author: Fuchsberg, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Vincent Galloway, Appellant.
    Argued September 18, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      Allen A. Hans for appellant.
    I. Pervasive prosecutorial misconduct denied defendant his constitutional right to a fair trial. (Berger v United States, 295 US 78; People v Steinhardt, 9 NY2d 267; Di Carlo v United States, 6 F2d 364, 268 US 706; People v Fielding, 158 NY 542; People v Alicea, 37 NY2d 601; People v Bussey, 62 AD2d 200; People v Malkin, 250 NY 185; People v Posner, 273 NY 184; People v Ashwal, 39 NY2d 105.) II. The repeated hearsay bolstering of Ms. Calero’s identification testimony, and the questioning of Officer Feliciano to show that he would not have arrested defendant unless he was satisfied with her identification constitutes reversible error. (People v Trowbridge, 305 NY 471; People v Armstrong, 64 AD2d 535; People v Rodriguez, 62 AD2d 929; People v Lee, 55 AD2d 658; People v Donaldson, 49 AD 2d 1004; People v Malloy, 22 NY2d 559; People v Caserta, 19 NY2d 18.) III. The courts unbalanced supplemental charge in response to the jury’s declaration of hopeless deadlock requires reversal. (People v Faber, 199 NY 256; Allen v United States, 164 US 492; People v Ali, 47 NY2d 920.)

      Mario Merola, District Attorney (Vida M. Alvy and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt of grand larceny in the third degree was proven beyond a reasonable doubt by overwhelming evidence. (People v Cleague, 22 NY2d 363.) II. The conduct of the prosecutor did not deprive appellant of a fair trial. (People v Garcia, 72 AD2d 356, 52 NY2d 716; People v Johnson, 47 NY2d 785, 444 US 851; People v Arce, 42 NY2d 179; People v Shields, 58 AD2d 94, 46 NY2d 764; People v Wood, 12 NY2d 69; People v Andre W., 44 NY2d 179; People v Alicea, 37 NY2d 601; People v Bussey, 62 AD2d 200; People v Santiago, 52 NY2d 865; People v Williams, 46 NY2d 1070.) III. The court below correctly found that the description by other witnesses of the complainant’s pretrial identification of appellant, which was first elicited by the defense, did not deprive appellant of a fair trial. (People v McDowell, 47 NY2d 858; People v Trowbridge, 305 NY 471; People v Mann, 31 NY2d 253; People v Burgess, 66 AD2d 667, 46 NY2d 914; People v Grier, 37 NY2d 847; People v Milburn,
      26 AD2d 420, 19 NY2d 910; People v Maschi, 49 NY2d 784.) IV. The court below properly found that the trial court’s unobjected to supplemental charge to the jury after their declaration of deadlock was proper. (People v Spiegel, 48 NY2d 647; People v Cona, 49 NY2d 26; People v Graham, 48 AD2d 646, 39 NY2d 775; Allen v United States, 164 US 492; People v Pagan, 45 NY2d 725; People v Jackson, 68 AD2d 636; People v Carter, 40 NY2d 933; People v Ali, 65 AD2d 513.)
   OPINION OF THE COURT

Fuchsberg, J.

Painstaking consideration of the record as a whole compels us to agree with the Appellate Division that, while the trial tactics of both the prosecutor and the defense counsel are highly criticizable, the defendant was not deprived of a fair trial.

In so deciding, we realistically recognize that a trial, particularly one which turns, as did the present one, on issues of credibility, under our time-tried adversary system in no small measure depends for the testing of truth and, ultimately, for a just determination on the clash of competing contentions advanced under well-established rules by zealous and independent opposing counsel. Though, nevertheless, excesses and improprieties,. on the side of either party or of both, by distorting the intended balance, often will negate the result, we cannot say this was the case here.

For one thing, not all the alleged misconduct of which each party complains was drastic. For instance, the repeated argumentation over rulings of the Trial Judge in the presence of the jury; mimicking remarks to witnesses; repetition of their answers; attempts to disrupt troubling cross-examination; injecting misstatements in questions and undignified ad hominem attacks by one counsel on the other, even if viewed cumulatively, would not necessarily render the trial “a mockery” (see People v Johnson, 47 NY2d 785, cert den 444 US 857; cf. People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267).

In this connection, we observe that, while goading by defense counsel will not justify a prosecutor’s departure from the obligations of the sensitive role he plays (People v Garcia, 72 AD2d 356, 361, affd 52 NY2d 716; ABA Standards [1971], Prosecution Function, § 5.8, subd [a]), the acrimonious tone of this trial may have been sounded at its outset by defense counsel’s gratuitous reference to the witness Cruz as a “vigilante punk”. Yet, to this and other provocations, the prosecutor had no business assuming what the People’s brief now candidly concedes was an “unprofessional and abrasive manner”, for this not only disregarded what every competent trial lawyer understands, i.e., the function of restraint, but, above all, cast aside the obligations of his office.

However, fortunately, the Trial Judge was a saving grace. Not chary about raising his own restraining hand, he handled most of the episodes promptly and forcefully, aborting prejudice by cutting short the arguments, or, in instances where he thought it appropriate, confining it to chambers. Because of the judicial interpositions, crucially, the conduct of counsel did not keep either side from putting before the jury its full version of the events surrounding the crime and, signally, neither side claims that it did (People v Arce, 42 NY2d 179, 187; cf. People v Ashwal, 39 NY2d 105).

Moreover, some of the bitterest of the catalogue of complaints relate to matters which were not improper per se. Each attorney, for example, sought to attack the credibility of witnesses by exploring the extent to which his opponent had gone to prepare them to testify, the implications of which defense counsel in particular .angrily took to be a personal attack on his integrity. Similarly, the prosecutor’s characterization, in summation, of the defense’s contention that the witness Cruz possessed a gun as a “smokescreen” or “a red herring” and his aspersions on the credibility of the defendant’s and the witness Taylor’s testimony did not exceed the broad bounds of rhetorical comment permissible in closing argument. (Amsterdam, Segal & Miller, Trial Manual for the Defense of Criminal Cases [3d ed], pp 1-298, 1-435.) True, the prosecutor’s earlier use of the words “prime” and the like in the questions by which he tried to probe witnesses’ preparation may have been improper. But it is noteworthy that the trial court severely admonished him and directed that the term not be used again. In any event, defendant, electing to rest on this curative course, did not move for a mistrial.

Perhaps the most serious aberration of which the appellant accuses the prosecutor is the latter’s attempt to raise the “spectre of police perjury” by cross-examination designed to pit answers elicited from the defendant and the witness Taylor against those which had been given by the police during the People’s case (see People v Rodriguez, 62 AD2d 929; People v Bryant, 60 AD2d 810). However, objections to this line of inquiry, made immediately, were sustained and, again, the matter went unpreserved by a motion for mistrial. Moreover, that neither side monopolized the words “truth” and “liar” is apparent from defense counsel’s cross-examination of Cruz, when he not only commented, “I’m trying to have you finally tell the truth”, but also put the unfounded question, “Did people call you a liar in the Army?”

Furthermore, the adversarial system must have played its own ameliorative role. For, in a trial of any appreciative length, here lasting seven days, the overreaching, the obstreperousness and the boisterousness of counsel, particularly when it compelled the Judge to rebuke both counsel in open court, is sure to have been self-defeating. All the more was this so in a case which, in the end, was a simple one: a purse snatching, the capture of one of the perpetrators' by a passerby, the identification of the perpetrator by the victim and the passerby, the lack of any contest that the crime had occurred, the defendant’s contention that he was an innocent passerby, his admission that he had been carrying the bananas which were found at about the place and the time of the crime.

Indeed, it is only because it occurred in this frame of reference that the prosecutor’s resort to a “safe streets” argument in the course of his closing argument falls short of requiring reversal. Remarks which seek to impress jurors with the importance of their function and the bearing of a just decision in a case at hand to the system of justice as a whole, when fairly and neutrally stated, are permissible, if indeed not salutary. But where they are used as a vehicle by which to make references which bear a potential for prejudice, as in this instance, they are to be condemned. Here, briefly pursued and lost in the verbal mélée, though preserved for appeal, the prosecutor’s comment, in the context of the entire summation and, even more, the entire trial, in our considered opinion was harmless error (cf. People v Brosnan, 32 NY2d 254, 262; People v Crimmins, 36 NY2d 230).

