author: Ciparick, J. Levine, J.

text:
    [646 NE2d 444, 622 NYS2d 223]
    The People of the State of New York, Respondent, v Ernest Gray, Appellant.
    Argued December 1, 1994;
    decided January 10, 1995
    POINTS OF COUNSEL

      Hoffinger Friedland Dobrish Bemfeld & Stem, P. C., New York City (Vivian Berger of counsel), and Ira Mickenberg, for appellant.
    I. The trial court’s Sandoval ruling, whose validity depended in two respects upon accepting another jurisdiction’s felony treatment of appellant’s juvenile misbehavior — in violation of this State’s policy mandating Family Court disposition of similar charges in New York — constituted reversible error where appellant did not take the stand. (People v Vereen, 45 NY2d 856; Bartkowiak v St Adalbert’s R. C. Church Socy., 40 AD2d 306; People v Greer, 42 NY2d 170; People v Cook, 37 NY2d 591; People v Guzman, 68 AD2d 58; United States v Canniff, 521 F2d 565, cert denied sub nom. Benigno v United States, 423 US 1059; Eddings v Oklahoma, 455 US 104; Reno v D’Javid, 85 Misc 2d 126, 55 AD2d 876, 42 NY2d 1040; Matter of Steinberg v Steinberg, 18 NY2d 492.) II. The evidence at trial does not support appellant’s conviction of criminal possession of a weapon in the second degree on a theory of either direct or accomplice liability. (People v Okafore, 72 NY2d 81; People v Richardson, 97 AD2d 693; People v Taylor, 121 AD2d 581; People v Coluccio, 170 AD2d 523, 77 NY2d 993; People v Perez, 125 AD2d 236; People v Lewis, 116 AD2d 16; People v Roper, 259 NY 170; People v Smith, 152 AD2d 56; People v Martinez, 83 NY2d 26.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone, Robert M. Raciti and Ilisa T. Fleischer of counsel), for respondent.
    I. Defendant’s guilt of criminal possession of a weapon in the second degree was proved beyond a reasonable doubt. (People v Pons, 68 NY2d 264; People v Barnes, 50 NY2d 375; People v Castillo, 47 NY2d 270; People v Bracey, 41 NY2d 296; People v Contes, 60 NY2d 620; Matter of John N. 168 AD2d 386; People v Higdon, 162 AD2d 957, 76 NY2d 893; People v Wooten, 149 AD2d 751, 74 NY2d 822; People v Taylor, 121 AD2d 581, 68 NY2d 817; People v Terra, 303 NY 332, 342 US 938; People v Coluccio, 170 AD2d 523, 77 NY2d 993.) II. The court properly ruled that, if defendant testified, he could be cross-examined about a drug conviction from Maryland. (People v Greer, 42 NY2d 170; People v Duffy, 36 NY2d 258, 423 US 861; People v Arroyo, 194 AD2d 406, 82 NY2d 751; People v Allen, 186 AD2d 379, 81 NY2d 836; People v Rahman, 62 AD2d 968, 46 NY2d 882; People v Walker, 83 NY2d 455; People v Mattiace, 77 NY2d 269; People v Bennette, 56 NY2d 142; People v Contreras, 108 AD2d 627.)
   OPINION OF THE COURT

Ciparick, J.

May defendant’s previous conviction of a felony in Maryland when he was 15 years old constitute cross-examination material at his New York murder and robbery trial even though the Maryland conviction would have resulted in a juvenile delinquency adjudication in New York? We hold that the trial courts’ traditional, broad Sandoval discretion controls this question and decline to adopt a per se rule automatically excluding the out-of-State conviction.

Around 2:30 a.m. on July 12, 1990, a police officer discovered the body of Harry Rhodes slumped over the steering wheel of his truck parked outside a beer distributor’s warehouse in upper Manhattan. Rhodes had been shot to death. The door at the rear of the truck was open and the driver’s side window was broken. Inside, the glove compartment was open and papers were strewn across the floor of the cab and the passenger seat. A wallet and personal documents belonging to Rhodes were found under the stairwell of a nearby building.

The following day, defendant and five others were arrested in connection with the murder and robbery. Defendant gave a written statement to a detective and made a second, videotaped statement to an Assistant District Attorney. In both statements defendant admitted to participating in the robbery of Rhodes.

Defendant made a pretrial Sandoval motion to preclude the People from using his prior convictions to impeach his credibility in the event he testified in his own behalf (see, People v Sandoval, 34 NY2d 371). The motion was addressed to a 1990 misdemeanor conviction in New York for criminal trespass and a 1989 Maryland felony conviction for cocaine trafficking when defendant was 15 years old. The trial court denied the motion in its entirety. Defendant did not testify at trial and was convicted of murder in the second degree, two counts of burglary in the second degree, and criminal possession of a weapon in the second degree. The Appellate Division affirmed.

On this appeal, defendant argues that the Legislature has evinced a strong policy in favor of protecting youths under 16 from acquiring criminal status for nonviolent crimes and that deference to that policy requires elimination of the trial court’s traditional Sandoval discretion in favor of a per se rule precluding use of prior criminal convictions from foreign jurisdictions where, as here, the underlying acts would not be adjudicated crimes if committed in this State.

A criminal defendant who chooses to testify may be cross-examined concerning prior criminal, vicious or immoral acts that bear logically on that individual’s credibility as a witness (see, People v Sandoval, 34 NY2d 371, 374, supra). Use of prior criminal convictions and bad acts to impeach a testifying defendant "is largely, if not completely, a matter of discretion which rests with the trial courts and fact-reviewing intermediate appellate courts” (People v Shields, 46 NY2d 764, 765). It is, however, impermissible to use a youthful offender or juvenile delinquency adjudication as an impeachment weapon, because "these adjudications are not convictions of a crime” (Richardson, Evidence § 506, at 494 [Prince 10th ed]; see, Family Ct Act § 301.2 [1]; Penal Law § 30.00). Nevertheless, the cross-examiner may bring out "the illegal or immoral acts underlying such adjudications” (People v Greer, 42 NY2d 170, 176).

Recently, we stated of the admissibility of prior convictions, that "[o]ur law does not require 'the application of any particular balancing process’ in Sandoval determinations * * * and there are no per se rules requiring preclusion because of the age, nature and number of a defendant’s prior crimes” (People v Walker, 83 NY2d 455, 459, quoting People v Pollock, 50 NY2d 547, 550; see, People v Mattiace, 77 NY2d 269, 275). "Because the trial courts have inherent power to control the scope of cross-examination and the use of prior bad acts is a genetically accepted practice in that context, this Court will intervene only where 'the trial court ha[s] either abused its discretion or exercised none at all’ ” (People v Walker, 83 NY2d 455, 459, supra, quoting People v Williams, 56 NY2d 236, 238).

Indeed, in People v Mackey (49 NY2d 274, 281), we declined to hold that the trial court abused its discretion in permitting cross-examination of the defendant on petit larceny and disorderly conduct convictions that occurred when the defendant was 13 years old. As defendant candidly concedes, the convictions in Mackey must necessarily have been foreign since they postdated the Family Court Act. In People v Peele (12 NY2d 890, 891), we held that the trial court did not commit reversible error when it permitted the prosecutor to question the defendant concerning a Virginia juvenile delinquency adjudication, “since the prosecutor in good faith believed that there had been a criminal conviction.” A criminal conviction in a foreign jurisdiction may be used against a defendant testifying in this State if the act or acts constituted a crime in that jurisdiction (see, People v Rivera, 100 AD2d 914, 915; People v Brown, 2 AD2d 202, 203-204).

Defendant is correct in arguing that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction (see, Family Ct Act § 381.2 et seq.). However, New York’s governmental interest in the adjudication of criminal acts which take place outside the State is much less compelling and hardly requires the automatic override of another jurisdiction’s treatment of the problem of youth crime or elimination of our well-established, workable Sandoval rules.

In People v Kuey (83 NY2d 278), we considered a similar problem in the context of enhanced sentencing. We held that New York courts may defer to the policies of the jurisdiction in which the misconduct occurred, and use Florida youthful offender convictions as a predicate for enhanced sentencing purposes even though New York would expunge such convictions and prohibit their use as predicates in sentencing. Having determined in Kuey that New York courts "may give equal force” to Florida’s "significantly different” treatment of youthful offenders — even though less protective than our own —we discern no compelling reason to adopt a different rule here, where the foreign conviction is being used solely for impeachment rather than enhanced punishment (id., at 285 [emphasis added]). Indeed, in this State, inquiry into the actual nature of the acts constituting the basis for the youthful offender or juvenile delinquency adjudication is permitted, and a defendant can even be impeached with prior bad acts that did not result in a criminal charge (see, Sandoval, 34 NY2d, at 374, supra).

