author: Simons, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Martin Williams, Appellant. The People of the State of New York, Respondent, v Otis Fearon, Appellant. The People of the State of New York, Respondent, v Bruce Richardson, Appellant.
    Argued March 25, 1993;
    decided May 11, 1993

      POINTS OF COUNSEL

      C. Vernon Mason, New York City, and Valerie A. Hawkins for appellant in the first above-entitled action.
    I. The trial court committed reversible error by refusing to charge that intent is a necessary element of rape by forcible compulsion. (People v Burgess, 107 AD2d 703; People v Morrison, 58 AD2d 699.) II. The trial court committed reversible errors by admitting evidence against Mr. Williams of an uncharged crime and by refusing Mr. Williams cross-examination of this evidence. (People v Alvino, 71 NY2d 233.) III. The trial court committed substantial reversible error by refusing to hear the proffer of evidence demonstrating that complainant had previously engaged in group sex. IV. The aforementioned defects in the trial of this proceeding, together with the prosecution’s summation deprived Mr. Williams of a fair trial pursuant to the Federal and State Constitutions.

      Slotnick & Baker, New York City (Mark M. Baker, Barry I. Slotnick and Lori E. Mann of counsel), for appellant in the second above-entitled action.
    I. In order for the constitutionality of CPL 60.42 to be maintained, subdivision (5) thereof must receive scrupulous compliance; thus, because the Trial Judge, in response to defendant’s application to give an offer of proof, failed to make any determination upon factual findings that the interests of justice did not warrant admissibility, defendant’s confrontation and due process rights were totally abridged, thereby requiring a new trial. (People v Westfall, 95 AD2d 581; People v Reardon, 141 AD2d 869; People v Moore, 159 AD2d 521; People v Gagnon, 150 AD2d 918, 75 NY2d 736; People v Mandel, 61 AD2d 563, 48 NY2d 952, 446 US 949; People v Castell, 171 AD2d 561; People v Hamel, 174 AD2d 837; People v Kellar, 174 AD2d 848; Michigan v Lucas, 500 US 145, 111 S Ct 1743; People v Labenski, 134 AD2d 907.) II. A trial court must specifically charge a jury that intent is an element of rape in the first degree or sodomy in the first degree. (People v Burgess, 107 AD2d 703; People v Morrison, 58 AD2d 699; People v Santos, 105 AD2d 1135; People v Prise, 135 Misc 2d 363; People v Fenton, 166 AD2d 748; People v Bray, 99 AD2d 470; People v Anderson, 66 NY2d 529.)

      Richard E. Haftel, New York City, for appellant in the third above-entitled action.
    I. The trial court improperly excluded evidence that complainant had previously engaged in group sex. (People v Mandel, 48 NY2d 952; Davis v Alaska, 415 US 308; Chambers v Mississippi, 410 US 284.) II. The trial court committed reversible error by refusing to charge appellant’s mistake of fact defense. (People v Burgess, 107 AD2d 703; People v Morrison, 58 AD2d 699; People v Prise, 135 Misc 2d 363, 151 AD2d 787; People v Rypinski, 157 AD2d 260; People v Butts, 72 NY2d 746; People v Holt, 67 NY2d 819; People v Watts, 57 NY2d 299; People v Torre, 42 NY2d 1036; People v Steele, 26 NY2d 526; United States v Pedroza, 750 F2d 187.) III. The trial court improperly admitted evidence of an uncharged crime. (People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Santarelli, 49 NY2d 241; People v Alvino, 122 AD2d 666; People v Ortiz, 134 AD2d 624;
      People v Friedman, 205 NY 161; People v Bornholdt, 33 NY2d 75.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anthea H. Bruffee, Jay M. Cohen and Roseann B. MacKechnie of counsel), for respondent in the first, second and third above-entitled actions.
    I. Defendants have failed to preserve for this Court’s review their claims (1) that the trial court did not follow the proper procedure in denying their application to admit evidence of the victim’s alleged prior sexual conduct, and (2) that the court should have admitted this alleged evidence, which was barred by the "rape shield law”, as demonstrating a "pattern” of conduct. In any event, the trial court’s decision to preclude this alleged evidence was proper because it was irrelevant to the issue of whether the victim had been raped by defendants. (Batson v Kentucky, 476 US 79; People v Hernandez, 75 NY2d 350; People v Scott, 70 NY2d 420; People v Halbert, 80 NY2d 865; People v Mandel, 48 NY2d 952, 446 US 949; Zucker v Whitridge, 205 NY 50; Delaware v Van Arsdall, 475 US 673; People v Crawford, 143 AD2d 141, 72 NY2d 1044; Doe v United States, 666 F2d 43; People v Christopher, 65 NY2d 417.) II. The court’s charges on rape and sodomy in the first degree were correct statements of the law. Moreover, the trial court’s failure to charge specific intent and mistake of fact did not deny defendants a fair trial in this case. (People v Graziano, 151 AD2d 775; People v Fenton, 166 AD2d 748, 77 NY2d 905; People v Prise, 135 Misc 2d 363, 151 AD2d 787, 74 NY2d 850; People v Getch, 50 NY2d 456; People v Watts, 57 NY2d 299; People v Scarborough, 49 NY2d 364; People v Crimmins, 36 NY2d 230; People v Cadorette, 83 AD2d 908, 56 NY2d 1007; People v Troy, 119 AD2d 880; People v Glover, 107 AD2d 821, 66 NY2d 931.) III. The trial court did not err either in admitting evidence which bore on the victim’s compulsion by implied threat or in limiting the scope of cross-examination on this evidence. Moreover, because defendants failed to preserve for appellate review their claim that the trial court should have given limiting instructions regarding this threat evidence, this further claim is beyond this Court’s jurisdiction. (People v Alvino, 71 NY2d 233; People v Vails, 43 NY2d 364; People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Santarelli, 49 NY2d 241; People v Allweiss, 48 NY2d 40; People v Crimmins, 36 NY2d 230; People v Bornholdt, 33 NY2d 75; People v Dawson, 50 NY2d 311; People v Wise, 46 NY2d 321.) IV. Many of defendant Williams’s claims of summation error are unpreserved for appellate review. Thus, this Court is without jurisdiction to review those claims. In any event, the prosecutor’s summation comments did not deny defendant Williams a fair trial. (People v Nuccie, 57 NY2d 818; People v Galloway, 54 NY2d 396; People v Medina, 53 NY2d 951; People v Thomas, 50 NY2d 467; People v Oglesby, 128 AD2d 556; People v Arce, 42 NY2d 179; People v Marks, 6 NY2d 67, 362 US 912; People v Ashwal, 39 NY2d 105; People v Roopchand, 107 AD2d 35, 65 NY2d 837; People v Robinson, 135 AD2d 586, 71 NY2d 902.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Barbara D. Underwood and Tammy J. Smiley of counsel), pro se, and Robert T. Johnson for New York State District Attorneys Association, amici curiae in the first, second and third above-entitled actions.
    A rape victim’s prior consensual sexual conduct should not be admissible at a defendant’s trial unless the prior conduct is uniquely similar to defendant’s alleged conduct. (Loving v Virginia, 388 US 1; People v Oathout, 240 App Div 739; People v Mandel, 48 NY2d 952; People v Halbert, 175 AD2d 88, 80 NY2d 865; People v Gagnon, 150 AD2d 918, 75 NY2d 736; People v Crawford, 143 AD2d 141, 72 NY2d 1044; People v Reardon, 141 AD2d 869; People v Laundry, 122 AD2d 450; People v Carroll, 117 AD2d 815; People v Westfall, 95 AD2d 581.)