In sum, in the circumstances here, the Trial Judge and the Appellate Division were correct in perceiving that reversal was not the only course open to them. As the United States Court of Appeals for the Second Circuit had occasion to remark when confronted with a similar problem only this past month, “ordering a new trial remains among the measures that the Court may apply in a particular case, and we believe that its availability has some deterrent effect. But its invocation is properly shunned when the misconduct has not substantially prejudiced a defendent’s trial. Reversal is an ill-suited remedy for prosecutorial misconduct; it does not affect the prosecutor directly, but rather imposes upon society the cost of retrying an individual who was fairly convicted” (United States v Modica, 663 F2d 1173).

Finally, as to the other contentions raised by appellant, we find these either unpreserved or without merit.

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

Meyer, J.

(dissenting). The United States Supreme Court has held “that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs” (Estes v Texas, 381 US 532, 540). Because a reading of the transcript of defendant’s trial shows that the Assistant District Attorney was determined to obtain a conviction at any cost, including the misstatement of prior testimony on no less than seven occasions while cross-examining defense witnesses or in summation, I cannot accept the majority’s conclusion that defendant’s trial was fair. I would, therefore, reverse and remit for a new trial.

I

Between 9:45 and 10:00 P.M. on January 4,1976, Magda Calero was returning with her five-year-old son to the apartment in which they lived at 751 East 161st Street in New York City. As she crossed the street someone behind her pulled her shoulder bag hard enough to break its straps and cause her to fall on her back. When she fell she looked up and for “a couple of seconds”, as she estimated, saw the face of the person who had done so. That person dropped the bag on the ground, one of the two other, young men with him came back and picked it up, and all three then ran around the building. Ms. Calero ran after them, asking that they keep the money but return her bag and papers, but because her son was hysterical she stopped and returned to him.

As she did so, she heard someone call her - from the side of the building who said to her in Spanish “Señora, lady, come over here. This is one of the men that did it.” Next to some bushes on the side of the building toward the front she found Jose Cruz standing and defendant squatting on the ground behind the bushes. She denied seeing Cruz with a gun or hearing any shots fired, though she agreed that defendant made no effort to get up from behind the bushes or leave. She asked defendant why he took her bag, and then because her son was still crying she took him up to the apartment and came back down. She testified that one of the three men had been carrying bananas, which her son picked up and took upstairs with him, but also that she had heard defendant say at the precinct station that he had been to the store and bought bananas.

While she was taking her son upstairs, the police arrived in response to a “shots fired” radio run. The call that occasioned that run had come from Ms. Mary Taylor, who lived at 731 East 161st Street in an apartment that faced 751 East 161st Street. Ms. Taylor testified that a few minutes after she heard two or three shots she went to her window and saw a Spanish man with a gun standing over a black man on the ground. She also saw a Spanish woman there. She knew the man and woman were Spanish because only Spanish and blacks lived in that neighborhood. She opened her window and yelled that the man with the gun should not shoot the man on the ground, that she was calling the police. She called the police and reported the incident, and then put on her coat and went down to the courtyard between the two buildings, by which time the woman she had seen was gone and the Spanish man did not then have a gun. She was there when the police arrived. There were many policemen. They did not question her, but she told one of them what had happened.

Cruz testified that he saw a lady walking with her son on 161st Street, took a shortcut through the park and while in the middle of the park heard a scream and saw three men running, one of whom was carrying a purse. He hesitated and then pursued them. They had gone around the building and he went after them. One of them fell and crawled into the bushes. He walked up to the man and recognized defendant, whom he knew from school. Defendant asked him to “Let me go”, but he refused to. The lady (Ms. Calero) came up and saw defendant. Cruz “told her this was him and she goes yeah.” He then told her to take her son upstairs. While she was doing so the police arrived with drawn guns and took him into the building. Defendant was still on the ground and Cruz told the police to take him into the building too, which they did. Both were frisked and no gun was found. Cruz told the police defendant was robbing the lady and when Ms. Calero return to the lobby she pointed out defendant as one of the men who took her pocketbook. Cruz first testified that he never lost sight of defendant while running, but on cross-examination admitted that he. did lose sight of all three men for “one split second” as they ran around the corner of the building.

Defendant testified that he had been to a store where he bought some bananas and was returning to his home when he heard shots and saw sparks from a gun, realized someone was shooting at him and jumped into the bushes. Cruz ran down to him, put a gun in his face and said “Don’t move.” Defendant said to Cruz “Let me go man, don’t shoot.” Cruz then said “Thief, you stole a pocketbook” and defendant responded “Man, I didn’t steal anything.” Ms. Calero came up. Cruz said “Here is one of them” and Ms. Calero accused defendant of being a thief. Defendant, who had been shot once before, stayed on the ground because of the gun until the police arrived and took Cruz and defendant into the apartment hallway. Ms. Calero got off the elevator, looked at defendant and said “He is the one.” Defendant denied that he knew anything about a robbery of Ms. Calero or had seen three men running. He testified that he was alone and that when he was taken to the precinct he still had three of the five bananas he bought. He also testified that he had never been arrested and was employed until he began attending community college.

Apparent from the foregoing recital of the evidence is the fact that, as the Trial Judge told the jury after they reported themselves deadlocked: “The only issue here is one of credibility, whether or not you believe the defendant’s witnesses or whether you believe the People’s witnesses.” Ms. Taylor confirmed the presence of a gun in Cruz’ hand as he stood over defendant and the firing of shots. The radio run of “shots fired” to which the police responded confirmed her testimony that she had called to make that report, which in turn tended to confirm defendant’s testimony that Cruz had fired shots at him. The absence of the gun when the police arrived, the testimony that Ms. Calero’s son had picked up bananas, and her several identifications of defendant strongly and adversely affected the defense contentions, but were themselves tainted in part by Cruz’ statement to her before she saw defendant that he was “one of the men who did it” and by her having overheard his statement at the precinct station that he had bought bananas.

II

Against this background is to be measured whether the prosecutor struck only hard blows or whether he struck foul ones (Berger v United States, 295 US 78, 88; see People v Jones, 44 NY2d 76, 80). I can reach no other conclusion than that he struck foul ones for he cross-examined and summed up on the basis of nonexistent evidence, asked improper questions and made improper comments during trial, made improper comments in his summation, and clurthe trial sought to leave the jury with the impression that the Trial Judge was treating the People unfairly in his rulings.

A

USE OF NONEXISTENT EVIDENCE

Cross-examining Ms. Taylor, the prosecutor first got her to state that when she first looked out her window she saw defendant lying on the ground and a man standing over him with a gun. He then asked whether from 50 feet (the distance from her window to where defendant was) she could recognize the man on the ground as Vincent Galloway. Her response was that she could not from the window, that she had gone down to the courtyard. To the prosecutor’s next question: “Yet you told the jury, did you not, that you recognized the man as Vincent Galloway,” she answered “That is right” and he followed up with “So what you just told the jury before was not true?” Yet neither on direct or cross-examination had Ms. Taylor told the jury that she recognized Galloway from the window. The Trial Judge at that point called a robing room conference during which he told the prosecutor that he did not intend “to allow his courtroom to be used to distort testimony” and that he “must be intellectually honest about it.” When the Judge and the attorneys returned to the courtroom, cross-examination resumed without any answer to the offending question but also without any comment by the court.

Thereafter, during cross-examination of defendant, he testified that after he saw sparks and heard shots he reacted and jumped into the bushes. The prosecutor then asked defendant whether he saw the sparks and heard the shots while standing or while in the bushes. The Trial Judge intervened and broke the question into two parts, obtaining answers that defendant was walking when he heard and saw the shots and did not hear them when in the bushes. The prosecutor’s next question was: “Was it confusing before when I asked you the same question and you gave me a different answer?” (Emphasis supplied.) There had been no different answer. Objection to the question was sustained and it was ordered stricken, but nothing was said that would have alerted the jury to the reason it was stricken.

One subject of cross-examination concerned who the officer was that told defendant to get up from the ground and go into the hallway and what was said at the time. Two officers, Feliciano and Valle, testified at the trial but there were a number of others present at the 161st Street scene on January 4, 1976. Defendant testified that he was helped up by an officer and that it was not Officer Feliciano who did so. The prosecutor then asked “Was it the other officer?”, to which defendant responded “It was so many of them, I really don’t know who it was.” Defendant was then asked about events in the hallway and replied that “they * * * put me up against the wall but I tell you for a fact it wasn’t Feliciano or Valle.” Though the first answer concerned who helped him up and the second who put him up against the wall, there followed a series of questions which established that defendant did not know whether the officer who helped him up was one of the two officers who testified and that to the best of defendant’s recollection it was not either Feliciano or Valle who took him into the hallway. Though there was no inconsistency in the answers given, the prosecutor’s next question was “It wasn’t, so you are not being entirely truthful or correct when you told these jurors.” Objection to that question was overruled.

