author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v James Munafo, Sr., Appellant.
    Argued March 26, 1980;
    decided May 8, 1980

      POINTS OF COUNSEL

      Peter B. Lekki for appellant.
    I. The court below erred when it found that appellant was guilty of trespass of a right of way over property owned in fee by appellant. (People v Nelson, 153 NY 90; People v Broady, 5 NY2d 500; People ex rel. Ricco v Zambino, 75 Misc 2d 608; People v Shakun, 251 NY 107; People v Shapiro, 4 NY2d 597; Nichols Herkimer Corp. v Village of Herkimer, 38 AD2d 456; People v Caswell-Massey Co., 6 NY2d 497; Matter of Citrin v Belcastro, 196 Misc 272; People v Glubo, 5 NY2d 461; People v Stoll, 242 NY 453.) II. The court below erred when it determined that there was legally sufficient evidence to convict appellant of disorderly conduct. (People v Monnier, 280 NY 77; People v Perry, 265 NY 362; People v Reid, 180 Misc 289; People v Pritchard, 27 NY2d 246; People v Gingello, 67 Misc 2d 224; People v Phillips, 245 NY 401; People v Smith, 19 NY2d 212; People v Szepansky, 25 Misc 2d 239; People v Bubbs, 49 Misc 2d 757.) III. The court below erred when it determined that the accusatory instruments were not so lacking in form and content as to be fatally insufficient under the provisions of CPL 170.

      William H. Power, Jr., District Attorney (Richard A. Dudley, Jr., of counsel), for respondent.
    The evidence was sufficient to warrant a finding of guilty on the charge of disorderly conduct. (People v Herbert, 189 Misc 197; People v Fox, 30 Misc 2d 403; People v Carcel, 3 NY2d 327.)

      Thomas R. Frey, Vito J. Cassan and Gerard V. Loughran for Power Authority of the State of New York, amicus curiae.

    Defendant was properly convicted of trespass on the transmission line easement over the property in which he owned the fee. (Herman v Roberts, 119 NY 37; Beardslee v New Berlin Light & Power Co., 207 NY 34; Farrer v Piecuch, 278 App Div 1011.)
   OPINION OF THE COURT

Fuchsberg, J.

A Justice of the Town Court of the Town of Russell found the defendant James Munafo, Sr., guilty of the charges set out in two informations, one sounding in trespass (Penal Law, § 140.05) and the other in disorderly conduct (Penal Law, § 240.20). The County Court of St. Lawrence County has since affirmed. The narrow issue on which the present appeal turns is whether the evidence was sufficient to establish the offense pleaded in each accusatory instrument. We are convinced it was not.

This case may be said to be a by-product of the distraught state into which the defendant was precipitated when the State Power Authority appropriated a right of way which cut a wide swath across a section of his farm. Taking the facts most favorably to the People, as the County Court affirmance requires us to do, it is fair to say that the defendant, further disturbed when the authority arrived to erect a large transmission line that would have added dramatically to the unwanted division of his land, pursued two successive acts of protest. As a construction crew approached the right of way along its sole means of direct access, a private road located on defendant’s property at a point about a quarter of a mile from the nearest public road, the defendant fired a rifle across its path at a target he had set up on the other side of the area on which the towers were to be raised; the line of sight was south to north and any persons in the general vicinity at the time were located some distance either to the east or west of this trajectory. There is no indication that anyone was endangered by the shot, but defendant, understandably, was divested of the gun. He then positioned himself in the path of an authority backhoe, and, when he refused to move after a police officer told him he would be arrested if he failed to do so, that promise was kept. According to the deposition filed in support of both informations, these events occurred in the presence of "approximately 8 to 10 persons not associated with the power authority”.

Without condoning defendant’s conduct, and without reflecting on what other measures, civil or criminal, may have been legally supportable in these circumstances to prevent unwarranted interference with the authority’s use of its right of way, but with due regard for the principle that penal responsibility cannot be extended beyond the scope of a charge lodged and proved, we are convinced that the convictions cannot stand. Our reasons follow.

First, as to the trespass, this is a matter that is no stranger to the history of either civil or criminal law. In the setting of a civil action, broadly speaking, trespass includes an impingement on the right to possession (e.g., Oatka Cemetary Assn. v Cazeau, 242 App Div 415). Under prevailing criminal statutes, however, it has been more narrowly reformulated to cover only the conduct of a person who "knowingly enters or remains unlawfully” on "any real property”, i.e., unless he is "licensed or privileged to do so” (Penal Law, § 140.00, subds 1, 5; § 140.05).

Surely the defendant was at least so "privileged”. While as an easement, the authority’s right of way was in the nature of an interest in real property (Restatement, Property, § 450; 3 Powell, Real Property, par 405), Munafo retained the ownership of the affected realty along with the underlying possessory interest (3 Powell, Real Property, par 404; cf. Beardslee v New Berlin Light & Power Co., 207 NY 34, 40-41). Informative too is the long-recognized rule that the grantee of an easement may not maintain an action in trespass against the grantor, the person with the superior right of possession (see Farrer v Piecuch, 278 App Div 1011, subsequent opn 203 Misc 572; Socony-Vacuum Oil Co. v Bailey, 202 Misc 364, 365-366; Prosser, Torts [4th ed], § 13, pp 68-69, n 58).

It would be incongruous to conclude, absent some positive indication of such a design, that the Legislature intended to brush aside these established real property concepts, not only to interdict the grantor of an easement from treading upon his property, but to punish that exercise of his retained right as criminal. Yet there is not the slightest hint that that was its purpose (see, generally, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.00, pp 14-17). If anything, subdivision 5 of section 140.00 of the Penal Law, by expressly placing in the hands of "the owner” the power to convert certain lawful entries on real property into unlawful ones, suggests quite the contrary. We therefore hold that the defendant’s act of entering and remaining on the right of way did not violate the section in question.

Focusing now on the accusation of disorderly conduct, we enter an area of our criminal law which, unlike trespass, is not bottomed on deep-rooted principles. Disorderly conduct is a statutory creation. Intended to include in the main various forms of misconduct which at common law would often be prosecuted as public nuisances, and modeled after the English statute which is the progenitor for most American versions of disorderly conduct legislation (5 Geo IV, ch 83), the offense first appeared in this State in local ordinances in 1883 and on a State-wide basis in 1923 (former Penal Law, § 722; see People ex rel. Mulhern v Kaufman, 165 Misc 670, 672-673).

Because of this catchall character, a melange of offenses, some expressly stated in the statute and others not, came to be prosecuted under its banner and, because generally classified as below a misdemeanor, were often disposed of with dispatch so summary as to invite constitutional attack. But, however wide ranging its application, a common thread that ran through almost all of this legislation was a desire to deter breaches of the peace or, more specifically, of the community’s safety, health or morals. (People v Barbera, 127 Misc 864.) And, although it has always been difficult to essay any precise definition of "breach of the peace” (see 2 Wharton, Criminal Law and Procedure [Anderson ed, 1957], § 803), this court has equated that term with "public inconvenience, annoyance or alarm”, the governing phrase of our current disorderly conduct statute (Penal Law, § 240.20, L 1965, ch 1030; People v Pritchard, 27 NY2d 246, 248 [majority opn], 250 [dissenting opn]).

Indeed, a requirement that the disruptive behavior proscribed by our disorderly conduct statute be of public rather than individual dimension was evolving even before subdivision 2 of section 722 of the former Penal Law was replaced by the present section 240.20 (People v Szepansky, 25 Misc 2d 239 [Gabrielli, J.]; see, also, People v Chesnick, 302 NY 58, 60-61). The clear aim was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny (see People v Phillips, 245 NY 401, 402-403; People v Canner, 88 Misc 2d 85, affd on opn below 40 NY2d 886).

In the case before us, it is undisputed that Munafo’s actions were undertaken in broad daylight on a secluded stretch of his own property far removed from any public thoroughfare or business or residential area. Relative to the space, those present were small in number. Nor was there anything to indicate that the defendant attempted in any way to incite or involve the spectators, all of whom were present before the confrontation. In fact not a single bypasser was attracted to the scene, and of those present, there was no proof that anyone aided or abetted the defendant or was encouraged to do so. In short, viewing the record, in light of the conviction, most favorably to the People, the differences between the authority and the defendant were confined to these two disputants rather than spread to the public.

Moreover, since the accusatory instrument pointed to subdivision 5 as an implicated portion of section 240.20, we observe that, especially on this private way, there hardly could be, and definitely was not, any obstruction of passage, vehicular or pedestrian, of the public at large (cf. People v Carcel, 3 NY2d 327, 333). Nor is defendant’s mere disobedience of the police order to move culpable since he was not part of a "congregate[d]” crowd directed to "disperse” (subd 6).

In all, a case of disorderly conduct was not made out beyond a reasonable doubt (People v Jemzura, 29 NY2d 590).

Accordingly, the order of the County Court, St. Lawrence County, should be reversed and the informations dismissed.

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

Order reversed and the informations dismissed.

       Subdivision 5 of section 140.00 of the Penal Law reads as follows: " 'Enter or remain unlawfully.’ A person 'enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.”


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Ronald Berkowitz, Respondent.
    Argued March 25, 1980;
    decided May 8, 1980

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Bruce Allen and Norman Barclay of counsel), for appellant.
    The independent evidence at trial clearly established a prima facie case of conspiracy. (People v Salko, 60 AD2d 307, 47 NY2d 230.)