      Bermingham, Cook & Mahoney, P. C, Buffalo (Mark J. Mahoney of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in the first, second and third above-entitled actions.
    I. The right to present a defense requires admission of all relevant evidence which is favorable to the accused. (United States v Leon, 468 US 897; People v Johnson, 62 AD2d 555; People v Mountain, 66 NY2d 197; Wallace v Hunter, 149 F2d 59; Gompers v United States, 233 US 604; United States v Reid, 12 How [53 US] 361; United States v Nixon, 418 US 683; People v Peterkin, 151 AD2d 407; Ferguson v Georgia, 365 US 570; Washington v Texas, 388 US 14.) II. There are limits on the exclusion of complainant’s sexual history evidence. (People v Gagnon, 75 NY2d 736; People v Swain, 171 AD2d 765; People v Castell, 171 AD2d 561; People v Labenski, 134 AD2d 907; People v Ruiz, 71 AD2d 569; People v Mandel, 48 NY2d 952, 446 US 949; People v Kellar, 174 AD2d 848; People v Clark, 118 AD2d 718; People v Carroll, 117 AD2d 815; People v Westfall, 95 AD2d 581.) III. Fundamental rights of the accused may not be "balanced” away by general policies and interests. (People v Goggins, 34 NY2d 163; Roviaro v United States, 353 US 53; Davis v Alaska, 415 US 308; Maryland v Craig, 497 US 836.) IV. CPL 60.42 is unconstitutional, and unconstitutional as applied here.

      Lynn Hecht Schafran, New York City, Danielle Ben-Jehuda and Deborah Ellis for NOW Legal Defense and Education Fund and others, amici curiae in the second above-entitled action.
    I. The underlying purposes of CPL 60.42 require a narrow interpretation of any exception to the "rape shield law”. II. Defendant’s arguments are not compelling in light of the underlying purposes of CPL 60.42. (People v Mandel, 61 AD2d 563, 48 NY2d 952, 446 US 949; People v Westfall, 95 AD2d 581; Ellison v Brady, 924 F2d 872; People v Taylor, 75 NY2d 277.) III. Studies of juror attitudes toward rape support the conclusion reached by the Legislature in enacting the "rape shield law” and the decision of the Trial Judge to exclude the victim’s past sexual history.
   OPINION OF THE COURT

Simons, J.

Defendants have been convicted of multiple counts of rape and sodomy in the first degree. The charges arose after a New Jersey woman alleged defendants forced her into a car outside a Manhattan dance club, took her to a Brooklyn apartment and there raped and sodomized her. At trial, defendants sought to introduce evidence purportedly showing that the woman had previously engaged in group sex. They contend that the trial court improperly applied the State’s "rape shield law” (CPL 60.42) to deny their application, thereby depriving them of their Federal constitutional rights to present evidence and confront the witnesses against them. They also assign error to the trial court’s refusal to instruct the jury expressly that acquittal was required if defendants held a mistaken belief that the complainant had consented to sexual relations. The Appellate Division affirmed the judgments and we now affirm its order in each case.

I.

The complainant, 17 years old, first encountered the three teenage defendants on a street in Manhattan shortly after midnight on August 17, 1989. She and defendant Williams testified at trial and gave dramatically different accounts of what happened thereafter.

Complainant testified that she had come to New York City with a group of friends to go to a dance club and that around midnight, after she began to feel sick, she decided to wait for her companions in the car. A short time later, defendants struck up a conversation with her as she ran an errand to a nearby store and then asked her to accompany them to another club. She refused, but defendants continued to walk alongside her until they passed near defendant Richardson’s car. There, defendants surrounded her and, according to her trial testimony, she felt she had no choice but to go with them. She testified that Williams told her, "If you listen, you won’t get hurt.” Later, in the car, Williams intimated that his two companions were armed.

With Richardson driving and Williams seated next to the complainant in the back seat, defendants took her on a ride through Manhattan and Brooklyn, ultimately arriving at Williams’s Brooklyn apartment in the basement of his family’s home. The complainant concedes that the conversation in the car was friendly — an attempt, she testified, to "get on their good side”. The complainant testified that during the drive she repeatedly asked to be let out, but defendants refused. Once inside Williams’s apartment, she attempted to flee but found the door locked. She was then forced to engage in acts of sexual intercourse and sodomy by Williams and the others. Afterwards, they all left together, and in the car Williams forced her to perform oral sex on him. She was finally allowed to leave the vehicle near a mass transit station, where she immediately reported the incident to a police officer.

Williams was the only defendant to take the stand. He testified that all the incidents of sexual contact were consensual. According to his testimony, the complainant voluntarily accompanied them to Brooklyn, was affectionate toward him in the car, was never held against her will and had several opportunities to leave the car. He stated that she freely consented to sex with him in a bedroom at the apartment and then agreed to have sex with each of his friends. Later, when defendants let her out of the car near the transit station, he believed she intended to catch a train back to Manhattan to meet her friends. There was testimony from other witnesses which was not conclusive of the ultimate facts but tended to support some of the details in Williams’s account.

The jury credited the testimony of the complainant and convicted defendants of multiple counts of rape in the first degree (Penal Law § 130.35) and sodomy in the first degree (Penal Law § 130.50).

II.