During the same exchange with respect to who helped defendant up, the Assistant District Attorney asked “Mr. Galloway isn’t it a fact the officer at gunpoint ordered you into the hallway? He said, ‘Mr, Galloway’ — without knowing your name — ‘Get up, get in there’ ?” The clear implication of the question was that though Galloway had not given the police his name it was otherwise known to the police, an implication which rested on no evidence whatsoever, but objection to the question was overruled.

Officer Feliciano testified that at the station house defendant told him he had been to one of the stores to buy something and that Ms. Calero had identified defendant as being one of those who grabbed her pocketbook but the officer never testified that defendant himself stated that he was other than alone. That did not stop the prosecutor from asking defendant on cross-examination “Do you recall Officer Feliciano testifying * * * that you did state that you went to a store to buy something. He couldn’t recall what, and, you were with one or two of your friends. Did you hear him testify as to that?” (Italics supplied.) Objection was overruled. Defendant reiterated that he was alone. That misstatement of the testimony was implicitly reiterated when the prosecutor in summation stated with respect to Feliciano’s testimony: “He didn’t recall what the guy said he went to buy but he did recall he went with a friend * * * I guess the defendant forgot that testimony because when he got on the stand, was alone all the time.” He followed that with the comment on defendant’s testimony: “Said he went to the store to buy some bananas. Tells us he went alone. Already he is telling us by saying he went alone that the officer is wrong and that the lady is wrong. [Defendant’s attorney] elevated that wrong to say that the officer wasn’t telling the truth and the lady wasn’t telling the truth” (italics supplied). However, defendant’s attorney’s summation included no statement that the officer hadn’t told the truth in this respect and could not have since the officer never testified that defendant said he was not alone.

Ms. Taylor testified that she was down in the courtyard when the police arrived and that less than five minutes passed from the time she left her window until she went downstairs. The prosecutor, cross-examining defendant as to where Ms. Taylor was when he was taken into the hallway, asked “Didn’t you hear Miss Taylor say it took her about five minutes before she went down, after the police arrived, didn’t you hear her tell you that?” Objection that that was never Ms. Taylor’s testimony was implicitly overruled by the court’s statement “I believe it was.” After defendant reiterated that Taylor had indeed been there when the police arrived, the prosecutor followed up with “Now if Miss Taylor did say she wasn’t down there, who would be lying, you or Miss Taylor.” Following that up in summation, the prosecutor argued with respect to Ms. Taylor that “She goes over to the window, opens the window three to five minutes later. The police were already there” (italics supplied).

Finally, though Ms. Calero testified on direct examination that when she took her son upstairs “I told my brother I had been mugged” and that she “came right back downstairs. When I got downstairs the cops were there” and on cross-examination that “I went downstairs immediately. I did not have a chance to call the police” (italics supplied), the prosecutor stated in summation “What is so abnormal about the lady taking the crying kid up stairs and come down, call the cops. She testified to it. It is in the testimony. Defense overlooked it. It is there” (italics supplied).

Concerning the impropriety of such gross distortions of the testimony citation of authority is not needed, but is not lacking (e.g., People v Ashwal, 39 NY2d 105, 109-110, and cases cited). Moreover, the instances recounted are sufficient in number strongly to suggest that they were not unintentional and by themselves, in any event, constitute a sufficient basis for reversal of defendant’s conviction. There are, however, additional reasons for doing so.

B

IMPROPER QUESTIONS AND COMMENTS

The majority opinion refers to the prosecutor’s use of the word “prime” and similar words suggesting that defense witnesses were telling a concocted story, and says that they “may have been improper”, but notes that the Trial Judge directed that the term not be used again. What it fails to note is that despite the strong language in which the direction was phrased (“Don’t you dare use that word again”), the prosecutor did in fact use it again, as he also continued, notwithstanding directions not to do so, to make gratuitous side remarks as well as to badger, and characterize the testimony of, defense witnesses in his unrelenting effort, no matter what instructions he received from the court, to convey to the jury his view that what the defense was presenting was a tissue of lies.

It would unduly prolong this opinion to record all of the improper questions and comments. They ranged from the statement, in response to defendant’s attorney’s objection to a question because the same question had just been asked and answered: “Are we trying to get the truth here? Defendant is trying to suppress — ”, through statements that defendant’s attorney objected in order to “prep”, “key” or “guide” witnesses in their testimony. Similarly, he responded to the court’s ruling that Ms. Taylor had already answered a question with “I know that. I get multiple different answers from her”; to the court’s statement that Ms. Taylor was under oath by commenting: “Many people lie under oath. I am asking if she is here to tell the truth”; and when defendant responded to one of his questions about when defendant heard and saw the shots with: “I don’t know, what you trying to do man”, by himself responding “Trying to get the truth out of you, Mister.” He prefaced one question with “Answer my question. I don’t need your tailored testimony” and several times inquired “You mean the police are lying”, “Are you saying to this jury that the police officers also were lying?”, “Everybody is lying but you? * * * who would be lying, you or Miss Taylor?”

Not only did the prosecutor denigrate defense counsel and defense witnesses, but also he sought to impress upon the jury that he was being improperly restricted in presenting his case by the Judge. The record is replete with remarks such as “Give the People a fair shake. The defense gets.all the repetition”, “Would you let me conduct the direct, Judge”, “You are forbidding me to rehabilitate my witness”, “You are precluding me from testing the powers of observation, what she could see?”, “I am held strictly to the rules”, “I am now back to the strict rules I am being held to”, “You are forbidding me to make a proper summation?”

Small wonder, then, that when defendant’s counsel objected to one of the prosecutor’s side remarks the Trial Judge responded: “You tell me how to close his mouth.” Pertinent concerning the prosecutor’s many improprieties in this respect is the statement made some 60 years ago by the Appellate Division, Fourth Department, in People v Teiper (186 App Div 830, 839) that: “The learned judge who presided at this trial endeavored to give the defendant such a [just and fair] trial, but we think that the conduct of the district attorney was such as to thwart that purpose. He was admonished time and time again not to comment upon statements of witnesses and to refrain from making improper remarks, but he did not heed the admonitions of the court. The fact that he may have believed, and even had good ground for his belief, that the defendant was guilty did not justify him in constantly and improperly injecting his belief into the case and in making improper remarks during the progress of the trial so as to prejudice the jury against the defendant and improperly influence their verdict.”

C

IMPROPER SUMMATION

Examples of the prosecutor’s use in summation of a false version of the trial testimony have already been given and will not be repeated. There were, however, a number of additional improprieties.

Thus, the peroration of the summation was: “You, each of you, represent tens of thousands of people in the community. You are not law enforcement but you are an important part of the judicial system. What you do in this case cannot be undone. As the defendant cries for justice, so does the victim and the People. There must be justice. These streets must be made safe for our women in the streets” (italics supplied).

The attack upon defendant’s attorney continued during summation and was accompanied by gratuitous and improper remarks. When the prosecutor accused him of trying “to hide the facts”, defendant’s attorney’s objection that the defense had not tried to hide the facts was overruled, to the accompaniment of the prosecutor’s “Oh really?” Objection to the prosecutor’s reference to the “vivid imagination of the defense counsel who purposely distorts in order to provide a defense” was also overruled, and then followed (ironically in view of his own macerations of the truth) by the prosecutor’s comment that “Half of that summation was not the testimony. It was surmise, conjecture, created by the defense” (italics supplied). When defendant’s attorney objected that there was no testimony that defendant had said to Cruz “Hey man, this is Vinny Galloway”, the court’s response was “No, not in that manner”, but the prosecutor thought it proper to add “I am merely characterizing the inventions by the defense.” Objection to that remark was not ruled on. When defendant’s attorney asked in response to one such attack that the court instruct the jury as to the duty of an attorney to represent his client and see that only legal evidence goes in, the court’s affirmative response was followed by the prosecutor’s comment: “Duty to see that the truth is heard too.” The court’s effort to clarify the matter by stating “Only legal evidence is permitted” was denigrated by the prosecutor’s retort: “And the truth is presented. Sometimes they conflict. It is not surprising why we get this kind of distortion arguments in the summation of defense.” Defense objection to that wholly improper statement by the prosecutor was overruled. Similarly, when defendant’s attorney in objecting to yet another distortion of the testimony by the prosecutor, who had said that defendant testified “no screams”, stated that “Galloway said, T never heard any screams’ ”, and the Trial Judge agreed that that was Galloway’s testimony, the prosecutor’s response was “Jesus Christ, Judge, this is summation. He wants to rehabilitate his witness in my summation. I never heard of that.” Nor are the foregoing all of the available examples of prosecutor’s incessant references to “distortion”, “creation”, “invention” by the defense, to say nothing of improper characterizations such as “red herring” and “smoke screen”.

