author: Gabrielli, J. Jasen, J. Wachtler, J.

text:
    The People of the State of New York, Appellant-Respondent, v William Cona et al., Respondents, and Raymond Melnick et al., Appellants.
    Argued September 4,1979;
    decided December 13, 1979

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (Richard C. Laskey of counsel), for the People of the State of New York, appellant.
    I. The determination by the court below that the issue of whether or not Buchalski was an accomplice after January 10, 1972, was preserved as a question of law, is reversible error. (People v Belge, 41 NY2d 60; People v Williams, 31 NY2d 151; People v Mackell, 40 NY2d 59; People v Vidal, 26 NY2d 249; People v Gates, 24 NY2d 666; People v Morhouse, 21 NY2d 66; People v Watson, 57 AD2d 143.) II. The guilt of each respondent was proved by legally sufficient evidence. (People v Baker, 46 AD2d 377; People v Fielding; 39 NY2d 607; People v Swift, 161 Misc 851, 251 App Div 808, 277 NY 618; People v La Magna, 37 AD2d 598; People v Basch, 36 NY2d 154; People v Clougher, 246 NY 106; People v De Masco, 240 NY 170; People v Brooks, 34 NY2d 475; People v Beaudet, 32 NY2d 371.)

      William Sonenshine and Joseph Fallek for Raymond Mel-nick and others, appellants.
    I. The proof offered upon the trial was not sufficient in law to meet the required statutory standard of corroboration of the accomplice testimony. (People v Dixon, 231 NY 111; People v Sabella, 35 NY2d 158; People v Daniels, 37 NY2d 624; People v Wheatman, 31 NY2d 12; People v Wasserman, 46 AD2d 915; People v O'Farrell, 175 NY 323; People v Kohut, 30 NY2d 183; People v Gioia, 286 App Div 528; People v Diaz, 19 NY2d 547.) II. The court’s two-day charge was too long, confusing, incorrect and unfair. (People v Carroll, 37 AD2d 1015; People v Tisdale, 18 AD2d 274; People v Kresel, 243 App Div 137; People v Miles, 48 AD2d 706; People v Clayborn, 50 AD2d 952; Bruton v United States, 391 US 123; Jackson v Denno, 378 US 368; Frazier v Cupp, 394 US 731; Matter of Kelly v Murphy, 20 NY2d 205; People v Court, 52 AD2d 891.) III. The trial court’s allowing evidence of uncharged crimes deprived appellants Fortuna and Bergold of a fair trial. (People v Rivera, 26 NY2d 304; People v Bennett, 35 AD2d 944, 29 NY2d 462; People v Sher, 24 NY2d 454; People v McKinney, 24 NY2d 180.)

      William Sonenshine and Joseph Fallek for Richard White, appellant.
    I. The proof offered upon the trial was not sufficient in law to meet the required statutory standard of corroboration of the accomplice testimony. (People v Dixon, 231 NY 111; People v Sabella, 35 NY2d 158; People v Daniels, 37 NY2d 624; People v Wheatman, 31 NY2d 12; People v Wasserman, 46 AD2d 915; People v O'Farrell, 175 NY 323.) II. Appellant White was improperly convicted of the various crimes herein solely upon the basis of tape-recorded conversations without any additional proof that the offenses charged were committed. (People v Jennings, 40 AD2d 357; People v Epton, 19 NY2d 496; People v Silverman, 281 NY 457; People v Fitzgerald, 288 NY 58; People v Phelps, 13 AD2d 675; People v Insogna, 28 AD2d 771.)

      Stanley M. Meyer for William Cona and another, respondents.
    I. The court below did not exceed its power in holding that the evidence at trial was insufficient. (People v Wagner, 71 App Div 399; People v Atwater, 191 App Div 345, 229 NY 303.) II. The extraordinary length of the court’s charge with respect to marshaling the evidence deprived respondents, Cona and Auletta, of a fair trial. (People v Ramsey, 40 AD2d 837; People v Jackson, 39 AD2d 557; People v Kresel, 243 App Div 137; Bruton v United States, 391 US 123.) III. The evidence against respondents, Cona and Auletta, was insufficient to sustain their conviction. The court below correctly reached that conclusion. (People v Dixon, 231 NY 111; People v Wasserman, 46 AD2d 915; People v O'Farrell, 175 NY 323; People v Ruberto, 10 NY2d 428, 371 US 842; People v Watford, 19 AD2d 731; People v Wheatman, 31 NY2d 12; People v Fiore, 12 NY2d 188; People v Nitzberg, 287 NY 183, 754; People v Dingle, 70 Misc 2d 840.) IV. The sentences were excessive.

      William Sonenshine and Joseph Fallek for Melvin Brown and others, respondents.
    I. The court below acted within its statutory powers in determining that the sufficiency of the trial evidence presented an issue of law. (People v Wagner, 71 App Div 399; People v Atwater, 191 App Div 345, 229 NY 303.) II. The court below correctly decided that the trial evidence was insufficient in law to sustain the convictions of respondents. (People v Dixon, 231 NY 111; People v Sabella, 35 NY2d 158; People v Daniels, 37 NY2d 624; People v Wheatman, 31 NY2d 12; People v Wasserman, 46 AD2d 915; People v O’Farrell, 175 NY 323; Bruton v United States, 391 US 123; People v De Lucia, 20 NY2d 275.) III. There was no nonaccomplice proof tending to connect respondents Zummo or Mattina to the crimes charged; and the court improperly failed to instruct the jury that O’Brien, whose testimony was the only purported corroboration offered against these respondents, was an accomplice as a matter of law. (People v Beaudet, 32 NY2d 371; People v Jenner, 29 NY2d 695; People v Di Sessa, 42 AD2d 952; United States v Sansone, 231 F2d 887, 351 US 987; People v Ozarowski, 38 NY2d 481; United States v Torres, 503 F2d 1120; People v Sabella, 35 NY2d 158; People v O’Farrell, 175 NY 323.) IV. The court’s two-day charge was unduly lengthy, confusing, incorrect and unfair. (People v Carroll, 37 AD2d 1015; People v Tisdale, 18 AD2d 274; People v Kresel, 243 App Div 137; People v Miles, 48 AD2d 706; People V Clayborn, 50 AD2d 952; Bruton v United States, 391 US 123; Jackson v Denno, 378 US 368; Frazier v Cupp, 394 US 731; Matter of Kelly v Murphy, 20 NY2d 205; People v Court, 52 AD2d 891.)

      Eugene Gold, District Attorney (Richard C. Laskey of counsel), for the People of the State of New York, respondent.
    I. The issue of whether or not corroboration was required for Buchalski’s testimony concerning events which occurred after he became an undercover agent has not been preserved for review by this court. (People v Lagana, 36 NY2d 71; People v Vidal, 26 NY2d 249; People v Gates, 24 NY2d 666; People v Daniels, 37 NY2d 624; People v Morhouse, 21 NY2d 66; People v Watson, 57 AD2d 143, 45 NY2d 867; People v Spiegel, 60 AD2d 210.) II. CPL 60.22 does not require that Buchalski’s testimony concerning events occurring after January 10, 1972 be corroborated. (People v Pomerantz, 46 NY2d 240; People v Brooks, 34 NY2d 475; People v Swift, 161 Misc 851, 251 App Div 808, 277 NY 618; People v Beaudet, 32 NY2d 371; United

      States v Becker, 62 F2d 1007; United States v Brown, 454 F2d 397; People v Roth, 30 NY2d 99; People v Lulinski, 41 AD2d 940; People v Savvides, 1 NY2d 554.) III. The guilt of each appellant was supported by corroborative evidence sufficient to satisfy the requirements of CPL 60.22 (subd 1). (People v Daniels, 37 NY2d 624; People v Kress, 284 NY 452; People v Dixon, 231 NY 111; People v Morhouse, 21 NY2d 66; People v Harris, 52 AD2d 672; People v Duffy, 160 App Div 385, 212 NY 57; People v Kirkpatrick, 32 NY2d 17; People v Corbisiero, 290 NY 191; People v Farina, 290 NY 272; Cramton v Ohio, 402 US 183.) IV. Appellants received a fair trial. (Capriola v United States, 61 F2d 5; Lutwak v United States, 344 US 604; People v Kresel, 243 App Div 137; People v Bell, 45 AD2d 362, 38 NY2d 116; People v Ozarowski, 38 NY2d 481; People v Baker, 46 AD2d 377; People v Fielding, 39 NY2d 607; People v Swift, 161 Misc 851, 251 App Div 808, 277 NY 618; People v La Magna, 37 AD2d 598; People v De Masco, 240 NY 170.)

      John F. Keenan, Deputy Attorney-General as Special State Prosecutor (Thomas A. Duffy, Jr., and Mark M. Baker of counsel), amicus curiae.