Defendants challenge the trial court’s application of the “rape shield law” (CPL 60.42) on both statutory and constitutional grounds. At trial, Fearon’s defense counsel asked the court to admit evidence showing that the complainant, who is white, had previously engaged in consensual group sex with black males. He asserted that the evidence would be relevant “with regard to her [complainant’s] motivation in terms of testifying” against defendants, who are black, and offered to submit the details of evidence to the court ex parte. After a colloquy with the defense and the prosecution, the court ruled the evidence was inadmissible without hearing it.

CPL 60.42 bars evidence of a complainant’s past sexual conduct unless one of five statutory exceptions applies. The first four allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances. The fifth, the only subdivision under consideration here, is a broader “interest of justice” provision vesting discretion in the trial court. Defendants’ principal argument on this appeal concerns not the substance of the court’s ruling but the procedure it followed prior to ruling that the evidence was not admissible under subdivision (5).

The subdivision allows evidence of prior sexual conduct to be admitted when such evidence

“is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice” (CPL 60.42 [5]).

Defendants do not assert that a formal hearing must be held in every instance where the accused seeks to invoke the “interest of justice” clause, nor does the statute impose such a rigid requirement. Instead, defendants maintain that the procedure adopted here by the trial court denied them even the minimal statutory right to make “an offer of proof’. They allege further the proceedings were so limited that they violated due process and arbitrarily deprived them of their Federal constitutional rights to present evidence and cross-examine witnesses in their own defense. Neither argument is persuasive.

New York’s rape shield law, like similar statutes in 47 other States, was passed in response to concerns that testimony about the sexual past of the victims of sex crimes often serves solely to harass the victim and confuse the jurors (see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 47-48). The statutes put to rest the now-discredited rationale that a victim’s past "unchastity” is probative of present consent and recognized that such evidence is typically of little or no relevance and may seriously prejudice the prosecution of sex crimes (see, Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L Rev 90). At the same time, by providing exceptions to the general evidentiary prohibition of section 60.42, our Legislature acknowledged that there are instances where evidence of a complainant’s sexual history might be relevant and admissible.

The exceptions also recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses (US Const 5th, 6th Amends; Pointer v Texas, 380 US 400; Washington v Texas, 388 US 14; see also, Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544). The Supreme Court, in affirming that a defendant’s "right to present his own witnesses to establish a defense * * * is a fundamental element of due process of law” (Washington v Texas, supra, at 19), has held in a variety of circumstances that certain State rules restricting evidence were unconstitutional either on their face or as applied. For example, in Washington v Texas (id.), a State law prohibiting a coparticipant in crime from testifying for the defense was declared unconstitutional; in Davis v Alaska (415 US 308), the Court found that the defendant’s rights were violated by a State law that prevented his attorney from impeaching a prosecution witness with the witness’s juvenile record (see also, Olden v Kentucky, 488 US 227; Alford v United States, 282 US 687); in Rock v Arkansas (483 US 44), a rule that per se barred a defendant’s hypnotically refreshed testimony was declared unconstitutional. Similarly, in Chambers v Mississippi (410 US 284, 302) the Supreme Court found that a trial court’s "mechanistic” application of the hearsay rule to keep out testimony helpful to the accused violated the Constitution.

These decisions notwithstanding, it is settled that an accused’s right to cross-examine witnesses and present a defense is not absolute (id., at 295). Nor can the Sixth Amendment be read to "confer the right to present testimony free from the legitimate demands of the adversarial system” (United States v Nobles, 422 US 225, 241; accord, Michigan v Lucas, 500 US 145, —, 111 S Ct 1743, 1747-1748). Evidentiary restrictions are to be voided only if they are "arbitrary or disproportionate to the purposes they are designed to serve” (Rock v Arkansas, supra, at 56; Michigan v Lucas, 500 US, at —, 111 S Ct, at 1747, supra). A restriction is most likely to be found arbitrary when it is a per se rule, as in Rock, or when it is applied by a court without due consideration of the individualized circumstances and interests present in the matter before it, as in Chambers. Insofar as rape shield laws are concerned, the Supreme Court has recognized that they express the States’ legitimate interest in giving rape victims "heightened protection against surprise, harassment, and unnecessary invasions of privacy” (see, Michigan v Lucas, 500 US, at —, 111 S Ct, at 1746, supra).

Considering defendants’ statutory claim first, CPL 60.42 (5) requires only that the trial court hear an "offer of proof’ and provide "a statement * * * of its findings of fact essential to its determination”. Though the statute by its terms requires an offer of proof only when a court decides to grant a defense motion and admit the evidence, it does not follow that the statute was intended solely for the benefit of victims. The section is designed to protect the rights and interests of defendants as well as the interests of victims. The requirement of a factual statement is properly viewed as ensuring both due consideration of defense motions and an adequate record for appeal while at the same time assuring that the victim’s interests are properly considered. Its procedural dictates therefore play a critical role whether an offer of proof is being denied or accepted.

Both procedural requirements of the statute were met by the trial court here. "Offer of proof’ is not a term of art but its generally accepted meaning, one also found in an unrelated section of the Criminal Procedure Law, is to summarize the substance or content of the evidence (see, CPL 290.10). Here, defense counsel was allowed to describe the proposed evidence and to state to the court why he believed it relevant —specifically, that evidence of prior group sex with blacks would be probative of the complainant’s motivation for testifying. In the People’s response to the request, an additional theory was suggested: a pattern of similar sexual behavior might be probative of consent. Defense counsel did not endorse the People’s theory but took the opportunity to explain his proffer further. After doing so, he asked the court to rule. The court rejected the offer of proof and gave an explanation for its ruling.

We are satisfied that the court met its obligation to hear the "offer of proof’. Defense counsel was twice given an opportunity to summarize the evidence and explain its relevance without restriction by the court. Indeed, after a brief recitation of the substance of the offer, counsel concluded his remarks and, on his own initiative, requested a ruling. The court’s statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the "interest of justice” exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error.

Nor is reversal required on constitutional grounds. A viable claim of arbitrariness could be made out in several ways — for instance, if the court refused to hear the offer of proof or if the court declined to give a fuller hearing to the evidence once a colorable claim of relevance had been made. But the burden for making a threshold showing of relevance rested on the defense as the moving party (People v Westfall, 95 AD2d 581, 583; People v Mandel, 61 AD2d 563, revd on other grounds 48 NY2d 952, appeal dismissed 446 US 949; see, People v Hackett, 421 Mich 338, 349-350, 365 NW2d 120). There is nothing arbitrary about a trial court requiring a sensible proffer as part of a motion under CPL 60.42 and refusing to proceed to a more elaborate airing of the evidence in the absence of one. To require that the accused make a threshold showing of relevance when CPL 60.42 is implicated is a minimal " 'legitimate demand[ ] of the adversarial system’ ” (see, Michigan v Lucas, 500 US 145, —, 111 S Ct 1743, 1748, supra).

