author: Kaye, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Stephen Moses, Appellant.
    Argued September 7, 1984;
    decided October 16, 1984

      POINTS OF COUNSEL

      Stuart M. Cohen for appellant.
    Defendant’s false alibi was insufficient as a matter of law to satisfy the requirement of CPL 60.22 (subd 1) that, for a conviction to rest on the testimony of an accomplice, there must be corroborating evidence tending to connect defendant with the commission of the offense. (People v Duncan, 46 NY2d 74, 940, 442 US 910, 56 NY2d 646; People v Dory, 59 NY2d 121; People v Hudson, 51 NY2d 233; People v Berger, 52 NY2d 214; People u Cona, 49 NY2d 26; People v Daniels, 37 NY2d 624; People v Fiore, 12 NY2d 188; People v O’Farrell, 175 NY 323; People v Kress, 284 NY 452; People v Nieto, 97 AD2d 774.)

      Robert M. Morgenthau, District Attorney {Debora K. Grobman and Amyjane Rettew of counsel), for respondent.
    Independent evidence establishing defendant’s presence in the abandoned apartment where the murder was to be committed, demonstrating his own consciousness of guilt about his presence there, and linking him to the store in which the stolen checks were cashed provided ample corroboration. (People v Fiore, 12 NY2d 188; People u Morhouse, 21 NY2d 66; People v Dixon, 231 NY 111; People v Dory, 59 NY2d 121; People v Daniels, 37 NY2d 624; People v Glasper, 52 NY2d 970; People v Hudson, 51 NY2d 233; People v Cunningham, 48 NY2d 938; People v Deitsch, 237 NY 300; People v Gorski, 236 NY 673.)
   OPINION OF THE COURT

Kaye, J.

Defendant’s false alibi, standing alone, is in the circumstances presented insufficient to corroborate the testimony of an accomplice, the only direct evidence on which defendant was convicted of felony murder and robbery. The order of the Appellate Division should therefore be reversed, and the order of the trial court dismissing the indictment as to defendant reinstated.

On December 20,1978, Arthur K. Watt, a young serviceman stationed at Fort Leonard Wood in Missouri, flew to New York to spend Christmas with his family. On his way home, he stopped at a bar in upper Manhattan and from there went to a vacant apartment at 2725 Eighth Avenue with other patrons of th,e bar, where he was robbed, stabbed and strangled. Officials discovered his partially burned body the next morning. Charged with this brutal murder, defendant proceeded to trial and rested without presenting any evidence, insisting that the prosecution had failed to corroborate the testimony of its chief witness, Lynette Baker, defendant’s former girlfriend and an admitted accomplice to the crime.

According to Baker, who was also charged with the crime but testified in exchange for leniency, at a few minutes after 1:00 a.m. on December 21,1978, she met her friend James Greer in a bar on Eighth Avenue. Also present in the bar was codefendant Cornell Alston, who was “like a brother” to her. Greer and Baker left the bar shortly before 2:00 a.m. and went to a grocery store across the street to buy cigarettes and beer. Upon emerging from the store, Baker met Alston, who was carrying a duffel bag, and she observed defendant standing behind a door in the hallway of the apartment building at 2725 Eighth Avenue.

As Baker further testified, she and Greer then parted, Greer going home and Baker walking over to defendant, who by this time had been joined by Alston and Watt. When Jerome McEachin subsequently arrived, Alston and Watt went upstairs. A few minutes later, the others followed and the group gathered in a vacant apartment on the third or fourth floor. They talked and drank beer and Watt gave Alston some money to buy marihuana. When Alston left to make the purchase, according to Baker, defendant suddenly grabbed Watt and choked him as McEachin and Baker went through his pockets. McEachin took some travelers checks and began punching Watt when he said he had no cash. Alston returned during the robbery and he and defendant brought Watt into another room, leaving Baker and McEachin in the kitchen. Baker testified she heard defendant or Alston say they had to “take him out” because he knew their names. She saw Alston stab Watt twice, and defendant and Alston then strangled Watt. After leaving the building, Baker, Alston and defendant went to Napoleon Loder’s house in The Bronx. Defendant, who by this time had obtained Watt’s travelers checks, gave them to Alston. Baker testified that Alston subsequently told her he had used the checks at Alexander’s to purchase a snorkel jacket and turtleneck sweater. The People also called Baker’s friend James Greer, who testified that he had met Baker in the bar at about 1:00 a.m. and noticed Alston, McEachin and the young soldier. While he went to the grocery store with Baker upon leaving the bar, he did not see defendant either in the bar or on the street.

Another prosecution witness, Margaret Jennings, who lived in the apartment across the hall from apartment 4S (the crime scene) testified that at 11:00 p.m. on December 20, at least three hours before the crime, she saw defendant leaving apartment 4S. She did not see him again that night. At about 1:00 a.m., she heard noises in the hall and, when she opened her door to investigate, saw Alston carrying a duffel bag. Alston said he came to get in out of the rain and would cause no trouble. Jennings’ son, Melvin Herman, testified that he left the apartment after midnight to purchase cat food and, on his way out, saw two black men on the front stoop, one tall and the other short. But he could not identify defendant or Alston.

The prosecution also introduced defendant’s videotaped statement, made after his arrest on January 31, 1979, in which he said that he had spent the entire evening of the crime at 2300 Lawrence Place in The Bronx, where he lived with Loder. Defendant said he was not in Manhattan at all on the day of the crime and had never been in the abandoned building. Defendant also said he had purchased Christmas decorations at Alexander’s.

Finally, on the subject of the travelers checks, the People presented Grady Houston, Alston’s friend and former employer, who testified that he had arranged for Alston to cash three of the travelers checks at a local market, and the People introduced other checks belonging to Watt that had been cashed at Alexander’s. A handwriting expert testified that the signatures on the checks were forged but he could not determine the identity of the forger.

Following the People’s case, defendant moved to dismiss the indictment because the accomplice’s testimony was insufficiently corroborated. The court reserved decision and defendant rested without presenting any evidence. The jury convicted both defendant and Alston of felony murder and third degree robbery.

The trial court subsequently granted the motion to dismiss, finding Baker’s testimony inadequately corroborated. Commenting on Baker’s credibility, Justice Dontzin “found the quality of her testimony to be appalling, contradictory and inconsistent with prior statements given to law enforcement.” He “perceived her testimony to be motivated on the one hand, by a natural desire to avoid going to jail, and on the other hand, by her open hostility to Moses, who was her former lover and boy friend.” To allow the guilty verdict to stand, said the court, “runs a grave risk that an innocent man has been convicted.”

Though believing the issue to be “close,” the Appellate Division reversed and reinstated the conviction. The majority found that the only evidence corroborating Baker’s testimony was defendant’s false alibi, which betrayed a consciousness of guilt. Relying primarily on People v Deitsch (237 NY 300), the court concluded that this evidence was sufficient. Two concurring Justices found corroboration not only in the false alibi but also in defendant’s presence at the abandoned apartment earlier in the evening, his admission that he had gone to Alexander’s, Melvin Herman’s testimony that he saw two men on the front stoop of the building, and James Greer’s testimony concerning his date with Baker and his failure to see defendant on the street. While we agree with the majority that the only evidence arguably corroborative of Baker’s testimony is the false alibi, we do not agree that it was sufficient to meet the statutory requirement of corroboration.

As this court has noted, the law views the testimony of an accomplice with a “suspicious eye” (People v Berger, 52 NY2d 214, 218; People v Duncan, 46 NY2d 74, 78-79, cert den 442 US 910; see, also, People v Dory, 59 NY2d 121, 128). Especially where circumstances suggest that the motivation behind an accomplice’s testimony may have been to curry favor with the prosecution and receive lenient treatment, accomplice testimony lacks the inherent trustworthiness of testimony of a disinterested witness (People v Daniels, 37 NY2d 624, 629; People v Kress, 284 NY 452, 459). Accordingly, accomplice testimony is regarded with “the utmost caution” (People v Berger, 52 NY2d 214, 219, supra). Particular scrutiny is appropriate here, where the accomplice testified under a promise of leniency and where the Trial Judge, who had the advantage of observing the witness, noted the inconsistency of her testimony and her hostility toward her former boyfriend, and expressed his fear that an innocent man stood convicted.