    I. The right to contest, on the law, whether a particular witness should have been charged to the jury as an accomplice, and thereafter, by necessity, whether his testimony was sufficiently corroborated, must be preserved by a specific exception and cannot be raised in and of itself, in the absence of any litigated controversy on the question, as part of a general challenge to the sufficiency of the trial evidence. (People v Daniels, 37 NY2d 624; People v Robinson, 36 NY2d 224; People v Weis, 32 AD2d 856, 397 US 1047; People v Watson, 57 AD2d 143; People v Spiegel, 60 AD2d 210; People v Nixon, 248 NY 182; People v Thomas, 36 NY2d 514; Martin v City of Cohoes, 37 NY2d 162; People v Mayhew, 150 NY 346; People v Blank, 283 NY 526; People v Johnson, 46 AD2d 55.) II. Independent evidence gathered by a former coconspirator after that point at which he is "turned” is not evidence of- an accomplice but that of a valid police agent acting in an official role. Such is even more so the case in regard to taped admissions of former cohorts which are later procured and which relate to events occurring after the informant had been so turned. (People v Jackson, 69 Misc 2d 793; People v Swift, 161 Misc 851, 251 App Div 808, 277 NY 618; People v Rastelli, 37 NY2d 240, 423 US 995; United States v Sansone, 231 F2d 887, 351 US 987; People v Goldfeld, 60 AD2d 1.)
   OPINION OF THE COURT

Gabrielli, J.

This case requires us to determine whether the testimony of an admitted accomplice may artificially be divided into testimony concerning events which occurred before the witness became an accomplice and testimony about incidents which took place after the witness became an accomplice, so that the prior testimony can serve as corroboration for the latter testimony. The accomplice corroboration rule cannot be so readily evaded, for an accomplice simply cannot corroborate his own testimony. Any other result would serve only to eviscerate the accomplice corroboration requirement imposed by CPL 60.22 (subd 1).

The prosecutions involved in this appeal are based on a scheme devised by several New York City police officers to obtain funds from gamblers in return for a guarantee that the operations of those gamblers would not be curtailed by police interference. Following an extensive jury trial, each defendant involved in this appeal was convicted of one count of bribe receiving, one count of receiving a reward for official misconduct, two counts of conspiracy, and one count of official misconduct. On an appeal by the convicted defendants, the Appellate Division affirmed the convictions of defendants Mel-nick, White, Bergold and Fortuna. The convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona, Auletta, Zummo, Mattina, Callis and Greene, however, were reversed by the Appellate Division on the ground that the evidence of those defendants’ guilt was comprised solely of uncorroborated accomplice testimony. For the reasons discussed below, we conclude that the order of the Appellate Division should be modified by reinstating the convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona and Auletta, and otherwise affirmed.

The convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona and Auletta were based on the uncorroborated testimony of Police Officer Buchalski, originally a conceded member of the conspiracy who eventually became a police agent. The Appellate Division concluded that these convictions could not stand due to the absence of corroboration other than Buchalski’s own testimony. Due to our limited powers of review we may not reach this issue. To create and preserve a question of law amenable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction (CPL 470.05, subd 2; compare People v Michael, 48 NY2d 1, with People v Robinson, 36 NY2d 224). In the instant case, no objection was made to that portion of the court’s charge which dealt with the application of the accomplice corroboration rule to Buchalski’s testimony concerning these defendants; hence, under settled rules of law and statutory construction, these defendants failed to preserve a question of law as to the correctness of that portion of the charge.

Unlike the Court of Appeals, the Appellate Division as an intermediate court of review has broad power to review questions of fact and discretion as well as questions of law (see CPL 470.15, 470.30). Hence, the Appellate Division, if it deems it appropriate, may exercise its discretionary power to review alleged errors even in the absence of that timely objection which is necessary to create a question of law. Where the Appellate Division exercises this discretion, however, and reverses a conviction on the basis of an issue not preserved, its order is then grounded at least in part upon the exercise of that discretion and is thus not appealable to this court (see People v Johnson, 47 NY2d 124; People v Williams, 31 NY2d 151).

In the instant case, the Appellate Division reviewed defendants’ claim of error with respect to the accomplice corroboration charge given concerning Buchalski’s testimony, despite the defendants’ failure to timely object to that portion of the charge. Had the Appellate Division’s decision to review this claim been based on an exercise of discretion, we would have been compelled to dismiss the appeal insofar as it pertains to the Appellate Division reversal of the convictions of these defendants. As it is, however, the Appellate Division erroneously concluded as a matter of law that a question of law was preserved with respect to the corroboration of Buchalski’s testimony despite defendants’ failure to object. Hence, the Appellate Division order was actually based on a determination of law, albeit an erroneous one, and is thus not subject to dismissal. Our power to review, however, is limited to that question of law, and after concluding that the Appellate Division erred in determining that a question of law was presented, our review must stop at that point and we must remit the matter to the Appellate Division for that court to determine whether it would be appropriate to exercise its broader review power.

A different situation exists, however, with respect to defendants Zummo and Mattina. Their convictions were based upon the uncorroborated testimony of Police Officer O’Brien. O’Brien’s initial contacts with this criminal enterprise arose in the course of his activities as an undercover police agent assigned to investigate possible police corruption. Had he remained faithful to his duty, there would of course be no need to corroborate his testimony. This is so because an undercover police agent is simply not an accomplice, due to the absence of any criminal intent. As it is, however, O’Brien eventually succumbed to temptation, eschewed his obligations as an undercover agent, and became an active and actual member of the conspiracy. Although the trial court charged the jury that O’Brien was an accomplice as a matter of law after this conversion and that his testimony concerning incidents which occurred while he was an accomplice must be corroborated, the court refused to charge that O’Brien’s testimony about prior events was also subject to the corroboration requirement. By timely requesting such a charge, these defendants created a question of law amenable to appellate review; hence the determination of the Appellate Division as to these defendants was made on the law alone and is subject to our review. For the reasons discussed below, we conclude that the Appellate Division correctly set aside the convictions of defendants Zummo and Mattina.

An accomplice is "a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22, subd 2). The prosecutions underlying this appeal were premised upon the defendants’ participation in an ongoing criminal enterprise pursuant to which police officers solicited bribes from gamblers on a regular basis in return for "protection” from police interference with the gamblers’ operations. It is conceded that O’Brien fully participated in this scheme for a considerable period of time following his abandonment of his duties as an undercover agent. Hence, at the very least, he necessarily participated in "[a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged”. Having reached this conclusion, we must hold that, in accord with the plain language of the law, the defendants could not be convicted on the basis of O’Brien’s uncorroborated testimony. There exists no justification for distinguishing between testimony pertaining to different periods of time as a basis for application of the accomplice corroboration rule. The effect of a contrary decision would be to make it possible to avoid the accomplice corroboration rule in any situation in which an admitted accomplice did not participate in all of the crimes for which the defendants are tried. In such a case, the testimony of the accomplice concerning incidents which he observed but in which he did not participate, under the approach urged by the People, would not be subject to the corroboration requirement and could indeed serve as corroboration for the witness’ other testimony. So viewed, the result in such a case would be that which the accomplice rule was specifically designed to avoid: "conviction [based] solely upon the testimony of persons who are in some way criminally implicated in * * * the general conduct or factual transaction on trial” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 60.22, pp 194-195).

The accomplice corroboration rule is premised upon a legislative determination that the testimony, of individuals who may themselves be criminally liable is inherently suspect. This is deemed to be true because such individuals may be subject to pressures impelling them to color testimony in order to protect themselves by belittling the actual extent of their involvement in the criminal enterprise at the expense of others. In a similar vein, a person who agrees to turn State’s evidence may believe it to be in his best interests to embellish the truth when testifying about the defendants in order to secure the approval of officials who have the authority to prosecute the accomplice should they not be satisfied with his cooperation. In short, the accomplice corroboration rule entails a legislative recognition that, as a result of these various pressures, both real and imagined, to which an informant may be subject, such testimony is somewhat suspect. At the same time, such testimony is often a necessary predicate for successful criminal prosecutions. Whatever the wisdom of the solution the Legislature has developed in order to resolve this dilemma, the rule is plain and must be properly applied by the courts.

The dissenting opinion is impliedly premised on the perception that a person who is subject to criminal liability for some but not all of the crimes committed in the course of an ongoing criminal enterprise will be less inclined to color the truth in testifying about those incidents for which he cannot be liable. This view is unrealistic in the extreme, for the desire of the witness to diminish his own potential criminal liability and to please the prosecutor will inevitably affect his entire testimony, since it is the result of the entire prosecution which will be of concern to the informant. More importantly, even if the dissenters’ premise were true, it would be irrelevant. The basis for the accomplice corroboration rule, quite simply, is mistrust of an informant’s testimony about matters relevant to his potential criminal liability. Thus, the rule requires corroboration from some source other than the informant himself, in order to support a conviction based upon the informant’s testimony. The fact that part of an informant’s testimony may not be concerned with matters for which he himself is criminally liable in no way militates against the suspect nature of his testimony taken as a whole. The type of bootstrapping which the dissent would endorse in this case is in clear conflict with the purpose and intent of the accomplice corroboration rule, since it would result in convictions based solely upon the testimony of an accomplice. Any change in this rule should come from the Legislature, not the courts.