Defense counsel here proposed that the evidence of the victim’s prior group sex with black males would show her motivation for testifying against defendants. Though given a full opportunity to do so, counsel made no effort to explain how prior sexual conduct with other males would be probative of the complainant’s motive to testify — a connection neither apparent nor logical on its face. Nor did counsel suggest that the evidence might be relevant to the question of consent, even after the prosecutor expressly raised that as a possible theory during the colloquy. In short, counsel gave no explanation of why the evidence was probative, and the Constitution does not compel a court to proceed to a fuller consideration of the evidence until the proponent demonstrates some basis for its admission. The constitutional standard is one of arbitrariness. Here, the court acted reasonably.

On this appeal defendants offer another theory of relevance: that the prohibited evidence was needed to counter a possible inference by the jury that no woman would voluntarily have sexual relations with three men she had met just hours before on the street. Though that theory was not expressly raised during the colloquy on the offer of proof or at any other time during trial, defendants point out that the prosecutor asked the jurors during summation to consider whether defendants’ account of the night’s events was "a little peculiar”. Defendants claim that at that point the court should have reconsidered its earlier ruling.

They rely on People v Mandel (61 AD2d 563, 568, revd on other grounds 48 NY2d 952, supra). In Mandel the Second Department held that a trial court, having initially barred evidence of prior sexual conduct should have reversed itself once the need for admission was apparent during cross-examination. The circumstances at the trial here were substantially different. Defendants do not allege, let alone demonstrate, that their alternate theory of relevance became apparent during either their case or the People’s. They cite only a single remark from the People’s summation, a remark which passed without objection or request for relief by them. In Mandel, the excluded evidence was directly linked to a specific and unique fact expressly raised and relied upon by the defense. Here the new theory of admissibility remains unclear, even with the advantage of hindsight unavailable to the Trial Judge. Certainly the trial court did not act arbitrarily when, in the absence of an objection, it failed to discern a nascent due process or Sixth Amendment violation in a rhetorical question contained in the People’s summation. Nor can Mandel be read as dispensing with established rules of preservation. While the trial court may have a duty in certain circumstances to reverse a CPL 60.42 determination, this was not such an instance.

III.

As an alternate basis for reversal, defendants contend the trial court erred in refusing to instruct the jury specifically on the mistake of fact defense and on intent as an element of first degree rape and sodomy. They assert that the jury could reasonably have found from the evidence adduced at trial that although the complainant had not consented to sexual relations, defendants mistakenly believed that she had. Under those circumstances, they say, their mistaken belief negated the intent necessary for a finding of guilt on the various counts.

The Penal Law provides that a defendant is guilty of rape, first degree, or sodomy, first degree, when he or she engages in sexual intercourse or deviate sexual intercourse by forcible compulsion (Penal Law §§ 130.35, 130.50). The People must also establish the victim’s lack of consent (Penal Law § 130.05 [1]), but lack of consent results from forcible compulsion (Penal Law § 130.05 [2] [a]). Though the statutes are silent on the subject, intent is implicitly an element of these crimes (Penal Law § 15.15 [2]). The intent required is the intent to perform the prohibited act — i.e., the intent to forcibly compel another to engage in intercourse or sodomy.

The question is whether the court’s charge, when viewed in its entirety, adequately conveyed to the jury that the defendants acted with the necessary culpable mens rea. The court’s instructions on forcible compulsion were as follows:

"the third and final element [the People must prove] is that the lack of [complainant’s] consent resulted from the use of forcible compulsion * * * "Forcible compulsion means to compel by either use of physical force, or a threat, express or implied, which places a person in fear of immediate death or physical injury to herself.”

Manifestly, it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant. Thus, the jury, by finding that defendants used forcible compulsion to coerce the victim to engage in sodomy and intercourse, necessarily found that defendants believed the victim did not consent to the sexual activity. The instructions given covered the defense theory and the court did not commit reversible error in declining to give additional instructions on mens rea or mistake of fact.

IV.

We have reviewed defendants’ remaining contentions and find them without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(dissenting). In each case, I respectfully dissent and vote to reverse and order a new trial.

The sole basis upon which I would grant a new trial is that the trial court erred by refusing to instruct the jury on the essential culpable mental state element of criminal intent. The fair inferences from this record favor the People’s position that the trial court accorded at least minimal safeguards with respect to two other important and close legal issues, i.e., satisfaction of the rape shield law requirements (CPL 60.42) and refusal to instruct on mistake of fact. On that basis and in those respects, I agree with the Court’s reasoning and analysis.

This Court is unanimous that general intent is the culpable mental state of the crimes for which the three defendants were charged and convicted (see, Penal Law § 15.05; Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 15, at 32-34; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 130, at 568-570). That being so, we appear to be also unanimous that the trial court’s articulation and understanding of this principle was erroneous. In the preinstruction conference and colloquy, the trial court stated:

"There is no element of intent. * * * [T]he elements of rape and sodomy do not require any intent to do anything. It’s a crime of action as opposed to a crime of intent. It’s not a mens rea crime. * * * You don’t have to get into the intent of anybody here. Intent is not an element of the crime of rape. * * * [Intent is] not an element of the crime of forcible compulsion. * * * [I]t’s a crime of conduct, not a mens rea, state of mind” (emphasis added).

Based on that erroneous statement of the concededly applicable principle of law on the pertinent culpable mental state, which the majority characterizes merely as "misstatements to counsel,” the trial court rejected the defendants’ request to instruct on intent. Thus, my legitimate concern relates not to elaboration of what the trial court stated to the jury, but to what the trial court failed to tell the jury and its reasons for that ruling (majority opn, at 317, n 4).

This Court summarily exonerates the trial court from its erroneous refusal to instruct the jury, as requested, on the element of intent. This disposition both ignores and contradicts elementary instructional theorems. Jury instructions must include "the material legal principles applicable to the particular case” (CPL 300.10 [2]). Thus, every element of a charged crime must be included in the roadmap given to the jury for its deliberations (see, People v Flynn, 79 NY2d 879, 881; People v Lewis, 64 NY2d 1031, 1032; LaFave and Israel, Criminal Procedure, at 888 [1985]).

The prejudicial impact on the defendants from this error in relation to the other intensely disputed legal issues cannot be underestimated. It is not good enough in a case such as this, and on an issue so elemental, to fall back on the instructions-as-a-whole legitimization, as the Court does here. Moreover, a serious analytical and dispositional flaw is evident in the assumption that despite the absence of any instructional guidance, the jury somehow on its own bridges the missing mental step to arrive at the element of intent and know that it was an indispensable ingredient in order to return a verdict of guilty.