      Spiros A. Tsimbinos for respondent.
    I. The People’s evidence failed to establish a prima facie case of conspiracy and the court below correctly dismissed the indictment. (People v Mackell, 47 AD2d 209, 40 NY2d 59; People v Brown, 37 AD2d 623; People v O’Neal, 52 AD2d 630; People v Weiss, 290 NY 160; People v Salko, 47 NY2d 230.) II. An additional ground requiring the dismissal of the indictment is the acquittal of the alleged coconspirator Diane Alvarez on the conspiracy charge. (United States v Goodwin, 492 F2d 1141; United States v Fox, 130 F2d 56; People v Kuland, 266 NY 1; People v Bauer, 32 AD2d 463, 26 NY2d 915; People v Brooks, 56 AD2d 634; People v Rasero, 62 AD2d 845; People v Schwimmer, 47 NY2d 1004; People v Villetto, 47 NY2d 1006.) III. Respondent was denied his right to a speedy trial by the long delay involved in bringing the instant matter to trial. (People v Johnson, 38 NY2d 271; People v Taranovich, 37 NY2d 442; People v Staley, 41 NY2d 789; People v Singer, 44 NY2d 241; People v Hamilton, 46 NY2d 932; People v Moore, 47 NY2d 872; People v Freytes, 48 NY2d 645; People v Singer, 44 NY2d 241; People v Lewis, 61 AD2d 799; People v Rodriguez, 61 AD2d 918.) IV. The introduction into evidence of admissions and prior identification testimony without the service of a notice, as required by CPL 710.30, prejudiced respondent and denied him a fair trial. (People v Briggs, 38 NY2d 319; People v Chillis, 60 AD2d 968.)
   OPINION OF THE COURT

Gabrielli, J.

The People appeal from an order of the Appellate Division which reversed defendant’s conviction of the crime of conspiracy in the first degree and dismissed the indictment on the ground that, as a matter of law, the People had failed to prove defendant’s guilt beyond a reasonable doubt. The appeal presents three issues: (1) whether the People made out a prima facie case of conspiracy sufficient to justify use of an alleged coconspirator’s remarks during and in furtherance of the conspiracy against this defendant; (2) whether the prior acquittal of the alleged sole coconspirator precludes conviction of this defendant; and (3) whether Supreme Court was justified in denying defendant’s motion to dismiss on speedy trial grounds without a hearing. For the reasons discussed below, we answer the first question in the affirmative and the second and third in the negative.

Defendant was convicted of conspiring with one Diane Alvarez to commit certain drug related class A felonies. The primary witness against defendant was Detective Robert Wainen, an undercover agent of the Drug Enforcement Administration. One of Wainen’s sources was Jason Stark, a confidential informant. Stark agreed to arrange a meeting between Wainen and defendant in Stark’s apartment at 12:30 p.m. on the afternoon of December 13, 1974 so that Wainen could purchase cocaine.

Wainen arrived at Stark’s apartment at about 12:15 p.m. on the appointed day. Defendant did not appear at 12:30, but at about 1:00 p.m. Stark received a phone call from a man who told him that he had been delayed and would not be able to get there until 2:30 p.m. Officer Wainen also listened to the phone conversation, and, although he had not yet met defendant at that time, at trial he was able to identify the caller as the defendant because of subsequent conversations which afforded him an opportunity to recognize and identify defendant’s voice over the telephone. Despite this call, defendant had still not arrived at Stark’s apartment by 3:00 p.m., at which time a second call was received. This time the officer did not listen to the caller, although he overheard Stark’s side of the conversation. As a result of that call, Stark and Wainen proceeded to the corner of 33rd Street and Third Avenue in Manhattan, where they were met by Diane Alvarez, who led Stark and Wainen to the apartment which both she and defendant were to list as their home when they were arrested. As they were traveling to the apartment, Alvarez informed them that the change in plans was necessary because "her boyfriend Ronnie had become paranoid.” She also assured them that "Ronnie” would be at the apartment. The defendant’s first name is Ronald.

Upon their arrival at the apartment, Alvarez led Wainen and Stark into the living room, where they engaged in general conversation for approximately five minutes. Then defendant entered the apartment, looked briefly at Wainen, and walked into another room in the rear of the apartment. Alvarez followed defendant into the rear room, and a few minutes later defendant and Alvarez both called out to Stark to join them there. Several minutes after he did so, Alvarez returned to Wainen, who had been waiting in the living room, and handed him a plastic bag containing 26.68 grams of cocaine. Alvarez then returned to the rear room while Wainen examined the package and its contents. Shortly thereafter Alvarez returned to the living room and asked Wainen for the money. He gave her some $2,200 and then told her that if they were to continue doing business the changes in time and place would have to cease. She assured him that there would be no such complications on the next occasion. He then asked if he could purchase a "heavier package” in the near future, and she replied that there would be no problem. Wainen and Stark then left the apartment.

On December 24, 1974, some 11 days after the transaction in the apartment, Wainen attempted to contact Alvarez by telephone to arrange another sale. Defendant answered the telephone, and after ascertaining Wainen’s identity, told him that Alvarez was out. The two then engaged in a somewhat ambiguous conversation, which was interpreted by Wainen at trial as containing numerous veiled references to the Decernber 13 sale as well as a discussion of a possible larger sale in the future. For example, Wainen indicated that he wanted to discuss "something different and uh, uh, you know, bigger” as well as the possibility of something "more steady”. Defendant replied that he could not agree to anything definite at that time, because "I still have to get hooked up with her * * * because um, that’s where I get it from.” Unbeknownst to defendant, Wainen taped the conversation and it was introduced at trial.

On December 27, 1974, Wainen again telephoned, this time reaching Alvarez. The two arranged to meet that afternoon for a discussion of future drug transactions. At that meeting, the two had a long conversation about the amount and price of drugs Alvarez could obtain for Wainen. She also explained that he should deal directly with her instead of defendant in the future, because the "connection” was hers and defendant normally handled only the street sales. During the next few days Alvarez and Wainen continued negotiations over the possible purchase of an eighth of a kilo of cocaine, but no sale resulted from those discussions. Shortly thereafter, Alvarez and defendant were arrested. They were indicted and tried separately. Defendant was charged only with conspiracy in the first degree and was convicted of that crime. Alvarez, who was charged with several counts, was acquitted of conspiracy but was convicted of criminal sale of a controlled substance in the second degree.

On defendant’s appeal, the Appellate Division reversed the judgment of conviction on the law alone and dismissed the indictment. Correctly noting that any statements made by Alvarez and acts performed by her during and in furtherance of the alleged conspiracy could not be admitted into evidence against defendant unless the People first established a prima facie case of conspiracy without such evidence, the Appellate Division then found that the People in this case had failed, as a matter of law, to establish a prima facie case of conspiracy. Accordingly, the Appellate Division concluded that the People had failed to prove defendant’s guilt beyond a reasonable doubt. We disagree.

Initially, we note that the principles of law applicable to this case are well settled. Although normally an admission made by one defendant is not binding upon and may not be used against another defendant, the rule is somewhat different with respect to conspiracy. Where two or more persons have entered into an illicit agreement to commit a crime, each of them to some extent may be deemed to speak as an agent for the others with respect to statements made in furtherance of and in the course of that conspiracy. Thus, once a prima facie case of conspiracy has been made out, such statements are admissible against each coconspirator (see People v Salko, 47 NY2d 230, 237-238). For similar reasons, "[o]nce an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy” (People v McGee, 49 NY2d 48, 57; see Penal Law, § 105.20), although the mere fact that one is a coconspirator does not in and of itself support the imputation of criminal liability for the object crime (see People v McGee, supra, pp 57-58).

Applying these principles to the instant case, we conclude that the People did establish a prima facie case of conspiracy sufficient to justify the use of Alvarez’ statements against defendant and to premise defendant’s guilt of conspiracy upon the overt acts performed by Alvarez in furtherance of their illicit agreement. Defendant’s involvement in the plan to sell drugs to Officer Wainen was evidenced by his significant connections with the transaction: there was evidence indicating that from the very beginning, it was defendant whom Wainen was to meet on December 13, not Alvarez, as is shown by Wainen’s testimony that defendant called the apartment to postpone the first meeting. Similarly, once the informant and Officer Wainen arrived at the apartment, the transaction was delayed until defendant made his appearance. While the actual sale was conducted by Alvarez, the details of that transaction, as described above, lead inexorably to the conclusion that defendant was involved. Finally, the tape-recorded conversation between defendant and Officer Wainen on December 24, although possibly somewhat ambiguous if viewed alone, contains clear indicia of guilt when interpreted in context and in light of the prior meeting between Wainen and defendant, which was fully described by Wainen at trial. In short, although it might well be that absent the incriminatory statements and actions of Alvarez there would be insufficient evidence to prove defendant’s guilt beyond a reasonable doubt, the introduction into evidence of those statements and acts requires only the establishment of a prima facie case. We find that the evidence as to the statements and actions of defendant alone sufficed to establish a prima facie case, and thus the statements made by Alvarez and the overt acts performed by her were properly admitted against defendant. Those, when added to the other evidence of guilt, sufficed to prove defendant’s guilt beyond a reasonable doubt. Accordingly, the Appellate Division erred in reversing defendant’s conviction and dismissing the indictment on this ground.

This does not end the matter, however, for defendant also contends that the acquittal of Alvarez served as a bar to the subsequent trial of defendant for conspiracy, pursuant to established rules of collateral estoppel or issue preclusion. Although the Appellate Division did not reach this issue, it was raised by defendant both before that court and by pretrial motion to dismiss. The issue is therefore preserved for our review and may be raised defensively on this appeal. Initially, defendant argues that the crime of conspiracy necessarily requires at least two conspirators since it is premised upon an agreement between at least two persons. In the instant case, the only alleged conspirators were Alvarez and defendant, and thus, according to defendant, if Alvarez is not a conspirator neither is he. Finally, according to defendant, since Alvarez has been acquitted of participation in this conspiracy, the People are estopped from contending at his subsequent trial that he and she entered into an illicit agreement. Thus, it is claimed that since the People are supposedly precluded from proving the existence of any illicit agreement between Alvarez and defendant, they must of necessity be precluded from prosecuting defendant as a conspirator.