This is not to say that in every case involving an out-of-State criminal conviction there must be deference to the foreign jurisdiction’s juvenile justice policies. We hold only that the matter remains within the sound discretion of the hearing court, which should be sensitive to the differences between the juvenile justice policies of this State and the foreign State.

In conclusion, we find the rationale of the defendant and concurring opinion unpersuasive and decline to adopt a per se rule automatically excluding as cross-examination material any and all foreign criminal convictions involving acts that, if committed in this State, would result in youthful offender or juvenile delinquency treatment. The use of prior convictions for impeachment purposes is a matter resting "largely, if not completely”, within the sound discretion of the trial courts (Shields, 46 NY2d, at 765, supra). We find no abuse of such discretion here as a matter of law.

We have considered defendant’s remaining contention and find that it is without merit.

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

Levine, J.

(concurring). Since 1909, the undeviating law and policy of this State has been to protect youths under the age of 16 who commit nonviolent acts from acquiring criminal status and its accompanying disabilities — including impeachment on credibility in subsequent proceedings based upon juvenile delinquency adjudications arising from those acts. Despite the broad discretion which we have accorded trial courts in Sandoval determinations generally, it is absolutely clear that if defendant had committed in New York the act which gave rise to his criminal conviction in Maryland, it would have been error as a matter of law for the trial court to have exercised its "discretion” to permit cross-examination of defendant on the adjudication of juvenile delinquency that may have resulted. In my view, appropriate deference to this long-standing policy and due regard for fairness and consistency in the administration of the law mandates also precluding, as a matter of law, impeachment of a testifying defendant on the basis of a sister State conviction premised upon a youthful act which, had it occurred in New York, could not have been the basis of a criminal conviction nor the subject of credibility impeachment in this State.

There is no dispute here concerning the controlling law if defendant had committed in New York at age 15 the nonviolent act underlying the Maryland conviction sought to be utilized for impeachment here. Under New York law, defendant’s commission of the subject drug offense would have fallen within the exclusive jurisdiction of the Family Court (Family Ct Act § 301.2 [1]), and would have exposed him, at worst, to a finding of juvenile delinquency (Family Ct Act § 352.1 [1]). It is further uncontestable that defendant could not have acquired a criminal record as a result of that adjudication, as the governing statute makes perfectly clear that "[n]o adjudication under this article may be denominated a conviction and no person adjudicated a juvenile delinquent shall be denominated a criminal by reason of such adjudication” (Family Ct Act § 380.1 [1]).

In addition to the fact that the status of a criminal conviction would not have attached to the adjudication, Family Court Act § 381.2 (1) further provides that:

"Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or his interests in any other court.”

Accordingly, as the majority acknowledges, it is settled that a juvenile delinquency adjudication itself may under no circumstances be utilized to impeach a testifying defendant’s credibility in a subsequent criminal proceeding (see, People v Greer, 42 NY2d 170, 176; Richardson, Evidence § 506, at 494 [Prince 10th ed]).

The policy underlying the foregoing is not difficult to discern. "The historic purpose of the juvenile justice system has been the rehabilitation of children” (Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 301.1, at 263; see also, 1 Kerschensteiner, Callaghan’s Family Court Law and Practice in New York § 9:01, at 6 ["treatment and rehabilitation (are) the ultimate goals” of juvenile delinquency proceedings]). The statutory scheme clearly reflects the Legislature’s considered judgment that children are not fully responsible for every antisocial act they commit, and that it is counterproductive to their development as responsible citizens to attach a criminal conviction, with its attendant stigma and practical consequences, to nonviolent acts which may result in many cases solely from immaturity or environment.

The issue before this Court then, is whether the result should be different because of the fortuity that defendant’s prior act was committed in a State which treats youths in a more draconian fashion than in New York. To be sure, the New York Legislature has not expressly barred cross-examinatian on such an extraterritorial conviction, as it has for New York Family Court adjudications. Nevertheless, we are not operating in a vacuum; the Legislature has spoken on the collateral effects of juvenile delinquency determinations in our State and has proscribed their use in subsequent proceedings. As we have stated:

"The public policy of the State is what the Legislature says it is, where the Legislature has spoken, and a policy so declared sometimes has to be followed by the courts in areas beyond the express reach of the statute for the sake of consistency in the administration of the law” (Matter of Steinberg v Steinberg, 18 NY2d 492, 497).

In accord with this principle, I conclude that, informed by the discernable policy determinations of our Legislature on this issue, barring cross-examination here is necessary "for the sake of consistency in the administration of [Sandoval] law” (id.).

The practical application of the majority’s holding today introduces a regrettable inconsistency into the Sandoval doctrine. Thus, two different defendants choosing to testify in a New York State criminal court may be subject to differing impeachment regarding adjudications arising from youthful acts, dependent solely on the locality where the prior act was committed. Surely, the probative and prejudicial natures of the adjudications, the traditional inquiries under Sandoval, do not usually differ because of the locus of the underlying act. Yet, as a result of this decision, a defendant who happened to commit the act as a youth in New York will be shielded as matter of law from impeachment, but the defendant who committed the act without the State may not. Such potential for disparate results is not jurisprudentially sound. Far from advocating the "automatic overriding] of another jurisdiction’s treatment of the problem of youth crime or elimination of our well-established, workable Sandoval rules” (majority opn, at 713), I would merely rule for consistency in an area where the Legislature and this Court have already overridden use of certain adjudications for impeachment.

Furthermore, nothing in People v Kuey (83 NY2d 278) compels the majority’s result in the instant case. In Kuey, this Court held that it was proper to utilize a Florida youthful offender conviction as a predicate felony in New York — where Florida allowed its youthful offender convictions to serve as predicate offenses in its enhanced sentencing scheme — notwithstanding that defendant might have been granted youthful offender status had he committed the act in New York, in which case the conviction could not be so used. Because the decision to grant youthful offender status was discretionary in both States (id., at 284), the use of the conviction as a predicate did not impinge on any policy of this State. Kuey did not deal with an analogous situation to the instant case, for instance, if a sister State allowed for use as a predicate offense a conviction based on conduct that could only have been the basis for a juvenile delinquency adjudication in New York. I do not believe that any reading of Kuey would support the use of such a conviction as a predicate offense in this State.

Thus, the trial court erred as a matter of law in its Sandoval ruling. This Court has previously held, however, that errors in Sandoval determinations are subject to harmless error analysis, and I conclude that the error must be deemed harmless on this record (see, People v Shields, 46 NY2d 764, 765; see also, People v Williams, 56 NY2d 236, 240-241). The evidence against defendant, including his written and videotaped confessions to police, was overwhelming and there is no significant probability that he would have been acquitted if the error had not occurred and defendant had consequently chosen to testify (People v Crimmins, 36 NY2d 230, 242).

Chief Judge Kaye and Judges Simons and Smith concur with Judge Ciparick; Judge Levine concurs in result in a separate opinion in which Judges Titone and Bellacosa concur.

Order affirmed.

       Although the Appellate Division concluded that "the court did not permit use of the [Maryland] conviction itself for purposes of impeachment” (198 AD2d 3, 4), examination of the record indicates that the trial court later made a clarification of its original ambiguous Sandoval ruling, stating: "It’s the conviction and underlying circumstances with regard to the Baltimore felony.”