Pertinent, once again, is language from an 80-year-old precedent, this time of ours, in People v Fielding (158 NY 542, 547) in reversing the defendant’s conviction because of the District Attorney’s improper summation: “Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.” .

Lest it be thought that such is no longer the concept of a prosecutor’s function, I note the more recent decisions in People v Arce (42 NY2d 179); People v Ashwal, (supra); People v Alicea (37 NY2d 601); People v Lombardi (20 NY2d 266); People v Steinhardt (9 NY2d 267; see, also, ABA Standards, Prosecution Function [1980], §§ 3-5.6, 3-5.7, 3-5.8), which make clear our steadfast adherence to it until the present case.

Ill

The use of such tactics by a prosecutor sullies not only the trial process but the appellate process as well. This is because the real issue on appeal becomes not was defendant fairly tried but a balancing of whether his guilt is sufficiently clear that the cost of retrial and risk of prejudice to the People’s case from possible unavailability at retrial of prosecution witnesses should not be run. Stated another way, as the Second Circuit in its recent decision in United States v Modica (663 F2d 1173, 1181) noted, there is “a denial of due process when the improper statements [conduct] cause substantial prejudice to the defendant” but often “the existence of substantial prejudice turns upon the strength of the government’s case: if proof of guilt is strong, then the prejudicial effect of the comments tends to be deemed insubstantial; if proof of guilt is weak, then improper statements are more likely to result in reversal”. Not only does such balancing involve appellate courts in what is essentially a function of the jury rather than an appellate court (People v Mleczko, 298 NY 153, 163), but also it involves a painstaking and searching parsing of the trial transcript of a kind not normally engaged in. One is left with the uneasy feeling that not all trials found not to have been conducted to defendant’s substantial prejudice have in fact been fairly tried. The constitutional mandate then tends to become inverted, a defendant convicted at an essentially unfair trial being required to make a showing of prejudice which will be, at best, difficult to establish.

The majority opinion illustrates my point. To sustain the conviction it seizes upon the giving of curative instructions and the absence of a motion for mistrial, improprieties by defendant’s counsel, and the fact that defendant did not contest that the crime had occurred, but pays no attention to the facts on defendant’s side of the equation recited in the last paragraph of part I above. The proof of defendant’s guilt was far from strong.

That defendant did not contest occurrence of the crime is simply irrelevant, for his defense was not that there was no robbery, but that he had had nothing to do with it. The suggestion that defendant’s attorney did not move for a mistrial is only partly correct for he did do so with respect to the prosecutor’s summation! But the absence of a motion for mistrial and the fact that most, though not every, instance referred to above was objected to by defendant’s attorney are both also irrelevant. As noted at the beginning of this opinion, there is no more fundamental constitutional right than the right to a fair trial. When a trial is as infected by the manufacture of nonexistent facts and other improprieties as was this trial, “no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right” (People v McLucas, 15 NY2d 167, 172; see People v Thomas, 50 NY2d 467, 471-472; People v Michael, 48 NY2d 1, 6).

Nor can the presence of curative instructions and of defense improprieties save the conviction. As to the first, it is sufficient to note that in not all cases were such instructions given (indeed in some cases the Trial Judge overruled objections that should have been sustained and a curative instruction given) and that even when such instructions were given the prosecutor so often countered them with gratuitious and improper remarks as to bring forth from the Trial Judge the plaint, already noted: “You tell me how to close his mouth.” As to the second, the reference in defendant’s attorney’s opening to Cruz as a “vigilante punk” was clearly wrong as were some of defendant’s attorney’s remarks during trial. But to equate the relatively few instances that can be found of such conduct with the wholesale improprieties of the prosecutor is to ignore both the realities of the record and the extreme difficulty faced by a defense attorney confronted with such a prosecutorial onslaught. Though goading by the prosecutor no more excuses defense counsel’s improprieties than does the reverse (as the majority notes, pp 398-399), when the prosecutor goes as far in ignoring the Judge’s directions and complaining about his ruling as did this one, we have not hesitated in the past to reverse notwithstanding the defense’s tactics (People v Alicea, 37 NY2d, 601, 605, supra; People v Steinhardt, 9 NY2d, 267, 271, supra).

In sum, if this trial was not a “mockery”, as the majority now holds, there is little probability that prosecutorial misconduct will ever result in reversal.

IV

Reluctance to establish another “exclusionary rule” which may be seen as punishing official misconduct by letting guilty persons go free has, as the Second Circuit noted in Módica (supra),^the unfortunate effect, by approving the conviction thus obtained, of encouraging or at least not deterring such misconduct. As suggested by that court and by Justice Bloom, dissenting in this case, a sanction which can be invoked against such misconduct even though there be no reversal is clearly needed.

Though I, like Justice Bloom, cannot set policy for the court in a dissent, I would be remiss were I not to point out that the same trial assistant involved in this January, 1978 trial was the cause of reversal for “outrageous and abusive conduct of the prosecuting assistant” in People v Bussey (62 AD2d 200, 205 [decided April 13, 1978]) and was the trial assistant whose conduct, though not causing reversal, was branded “improper and tasteless” by the Appellate Division in People v Wheeler (80 AD2d 785), tried in September, 1978. The District Attorney has a continuing obligation with respect to his trial assistants, not only to instruct them clearly and firmly against using such tactics, but also through contact with the Trial Judges and through occasional observation (either himself or by the trial division chief) to assure that his instructions are being adhered to. Trial Judges experiencing the difficulty that the Trial Judge did in this case should not hesitate to acquaint the District Attorney’s office with the problem, and trial and appellate courts should not be hesitant in cases of repeated infraction after appropriate warning to recommend disciplinary action. To be remembered in that connection is that the vice of such prosecutorial misconduct is not only that an innocent person may be unfairly convicted but that it also may, under governing double jeopardy law, result in a guilty person going scot-free (see People v Kurtz, 51 NY2d 380, 387; Ann., 98 ALR3d 997; cf. People v Isaacson, 44 NY2d 511, 525).

For the foregoing reason, my vote is to reverse and remit for a new trial.

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

Order affirmed.

       Having more than sampled the mutuality of provocation and reprisal which characterized the conduct of counsel, it would be little more than a statistical exercise to touch on every occasion when either one manifested a lack of discipline. Nevertheless, since the dissent has offered up a list of the Assistant District Attorney’s excesses, it may not be amiss to note that any survey of the official transcript quickly yields up an at least equally long account of defense counsel’s repeated abuses. Withal, as we otherwise have indicated, all the evidence was fully explored, the Judge’s charge was received with a contrasting lack of controversy and the jury manifestly was unhurried in its deliberations.

      . Though such a charge is generally objectionable “because it prevents the jury from construing the evidence and determining what facts it does establish” (Dolan v Delaware & Hudson Canal Co., 71 NY 285, 290; see 1 NY PJI2d 5), it was not objected to on that ground and, in any event, on the record and in the context in which spoken would not be ground for reversal (Dolan, supra).

      . The weakest links in his defense were his inability to explain how Ms. Calero’s son obtained bananas and the absence of any gun when the police arrived. Yet the evidence did not foreclose a jury finding that the bananas were dropped elsewhere than at the robbery scene and it was not beyond the realm of possibility that, as defendant's attorney sought to suggest, Ms. Calero, to protect Cruz, who had come to her aid, from difficulty over his possession of a gun, had taken the gun with her when she went upstairs. Indeed, since Ms. Calero lost sight of the three robbers as they went around the corner of the building and did not see Cruz until he called to her that he had “one of them”, it is not beyond possibility that Cruz was one of the three robbers but was quick thinking enough to accuse defendant who, as he claimed, was simply walking home through the courtyard. Ms. Calero’s testimony that she heard no shots is inconsistent with that thesis, but Ms. Taylor’s adamant insistence against searching cross-examination that she heard shots and the presence of the police in answer to a “shots fired” run suggest that Ms. Calero’s testimony may not have been accurate. The point is not that these suggestions would be found by a jury unaffected by the prosecutor’s improper conduct but that the evidence presented the jury with a very real enigma. Indeed, the jury reported itself unable to agree and was given an “Allen” charge before it finally reached a verdict.

      . I do not pause to consider whether by so doing he gave “ ‘standing to the statement [conduct] of the District Attorney as legitimate argument [tactics] ’ ” (People v Ashwal, 39 NY2d 105, 111, supra), for even if not, reversal would be required on this record.