Insofar as defendant’s argument is premised upon the belief that there must exist at least two criminally culpable persons for there to be a conspiracy, it must be rejected as ah attempt to return to the traditional "bilateral” theory of conspiracy, which is no longer the law in this State as a result of the Legislature’s decision to adopt a "unilateral” theory of liability for conspiracy (Penal Law, § 105.30; see People v Schwimmer, 47 NY2d 1004, aifg 66 AD2d 91). Under the unilateral theory of conspiracy as it exists in this State, a defendant may be convicted of conspiracy even though all other parties to the illicit agreement are not criminally liable due to age, lack of intent, or some similar impediment (see Penal Law, § 105.30). Thus, the fact that Alvarez, as a result of her acquittal, must be deemed not to be criminally liable as a conspirator, does not alone bar prosecution of defendant even though he is the only other alleged conspirator. This does not completely dispose of defendant’s contentions, however, since regardless whether a unilateral or bilateral approach to conspiracy be involved, it is fundamental that no one can be convicted of conspiracy if there exists no illicit agreement. In the instant case, defendant contends that Alvarez’ acquittal on the conspiracy count, when viewed together with her conviction for sale of a controlled substance, mandates the conclusion that the acquittal for conspiracy was premised not on a lack of intent or any similar impediment, but rather on the absence of any illicit agreement between her and defendant. Defendant argues strenuously that since Alvarez was convicted of the sale charge stemming from her dealings with Wainen, the jury could not have concluded that she lacked intent or any other mental element necessary to show a conspiracy. And finally, in this connection, defendant contends that pursuant to traditional principles of collateral estoppel, the purported finding by the jury in the Alvarez prosecution that there was no agreement precludes prosecution of this defendant for a conspiracy premised upon that same agreement.

It is important to note at the outset that this argument is premised entirely upon common law, nonconstitutional principles of collateral estoppel. Since defendant was not put in jeopardy by the prior prosecution of Alvarez, we need not concern ourselves with double jeopardy considerations. Similarly inapplicable are those aspects of collateral estoppel and res judicata which have been subsumed within the Federal constitutional prohibition against double jeopardy so as to preclude the prosecution of a defendant who has himself previously been acquitted of another crime based on the same transaction, where the prior acquittal necessarily involved a rejection by the jury of some factual element necessary to the new prosecution (compare Ashe v Swenson, 397 US 436, with One Lot Emerald Cut Stones v United States, 409 US 232). Rather, defendant’s claim is premised solely upon the application of common-law principles of collateral estoppel or issue preclusion in a criminal case.

It is now well settled that the doctrine of collateral estoppel is applicable to criminal as well as civil matters, and exists independent of the prohibition against double jeopardy (see People ex rel. Dowdy v Smith, 48 NY2d 477, 482-484). As we have previously noted, "[collateral estoppel, as distinguished from the principle of double jeopardy, arises not so much from concern for the peace of mind of the defendant as from a long-recognized equitable reaction against allowing a party to relitigate issues which have already been decided against him” (People v Lo Cicero, 14 NY2d 374, 380). Nonetheless, it has long been recognized that neither the doctrine of collateral estoppel nor the principles of res judicata from which it has developed should be applied "to criminal prosecutions in quite the same way as that body of doctrine is applicable to civil cases” (People v Reisman, 29 NY2d 278, 285; Matter of McGrath v Gold, 36 NY2d 406, 411; see, also, Res Judicata— Criminal Cases, Ann., 9 ALR3d 203; Matter of Martinis v Supreme Ct. of State of N. Y., 15 NY2d 240, 249-251). Collateral estoppel has always been a flexible doctrine which is not to be applied blindly and mechanically (see Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 73). This is especially true when questions arise concerning the extent and propriety of its application to fields far removed from that body of law within which the doctrine evolved — civil litigation (see, generally, Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520). Care must be taken lest the rigid application of collateral estoppel principles to other areas of the law runs afoul of countervailing policies which may at times outweigh the otherwise sound reasons for preventing repetitive litigation to the greatest extent possible (see Developments in the Law — Res Judicata, 65 Harv L Rev 818, 840).

It is for such reasons that the criminal law counterpart of the rule of mutuality of estoppel, which we have long since thrown aside as a "dead letter” in civil cases (B. R. DeWitt, Inc. v Hall, 19 NY2d 141, 147; see Liberty Mut. Ins. Co. v Colon & Co., 260 NY 305; Good Health Dairy Prods. Corp. v Emery, 275 NY 14), has never been discarded by this court. Indeed, we have repeatedly declared that collateral estoppel will apply in a criminal case only if the parties are the same (Matter of McGrath v Gold, 36 NY2d 406, 411, supra) or are so closely related that they may be deemed as one for these purposes (e.g., People ex rel. Dowdy v Smith, 48 NY2d 477, 482, supra; see, also, Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 662; cf. People v Reisman, 29 NY2d 278, 285, supra; People v Lo Cicero, 14 NY2d 374, 380, supra). Although it is true that in civil litigation there has always been greater flexibility as to the identity of the party who seeks to utilize the estoppel than is deemed proper with respect to the identity of the party against whom the estoppel is to be employed, there exist sound policy grounds for not adopting similar rules in a criminal prosecution. For one thing, in the criminal law, in contrast to civil litigation, society has an overwhelming interest in ensuring not merely that the determination of guilt or innocence be made, but that it be made correctly. While the correct resolution of civil disputes is indeed an important goal of our legal system, it may fairly be said that society’s primary interest in the resolution of civil disputes is that they be settled in a peaceful, orderly, and impartial manner. Since this is so, it is appropriate that litigation-limiting devices such as the doctrine of collateral estoppel be liberally applied in civil litigation. In contradistinction, it is the correctness of the result which is of pre-eminent concern in a criminal prosecution, for the major function of a criminal proceeding is the conviction of the guilty and the acquittal of the innocent, not the swift resolution of some private dispute between the prosecutor and the accused. Hence, the civil doctrine of collateral estoppel, which accepts the occasional enthronement of erroneous findings of fact as a necessary cost of conserving the time and resources of the parties and the courts, is of less relevance in the criminal law.

Of considerable significance is the fact that in criminal law, unlike civil litigation, defendants are, to a great extent, protected from burdensome and repetitious prosecution by the constitutional and statutory prohibitions against double jeopardy. Thus, the doctrines of collateral estoppel and res judicata are somewhat less needed in the criminal law. Especially is this true in this State, for our law contains extraordinarily broad proscriptions against multiple prosecutions of the same defendant for the same crime or for different crimes based on the same transaction (see CPL 40.20; People v Abbamonte, 43 NY2d 74).

There exist several other persuasive reasons not to apply principles of collateral estoppel so as to allow the acquittal of one defendant to ever serve as a bar to the prosecution of another. In most cases there will be significant disparities in the proof which is available against each of two defendants. For example, one defendant may make admissions which can be used against him at his trial, but which could not be introduced at the trial of a codefendant. To suggest that the People had a fair opportunity to litigate the issue of the confessing defendant’s guilt at the trial of the nonconfessing defendant would result in an absurdity. While this example is perhaps rather extreme, it is certainly not uncommon, and the vagaries of the complex rules of evidence applicable to criminal trials will in most cases result in the existence of evidence which may be used against only one of several persons accused of the same crimes. This is especially significant in light of the fact that the People must meet the high burden of proving guilt beyond a reasonable doubt in a criminal prosecution. Hence, the acquittal of one of two defendants means merely that the People were unable to prove his guilt beyond a reasonable doubt; it does not mean that the People will necessarily be unable to prove the guilt of the other defendant beyond a reasonable doubt. We see no reason to forbid an attempt to do so.

Additionally, it will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial. It may well be that the acquittal of one defendant is based on some factor which is not relevant to the guilt or innocence of the other defendant. For example, there exist several defenses and affirmative defenses which are personal to a particular defendant and would not affect the guilt or innocence of another person accused of the same crime. Moreover, there always exists the possibility that the jury in the first case will have exercised its so-called "mercy” function (see Dunn v United States, 284 US 390, 393) despite instructions to the contrary, especially in a case involving multiple crimes arising from the same transaction.

For all these reasons, we conclude that a defendant whose own interests were not put directly in issue at the prior trial may not utilize the doctrine of collateral estoppel as a bar to his own prosecution. This is so because the doctrine of collateral estoppel may be used only against a party who has had a full and fair opportunity to previously litigate that same issue, and the People simply do not have a full and fair opportunity to contest the guilt of one defendant at the trial of another defendant.

As a result of our decision that the Appellate Division erred in concluding that the People had failed, as a matter of law, to make out a prima facie case of conspiracy against the defendant and our determination that the acquittal of Alvarez does not preclude defendant’s conviction, there must be a reversal. Because the Appellate Division order of reversal was on the law alone, that court has not yet had an opportunity to exercise its power to review questions of fact and discretion. Accordingly, the case must be remitted to that court for such review. Should the Appellate Division conclude on remittal that there exists some reason to set aside defendant’s conviction, it must then take whatever corrective action is appropriate (see CPL 470.20).