In conclusion, we note that our decision today warrants none of the spectres of "shackling the forces of law enforcement” or "depriving] law enforcement of a vital and necessary investigative technique” envisaged by the dissenters. The "use of the turncoat conspirator” will continue to be fully available. We require only that the evidence thereby produced be supported by corroborative evidence tending to connect the defendant with the commission of the crime. It should be emphasized, moreover, that the accomplice corroboration rule obviously is not applicable to the testimony of all or even most undercover police agents; corroboration is necessary only with respect to the testimony of those prosecution witnesses who actually were accomplices. This is not a crippling requirement and serves to assure the reliability of evidence furnished by. a witness who must be perceived as possibly laboring under considerable inducements to favor the prosecution.

Turning to the remaining issues raised on this appeal, we find that the convictions of defendants Melnick, White, Bergold and Fortuna were properly affirmed by the Appellate Division, for the reasons stated in the majority opinion at the Appellate Division. As to defendants Callis and Greene, we agree with the Appellate Division that there is insufficient evidence in the record to corroborate the accomplice testimony implicating those defendants. We find the other contentions raised by defendants to be without merit.

Accordingly, the order of the Appellate Division should be modified by reinstating the convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona and Auletta and the case as to those defendants should be remitted to the Appellate Division for that court to determine whether to exercise its discretionary power to review defendants’ accomplice corroboration claim in the absence of any timely objection, and, as so modified, should be affirmed.

Jasen, J.

(dissenting in part). I simply cannot agree with the majority’s restrictive, if not oppressive, construction of the statutory corroboration rule. (CPL 60.22, subd 1.) In holding that once a police officer is implicated in some way in a criminal scheme his testimony forever thereafter must be corroborated, even though he becomes officially an undercover police agent against his former cohorts, the majority has effectively and permanently deprived law enforcement of a vital investigative technique — the use of the turncoat conspirator. The Legislature in enacting CPL 60.22 never could have intended to include undercover police agents as accomplices. An undercover agent is not an accomplice witness so long as he is gathering evidence for the prosecution of crime.

In cases involving well-organized criminal conspiracies, the use of undercover police agent testimony is usually necessary to break the conspiracy. It is common knowledge to all that a criminal conspiracy is, by its inherent nature, a close-knit organization. The activities of a conspiracy are shrouded by a protective cloak of secrecy not only to insulate its members from criminal prosecution, but, also, to ensure its very existence. The majority’s holding today, by unnecessarily shackling the forces of law enforcement in requiring the testimony of undercover police agents to be corroborated, serves only to strengthen the protective walls which surround all conspiracies and to provide nourishment for their continued well-being.

This case concerns the issue whether the testimony of two New York City police officers, both of whom at one time participated in a scheme whereby various gamblers immunized themselves from criminal arrest and prosecution by making payments to law enforcement officers, needs to be corroborated or, to the contrary, may serve as corroborating evidence when such testimony relates to events which occurred at a time when these officers were assigned undercover police agents co-operating fully with officials investigating corruption within the police force and were not members of the criminal conspiracy.

At trial, the case for the People proceeded on the theory that each of the defendants, all of whom had been members of the New York City Police Department, had assumed an active role in a detailed and calculated plan whereby periodic payments would be made to police officers by various gamblers to ensure that the latters’ illegal activity could be conducted without fear of prosecution. This criminal enterprise, known as a "pad” at the 13th Plainclothes Division, possessed all the attributes of a sophisticated business venture. Meetings were held at various times to formulate the governing rules and regulations of the pad, and plans to induce other gamblers to make- payments and to assimilate newly assigned division officers into the conspiracy were devised.

Further, certain of the officers were appointed to collect the periodic payments, known as "contracts”, from the various gamblers who succumbed to the pad members’ inducement. The moneys were distributed to pad members by duly elected splitmen, and officers departing from the division would receive "severance pay” in the form of their share of two months’ pad payments. In addition, if a pad member was arrested for a crime committed in the course of the illegal scheme, he would be awarded the entire pad for two months to defer legal fees and other expenses.

After a jury trial at which the workings of the criminal enterprise and the defendants’ involvement therein were fully described, defendants were each convicted of one count of bribe receiving, one count of receiving a reward for official misconduct, two counts of conspiring to commit the aforementioned crimes, and one count of official misconduct. On appeal, the Appellate Division affirmed the judgments of conviction as to defendants Melnick, White, Bergold and Fortuna, but reversed the judgments of conviction and dismissed the indictments against defendants Reitano, Maroney, Brown, Conti, Carter, Cona, Auletta, Zummo, Mattina, Callis and Greene, finding that the evidence was legally insufficient to sustain their convictions inasmuch as there existed no independent proof to corroborate the accomplice testimony implicating these defendants as required by law. (CPL 60.22, subd 1.) I would modify the order of the Appellate Division by reinstating the convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona, Auletta, Zummo and Mattina, and, as so modified, affirm.

The central issue on this appeal concerns the testimony of Officers James O’Brien and Stephen Buchalski, both of whom testified on behalf of the prosecution. In June, 1970, O’Brien was assigned by Deputy Inspector William Bonacum to work as an undercover agent in the 13th division to investigate possible corruption. The evidence adduced at trial reveals that for the first few months of his assignment, O’Brien reported to Bonacum regularly and filed written reports on several occasions. However, sometime in October, 1970, O’Brien decided to become a member of the criminal enterprise. In accordance with this testimony, the court, after admonishing the jury that "a conviction * * * cannot be had on the uncorroborated testimony of an accomplice”, charged that although O’Brien was an accomplice as a matter of law "at the very latest, some time in mid or late October of 1970,” it was for the jury to determine, "after evaluating all of the testimony”, whether he was an accomplice before that time. The court refused a defense request to charge that O’Brien was an accomplice as a matter of law with respect to all the transactions and observations he related at trial.

Officer Stephen Buchalski, who had been a member of the pad, agreed to co-operate with the officers conducting the investigation on January 10, 1972. On that date, Buchalski was confronted with proof of his criminal participation in the pad and, in exchange for the District Attorney’s offer of immunity as to his past involvement, assented to engage, in the future, various members of the criminal enterprise in conversations concerning pad operations and to tape-record those conversations. At trial, highly incriminating tape recordings of conversations with 10 of the defendants herein were admitted into evidence.

The court charged the jury that Officer Buchalski "was an accomplice as to all transactions and observations to which he testified which occurred prior to January 10, 1972.” It is apparent, however, that the court reasoned that inasmuch as Officer Buchalski agreed to co-operate with the officers conducting the investigation on January 10, he ceased to be an accomplice as of that date and no corroboration of his testimony as to events after January 10 was required.

The issue raised on this appeal and common to all defendants is whether the evidence submitted at trial was legally sufficient to support their convictions in light of the statutory command that "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.” (CPL 60.22, subd 1.) In order to decide this issue, it is necessary to resolve the specific question whether, as a matter of law, the testimony of both Officers James O’Brien and Stephen Buchalski as to events and observations occurring at a time when they were undercover police agents co-operating with the police department needed to be corroborated, or, to the contrary, whether those statements as to events and observations when they were no longer criminally involved could themselves serve as corroborating evidence of defendants’ wrongdoings.

The term "accomplice”, for purposes of the corroboration rule (CPL 60.22, subd 1), is defined by statute as "a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.” (CPL 60.22, subd 2.) It has been observed that the intent of the Legislature in enacting this provision was to "broaden the definition of an accomplice” so that the purpose of the accomplice corroboration rule — "namely, preclusion of conviction solely upon the testimony of persons who are in some way criminally implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial” — could best be effectuated. (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 60.22, pp 194-195; see People v Dorta, 46 NY2d 818, 820; People v Basch, 36 NY2d 154, 157; People v Beaudet, 32 NY2d 371, 378; People v Jackson, 69 Misc 2d 793, 796-797; Rothblatt, Criminal Law of New York, CPL, pp 76-77.)

While the expansiveness of the statutory definition of "accomplice” embodied in CPL 60.22 (subd 2) cannot be disputed, this definition has been construed by this court as encompassing only those persons found, in some manner, to be criminally implicated in the offenses charged. (See, e.g., People v Dorta, 46 NY2d 818, supra; People v Fielding, 39 NY2d 607, 610; People v Basch, 36 NY2d 154, supra; People v Brooks, 34 NY2d 475.) Of course, when rendering this determination, the question of whether or not the alleged accomplice harbored the requisite criminal intent to engage in the illegal transaction is a critical consideration. (See People v Wheatman, 31 NY2d 12, 22; People v Jackerson, 247 NY 36, 42.)

It is beyond dispute that a police officer who works as a decoy or undercover agent in an effort to ferret out evidence of criminal transactions is not criminally implicated in the conduct involved and, therefore, is not an accomplice whose testimony would require corroboration. (People v Swift, 161 Misc 851, affd 251 App Div 808, affd 277 NY 618; People v Noelke, 94 NY 136, 141; see 1 Underhill’s Criminal Evidence [5th ed], § 182, p 385.) This is so because such an officer, although feigning criminal participation, does not harbor any criminal intent to violate the law, nor does he possess any motive to fabricate a story in an attempt to avoid prosecution. In short, his testimony is not of such suspect nature as to require corroboration, and, indeed, may serve as corroborating evidence if the jury accepts it as true.