       Chapter 478 of the Laws of 1909, amending former Penal Law § 2186, provided: "A child of more than seven and less than sixteen years of age, who shall commit any act or omission which, if committed by an adult, would be a crime not punishable by death or life imprisonment, shall not be deemed guilty of any crime, but of juvenile delinquency only”.
      The present Penal Law provides, for nonviolent offenses, that "a person less than sixteen years old is not criminally responsible for conduct” (Penal Law § 30.00 [1]).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [646 NE2d 449, 622 NYS2d 228]
    The People of the State of New York, Respondent, v James Cassas, Appellant.
    Argued November 29, 1994;
    decided January 17, 1995

      POINTS OF COUNSEL

      Vivian Shevitz, Kenneth J. Aronson, Jane Simkin Smith and Ivy M. Ozer, Mt. Kisco, for appellant.
    I. The alleged "confession” made by appellant’s attorney was improperly admitted since any evidentiary value was outweighed by the impairment of the rights and privileges of appellant, since the attorney had no authorization from appellant to confess to police on his behalf or to waive the attorney-client privilege, and as a decision to confess, like a decision to plead guilty, cannot be made by counsel without the client’s express authorization. (Burdick v Horowitz, 56 AD2d 882; Bellino v Bellino Constr. Co., 75 AD2d 630; People v Rivera, 58 AD2d 147, 45 NY2d 989; United States v McKeon, 738 F2d 26; United States v Valencia, 826 F2d 169; United States v Margiotta, 662 F2d 131; People v Cosme, 169 AD2d 467; People v Ali, 146 AD2d 636; Matter of Priest v Hennessy, 51 NY2d 62; Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392.) II. The court erred by refusing to instruct the jury that no adverse inference could be drawn from appellant’s silence at the time of his attorney’s alleged statement. (Doyle v Ohio, 426 US 610; People v Conyers, 52 NY2d 454; People v De George, 73 NY2d 614; People v Conrow, 200 NY 356; People v Allen, 300 NY 222; People v Koerner, 154 NY 355; People v Prince, 19 AD2d 903; Gangi v Fradus, 227 NY 452.) III. The court erred in refusing to give a circumstantial evidence charge. (People v Ford, 66 NY2d 428.) IV. Appellant’s absence during the read back deprived him of his right to be present at a material stage of the proceedings. (People v Rodriguez, 76 NY2d 918; People v Mehmedi, 69 NY2d 759; People v Coons, 75 NY2d 796.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers and Roseann B. MacKechnie of counsel), for respondent.
    I. The hearing and intermediate appellate courts concluded correctly that defendant authorized his attorney to make admissions to the police for him and concluded correctly that the statements were admissible in evidence. (Loschiavo v Port Auth. of N Y. & N. J., 58 NY2d 1040; Kelly v Diesel Constr. Div., 35 NY2d 1; Hallock v State of New York, 64 NY2d 224; People v Rivera, 58 AD2d 147, 45 NY2d 989; Bellino v Bellino Constr. Co., 75 AD2d 630; Pappas v Middle Earth Condominium Assn., 963 F2d 534; United States v Pacelli, 491 F2d 1108, 419 US 826; United States v Ojala, 544 F2d 940; People v Burr, 70 NY2d 354, 485 US 989.) II. The trial court correctly refused defendant’s request that it instruct the jury that no inference adverse to defendant could be drawn from his silence in the face of his attorney’s statements and correctly instructed the jury on how to utilize the attorney’s statements during its deliberations. (Hallock v State of New York, 64 NY2d 224; People v Conyers, 52 NY2d 454; People v De George, 73 NY2d 614; People v Savage, 50 NY2d 673, 449 US 1016.) III. The trial court correctly denied defendant’s request for a circumstantial evidence charge because the evidence against defendant was both direct and circumstantial. (People v Guidice, 83 NY2d 630; People v Silva, 69 NY2d 858; People v Rumble, 45 NY2d 879; People v Licitra, 47 NY2d 554; People v Ford, 66 NY2d 428.) IV. Defendant has not rebutted the presumption that he was present in the courtroom throughout his trial. In any event, the sole conclusion which can be drawn from the record is that defendant was present for the rereading of testimony during jury deliberations in his case. (People v Richetti, 302 NY 290; People v Varelli, 302 NY 641; People ex rel. Bartlam v Murphy, 13 NY2d 1068; People v Pichardo, 168 AD2d 577; People v Butchino, 152 AD2d 854.)
   OPINION OF THE COURT

Smith, J.

The primary issue here is whether an attorney’s statement, incriminating his client in the murder of his wife and constituting the principal evidence against the defendant, was properly admitted into evidence. We conclude that it was not and we reverse.

Defendant was charged and convicted of firing four bullets into the back of the head and neck of his wife, Jan Cassas, at their Brooklyn home in the early morning hours of June 25, 1987. Jan Cassas died as a result of her wounds.

Defendant and his then-attorney Samuel Hirsch on that same morning went to the police precinct nearest Hirsch’s home and were directed to the precinct nearest defendant’s home. At the second precinct, the attorney identified himself as a lawyer and inquired whether there had been any reported homicides or attempted homicides within the past 24 hours. Hirsch informed the desk sergeant that there was a problem at defendant’s home and that a prompt police response was necessary. The attorney accompanied the police to defendant’s home where the police found Jan Cassas dead in the master bedroom. The attorney then returned to the precinct where defendant was waiting.

There is evidence in the record that at the precinct, with defendant standing next to him, attorney Hirsch stated, "I brought my client in to surrender. I believe he shot his wife. You’ll find the gun in the room. It will have my client’s prints on it.” The police arrested defendant. Later that day, the police returned to defendant’s home and recovered a loaded gun from the master bedroom where Mrs. Cassas’ body was found. A second gun allegedly used in the killing was apparently never found.

Supreme Court denied defendant’s motion to suppress the statements made by his attorney, finding that at the time the statements were made, Mr. Hirsch, as defendant’s attorney, was his agent, authorized to speak about the subject matter within the scope of the parties’ agency relationship. Therefore, the statement was binding on the defendant. The Appellate Division affirmed. It concluded that the statement, admitted through the testimony of a detective, was direct evidence of guilt from a person acting as defendant’s agent.

I.

It is well settled that statements made by an attorney concerning a matter within his employment may be admissible against the party retaining the attorney (People v Rivera, 58 AD2d 147, 149, affd on opn below 45 NY2d 989; United States v Margiotta, 662 F2d 131, 142, after retrial 688 F2d 108, cert denied 461 US 913). In this case, however, we conclude that the oral assertions of defendant’s attorney, introduced in the People’s case-in-chief, were inadmissible. There was no evidence that the statement had been authorized by the defendant as a waiver of the attorney-client privilege. This is particularly important in criminal cases where a defendant retains the authority to make key choices about a defense against criminal charges.

In People v Rivera (58 AD2d 147, affd on opn below 45 NY2d 989, supra) this Court affirmed an order of the lower court which admitted an attorney’s statement against a client. The statement in Rivera (supra) was used only for impeachment of the defendant after he testified to a different version of events from the one contained in a written affidavit that had been submitted by the attorney to the court in the course of the same action. The affidavit of the attorney, interposed on a motion, specifically indicated that the attorney had spoken to his client, the defendant, who admitted that he had a marked $20 bill in his pocket, but had obtained it not from selling drugs but from giving change to a person who was involved in a drug transaction. At the trial the defendant denied any involvement in the drug transaction and denied being in possession of the $20 bill. In upholding the use of the attorney’s affidavit for impeachment purposes, the Appellate Division ruled that "the attorney was plainly acting within the scope of his authority, and probably with express authority, in making and filing the affidavit” (58 AD2d, at 149).

The facts, procedural setting and affirmative use of the challenged evidence in this case are, however, distinguishable from Rivera. Here, the attorney’s statement was oral and made out of court, to a third party. Moreover, there is nothing to suggest the attorney had authority to speak on behalf of his client. There was testimony from the attorney at the hearing that contradicted even the making of the statement. Further, the statement here was used in the prosecution’s case-in-chief against the defendant, as contrasted to Rivera, where the attorney explicitly stated that the defendant had informed him of the facts which were contained in a written affidavit, filed in open court, and used for impeachment purposes.

United States v McKeon (738 F2d 26) is not authority to the contrary. Although ultimately admitting the attorney’s initial opening statement to the jury against the defendant client in a retrial against the defendant client, the court satisfied itself that the defendant’s prior argument involved assertions of fact inconsistent with similar assertions in the subsequent trial. The court also noted that the inconsistency was clear and of the quality which obviated any need for the trier of fact to explore other events at the prior trial. Additionally, the statements of counsel were deemed the equivalent of testimonial statements by the defendant, and the inference the prosecution was seeking to draw from the inconsistency was a fair one, that an honest explanation for the inconsistency did not exist. (McKeon, supra, at 32.)

In United States v Valencia (826 F2d 169) the Second Circuit held that statements made by defense counsel during the course of bail negotiations with the prosecution were not admissible against the defendant as a false exculpatory statement and an admission of a party-opponent under the agency exceptions to the hearsay rule. (Fed Rules Evid, rule 801 [d] [2] [C], [D].) The court stated that the attorney’s statements "may not be directly attributed to the defendant” and that its use would be "contrary to the attorney-client privilege” (826 F2d, at 171). "To rule as the government asks,” the court cautioned, "would set a dangerous precedent for the admission of all informal, out-of-court statements by attorneys against their clients.” (Valencia, supra, at 171.)