There exists, however, one further matter which warrants our consideration and which would in any case serve to prevent the Appellate Division from immediately affirming defendant’s conviction on remittal even in the absence of any other reason for not doing so. In March, 1977, shortly before his trial commenced, defendant moved to dismiss on the ground that he had been deprived of a speedy trial. The factual allegations supporting that motion were provided by defense counsel’s affidavit. According to defense counsel, shortly after defendant was indicted in July of 1975, defendant sought and obtained discovery. By July of 1976, however, defendant was fully prepared for trial and actually requested that he be speedily tried. Allegedly, the People rejected defendant’s requests for a trial and declared on several occasions that they were not yet ready for trial either because the Assistant District Attorney in charge of the case was otherwise occupied or because counsel for Alvarez was indisposed and the People wished to try Alvarez first. Defense counsel further alleged that more than six months went by as a result of such delays by the People during which time the People were not ready for trial, and that defendant was accordingly entitled to a dismissal pursuant to CPL 30.30. Accompanying the motion papers, however, was a copy of the calendar notations made by the court officer concerning all pretrial appearances in the case. These notations are made on a preprinted form which provides space for the following information about every appearance: the Part of court in which the appearance is made and the date of the appearance; the name of the Presiding Justice; the Part of court and the date to which the matter is adjourned; the reason for the adjournment; the name of the court reporter; a space for any remarks; and a place for a check mark to indicate whether the adjournment is "excluded”. This is apparently intended as an indication whether the delay due to the adjournment is to be excluded from the six-month speedy trial period. The notations concerning defendant’s appearances were minimal at best. On many occasions no reason was given for an adjournment and seldom were there any explanatory remarks. As to the notations concerning the excludability of such adjournments, 20 adjournments were marked "excludable”, 4 were not marked, and none were marked "not-excludable”. In opposition to defendant’s motion, the People did not provide any affidavits contradicting defendant’s allegations, and instead merely submitted an unsworn memorandum indicating that they took issue with defendant’s claims and contending that the fact that the adjournment periods were marked "excluded” on the calendar notations was dispositive of the matter. The motion to dismiss was denied on the basis of these notations and without any inquiry into the actual reasons for the various adjournments. This was error.

It has long been the law in this State that every accused is entitled to a speedy trial. This was a settled principle of State law long before the Supreme Court concluded in Klopfer v North Carolina (386 US 213) that the speedy trial guarantee provided by the Sixth Amendment is binding upon the States (see People v Prosser, 309 NY 353). That policy is now embodied in both the broad declaration of CPL 30.20 (subd 1) that every "defendant is entitled to a speedy trial” (see People v Moore, 47 NY2d 872; People v Dean, 45 NY2d 651, 659; People v Johnson, 38 NY2d 271; People v Taranovich, 37 NY2d 442) and in the specific time periods prescribed by CPL 30.30 within which the People must be ready for trial. It is the latter section which is applicable here. CPL 30.30 provides that unless the prosecution is ready for trial within six months after the commencement of a criminal prosecution charging a felony, the indictment must be dismissed. In computing that six-month period, however, certain time periods are to be excluded. This is so because in certain cases there may be good reason for the prosecution’s not being prepared for trial within six months after the commencement of the action. At the same time, however, it is glaringly apparent that the main thrust of the CPL 30.30 is to require the prosecution to be prepared within six months in all but the unusual case. Because of this, once the defendant has shown the existence of a delay greater than six months, the burden of proving that certain periods within that time should be excluded falls upon the People (compare People v Gruden, 42 NY2d 214, with People v Dean, 45 NY2d 651, supra).

In this case the court erroneously concluded that that burden had been met by the calendar notations enscribed by the court officer after each appearance, presumably at the direction of the Presiding Justice. Such notations, however, do not comprise a binding determination as to whether in fact the time span covered by a particular adjournment is to be excluded from the six-month period within which the People must declare their readiness for trial. That determination is one which must be made following an adversarial proceeding at which the defendant has an adequate opportunity to contend that the time is not excludable. It may not be made by the court acting sua sponte and in the absence of the parties. Normally, moreover, it is a determination which is to be made when the defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted. This is so because there is no necessary connection between the validity of a particular ground for an adjournment and the question whether such a period is to be excluded in computing the six-month period pursuant to CPL 30.30. At any rate, the calendar notations alone do not suffice to prove that the periods marked "excluded” do in fact come within the ambit of the statutory exclusions. Hence, since the defendant alleged the existence of a delay greater than six months and the People did not provide conclusive proof of sufficient excludable periods, the court erred in denying the motion to dismiss without a full hearing. Accordingly, should the Appellate Division on remittal conclude that there exists no other reason for setting aside defendant’s conviction, it nonetheless may not then immediately affirm defendant’s conviction, but must withhold final determination of the appeal pending a remittal to Supreme Court for a hearing on defendant’s speedy trial motion.

Accordingly, the order appealed from should be reversed and the case remitted to the Appellate Division for further proceedings in accord with this opinion.

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

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      .  Defendant also contends that the trial court erred in denying his motion to strike all testimony by an agent of the Drug Enforcement Administration on the ground that the People had failed to give timely notice as required by CPL 710.30. Such notice, however, is only required with respect to a witness who has previously identified the defendant in "earlier police-arranged confrontations * * * for the purpose of establishing the identity of the criminal actor” (People v Gissendanner, 48 NY2d 543, 552). Here, our examination of the record reveals no proof of a confrontation of that nature, despite a full opportunity to question the witness about the details of any prior identification of defendant once the possibility was raised. Although there was some mention of a meeting between the witness and the defendant at the Drug Enforcement Administration office following defendant’s arrest, there is no testimony indicating that this was an arranged confrontation for the purposes of establishing identity. Nor was there any need to provide prior notice of intent to use at trial the pedigree information defendant provided to the police at the time of his arrest.

      . Stark did not testify at defendant’s trial.

      . Alvarez’ conviction was subsequently reversed by the Appellate Division on an appeal raising issues unrelated to those involved on defendant’s appeal (see People v Alvarez, 65 AD2d 146). We note that unlike defendant, who did not testify at his trial, Alvarez testified on her own behalf at her trial, and also raised the affirmative defenses of duress and entrapment. Alvarez did not testify at defendant’s trial.

      . In light of our conclusion that collateral estoppel in a criminal case does not operate to the benefit of a defendant whose interests were not directly involved in the prior prosecution, we need not decide whether the verdicts in the Alvarez prosecution necessarily encompassed a finding that there was no agreement between defendant and Alvarez. We also refrain from commenting upon the proper result when two defendants are tried together for participation in the same conspiracy and one is acquitted while the other is convicted, other than to note that such a case would not involve principles of collateral estoppel or res judicata (but see People v Bauer, 32 AD2d 463, 467, affd without opn 26 NY2d 915).


text:
    The People of the State of New York, Respondent, v James Lomax, Appellant.
    Argued April 28, 1980;
    decided May 29, 1980

      POINTS OF COUNSEL

      Michael J. Obus and Matthew Muraskin for appellant.
    I. Appellant was denied a speedy trial under CPL 30.30. His motion set forth a legal basis for dismissal of the indictment and, since no issue of fact was raised by the People, it should have been summarily granted. (People v Gruden, 42 NY2d 214; People v Sturgis, 38 NY2d 625; People v Bellach, 58 AD2d 613; People v Kent, 87 Misc 2d 69; People v Hamilton, 46 NY2d 932; People v Saunders, 84 Misc 2d 467; People v Ciaccio, 47 NY2d 431; People v Dibono, 82 Misc 2d 177; People v Dean, 45 NY2d 651; People v Washington, 43 NY2d 772.) II. Appellant was denied a speedy trial as guaranteed by CPL 30.20 and by the Sixth Amendment. (People v Johnson, 38 NY2d 271; People v Taranovich, 37 NY2d 442; People v Dean, 45 NY2d 651; People v Minicone, 28 NY2d 279; People v Wallace, 26 NY2d 371; Klopfer v North Carolina, 386 US 213; Barker v Wingo, 407 US 514; People v Faulkner, 81 Misc 2d 764, 54 AD2d 1141; People v Gruden, 42 NY2d 214; People v Ranellucci, 53 AD2d 384, 43 NY2d 943.) III. The summary action of the trial court in denying appellant’s speedy trial motion was erroneous. (People v McLaurin, 38 NY2d 123; People v Lewis, 49 AD2d 912; People v Frazier, 42 NY2d 214; People v Del Valle, 63 AD2d 830; People v Cook, 63 AD2d 842; People v Rodriguez, 61 AD2d 918; People v Lewis, 61 AD2d 799; People v Ranellucci, 50 AD2d 105; People v Cruse, 47 AD2d 821.)

      Denis Dillon, District Attorney (Lawrence J. Schwarz, William C. Donnino and Anthony J. Girese of counsel), for respondent.
    Defendant was not denied a speedy trial. (People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Saccoccie, 50 AD2d 946; People v Hall, 61 AD2d 1050, 44 NY2d 856; People v Cullen, 99 Misc 2d 646; People v Nizza, 95 Misc 2d 74; People v Laskowski, 72 Misc 2d 580; People v Scaccia, 55 AD2d 444; People v Smith, 57 AD2d 633; People v Taranovich, 37 NY2d 442.)
   OPINION OF THE COURT

Gabrielli, J.

Defendant James Lomax was arrested on March 23, 1977 and charged with having stolen certain tangible personal property at knifepoint. He was arraigned within 24 hours of the arrest, and on March 28, 1977, a Grand Jury handed up an indictment charging him with several counts of robbery in the first degree, grand larceny in the third degree and criminal possession of a weapon in the fourth degree. On March 29, defendant was arraigned on the indictment. Some nine and a half months later, on January 3, 1978, defendant’s motion to dismiss the indictment on the ground that he had been deprived of his right to a speedy trial (CPL 30.20, 30.30) was summarily denied without an evidentiary hearing. His subsequent trial terminated inconclusively when the jury reported itself unable to agree upon a verdict and a mistrial was declared. Shortly thereafter, defendant pleaded guilty to a reduced charge of attempted robbery in the third degree.

On this appeal from the judgment of conviction entered upon the plea, which judgment was affirmed by a unanimous Appellate Division panel, defendant contends that the trial court’s denial of his speedy trial motion was improper and that, consequently, he is entitled to a reversal of the judgment. Our view of the facts and circumstances below, however, leads us to a contrary conclusion. Accordingly, we hold that the judgment of conviction should be affirmed.

Our decision is based primarily upon the recitation of facts contained within the sworn affidavit submitted by defense counsel in support of the speedy trial motion. In this affidavit, counsel noted that the original indictment of March 28, 1977 had been dismissed on June 14 as a result of a motion made by defense counsel under CPL 210.30. The District Attorney had been granted leave to resubmit (see CPL 210.45, subd 9), however, and on June 23, 1977, a new indictment encompassing the same criminal charges was handed up, whereupon defendant was again arraigned. Toward the end of September, 1977, according to defendant’s affidavit, a hearing was held upon a second defense motion requesting, among other relief, an inspection of the minutes of the second Grand Jury’s deliberations, but the trial court’s final decision rejecting defendant’s request was not announced until November 2. Finally, the affidavit stated, although defendant appeared on December 8, 1977 for his scheduled trial, a three-week adjournment was granted in order to accommodate the District Attorney, whose chief witnesses were vacationing out of the State.