Applying these principles to the case now before us, I conclude that the trial court properly instructed the jury that Officer Buchalski ceased to be an accomplice, as a matter of law, on January 10, 1972 — the date on which he agreed to cooperate in the investigation and become an undercover police agent. Further, in my opinion, the Trial Judge properly submitted the question of whether or not Officer O’Brien was an accomplice before October, 1970 to the trier of the facts, inasmuch as evidence adduced at trial could reasonably be viewed by the jurors as indicating that prior to that month Officer O’Brien was not acting as an accomplice, but, rather, was working in his assigned undercover capacity.

This conclusion that the Trial Judge properly instructed the jury as to the accomplice status of Officers Buchalski and O’Brien is predicated not only upon the observation that these officers were not accomplices while working in their undercover capacity, but, also, upon the recognition that their testimony as to events which occurred at a time when they were not participating criminally in the pad does not suffer from the infirmity of unreliability which the corroboration statute seeks to remedy. As perceptively noted by the dissent at the Appellate Division, Officer Buchalski, while acting as an agent of the District Attorney’s office, "no longer had a motive 'to share his guilt with others such as [defendants].’ ” His participation in the illegal activities had ended as of January 10, 1972, and "all of his actions from that time forward were not those of an accomplice.” (60 AD2d, p 333.)

Further, with respect to Officer O’Brien’s testimony concerning events occurring before the time he admitted joining the conspiracy, indicia of trustworthiness are supplied by the fact that he had regularly reported, or attempted to report, to his superior officer information concerning the ongoing criminal activity within the 13th division. It should be stressed, however, that the determination of when O’Brien joined the conspiracy properly remained an issue of fact for the jury.

It follows that inasmuch as Officer Buchalski ceased to be an accomplice as of January 10, 1972, and Officer O’Brien, if the jury chose to credit his testimony, did not become an accomplice prior to October, 1970, they would not be "accomplices” within the meaning and spirit of CPL 60.22 (subd 2) and, thus, their testimony as to events occurring when they were not criminal participants in the pad would not require corroboration, and, indeed, could serve as corroborating evidence. I would hold that one who participates in a criminal enterprise for the purpose of obtaining evidence upon which to convict other participants is not an accomplice as he is not criminally liable for that activity. I find no compelling reason to construe the statute, as does the majority, that a witness once a conspirator is forever condemned to testimonial impotence. Nor do I agree that a duly authorized undercover police agent who later joins the conspiracy should have his nonconspiratorial testimony subject, as a matter of law, to corroboration. With this in mind, I now address the more narrow issue as to what evidence could be considered corroborative of the accomplice testimony implicating the various defendants.

With regard to defendants Reitano, Maroney, Brown, Carter, Conti, Cona and Auletta, the Appellate Division predicated its reversal of the convictions of these defendants on the ground that Officer Buchalski’s testimony identifying the defendants’ voices on the tapes could not serve to "constitute independent proof 'tending to connect’ the seven above-named [defendants] with the crimes charged.” (60 AD2d, p 325.) I disagree.

Since these tape recordings were made at a time when Officer Buchalski was co-operating fully with the investigation of the criminal scheme, his testimony identifying the voices of these seven defendants on the tape recordings needed no corroboration. Such testimony, together with his testimony relating to these tape recordings, could serve to corroborate the testimony of other accomplice witnesses implicating these defendants in the criminal enterprise.

As to defendants Zummo and Mattina, Officer O’Brien testified that while he was on assignment with defendants Zummo and Mattina during the evening hours of September 22, 1970, these defendants received $990 from one Percy Peart, a known gambler. Further, Officer O’Brien testified that on the next day he attended a pad meeting at which Zummo and Mattina were present. Insofar as these events occurred at a time when the jury could reasonably have found that Officer O’Brien was acting in his undercover capacity, the jurors could, in accordance with the Trial Judge’s instruction, use this testimony to corroborate that of other accomplice witnesses if the jury found O’Brien not to be an accomplice during this period.

I would affirm the convictions of defendants Melnick, White, Bergold and Fortuna for the reasons stated in the majority opinion at the Appellate Division. I would only add, however, that with respect to defendants Melnick, White and Bergold, Officer Buchalski’s testimony concerning the highly incriminating tape-recorded conversations with these three defendants needed no corroboration.

With respect to defendants Callis and Greene, I would agree with the Appellate Division and the majority herein that there is insufficient evidence in the record to corroborate the accomplice testimony implicating these defendants.

A few concluding remarks are necessary. In espousing its unyielding, unjustifiable and unsupported construction of the statutory corroboration rule, the majority has not only artificially elevated form over substance so as to impede the efforts of law enforcement, but, in addition, has failed to comprehend that the corroboration rule is predicated not upon the recognition or protection of constitutional rights of an accused, but rather, upon a legislative determination that the testimony of those persons who may be implicated in the criminal transaction on trial is inherently suspect. As such, this court should be even more restrained to accord the statutory corroboration rule a wide-sweeping construction, especially where, as here, there exists absolutely no justification for such interpretation of the statutory language.

It should also be noted that it is the rule in Federal courts that a person accused of a crime may be convicted exclusively upon the uncorroborated testimony of an accomplice or coconspirator, his status as such being only one factor, albeit an important one, for the jury to consider when assessing the credibility of the witness. (See, e.g., United States v Wright, 573 F2d 681, 685, cert den 436 US 949; United States v Sigal, 572 F2d 1320, 1325; United States v Abrahamson, 568 F2d 604, 607; United States v Trevino, 565 F2d 1317, 1319, cert den 435 US 971; United States v Gunter, 546 F2d 861, 869, cert den 431 US 920; United States v Bermudez, 526 F2d 89, 99, cert den 425 US 970.) Indeed, a considerable number of our sister States have also adopted this approach. (See, e.g., Reed v People, 156 Col 450; People v Wilson, 66 111 2d 346; Martin v State, 258 Ind 83; State v Horton, 275 NC 651, cert den 398 US 959; Brown v Commonwealth, 208 Va 512; State v Rolax, 3 Wash App 653.)

I deem it necessary as well to voice my disagreement with the stance taken by the majority of this court that, on this appeal, we are unable to reach and decide the pure question of law whether Officer Buchalski’s testimony concerning events which occurred after he became a police undercover agent could serve as corroborating evidence. (See CPL 470.35, subd 2.) Not only did the Appellate Division pass upon this issue of law, thus preserving it for our review (see People v Ermo, 47 NY2d 863, 865-866 [Jasen, J., concurring]), but, in addition, all the defendants preserved this question of law by interposing a motion at the close of the People’s case to dismiss all the counts of the indictment on the ground that the prosecution had failed to establish a prima facie case against them.. As part of their argument, defendants stressed in detail that there was insufficient evidence, as a matter of law, to corroborate the testimony of the accomplice witnesses. The Trial Judge, in deciding the issue presented by these motions, unequivocally stated that the major issue was that of corroboration. Under these circumstances, and since the majority at the Appellate Division not only reached the issue but specifically predicated its determination upon the ground of legal insufficiency of the evidence, I am compelled to conclude that the issue of law concerning Buchalski’s testimony was properly before us for our adjudication.

Finally, I would note that although the majority would modify the order of the Appellate Division "by reinstating the convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona and Auletta” and remitting the case as to those defendants "to the Appellate Division for that court to determine whether to exercise its discretionary power to review defendants’ accomplice corroboration claim in the absence of any timely objection”, the result — reversal of those judgments of convictions — is a foregone conclusion in view of the majority’s holding that a duly authorized undercover police agent, under the circumstances presented, is an accomplice to the crimes charged against these defendants, so that his testimony must be corroborated. The end result for these jury-convicted defendants will be acquittal.

For these reasons, I would modify the order of the Appellate Division by reinstating the convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona, Auletta, Zummo and Mattina and remit the case as to said defendants to the Appellate Division, Second Department, for a determination of the facts (CPL 470.40, subd 2, par [b]), and, as modified, affirm.

Wachtler, J.

(dissenting in part and concurring in part). I agree with the majority that any question concerning corroboration of accomplices’ testimony must be preserved for review (see, e.g., People v Spiegel, 48 NY2d 647). Thus I join in the court’s opinion insofar as it relates to the defendants Reitano, Maroney, Brown, Carter, Conti, Cona and Auletta, in which cases no questions of law were preserved for review and thus the Appellate Division erred in reversing on the law (see People v Williams, 31 NY2d 151, 154).

With respect to the defendants Zummo and Mattina, I agree with the reasoning and disposition of Judge Jasen in his partial dissent. The effectiveness of undercover investigations in this State will be seriously undermined if the People are required to corroborate all the testimony of undercover police officers, or agents, who had previously been criminally involved in bribery or other corrupt activities.

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

Order modified by reinstating the convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona and Auletta and the case as to those defendants remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Tape recordings of various conversations allegedly entered into between Buchalski and these defendants were also admitted into evidence. Since the only evidence showing that the voices on the tapes were those of these defendants, however, was the uncorroborated testimony of Buchalski, the tapes may not serve as corroboration of Buchalski’s other testimony. This is to be contrasted to the situation of defendants White and Melnick, who admitted that the voices on the tapes were theirs. By so. stating, they themselves supplied the necessary corroboration.