CPL 60.22 (subd 1) prohibits a conviction “upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission” of the crime. The corroboration must consist of “evidence from an independent source of some material fact tending to show that defendant was implicated in the crime” (People v Kress, 284 NY 452, 460, supra). It need only “connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth” (People v Daniels, 37 NY2d 624, 630, supra). Matters of seeming insignificance “may so harmonize with the accomplice’s narrative as to have a tendency to furnish the necessary connection between defendant and the crime” (People v Dixon, 231 NY 111, 117). But where the corroboration has no “real tendency to [provide such connection], it is insufficient” (People v Kress, 284 NY 452, 460, supra; People v Wasserman, 46 AD2d 915).

On this appeal, the People point to three evidentiary bases as satisfying the requirement for corroboration: defendant’s admitted visit to Alexander’s, his presence in the abandoned apartment three or more hours before the crime, and his false alibi.

Defendant’s admission that he went to Alexander’s neither constitutes nor contributes to the requisite corroboration. First, the transcript of defendant’s videotaped statement does not support the People’s reading of it as an admission of his presence at Alexander’s on Thursday, December 21, when four of Watt’s travelers checks were cashed at Alexander’s. Though defendant initially in this statement expressed some confusion regarding dates, he stated unequivocally that he went to Alexander’s on Wednesday, December 20, the day before the crime: “Wednesday I made fourteen dollars and change. I told you I went to Alexander’s and I bought decorations. That was Wednesday”. Later, defendant said, “Wednesday during the day I went out because I was washing cars * * * Then I went shopping at Alexander’s.” Second, even if defendant’s admitted visit to Alexander’s could be read to have occurred on Thursday, December 21, still this would have not been corroborative evidence. The testimony at trial does not permit the inference that defendant used the checks, Baker herself having testified that Alston used the checks; it does not establish that defendant and Alston were together at Alexander’s; and it does not even reveal whether the two men went to the same Alexander’s branch. Thus, defendant’s visit to Alexander’s established no nexus with the criminal activity (see People v Nieto, 97 AD2d 774), and must be disregarded as corroboration.

Nor is CPL 60.22 satisfied by Jennings’ testimony that she saw defendant at the scene of the crime three or more hours before its commission. Presence at the scene of a crime may provide the necessary corroboration where, for example, “there was no plausible hypothesis therefor other than that the defendant was a likely participant in the criminal transaction, or, even if there were an innocent explanation therefor, if the circumstances of the crime itself were otherwise such as to import corroborating significance” (People v Hudson, 51 NY2d 233, 240, n; People v Tillotson, 63 NY2d 731; see, also, People v Wasserman, 46 AD2d 915, supra). Thus, even independent evidence of a defendant’s presence at the scene of a crime at the time of its commission may not invariably corroborate an accomplice’s accusation (People v Lanza, 57 NY2d 807, revg on dissent 83 AD2d 714; People v Hudson, 51 NY2d 233, 240, supra). But where the independent evidence establishes defendant’s presence at the scene of a crime at a time other than when it was committed, it is all the more difficult to invest it with corroborative significance (cf. People v Kress, 284 NY 452, supra; People v Nieto, 97 AD2d 774, supra; People v Horton, 61 AD2d 1082). Here, defendant’s presence at the abandoned apartment at least three hours before the crime did not itself tend to connect him with the commission of the crime. There is no evidence that, at the time of defendant’s presence, the apartment was in any way associated with the criminal enterprise. Moreover, by the prosecution’s own evidence, apartment 4S had previously been used by various people, including defendant, to drink and smoke marihuana, so that his presence there was hardly unusual.

The question then is whether defendant’s false alibi, by itself, corroborated Baker’s testimony. A false alibi falls into the category of evidence, including flight and analogous conduct, considered indicative of consciousness of guilt and thus of guilt itself. (See People v Reddy, 261 NY 479, 486.) Evidence thought to bear on consciousness of guilt has traditionally been considered weak because an innocent person may attempt to extricate himself from a situation by denying incriminating evidence even though he knows it can be truthfully explained or by fleeing from an accuser because of fear of wrongful conviction. Thus, a false alibi may be due not to consciousness of guilt of the crime charged but to consciousness of some incriminating evidence and the justifiable desire to remain free (see People v Benzinger, 36 NY2d 29, 33-34; People u Yazum, 13 NY2d 302; People v Leyra, 1 NY2d 199; People v Reddy, 261 NY 479, supra).

While such evidence may corroborate the testimony of an accomplice (People v Leyra, 1 NY2d 199, 208, supra), even in corroboration cases the court has found some nexus between the defendant and the criminal activity apart from the bare evidence of consciousness of guilt. In People v Deitsch (237 NY 300, supra), for example, the independent evidence established defendant’s presence at the scene of the crime moments before its commission. Defendant’s false denial of presence in those circumstances permitted the inference that his presence there, at that time, was not innocent. Thus, it was the combination of defendant’s presence at the scene and the false denial which the majority found sufficient (see, also, People v Glasper, 52 NY2d 970; People v Ruberto, 10 NY2d 428; People v McGuire, 135 NY 639). Here, by contrast, there was no evidence that defendant’s presence in apartment 4S hours before the crime was even contemplated was anything but innocent, and thus there is no basis for an inference from his denial that his presence there was a guilty presence.

Where an accomplice’s testimony is bolstered only by evidence of consciousness of guilt, this court has been reluctant to find the necessary corroboration. In People v Reddy (261 NY 479, supra), two men committed a robbery/ murder and the question came down to whether the accomplice’s incriminating testimony was adequately corroborated by the defendant’s flight from parole authorities. The court determined that even if there were a connection between the defendant’s flight and the commission of the crime, it was “so inherently weak and inconclusive as to furnish no reasonable ground for a finding by the jury that the accomplice was telling the truth” (id., at p 488). We reach the same conclusion today. The bare evidence of consciousness of guilt, in the circumstances of this case, was so inherently weak that it did not satisfy the corroboration requirement of CPL 60.22. Accordingly, the order of the Appellate Division should be reversed and the order of the trial court dismissing the indictment as to defendant reinstated.

Jasen, J.

(dissenting). Regrettably, the majority continues the undeviating and distinctive drift away from the intended narrow function of New York’s accomplice corroboration rule.

Prior to the 1881 enactment of the accomplice corroboration rule (Code Crim Pro, § 399, from which CPL 60.22, subd 1, is derived), New York followed the common-law view that although the uncorroborated testimony of an accomplice should be received with caution, a conviction would stand exclusively upon the basis of such evidence. (People v Doyle, 21 NY 578.) Indeed, accomplice testimony was embraced at common law and various colonial statutes provided incentives for defendants to give testimony against codefendants by offering pardons and rewards. (See Act of Assembly, Nov. 25, 1751, 3 Col Laws of NY, p 856; Act of Assembly, March 24,1772, 5 Col Laws of NY, p 353.) As an act in derogation of the common law, section 399 of the Code of Criminal Procedure was necessarily accorded a strict construction by 19th century courts. For example, this court, when called upon to determine whether accomplice testimony was sufficiently corroborated as required by the relatively recent statute (Code Crim Pro, § 399), noted that the point was “fully answered by our decision in the Jaehne Case [People v Jaehne, 103 NY 182]”. [People v O’Neil, 109 NY 251, 267.) In People u Jaehne (103 NY 182,199-200, supra), the court, faced with the sufficiency of accomplice corroboration of a confession, held the confession to be corroborated by only slight corroborating facts. Thus, by this court’s analogy to the standards necessary to uphold a confession, it was early held that corroboration of accomplice testimony is achieved by a very slight factual showing, and the adequacy of such showing is reserved for jury consideration.