Part of the very reason for jury instructions is to prevent personal leaps of logic or speculation on key legal points (see, Lanzano v City of New York, 71 NY2d 208, 211-212, rearg denied 71 NY2d 890 ["Juries should not be allowed to (base their verdicts) on misconceptions of the law when simple and straightforward instructions * * * are readily available to help them in the truth-finding process”]). I respectfully submit that the Court’s approval of this elliptical methodology represents an unwarranted departure from sound and long-standing jury instructional theory and practices. The fairer and better practice is to lead the jury to the water by complete jury instructions, not allow it to speculate on and search for interstices as it strives to fulfill its unique obligation to apply all relevant legal principles to factual evidence before finding defendants guilty beyond a reasonable doubt on all elements of crimes charged. Courts should not countenance or promulgate rules regarding jury instruction that are based on the mere wish or hope that the right ingredients may drop into the pot during the jury’s solitary deliberations. Jury instructions are freighted with commands and imperatives to assure reasonably and scrupulously that the jury will know all they need to know about the law from the sole law source, the trial court. That did not happen in this case and the Court should not excuse this critical lapse.

The Court offers no authoritative sources — and I am aware of none — for its dispensation from an instruction on the essential culpable mental state element on the novel theory that the jury, in effect, would have applied natural reasoning to stumble into the right legal result. One is left to ponder what other instructions may be bypassed in the future on this rationale.

The Court’s analysis, I respectfully submit, also loses its way among crucial words and concepts which have historically governed the imposition of criminal responsibility. To compel by "forcible coercion” is essentially a facet of the traditional actus reus — the criminal act; intent is the quintessential mens rea — the culpable mental state (see, LaFave and Scott, Criminal Law, at 177-178, 196 [1972] [defining and distinguishing actus reus and mens rea]; Penal Law § 15.05). Blending and blurring the two concepts, and allowing one to be logically subsumed within or inferred from the other for instructional purposes, should not be justified as a sound legal proposition and proper method of analysis. In particular, the Penal Law provides a very precise definition of "forcible compulsion,” which does not contemplate or embrace the analysis and circumstances here (Penal Law § 130.00 [8]). Moreover, the jury’s total ignorance of its obligations, had it encountered reasonable doubt concerns on the intent element during its deliberations, is extremely disquieting. I cannot be confident that the jury understood or appreciated the particular legal consequences flowing from the absence of legal intent, a classic term of art and an indispensable element of the crime charged (contrast, People v Yanik, 43 NY2d 97, 100-101). Frankly, if the jury thought of the matter at all in this case, which is at least in some doubt, it would very likely have experienced confusion or uncertainty concerning the legal concept and how to apply the crucial principle in relation to the other intersecting, though legally discrete, nuances of this case.

Notably, the trial court gave an acting-in-concert instruction, including specific reference to the intent, required on such a theory. That highlights the prejudicial impact of the failure to instruct on the general culpable intent required for the direct commission of the crimes at issue. If reviewing courts are to assume that juries faithfully follow explicit instructions, then they should likewise accept the likelihood of a jury’s literal docility when faced with a total absence of instruction on the mental core of the direct commission of the crimes, a concededly indispensable element. A reasonably intelligent jury would more naturally conclude it was forbidden from considering intent in the constellation of issues of this case, reasoning that after being so explicitly instructed on the acting-in-concert theory, silence meant intent was not applicable on the direct commission aspect.

In sum, both precedentially and for the adverse implications to appellants, I do not believe the Court should absolve or tolerate the acknowledged gap in the essential jury instructions on a legal issue that emerged as a significant, practical nucleus of the case. This case, based on a reading of the whole record, is threaded with an elusive yet worrisome potential risk of miscarriages of justice. That risk is heightened beyond acceptable limits of appellate review by rationalizing away a reversible instructional error.

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

In each case: Order affirmed.

      . (See generally, Tuerkheimer, A Reassessment and Redefinition of Rape Shield Laws, 50 Ohio St LJ 1245; State v Budis, 243 NJ Super 498, 506, n 1, 580 A2d 283, 287-288, n 1.)

      . Because defendants challenge only the procedural aspects of the statute and the statute’s application to their case, the other branch of the constitutional standard — whether the evidentiary restriction is disproportionate to its purposes — is not relevant here (cf., Davis v Alaska, 415 US 308, 320).

      . The Penal Law recognizes three situations in which a person may be relieved of criminal liability when acting under a mistaken belief of fact: (1) when the factual mistake negates a culpable mental state required as part of the offense, (2) when the statutes defining the offense expressly allow the defense or (3) when the mistake supports a defense of justification (Penal Law § 15.20 [1] [a], [b], [c]). The statute authorizing a mistake of fact defense to sexual offenses does not apply under the facts of this case (see, Penal Law § 130.10) nor does the defense of justification. Defendants rely on section 15.20 (1) (a), a factual mistake negates a culpable mental state, contending that their mistaken belief that complainant consented to intercourse negated the requirement of intent implicit in the element of forcible compulsion.

      . As a court of law examining the instructions, we must evaluate what the court stated to the jury during the charge, not its misstatements to counsel during colloquy (see, dissenting opn, at 318).


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    Incorporated Village of Atlantic Beach, Appellant, v Artemios Gavalas, Respondent.
    Argued March 31, 1993;
    decided May 6, 1993

      POINTS OF COUNSEL

      Brown, Raysman & Millstein, New York City (Barry G. Felder, John J. Lynch and Robert G. Miller of counsel), for appellant.
    I. The Village is not prohibited from assuming the role of lead agency under SEQRA in this case simply because it does not have zoning authority over defendant’s proposed project. (Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Matter of Schodack Concerned Citizens v Town Bd., 148 AD2d 130; Matter of Pius v Bletsch, 70 NY2d 920.) II. The Village’s Building Ordinance accords "discretion” such that the issuance of a permit is an "action” under SEQRA. (Matter of Pius v Bletsch, 70 NY2d 920; Matter of Filmways Communications v Douglas, 106 AD2d 185, 65 NY2d 878; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Neville v Koch, 79 NY2d 416; Matter of Long Is. Pine Barrens Socy. v Planning Bd., 78 NY2d 608; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359.)