      . In light of footnote 2 to the majority opinion I note that however the conduct of defendant’s attorney be characterized, it did not include seven material misstatements of the evidence. To encourage that kind of conduct by affirming is, in my view, egregious error.


source: Caselaw Access Project

author: Jones, J. Chief Judge Cooke

license: Public Domain

text:
    In the Matter of the Adoption of Jessica XX. Jonathan YY, Appellant; Lorraine WW et al., Respondents; Robert Abrams, as Attorney-General, Intervenor-Respondent.
    Argued October 20, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      David J. Freeman for appellant.
    I. The order of adoption should be vacated, opened, and set aside by reason of the fact that respondents fraudulently concealed information from the Family Court. (Nasba Corp. v Harfred Realty Corp., 287 NY 290; Farker v Brown, 10 Misc 161; Rothmiller v Stein, 143 NY 581; United States v Throckmorton, 98 US 61; Tamimi v Tamimi, 38 AD2d 197; Matter of Anonymous, 29 Misc 2d 580; Matter of Anonymous, 89 Misc 2d 132; Matter of Grand Jury Subpoenas [Morgenthan], 58 AD2d 1.) II. The order of adoption should be vacated, opened and set aside by reason of the fact that the Judge of the Family Court acted arbitrarily, unreasonably and capriciously in granting the order of adoption. (Stanley v Illinois, 405 US 645; Doe v Department of Social Servs. of City of Poughkeepsie, 71 Misc 2d 666; Matter of Anonymous, 78 Misc 2d 1037; Matter of Anonymous, 92 Misc 2d 25; Matter of Pierce v Yerkovich, 80 Misc 2d 613; Matter of “Benjamin”, 93 Misc 2d 1084; Matter of Donna P., 80 Misc 2d 129; Caban v Mohammed, 441 US 380; Matter of Mitchell, 70 AD2d 367; Matter of Victory, 78 AD2d 843.) III. Sections 111 and 111-a of the Domestic Relations Law of the State of New York are unconstitutional as they have resulted in the denial to appellant of his constitutional rights of due process and equal protection under the laws pursuant to the Fourteenth Amendment of the Constitution of the United States. (Stanley v Illinois, 405 US 645; Armstrong v Manzo, 380 US 545; Goldberg v Kelly, 397 US 254; Matter of Malpica-Orsini, 36 NY2d 568; Matter of “Benjamin”, 93 Misc 2d 1084; Caban v Mohammed, 441 US 380; Armstrong v Manzo, 380 US 545; Milliken v Meyer, 311 US 457; Mullane v Central Hanover Trust Co., 339 US 306; Matter of Corey L v Martin L, 45 NY2d 383.) IV. The Caban v Mohammed holding as well as all aftermath decisions and legislation must be applied in determining this appeal. (Caban v Mohammed, 441 US 380; Matter of Mitchell, 70 AD2d 367; Matter of Malpica-Orsini, 36 NY2d 586; Doolan v Board of Coop. Educational Servs., 2d Supervisory Dist. of Suffolk County, 48 NY2d 341; Matter of Female F. D., 105 Misc 2d 866; Matter of Robin U., 106 Misc 2d 828; Childs v Childs, 69 AD2d 406; People ex rel. William R. v New York State Family Ct., Bronx County,
      99 Misc 2d 427. )'V. Petitioner-appellant exhibited sufficient good cause so as to entitle him an inspection of the sealed records, order or any index thereof in the subject adoption proceedings. (Matter of Lord v Joor, 28 AD2d 1202; Matter of Lord, 28 AD2d 1203.) VI. The statement of facts set forth in the decision of the court below are incomplete and misleading.

      Jay L. Samoff for Lorraine Robertson and another, respondents.
    I. Section 11-a of the Domestic Relations Law is constitutional. (Stanley v Illinois, 405 US 645; Doe v Department of Social Servs. of City of Poughkeepsie, 71 Misc 2d 666; McGowan v Maryland, 366 US 420; Matter of Malpica-Orsini, 36 NY2d 568; Caban v Mohammed, 441 US 380; Thomann v City of Rochester, 256 NY 165; Chevron Oil Co. v Huson, 404 US 97; Matter of David A. C., 47 NY2d 880; Matter of Victory, 78 AD2d 843; Matter of Mitchell, 70 AD2d 367.) II. An adoption court may not depart from section 111-a of the Domestic Relations Law. (Matter of Santacose, 271 App Div 11; Matter of Pyung B., 83 Misc 2d 794; Matter of Malpica-Orsini, 36 NY2d 568; Doe v Department of Social Servs. of City of Poughkeepsie, 71 Misc 2d 666; Matter of Anonymous, 78 Misc 2d 1037; Matter of Anonymous, 92 Misc 2d 25; Matter of “Benjamin”, 93 Misc 2d 1084; Matter of Mitchell, 70 AD2d 367; Matter of Pierce v Yerkovich, 80 Misc 2d 613; Matter of Cecilie Ann T., 101 Misc 2d 472.) III. Respondents did not commit fraud. (Matter of Lord, 28 AD2d 1203.) IV. The court below did not abuse its discretion;

      Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), for intervenor-respondent.
    I. The courts below correctly held that Caban v Mohammed (441 US 380) is not retroactive and hence is unavailable to petitioner, who failed to appear or appeal in a timely fashion before Caban was decided. (People ex rel. William R. v New York State Family Ct, Bronx County, 99 Misc 2d 427; Matter of “R” Children, 100 Misc 2d 248; Reynolds v Sims, 377 US 533; Childs v Childs, 69 AD2d 406, 48 NY2d 754, 446 US 901; New York Public Interest Research Group v Steingut, 40 NY2d 250; Martin v Martin, 74 AD2d 419; Matter of Goldberg v Aylward, 72 AD2d 510;
      Jadhon v Jadhon, 77 AD2d 790.) II. Section 111-a of the Domestic Relations Law codifies case law as to interested putative fathers entitled to notice of adoptive proceedings. The categories established by the statute are reasonable under equal protection. Since the Legislature has provided an easy, effective non judicial method by which truly concerned fathers can ensure notice, neither procedural nor substantive due process required notice in the case at bar. (Matter of Malpica-Orsini, 36 NY2d 568; Montgomery v Daniels, 38 NY2d 41; James v Strange, 407 US 128; People v Broadie, 37 NY2d 100; Matter of Ginnan, 101 Misc 2d 853; Parham v J.R., 442 US 584; Smith v Organization of Foster Families, 431 US 816; Mathews v Eldridge, 424 US 319; Quilloin v Walcott, 434 US 246.) III. Assuming arguendo that Caban is applicable to this proceeding, the Family Court erred in construing it as invalidating section 111 (subd 1, par [c]) of the Domestic Relations Law under the conditions at bar, where the natural father and child have never established a family relationship. In any event, prechapter 575 adoptions, such as the instant, can be upheld under the former Domestic Relations Law (§ 111, subd 1, par [d], renum § 111, subd 1, par [f]) which is gender neutral. (Matter of John J. S. v Theresa L., 99 Misc 2d 578; Matter of Malpica-Orsini, 36 NY2d 568; Matter of Anthony John P., 101 Misc 2d 918; Villafane v Banner, 87 Misc 2d 1037.)
   OPINION OF THE COURT

Jones, J.

Neither the decision of the Supreme Court of the United States in Caban v Mohammed (441 US 380) nor its rationale is applicable to an adoption proceeding which had been finally determined and concluded prior to the announcement of that decision. Nor was it an abuse of discretion in the circumstances of this case for the Family Court Judge either to grant the final order of adoption without giving notice to the putative father of whose identity and interest the Judge previously had knowledge or thereafter to deny the application of the putative father to vacate the final order of adoption and to reopen the adoption proceedings.

The factual context out of which the legal issues presented in this case arise is not significantly disputed. The mother respondent in this proceeding and petitioner had lived together for two years prior to the birth of Jessica on November 9,1976. In August, 1977 the mother married her present husband, the other respondent.

On December 21, 1978 the stepfather, joined by the mother, instituted a proceeding in Family Court, Ulster County, for his adoption of Jessica. A hearing in that proceeding was held on January 15, 1979 at the conclusion of which the Family Court Judge ordered the Ulster County Social Services Department to make the customary investigation pursuant to the provisions of section 116 of the Domestic Relations Law. When the favorable report of that investigation (which addressed only the mother, the adoptive father and Jessica) was received on February 26, the mother’s attorney informed the Family Court Judge that petitioner had instituted a paternity proceeding in Family Court, Westchester County, claiming to be Jessica’s father. At the instance of the attorney the Family Court Judge in Ulster County signed an order to show cause returnable March 12, 1979 (the return date in the paternity proceeding) bringing on the mother’s application to change the venue of the paternity proceeding from Westchester to Ulster County. Petitioner was served with a copy of the order to show cause on Saturday, March 3,1979, and then learned for the first time of the pendency of the adoption proceeding. On the following Wednesday, March 7, 1979, at the request of the attorney for respondents, the Family Court Judge signed the final order of adoption. Thereafter, but on the same day, the attorney for petitioner telephoned the Family Court Judge to request an adjournment of the adoption proceedings and was informed that his request came too late inasmuch as the final order of adoption had already been signed.