In a majority of sister State jurisdictions, the uncorroborated testimony of an accomplice will support a criminal conviction. (State v La Fountain, 140 Conn 613; Tramill v State, 425 A2d 142 [Del]; Jalbert v State, 95 So 2d 589 [Fla]; State v Lincoln, 3 Hawaii App 107; People v Pittman, 93 Ill 2d 169; Smith v State, 455 NE2d 346 [Ind]; State v Roth, 207 Kan 691; Murphy v Commonwealth, 652 SW2d 69 [Ky], cert den 465 US_, 79 L ed 2d 751 [three Justices dissenting]; State v Matassa, 222 La 363; State v Sawyer, 314 A2d 830 [Me]; Commonwealth v Stewart, 375 Mass 380 [conviction may be based on the uncorroborated testimony of accomplice, provided the accomplice has not been formally granted immunity]; People v Dukes, 120 Mich App 662; Gandy v State, 438 So 2d 279 [Miss]; State v Moore, 642 SW2d 917 [Mo]; State v Huffman, 214 Neb 429; State v Thresher, 122 NH 63; State v Butler, 32 NJ 166; State u Gutierrez, 75 NM 580; State v Lester, 294 NC 220; Commonwealth v Hudson, 489 Pa 620; State v DeMasi, 413 A2d 99 [RI]; State v Steadman, 257 SC 528; Johnson v Commonwealth, 224 Va 525; State v Johnson, 77 Wn 2d 423; State v Vance, 262 SE2d 423 [W Va]; Ostrowski v State, 665 P2d 471 [Wyo].) It is not coincidental that of the 21 States which had required corroboration of accomplice testimony in 1954, 15 States had restricted the Judge’s charge by constitutional provision, statute or case law to forbid the Judge from commenting upon the weight of such testimony to the jury. (Note, The Rosenberg Case: Some Reflections on Federal Criminal Law, 54 Col L Rev 220, 235.) It should be noted that it is the rule in Federal courts that a person accused of a crime may be convicted solely upon the uncorroborated testimony of an accomplice. (See, e.g., United States v Wright, 573 F2d 681, cert den 436 US 949; United States v Trevino, 565 F2d 1317, cert den 435 US 971.) The widespread rejection of the corroboration requirement reflects a dissatisfaction with a rule of evidence which arbitrarily determines, in advance of testimony, in ignorance of the circumstances, and without considering demeanor, that an accomplice is not credible. (See State v Litchfield, 58 Me 267, 270; State v Betsall, 11 W Va 703, 741.)

The accomplice corroboration rule has long been the subject of criticism in New York. In 1939, for example, the Commission on the Administration of Justice, established by chapter 79 of the Laws of 1939, urged the repeal of the corroboration requirement and observed: “Present section 399 providing that a conviction cannot be had upon the uncorroborated testimony of an accomplice, has been deleted. The Commission was strongly of the opinion that this section in the present Code is a refuge of organized crime and protects the principals in racketeering cases. The deletion of this provision will remove the present anomalies in the law arising from statutory exceptions and court decisions relating to the question as to who is an accomplice, such as the rule that a thief and a receiver are not accomplices. The Commission carefully considered the possibility that the deletion of this provision might encourage frame-ups and related abuses, but was strongly of the opinion that such would not be the case. The deletion of this provision merely restores the common law and permits the trial court to give appropriate instructions in each case affecting the credibility of the testimony offered instead of binding the court to the general rule prescribed by the statute.” (Emphasis added.) (NY Legis Doc, 1939, No. 76, p 124.) This view was reiterated 40 years later (People v Cona, 49 NY2d 26, 37-47 [Jasen, J., dissenting]) ahd is restated today, with emphasis added.

Bearing in mind that CPL 60.22 is satisfied by corroboration evidence which tends to connect the defendant with the crime in such a way that the jury is reasonably satisfied that the accomplice is telling the truth, and such corroborative evidence need not exclude to a moral certainty every hypothesis but that of wrongdoing (People v Daniels, 37 NY2d 624, 630), I turn to the facts of this case.

On December 20,1978, Arthur K. Watt, a young serviceman, arrived in New York City to spend Christmas with his family after serving his first six weeks in the Army at Fort Leonard Wood, Missouri. On his way home, Watt stopped at a bar located in upper Manhattan, a few blocks from his mother’s house. With other patrons of the bar, he went to a fourth floor apartment at 2725 Eighth Avenue. In the early morning hours, the Fire Department arrived to investigate smoke emanating from the fourth floor apartment. Arthur Watt’s body was discovered in the apartment. He was found lying face up in the living room, his hands tied behind his back, with an electric cord at his feet. He had been stabbed six times, and a tie had been knotted around his neck tightly enough to strangle him. There were burns covering most of his body from a fire that had been set by scattering a flammable liquid on and around his body.

Defendant was implicated as a participant in the barbarous murder of Watt by the testimony of an accomplice, Lynette Baker. Baker’s detailed description of the manner in which Watt was killed was mirrored by the observations of the fire marshal and detective upon investigation at the scene of the crime. In order to corroborate this accomplice testimony, the People introduced the testimony of Margaret Jennings, who lived in the apartment across the hall from the situs of the killing. Jennings testified that at approximately 11:00 p.m., she had seen the defendant leaving the apartment in which the murder was to occur three or four hours later. Baker testified that defendant had used the apartment on other occasions in the past. In addition, the People introduced defendant’s videotaped statement to the Assistant District Attorney, which was recorded the night defendant was arrested. In this statement, defendant denied any involvement in the murder. He acknowledged that he knew the building where the murder took place, but he claimed he had never been in it. He also claimed that he had not been in Manhattan the entire week of the murder. Defendant insisted that he had spent that week in The Bronx.

In People v Dixon (231 NY 111, 116), this court spoke to the requirement that accomplice testimony be corroborated, and noted: “The ‘other evidence’ must be such ‘as tends to connect defendant with the commission of the crime.’ The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime * * * It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth. The corroboration is not restricted to any particular point. Its connection with defendant’s own statements and denials should be considered.”

Matters in themselves of seeming indifference or light trifles of time and place may so harmonize with the accomplice’s narrative as to have a tendency to furnish the connection between the defendant and the crime. (People v Dixon, 231 NY 111, 117, supra.) It may be said that while each of the particulars of independent corroborative evidence, taken separately and without reference to the accomplice’s testimony, is innocuous and nonindicative, the cumulative effect of the sum of the particulars establishes the requisite corroboration. A mode of evaluation which views each element of the corroborative evidence in a vacuum, without regard to the entire record, constitutes an erroneously high legal standard. It has been established that evidence corroborative of accomplice testimony is to be viewed cumulatively, in light of the entire record. (People v Hudson, 51 NY2d 233; People v Glasper, 52 NY2d 970; People v Dory, 59 NY2d 121, 129; see, also, Mitchell v State, 650 SW2d 801 [Tex].)

In my view, the independent testimony establishing defendant’s presence at the scene of the crime, shortly before the murder in the vacant apartment, contradicts the videotaped statement by defendant that he was not in Manhattan the night of the murder and contradicts defendant’s statement that he was never in the apartment building where the murder occurred, all of which tend to corroborate the accomplice testimony. By contradicting defendant’s videotaped statement, the corroborating testimony did more than place defendant in Manhattan and in the apartment building, since it specifically pinpointed defendant’s presence at the very apartment in which the killing was to occur, on the night of such occurrence. Moreover, the independent corroborating testimony could be credited as showing that defendant attempted to fabricate a false alibi. When viewing the establishment of defendant’s presence at the apartment in which the murder occurred, together with defendant’s attempt to completely divorce himself from the Borough of Manhattan and the apartment building in question by means of a false alibi, the cumulative effect justifies the inference that his presence at the vacant apartment the night of the murder was a guilty presence.