      . It has been suggested that this issue was preserved for appellate review because of a motion to dismiss for insufficient evidence. Our examination of the record, however, persuades us that this motion, although formally made on behalf of all defendants, was not specifically directed at the failure to require corroboration for Buchalski’s testimony about these defendants. Conspicuous by its absence is any suggestion that the People’s proof as to these seven defendants was insufficient due to the failure to corroborate Buchalski’s testimony. Indeed, in furtherance of a legal argument not relevant to this appeal, the defendants argued strenuously that Buchalski should not be considered an accomplice after he agreed to serve as a police agent. At any rate, the failure to specify the lack of corroboration for Buchalski’s testimony as a basis for the motion to dismiss the case against these seven defendants precludes later use of that motion as a vehicle for creating a question of law on this point (see People v Spiegel, 48 NY2d 647, 648).

      . We note that a timely motion was made to dismiss the charges against these defendants due to the lack of corroboration for the accomplice testimony upon which the case against them was based.

      . Officer Edward Phillips, a one-time member of the pad, also testified on behalf of the prosecution. His testimony, however, is not at issue here inasmuch as the court charged the jury that Patrolman Phillips was an accomplice, as a matter of law, "as to all of the transactions and observations he testified to in this case.” Accordingly, the jury was informed that it could not use any of Phillips’ testimony to corroborate that of other accomplice witnesses.

      . The court stressed to the jury that a defendant’s conviction could not be sustained solely on the testimony of an accomplice unsupported by corroborative evidence. A fair reading of the Trial Judge’s charge indicates that the jurors were informed that if they determined Officer O’Brien to be an accomplice at some time before October, 1970, they could not use his testimony to corroborate that of accomplice witnesses if Officer O’Brien’s testimony concerned events or observations which occurred subsequent to the time the jurors determined O’Brien to be an accomplice.

      . I do not consider this conclusion with odds with CPL 60.22 (subd 3) which provides that "[a] witness who is an accomplice * * * is no less such because a prosecution or conviction of himself would be barred or precluded by some defense or exemption, such as * * * immunity * * * amounting to a collateral impediment to such a prosecution or conviction, not affecting the conclusion that such witness engaged in the conduct constituting the offense with the mental state required for the commission thereof.” This statutory provision addresses only the situation where witnesses, having knowingly engaged in the criminal offense, subsequently agree to testify on behalf of the prosecution as to events which occurred in the course of their participation. It has no application to a case where, as here, the witnesses are testifying to events which occurred at a time when they were not "engaged in the conduct constituting the offense with the mental state required for the commission thereof.”


source: Caselaw Access Project

author: Chief Judge Cooke. Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Willie McGee, Lionel Edwards, Also Known as Mickey, and Robert Tolliver, Appellants. The People of the State of New York, Respondent, v Alfred Quamina and Jake Waters, Appellants.
    Argued October 16,1979;
    decided December 17, 1979

      POINTS OF COUNSEL

      George W. Conaty, Jr., for Willie McGee, appellant.
    I. The affirmative defenses of entrapment and coercion were established as a matter of law. (People v Dioguardi, 8 NY2d 260; Callanan v United States, 223 F2d 171; People v Joyce, 47 AD2d 562; Sherman v United States, 356 US 369; Sorrells v United States, 287 US 435; People v Court, 52 AD2d 891.) II. The court erred in its charge regarding bribery in the second degree. III. It was an error for the court to deny McGee’s motion to dismiss when it dismissed counts two and three of the indictment. IV. The court erred in admitting tape recordings into evidence because the People failed to establish the authenticity and the proper chain of custody of the tape recordings. (People v Nicoletti, 34 NY2d 249; People v Blanda, 80 Misc 2d 79; People v Julian, 41 NY2d 340.) V. The court erred when it refused to grant appellant McGee a separate trial. VI. The court erred when it failed to dismiss the indictment against appellant McGee for violation of his rights to a speedy trial. VII. The court should reverse appellant’s conviction on the grounds of cumulative error. (People v Garcia, 7 AD2d 492; People v Carborano, 301 NY 39; People v Nuzzo, 294 NY 227; People v Zackowitz, 254 NY 192.)

      Edward J. Nowak, Public Defender (Deborah S. Gerber of counsel), for Lionel Albert Edwards and another, appellants.
    I. The People failed to disprove, beyond a reasonable doubt, appellant’s defense to bribery. (People v Court, 52 AD2d 891.) II. The affirmative defense of entrapment was proven as a matter of law. (People v Joyce, 47 AD2d 562; Sorrells v United States, 287 US 435; Sherman v United States, 356 US 369; United States v Russell, 411 US 423.) III. It was reversible error for the court to refuse to charge the jury on the crime of attempted bribery in the second degree. (People v Williams, 44 AD2d 216; People v Henderson, 41 NY2d 233; People v Malave, 21 NY2d 26; People v Militana, 56 AD2d 612; People v Graham, 57 AD2d 478; People v Stanfield, 44 AD2d 780, 36 NY2d 467.) IV. The court committed reversible error when it held that the tape recordings were admissible. (People v Julian, 41 NY2d 340; People v Connelly, 35 NY2d 171; People v Nicoletti, 34 NY2d 249; People v Blanda, 80 Misc 2d 79.) V. It was error for the court to deny appellants’ request to view the files of the detectives. (People v Sumpter, 75 Misc 2d 55; People v Vasquez, 49 AD2d 590; Farrell v Village Bd. of Trustees of Vil. of Johnson City, 83 Misc 2d 125; People v Puglisi, 44 NY2d 748; Brady v Maryland, 373 US 83.) VI. Reversal of the conviction of two of the codefendants requires the reversal of the third codefendant’s conviction. (People v Sowma, 252 App Div 413; People v Johnson, 18 AD2d 1017.) VII. The court should reverse appellants’ conviction on the grounds of cumulative error. (People v Garcia, 7 AD2d 492; People v Carborano, 301 NY 39; People v Nuzzo, 294 NY 227; People v Zackowitz, 254 NY 192.)

      John Manning Regan for Jake A. Waters, appellant.
    I. The defense of entrapment and the constitutional requirements of due process of law have so merged in the case at bar that the uncontroverted facts present a question of law for this court on the guilt of these defendants. (People v Isaacson, 44 NY2d 511; Jackson v Denno, 378 US 368; People v Huntley, 15 NY2d 72.) II. The Fourth Amendment to the Constitution of the United States and section 12 of article I of the New York State Constitution bar introduction in evidence of the tape recordings which the prosecution has used in this case. (Lopez v United States, 373 US 427; Berger v New York, 388 US 41; Katz v United States, 389 US 347; United States v White, 401 US 745.) III. The court’s charge to the jury under sections 200.05 and 135.60 of the Penal Law, in respect to the defense of coercion, was erroneous in that it imposed upon the defense a burden to show, objectively, that the police had received a benefit from defendants as a result of larceny by means of coercion. The correct test is subjective and should be whether defendants reasonably believed the police were coercing them. (People v Rudolph, 303 NY 73.) IV. The court allowed the People to use the statement of Waters against him despite a valid promise by the prosecutor not to do so under any circumstances. (Cox v People, 80 NY 500.)

      Lawrence T. Kurlander, District Attorney (Sharon P. Stiller of counsel), for respondent.
    I. The statutory defense of coercion and the affirmative defense of entrapment were properly submitted to the jury and resolved by them as a question of fact. (People v Court, 43 NY2d 817; United States v Steinberg, 551 F2d 510; People v Sundholm, 58 AD2d 224; People v Barton, 56 AD2d 958; People v Fisher, 35 AD2d 886; People v Fuller, 34 AD2d 852; People v Harris, 28 AD2d 1174; People v Philipson, 59 Misc 2d 420; Sorrells v United States, 287 US 435; Sherman v United States, 356 US 369.) II. The police conduct during this investigation was proper and did not constitute a deprivation of due process. (People v Isaacson, 44 NY2d 511; People v Moore, 60 AD2d 477.) III. The trial court properly admitted into evidence the monitored tape recordings and transcripts of them. (People v Smith, 58 AD2d 1005; People v Goldfeld, 60 AD2d 1; United States v Knohl, 379 F2d 427; Hoffa v United States, 385 US 293; Boyarsky v Zimmerman Corp., 240 App Div 361; United States v Amrep Corp., 560 F2d 539; People v White, 40 NY2d 797.) IV. Since none of defendants established any right to discover the personnel records of Detective Luciano and Plainclothesman D’Aprile, the trial court properly denied Edwards’ motion to produce them and Quamina’s request to subpoena or otherwise produce them. (Guzman v City of New York, 91 Misc 2d 270; People v Puglisi, 44 NY2d 748; People v Sumpter, 75 Misc 2d 55; People v Fraiser, 75 Misc 2d 756; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24; People v Coleman, 75 Misc 2d 1090; People v Norman, 76 Misc 2d 644; People v Torres, 77 Misc 2d 13; Farrell v Village Bd. of Trustees of Vil. of Johnson City, 83 Misc 2d 125; Brady v Maryland, 373 US 83; People v Bottom, 76 Misc 2d 525.) V, The Quamina/Waters trial court properly denied Quamina’s motion to dismiss 9 of the 10 bribery counts as part of a common scheme encompassing each episode of bribery; the Tolliver, Edwards and McGee court correctly denied McGee’s motion to dismiss the remaining counts of the indictment against him for insufficiency; McGee did not properly preserve this issue for review. (People v Rudd, 41 AD2d 875; People v Yore, 36 AD2d 818; People v Gibson, 191 NY 227; People v Collins, 234 NY 355; People v Smith, 61 AD2d 91; People v Rastelli, 37 NY2d 240.) VI. The various courts’ charges were correct; Tolliver did not preserve for review the issue of the court’s failure to charge attempted bribery as a lesser included offense of bribery; Waters did not preserve for review the alleged inadequacy of the court’s instructions concerning his supposed belief he was being coerced by the police. (People v Portanova, 56 AD2d 265; People v Davis, 54 AD2d 410; People v Dawson, 53 AD2d 554, 42 NY2d 945; People v Greer, 42 NY2d 170; People v Graham, 57 AD2d 478; People v Chapman, 13 NY2d 97; People v Collins, 234 NY 355; People v Hines, 168 Misc 453; People v Sher, 68 Misc 2d 917; People v Smith, 61 AD2d 91.) VII. The trial court properly denied McGee’s motion for a severance and his motion to dismiss the indictment on speedy trial grounds. (People v Bornholdt, 33 NY2d 75; People v La Belle, 18 NY2d 405; People v Sturgis, 38 NY2d 625; People v Conrad, 44 NY2d 863; People v Taranovich, 37 NY2d 442; People v Johnson, 38 NY2d 271.) VIII. The rebuttal testimony of John Mansour was properly admitted despite a promise by him to not use Waters’ statements as direct evidence against him; any objection to the alleged error was not preserved. (People v Graham, 48 AD2d 646; Harris v New York, 401 US 222; People v Wise, 46 NY2d 321.) IX. None of defendants is entitled to reversal either on the ground of cumulative errors or through any right any other defendant may possess. (People v Rivera, 39 NY2d 519; People v Kingston, 8 NY2d 384.)
   OPINION OF THE COURT