Subsequently, by petition verified on June 13, 1979, petitioner instituted the present proceeding to vacate the final order of adoption and. to reopen the adoption proceedings. That application was denied by the Ulster County Family Court on November 30, 1979. The Appellate Division affirmed, one Justice dissenting, on December 11,1980. Petitioner has appealed to our court as of right pursuant to CPLR 5601 (subd [a], par [i]).

At the outset we take note of the nature of the case before us. It involves an attempt, in an independent proceeding, by one who was not a party to a judicial proceeding which has been concluded to mount a direct attack on the final determination made therein. It is to be distinguished from the more frequently encountered attempt of one who was a party to a judicial proceeding which concluded in a disposition adverse to him, to enlist the aid of the courts to vacate or modify that disposition by means other than direct appellate review.

In this perspective we first address the constitutional contentions advanced by petitioner. He asserts that as Jessica’s father he had a constitutional right to receive formal notice of the adoption proceeding (and thus to participate therein) and that granting the order of adoption without his consent deprived him of his constitutional rights. He would rely heavily on the decision of the Supreme Court of the United States in Caban v Mohammed, (441 US 380, swpra) in which that court, reversing a decision of our court (Matter of David A. C., 43 NY2d 708), held that section ill of the Domestic Relations Law was unconstitutional in that it arbitrarily discriminated between mothers and fathers of children born out of wedlock by requiring the consent to adoption of the former but not of the latter. It is petitioner’s submission that that decision mandates a reversal of the orders of the lower courts in this case denying his application to vacate the order of adoption and to reopen the adoption proceeding. He argues that to the extent that section 111-a did not require that he be given formal notice of the adoption proceeding and that section 111 did not provide that his consent was required before Jessica could be adopted, each section is unconstitutional as denying him the equal protection and due process rights enunciated in Caban.

We have no occasion to reach or resolve the substantive aspects of petitioner’s contentions. The decision in Caban was announced on April 24, 1979, nearly seven weeks after the final order of adoption in this case. The adoption proceeding was completed with the entry of that order. The present application, as previously noted, is a posttermination attack on the final determination in the adoption proceeding by one who was not a party to that proceeding. We conclude that, unless the Supreme Court itself accords full retroactive effect to its holding, the decision and the rationale of Caban should be applied only to actions and proceedings that were still in the judicial process at the time the decision was announced or that have since been commenced, and not to actions and proceedings which had been finally determined and whose judicial life had then expired (cf. People v Torres, 53 NY2d 213; see Gager v White, 53 NY2d 475, 482). To accord full retroactive effect to Caban and to the extension of its rationale to the notice requirements of our adoption statute (and thus to allow its doctrine to be invoked on applications attacking adoption proceedings long since finally concluded) would be, as the dissenters in Caban implied (441 US 380, 401, 415-416, supra), to work cruel havoc. Accordingly, we hold that sections 111 and 111-a of the Domestic Relations Law as invoked in the adoption proceeding here are immune from constitutional assault predicated on Caban and its rationale in the present postfinal determination proceeding (cf. Chevron Oil Co. v Huson, 404 US 97, 106-107.)

Still bearing in mind that petitioner was not a party to the adoption proceeding and having concluded that Caban gives him no constitutional right to disturb its final disposition, we turn to his contentions that it was an abuse of discretion in the circumstances for the Ulster County Judge first to have signed the final order of adoption on March 7, 1979 and then later to have denied petitioner’s application, in the proceeding now before us, to vacate that final order and to reopen the adoption proceedings. Our evaluation of petitioner’s assertions of abuse of discretion must be judged, not with the benefit of informed hindsight, but on the basis of what was known to the Family Court Judge at the time he signed the final order of adoption and at the time he denied the application to vacate and to reopen the adoption proceedings.

On March 7, 1979 all the statutory prerequisites to the signing of a final order of adoption had been met. All persons made necessary parties under our statutes and decisional law at that time were before the court, and the only consent then so required, that of the mother, had been obtained. Petitioner does not claim that he came within any of the seven categories then defined in paragraphs (a) through (g) of subdivision 2 of section 111-a of the Domestic Relations Law as statutorily entitled to notice of the proceeding or that the necessity of his consent to the adoption was specified in the provisions of section 111. The court had received the report of investigation made by the Ulster County Department of Social Services as required by section 116 of the Domestic Relations Law which was in all respects favorable to the adoption. Accordingly, being “satisfied that the best interests of the adoptive child [would] be promoted thereby” the Family Court Judge made the order approving the adoption. There was then no reason to consider any possible rights that petitioner might have inasmuch as our court, and apparently the Supreme Court, had recently declared that he had none (cf. Matter of Malpica-Orsini, 36 NY2d 568, app dsmd sub nom. Orsini v Blast, 423 US 1042).

At the threshold we reject petitioner’s assertions that the order of adoption should be set aside because respondents fraudulently concealed information from the Family Court and because the Family Court improperly waived a statutory prerequisite for adoption. The claim of fraudulent concealment is constructed on two propositions, first, that the mother submitted documentary evidence which she knew to be false, to wit, Jessica’s birth certificate, and second, that she failed “to divulge to the court the factual background of the life of the natural parents and the infant”. On examination it appears that the substance of the argument on both branches is the asserted failure of the mother to admit that petitioner was Jessica’s father and to bring petitioner’s existence and identity, as father of Jessica, to the attention of the Family Court. There is no merit to this argument. The natural mother had no obligation to admit paternity or to volunteer any information with respect to petitioner, and there is nothing in the record to suggest that she failed to respond fully to all queries put to her by the court or by the Ulster County Social Services Department when it conducted the court-ordered investigation. And, of course, as petitioner vigorously asserts as basic predicate for his entire application, the Family Court was fully aware of his existence and identity as well as his claim of paternity before the final order of adoption was granted.

Similarly, there is no merit to petitioner’s assertion (with its attendant insinuations) that the family Court Judge “waived the six months’ residency requirement”. Section 116 of the Domestic Relations Law on which he premises his assertion explicitly excepts from its prescribed waiting period instances in which “the spouse of the adoptive parent is the natural parent of the child and the child has resided with the natural parent and adoptive parent for more than six months”, both of which stipulations were indisputably met in this case.

The only contention of substance advanced by petitioner is that it was an abuse of discretion on the part of the Ulster County Family Court Judge, with knowledge of petitioner’s identity and of his assertion that he was Jessica’s father, to have granted the order of adoption without first having required at least that he be given the notice required by subdivision 4 of section 111-a. The Family Court Judge could, in the exercise of discretion, have required that formal notice be given petitioner (Domestic Relations Law, § 111, subd 3). If we were to hold, however, that notice was required to be given to this putative father we would in effect be superimposing a judicial amendment on subdivision 2 of section 111-a — a requirement that notice be given to all putative fathers of which the court had knowledge — for there is nothing in the record in this case to distinguish this petitioner from any putative father of which the adoption court might have actual knowledge.

Section 111-a was added to the Domestic Relations Law by chapter 665 of the Laws of 1976 in consequence of a legislative proposal advanced by the Temporary State Commission on Child Welfare in response to constitutional concerns for the rights of fathers of children born out of wedlock following the decision of the Supreme Court of the United States in Stanley v Illinois (405 US 645). It was intended to codify the minimum protections which Stanley would require and to achieve finality as early as possible. (Letter from the chairman of the temporary commission to the Governor’s counsel, dated July 7, 1976, in the bill jacket for chapter 665; Governor’s memorandum on approving the chapter, July 24, 1976, McKinney’s Session Laws of NY, 1976, p 2442.) In prescribing who was entitled to notice the Legislature carefully delineated within the board class of putative fathers, to include some (those described in the paragraphs of subdivision 2 of section 111-a) and to exclude the remainder. This was evidently a carefully considered line of demarcation. Proposals had been pressed to expand the categories of putative fathers to whom notice should be required to be given to include fathers who had “filed” acknowledgments of paternity, persons “known” by the mother to be the father, persons holding themselves out to be fathers, and men “voluntarily supporting the child”. Such expansion of the notice requirements was rejected as failing to recognize that many of the putative fathers in such categories would not be readily identifiable, as thus ignoring the need for a measure of “finality in completed adoptions”, and as creating “a constant danger of having failed to give notice resulting thereafter in the reopening of consummated adoptions”. (Id.) For the Family Court Judge in this instance to have required that notice be given to petitioner for no other reason than that the Judge knew that he claimed to be the father of Jessica would have been to act in derogation of the legislative determination not to include such putative fathers within the scope of section 111-a. As stated, there was no reason to distinguish petitioner from any other putative father who would not be entitled to notice under the terms of the statute.