Significantly and key to the disposition of the instant case, the admissions would violate the attorney-client privilege because there is no evidentiary record support for a finding of waiver of the privilege by defendant. The attorney-client privilege "exists to ensure that one seeking legal advice will be able to confide fully and freely in his [or her] attorney, secure in the knowledge that his [or her] confidences will not later be exposed to public view to his [or her] embarrassment or legal detriment.” (Matter of Priest v Hennessy, 51 NY2d 62, 67-68.) Further, in People v White (73 NY2d 468, 478) this Court held that "[a] defendant having accepted the assistance of counsel, retains authority * * * over certain fundamental decisions regarding the case (i.e., whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal * * *)” (see also, Jones v Barnes, 463 US 745, 751, where the United States Supreme Court held that an "accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal”).

The fact that the attorney is the agent of the client-principal does not alone equate to a waiver of this privilege. The specific authorization must come from defendant principal to attorney-agent to constitute a waiver of the attorney-client privilege. Mr. Hirsch was not called as a witness at trial, and no evidence was presented as to the full and detailed scope of the parties’ relationship in the relevant context of the issue at hand.

II.

Additionally, the court improperly refused to instruct the jury that no adverse inference could be drawn from defendant’s silence at the time of the attorney’s assertions to the police at the precinct. Although this case does not implicate a defendant’s absolute right to remain silent in the face of accusatory statements or questions by law enforcement officials (see, Doyle v Ohio, 426 US 610, 619; People v Conyers, 52 NY2d 454, 457; People v De George, 73 NY2d 614, 618), defendant was nonetheless entitled to a cautionary instruction under the circumstances presented.

Although neither defendant nor his attorney testified at trial, the trial court nevertheless was aware from the hearing testimony that defendant’s silence was at the instruction of his attorney. Although the proposition that defendant had adopted by silence his attorney’s admission was not explicitly put before the jury (cf., People v Conrow, 200 NY 356), the jury nevertheless heard testimony from which it could have inferred that defendant’s silence was an adoption or corroboration of his attorney’s assertions about him. Thus, we conclude that the trial court was required to guard against the adverse inference that silence might be used as evidence against the defendant and to give á curative instruction.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted and a new trial ordered.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order reversed, etc.


author: Chief Judge Kaye. Smith, J.

text:
    [646 NE2d 774, 622 NYS2d 472]
    The People of the State of New York, Respondent, v Steven L. Swamp, Appellant.
    Argued December 1, 1994;
    decided January 10, 1995

      POINTS OF COUNSEL

      David V. Shaw, Public Defender of St. Lawrence County, Canton (Mark F. Kennedy of counsel), for appellant.
    I. The court below failed to apply the correct legal standard of competent evidence in finding there was sufficient prima facie evidence before the Grand Jury, and but for application of the incorrect legal standard, the court below would not have reversed the County Court’s dismissal of the indictment’s first count alleging criminal possession of cocaine. (People v Middleton, 54 NY2d 42; People v Hughes, 59 NY2d 523; People v Wesley, 83 NY2d 417.) II. The court below’s decision effectively and improperly shifted the burden of proof before the Grand Jury to defendant to disprove the general reliability and competence of the Scott-Reagent test. (People v Middleton, 54 NY2d 42; People v Hughes, 59 NY2d 523; People v Wesley, 83 NY2d 417; People v Miller, 57 AD2d 668; People v Sugden, 35 NY2d 453; People v Branton, 67 AD2d 664; People v Brewster, 63 NY2d 419; People v Oakley, 28 NY2d 309.) III. The result of the Scott-Reagent test could not be substituted for a certified laboratory report authorized under CPL 190.30 (2) as legally sufficient evidence before the Grand Jury because the Scott-Reagent test was not shown to be competent evidence. (People v Middleton, 54 NY2d 42; People v Hughes, 59 NY2d 523; People v Wesley, 83 NY2d 417; People v Campbell, 73 NY2d 481.)

      Richard V. Manning, District Attorney of St. Lawrence County, Canton (Donald S. Thomson of counsel), for respondent.
    I. The court below properly applied the standard of "legally sufficient evidence” and no improper burden of proof shift was thereby effected. (People v Brewster, 63 NY2d 419; People v Oakley, 28 NY2d 309; People v Adams, 81 Misc 2d 528.) II. The court below properly determined that the results of the Scott-Reagent test for cocaine were competent evidence before the Grand Jury. (United States v Bermudez, 526 F2d 89; People v Hernandez, 124 Misc 2d 376; People v Ranieri, 127 Misc 2d 132; People v James, 138 Misc 2d 920; People v Escalera, 143 Misc 2d 779.) III. The court below properly determined that the foundation was properly laid for the two trained officers to identify the substance recovered as cocaine. (People v Kenny, 30 NY2d 154; People v Lynch, 85 AD2d 126; People v Dumas, 68 NY2d 729.) IV. There was no shifting of the burden of proof to establish the competence of the Scott-Reagent test. (People v Brewster, 63 NY2d 419; People v Jennings, 69 NY2d 103; People v Adorno, 112 AD2d 308; People v Ballou, 121 AD2d 861.)
   OPINION OF THE COURT

Chief Judge Kaye.

Where the Grand Jury heard only the results of a preliminary field test indicating the presence of cocaine, was an indictment charging possession of cocaine supported by legally sufficient evidence, or were the People required to submit the results of a formal laboratory analysis? Because the evidence before the Grand Jury, if uncontradicted, established that defendant possessed cocaine, we affirm the determination of the Appellate Division that the People presented a prima facie case sufficient for indictment.

When defendant crossed the United States-Canadian border at Massena, a United States Customs inspector found drug paraphernalia hidden in the car engine, as well as bags of plastic vials, containing chunks of white powder, on his person and in the car. Based on the officer’s training in preliminary identification of drugs by appearance and packaging, defendant was arrested on suspicion of possession of drugs. A second Customs inspector, Robert Stephenson, weighed the substance and conducted a Scott-Reagent field test that indicated the presence of cocaine in the powder. The policy of the agency was to defer formal laboratory analysis until it appeared necessary for trial.

Before the Grand Jury, Stephenson testified that he had attended an eight-hour training course at the Customs Academy in identification of drugs and use of various field tests, as well as training in the weighing of drugs. He had conducted more than 1,000 field tests. The widely used Scott-Reagent test, also known as the NIK cocaine test, required Stephenson to place the substance in a plastic pouch with a glass ampoule which, when broken, released a chemical. Where cocaine is present, the substance turns a sharp blue, as it did in this case.

The trial court granted defendant’s motion to dismiss the indictment for legal insufficiency, ruling that while results of a field test might be sufficient to establish probable cause, such "preliminary determinations” were insufficient to establish a prima facie case before the Grand Jury. Citing to CPL 190.30, which permits presentation to the Grand Jury of a certified laboratory report in lieu of testimony from the technician who performed the test, the court held that the statute did not permit "conclusory determinations” from "untrained personnel,” holding Stephenson’s testimony was therefore insufficient.

The Appellate Division reversed and reinstated the first count of the indictment, determining that the observations and testing of the substance by two trained officers were sufficient to establish, prima facie, that defendant possessed cocaine. The court rejected defendant’s contention that results of a formal laboratory analysis were required to support an indictment. We now affirm.

We begin analysis by restating the applicable legal standards.

The Grand Jury, of course, does not determine guilt or innocence of the accused. Its primary function " 'is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution’ ” (Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14, 19, citing People v Calbud, Inc., 49 NY2d 389, 394). As it applies here, CPL 190.65 authorizes indictment when

"(a) the evidence before it is legally sufficient to establish that such person committed such offense * * * and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.” (CPL 190.65 [1].)

The first prong of the statute requires that the People present a prima facie case; the second "dictates the degree of certitude grand jurors must possess to indict” (People v Jennings, 69 NY2d 103, 115). On a motion to dismiss an indictment under CPL 210.20 (1) (b), the court is limited to consideration of the first prong, legal sufficiency of the evidence. Inquiry into the adequacy of the proof to establish reasonable cause — the "degree of certitude” the evidence provides — is exclusively the province of the Grand Jury (CPL 190.65 [1] [b]; People v Jennings, 69 NY2d, at 115).

Legally sufficient evidence — defined as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’ (CPL 70.10 [1]) — means simply a prima facie case, not proof beyond a reasonable doubt (People v Mayo, 36 NY2d 1002, 1004). The reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted — and deferring all questions as to the weight or quality of the evidence — would warrant conviction (People v Mikuszewski, 73 NY2d 407, 411; People v Jennings, 69 NY2d, at 114-115). By contrast to the Federal Grand Jury system, where incompetent evidence may be considered (Costello v United States, 350 US 359, 363), New York State indictments must be based on competent evidence, meaning evidence not subject to an exclusionary rule, such as the prohibition against hearsay (Richardson, Evidence § 4, at 4 [Prince 10th ed]; see also, People v Oakley, 28 NY2d 309, 314).