      Cohn, Rosenthal & Avrutine, Baldwin (Howard D. Avrutine, William S. Cohn and Jerry D. Reichelscheimer of counsel), for respondent.
    I. The Court below properly ruled that the Town of Hempstead, not the Village, must determine the applicability of SEQRA for land use applications within the Village. (Incorporated Vil. of Atl. Beach v Town of Hempstead, 19 NY2d 929; Garnett v Incorporated Vil. of Atl. Beach, 84 Misc 2d 460; Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674; Matter of Schodack Concerned Citizens v Town Bd., 148 AD2d 130; Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Pius v Bletsch, 70 NY2d 920.) II. The subject action involves an "as of right” project exempt from SEQRA. (Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Matter of Cokertown/Spring Lake Envtl. Assn. v Zoning Bd. of Appeals, 169 AD2d 765; Matter of Filmways Communications v Douglas, 106 AD2d 185, 65 NY2d 878; Citizens for

      Preservation of Windsor Terrace v Smith, 122 AD2d 827; Matter of Schum v City of New York, 161 AD2d 519; Incorporated Vil. of Atl. Beach v Town of Hempstead, 19 NY2d 929.)
   OPINION OF THE COURT

Titone, J.

The question presented by this appeal is whether a municipal agency responsible for issuing building permits may require a developer to submit an Environmental Impact Statement (EIS) as a prerequisite to approving the permit application. Because the Village Ordinance at issue here does not entrust the Building Inspector with the type of discretion which would allow a permit grant or denial to be based on the environmental concerns detailed in an EIS, building permit issuance does not constitute an agency "action” within the purview of the State Environmental Quality Review Act (SEQRA) or the parallel Local Law. Accordingly, we conclude that the courts below properly vacated the preliminary injunction barring construction and dismissed the Village’s complaint.

The parties’ dispute arose from defendant developer’s applications to plaintiff Village of Atlantic Beach and the Town of Hempstead for building permits to construct 11 retail stores on a parcel of commercially zoned real property. Although both localities subsequently issued building permits, defendant was forced to halt construction on the week-old project after the Village issued "stop work orders” on the ground that defendant had failed to comply with a local version of SEQRA that required submission of a statement detailing the project’s possible environmental effects (see, Local Laws, 1977, No. 2 of Incorporated Village of Atlantic Beach). When defendant defied the stop work orders and recommenced construction, plaintiff Village instituted the present action to enjoin defendant from undertaking any further construction on the property in the absence of compliance with SEQRA.

Supreme Court granted the Village’s motion for a preliminary injunction seeking to bar further construction. The court later vacated the injunction, however, and awarded defendant partial summary judgment dismissing the complaint on the ground that the Village, in effect, had impermissibly involved itself in zoning and land use matters in violation of the Nassau County Charter, which exclusively delegated such concerns to the Town of Hempstead. Supreme Court adhered to its initial determination on reargument and the Appellate Division affirmed, holding that issuance of a building permit under the regulatory scheme in question was a ministerial act, not qualifying as an agency "action” which would require preparation of an EIS. We now affirm. if

At the core of the parties’ dispute here, and the predicate for the stop work orders, is defendant developer’s failure to submit a statement, pursuant to Local Law No. 2 of the Incorporated Village of Atlantic Beach, assessing the proposed project’s potential impact on the environment. Local Law No. 2 was modelled after SEQRA, which was enacted to compel agencies to consider the environmental effects of their activities "[a]s early as possible” in the planning process (ECL 8-0109 [4]) and to encourage them to develop alternatives to a proposed action in order to mitigate environmental damage. Thus, the Local Law’s proper application depends, in this context, on our construction of SEQRA.

To promote the Legislature’s goals, and to provide an informational tool to aid in the decision-making process, SEQRA requires agencies to prepare an EIS "on any action they propose or approve which may have a significant effect on the environment” (ECL 8-0109 [2] [emphasis supplied]). The statute broadly defines the term "action” to include projects or activities that the agency either directly undertakes or funds, policy and procedure-making and the issuance of permits, licenses or leases (ECL 8-0105 [4] [i], [ii]). Expressly exempted from the definition, however, are "official acts of a ministerial nature, involving no exercise of discretion” (ECL 8-0105 [5] [ii]).

Issuance of a building permit may qualify as an exempt ministerial act (see, e.g., Matter of Filmways Communications v Douglas, 106 AD2d 185, affd 65 NY2d 878), or may instead constitute agency "action” subject to SEQRA (see, e.g., Matter of Pius v Bletsch, 70 NY2d 920), depending on the regulatory scheme underlying the act. In Filmways, we affirmed, on the opinion below, the Appellate Division’s holding that SEQRA was not implicated by the building inspector’s decision to grant or deny a building permit application because that activity involved "no latitude of choice” (106 AD2d, at 187). Since under the applicable regulations a decision on the permit application could only be predicated on the applicant’s compliance or noncompliance with the Building Code, the determination constituted a SEQRA-exempt ministerial act. In contrast, the regulations for building permit issuance involved in Pius permitted the issuing agency to exercise "site plan approval powers” and "the authority to make certain case-by-case judgments on site plan design” (70 NY2d, at 922). Thus, because the Director was not required to issue a permit upon the applicant’s compliance with a prescribed set of conditions, but could exercise considerable discretion in acting on the application, the regulations in question removed permit issuance from the realm of ministerial acts exempt from SEQRA’s provisions.

In determining whether an agency decision falls within SEQRA’s purview, however, the courts cannot rely on a mechanical distinction between ministerial and discretionary acts alone. Nor should they rely, as the Appellate Division did here, on distinctions based on whether the acting agency is ultimately vested with zoning or "land use” authority. Rather, the pivotal inquiry, which was alluded to in Filmways and Pius and which emerges here, is whether the information contained in an EIS may " 'form the basis for a decision whether or not to undertake or approve such action’ ” (Filmways, 106 AD2d, at 187, supra, citing ECL 8-0109 [2]; see also, Pius, 70 NY2d, at 922, supra; SEQR Handbook, at 12-13 [1992]). In other words, when an agency has some discretion, but that discretion is circumscribed by a narrow set of criteria which do not bear any relationship to the environmental concerns that may be raised in an EIS, its decisions will not be considered "actions” for purposes of SEQRA’s EIS requirements.

Logically, where an agency is empowered to "act” by granting or denying a permit based only on compliance with a conventional Building Code or fire safety regulations, it makes little sense to require preparation of an EIS. Such a requirement would certainly not advance the Legislature’s clear intent that an EIS be used as an informational tool to aid in the planning process (see, ECL 8-0109 [2]).