Moreover, the Legislature had declared that “the sole purpose of notice under [section 111-a] shall be to enable the person served pursuant to subdivision two to present evidence to the court relevant to the best interests of the child” (§ 111-a, subd 3). Petitioner had made no tender of his ability to furnish any particular or special information relevant to Jessica’s best interests. Nor had anything otherwise been brought or come to the attention of the Family Court Judge suggesting that petitioner would be a source of such information — other, of course, than as it could be claimed by every putative father that he was in a position to give background information.

In concluding as we do that there was no abuse of discretion in failing to require that notice be given to petitioner prior to the granting of the final order of adoption, we recognize that there may be a superficial appearance, chiefly because of the brevity of time intervals, which might make one wonder whether it would not have been better in this case to have postponed signature of the final order of adoption until notice had been given to petitioner. We believe, however, that such appearance, if any, arises solely from hindsight and in particular from the unanticipated announcement, but a few weeks later, of the Supreme Court decision in Caban which accorded all putative fathers substantially greater legal rights than they previously had been recognized as having. We are willing to speculate, however, that had Caban not emerged on the judicial horizon when it did, the decision made by this Family Court Judge to proceed as he did in this case would have clearly appeared to be the only prudent course of action to have followed in the best interests of Jessica.

Finally, we reach petitioner’s contention that, even if it was not an abuse of discretion to have granted the order of adoption without having first given him notice, it was an abuse of discretion not to have granted his postadoption application in June, 1979 to reopen the adoption proceeding. Again, although the Family Court Judge had authority to grant that application (Domestic Relations Law, § 114), he chose, in a fully explicated decision, not to do so, and the Appellate Division has affirmed his determination. Here, too, his decision must be examined in the light of the submission then made to him. The court’s principal attention and responsibility in any adoption proceeding must be riveted on the best interests of the adoptive child; only secondarily may consideration be given to the interests of the parents. In this instance, the petition and supporting papers contained no tender of evidence directly bearing on the best interests of Jessica. There was a submission with respect to the history of the mother’s alleged emotional instability, but this was essentially irrelevant inasmuch as no proposal was advanced at any time that Jessica should be removed from her mother’s custody or the home in which she dwelt with her mother and her stepfather; petitioner has never sought more than rights of visitation. In this circumstance it was certainly reasonable to deny petitioner’s application to reopen the adoption proceedings, the consequence of which, as was then apparent, would have been to render Caban applicable and thereby to accord petitioner not only a right to notice but a power of veto over any adoption, beyond the reach of the court’s to. supervise or to dispense with, whatever the dictates of Jessica’s best interests. It requires no exercise of the imagination in the circumstances of this case to understand why the Family Court Judge would not have deemed any such course of action to be in Jessica’s best interests. In sum, we again conclude that there was no abuse of discretion when petitioner’s application to reopen the adoption proceedings was denied.

For the reasons stated, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke

(dissenting). I am unable to view the procedure employed by the Family Court Judge in this case as acceptable in law or justice. I therefore respectfully dissent.

Critical in this case is the fact that the Family Court Judge actually knew, prior to signing the adoption order, that petitioner was claiming paternity and seeking visitation rights. Respondents informed the Judge on February 26, 1979 that petitioner had commenced a paternity proceeding in Westchester County. At that time, the Judge signed an order to show cause bringing on the respondent mother’s motion to change the venue to Ulster County so that the adoption and paternity proceedings could be held together. Petitioner first learned of the adoption proceeding when he was served with the order to show cause on Saturday, March 3,1979. Notwithstanding knowledge both that petitioner was formally claiming paternity and that the show cause order was returnable on March 12, the Judge, at the urging of respondents, signed the final adoption order on March 7. In his decision on petitioner’s motion to vacate the adoption order, the Judge justified his failure to give petitioner notice and an opportunity to be heard primarily on the ground that no statute specifically directed that notice be given to a putative father in petitioner’s position. The majority accepts this justification. I cannot.

There is no quarrel here with the majority’s conclusion that Caban v Mohammed (441 US 380), which concerned a putative father’s right to consent to adoption, should not be given retroactive effect to an adoption proceeding concluded prior to that decision. The decision of the Supreme Court in that case, however, does not resolve all of the issues presented on this appeal. Under pre-Caban law, it was recognized that a putative father is entitled at least to notice and an opportunity to be heard concerning whether adoption would be in his child’s best interests (see Quilloin v Walcott, 434 US 246; Matter of Malpica-Orsini, 36 NY2d 568, 577-578, app dismd sub nom. Orsini v Blasi, 423 US 1042; Doe v Department of Social Servs. of City of Poughkeepsie, 71 Misc 2d 666; see, generally, Note, 22 William & Mary L Rev 85; Comment, 25 Villano va L Rev 317, 331, 337; Comment, 57 Denver LJ 671, 676-677). The conclusion that Caban is not retroactive, therefore, does not justify what I see as the total disregard of petitioner’s openly asserted right as a putative father to have at least some input into the decision that will remove the infant Jessica from his reach forever.

The course followed below is rationalized by the majority in part because petitioner, not having filed with the putative father registry (see Social Services Law, § 372-c) a notice of intent to claim paternity, among other things, did not come within any of the seven categories of putative fathers statutorily entitled to notice of an adoption proceeding under section 111-a of the Domestic Relations Law. Section 111-a was added in 1976 (L 1976, ch 665) in response to the Supreme Court’s decision in Stanley v Illinois (405 US 645). The statute was intended to “provid[e] clear constitutional statutory guidelines for notice to father’s of out-of-wedlock children” to accommodate the State’s interest in establishing finality in adoption proceedings and in developing an expeditious method for identifying those persons to whom notice must be given, and to give putative fathers, through creation of the registry, a simple means of communicating their interest in the child and protecting their right to be notified (Second Report of the Temporary State Commission on Child Welfare, bill jacket for chapter 665). From the history of section 111-a, it is evident that the Legislature was concerned with protecting the interests of putative fathers while fostering prompt and final determinations in adoption proceedings.

The categories of fathers to whom notice must be sent under this statute generally further these ends by avoiding the requirement of extensive searches for unidentified or unknown putative fathers. And the putative father registry provides a centralized source, facilitating prompt location of the father. When, however, the father’s existence and his assertion of an interest in the child are actually known by the court hearing the adoption petition, the registry is redundant, as are the other sources of ascertaining the existence and location of the father enumerated in section 111-a. Slavish adherence to the “statutory guidelines” in such circumstances cannot have been intended by the Legislature. Indeed, the majority itself recognizes that the court could have required notice under subdivision 3 of section 111 of the Domestic Relations Law. In my view, then, the lack of specific statutory authority for affording an opportunity to be heard to one in petitioner’s position does not in any way justify the failure to give notice here. The court’s power and responsibility to protect the interests of concerned parties cannot be so easily curtailed or circumvented (cf. Matter of Linda F. M., 52 NY2d 236, 240-241).

The majority here expresses some concern that if this court were to concede error in the lower court’s failure to give notice, a court would have to give notice any time it had actual knowledge of the identity of a particular putative father. Unlike the majority, I see nothing startling in such a requirement in circumstances similar to those present here. Nor does such a proposition appear novel in light of the pre-Caban decisional law recognizing that a putative father has a sufficient interest in his status as such at least to require giving him an opportunity to be heard on the best interest on the child.

The court in this case did not know merely that the biological father was an ascertainable person. The Judge knew that petitioner had undertaken affirmative, formal steps to establish his paternity and obtain visitation. Requiring notice under these circumstances simply does not open the door to notice claims by those out-of-wedlock fathers who have manifested no interest in parental status.

The majority also suggests that petitioner could have protected his rights by taking other steps once he learned the mother’s address It is true that petitioner could have filed notice of intention to claim paternity as provided in section 372-c of the Social Service Law. But prior to March 3,1979, petitioner, with no knowledge that adoption by the mother’s husband was contemplated, had no reason to suspect that his rights were going to be permanently affected. Indeed, after locating the mother and being told to stay away from the family, petitioner, through his attorney, communicated with her on December 12, 1978 in an attempt to arrange visitation. A second attempt was made unsuccessfully in January, 1979. The paternity petition was thereafter filed at the end of that month; respondent mother received notice of the petition on February 22. The adoption proceeding had been commenced on December 21,1978. To say in the face of the actual knowledge of the Judge that petitioner could have protected his rights by filing a notice of intent to claim paternity is to require the performance of a meaningless act. The filing of notice only assures that knowledge of the father’s existence can be readily ascertained. If it is already known by the court before the adoption order is signed, I am at a loss to discern what added benefit petitioner, or the State, could have obtained by filing such notice.