Finally, in a drug-related prosecution, the People’s case is legally sufficient if the evidence provides a "reliable basis” for inferring the presence of a controlled substance (People v Kenny, 30 NY2d 154, 157). More than conclusory assertions that the defendant possessed a drug are required at the Grand Jury stage (People v Dumas, 68 NY2d 729; People v Kenny, 30 NY2d, at 157).

Applying these legal standards to the facts at hand, we conclude that the trial court erred when it held that in order to establish a prima facie case, CPL 190.30 (2) required the People to submit results of a formal laboratory analysis of the substance seized from defendant. While CPL 190.30 (2) does authorize submission to the Grand Jury of a certified laboratory report in place of live testimony of a technician who performed tests on a controlled substance, that provision does not require the People to present the Grand Jury with such a report. It permits a limited exception to the prohibition against hearsay in the Grand Jury — addressing the requirement, in New York State, that an indictment be based only upon "competent” evidence (CPL 190.65 [1]). Here, the officer who performed the field test actually testified before the Grand Jury as to his own observations. Testimony of the Customs officer as to his own observations was not hearsay, and was legally competent evidence. Since the testimony was not subject to an exclusionary rule, application of CPL 190.65 (1) was simply not at issue.

Nor was Stephenson’s testimony "conclusory,” contrary to the determination of the trial court. Stephenson recounted the observations that led him to conclude defendant possessed cocaine, including the telltale packaging in which the substance was found — a substance that looked like crack-cocaine, which he had been trained to identify — and the presence of drug paraphernalia in defendant’s car. Stephenson’s testimony was probative of whether the substance found in defendant’s possession was cocaine, and tended to corroborate the preliminary Scott-Reagent test, a field test routinely relied upon by law enforcement to determine the presence of a controlled substance. These evidentiary facts provided far more support for the Grand Jury’s determination than the showing found insufficient in People v Dumas (68 NY2d 729, supra), where the officer simply asserted that the defendant possessed marihuana without indicating the basis for that claim.

The trial court concluded that results of a single field test were legally insufficient to support an indictment, given that a subsequent formal laboratory analysis might yield a different result. This conclusion was also error.

Evidence later proven unreliable can legally support an indictment. The standard for sufficiency is whether the evidence before the Grand Jury — if uncontradicted — would support a determination of guilt (People v Jennings, 69 NY2d, at 114-115; People v Brewster, 63 NY2d 419, 422). In People v Oakley (28 NY2d 309), we upheld an indictment based on identification testimony later proven to be unreliable. Such evidence — apparently competent at the Grand Jury stage — is to be distinguished from inherently incompetent evidence, inadmissible under any circumstances because subject to a per se exclusionary rule. Evidence deemed inadmissible at trial after extrinsic proof reveals some infirmity may nevertheless have supported a prima facie case at the Grand Jury stage (id.)

Although uncontradicted results of a field test may provide legally sufficient evidence of presence of a controlled substance, meeting the threshold standard of sufficiency is not the same as proving guilt beyond a reasonable doubt at trial (People v Mayo, 36 NY2d, at 1004). Under the statutory scheme, in a felony drug prosecution, CPL 715.50 requires a formal laboratory analysis within 45 days of receipt of the drugs. By the time trial commences, more definitive results will be made available to the defendant. Possible infirmities in the NIK test will by then be moot — either because presence of a controlled substance confirmed that the field test was correct, or because a negative result in the laboratory required dismissal of the case. Where possession of felony-weight drugs is alleged, therefore, the law requires that, prior to trial— where the People will attempt to prove guilt beyond a reasonable doubt — more than a field test be conducted.

Contrary to the concerns of the dissent, if a subsequent laboratory analysis proved the field test incorrect a defendant would not be entitled to dismissal under CPL 210.20 (1) (b), on the ground that the evidence before the Grand Jury was insufficient, (see, dissenting opn, at 735). Sufficiency of evidence before the Grand Jury is examined as of the time of indictment, not in light of subsequent developments (People v Oakley, 28 NY2d, at 313). Dismissal would be available under CPL 210.20 (1) (h), however, on the ground that there exists a "legal impediment to conviction of the defendant for the offense charged,” since it would be impossible for the People to obtain a conviction based on the result of a field test that has been conclusively contradicted.

The dissent cites 7 NYCRR 1010.5 (d) in support of its contention that a single NIK field test result does not reliably establish the presence of cocaine, and therefore cannot support a legally sufficient indictment. The cited regulation governs admissibility of NIK field test results to support determination of guilt or innocence at prison disciplinary proceedings. The Department of Correctional Services expressly recognizes that such test results may be presented "as evidence that the suspected substance is what the test result indicates” (7 NYCRR 1010.5). While multiple test results are characterized as allowing a higher degree of certainty than a single test result, even results of a single test are admissible. While results of a single field test may not carry great weight, questions of adequacy of evidence are for the Grand Jury to resolve.

Defendant urges that the officer’s testimony was also insufficient because he was not an expert in the area of drug analysis. But prima facie evidence of the presence of a controlled substance need not be based on expert testimony. All that is required is a "reliable basis” for inferring such presence (People v Kenny, 30 NY2d 154, 157, supra). The opinion of a layperson unsophisticated about drugs does not meet that standard (People v Kenny, 30 NY2d, at 157). Officer Stephenson was not a layperson — he had extensive familiarity with drugs and special training in handling and identification of controlled substances.

This evidence provided a reasonable basis for the Grand Jury to infer defendant possessed cocaine (see, People v Mertz, 68 NY2d 136, 139 [evidence of breathalyzer test results is sufficient to establish prima facie case that defendant drove while intoxicated]). Proof beyond a reasonable doubt was not required at this stage. Contrary to the warning of the dissent, therefore, we do not hold that a defendant may be proven guilty beyond a reasonable doubt based solely on the results of a NIK field test, and we do not shift the ultimate burden of persuasion to defendant.

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

Smith, J.

(dissenting). I agree with the trial court that the evidence before the Grand Jury was not legally sufficient. I would reverse the order of the Appellate Division and dismiss the indictment.

The facts of the case are undisputed. Defendant was detained in the Town of Massena, St. Lawrence County, by a United States Customs Officer on April 24, 1992 after he crossed the International Bridge from Canada. The testimony before the Grand Jury was that his automobile was searched and a bag containing white powder found. In addition, the defendant was searched and white powder and pills were found on him. A NIK field test (Scott-Reagent test) was positive for cocaine. Defendant was arrested. At the subsequent Grand Jury proceeding, no laboratory test report was introduced. Rather, the People introduced the testimony of a police officer concerning the NIK field test. In addition, the People introduced evidence that they looked through a book known as the Physician’s Desk Reference in order to determine that the pills were valium.

Defendant was indicted for the criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5] —cocaine) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03 — valium). The trial court dismissed these charges, noting that while the field tests were sufficient for an arrest, they were insufficient for indictment. The Appellate Division reversed, stating that there was nothing in the record to indicate that the NIK field test was insufficient to establish a prima facie case and that a challenge to the scientific test should await appropriate pretrial proceedings.

CPL 190.65 (1) authorizes an indictment (1) when the evidence before the Grand Jury "is legally sufficient to establish that [the defendant] committed such offense” and (2) when "competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.” CPL 70.10 (1) defines legally sufficient evidence as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.”

At the heart of the dispute here is whether a NIK field test is legally sufficient, that is, competent evidence which would establish every element of the crime charged. In my view, it clearly is not.

The NIK field test, standing alone, is insufficient to establish a prima facie case of cocaine possession. It is a test enabling a police officer to presume the existence of a controlled substance. This Court has never previously held that such a field test was a legally sufficient basis for indictment (CPL 190.65). The decision of the trial court was consistent with those cases requiring a laboratory report for the prosecution of, as opposed to the arrest of, an individual. (See, People v Brightman, 150 Misc 2d 60; People v James, 138 Misc 2d 920; People v Burton, 133 Misc 2d 701; People v Ranieri, 127 Misc 2d 132; People v McMillan, 125 Misc 2d 177.)