In the present appeal, defendant contends that the foregoing information, presented to the Trial Judge in affidavit form, was in itself sufficient to warrant dismissal of the indictment under CPL 30.30, particularly in view of the fact that the People did not in any way attempt to controvert his factual allegations. At the very least, defendant argues, the trial court should have conducted a hearing to ascertain whether the speedy trial claim asserted in defendant’s motion papers had any factual or legal merit. Because we find that defendant’s motion papers were inadequate on their face, however, we conclude that the trial court acted within the scope of its discretionary authority when it summarily denied the motion and directed the parties to proceed to trial.

Preliminarily, we note that the starting point for our analysis of defendant’s speedy trial claim must be March 24, 1977, the date upon which defendant was first arraigned and the first accusatory instrument in the criminal proceeding presumably was filed. This conclusion flows directly from the language of CPL 30.30 (subd 1, par [a]), which provides that, in felony cases, the People must be ready for trial within six months of "the commencement of a criminal action”. Under the carefully structured definitional provisions of the Criminal Procedure Law, "[a] criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed” (CPL 1.20, subd 17; see 100.05). As we interpret this language, there can be only one criminal action for each set of criminal charges brought against a particular defendant, notwithstanding that the original accusatory instrument may be replaced or superseded during the course of the action. This is so even in cases such as this, where the original accusatory instrument was dismissed outright and the defendant was subsequently haled into court under an entirely new indictment. Indeed, the notion that the continuity of a criminal action remains intact, even through the issuance of successive indictments, is supported by the provisions of CPL 210.20 (subd 4), which permits the District Attorney to seek a new indictment after the first indictment has been dismissed, but only upon the direction of the trial court (cf. CPL 190.75, subd 3).

Obviously, if there can be only one criminal action for any given set of charges, there also can be only one date which marks the "commencement” of the action, the date on which the first accusatory paper is filed. Thus, in the present case, the criminal action must be deemed to have been commenced for purposes of CPL 30.30 on the date when the original felony complaint was filed, March 24, 1977, and not on June 23, when the second indictment was returned.

Nevertheless, although more than six months had elapsed since that date without a statement of readiness by the People (see People v Hamilton, 46 NY2d 932), it cannot be said on the basis of the present record that defendant was entitled to a dismissal of the charges against him pursuant to CPL 30.30. The rules for determining pretrial dismissal motions such as that made by defendant are set forth in CPL 210.45. Under that section, a motion to dismiss an indictment must be granted on the motion papers and without a further evidentiary hearing if "(a) [t]he moving papers allege a ground constituting legal basis for the motion * * *; and (b) [s]uch ground, if based upon the existence or occurrence of facts, is supported by sworn allegations of all facts essential to support the motion; and (c) [t]he sworn allegations of fact essential to support the motion are either conceded by the [P]eople to be true or are conclusively substantiated by unquestionable documentary proof’ (CPL 210.45, subd 4).

Applying this provision in the speedy trial context, we have held that where a defendant moves to dismiss on the grounds specified in CPL 30.30 and includes in his moving papers sworn allegations that there has been an unexcused period of delay in excess of the statutory maximum, the motion must be granted summarily unless the People in some way controvert the factual basis for the motion (People v Gruden, 42 NY2d 214; cf. People v Weaver, 49 NY2d 1012; People v Dean, 45 NY2d 651). In the present case, however, a slightly different analysis must be applied, since the factual allegations in defendant’s moving papers did not on their face indicate a clear entitlement to a dismissal of the charges under CPL 30.30.

Specifically, defendant’s papers contained averments which indicated that there were several periods of time following his first arraignment during which the criminal action against him was delayed due to pretrial motions that had been made by the defense. Under the clear language of CPL 30.30 (subd 4, par [a]), such periods would generally be excluded from the total time within which the People are required by statute to become ready to proceed to trial. Unfortunately, it was impossible for the Trial Judge who heard defendant’s motion to ascertain from the submitted papers the extent to which the People’s failure to be ready within the statutory time period was attributable to the delays resulting from defendant’s prior motions, since defendant’s papers did not specify the dates upon which the earlier motions had been made, and the Trial Judge was therefore left without a means to compute the relevant excludable periods. In other words, having himself shown that some portion of the delay in the People’s readiness for trial was "excusable” under the terms of the statute, defendant then neglected to demonstrate that there remained a sufficient "unexcused” period of delay to warrant a dismissal of the charges under CPL 30.30 (subd 1, par [a]). Hence, through the averments in his motion papers, defendant effectively brought himself within the terms of CPL 210.45 (subd 5), which gives the trial court discretionary authority to deny a dismissal motion summarily if "(a) [t]he moving papers do not allege any ground constituting legal basis for the motion * * *; or (b) [t]he motion is based upon the existence or occurrence of facts, and the moving papers do not contain sworn allegations supporting all the essential facts”. Accordingly, under the circumstances presented in this case, we cannot say that the trial court’s decision to deny defendant’s statutory speedy trial motion without a full evidentiary hearing was improper.

Similarly, it was not error for the Trial Judge summarily to reject defendant’s general speedy trial claim (see US Const, 6th and 14th Arndts; CPL 30.20; Civil Rights Law, § 12), since the allegations in his motion papers did not spell out a legal basis for relief. As we have noted on several previous occasions, "the assertion by the accused of his right to a speedy trial requires the court to examine the claim in light of the particular factors attending the specific case” (People v Taranovich, 37 NY2d 442, 445; see People v Dean, 45 NY2d 651, supra; People v Staley, 41 NY2d 789; People v Johnson, 38 NY2d 271; see, also, People v Prosser, 309 NY 353, 360). Here, a balancing of the relevant factors suggests that a dismissal of the charges would not have been warranted. While it is true that defendant was incarcerated during the entire period which preceded his trial, the nine and one-half month delay following his arraignment cannot be considered excessive, particularly when it is recalled that a substantial portion of the delay was occasioned by motions made in defendant’s behalf. Moreover, in light of the seriousness of the crimes with which defendant was charged, it was perfectly understandable that the District Attorney would want to proceed "with far more caution and deliberation than he would expend on a relatively minor offense” (People v Taranovich, supra, at p 446). Finally, although two of defendant’s five alibi witnesses did become unavailable due to death or illness before the trial commenced, it cannot be said that the resulting prejudice to defendant’s interests, if any, was the product of any dilatory conduct of State officials, since a substantial portion of the delay was attributable to defendant himself. We note also that, in both instances, the two witnesses became unavailable during the time when defendant himself was not ready to proceed to trial. In summary, having weighed the various elements implicit in defendant’s general speedy trial claim, we conclude that the claim was without serious merit and was therefore properly rejected.

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

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

Order affirmed.

      . The People have not asked this court to consider the possibility that defendant’s guilty plea constituted a waiver of any right he may have had to have the charges against him dismissed pursuant to CPL 30.30 (subd 1, par [a]) (see People v Brothers, 50 NY2d 413,418). Hence, we have no occasion to address the question in the instant appeal, and our discussion in this case should in no way be construed as a tacit rejection of this possibility.

      . Additionally, although the observation is not necessary to our holding, we note that our own computations, made on the basis of dates and time periods conceded in defendant’s briefs, lead us to the conclusion that defendant could not have succeeded in obtaining a dismissal of the charges, even if he had been afforded a full evidentiary hearing. This is so because less than six of the nine and one-half months that intervened between the time defendant was arraigned and the time his trial was commenced may be considered a period of delay attributable to the People under CPL 30.30; the remainder of the time was clearly the result of "other proceedings” initiated at the behest of defendant and thus may be considered "excludable” time pursuant to CPL 30.30 (subd 4, par [a]).


author: Per Curiam.

text:
    In the Matter of James L. Kane, a Justice of the Supreme Court of the State of New York, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued April 29, 1980;
    decided May 29, 1980

      POINTS OF COUNSEL

      Philip H. Magner, Jr., for appellant.

      Gerald Stern for respondent.
   OPINION OF THE COURT

Per Curiam.

In this proceeding to review a determination of the State Commission on Judicial Conduct directing that petitioner, a Justice of the Supreme Court, be removed from office, it is urged that the sanction imposed is unnecessarily severe and should be modified.

The commission filed a formal complaint against petitioner on September 27, 1978, setting forth 10 charges of misconduct stemming from judicial appointments made by him while he was a Judge of Erie County Court. The charges alleged, inter alia, that petitioner had made appointments in judicial proceedings pending before him to his son Timothy J. Kane, to his son’s law partner Charles E. Weston, Jr., to an employee of his son’s law firm Christopher P. Moen, and to John J. Heffron, the brother of then Erie County Court Judge William G. Heffron, during the same period of time in which Judge Heffron was making judicial appointments to petitioner’s son.