Chief Judge Cooke.

Two trials are considered here. Out of one evolve appeals by defendants McGee, Edwards and Tolliver, who were convicted, after a jury trial, of one count of conspiracy in the third degree and 28 counts of bribery in the second degree. From the other, arise appeals by defendants Quamina and Waters, who were convicted, upon a jury verdict, of one count of conspiracy in the third degree and 10 counts of bribery in the second degree. The judgments of conviction were affirmed by five separate orders of the Appellate Division and leave to appeal to this court was granted. For the reasons that follow, the order affirming the judgment of conviction of McGee should be modified to the extent of reversing the conviction on the bribery counts and dismissing the indictment as to those counts, and as so modified, affirmed. The remaining orders affirming the convictions of Quamina, Waters, Edwards and Tolliver should be affirmed.

I

At the joint trial of Quamina and Waters, the People’s theory was that the defendants proposed an arrangement whereby Rochester Police Officers Gerald Luciano and Gustave J. D’Aprile, members of the Vice Squad, would be paid to prevent the arrest of defendants’ gambling associates while enforcing the law against competitors. The evidence at trial consisted of the testimony of Luciano, D’Aprile, defendants and others, as well as tape recordings of conversations between the officers and defendants.

In an effort to enlist Quamina as an informant, Luciano suggested that a meeting be arranged to discuss organized crime activities in the black community. Quamina expressed interést, mentioning that he and Jake Waters had previously considered meeting with the officers. Quamina ultimately arranged a meeting for the morning of December 9, 1973. At this and other prearranged meetings, D’Aprile was equipped with a hidden microphone for monitoring and recording. The officers sought information concerning mob activities in the Rochester area, and Quamina and Waters complained of pressures exerted by one Lippa, a purported mob leader, on black numbers operators. Both Quamina and Waters indicated that blacks should have some control of the numbers operation in their own community and discussed the formation of a black organization to replace the Lippa organization. They stressed the need for police protection, noting that profits would be enhanced if police pressure were exerted on competing operators. The officers were offered monetary and other benefits in exchange for their assistance.

At a subsequent meeting on March 3, the agreement to pay the officers for their services was reaffirmed with a minor modification: until the plan became fully operative, the officers were to be paid for each arrest rather than at a weekly rate. A list of competing numbers operators to be arrested was given to the officers. Five arrests were made based on the information supplied. At a meeting in late April, defendants supplied the officers with a list of operators who were not to be arrested. At an earlier April meeting Quamina and Waters each gave the officers $100; at two meetings in July, Waters paid a total of $200.

The defendants asserted the defense of coercion under section 200.05 of the Penal Law and the affirmative defense of entrapment under section 40.05 of the Penal Law. The defense presented evidence that in the fall of 1974, Waters complained to a friend that he had been shaken down by some police officers and repeated that claim to an official of the State Police and a Deputy Attorney-General. Quamina had made similar complaints. At trial, both Quamina and Waters testified that their fear of being arrested if they did not co-operate was their motivation for meeting and paying the officers.

II

Defendants McGee, Edwards and Tolliver were later brought into the operation. In October, 1974, Quamina arranged an organizational meeting at which he, Edwards, Tolliver and the officers were present. Edwards, proclaiming himself spokesman for those present as well as McGee, articulated the group’s desire to start a black organization, and suggested that the officers could make money if they wanted to be "outlaws”. At a subsequent meeting with Edwards, the officers were told that they would receive a percentage of the receipts from assigned numbers writers in exchange for police protection. On November 13, there was a meeting with Edwards and McGee at which the group discussed the scope of police activity, as well as weekly payments to the police. No payments were made at that meeting. During the meeting, McGee indicated that he was in accord with Edwards’ goals. At various intervals during the ensuing months, Edwards made payments to the officers.

As in the trial of the other defendants, Edwards, Tolliver and McGee asserted coercion and entrapment defenses. According to Edwards, the officers threatened to put Edwards out of business if he did not agree to their terms. The parties finally agreed upon the sum of $100. Edwards admitted making payments but asserted that he stalled on giving information. Pressure was allegedly applied to Tolliver when Edwards failed to keep his appointments in an attempt to end the relationship. Edwards testified that he had no income from gambling, that the officers were shaking down the defendants, and that Edwards had never bribed a police officer.

III

Defendants assert numerous errors in the conduct of the trials, many of which are common to some or all of the defendants. A substantial argument is advanced by McGee alone, however, and that issue is treated first.

McGee argues that the Trial Judge erred in charging the jury that he could be found guilty of the substantive offense of bribery by virtue of his status as a conspirator. After determining that there was sufficient evidence of an agreement among the defendants to go to the jury on the conspiracy count, the court charged that each conspirator could be convicted of bribery on the basis of acts of any one of the coconspirators committed in furtherance of the conspiracy (see Pinkerton v United States, 328 US 640). The court also charged that McGee alone could be convicted of the bribery if he solicited, requested, commanded, importuned or intentionally aided another to engage in that offense (see Penal Law, § 20.00). McGee is correct in his contention that the portion of the charge concerning conspirator liability was erroneous. It is held that liability for the substantive offense may not be independently predicated upon defendant’s participation in an underlying conspiracy. As there was no evidence of McGee’s complicity in the bribery counts submitted to the jury, and thus no basis for accomplice liability, there must be a reversal of the conviction of bribery and a dismissal of the indictment as to those counts.

In rejecting the notion that one’s status as a conspirator standing alone is sufficient to support a conviction for a substantive offense committed by a coconspirator, it is noted that the Legislature has defined the conduct that will render a person criminally responsible for the act of another. Conspicuously absent from section 20.00 of the Penal Law is reference to one who conspires to commit an offense. That omission cannot be supplied by construction. Conduct that will support a conviction for conspiracy will not perforce give rise to accessorial liability (compare Penal Law, § 105.05, with § 20.00). True, a conspirator’s conduct in many instances will suffice to establish liability as an accomplice, but the concepts are, in reality, analytically distinct. To permit mere guilt of conspiracy to establish the defendant’s guilt of the substantive crime without any evidence of further action on the part of the defendant, would be to expand the basis of accomplice liability beyond the legislative design.

The crime of conspiracy is an offense separate from the crime that is the object of the conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy (cf. People v Salko, 47 NY2d 230; People v Sher, 68 Misc 2d 917) and that act may be the object crime. But the overt act itself is not the crime in a conspiracy prosecution; it is merely an element of the crime that has as its basis the agreement (cf. People v Hines, 284 NY 93). It is not offensive to permit a conviction of conspiracy to stand on the overt act committed by another, for the act merely provides corroboration of the existence of the agreement and indicates that the agreement has reached a point where it poses a sufficient threat to society to impose sanctions (see 72 Harv L Rev 920, 998; 16 Ford L Rev 275, 277). But it is repugnant to our system of jurisprudence, where guilt is generally personal to the defendant (see Sayre, Criminal Responsibility for the Acts of Another, 43 Harv L Rev 689), to impose punishment, not for the socially harmful agreement to which the defendant is a party, but for substantive offenses in which he did not participate (Commonwealth v Stasiun, 349 Mass 38; see, generally, 56 Yale LJ 371).