In People v Deitsch (237 NY 300, 303), this court held that presence is relevant on the issue of corroboration where the defendant denies his presence and denial is proved false. People v Deitsch (supra) has unequivocally established that where, as here, presence at the situs of the crime is established by independent, credible evidence, and this fact is coupled with a false denial of presence, accomplice testimony implicating defendant in the crime is sufficiently corroborated. (Accord People v Gorski, 236 NY 673; People v McGuire, 135 NY 639, 641.) The defendant’s false story, evincing as it does a consciousness of guilt, constitutes the essential corroborative evidence for accomplice testimony. (People v Ruberto, 10 NY2d 428, 430; People v Leyra, 1 NY2d 199, 208.) In the instant case, the false alibi represents an expressed, unambiguous and affirmative effort by defendant to sever any connection between himself and the scene of the crime by his statement that he was never in the apartment building. Once defendant has been placed at the scene of the crime, and the jury found that he had lied about such presence, whether such presence was remote from or in close temporal proximity to the time of the murder is a question of degree to be evaluated by the jury.

We are not afforded the benefit of defendant’s explanation of the inconsistency between his videotaped statement and the independent testimony of Margaret Jennings, as the defendant did not take the stand and the defense did not present evidence. If this case was tried in California, a staunch supporter of the accomplice corroboration rule, defendant’s failure to testify would add weight to the corroborating evidence. (People v Keene, 128 Cal App 2d 520; People v Goldstein, 136 Cal App 2d 778, 790 [“It is nevertheless persuasive, lending weight to the evidence presented by the prosecution upon matters presumptively within defendant’s knowledge, and which if untruly stated would normally be denied by him”].)

For all those reasons, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jones, Meyer and Simons concur with Judge Kaye; Judge Jasen dissents and votes to affirm in a separate opinion; Judge Wachtler taking no part.

Order reversed and order of Supreme Court, New York County, reinstated.

      . Baker testified that, in exchange for her testimony, she had been promised that she could be sentenced to probation.

      . The People do not rely on the testimony of Melvin Herman or James Greer, as did the concurring Justices in the court below. We agree that these witnesses provided no corroboration. Herman’s description of the men on the stoop was too vague to support an inference that defendant was one of them. Similarly, Greer’s testimony that he did not see defendant, though not contradicting Baker’s testimony that defendant was hiding, is in no sense corroborative of defendant’s presence.


source: Caselaw Access Project

author: Meyer, J. Jasen, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Alfio Ferro, Appellant.
    Argued September 7, 1984;
    decided October 25, 1984

      POINTS OF COUNSEL

      Anthony V. Lombardino for appellant.
    I. The evidence was so unsatisfactory as to be insufficient to support the verdict of murder in the second degree as a matter of law, as a matter of fact and in the interest of justice. (People v Leyra, 302 NY 353; People v Castillo, 47 NY2d 270; People v Quinones, 61 AD2d 765; People v Ledwon, 153 NY 10.) II. Appellant’s constitutional rights secured by the Fourth, Fifth and Sixth Amendments were violated by the use of a statement allegedly made by him to law enforcement officers. (Leyra v Denno, 347 US 556; Haynes v Washington, 373 US 503; Michigan v Mosley, 423 US 96; People v Wander, 47 NY2d 724; People v Pugh, 70 AD2d 664; Miranda v Arizona, 384 US 436; Rhode Island v Innis, 446 US 291; United States v Barnes, 432 F2d 89; People v Bodner, 75 AD2d 440; People v Lange, 77 AD2d 632.) III. Appellant was deprived of his constitutional right to a fair trial by degrading trial counsel. (People v Burnside, 52 AD2d 626; People v Tatum, 54 AD2d 950; People v Powell, 64 AD2d 676; People v Moulton, 43 NY2d 944.) IV. Adverse comment on appellant’s exercise of his constitutional privilege against self-incrimination deprived him of a fair trial. (People v Von Werne, 41 NY2d 584; Jenkins v Anderson, 447 US 231; People v Conyers, 49 NY2d 174, 52 NY2d 454.) V. The failure of the District Attorney to disclose what prior bad acts he would confront appellant with deprived appellant of his right to safely testify. (People v Molineux, 168 NY 264; People v Sandoval, 34 NY2d 371; People v Santarelli, 49 NY2d 241.) VI. Appellant was deprived of his Sixth Amendment right to confrontation when the District Attorney was permitted to make reference to the out-of-court confession of codefendant. (Bruton v United States, 391 US 123.) VII. Appellant was further deprived of his Sixth Amendment right of confrontation and Fourteenth Amendment right to a fair trial by the argument of the District Attorney on summation that there was additional evidence that was not presented at the trial. VIII. Personal vouching by the District Attorney for prosecution witnesses deprived appellant of a fair trial. (People v Manson, 63 AD2d 686.) IX. The court improperly instructed the jury in a manner that unconstitutionally shifted the burden of proof to the defense. (Sandstrom v Montana, 442 US 510; People v Egan, 72 AD2d 239.)

      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
    As the court’s decision denying defendant’s motion to suppress evidence of his statements was proper in all respects, the statements were properly submitted for the jury’s consideration. (Rhode Island v Innis, 446 US 291; People v Anderson, 42 NY2d 35; People v Bryant, 87 AD2d 873, 59 NY2d 786; United States v Davis, 527 F2d 1110, 425 US 953; People v Tarsia, 50 NY2d 1; People v Torres, 21 NY2d 49; Michigan v Mosley, 423 US 96; People v Morales, 42 NY2d 129, 434 US 1018; People v Cyrus, 76 AD2d 842; People v Samuels, 49 NY2d 218.)
   OPINION OF THE COURT

Meyer, J.

What constitutes “interrogation” of a suspect who, after Miranda warnings, has declined to answer questions is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response. Because applying that test we conclude that the conduct of the police in placing in front of the cell in which defendant was being detained furs stolen from the murder victim’s residence constituted interrogation and because no new Miranda warnings were administered to defendant Ferro, his statements made subsequent to viewing the furs should have been suppressed. The order of the Appellate Division should, therefore, be reversed, defendant’s motion to suppress those statements granted, and a new trial ordered.

I

On December 5,1975, Lillian Sher was murdered in her home during the course of a robbery in which some furs were stolen. A week later, defendant Ferro was arrested for the murder and taken to the precinct station. After the reading of his Miranda rights to him, Ferro declined to answer any questions. Thereafter, while being held in a detention cell, he asked Detective Hudson whether he could speak to a District Attorney. Told by Hudson that, “You have to tell me what you want to talk to him about so I can relate that to him. Otherwise, he won’t come”, defendant said nothing further. Hudson then left the precinct.

When he returned, Hudson and his partner brought with them the stolen furs, which they had obtained from the apartment of a codefendant, Thomas Lewis. Without any verbal communication with defendant, the furs “were placed right in front of the cell a foot away from [Ferro].” Ferro then “grabbed ahold of the wire mesh with both hands and * * * said * * * ‘Hey, I got to talk to you.’ ” He again told Hudson he wanted to speak to a District Attorney, stating “I will tell you guys what you want to know if the D.A. can do something for me”. Hudson responded that neither he nor the District Attorney could do anything for Ferro. Hudson testified that there was one continuous conversation, which began as soon as the furs were placed on the floor in front of the cell. Its culmination was Ferro’s request to speak to an Italian detective.

Detective Walter Cassi was then asked to speak to defendant, and, approaching the detention cage, said “I am Italian. Do you want to say something.” Receiving a positive response, Cassi took defendant into the commanding officer’s room, where defendant said “I can’t afford to do a lot of time. What can I tell you?” Told by Cassi that he could promise nothing, but would pass on whatever was said to the District Attorney “and whatever they do that’s their business,” Ferro recounted that he had been told by a woman who was decedent’s next-door neighbor that decedent was giving her a great deal of trouble for which she wanted decedent robbed as a means of revenge, that he had told the neighbor he was not interested, and in response to her question whether he could get somebody to do so, had responded only that he would think about it. Neither before the furs were placed in front of the detention cell nor before Cassi began his conversation with defendant in the commanding officer’s office were Miranda warnings repeated anew.