The Referee appointed to hear and report to the commission made certain findings of fact in support of each of the charges. The commission, after hearing oral arguments pursuant to section 7000.7 (a) of the Commission’s Operating Procedures and Rules (22 NYCRR 7000.7 [a]) with respect to the Referee’s report and possible sanctions in the event that the report was confirmed, dismissed two charges (VII and VIII) which pertained to petitioner’s appointments of Christopher P. Moen, a law associate of petitioner’s son, but sustained the remaining eight charges of misconduct. The commission determined that: (a) by appointing his son as referee on four occasions, petitioner engaged in conduct specifically prohibited by section 33.3 (b) (4) of the Rules Governing Judicial Conduct (22 NYCRR 33.3 [b] [4]); (b) by ratifying and confirming the four reports of his son as referee, petitioner created the appearance of impropriety and failed to comply with the disqualification provision of section 33.3 (c) (1) (iv) (b) of the Rules Governing Judicial Conduct; (c) by appointing his son’s law partner to lucrative receiverships, knowing that Mr. Weston and his son were law partners and shared in the substantial fees ($51,699.20) generated by those appointments, petitioner not only violated the disqualification provisions of section 33.3 (c) (1) (iv) (b), but allowed family and other relationships to influence his judicial conduct, in violation of section 33.2 of the Rules Governing Judicial Conduct; and (d) by engaging in contemporaneous judicial cross appointments from November 17, 1975 through June 23, 1977 petitioner "created the appearance of serious impropriety and evinced an intention to circumvent the outright prohibition against nepotism with a disguised alternative.”

The commission unanimously determined that petitioner’s misconduct demonstrated his unfitness for judicial office and that the appropriate sanction was removal. Upon review, we accept the determination made by the commission.

The petitioner has demonstrated his unfitness for judicial office by engaging in rampant nepotism, both open and disguised. In all, petitioner, in a 19-month period, made 33 appointments of John J. Heffron while the latter’s brother was appointing petitioner’s son in 25 matters. The last appointment made on June 23, 1977, was just prior to the time petitioner was requested to appear before the commission. Without question, both Judges knew that such appointments were being made by the other Judge and attempted to conceal their disguised nepotism. As we said in Spector v State Comm. on Judicial Conduct (47 NY2d 462, 466), "nepotism is to be condemned, and disguised nepotism imports an additional component of evil because, implicitly conceding that evident nepotism would be unacceptable, the actor seeks to conceal what he is really accomplishing.” By his conduct, petitioner created the appearance of serious impropriety and evinced an intention to circumvent the outright prohibition against nepotism with a disguised alternative.

More egregious and inexcusable was the direct appointment of petitioner’s son as a referee on four occasions and the ratification and confirmation of the reports of his son as referee in four cases. Whatever might be the son’s qualifications to fulfill the responsibilities as a referee, the appointment of one’s son by any Judge is both "unthinkable and intolerable”. (Spector v State Comm. on Judicial Conduct, 47 NY2d, at p 467, supra.) In appointing his son as referee and ratifying and confirming his reports as a referee, petitioner engaged in conduct which is specifically prohibited. Section 33.3 (b) (4) of the Rules Governing Judicial Conduct clearly states that a "judge shall not appoint or vote for the appointment of any person * * * as an appointee in a judicial proceeding, who is within the sixth degree of relationship of either the judge or the judge’s spouse.” We cannot accept petitioner’s explanation of this egregious and inexcusable conduct by pleading ignorance of the promulgated rules prohibiting nepotism at the time of the appointments or his further claim that "[n]epotism, at the time of the events in question, was not considered in the same light as it is now regarded.”

Nepotism has long been condemned in the judiciary, as it should be, and it borders on the incredible for a Judge to say in defense of his misconduct that he was unfamiliar with the Canons of Judicial Ethics, particularly as they apply to nepotism.

Serious judicial misconduct was also involved in the two appointments made by the petitioner of his son’s law partner, Mr. Weston, as a receiver. The fees awarded to Mr. Weston, and shared by petitioner’s son, amounting to $51,699.20, were certainly not nominal. Clearly, the petitioner violated that provision of the rules which requires a Judge to disqualify himself in a proceeding in which a person within the sixth degree of relationship to him "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding”. (Rules Governing Judicial Conduct, § 33.3 [c] [1] [iv] [c].) Such conduct hardly promotes public confidence in the integrity and impartiality of the judiciary and cannot be condoned. A Judge should be required to observe "high standards of conduct so that the integrity * * * of the judiciary may be preserved.” (Rules Governing Judicial Conduct, 22 NYCRR 33.1.)

Nor do we look favorably upon petitioner’s plea for a lesser sanction than removal from office. Petitioner has demonstrated his unfitness for judicial office. He was obdurate in his nepotism, both open and disguised, almost from the time of his ascension to the Erie County Court bench until his notification of the commission’s investigation of misconduct.

Petitioner’s reliance on the sanction of admonition imposed in Spector v State Comm. on Judicial Conduct (47 NY2d 462, supra), as evincing disparity of sanction, is misplaced. In Spector, both the Referee and the commission found no quid pro quo understanding in the appointments made by Justice Spector and the other Justices involved. Also, the appointments were occasional, sporadic, fewer in number and extended over a six and one-half year period. In this case, both the Referee and the commission concluded that "[a]t the time [petitioner] was making the 33 appointments of John J. Heffron [within the 19-month period as listed in the determination], he was aware that Judge Heffron was contemporaneously appointing his son Timothy J. Kane in [25] similar proceedings.”

The most important distinction between these cases concerns the reason expressed by the commission in Spector when considering the sanction to be imposed. There, the commission expressly stated that "in determining the sanctions to be imposed upon respondent, the Commission had considered the respondent’s age (76) and imminent retirement [17 days] * * * and in light thereof, the Commission has determined that the appropriate sanction is that respondent be admonished.” Here, no such factors exist.

Accordingly, we accept the determination of the commission that petitioner be removed from judicial office.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Determined sanction accepted, without costs, and James L. Kane is removed from his x office of Justice of the Supreme Court of the State of New York.

      . During this period, petitioner made 33 judicial appointments to John J. Heffron, the brother of then Erie County Judge William G. Heffron, while Judge Heffron made 25 judicial appointments to petitioner’s son, Timothy J. Kane.

      . The first Canons of Judicial Ethics were adopted by the American Bar Association in 1924. Canon 12, as then adopted, provided in pertinent part:
      “Appointees of the Judiciary and Their Compensation.
      "Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to aid in the administration of justice should have the strictest probity and impartiality and should be selected with a view solely to their character and fitness. The power of making such appointments should not be exercised by him for personal or partisan advantage. He should not permit his appointments to be controlled by others than himself. He should also avoid nepotism and undue favoritism in his appointments.”


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Isa Brnja, Appellant.
    Argued April 29, 1980;
    decided June 3, 1980

      POINTS OF COUNSEL

      Richard G. Fontana for appellant.
    I. Appellant was seized within the meaning of our State and Federal Constitutions and his seizure constituted an arrest. (People v Allende, 39 NY2d 474; People v Cantor, 36 NY2d 106; Terry v Ohio, 392 US 1; United States v Brignoni-Ponce, 422 US 873.) II. Officer Molinaro did not have probable cause to arrest appellant. (People v Butterly, 25 NY2d 159; People v Brady, 16 NY2d 186; People v White, 16 NY2d 270; People v Miller, 52 AD2d 425; People v Maize, 32 AD2d 1031; People v Merola, 30 AD2d 963; People v Hoffman, 24 AD2d 497; People v Brown, 24 NY2d 421.) III. The involuntary showup confrontation violated appellant’s Fourth Amendment protections. (People v Morales, 22 NY2d 55, 42 NY2d 129; Davis v Mississippi, 394 US 721; Matter of Mackell v Palermo, 59 Misc 2d 760; People v Smith, 42 NY2d 961; United States v Di RE, 332 US 581; People v Loria, 10 NY2d 368; People v O’Neill, 11 NY2d 148; People v Lee, 84 Misc 2d 192; Wong Sun v United States, 371 US 471.) IV. There is no independent source or attenuation of the illegal taint. (Brown v Illinois, 422 US 590; People v Martinez, 37 NY2d 662; People v Rivera, 22 NY2d 453, revd sub nom. United States ex rel. Rivera v McKendrick, 448 F2d 30; People v Ballott, 20 NY2d 600.)

      Carl A. Vergari, District Attorney (Gerald D. Reilly, Carl J. Rubino, Jr., and Anthony J. Servino of counsel), for respondent.
    I. The police had probable cause to arrest when they ordered appellant to exit his vehicle. (People v Valentine, 17 NY2d 128; People v Santiago, 13 NY2d 326; People v Horowitz, 21 NY2d 55; People v Lypka, 36 NY2d 210; Whiteley v Warden, 401 US 560; Chambers v Maroney, 399 US 42; People v Weis, 32 AD2d 856, 397 US 1047.) II. Detention of a suspect for a prompt on-the-scene showup does not require the existence of probable cause, Dunaway v New York, infra, notwithstanding. (Terry v Ohio, 392 US 1; People v Du Bour, 40 NY2d 210; People v Cantor, 36 NY2d 106; People v Logan, 25 NY2d 184; People v Blake, 35 NY2d 331; People v Digiosaffatte, 63 AD2d 703; People v Jones, 38 AD2d 745; Russell v United
      States, 408 F2d 1280, 395 US 928; Brown v Illinois, 422 US 590; Davis v Mississippi, 394 US 721.)
   OPINION OF THE COURT

Meyer, J.

Defendant urges, and the dissenting Judges at the Appellate Division agreed, that his arrest was without probable cause and that, though the police had a reasonable basis upon which to make inquiry, they exceeded constitutional bounds in transporting him from the scene of the inquiry to the scene of the robbery, where he was identified by the victim of the robbery. He contends that identification testimony, both in-court and pretrial, should have been suppressed, as should the revolver found on postarrest station house search of the van he was seated in when first seen by the police. We conclude, however, that there was probable cause for arrest at the time defendant was placed in the police car for transportation to the robbery-scene showup and, therefore, do not reach the question, the basis of the dissent below, when, if ever, a person stopped by the police for inquiry on reasonable suspicion but not probable cause may be transported to the crime scene for possible identification. The order of the Appellate Division should, therefore, be affirmed.