Nor am I able to characterize as untimely petitioner’s conduct after he became aware of the adoption proceeding. Notified on Saturday, March 3, that the adoption proceeding was pending, petitioner telephoned the Family Court Judge on the following Wednesday to inform him that an order to show cause for a stay of the adoption proceeding was to be submitted. The Judge in turn informed petitioner that the adoption order had been signed that morning. Given that the show cause order for the venue motion was returnable on March 12 and that the motion was predicated in part on a claim that the paternity and adoption proceedings should be held together, it borders on the absurd to characterize petitioner’s attempt to assert his interest in the adoption proceeding as anything but prompt.

Although the majority opines that any concern for the denigration of petitioner’s rights in this case arises only from hindsight in light of Caban, it is submitted that the majority’s tortuous route would not have been traveled had the specter of Caban, which the majority concedes would be applicable in the event of vacatur, not “emerged on the judicial horizon” (pp 429-430). The disagreement with the majority expressed here is not meant to imply that the Family Court Judge acted out of animus toward petitioner or out of any motivation other than what he believed would be in the best interests of Jessica. Well-intentioned motivations notwithstanding, the Family Court’s action cannot be termed anything but an abuse of discretion, either in signing the final adoption order or in refusing to vacate that order and reopén the proceedings.

Simple justice requires according petitioner his day in court. Unable to concur in the majority’s determination that the Family Court’s decision was “the only prudent course of action to have followed in the best interests of Jessica” (p 430), I respectfully dissent.

Judges Jasen, Gabrielli and Meyer concur with Judge Jones ; Chief Judge Cooke dissents and votes to reverse in a separate opinion in which Judges Wachtler and Fuchs-BERG concur.

Order affirmed.

      . The paternity proceeding had been commenced on January 30, 1979 and personal service of the summons therein made on the mother on February 22, 1979.

      . The petition also sought an order unsealing the records in the adoption proceeding to permit their inspection by petitioner. The denial of that relief by the Ulster County Family Court was also affirmed at the Appellate Division.

      . There is no merit to petitioner’s argument that the adoption proceeding should be deemed to have still been in the appellate process in consequence of his filing a purported notice of appeal from the final order of adoption on April 23, 1979. Whatever other rejoinders might be made, it suffices for present purposes to observe that his right to appeal has never been accorded judicial recognition nor has any appeal based on the purported notice of appeal ever been perfected. The present proceeding stems from the order to show cause obtained by petitioner on his petition initiating an independent proceeding to attack the final order of adoption.

      . In view of this conclusion, we have no occasion and do not consider respondents’ contention that, inasmuch as petitioner did not come within the embrace of any of the seven categories of subdivision 2 of section 111-a, he has no standing to challenge the constitutionality of the section.
      There is no merit to petitioner’s contention that the provisions of chapter 575 of the Laws of 1980, amending section 111-a and enacting a new section 111-b apply to this case. The adoption here became final on March 7, 1979 prior to the enactment of chapter 575.

      . Subdivisions 2 to 4 of section 111-a as they existed on March 7, 1979, i.e., prior to amendment by chapter 575 of the Laws of 1980 provided:
      “2. Persons entitled to notice, pursuant to subdivision one of this section, shall include:
      “(a) any person adjudicated by a court in this state to be the father of the child;
      “(b) any person adjudicated by a court of another state or territory of the United States to be the father of the child, when a certified copy of the court order has been filed with the putative father registry, pursuant to section three hundred seventy-two-c of the social services law;
      “(c) any person who has timely filed an unrevoked notice of intent to claim paternity of the child, pursuant to section three hundred seventy-two-c of the social services law;

        “(d) any person who is recorded on the child’s birth certificate as the child’s father;
      “(e) any person who is openly living with the child and the child’s mother at the time the proceeding is initiated and who is holding himself out to be the child’s father;
      “ (f) any person who has been identified as the child’s father by the mother in written, sworn statement; and
      “(g) any person who was married to the child’s mother within six months subsequent to the birth of the child and prior to the execution of a surrender instrument or the initiation of a proceeding pursuant to section three hundred eighty-four-b of the social services law.
      “3. The sole purpose of notice under this section shall be to enable the person served pursuant to subdivision two to present evidence to the court relevant to the best interests of the child.
      “4. Notice under this section shall be given at least twenty days prior to the proceeding by delivery of a copy of the petition and notice to the person. Upon a showing to the court, by affidavit or otherwise, on or before the date of the proceeding or within such further time as the court may allow, that personal service cannot be effected at the person’s last known address with reasonable effort, notice may be given, without prior court order therefor, at least twenty days prior to the proceeding by registered or certified mail directed to the person’s last known address or, where the person has filed a notice of intent to claim paternity pursuant to section three hundred seventy-two-c of the social services law, to the address last entered therein. Notice by publication shall not be required to be given to a person entitled to notice pursuant to the provisions of this section.”

      . Such a holding might be mischievous in affording a substantive basis for an argument (not unlike that made by petitioner here) that, inasmuch as knowledge of the adoption court of the existence of a putative father would confer legal rights on him, the failure of the natural mother (who could be expected to know his identity) to identify him to the court should be classified as the perpetration of a fraud on the court in consequence of concealment from it of a material fact.

      . Viewing the situation from the perspective of other steps petitioner might have taken, it may be observed that the record discloses that petitioner was aware of the mother’s address when his attorney addressed a letter to her on December 12,1978 seeking to arrange a visitation with “your daughter, Jessica”. A follow-up letter was sent on January 8,1979. Thus, petitioner knew of Jessica’s location well before March of 1979. It was open to him for several months prior to the final adoption, had he so desired, to file a notice of intention to claim paternity of Jessica pursuant to section 372-c of the Social Services Law. The filing of such notice would have assured him the right which he sought to participate in the adoption proceedings (Domestic Relations Law, § 111-a, subd 2, par [c]). Additionally, as the Family Court Judge noted, he could have made a prompt application to intervene in the adoption proceeding once notice of its pendency was brought to his attention (CPLR 401, 1012, subd [a] ; 1013).

      . I am unable to reconcile the majority’s conclusion that notice properly could have been required in the exercise of discretion under subdivision 3 of section 111 with its assertion that the Family Court Judge, had he required notice, would have acted contrary to the legislative determination not to include a putative father in petitioner’s position in the 111-a notice scheme. Having identified a statutory source of authority for giving notice, the majority nonetheless justifies the failure to give notice because of an absence of specific authority.

      . Also unpersuasive is the majority’s concern that such a holding might form the basis of an argument that a natural mother’s failure to disclose the existence of a putative father would constitute fraudulent concealment of a material fact. Whatever the motivations of a mother not to disclose the putative father’s existence, there may well be significant privacy interests that protect that decision and militate against compelled disclosure (see, generally, Note, 22 William & Mary L Rev, at p 127; Comment, 25 Villanova L Rev, at p 333, n 123; p 335). Those privacy interests simply are not present when the court has full knowledge of the putative father’s existence and assertion of parental status. Recognizing an obligation on the part of the court to act on facts before it simply does not require recognizing an obligation to disclose on the part of the mother.

      . In his papers before the court, petitioner asserted that respondent mother had always recognized his paternity and had concealed her and Jessica’s whereabouts from shortly after Jessica’s birth in November, 1976 until August, 1978, at which point he learned that the mother had married.

      . Although the majority appears convinced that under Caban petitioner automatically would have to be accorded the right to consent to the adoption, the reach of that decision remains unclear. The right to consent may well depend upon the substantiality of the family relationship between the putative father and the child (compare Caban, supra [consent required], with Quilloin, supra [consent not required] ; see, generally, Note, 22 William & Mary L Rev 85; Comment, 25 Villanova L Rev 317). Given the allegations that the whereabouts of the child were concealed from petitioner and the counterallegation of a lack of interest on petitioner’s part, it may be that factual questions in this case would have to be resolved before petitioner’s right to consent could be determined.

      . The majority finds petitioner’s papers on the motion to vacate insufficient with respect to facts bearing on the best interests of Jessica. An inadequate showing, if such there be, might be relevant where the motion is addressed to the court’s discretion. Petitioner, however, seeks vacatur as a matter of right, specifically because he was denied the opportunity to present such facts in the first instance.