The hearing Judge denied defendant’s motion to suppress and after a jury trial defendant was found guilty of felony murder. On appeal to the Appellate Division, defendant raised nine points, only one of which — the admissibility of the statements made to Cassi — was deemed by that court to merit discussion. The judgment was affirmed, two Justices dissenting, the majority characterizing the statements “as the self-serving efforts of an aging criminal to spare himself the remainder of his life in captivity, and not the result of psychological coercion or police behavior reasonably likely to elicit an incriminating response.” (92 AD2d, at p 303.) The case is before us by leave of one of the dissenting Justices. The People, citing People v Bryant (59 NY2d 786), argue that, the Appellate Division having affirmed, the suppression ruling may not be overturned by us. They argue, alternatively, that the Appellate Division majority was correct on the law. We disagree on both points and, therefore, reverse.

II

A.

As hereafter developed, the test is not whether the detectives in fact intended to interrogate defendant but whether an objective observer would conclude that the conduct of the detectives was reasonably likely to elicit a response from defendant. There being no dispute as to the facts and there being no other inference that could be drawn from the undisputed facts than that the police should have known that defendant was reasonably likely to respond to the placing of the furs before him by making a statement, the issue, unlike that in Bryant (supra), is not beyond our reach.

B.

Miranda v Arizona (384 US 436) requires not only that before interrogation can begin a suspect must be advised concerning his right to remain silent and of his right to counsel, but also that, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease” (id., at pp 473-474). Moreover, the rule being designed to counteract the coercive pressure of the custodial setting, a suspect’s right to remain silent, once invoked, must be “scrupulously honored” (id., at p 479; Michigan v Mosley, 423 US 96, 103-104; People v Wander, 47 NY2d 724, 725; see People v Grant, 45 NY2d 366, 373, 376). He may not within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime (People v Gary, 31 NY2d 68, 70; Michigan v Mosley, 423 US 96, 106, supra; see People v Buxton, 44 NY2d 33, 37), but a statement volunteered or spontaneously made will not be suppressible unless it is about the same crime and results from express questioning or its functional equivalent under circumstances which do not include fresh warnings and do not scrupulously honor the suspect’s right to cut off questioning (Rhode Island v Innis, 446 US 291, 300-301; Michigan v Mosley, supra; People v Bryant, 59 NY2d 786, supra).

As the Innis case makes clear, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response” (446 US, at p 301). But, because “[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police” (id.), the question is not what was the subjective intent of the police but rather what words or actions, in light of their knowledge concerning the suspect, they “should have known were reasonably likely to elicit an incriminating response” (id., at p 302 [italics in original]; White, Interrogation Without Questions: Rhode Island v Innis and United States u Henry, 78 Mich L Rev 1209, 1231-1236; Kamisar, Brewer v Williams, Massiah and Miranda: What Is “Interrogation”? When Does It Matter?, 67 Geo LJ 1, 19, n 115 [reprinted in Kamisar, Police Interrogations and Confessions: Essays in Law and Policy, pp 156-158, n 21]; McCormick, Evidence [2d ed], p 330).

In the context of the foregoing rule, defendant’s statements to Cassi must be suppressed. After the original Miranda warnings, defendant declined to answer questions. Although he thereafter asked to speak to a District Attorney, he abandoned that attempt when told that he first had to reveal to Hudson what he wanted to talk about. With the knowledge from defendant’s request to speak to a District Attorney that defendant had something on his mind that he wanted to talk about but would not reveal to him, Hudson, instead of acceding to defendant’s request that a District Attorney be called in, left and within a relatively short time returned with decedent’s furs, which were placed directly in front of defendant without any words being spoken. The immediate result was defendant’s further request to speak with a District Attorney, followed, in one continuous conversation, by his request for an Italian detective and his conversation with Cassi. Neither before the placing of the furs nor before Cassi’s conversation with defendant were fresh Miranda warnings given, although here, unlike the situation in People v Bryant {supra), there was both time enough to do so and clear reason, in light of the prior refusal to speak, for doing so.

On those undisputed facts, objectively considered, no other conclusion is possible than that, in causing the decedent’s furs to be placed where defendant could not help but see them, Hudson should have known, in light of defendant’s prior request to speak to a District Attorney, that doing so was reasonably likely to elicit from defendant an incriminating response. Where, as here, and as in Combs v Wingo (465 F2d 96,99) and United States v Barnes (432 F2d 89, 91), the only possible object of the police action in revealing evidence to a defendant is to elicit a statement from him, it does no violence to logic to conclude that the police should have known that it would do so (see McCormick, Evidence [2d ed], op. cit.). Bearing in mind the placing of the furs before Ferro, the absence of further warnings to him and the relatively short time elapsed between his refusal to answer questions and the placing of the furs, we conclude that Ferro’s right to cut off questioning was not scrupulously honored.

We have considered defendant’s other arguments for reversal and find them to be without merit.

For the foregoing reasons, the order of the Appellate Division should be reversed, defendant’s motion to suppress his statements made subsequent to his viewing of the furs granted and a new trial ordered.

Jasen, J.

(dissenting). The majority, in holding that the “placing in front of the cell in which defendant was being detained furs stolen from the murder victim’s residence constituted interrogation”, interprets the “likely to elicit” test (see Rhode Island v Innis, 446 US 291, 303) too literally and mechanically, untempered by the purposes to be served thereby. Moreover, the majority fails to distinguish between the differing policies involved and the ramifications resulting where the suspect has sought the assistance of counsel — which defendant did not do here — as opposed to merely choosing initially to remain silent. (Cf. Brewer v Williams, 430 US 387, 397.) The proscriptions to be applied in each instance are not the same.

Because I strongly believe that the mere placing of evidence in front of defendant cannot be deemed an unconstitutional interrogation in violation of the right to remain silent, invoked upon the reading of Miranda warnings, I respectfully dissent.

After Miranda warnings were given and defendant chose not to answer questions, the police refrained from further discussion with him. Defendant was not subjected to any questioning. He was not subjected to any browbeating, violence, threats or intimidation; no taunting, importuning, harassment or cajoling; no promises, inducement, deceit or trickery; no discomfort, humiliation, exhaustion or moral or religious suasion; nor, indeed, to any other form of compulsion or coercion. (See Miranda v Arizona, 384 US 436,448-458; cf. Oregon v Bradshaw, 462 US 1039,_, 77 L ed 2d 405, 413; Rhode Island v Innis, supra, at p 299.) Rather, upon viewing the stolen goods obtained from his accomplice and simply placed before him by the police, defendant insisted that he be permitted to speak in exchange for prosecutorial leniency. When informed that nothing could be promised, but that his explanation would be relayed to the District Attorney, defendant volunteered his alibi which was the subject of the suppression motion here in issue. Under these circumstances, I would hold that this police conduct did not constitute an impermissible interrogation.

The constitutional privilege against compulsory self-incrimination does not bar mere self:incrimination. It prohibits only that which is genuinely compelled — i.e., the result of coercion or overbearing of the will of the accused. (New York v Quarles, 467 US_,104 S Ct 2626, 2630-2632; United States u Washington, 431 US 181, 187-188; Michigan v Tucker, 417 US 433, 448.) Statements voluntarily made, regardless of how damning, are not proscribed. (United States v Washington, supra, at p 187; see, also, Miranda v Arizona, supra, at p 478.) Defendant does not claim, nor is there any indication in the record, that he was actually compelled by police conduct which in any way overcame his will to resist.

Moreover, the “likely to elicit” test invoked by the majority is not an explicit constitutional prescription mandating blind application in every case, regardless of the resulting absurdity under particular facts. (Cf. North Carolina v Butler, 441 US 369, 374-379; Michigan v Mosley, 423 US 96, 102-103.) Rather, it is an interpretive guideline to assist in determining whether certain police activity is the “functional equivalent” of an interrogation. (Rhode Island v Innis, supra, at p 302; see, also, Brewer v Williams, 430 US, at p 399.) In turn, this latter formulation is itself a practical tool for applying the safeguards of Miranda, which themselves are not mandated by the Constitution either. (Michigan v Tucker, 417 US, at p 444; Miranda v Arizona, supra, at p 467.) Rather, even they are “prophylactic” (New York v Quarles, 467 US_, 104 S Ct, at pp 2630-2632) — i.e., “suggested” “measures to insure that the right against compulsory self-incrimination was protected.” (Michigan v Tucker, supra, at p 444; see New York v Quarles, supra, at p_, 104 S Ct, at pp 2630-2632.)