On November 11, 1976 at about 8:00 p.m. a man entered a liquor store in Yonkers and asked for a pint of vodka. The clerk, Frank Mutalipassi, testified that the man was in the store about two minutes, that the man spoke with a slight Slavic, Polish or Russian accent, and that he told the man he had nothing smaller in vodka than a fifth. At 8:30 p.m. the man returned and asked for a fifth of vodka, placing a $20 bill on the counter, but when Mutalipassi obtained the vodka from a shelf at the back of the store and returned to the counter, the man pointed a gun at him and ordered him to lie down on the floor. Mutalipassi was clearing the cash register as the man came in and had left the drawer slightly ajar, but had not removed the bills from it. Lying on the floor, he heard the noise of the spring clips in the register compartments, indicating to him that the money was being removed from it, and the noise of the door to the store opening and closing. After the robber left Mutalipassi noted that the $190 that had been in the register was gone and that the vodka was still on the counter. The elapsed time from beginning to end of the man’s second visit was four to five minutes.

Mutalipassi called the police, and Patrolmen Drexel and Williams arrived within 10 to 15 minutes. Mutalipassi told Drexel that the man was about 5 feet 9 inches with long hair roughly to his collar and light brown in color, with a long thin face and a slight mustache, that he was wearing a long leather-type jacket with a belt and baggy pants of navy blue, and that the gun was black, with a short barrel and short chamber. Williams sought witnesses outside, and was advised by Sandra Thela that she had seen a tan van, possibly rust color too, with two male occupants and bearing out-of-State plates circle the area approximately four times, that it had stopped about 50 yards from the liquor store, and thereafter proceeded south. Drexel broadcast the description of the robber received from Mutalipassi and Williams added, as part of the same broadcast, the description he had received of the van. Williams then went back to Ms. Thela and asked her whether the van was colored like a U-Haul van to which she responded that she believed so since there was writing on the side, that the driver of the van had asked for directions, and that he was a white male, with brown curly hair, a slight mustache and a thin face. Williams then made a second radio broadcast stating that the van could possibly have been a rental van, a U-Haul van. His testimony does not reveal whether the second broadcast included the description of the driver of the van that he had received from Ms. Thela.

The initial broadcast by Drexel and Williams describing the robber and the van was received by Patrolman Molinaro and his partner Patrolman Howe, who had also heard a headquarters broadcast concerning a "robbery in progress” at the liquor store. While proceeding toward the robbery scene, Molinaro observed a U-Haul van with California license plates parked on Palmer Road, in the front seat of which were two white males. The van was facing in the direction away from the liquor store and was legally parked and Molinaro could see two "white mouths” and dark hair, though not the exact color of the hair of the occupants. Neither he nor his partner heard Williams’ second broadcast since they were both out of the car at the time.

The point at which the van was parked was approximately half to three quarters of a mile from the liquor store. Molinaro and Howe stopped and approached the van from different sides, with drawn guns. Molinaro ordered the occupants out of the van. They got out and Molinaro noted that the driver fit the description given over the air. He frisked them and on inquiring what they were doing in the area was told that they were unfamiliar with the area and were waiting for the return of a friend, who was in the process of dropping off some girls. Molinaro then told them of the liquor store robbery and that they were possible suspects. They were then handcuffed and placed in the police car. After checking the hood of the van and finding it warm and looking cursorily around inside the van, Molinaro locked the van and proceeded in the police car with defendant and his companion and Howe to the scene. Roughly 15 minutes had elapsed from the time of the robbery to defendant’s return with the police to the scene.

Mutalipassi, having looked out the store window to the area where defendant and his companion were standing, stated as to the shorter one (the companion) that he was too short. Asked about the other man, he stated that he could not see his full face through the window. However, when the detective in charge at the scene caused defendant to walk toward the store Mutalipassi immediately identified defendant as the man who held him up, although at the suppression hearing he conceded that the jacket and possibly the pants were not the same as he had originally described.

Molinaro testified that he placed defendant under arrest after being instructed to do so by the detective in charge following Mutalipassi’s identification. The van, taken to police headquarters and there searched without a warrant, yielded up from the space behind its roof cross members a short barreled black steel gun. Search of the van occurred within 15 minutes of defendant’s formal arrest and was regular police procedure with respect to an impounded vehicle.

Evident from the foregoing recital of the facts is it that though Patrolman Molinaro testified that he did not arrest defendant until directed to do so by the detective in charge after Mutalipassi’s identification, defendant was in fact arrested during Molinaro’s first encounter with him, for he was detained under threat of police firearms and by words and acts, which while short of stating that he was being arrested, made it clear that he was not free to leave. At the very least, when handcuffed and placed in the police vehicle for transportation back to the robbery scene, defendant was under arrest (People v Allende, 39 NY2d 474; see People v Cantor, 36 NY2d 106; United States v Brignoni-Ponce, 422 US 873, 878). Equally evident, however, is it that if there was at that point probable cause for arrest there was no constitutional infirmity in either the one-on-one showup at the scene in view of its proximity in time and location to the point of arrest (People v Smith, 38 NY2d 882, 883; People v Blake, 35 NY2d 331, 336-337; People v Logan, 25 NY2d 184, 192; People v Digiosaffate, 63 AD2d 703; People v Jones, 38 AD2d 745), or the inventory search at police headquarters after impoundment of the van that produced the revolver (People v Sullivan, 29 NY2d 69; People v Middleton, 50 AD2d 1040, affd 43 NY2d 703; People v Butler 44 AD2d 423, 429, affd 36 NY2d 990; see La Fave, Search & Seizure § 7.4 [a]; Ann., 48 ALR3d 537).

We conclude that on the facts of this case Molinaro was justified in stopping upon sight of the van, bearing out-of-State license plates, meeting the description as to color he had received, and occupied by two white males, and approaching the occupants with drawn revolver, since the robbery in progress report from headquarters gave him reason to believe that, if this was in fact the van sought, the occupants might be armed. For like reason, he was justified in ordering them out of the van and frisking them. Defendant concedes as much, as indeed he must in light of Terry v Ohio (392 US 1) and CPL 140.40 (subd 3).

Defendant argues, however, that since no weapon was found on the frisk and the occupants engaged in no questionable behavior when they got out of the van and gave a not unreasonable answer to the inquiry addressed to them concerning why they were in the area, the placing of them in handcuffs in the police car was based on no more than hunch or suspicion. We disagree. The information which Williams had obtained from Ms. Thela established the probable involvement of the occupants of a van of the description she gave in the liquor store robbery. When within 15 minutes after the robbery and within a distance of half to three quarters of a mile from the robbery scene is found a van bearing colors similar to those described in the broadcast, carrying out-of-State plates, and the driver’s seat of which is occupied by a white male with dark hair (thus matching in part the description of the robber received by Molinaro from Drexel’s broadcast), the situation varies but slightly from that held by the Supreme Court to constitute probable cause in Chambers v Maroney (399 US 42, 46-47; cf. People v Allende, 39 NY2d 474, supra; People v Logan, 25 NY2d 184, 193, supra). When to that is added the facts that when defendant alighted from the van it was apparent to Molinaro that he fit the description broadcast by Howe in many more aspects than just the color of his hair and his skin (though not entirely as to clothing) and when on touching the hood of the van it was apparent from its warmth that the van had not been long parked where it was found, there clearly were "facts and circumstances within * * * [Molinaro’s] knowledge and of which * * * [he] had reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution in the belief that” defendant was the perpetrator of the robbery committed at the liquor store (Brinegar v United States, 338 US 160, 175-176, quoting from Carroll v United States, 267 US 132, 162; see People v Griffin, 29 NY2d 91, 93; People v Weis, 32 AD2d 856, cert den 397 US 1047; People v Maize, 32 AD2d 1031). Since we conclude that Molinaro’s action in returning defendant to the scene was predicated on probable cause, we need not reach the question whether absent such cause it is proper "for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before” (Russell v United States, 408 F2d 1280, 1284).

For the foregoing reasons, the order of the Appellate Division should be affirmed.

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

Order affirmed.

      .  An additional ground for upholding the in-court identification may be found in the Supreme Court’s holdings in United States v Crews (445 US 463); Frisbie v Collins (342 US 519) and Ker v Illinois (119 US 436) under which an in-court identification by a victim who has had sufficient opportunity during a robbery to observe the perpetrator is admissible even though there has also been an out-of-court identification following an unlawful arrest. This is because the victim’s mental image antedates the illegal arrest and if predicated on sufficient opportunity to observe is not tainted by it. Crews recognized that intervening photographic and lineup identifications could sufficiently taint in-court identification to render it inadmissible in some cases. No such circumstances exist in this case, however, for there was sufficient opportunity for observation during and prior to the actual robbery. However, we do not find defendant’s arrest unlawful and, therefore, do not rely upon the CrewsFrisbie-Ker rationale.

      . On direct examination Williams said Thela said 50 yards; on cross-examination he said she said 50 feet.

      . Howe testified at trial that the second broadcast was with respect to the van being a U-Haul and that he heard it as he and Molinaro were putting defendant and his companion in the police car for transportation to the scene.

      .  We have not overlooked the reference in the Appellate Division decision to the fact that the second description received by Williams from Thela closely matched that given by Mutalipassi, but place no reliance on it since there is no evidence that it was ever received by Molinaro or that Molinaro acted in arresting defendant and transporting him to the robbery scene on the direction of Williams. The arresting officer acts with probable cause when he arrests on the direction of a fellow officer who has probable cause or without such direction on the basis of information received from a fellow officer who testifies at the suppression hearing concerning how he obtained his knowledge, which information itself or together with that known to the arresting officer establishes probable cause (People v Havelka, 45 NY2d 636; People v Horowitz, 21 NY2d 55; see People v Lypka, 36 NY2d 210; Whiteley v Warden, 401 US 560; La Fave, Search & Seizure, § 3.5 [c]). Here, however, since there was neither transmission of the description nor a direction to arrest, the information cannot be used in determining whether there was probable cause at the time of arrest (La Fave, loc. tit).


author: Jasen, J.

text:
    The People of the State of New York, Appellant, v John Barnes, Respondent.
    Argued April 30, 1980;
    decided June 3, 1980

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (A. David Stern of counsel), for appellant.
    I. The evidence of the arrest of Barnes inside a looted store in a posture denoting consciousness of guilt fully supported his conviction of attempted burglary and attempted petit larceny. (People v Castillo, 47 NY2d 270; People v Mitteager, 44 NY2d 927; People v Gilligan, 42 NY2d 969; People v Bracey, 41 NY2d 296; People v Henderson, 41 NY2d 233; People v Terry, 43 AD2d 875; People v Seaman, 21 AD2d 907; People v Benzinger, 36 NY2d 29; People v Di Stefano, 38 NY2d 640.) II. Alternatively, the court below erred in not modifying the judgment to criminal trespass. (People v Henderson, 41 NY2d 233.)