We refuse to sanction such a result and thus decline to follow the rule adopted for Federal prosecutions in Pinkerton v United States (328 US 640, supra). Accessorial conduct may not be equated with mere membership in a conspiracy and the State may not rely solely on the latter to prove guilt of the substantive offense.

Turning then to the other issues raised, we address the argument advanced by defendants Quamina, Edwards, Tolliver and McGee that there was an insufficient foundation laid for the introduction of the recordings of the meetings between defendants and the officers. Defendants urge that the People failed to establish a complete chain of custody of the tapes from the time they were made until the time of trial, thus rendering them inadmissible. In examining the foundation laid in these cases, however, it cannot be said that the Trial Judges erred in permitting the tapes to be introduced into evidence.

One of the officers wore a microphone during the meetings and the tapes were made on a Kel-Kit recording system; a cassette recorder was also used for many conversations. The officers testified that they listened to the tapes immediately after they were made and determined that they accurately represented the conversations in which they had participated. There was testimony that the tapes had not been altered. From May 1, 1975 until the time of trial, the tapes were in the possession of a confidential assistant in the District Attorney’s office, who kept records of removal of tapes. The chain of •custody prior to that time is uncertain, for others had possession of the tapes at various times throughout the investigation.

At the outset, the invitation to extend to all recordings the requirements for electronic surveillance codified in CPL article 700 is declined. That comprehensive statutory scheme is designed to minimize the intrusion of electronic eavesdropping upon an individual’s right to privacy and to that end, its provisions have been strictly construed (see People v Washington, 46 NY2d 116). Particularly, we have insisted upon strict compliance with its sealing requirement (CPL 700.50, subd 2), recognizing that this serves to prevent tampering, protect the privacy interests of the participants to the intercepted conversation, and establish the chain of custody (People v Nicoletti, 34 NY2d 249, 253). When a party to the conversation consents to its recording, however, the constitutional privacy rights of other participants are not implicated (see United States v White, 401 US 745; Lopez v United States, 373 US 427; United States v Knohl, 379 F2d 427, cert den 389 US 973). Hence, it is unnecessary to superimpose the admissibility requirements of article 700 on consensual recordings.

The standard to be applied, therefore, is that applicable to any real evidence sought to be admitted. In determining whether a proper foundation has been laid for the introduction of real evidence, the accuracy of the object itself is the focus of inquiry, which must be demonstrated by clear and convincing evidence (see United States v Fuentes, 563 F2d 527, 532, cert den sub nom. Sansone v United States, 434 US 959). Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it (cf. People v Julian, 41 NY2d 340, 342-343). The foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted. For instance, a chain of custody is employed when "the evidence itself is not patently identifiable or is capable of being replaced or altered” (People v Connelly, 35 NY2d 171, 174 [drugs]). Mere identification by one familiar with the object, however, will be sufficient "when the object possesses unique characteristics or markings” and any material alteration would be readily apparent (id.; see People v Flanigan, 174 NY 356).

Tape recordings made by a participant to a conversation do not fall within the category reserved for fungible evidence, such as drugs. The uniformity of these substances, making identification difficult, generally, justifies a requirement of tracing fungible goods through each hand with which it comes in contact. The inherent difficulty with fungible goods simply is not present when evidence of a conversation is sought to be introduced, for the conversation itself is unique and the participants are available to attest to its accuracy. Thus, a chain of custody is not required for the introduction of tape recordings such as those present here.

A foundation may be established by a participant to the conversation who testifies that the conversation has been accurately and fairly reproduced (see United States v Amrep Corp., 560 F2d 539, cert den 434 US 1015; United States v Steinberg, 551 F2d 510; United States v Knohl, 379 F2d 427, cert den 389 US 973, supra; Monroe v United States, 234 F2d 49, cert den 352 US 873). Proof that the evidence has not been altered may be established in a similar fashion. This testimony, if credited by the Trial Judge, is sufficient to establish that the taped conversation accurately and fairly represents the event to which it refers.

On this record, there is sufficient proof of accuracy and authenticity of the tapes offered to warrant their admission. The infirmities concerning chain of custody or inaudibility properly go to the weight of the evidence, not its admissibility (cf. People v Julian, 41 NY2d 340, supra; People v White, 40 NY2d 797).

Finally, defendants urge that the People failed to disprove the bribery defense of coercion (Penal Law, § 200.05) beyond a reasonable doubt and that the evidence establishes the affirmative defense of entrapment (Penal Law, § 40.05) as a matter of law. The record does not support these contentions; the issues were properly submitted to the jury.

The affirmative defense of entrapment is designed to prevent punishment for an offense "which is the product of the creative activity of [the State’s] own officials” (Sorrells v

United States, 287 US 435, 451). Whether a defendant is predisposed to commit an offense or was induced to commit the offense is a question of fact (see People v Freeman, 36 NY2d 768; People v Sundholm, 58 AD2d 224; People v Shangraw, 55 AD2d 796). Similarly, the coercion defense, designed to relieve from liability for bribery one who is a victim of extortion or coercion by the public servant allegedly bribed (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 200.15, p 420), presents factual issues (see People v Court, 43 NY2d 817, affg 52 AD2d 891).

The record before us presents a conflict between the People’s version of events and that of defendants. Defendants asserted that the police officers induced their participation in the bribery scheme and employed coercive tactics to ensure compliance. Though the record does reveal some evidence of conduct that might be construed as harassment, there is also evidence of mutual co-operation. Hence, resolution of the issues was a purely factual matter within the province of the jury. Nor does the record compel application of this court’s recent decision in People v Isaacson (44 NY2d 511), as the facts here simply do not present the kind of reprehensible conduct condemned in that case.

We have examined the remaining arguments that have been preserved for review and find that none form the basis for reversal.

Accordingly, the order of the Appellate Division in People v McGee should be modified in accordance with this opinion by dismissing the bribery counts of the indictment and, as so modified, affirmed. The orders of the Appellate Division as to the other defendants should be affirmed.

Meyer, J.

(concurring). I concur in the result because I agree that neither the Federal nor the State Constitution requires the obtention of a warrant in relation to participant monitoring. I write, nonetheless, to express my belief that the equivocal basis for excluding such recordings from New York’s eavesdropping law (CPL, art 700), the developments in this area of the law that have since occurred, and the importance of the issue to individual privacy strongly suggest that the Legislature should review the question with a view toward imposition of controls, or limitations on use or, perhaps, even proscription.

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

In People v McGee: Order modified in accordance with the opinion herein and, as so modified, affirmed.

In People v Edwards and People v Tolliver: Orders affirmed.

In People v Quamina and Waters: Orders affirmed.

      . The trial court dismissed two bribery counts on the ground that there was no agreement on November 13 to pay the specific amount of $50 to each officer as charged in the indictment. The court determined, however, that there was sufficient evidence of an agreement among defendants and the remaining counts were submitted to the jury.

      . We reject McGee’s further claim that his statutory right to a speedy trial was violated by the delay between his indictment on May 1, 1975 and commencement of trial on February 14, 1977. On the motion to dismiss, court congestion was assigned as the reason for the delay and counsel for McGee in effect admitted that the People were ready for trial within three months of the indictment. Thus, the defendant is not entitled to dismissal pursuant to CPL 30.30 (People v Conrad, 44 NY2d 863).
      Nor were McGee’s rights under CPL 30.20 or the Constitution violated. Given the relevant factors, including the length of the delay, the lack of incarceration and the absence of a claim of prejudice, neither CPL 30.20 nor the Constitution would require dismissal (see People v Taranovich, 37 NY2d 442; compare People v Moore, 47 NY2d 872).

      . We are not unmindful of cases indicating that "[e]ach conspirator is liable * * * for the acts of every associate done in the effort to carry the conspiracy into effect” (e.g., People v Collins, 234 NY 355, 361; see, also, People v Luciano, 277 NY 348; People v Michalow, 229 NY 325; People v McKane, 143 NY 455). Those cases, however, do not support extending the agency rationale to impose liability for the substantive offense solely on the basis of liability for the agreement. Indeed, closer examination of each of them reveals that the defendant had actively participated to a degree sufficient to impose accessorial liability.

      . The Report of the Joint Legislative Committee to Study Illegal Interception of Communications (NY Legis Doc, 1956, No. 53, at pp 24-25; 1956 McKinney’s Session Laws of NY, at p 1361), noted that though recording a person’s voice without his knowledge might be unethical or reprehensible and arouses indignation "we have been unable to draw a clear line, without exceptions, at which point it might become criminal”.

      . (Westin, Privacy & Freedom; Fishman, Wiretapping & Eavesdropping; Carr, The Law of Electronic Surveillance; Westin, Science, Privacy and Freedom: Issues and Proposals For the 1970’s, 66 Col L Rev 1205; Greenawalt, Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col L Rev 189; Fishman, Interception of Communications Without a Court Order: Title III, Consent and the Expectation of Privacy, 51 St John’s L Rev 41; Report of the National Commission for the Review of State and Federal Laws Relating to Wiretapping and Electronic Surveillance [hereafter National Wiretapping Commission Report]; Report of the Committees on Federal Legislation and on Civil Rights of the Association of the Bar of the City of New York, dated April 24, 1968, entitled Proposed Legislation on Wiretapping and Eavesdropping After Berger v New York and Katz v United States.)