Ultimately, then, it is this right against compulsory self-incrimination, and not simply some felicitous tests uninformed by their policy purposes, which underlies Miranda and its progeny. It is that right which is at issue here and which should guide this court’s decision. In considering the facts in this case, “[c]ertainly no one could contend that the interrogation faced by [defendant — if it could reasonably be labeled as such — ] bore any resemblance to the historical practices at which the right against compulsory self-incrimination was aimed.” (Michigan v Tucker, supra, at p 444.)

While noninterrogatory statements of police officers and even their nonverbal actions may in some instances amount to unlawful interrogation of a suspect within the meaning of Miranda (see Rhode Island v Innis, supra, at p 299), nevertheless, not all “prompting” of any kind is constitutionally proscribed. (Id.; Edwards v Arizona, 451 US 477, 488 [Burger, Ch. J., concurring].) Thus, while the skillful employment of religious compulsion (Brewer v Williams, supra) and deceitful confidences (United States v Henry, 447 US 264) have been held to be impermissible “deliberate elicitations” (id., at p 270), the discussion of child-safety concerns in a suspect’s presence (Rhode Island v Innis, supra) and the advisement of the accused of additional charges being brought against him (Michigan v Mosley, supra) have been upheld.

Indeed, there is no rigid rule constituting “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, [for that] would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.” (Michigan v Mosley, 423 US, at p 102 [emphasis added].) Where, for example, as here, there is a mere disclosure of information to a suspect bearing on his prior decision to remain silent — i.e., the government’s retrieving of the stolen goods — there is nothing in the Federal or State Constitution or case law barring that suspect from making an informed and voluntary reassessment of his decision and, thereafter, choosing to make a statement. (Id., at p 102; see, also, id., at pp 109-111 [White, J., concurring].)

To construe the mere placing of evidence before defendant — little more than a simple disclosure of information which might, in fact, contribute to an intelligent exercise of his judgment — as an impermissible interrogation is to attribute to that police conduct the qualities of coercion and overbearing of defendant’s will which it certainly was not. Such a construction, in my view, gives a tortured and unintended interpretation to the Miranda safeguards and the underlying privilege against compulsory self-incrimination. Indeed, in numerous cases involving analogous police conduct under circumstances similar to those presented here, Federal appellate courts have refused to regard the police actions as interrogations in violation of asserted Miranda rights. (See, for example, the following, all of which were decided subsequent to the United States Supreme Court’s definition of “interrogation” in Innis: United States v Guido, 704 F2d 675 [CA 2d] [suggestion that defendant cooperate initiated by government agents, not impermissible interrogation]; United States u Criswell, 696 F2d 636 [CA 8th] [placing defendant in an office where persuasive photographs were displayed, not impermissible interrogation]; United States v Thierman, 678 F2d 1331 [CA 9th] [conversation in defendant’s presence about the likelihood that the investigation would involve his family and girlfriend, not impermissible interrogation]; United States v Hackley, 636 F2d 493 [CA-DC] [explanation of the incriminating evidence against defendant, not impermissible interrogation]; see, also, the following which, although decided prior to Innis, have since been cited with approval in the afore-cited cases: United States v Hart, 619 F2d 325 [CA 4th] [informing defendant that his cooperation would be relayed to the United States Attorney, not impermissible interrogation]; United States v Wilson, 571 F2d 455 [CA 9th] [informing defendant of the extensive evidence against him, not impermissible interrogation]; United States v Davis, 527 F2d 1110 [CA 9th], cert den 425 US 953 [showing defendant a photograph of himself participating in a bank robbery, not impermissible interrogation]; United States v Boston, 508 F2d 1171 [CA 2d], cert den 421 US 1001 [confronting defendant with the incriminating results of the search of his apartment, not impermissible interrogation]; United States v Hodge, 487 F2d 945 [CA 5th] [explanation of the incriminating evidence against defendant, not impermissible interrogation].) In accord with these decisions, and mindful of the purposes to be served and evils to be prevented by the Miranda safeguards and the privilege against compulsory self-incrimination, I believe that the police conduct in this case cannot fairly be deemed a proscribed interrogation.

Finally, the majority’s rigid application of the “likely to elicit” test ignores the significant distinctions between the right to remain silent and the right to assistance of counsel — only the former of which did defendant choose to exercise. Although he was advised fully in accordance with Miranda, defendant did not ask for counsel, invoke the right thereto, nor in any form indicate that he was awaiting counsel’s arrival or assistance. In fact, he repeatedly requested to speak with the District Attorney despite the absence of an attorney.

Defendant simply exercised his right to remain silent upon receiving the Miranda warnings, thereby foreclosing any further questioning until such time as he should voluntarily and freely decide otherwise. Whereas “additional safeguards are necessary when the accused asks for counsel” and, therefore, “interrogation [must] cease until an attorney [is] present” (Edwards v Arizona, 451 US, at pp 484, 485), that is true “only if the individual [has] stated that he wanted counsel” (id., at p 485 [emphasis added]). (See, also, People v Cunningham, 49 NY2d 203; People v Grant, 45 NY2d 366.) Otherwise, “the accused may himself validly waive his rights and respond to interrogation”. (Edwards v Arizona, supra, at p 484 [emphasis added].)

The “policies underlying the two constitutional protections [right to assistance of counsel and privilege against compulsory self-incrimination] are quite distinct” (Rhode Island v Innis, 446 US, at p 300, n 4) and, consequently, so too are the appropriate procedural safeguards. With regard to the right to counsel, “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” (Miranda v Arizona, 384 US, at p 474 [emphasis added].) However, where an individual simply indicates his desire to remain silent, the situation is different. There is no “per se proscription of indefinite duration upon any further questioning”. (Michigan v Mosley, 423 US, at p 102; see, also, People v Grant, supra, at p 375; People v Cunningham, supra, at p 207.) Rather, as long as the individual’s “right to cut off questioning” is “scrupulously honored” (Miranda v Arizona, supra, at pp 474, 479 [emphasis added]), he may at any time make an “informed and intelligent” reassessment of his interests and permit questioning to resume. (Michigan v Mosley, supra, at pp 102, 104.)

In deciding that the entirely innocuous, nonverbal and noncoercive police conduct in this case amounted to unconstitutional interrogation by mechanically applying the “likely to elicit” test, the majority fails utterly to distinguish “between the procedural safeguards triggered by a request to remain silent and a request for an attorney”. (Michigan v Mosley, supra, at p 104, n 10, explaining Miranda v Arizona, supra, at p 474.) That distinction was made clear in Miranda and has been repeatedly recognized in its progeny. (See, e.g., Oregon v Bradshaw, 462 US 1039 [Rehnquist, J.], 1047 [Powell, J., concurring], 1051 [Marshall, J., dissenting]; Edwards v Arizona, 451 US, at pp 484-485 [White, J.], 491, n 1 [Powell, J., concurring]; United States v Henry, 447 US 264, 272-273 [Burger, Ch. J.], 282, n 6 [Blackmun, J., dissenting], 295-296 [Rehnquist, J., dissenting]; Rhode Island v Innis, 446 US, at p 300, n 4 [Stewart, J.]; Brewer u Williams, 430 US, at pp 397-398 [Stewart, J.], 424-426 [Burger, Ch. J., dissenting], 436-437, n 6 [White, J., dissenting]; Michigan v Mosley, 423 US, at pp 101-104, and nn 7, 10 [Stewart, J.], 109-110 [White, J., concurring].) Likewise, this court has acknowledged the same distinction. (See People v Grant, 45 NY2d, at p 375; People v Cunningham, 49 NY2d, at p 207.)

Here, the defendant expressed no view nor gave the slightest indication that he was incompetent to decide whether to permit a resumption of questioning without legal advice. (Cf. Michigan v Mosley, supra, at p 110, n 2 [White, J., concurring].) Rather, he simply asserted his desire not to speak with the police at the outset, and subsequently decided, without any coercion of any sort, to change his mind in light of the incriminating evidence placed before him. In my view, the prophylactic safeguards of Miranda and its progeny do not preclude an individual from thus making an informed and voluntary reassessment of his interests, and do not proscribe, as an impermissible interrogation, the kind of nonverbal, noncoercive, nonthreatening, ánd even nonbothersome police conduct at issue in this case.

