 300; People v Werblow, 241 NY 55; Wechsler, Jones and Korn, The Treatment of Inchoate Crimes in the Model Penal Code, 61 Col L Rev 571-628).

These principles in mind, there was enough here to make out a case on intent. The presence of the perpetrator, like a cliff-climber, on the third-story ledge of a city apartment complex in the dead of night could hardly lead to any other inference but that a crime was in the offing. The attempt to pull up the apartment window was not intended to provide ventilation for the occupants. Nor was there any proof that Castillo had any prior relation with the occupants that might explain his behavior. Allowing for the fact that the tenants could be expected to be asleep at this predawn hour and that the entrance was to be effected through a bathroom, where no one was then likely to be present, the proof permitted a conclusion that the intruder’s means of access fit a familiar pattern common to burglaries (see People v Bracey, supra, p 302).

For all these reasons, the order of the Appellate Division, insofar as appealed from, should be reversed and a new trial ordered on the fourth count of the indictment.

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

Order, insofar as appealed from, reversed, etc.

      . The People could take no appeal from the Appellate Division’s order of dismissal (see CPL 450.90, subd 2, par [a]; cf. People v Mackell, 40 NY2d 59).

      . At sentencing, the Judge remarked: "The Court in imposing sentence notes not only did the defendant commit the crime of burglary in the first degree, robbery in the first and sexual abuse in the first degree, but two days later returned and attempted to return to the same apartment and was convicted of attempted burglary in the second degree. Two days later, he was found probing around the same area at 4:00 o’clock in the morning and gave the officer who he saw him — who was the original arresting officer who followed him in the circle, I believe extending three quarters of the way around — the unlikely story that he was taking a short-cut on his way to work, although going in circles. I think that this is merely * * * the first time the defendant was caught.” (Italics supplied.)