There is no showing here that the field test was generally accepted as reliable under Frye v United States (293 F 1013). It is worth noting that the rules and regulations governing institutional security refer to a NIK field test as one where a single test may or may not yield a valid result and one where a complete laboratory analysis is required for a qualitative conclusion. 7 NYCRR 1010.5 (d) reads, in part, as follows:

"The NIK Narcotics Identification System is based upon a polytesting procedure whereby a suspect material is subjected to a series of progressively discriminating screening tests. The results of a single test may or may not yield a valid result. However, the sequential results of several tests, if they all indicate a positive reaction for a particular substance, allows a high degree of certainty that the suspect material is in fact what the NIK polytesting system indicates it to be.
"Experiments have been and continue to be conducted with hundreds of licit and illicit chemical compounds in a continuing effort to eliminate false positive and false negative calorimetric chemical reactions. No chemical reagent system adaptable to field use exists that will completely eliminate the occurrence of the occasional invalid test result. A complete forensic laboratory would be required to qualitatively and quantitatively identify an unknown suspect substance. In the absence of such a laboratory facility, the NIK system, utilizing the recommended polytesting procedure, is your best assurance that the presumptive results of a positive identification are what they appear to be” (emphasis supplied).

The opinion of the majority raises two immediate questions. The first is that assuming a laboratory examination made before trial reveals the absence of cocaine, does the defendant then have the right to move to dismiss on the ground that the evidence before the Grand Jury was not legally sufficient? The clear answer must be yes.

Second, and particularly troubling, is the fact that a NIK field test rather than a laboratory examination is now sufficient to convict a person for possession of cocaine. The requirement of legally sufficient evidence is the same before the Grand Jury (CPL 190.65, 70.10), on a motion to dismiss an indictment (CPL 210.30) and at trial, on a motion for a trial order of dismissal (CPL 290.10). The evidence which is legally sufficient to indict must be legally sufficient to convict unless there is some explanation. A defendant should not be forced to defend an indictment where the sole charge is cocaine possession and the prosecution has not determined that the substance in question is really cocaine. The majority’s decision, in effect, places the burden on the defendant to come in and explain away evidence that this Court has found legally sufficient, a conclusion with obvious constitutional implications. The decision today permits a Grand Jury to indict and a petit jury to convict on less than legally sufficient evidence, that is, on the presumption that cocaine is present.

A determination prior to trial of whether evidence before the Grand Jury is legally sufficient is appropriate and consistent with the statutory requirements of CPL article 255. That article requires that pretrial motions, including motions to dismiss an indictment, be made in one omnibus motion. In other words the appropriate procedure to determine that evidence before the Grand Jury is competent and establishes every element of the crime charged is by a pretrial motion. If there is any doubt that the evidence is legally sufficient, a court should order a hearing pursuant to CPL 210.45. Thus at the very least a hearing is required to show that the NIK field test establishes all of the elements of the charge.

People v Oakley (28 NY2d 309) is not grounds for upholding the indictment. The issue there was identification. Following the indictment and a motion to suppress identification evidence, the court ruled that showing the defendant alone to the victim was improper. Nevertheless, the in-court identification of the victim was found to have an independent source. Some of the evidence before the Grand Jury was thus clearly competent.

In my view the difference between the majority and dissent is simple but crucial. I believe that an accurate analysis of the substance believed to be cocaine is necessary for the Grand Jury to conclude that there is legally sufficient evidence on which to indict. The Grand Jury’s conclusion should not be based upon an analysis which is known to sometimes produce inaccurate results and is acknowledged by those using the test to be insufficient for a definitive conclusion of cocaine.

Finally, a laboratory analysis which demonstrated the absence of cocaine would necessarily lead to a dismissal of the indictment based upon the fact that the People could not establish a prima facie case. This would be true whether the motion was made by the People or by the defendant (consistent with the majority’s view) pursuant to CPL 210.20 (1) (h).

Accordingly, I would reverse the order of the Appellate Division.

Judges Simons, Titone, Bellacosa, Levine and Ciparick concur with Chief Judge Kaye; Judge Smith dissents and votes to reverse in a separate opinion.

Order affirmed.

      . By contrast, CPL 715.50 requires the custodian of drugs seized in felony cases to submit the substance for laboratory analysis within 45 days of receipt for qualitative identification and weighing. Notably, the determination to submit a case for Grand Jury consideration generally occurs well before 45 days from arrest have elapsed (see, CPL 180.80).

      . Defendant also contends that the officer’s testimony concerning the results of the field test was incompetent because the People failed to establish the field test was generally accepted as reliable under Frye v United States (293 F 1013). The general reliability of the Scott-Reagent field test was an issue first raised on appeal, and is therefore not preserved for our review.


author: Chief Judge Kaye.

text:
    [646 NE2d 780, 622 NYS2d 478]
    George Madden et al., Plaintiffs, v Creative Services, Inc., et al., Defendants.
    Argued November 30, 1994;
    decided January 12, 1995

      POINTS OF COUNSEL

      A. Vincent Buzard, Rochester, and Adele M. Fine for plaintiffs.
    I. Cases which have addressed violations of privileged relationships support recognition of a cause of action for invasion of the attorney-client privilege. (Doe v Roe, 155 Misc 2d 392, 190 AD2d 463; MacDonald v Clinger, 84 AD2d 482; Harley v Druzba, 169 AD2d 1001; Fedell v Wierzbieniec, 127 Misc 2d 124; Doe v Roe, 93 Misc 2d 201; Anker v Brodnitz, 98 Misc 2d 148, 73 AD2d 589; Deutsch v Health Ins. Plan of Greater N. Y, 573 F Supp 1443; Hammonds v Aetna Cas. & Sur. Co., 237 F Supp 96, 243 F Supp 793; Woods v Lancet, 303 NY 349.) II. New York’s strong public policy favoring protection of the attorney-client privilege mandates recognition of a cause of action for the invasion of the privilege. (People v Shapiro, 308 NY 453; Matter of Priest v Hennessy, 51 NY2d 62; People v Lynch, 23 NY2d 262; Cardinale v Golinello, 43 NY2d 288; Matter of Hof, 102 AD2d 591; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371.) III. Disclosure of the information obtained through the unlawful invasion should not be a required element of the claim. (MacDonald v Clinger, 84 AD2d 482; Ostrowe v Lee, 256 NY 36; Lux-Brill Prods. v Remco Indus., 48 Misc 2d 697; Nader v General Motors Corp., 25 NY2d 560; Birnbaum v United States, 588 F2d 319; Socialist Workers Party v Attorney Gen. of U. S., 642 F Supp 1357; Howell v New York Post Co., 81 NY2d 115.) IV. No special or unrealistic requirements for proof of damages should be imposed upon clients whose attorney-client privilege has been wrongfully invaded. (MacDonald v Clinger, 84 AD2d 482; Harley v Druzba, 169 AD2d 1001; Ruza v Ruza, 286 App Div 767; Advance Music Corp. v American Tobacco Co., 296 NY 79; Morrison v National Broadcasting Co., 24 AD2d 284, 19 NY2d 453; Rager v McCloskey, 305 NY 75; Steward v World-Wide Autos. Corp., 20 Misc 2d 188; Aronson v Wiersma, 65 NY2d 592; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397; Brandon v Allen, 719 F2d 151.) V. The violations alleged by appellants may be analyzed under traditional tort theories as well. (Freihofer v Hearst Corp., 65 NY2d 135; People v Shapiro, 308 NY 453; Lois Pitts Gershon PON/GGK v Tri Honda Adv. Assn., 166 AD2d 357; Granoffv Merrill Lynch, 775 F Supp 621, 962 F2d 2.)

      Fix, Spindelman, Brovitz, Turk, Himelein & Shukoff, P. C, Rochester (Norman M. Spindelman, Karl S. Essler and Francis C. Affronti of counsel), for Creative Services, Inc., and others, defendants.
    I. Under no circumstances may plaintiffs recover for the alleged violation of the attorney-client privilege. (Matter of Priest v Hennessy, 51 NY2d 62; Amberg v Kinley, 214 NY 531; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Sheehy v Big Flats Community Day, 73 NY2d 629; Curry v Corn, 52 Misc 2d 1035; Steitz v City of Beacon, 295 NY 51; Gifford v Harley, 62 AD2d 5; Prink v Rockefeller Ctr., 48 NY2d 309; Lanza v New York State Joint Legislative Comm., 3 NY2d 92, 355 US 856; Matter of Hof, 102 AD2d 591.) II. Plaintiffs must plead and prove an economic loss. (Doe v Roe, 155 Misc 2d 392; Keefe v Lee, 197 NY 68; O’Connell v Press Publ. Co., 214 NY 352; Joseph v Siegel, 200 Misc 214; affd sub nom. Joseph v Lutzky, 279 App Div 574, 304 NY 553; Drug Research Corp. v Curtis Publ. Co., 7 NY2d 435; Burns Jackson Miller Summit v Spitzer, 59 NY2d 314; Zausner v Fotochrome, Inc., 18 AD2d 649; Argyll v International Sec. Bur., 16 AD2d 921.) III. The amended complaint does not state any claims under existing tort theories. (Howell v New York Post Co., 81 NY2d 115; Carpenter v City of Plattsburgh, 105 AD2d 295, 66 NY2d 791; Burba v Rochester Gas & Elec. Corp., 90 AD2d 984; Owen v Leventritt, 174 AD2d 471, 79 NY2d 751; Leibowitz v Bank Leumi Trust Co., 152 AD2d 169; Freihofer v Hearst Corp., 65 NY2d 135; Argyll v International Sec. Bur., 16 AD2d 921; Kaplan v Dart Towing, 159 AD2d 610; Nadel v State of New York, 110 AD2d 890; Kalina v General Hosp., 31 Misc 2d 18, 18 AD2d 757.)