Accordingly, I would affirm the refusal of both courts below to suppress the statements volunteered by defendant.

Chief Judge Cooke and Judges Jones, Simons and Kaye concur with Judge Meyer; Judge Jasen dissents and votes to affirm in a separate opinion; Judge Wachtler taking no part.

Order reversed, etc.

      . Not involved in the present case and, therefore, not reached by us, is whether the same test applies when the police conduct is in furtherance of routine administrative duties (see People v Prator, 93 Misc 2d 303; State v Grisby, 97 Wn 2d 493; cf. People v Bryant, 59 NY2d 786).

      . Bryant involved a question addressed by one officer to another, overheard by defendant and to which he responded. Upon that scenario “reasonable minds may differ as to the inference to be drawn from the established facts” (People v McRay, 51 NY2d 594, 601; accord People v Harrison, 57 NY2d 470, 477). Here, as is more fully discussed below, no other inference can be drawn from the undisputed facts than that defendant was likely to respond by making a statement.

      . Voluntariness — waiver in traditional terms — is to be distinguished (People v Grant, 45 NY2d 366, 374). A statement may in fact be wholly voluntary and yet inadmissible because the police action after the suspect cut off questioning did not comply with required procedures (id,.; Michigan v Mosley, 423 US 96, 100; Michigan v Tucker, 417 US 433, 443).

      . The string of adjectives in the last paragraph of the dissent and of synonyms in the second paragraph on its page 325 overlooks the meaning of “scrupulous”, which is “correct to the smallest detail; punctiliously exact; painstaking, precise” (Webster’s Third New International Dictionary, p 2043). As Kamisar puts it, “If the police conduct is designed and likely to pressure or persuade * * * a suspect to incriminate himself * * * then that conduct is ‘compulsion’ as Miranda defines the self-incrimination clause” (67 Geo LJ 1, at p 23). The dissent’s interpretation oí Innis implies that the Supreme Court did not mean what it held in that case. We should not indulge in such speculation, particularly since Innis was decided but a few years ago.


author:
      Per Curiam.
     Simons, J.

text:
    In the Matter of Philip P. Dondi, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Argued September 13, 1984;
    decided October 25, 1984

      POINTS OF COUNSEL

      Oren Root, Jr., and Patrick M. Wall for appellant.
    I. The Grievance Committee’s wrongful acquisition of sealed records, which were used in the investigation, preparation and prosecution of disciplinary charges, violated appellant’s statutory and constitutional rights. (Matter of Hynes v Karassik, 47 NY2d 659; Matter of Skyline Inn Corp. v New York State Liq. Auth., 44 NY2d 695; Matter of Anonymous, 95 AD2d 763; Connecticut Bd. of Pardons v Dumschat, 452 US 458; Griffin v Illinois, 351 US 12; Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686; Schware v Board of Bar Examiners, 353 US 232; Matter of Levy, 37 NY2d 279; Matter of Ruffalo, 390 US 544; Fuentes v Shevin, 407 US 67.) II. The disciplinary proceeding should have been dismissed because appellant was irreparably prejudiced by its inordinate delay. (Matter of Leonard, 127 App Div 493, 193 NY 655; Matter of Mix, 249 App Div 442, 274 NY 183; Matter of O’Hara, 63 AD2d 500; Matter of Kelly, 23 NY2d 368; Matter of Barabash, 31 NY2d 76; Meyer v Meyer, 74 AD2d 945, 50 NY2d 1056; Glenesk v Guidance Realty Corp., 36 AD2d 852; Hill v Bruns & Co., 498 F2d 565.)

      Robert H. Straus for respondent.
    I. Appellant’s professional misconduct was established by clear and convincing evidence. (Matter of Hynes v Karassik, 63 AD2d 597, 47 NY2d 659.) II. There were no violations of appellant’s statutory or constitutional rights. (Matter of Hynes v Karassik, 47 NY2d 659; Matter of Ruffalo, 390 US 544; Spevack v Klein, 385 US 511; Matter of Skyline Inn Corp. v New York State Liq. Auth., 44 NY2d 695; Mapp v Ohio, 367 US 643; Wong Sun v United States, 371 US 471; Silverthorne Lbr. Co. v United States, 251 US 385; Matter of Zuckerman, 20 NY2d 430, cert den sub nom. Zuckerman v Greason, 390 US 925, 975; Matter of Randel, 158 NY 216; Matter of Dougherty, 7 AD2d 163, 7 NY2d 869.) III. Appellant’s defense of laches was properly dismissed. (Matter of

      O’Hara, 63 AD2d 500; Matter of Mix, 249 App Div 442, 274 NY 183; Costello v United States, 365 US 265; Matter of Barabash, 31 NY2d 76; Matter of Kelly, 23 NY2d 368.)
   OPINION OF THE COURT

Per Curiam.

During the course of an investigation in an attorney disciplinary matter, the Grievance Committee may, upon an affirmation demonstrating necessity, gain an order from the Appellate Division permitting the unsealing of the records of a criminal action previously sealed pursuant to CPL 160.50. The order must indicate the papers on which the Appellate Division exercised its discretion so that it will be subject to meaningful review by this court. In the instant matter, on the record before us, there was neither a proper request by the Grievance Committee, nor was there a legally cognizable order of the Appellate Division permitting the unsealing. Under the peculiar facts of this case, disclosure of the record to the Grievance Committee requires dismissal of the complaint against appellant.

In 1974, appellant was charged with bribing a police officer, who was a potential witness in a civil matter. It was alleged that, while representing a client who had suffered personal injuries in an automobile accident, respondent approached the police officer who had prepared the accident report and offered him $80 in exchange for testimony that would be favorable to the client. The indictment was originally prosecuted by a Special State Prosecutor but, due to the nature of the crime, this court held that the prosecutor was without jurisdiction to proceed (see Matter of Bondi v Jones, 40 NY2d 8).

A superseding indictment issued and the case was transferred to the Queens County District Attorney. As no civil action had ever been commenced, the count for bribing a witness was dismissed. After a lengthy trial in 1977, respondent was acquitted of the other charge. Following appellant’s acquittal, the records of the case were sealed pursuant to an order issued under CPL 160.50.

During the pendency of the criminal proceedings, in 1975, the Grievance Committee for the Second and Eleventh Judicial Districts sua sponte filed a complaint against appellant on a charge of improper payment to a police officer. Soon after appellant was acquitted of the underlying crime, counsel for the Grievance Committee made an ex parte application to Supreme Court, Queens County, for an order permitting the unsealing of both the court’s and District Attorney’s files. The application asserted that the “entire court and prosecutor’s file is essential to a proper and fair investigation.” An order, declaring that the Grievance Committee was a “law enforcement agency” entitled to the records under CPL 160.50, issued, but was immediately recalled by the Judge. He reconsidered his designation of the Grievance Committee as a “law enforcement agency” and denied the application, subject to renewal if the Committee “established] proper authority” for the unsealing.

Failing at gaining the records in this manner, counsel made a new ex parte application, to the Appellate Division, Second Department, in August 1977. This was done informally through a letter addressed to the court clerk. The clerk responded the same week with a letter stating simply: “Please be advised that your request to have the entire file of the Court and the Queens County District Attorney, in the above matter, be unsealed and turned over to your Committee, has been approved by the Court.”

Armed with this letter, counsel obtained the court files from Supreme Court and the files of the Queens County District Attorney. The Grievance Committee also received a tape recording of a conversation between respondent and the police officer, which had been surreptitiously recorded.

Although the original complaint against appellant was filed by the Grievance Committee in 1975, appellant was not notified of its pendency until January 1980. At a hearing held before a Grievance Committee Panel in May 1980, two police officers, appellant, and one other witness testified. Five months later, the Committee filed a formal charge with the Appellate Division against appellant. The charge read: “On or about September 11, 1974, respondent offered and paid $80.00 to Police Officer James Edward Gaughan to influence his testimony in a civil action in which respondent represented a client, Oscar Evans.”