      . (Harlan, J., dissenting in United States v White, 401 US 745, 769, 787-790; Goldman, J., dissenting in People v Fiedler, 30 AD2d 476, affd without opn 24 NY2d 960; Carr, op. cit., n 2, § 3.05; Westin, op. cit., n 2, p 390; Greenawalt, op. cit, n 2, pp 216, 221-240; Association of the Bar Report, supra, n 2, p 25.)

      . (American Bar Association Standards Relating To The Administration of Criminal Justice, Electronic Surveillance, Standard 2-4.1 [Approved Draft, 1978]; Carr, op. cit., n 2, § 3.05; National Wiretapping Commission Report, n 2, pp 113-118, supra.)

      . (E.g., Wisconsin Electronic Surveillance Control Law, construed in State ex rel. Arnold v County Ct. of Bock County, 51 Wis 2d 434.)

      . (E.g., Pa Stat Ann, tit 18, § 5705, subd [1] [Purdon Supp, 1978]; Cal Penal Code, § 631, subd [a]; § 632, subd [a]; People v Kurth, 34 111 2d 387, 395, construing the Illinois statute.)


author: Jasen, J.

text:
    Holy Spirit Association for the Unification of World Christianity, Also Known as the Unification Church, Appellant, v New York Times Company, Respondent.
    Argued November 15, 1979;
    decided December 19, 1979

      POINTS OF COUNSEL

      Thomas Fitzpatrick for appellant.
    The second and third articles clearly do not constitute, as a matter of law, fair reports of the documents in issue within the meaning of section 74 of the New York Civil Rights Law. (Friends of Animals v Associated Fur Mfrs., 61 AD2d 141; Campbell v New York Evening Post, 245 NY 320; Garby v Bennett, 40 App Div 163, 166 NY 392; George v Time, Inc., 259 App Div 324, 287 NY 742; Franklin v Sun Print. & Pub. Assn., 254 App Div 489; Abrey v New York World-Telegram Corp., 7 Misc 2d 413; Stevenson v News Syndicate Co., 302 NY 81; Corum v Standard Mags., 264 App Div 377.)

      Loretta A. Preska and Floyd Abrams for respondent.
    I. The courts below correctly found that the articles in question were fair and true reports of legislative or other official proceedings and, as such, were privileged under section 74 of the Civil Rights Law. (Farrell v New York Evening Post, 167 Misc 412; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 435 US 1006; Edmiston v Time, Inc., 257 F Supp 22; Briarcliff Lodge Hotel v Citizen-Sentinel Publishers, 260 NY 106; George v Time, Inc., 259 App Div 324, 287 NY 742; Keogh v New York Herald Tribune, 51 Misc 2d 888, 28 AD2d 1209; Grab v Poughkeepsie Newspapers, 91 Misc 2d 1003; Hanft v Heller, 64 Misc 2d 947; Cafferty v Southern Tier Pub. Co., 226 NY 87.) II. Special Term’s grant of summary judgment was appropriate. (Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56; Leumi Fin. Corp. v Richter, 24 AD2d 855, 17 NY2d 166; Schachter v News Syndicate Co., 270 App Div 378; Kahn v City of New York, 37 AD2d 520, 30 NY2d 690; Phillips v Murchison, 252 F Supp 513, 383 F2d 370, 390 US 958; Weiner v Weintraub, 22 NY2d 330; Loudin v Mohawk Airlines, 44 Misc 2d 926, 24 AD2d 447; Gardner v Poughkeepsie Newspapers, 68 Misc 2d 169.)
   OPINION OF THE COURT

Jasen, J.

In this libel action, plaintiff Holy Spirit Association for the Unification of World Christianity (the Unification Church) seeks to recover 45 million dollars in damages from defendant New York Times Company due to the publication by defendant of three articles referring to intelligence documents released by the United States House of Representatives Subcommittee on International Organizations concerning its investigation of Korean-American affairs.

Defendant moved for summary judgment on the ground that the allegedly libelous articles are fair and true reports of legislative or other official proceedings and, as such, are privileged finder section 74 of the Civil Rights Law. Special Term granted the motion and the Appellate Division, one Justice dissenting, affirmed. There should be an affirmance.

At the outset, it should be stressed that plaintiff is not now contending that the articles are "untrue” in the sense that they contain misquoted material. Rather, the gravamen of plaintiff’s allegations is that these articles, by failing to characterize properly the nature of the intelligence reports, distorted the import of these documents to the detriment of plaintiff.

The intelligence documents released by the subcommittee were written by unidentified authors and contained information related to them by an unidentified source. Although the earliest document, written in 1963, noted that it embodied unevaluated information, the others contained no such notation, although it appears that the same individual was used as the common source for all the intelligence reports. The unverified information claimed to be offensive to plaintiff indicated that the Unification Church was organized for use as a political tool by one Kim Chong-Pil while he acted as director of the Korean Central Intelligence Agency (K.C.I.A.).

The newspaper article upon which plaintiffs second cause of action is predicated concerned the guilty plea entered by former Representative Richard Hanna to charges related to the widely publicized South Korean influence-buying scandal. This article, published on March 19, 1978, contained the following language: "Increasingly, it appears that despite a number of inquiries under way in courtrooms and on Capitol Hill, investigators may have to settle for confirming old suspicions about the Koreans rather than breaking new ground. Last week, for example, a subcommittee of the House International Relations Committee released intelligence reports which, while interesting simply stated as fact what many Americans already believe — that the Unification Church of the Rev. Sun Myung Moon was a Korean Government operation.” Plaintiff challenges the fairness of characterizing these unverified reports as one of "fact”, and claims that the language was calculated to "hold the plaintiff up to public scorn, hatred and ridicule”.

After the release of this article and a prior article published by defendant which recounted the substance of the intelligence reports linking plaintiff to Korean influences, members of the Unification Church picketed the offices of defendant. This demonstration gave rise to the article published by defendant on March 21, 1978 — the article upon which plaintiff predicates its third cause of action. This article stated in part: "Neil A. Salonen, president of the church in the United States, denounced the document, written in 1963, as 'clearly labeled as "unevaluated” and "appraisal of contents tentative.’” The document to which Mr. Salonen referred in his statement was so labeled, but at least two subsequent intelligence reports released at the same time by the House subcommittee on international organizations confirmed and elaborated on the links between the church and the K.C.I.A. 'tentatively’ noted in the first intelligence report. The two subsequent documents had no qualifications.” Plaintiff alleges, in essence, that the use of the word "confirmed” implies that the information contained in the document written in 1963 had been verified by independent sources, and, thus, its usage was patently unfair.

With this background in mind, we now turn to an examination of the statutory language upon which defendant bases its defense. Section 74 of the Civil Rights Law provides, in relevant part, that "[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” For a report to be characterized as "fair and true” within the meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate. As stated by this court in Briarcliff Lodge Hotel v Citizen-Sentinel Publishers (260 NY 106, 118): "[A] fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated.” (See, also, Keogh v New York Herald Tribune, 51 Misc 2d 888, 894, affd 28 AD2d 1209, mot for lv to app den 21 NY2d 955; George v Time, Inc., 259 App Div 324, 328-329, affd 287 NY 742; Hanft v Heller, 64 Misc 2d 947; Edmiston v Time, Inc., 257 F Supp 22, 24-26.)

In light of this standard, we conclude that the newspaper articles which appellant Unification Church claims to be libelous are, as a matter of law, "fair and true” accounts of intelligence reports released by the House Subcommittee on International Relations investigating Korean-American affairs! We agree with the courts below that the newspaper articles here at issue neither assigned to the intelligence reports allegations not contained in those documents, nor added, by virtue of word usage or otherwise, greater credence to those documents than was appropriate considering their nature as unverified and unevaluated claims linking appellant to Korean influences.

Our conclusion today rests upon the realization that newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality. When determining whether an article constitutes a "fair and true” report, the language used therein should not be dissected and analyzed with a lexicographer’s precision. This is so because a newspaper article is, by its very nature, a condensed report of events which must, of necessity, reflect to some degree the subjective viewpoint of its author. Nor should a fair report which is not misleading, composed and phrased in good faith under the exigencies of a publication deadline, be thereafter parsed and dissected on the basis of precise denotative meanings which may literally, although not contextually, be ascribed to the words used.

Here, there is no showing that defendant misquoted any material contained in the intelligence reports. While the use of the phrases "stated as fact” and "confirmed and elaborated” may denote to some degree, a sense of legitimacy which, in hindsight, could be characterized as imprudent given the unverified nature of the reports, this observation does not, in and of itself, render the newspaper articles unfair. Quite simply, the intelligence reports did state "facts” as perceived by the unidentified source and it can hardly be disputed that subsequent reports, albeit unverified, could confirm and elaborate upon the initial information conveyed by that informant.

Since summary judgment to the defendant was properly granted, the order of the Appellate Division should be affirmed.

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

Order affirmed, with costs.

       Plaintiff no longer contends that the first article printed by defendant is not a "fair and true” report of a legislative proceeding within the meaning of section 74 of the Civil Rights Law. Had we reached this issue, however, we would have concluded that the courts below correctly found this article to be a fair and true report of legislative proceedings and, thus, privileged.