      Harter, Secrest & Emery, Rochester (Kenneth A. Payment and Carol L. O’Keefe of counsel), for National Amusements, Inc., and another, defendants.
    I. There should be no cause of action for violation of the attorney-client privilege. (Tobin v Grossman, 24 NY2d 609; Williams v State of New York, 18 NY2d 481; Duhan v Milanowski, 75 Misc 2d 1078; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Upjohn Co. v United States, 449 US 383; Sheehy v Big Flats Community Day, 73 NY2d 629; County of Monroe v State of New York, 123 AD2d 141; Lanza v New York State Joint Legislative Comm., 3 NY2d 92; People v O’Connor, 85 AD2d 92; Matter of Priest v Hennessy, 51 NY2d 62.) II. The alleged wrongs do not state a claim for recovery of emotional distress damages under the established theories. (Howell v New York Post Co., 81 NY2d 115; Leibowitz v Bank Leumi Trust Co., 152 AD2d 169; Freihofer v Hearst Corp., 65 NY2d 135; Fischer v Maloney, 43 NY2d 553; Adams Importers v Dana, 121 AD2d 279; Owen v Leventritt,
      174 AD2d 471; O’Rourke v Pawling Sav. Bank, 80 AD2d 847; Burba v Rochester Gas & Elec. Corp., 90 AD2d 984; Garland v Herrin, 724 F2d 16.) III. The remaining claims are equally meritless. (Glass v Wiener, 104 AD2d 967; Caballero v Anselmo, 720 F Supp 1088; Allen v Murray House Owners Corp., 174 AD2d 400; Harper & Row Publs. v Nation Enters., 723 F2d 195, 471 US 539; Ippolito v Lennon, 150 AD2d 300; Preston v Bregman Prods., 765 F Supp 116; Murray v National Broadcasting Co., 844 F2d 988, 488 US 955; Tow v Maidman, 56 Misc 2d 468; Bhattal v Grand Hyatt-N. Y, 563 F Supp 277.)

      Jeffrey Robert White, James E. Rooks, Jr., Larry S. Stewart, of the District of Columbia Bar, admitted pro hac vice, and Cheryl Flax-Davidson, of the New York Bar, for Association of Trial Lawyers of America, amicus curiae.

    I. This Court should consider all of plaintiffs’ available and valid causes of action, even if not pleaded with particularity. (Dotschay v National Mut. Ins. Co., 246 F2d 221; Brubrad Co. v United States Postal Serv., 404 F Supp 691, 538 F2d 308, 429 US 834.) II. Three causes of action should be applicable to this fact situation. (Hsing Chow v Union Cent. Life Ins. Co., 457 F Supp 1303; Socialist Workers Party v Attorney Gen. of U. S., 463 F Supp 515, 642 F Supp 1357; Arlinghaus v Ritenour, 622 F2d 629, 449 US 1013; Resnick v Resnick, 722 F Supp 27; Bridge C.A.T. Scan Assocs. v Ohio-Nuclear Inc., 608 F Supp 1187; Chrysler Capital Corp. v Century Power Corp., 778 F Supp 1260; Katjazi v Katjazi, 488 F Supp 15; People v Pobliner, 32 NY2d 356.)
   OPINION OF THE COURT

Chief Judge Kaye.

Does an intruder’s unauthorized inspection of a client’s documents in a lawyer’s office give rise to a cause of action by the client against the intruder for violation of the attorney-client privilege? On the facts presented, we answer this question, certified to us by the United States Court of Appeals for the Second Circuit, in the negative.

As set forth in the parties’ submissions, plaintiff George Madden founded a neighborhood coalition to oppose construction of a 12-screen movie theater complex by defendant National Amusements, Inc., a movie theater chain, in a residential area of the Town of Pittsford. Madden enlisted Francis E. Kenny, a partner in the Rochester firm of Nixon, Hargrave, Devans & Doyle, to provide pro bona legal services to the coalition, which included petitioning the Town Board to deny the rezoning application filed by National. National in turn retained defendant Creative Services, Inc., a private investigative firm. According to plaintiffs, the purpose was to intimidate and discredit them; according to defendants, the purpose was to uncover any possible connection between Madden and National’s competitor Loews Theaters, Inc., also a Nixon, Hargrave client.

On November 14, 1991, Creative dispatched Ralph Douglas Howe, Jr. and Michael Sean Cole- — Massachusetts-based investigators not licensed in New York — to place Madden and his wife, plaintiff Roseanne Cohen, under surveillance. The investigators allegedly followed and photographed plaintiffs without their knowledge. Posing as prospective homebuyers, Howe and Cole also made an appointment with a real estate agent to visit plaintiffs’ residence.

After business hours the next day — Friday, November 15— Howe and Cole entered the Nixon, Hargrave offices claiming to have lost a ring. They gained access to Kenny’s office, where building personnel found them photographing purportedly privileged documents about the zoning dispute. When briefly left alone in the offices, Howe and Cole fled but were spotted at a local motel and arrested the following morning. The arrest preempted the scheduled visit to plaintiffs’ residence. Defendants never developed the photographs, and no disclosure of documents or information is alleged by plaintiffs. Defendant employers deny authorizing or knowing of the investigators’ conduct.

Charged with third degree burglary (Penal Law § 140.20) and petit larceny (Penal Law § 155.25), Howe and Cole each pleaded guilty to trespass (Penal Law § 140.05). Additionally, an action was instituted by Attorney Kenny against the investigators and their employers (Kenny v Creative Servs., US Dist Ct, WD NY, 92 Civ 6301T).

Plaintiffs commenced the present action in the United States District Court for the Western District of New York against Creative, its president (Alan T. Sklar), Howe, Cole, National and its president (Sumner Redstone), alleging the following causes of action: intentional interference with the attorney-client privilege; intentional infliction of emotional distress; conversion of documents; unlawful search and seizure; intentional interference with the right to petition governmental agencies; negligent retention, instruction and supervision against the employer defendants; and loss of consortium on behalf of each plaintiff. Plaintiffs sought $3.3 million in damages — $1 million in compensatory damages for their feelings of personal insecurity, fear of being followed, emotional distress, increased anxiety and nightmares; $300,000 for loss of consortium; and $2 million in punitive damages. Defendants moved to dismiss the complaint for failure to state a claim or for summary judgment (which elicited affidavits from both sides supplementing their pleadings), and defendants National and Redstone additionally sought sanctions against plaintiffs and their counsel for groundless litigation.

The District Court dismissed the complaint in its entirety for failure to state a claim, declining to impose sanctions, and plaintiffs appealed to the United States Court of Appeals for the Second Circuit. The Second Circuit certified two questions to us — whether a cause of action for invasion of the attorney-client privilege was stated and, if so, whether economic loss was an element of such a cause of action — indicating that it was “inclined to agree” with the District Court’s disposition as to all other causes of action (24 F3d 394, 396). Agreeing that the proposed cause of action for invasion of the attorney-client privilege presents a State law issue of interest, we accepted the certified questions (83 NY2d 934), to which we now turn.

The asserted legal basis, or theory, of plaintiffs’ damage claim for invasion of the attorney-client privilege is contained in three paragraphs of the amended complaint:

“32. All documents and information provided by Plaintiffs to Francis E. Kenny, Esq. were provided in the course of the attorney-client relationship and are thus protected under the attorney-client privilege set forth in § 4503 of the New York Civil Practice Law and Rules.
”33. Defendants wilfully and intentionally invaded and interfered with Plaintiffs’ professional relationship with their attorney in violation of the attorney-client privilege.
“34. As a result of Defendants’ intentional interference and invasion in violation of the attorney-client privilege, Plaintiffs have suffered compensatory damages in the sum of One Million Dollars ($1,000,000.00) and punitive damages in the sum of Two Million Dollars ($2,000,000.00).”