In contrast, the discretion involved in the exercise of site plan approval powers which was vested in the issuing agency in Pius is illustrative of agency "action” because a relationship exists between the types of decisions to be made and the environmental concerns enumerated in an EIS. In Matter of E.F.S. Ventures Corp. v Foster (71 NY2d 359), we recognized that the exercise of site plan approval powers requires "[a] large measure of discretion” (id., at 370). Indeed, this function involves analysis of "the proposed location of the buildings, parking areas, and other installations on the plot, and their relation to existing conditions, such as roads, neighboring land uses, natural features, public facilities, ingress and egress roads, interior roads, and similar features” (5 Ziegler, Rathkopfs The Law of Zoning and Planning, Site Plan Review § 62.01 [1] [4th ed]). Thus, site plan approval necessarily encompasses land use and environmental considerations, and a building inspector vested with that type of discretion or decision-making authority clearly would be aided by, and entitled to rely upon, the information contained in an EIS.

A review of the type and scope of information contained in an EIS underscores the illogic of requiring an EIS where the acting agency has no authority to approve a proposal based on those environmental concerns. In an EIS, a project sponsor is requested to provide a "Site Description,” which details the present land use of the project site and of contiguous land, soil type and the presence of any endangered species, a "Project Description,” which indicates the physical dimensions and scale of the proposed project, the number of acres of vegetation that will be removed from the site, whether blasting will occur, and the number of jobs which will be generated or eliminated by the project, and "Zoning and Planning Information,” which includes a discussion of whether zoning variances or special use permits will be required, whether the project will generate a significant increase in traffic, and whether community services, such as police and fire protection, are sufficient in their existing capacity, to handle the projected demand (see, 6 NYCRR 617.21, Appendix A, Part 1).

The agency principally responsible for approving the proposal is then required to analyze the information contained in the EIS and assess the potential impact on land, water, plants and animals, growth and character of the community and other environmental concerns (6 NYCRR 617.21, Appendix A, Parts 2, 3). An agency that is empowered to consider only criteria that are unrelated to any environmental or land use concerns clearly would not be aided in its decision by the receipt of this highly technical and environmental-specific information. Furthermore, preparation of an EIS would be a meaningless and futile act, since an agency vested with discretion in only a limited area could not deny a permit on the basis of SEQRA’s broader environmental concerns.

Application of these principles here leads us to conclude that plaintiff Village was not vested with the type of discretion which would enable it to predicate permit issuance on the land use or environmental matters detailed in an EIS. Plaintiff directs our attention to section 4 (c) of the Village Ordinance which provides:

"In the case of an apartment house, a church or place of worship, a school, a place of public assembly or other construction involving special problems or special considerations, the Board of Trustees may retain a special architect or engineer to examine the application and confer with the applicant’s architect and submit his report thereon * ** *. The Building Inspector may act on the basis of such report, and, meanwhile, may suspend action on the application” (emphasis supplied).

Plaintiff claims that the underscored language gives the Inspector greater discretion than that granted to the issuing agency in Pius, and prevents permit issuance from being considered an exempt ministerial act. Plaintiff’s interpretation of the Ordinance requires a leap not warranted by the above-quoted terms.

While the Ordinance arguably does give the Inspector some discretion to consider consultants’ reports before acting on a permit application, no language authorizes the Building Inspector to predicate permit issuance on anything other than an applicant’s compliance with predetermined statutory criteria. Rather, the only reasonable construction of the Ordinance’s terms is that these architectural and engineering reports, which typically would assess compliance with fire, safety and construction regulations, may be used to assist the Inspector in determining whether the proposed construction meets all applicable Building Code requirements. Thus, the authority to consider these reports, albeit discretionary, does not render a determination of the Village an "action” governed by the SEQRA requirements. As a practical matter, it would be unreasonable to hold that an agency responsible for issuing building permits, which is permitted to review architects’ and engineers’ reports, could demand an EIS, which it is not qualified to assess, and which would be of virtually no assistance in determining whether the applicant’s proposal complies with the Building Code.

Inasmuch as we conclude that the Village’s determination on a permit application is not an "action” requiring preparation of an EIS under SEQRA or Local Law No. 2 of the Incorporated Village of Atlantic Beach, we need not consider, as the Appellate Division did, whether such a requirement would usurp the Town of Hempstead’s authority to regulate land use under the Nassau County Charter. Since permit issuance under the Village Ordinance constituted a SEQRAexempt action, the courts below properly vacated the preliminary injunction barring further construction and dismissed the Village’s complaint.

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

Chief Judge Kaye and Judges Simons, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Richard Ruff, Appellant.
    Argued April 29, 1993;
    decided June 8, 1993
    POINTS OF COUNSEL

      Thomas Marcelle, Albany, for appellant.
    I. The police obtained a confession from Mr. Ruff concerning a sexual abuse charge — a charge on which Mr. Ruff’s right to counsel attached — for the purpose and effect of obtaining a confession from Mr. Ruff to a homicide charge. (People v Rogers, 48 NY2d 167; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154; Nix v Williams, 467 US 431; People v Ermo, 47 NY2d 863; People v Kazmarick, 52 NY2d 322; People v Hobson, 39 NY2d 479; People v Bartolomeo, 53 NY2d 225; People v Bing, 76 NY2d 331.) II. Dr. Davies’ expert opinion was predicated on facts not in evidence, therefore, the trial court erred when it admitted the opinion into evidence. (People v Jones, 73 NY2d 427; Caton v Doug Urban Constr. Co., 65 NY2d 909; Hugelmaier v Town of Sweden, 144 AD2d 934.) III. The trial court wrongly denied Mr. Ruff the use of crucial exculpatory evidence — Dr. Helpern’s medical report. (Matter of Leon RR, 48 NY2d 117; Stevens v Kirby, 86 AD2d 391; Chambers v Mississippi, 410 US 284.)

      Sol Greenberg, District Attorney of Albany County, Albany (Michael J. Connolly of counsel), for respondent.
    I. The trial court ruled defendant’s oral and written confessions were admissible. (People v Ermo, 47 NY2d 863; People v Robles, 72 NY2d 689.) II. Dr. Davies’ expert opinion was properly allowed by the trial court. III. Dr. Helpern’s records were inadmissible as a business record exception under CPLR 4518. (Matter of Leon RR, 48 NY2d 117; Johnson v Lutz, 253 NY 124; Toll v State of New York, 32 AD2d 47; Liberto v Worcester Mut. Ins. Co., 87 AD2d 477; Standard Textile Co. v National Equip. Rental, 80 AD2d 911.)
   OPINION OF THE COURT

Hancock, Jr., J.