A special referee was appointed to hear the matter. It was stipulated that in lieu of a full hearing the referee would review the transcripts of the hearing before the Grievance Committee Panel, but would not consider any material contained in the sealed records or the tape recording. The referee filed a report finding that the charge of professional misconduct had been established. The Appellate Division confirmed this report and suspended appellant from the practice of law for a period of one year and until the further order of the court. This court granted appellant’s motion for leave to appeal.

Appellant argues that the Grievance Committee wrongly acquired the sealed records and their use in the investigation, preparation, and prosecution of the disciplinary charges irreparably tainted the entire proceeding, requiring that the complaint be dismissed. In essence, appellant contends that it was improper for the Grievance Committee to have applied ex parte to the Appellate Division for an order unsealing the records and that, in any event, the Appellate Division was without authority to grant such an application.

The Grievance Committee counters that it acted properly in seeking an order unsealing the records from the Appellate Division. It posits that the Appellate Division, by virtue of either its authority to oversee and discipline attorneys or an “inherent” power to control court records, has the power to order the unsealing of these records notwithstanding the provisions of the Criminal Procedure Law (cf. Matter of Hynes v Karassik, 47 NY2d 659,664, and p 665 [Jones, J., concurring]). In addition, the Committee notes that, even if the records were improperly unsealed and delivered to the Committee, appellant suffered no prejudice. It asserts that the sealed files were unnecessary to its investigation inasmuch as the pertinent information had already been publicized; that the tape recording contained the pertinent information and was not an “official record” subject to the sealing order; and that, in any event, neither the court’s nor the prosecutor’s files were considered by the referee hearing the formal charges.

The Grievance Committee’s contention that appellant could have suffered no prejudice because the relevant information was available to the Committee in any event is belied by its original application to Supreme Court, in which counsel for the Grievance Committee stated in a sworn affidavit that receipt of the records was “essential” to the Committee’s investigation. In light of that sworn statement, the current assertion that the records were not really necessary is troublesome. Having elected to proceed on the basis that the files were essential, the Committee should be held to that characterization. And because it is presumed that the files were “essential” for the investigation that led to the formal charge, it is irrelevant that they were not received by the referee at the Appellate Division as the prejudice to appellant would already have occurred.

Next is the Committee’s contention that the tape recordings, which purportedly contain appellant’s attempt to bribe the officer, are not an “official record” subject to the sealing order. The Committee argues that the tapes were made during the course of the investigation of the underlying crime and do not fall within the statutory terms “all official records and papers”. Although there exists some authority supporting this contention (see Matter of Anonymous, 95 AD2d 763, 764; Matter of Hynes v Karassik, 63 AD2d 597, 598, affd 47 NY2d 659, supra), on the facts of this case, it is clear that the tapes were subject to the sealing order.

CPL 160.50 mandates the sealing of “all official records and papers * * * relating to the arrest or prosecution * * * on file with * * * any court, police agency, or prosecutor’s office” (CPL 160.50, subd 1, par [c] [emphasis added]). This broad and inclusive statement should be read to include a tape recording that was integral to both appellant’s arrest and his prosecution. Certainly, a transcript of the recording would fall within the contemplation of the statute. That the testimonial evidence exists in another form should not change this result.

Having decided that the records of the court and prosecutor, as well as the tape recording, were essential to the Grievance Committee’s investigation and were subject to the sealing order, this court turns its attention to the propriety of the procedure by which they were obtained. In Matter of Hynes v Karassik (47 NY2d 659, supra) this court held that a Grievance Committee has no standing under CPL 160.50 to seek an order to obtain records sealed pursuant to that provision as it does not constitute a “law enforcement agency” for the purpose of CPL 160.50. Thus, the Appellate Division order could not properly be based on that provision.

This court has previously suggested that in “extraordinary circumstances” the Appellate Division may exercise its discretion, pursuant to inherent authority over records and its oversight and disciplinary power over attorneys and counselors at law, to permit the unsealing of criminal records (see Matter of Hynes v Karassik, 47 NY2d, at pp 664-665, and at p 665 [Jones, J., concurring]; see, also, Judiciary Law, § 90, subd 2). Such discretionary power may be invoked, however, only upon a compelling demonstration, by affirmation, that without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline of an attorney cannot be accomplished. Only upon such a showing will the authority over attorney discipline override the protection of confidentiality accorded by the Criminal Procedure Law to those acquitted in criminal actions. When a demonstration of necessity is made, the Appellate Division may issue an order permitting the unsealing of records, which order will be reviewable in this court.

In the instant matter, although the Grievance Committee must be held to its own characterization of the records as “necessary,” there was no such showing to the Appellate Division. Indeed, the letter to the clerk of the court asserted only that “further investigation is required.” The request set forth no facts indicating that other avenues of investigation had been exhausted or thwarted or that it was probable that the record contained information that was both relevant to the investigation and not otherwise available by conventional investigative means. Convenience alone will not justify an unsealing. Moreover, there was no indication of the gravity or circumstances of the underlying investigation. Finally, the letter by the clerk of the court contained no recital of the papers on which the request was decided (see CPLR 2219). This requirement provides the means by which this court may meaningfully review the basis of the Appellate Division’s exercise of discretion. Given the nature of both the request to the Appellate Division, and the letter of the clerk of that court, it cannot be said that a lawful order issued permitting the unsealing of the record.

The remaining question concerns the relief, if any, to which appellant is entitled. The practice of law is a privilege (see Matter of Capoccia, 59 NY2d 549, 552-553), and while an attorney subject to discipline is entitled to due process (see Matter of Ruffalo, 390 US 544, 550), the protection of the public from the unscrupulous practitioner may interdict relief from certain unfairness that may arise in the course of the imposition of professional discipline (see Matter of Zuckerman, 20 NY2d 430). For example, the passage of a long period of time before the bringing of a disciplinary proceeding may cause detriment to the subject of the proceeding, but it will not necessarily justify dismissal of the complaint (see Matter of Kelly, 23 NY2d 368, 383).

On the facts of this case, however, dismissal of the complaint with prejudice is the appropriate relief. There is no question that appellant suffered a violation of his right to due process by the improper access to the sealed records. This in itself will not necessarily justify a dismissal of the complaint. When this violation is combined with the fact that the proceeding has been carried on for over nine years (during five of which appellant had no notice of its pendency), and that, as the Appellate Division has held, respondent has a “previously unblemished record” and has demonstrated “co-operation and contrition” (95 AD2d, at p 350) throughout the proceedings, a dismissal of the complaint is justified and is not inconsistent with the primary concern of protecting the public.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the proceeding should be dismissed.

Simons, J.

(dissenting). I agree with the majority that the Appellate Division, in furtherance of its responsibility for oversight and discipline of attorneys and counselors of law, has inherent authority over its records and that that authority includes the power to order the unsealing of records and the production of tapes for use by a departmental Grievance Committee. I agree also that the order should be entered only upon the Committee’s affirmation that the records are necessary to aid it in furtherance of its responsibilities. The necessary showing, however, should be no greater than that required of a prosecutor or law enforcement agency by the statute permitting them to obtain the records, a showing “that justice requires that such records be made available” (CPL 160.50, subd 1, par [d]). It was error to unseal the records and deliver the tapes in this case because there was neither an affirmation by the Committee nor a formal order of the Appellate Division. In my view, however, the error was harmless and I would therefore affirm.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer and Kaye concur in Per Curiam opinion; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed, etc.

       That statute, in relevant part, provides:
      “§160.50 Order upon termination of criminal action in favor of the accused.

        “1. Upon the termination of a criminal action or proceeding against a person in favor of such person ** * * the court wherein such criminal action or proceeding was terminated shall enter an order * * * directing that: * * *
      “(c) all official records and papers * * * relating to the arrest or prosecution * * * on file with * * * any court, police agency, or prosecutor’s office be sealed and not made available to any person or public or private agency; and
      “(d) such records shall be made available to the person accused or to such person’s designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it”.