In assessing the viability of plaintiffs’ claim, the District Court measured the allegations against the words of CPLR 4503. The statute by its terms bars only the disclosure of confidential communications in enumerated proceedings. In that no such disclosure is alleged by plaintiffs, the court struck the claim, adding that "other than mental distress, plaintiffs have not alleged that they have suffered an injury as a result of the unauthorized examination of the documents in Kenny’s office.” (872 F Supp 1205, 1210.)

Defendants’ motions to dismiss, which would close the courthouse doors to plaintiffs before full discovery and trial, oblige us to look beyond the precise theory asserted in the pleading and to dismiss only if no cause of action is revealed by the facts. Even on this broader review, however, we agree with the District Court that these plaintiffs fail to state a cause of action.

While the subject of remedies for breach of confidence has generated scholarly interest (see, e.g., Note, Confidentiality: A Measured Response to the Failure of Privacy, 140 U Pa L Rev 2385 [1992]), no New York court — or apparently any other— has considered whether a client can recover damages solely for a third party’s intrusion on the attorney-client privilege. Some New York courts have recognized a cause of action by patients against physicians (see, e.g., Oringer v Rotkin, 162 AD2d 113, 114 [psychologist]; MacDonald v Clinger, 84 AD2d 482, 486-489 [psychiatrist]; Doe v Roe, 93 Misc 2d 201, 209-214, supra [psychiatrist]) and by client against social worker (see, Harley v Druzba, 169 AD2d 1001, 1002). These claims have been premised on violation of a fiduciary or contractual relationship, which is not the theory of the present case.

That a proposed cause of action has not previously been recognized by us, or indeed by any other court in the Nation, is itself inconclusive, for it is the strength of the common law to respond, albeit cautiously and intelligently, to the demands of commonsense justice in an evolving society.

Analysis begins by defining the interest plaintiffs would, by the cause of action they urge be added to the law of New York, seek to protect: the confidentiality of attorney-client communications.

At common law, communications made in confidence between attorney and client were held confidential as a matter of the attorney’s code of honor (see, Richardson, Evidence § 410 [Prince 10th ed]). That precept is embodied in the Code of Professional Responsibility binding attorneys to keep private the confidential communications and secrets of their clients on pain of professional discipline, including loss of their license to practice law (see, DR 4-101 [22 NYCRR 1200.19]; see also, EC 4-4). The motivating force behind insistence on confidentiality is that it promotes effective representation; clients should be encouraged to speak fully and freely to counsel, secure in the knowledge that the attorney will not expose their confidences (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377). As we noted in Matter of Priest v Hennessy (51 NY2d 62, 72): "The adversarial nature of our legal system puts a premium on free and unconstrained access to legal advice and, in so doing, re-emphasizes how essential it is that we do not slacken in our support for the strong public policy favoring confidentiality of attorney-client communications.”

While rooted in the common law, the attorney-client privilege has been codified in CPLR 4503. As defined by the Legislature, it is an evidentiary privilege that protects against disclosure of confidential communications only in specified proceedings (see, by contrast, CPLR 4504 [a] [physician barred from disclosing any information acquired in professional relationship]). The privilege applies not to all confidential communications between client and counsel, but only to those of a legal character relating to the engagement (Rossi v Blue Cross & Blue Shield, 73 NY2d 588, 593). It is subject to exceptions, both legislative (CPLR 4503 [b]) and Judge-made (see, Alexander, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, CPLR C4503:5, at 580). Finally, in that the attorney-client privilege is — like all privileges — a limitation on the truth-seeking process, the statute is strictly construed (Matter of Priest v Hennessy, 51 NY2d, at 68).

Plaintiffs understandably do not claim a private right of action under CPLR 4503. A private right of action will be implied only where the plaintiff is one of the class for whose particular benefit the statute was enacted, where recognition of a private right of action would promote the legislative scheme, and where creation of such a right would be consistent with the legislative scheme (see, e.g., Sheehy v Big Flats Community Day, 73 NY2d 629, 633). Plainly plaintiffs would fail that test, as they fall within neither the statutory terms nor the legislative intent, which reveals no thought of creating a private cause of action against third parties.

Rather, plaintiffs urge that a new tort claim be created for third-party intrusions because, as a matter of public policy, the confidentiality of attorney-client communications is of supervening societal importance. In plaintiffs’ words, damages are necessary in order "to vindicate fully the attorney-client privilege and to send a message to those who would invade the privilege that they do so at their peril.” On the facts before us, we cannot agree that either the protection of plaintiffs’ right or the prosecution of defendants’ wrong requires that we recognize the proposed new claim for damages.

Tort liability of course depends on balancing competing interests: "the question remains who is legally bound to protect [plaintiffs’ right] at the risk of liability. * * * [To] identify an interest deserving protection does not suffice to collect damages from anyone who causes injury to that interest” (Humphers v First Interstate Bank, 298 Ore 706, 713-716, 696 P2d 527, 530-533). Not every deplorable act — as the intentional trespass here surely was — is redressable in damages.

Imposing a new tort duty, and tort liability for compensatory and punitive damages, is unquestionably a "part of this Court’s important common-law tradition and responsibility” (Trombetta v Conkling, 82 NY2d 549, 553). We exercise that responsibility with care, mindful that a new cause of action will have foreseeable and unforeseeable consequences, most especially the potential for vast, uncircumscribed liability (Trombetta, 82 NY2d, at 554; Tobin v Grossman, 24 NY2d 609, 615).

The potential expanse of the proposed cause of action is evident. A claim for third-party intrusions on attorney-client confidences necessarily envelops damage claims against attorneys themselves, which we have yet to recognize. Additionally, such claims could hardly be confined to attorney-client confidences; certainly no rational distinction could be made among the privileged relationships recognized by the Legislature. Of concern as well is that, under existing tort law, proven emotional injury is ordinarily as fully compensable as economic injury (see, Kennedy v McKesson Co., 58 NY2d 500, 504-505; Ferrara v Galluchio, 5 NY2d 16, 21; see also, Ausubel, Recovery for Psychic Injury in New York, 58 NY ST BJ 43 [Jan. 1986]; Prosser and Keeton, Torts § 12 [Lawyer’s 5th ed]).

Nor do the facts before us justify opening this new avenue— or, more realistically, thoroughfare — of liability. The professed basis for plaintiffs’ claim is protection of the attorney-client privilege, yet in this case they allege no harm that is tied to violation of the attorney-client privilege, no “injury [suffered] as a result of the unauthorized examination of the documents in Kenny’s office” (in the words of the District Court) (872 F Supp 1205, 1210, supra). The alleged damage resulting from the third-party intrusion is solely a generalized fear for personal safety and security that might accompany a theft or trespass on one’s property. A new cause of action for intrusion on the attorney-client privilege should at least require some element of harm to plaintiffs that arises directly from a breach of this privilege.

It is perhaps because of the adequacy of existing remedies to deter third-party invasions of the attorney-client privilege that no court before us has been asked to impose the liability plaintiffs now seek (see, by contrast, Caceci v Di Canio Constr. Corp., 72 NY2d 52, 57-58). Those who attempt an unlawful intrusion by fraud, trespass or force, and those in complicity with them, may face criminal penalties; private investigators are additionally subject to license revocation or, if unlicensed, criminal sanctions (see, General Business Law art 7). Attorneys are encouraged by available disciplinary sanctions and negligence law to secure clients’ privileged documents adequately, and might even themselves be subject to damages for breach of confidence. There are existing causes of action, such as intentional infliction of emotional distress and conversion, simply not made out on the facts before us. Finally, had defendants’ examination of confidential documents prejudiced plaintiffs in a zoning or other proceeding, sanctions could have been sought (see, Lipin v Bender, 84 NY2d 562).

In the end, it is clear that plaintiffs would by this new cause of action, the functional equivalent of a common-law privacy tort, merely circumvent established privacy law (see, Howell v New York Post Co., 81 NY2d 115, 123; Freihofer v Hearst Corp., 65 NY2d 135, 141). In this case, that is neither necessary to protect the private interest at issue nor prudent as a matter of public policy.

Accordingly, certified question No. 1 should be answered in the negative and certified question No. 2 not answered as unnecessary.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and records submitted, certified question No. 1 answered in the negative and certified question No. 2 not answered as unnecessary.

      . Plaintiffs annex to their opposition papers certain of the documents, which consist of suggested strategies for the zoning dispute — a dispute in which the citizens’ group apparently prevailed.

      . In Doe v Roe (93 Misc 2d 201) and Hammonds v Aetna Cas. & Sur. Co. (243 F Supp 793 [ND Ohio 1965]), the third party was a joint tortfeasor who induced the physicians’ breach of confidence. In this case, by contrast, plaintiffs make no claim that Attorney Kenny participated in the trespass. They seek relief only against the third parties.