The issue in this case is whether defendant’s statements to police should have been suppressed as violative of his right to counsel under this Court’s holding in People v Ermo (47 NY2d 863). We held in Ermo that a defendant’s statement had been taken in violation of his right to counsel because it was elicited while questioning defendant on pending charges on which defendant was represented by counsel. We reasoned that such exploitation of impermissible questioning by the police interfered with the attorney-client relationship and thus violated the right to counsel. The present case calls on the Court to determine whether, in the absence of representation by counsel on the pending charges, questioning on those charges requires suppression of defendant’s statement on an unrelated matter. For the following reasons, we conclude that it does not and, accordingly, affirm.

I.

In 1987, a warrant was issued in Rensselaer County for the arrest of defendant charging him with sexual abuse in the first degree. Christopher Ruff, defendant’s cousin, was employed as a police dispatcher when he learned of the warrant. He contacted State Police investigators and informed them that he believed that defendant was involved in the 1957 murder of his brother, Billy Ruff, in Albany County. In November of 1988, the investigators located defendant in Florida. They discussed extradition of defendant on the 1987 sexual abuse charges with the Rensselaer County District Attorney, but failed to obtain the necessary authorization to bring defendant back to this State. The investigators were advised that Rensselaer County was withdrawing the warrant and were led to believe that the sexual abuse charges against defendant would be dropped. The Albany County District Attorney, however, was interested in investigating defendant’s possible involvement in the 1957 murder and authorized the investigators to travel to Florida to question defendant.

On November 16, 1988, State Police Investigators Brant and Lewis traveled to Florida and, with a Florida law enforcement officer, located defendant at his place of employment. Defendant agreed to accompany the officers to the local police station for questioning. After being read Miranda warnings, defendant was questioned about the sexual abuse allegations. He admitted committing acts constituting several sex crimes, including those involved in the Rensselaer County charges and signed a written statement admitting that conduct.

Defendant was then asked whether he knew anything about the 1957 murder. He denied any knowledge of the circumstances of Billy Ruff’s death, but agreed to submit to a polygraph examination. The next day, the investigators took defendant to a civilian polygraph technician who, after defendant received Miranda warnings and signed a waiver, questioned defendant about the murder out of the presence of the investigators. At the conclusion of the questioning, the technician indicated to defendant that he had "a problem”. Defendant responded, "Yes, I know. The problem is I killed Billy.” Defendant then wrote on a piece of paper "I am an alcoholic. I am cured. In August 1957, I killed Billy, and I need help.” Upon further questioning by the investigators, defendant elaborated on the events leading to the death. He was subsequently arrested as a fugitive from New York and transported back to this State. In April of 1989, defendant was indicted in Albany County for the murder.

At a pretrial Huntley hearing, defendant moved to suppress his statements about the murder as violative of his right to counsel which had attached with regard to the pending Rensselaer County sexual abuse charges (see, People v Samuels, 49 NY2d 218). The trial court denied the motion and defendant was subsequently convicted of murder in the first degree (see, Penal Law of 1957 § 1044). The Appellate Division unanimously affirmed.

II.

In People v Kazmarick (52 NY2d 322), this Court held that pending criminal charges do not bar the police from questioning a suspect on an unrelated matter, when the suspect is not in fact represented by counsel on the pending charges. In deciding Kazmarick, the Court distinguished its previous decision in People v Rogers (48 NY2d 167) which held that once an attorney had entered proceedings on prior pending charges, police may not question a suspect in custody on those charges, even on unrelated matters, in the absence of counsel. The Court had reasoned in Rogers that any questioning, even on unrelated matters, presents a potential interference with the critical relationship which exists between attorney and client and thus threatens the suspect’s right to counsel (id., at 173).

But, the Rogers holding had never been applied to bar uncounseled questioning when no attorney-client relationship had been established on the pending charges and when the right to counsel arose solely upon the commencement of formal proceedings (see, Samuels, supra, at 221). In Kazmarick, the Court simply reaffirmed the narrow application of Rogers as confined to situations where an attorney had entered the pending proceedings. It held that Rogers did not preclude questioning on unrelated charges where defendant’s right to counsel had attached in the pending case solely by virtue of commencement of formal proceedings (see, Kazmarick, supra, at 328). This Court clearly distinguished between the attachment of the right by commencement of formal proceedings and by the entrance of counsel into pending proceedings and noted:

"Defendant in an overly simplistic lumping of the two lines of cases argues from Samuels that the arrest warrant and accusatory instrument * * * created a nonwaivable right to counsel and from Rogers that attachment of that right prevented interrogation on any other criminal matter. While the filing of an accusatory instrument triggers a right to counsel with respect to the charge made by the accusatory instrument, the right to counsel and representation by counsel are not the same thing * * * Simply put, the legal fiction of representation indulged by the Samuels line of cases is not tantamount to the actual or requested representation protected by the Rogers-Cunningham line” (id., at 327-328 [emphasis added]).

In the present case, defendant’s right to counsel had attached on the Rensselaer County sexual abuse charges but defendant had neither retained nor requested counsel. Thus, under Kazmarick, inasmuch as no attorney-client relationship had been established on the pending charges, the investigators were not barred from questioning on the unrelated Albany County homicide.

Defendant’s reliance on People v Ermo (supra) for a contrary result is misplaced. In Ermo, the police interrogated defendant, in the absence of counsel, intermingling questions relating to the matter on which defendant was represented with questions on an unrelated matter. This Court concluded that the questioning of defendant on the unrelated matter was violative of defendant’s right to counsel because "the police exploited concededly impermissible questioning” (id., at 865) interfering with the attorney-client relationship on the pending matter to elicit statements on the unrelated matter. It was this type of interference with an existing attorney-client relationship on a pending charge that led to our decision in Rogers barring custodial questioning on even unrelated matters absent an effective waiver of the right to counsel (see, People v West, 81 NY2d 370, 377 [decided today]; People v Robles, 72 NY2d 689, 697-698; Rogers, supra, at 171-173).

The present case, however, does not involve police interference with an attorney-client relationship by questioning in a manner designed to elicit statements on an unrelated matter. In the absence of actual representation, questioning on the pending charges does not require suppression of statements on unrelated matters under Ermo. We need not and do not reach the question whether — in circumstances not present here— police questioning on unrelated matters could rise to a level of exploitation that could not be tolerated by this Court.

We have reviewed defendant’s remaining contentions and find them to be without merit.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Smith concur.

Order affirmed.

       Prior to the Albany County indictment, defendant was arraigned on and pleaded guilty to the Rensselaer County charges of sexual abuse.