      Martha L. Conforti and William E. Hellerstein for respondent.
    The court below correctly dismissed the indictment against respondent because the evidence at trial, which established only that respondent was present in a vandalized store on the evening of the massive power blackout of July 14, 1977, was insufficient to establish his guilt of attempted burglary in the third degree and attempted petit larceny. (People v Dailey, 50 AD2d 1056; People v Wachowicz, 22 NY2d 369; People v Cleaque, 22 NY2d 363; People v Piazza, 48 NY2d 151; People v Yazum, 13 NY2d 302; People v Castillo, 47 NY2d 270; People v Gilligan, 42 NY2d 969.)
   OPINION OF THE COURT

Jasen, J.

Defendant stood convicted of attempted burglary in the third degree (Penal Law, §§ 110.00, 140.20) and attempted petit larceny (Penal Law, §§ 110.00, 155.25) following a non-jury trial in Supreme Court. On appeal, a divided Appellate Division reversed, on the law, the judgment of conviction and dismissed the indictment, holding that "[t]he guilt of the defendant was not established beyond a reasonable doubt.” Our inquiry is limited to the issue whether the People have adequately shouldered the burden of demonstrating defendant’s guilt.

Deprived of electrical power, New York City was cast beneath a shroud of blackness on July 13, 1977. In what might be deemed a shopkeeper’s nightmare, the city lay bare during the blackout to those who would exploit this unfortunate circumstance for their own personal gain. While such a situation may be said to create an unexpected windfall for the criminal element, it is, without doubt, equally conducive to unfounded accusations of criminal conduct, for it would readily appear that innocent persons out in the night could be the victim of unfortunate circumstance. With these thoughts, we turn to the facts of this case as developed at trial.

Three New York City police officers testified for the prosecution. It appears that by virtue of information received by an unidentified passerby, the officers converged on the premises of the Friendly Frost Appliance Store located at 386 Bridge Street in Brooklyn at approximately 12:30 a.m. on July 14, 1977. They arrived only to find the metal security gate viciously torn from the storefront and the front plate glass window, once lodged in a ledge approximately two feet in height, completely shattered.

Armed with flashlights, Officers George Meyer and John McCarthy entered the store by stepping over the glass-covered ledge, while Officer Thomas Duffy guarded the storefront. The officers stated that the shop’s interior was in total disarray; televisions, air conditioners and other electrical appliances were overturned in the aisle and the display shelves contained perceptible vacant spots. The parties stipulated, however, that when the store was closed after the prior working day, it was in a "fine condition”.

Officer Meyer testified that he walked to the rear portion of the store, and, while there, heard a noise emanating from the store’s office. Shining the beam from his flashlight at the source of the disturbance, Officer Meyer saw defendant, in a crouched position, behind a table or desk. Defendant was ordered to stand up, and was subsequently handcuffed, searched and led from the store. All three officers made in-court identifications of defendant as one of the persons discovered in the appliance store; however, none of the prosecution witnesses could testify that they saw defendant in actual possession of any of the store’s merchandise.

After the prosecution rested, defendant took the stand in his own defense and flatly denied being present at the Friendly Frost Appliance Store on July 14, 1977. Defendant testified, in essence, that he was standing peaceably at a different location awaiting the arrival of a bus to take him home. At that time, three officers — different from those who testified for the prosecution — confronted defendant and, although defendant stated that he was going home, arrested him. No other witnesses appeared for the defense.

The trial court, after hearing the testimony, found defendant’s story "totally devoid of credibility” and ultimately found defendant guilty of attempted burglary in the third degree and attempted petit larceny in the third degree. On appeal, the Appellate Division reversed, finding that the prosecution had not met its burden of establishing defendant’s guilt beyond a reasonable doubt. The People were granted leave to appeal to this court by permission of the Presiding Justice at the Appellate Division. We now reverse.

Defendant’s sole contention in urging reversal of his conviction, obviously accepted by the majority below, is that the People failed to establish beyond a reasonable doubt that he acted with the requisite intent to commit the crimes of which he was found guilty. Inasmuch as defendant was convicted of attempted burglary in the third degree and attempted petit larceny, it was incumbent upon the People to prove that defendant harbored an intent "to commit a crime” while unlawfully in the building (Penal Law, §§ 110.00, 140.20) and that he intended to steal property (Penal Law, §§ 110.00, 155.25). Our review of the record leads us to the conclusion that the People satisfied this burden.

At the outset, we reject defendant’s contention that the sufficiency of the evidence pertaining to the element of intent must be measured by the so-called "moral certainty” standard. While it is the oft-quoted rule in criminal cases which depend entirely upon circumstantial evidence that "’the facts from which the inference of the defendant’s guilt is drawn must be established with certainty — they must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis’” (People v Cleague, 22 NY2d 363, 365-366, quoting People v Bearden, 290 NY 478; 480), this legal standard does not apply to a situation where, as here, both direct and circumstantial evidence are employed to demonstrate a defendant’s culpability. (See, e.g., People v Licitra, 47 NY2d 554, 558-559; People v Castillo, 47 NY2d 270, 277-278; People v Kennedy, 47 NY2d 196, 201-203; Richardson, Evidence [10th ed], § 148, p 119.) In this case, the prosecution established that defendant was in the store during a time of widespread looting in the course of the blackout by direct evidence — the eyewitness testimony of the arresting officers. Hence, the prosecution’s case did not rest entirely upon circumstantial evidence and the "moral certainty” standard simply does not apply.

Perhaps defendant seeks to invoke the "moral certainty” standard under the assumption that it imposes upon the People a greater burden of proof than the traditional "beyond a reasonable doubt” formulation. We deem it necessary to dispel this misconception.

When a case rests entirely upon circumstantial evidence, the finder of fact is required to perform a complex analytical function. No longer is the issue of credibility the determining factor as it often times is in prosecutions based upon direct evidence. Rather, the prosecution places before the jury or Judge pieces of a puzzle which must be fit together before the fact finder can arrive at its determination. By stating that the facts perceived as a whole must exclude "to a moral certainty” every conclusion other than guilt, the law addresses how the pieces of the puzzle can be fit together, what inferences may be drawn from individual bits of evidence, and what gaps in the puzzle may be filled by permissible inferences. The phrase "to a moral certainty” merely draws attention to the rigorous function which must be undertaken by the finder of fact when presented with a case of purely circumstantial evidence; it does not address an inherent weakness in circumstantial evidence itself, for often such evidence is more reliable than direct, nor does it alter the ultimate burden of proof which must be borne by the People. In short, the phrase "to a moral certainty” is a description of the standard to be applied by the fact finder when, in the more complex and problematical reasoning process necessarily undertaken in cases of purely circumstantial evidence, it makes the ultimate determination whether defendant’s guilt has been proven beyond a reasonable doubt. (See People v Kennedy, 47 NY2d 196, 201-203, supra.)

Turning to the issue whether the People established defendant’s guilt beyond a reasonable doubt, we think it abundantly clear that such burden was met. The Trial Judge expressly credited the prosecution witnesses’ testimony and, thus, their recitation of the events which occurred on July 14, 1977 must be accepted by this court for purposes of analysis. Of course, the element of intent is rarely satisfied by an explicit expression of culpability by the perpetrator; rather, "in deciding whether the People met their burden, we are required to say whether, considering the facts proved and the inferences that could reasonably be drawn therefrom, [the fact finder] could conclude that there was no reasonable doubt that the defendant” intended to commit the crimes charged. (People v Castillo, 47 NY2d 270, 277, supra; see People v Bracey, 41 NY2d 296, 301.)

Here, defendant was discovered crouched behind a table or desk in the middle of the night in a store which obviously was the target of widespread looting. The security gate was torn from the front of the establishment, and the windows were smashed leaving pieces of shattered glass about the entry to the premises. Further, access to the store could not be accomplished by wandering in from the street; rather, it appears that entry could only be gained by straddling a two-foot ledge strewn with jagged glass.

Under these circumstances, the proof permitted the inference to be drawn that defendant’s entry into the premises was effectuated with the intent to commit a larceny therein. (See People v Mackey, 49 NY2d 274, 280, supra.) Competing inferences to be drawn, if not unreasonable, are within the exclusive domain of the finders of fact, not to be disturbed by this court. Certainly, the Trial Judge could conclude, after considering the surrounding circumstances, that there was no reasonable doubt that defendant intended to steal property from the store.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for determination of the facts. (CPL 470.40, subd 2, par [b]; CPL 470.25, subd 2, par [d].)

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

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

      . Although after trial the court found defendant guilty of the crime of burglary in the third degree, the court, at sentencing, withdrew this portion of the verdict and determined defendant to be guilty only of attempted burglary in the third degree.

      . The parties stipulated that if the fact finder determined that defendant was in the store, it should be found that he had neither permission nor authority to be present therein.

      .  We would note that it is not necessary for the People in a burglary prosecution to demonstrate the exact crime which defendant intended to commit while unlawfully in the building. (People v Mackey, 49 NY2d 274, 278-281.) However, the prosecution in this case expressly limited its theory to one of larceny, and, having done so, this court is obliged to hold the prosecution to this narrower theory alone. Hence, to sustain defendant’s conviction of both crimes, we must find that the People proved beyond a reasonable doubt that defendant was present in the store with the intent to appropriate property.