author: Hancock, Jr., J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v James Campbell, Appellant.
    Argued October 11, 1988;
    decided November 29, 1988

      POINTS OF COUNSEL

      Adrienne Hale and Philip L. Weinstein for appellant.
    Attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]), the alleged crime of which appellant was convicted, is a nonexistent crime, because the substantive crime of assault in the second degree does not require an intent to effect the proscribed result. (People v Bracey, 41 NY2d 296; People v McDavis, 97 AD2d 302; People v Foster, 19 NY2d 150; People v Acevedo, 39 AD2d 664, 32 NY2d 807; People v Williams, 40 AD2d 1023; People v Conyers, 65 AD2d 437, 49 NY2d 174, 52 NY2d 454; People v Hendrix, 56 AD2d 580, 44 NY2d 658; People v Hassin, 48 AD2d 705; People v Praetz, 111 Misc 2d 785; People ex rel. Gray v Tekben, 86 AD2d 176, 57 NY2d 651.)

      John J. Santucci, District Attorney (Ray Cerreta of counsel), for respondent.
    Appellant’s conviction for attempted assault in the second degree was wholly legitimate and was not a conviction for a nonexistent crime. (People v Robinson, 71 AD2d 779; Matter of Shannon B., 122 AD2d 268, 70 NY2d 458; Matter of Belinda B., 133 AD2d 225; People v Allah, 126 AD2d 778; People v Sullivan, 173 NY 122; People v Werblow, 241 NY 55; People v Pereau, 64 NY2d 1055; People ex rel. Gray v Tekben, 86 AD2d 176, 57 NY2d 651; People v Wheeler, 59 Misc 2d 825, 36 AD2d 549; People v Gavin, 24 AD2d 656.)
   OPINION OF THE COURT

Hancock, Jr., J.

After his apprehension and arrest by two police officers on an attempted rape charge, defendant was indicted on several charges including two counts of assault, second degree (Penal Law § 120.05 [3]), for causing injury to the arresting officers with intent to prevent them from performing their lawful duty. Following a nonjury trial defendant was acquitted of second degree assault but convicted of two counts of attempted assault in the second degree which the court had considered over his objection. In his appeal, after an affirmance in the Appellate Division, defendant argues that an attempted assault under Penal Law § 120.05 (3) is an impossibility because the section imposes criminal responsibility for an unintended injury and one cannot be convicted of the crime of attempting to bring about an unintended result. We agree. There should, accordingly, be a reversal of these convictions.

Penal Law § 120.05 (3) provides that: "A person is guilty of assault in the second degree when * * * With intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, or an emergency medical service paramedic or emergency medical service technician, from performing a lawful duty, he causes physical injury to such peace officer, police officer, fireman, paramedic or technician” (emphasis added). Under the plain wording of this subdivision it is evident that a defendant may be convicted even though the injury caused is unintended or accidental. The only proviso is that the injury must occur while the defendant is acting with the intention of preventing the police officer, fireman, paramedic or technician from performing a lawful duty (see, People ex rel. Gray v Tekben, 86 AD2d 176, 178, affd 57 NY2d 651; People v Wheeler, 59 Misc 2d 825, 826, affd 36 AD2d 549). Unlike other subdivisions of assault second (Penal Law § 120.05) where the Legislature has made intent to cause injury a necessary element of the crime (see, e.g., subds [1], [2], [5] and [7]), in subdivision (3) any such requirement has been eliminated. Thus, the crime, with respect to the injury caused, is one of strict liability. The only intent required relates not to the injury but to the circumstances in which it is produced. In short, if a defendant, while intending to prevent one of the persons covered by the statute from performing a lawful duty, causes injury to that person — no matter how or why — he may be found guilty of assault second under subdivision (3) (see, 1 Marks and Paperno, Criminal Law in New York Under the Revised Penal Law § 221). The sole question before us is whether there can be an attempted assault second under this subdivision.

Under the Penal Law, a person "is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). An attempt exists as an integral offense having an identity separate from the crime which is being attempted. The rationale of treating an attempt as criminal conduct is "that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself (see, e.g., Hall, Criminal Attempt — A Study of the Foundations of Criminal Liability, 49 Yale LJ 789, 816)” (People v Bracey, 41 NY2d 296, 299). Essentially, an attempt to commit a crime consists of an intent to bring about the result which the particular law proscribes and, in addition, an act in furtherance of that intent (2 LaFave and Scott, Substantive Criminal Law § 6.2, at 24; 22 CJS, Criminal Law, § 75 [1]). To prove an attempt, the People must establish that the defendant acted for a particular criminal purpose, i.e. — with intent to "commit a specific crime (see, e.g., People v Kane, 161 NY 380). 'It is not enough to show that the defendant intended to do some unspecified criminal act’ (LaFave & Scott, Criminal Law, § 59, p 429)” (People v Bracey, supra, at 300). Because the very essence of a criminal attempt is the defendant’s intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended.

Thus, there can be no attempt to commit assault, second degree (Penal Law § 120.05 [3]), since one cannot have a specific intent to cause an unintended injury (see, People v Bracey, supra, at 300; People v Zimmerman, 46 AD2d 725; People v Brown, 21 AD2d 738; State v Almeda, 189 Conn 303, 455 A2d 1326; cf., People v Foster, 19 NY2d 150). It makes no difference that the statute calls for a different element of intent — i.e., that the injury must be caused while the defendant intends to prevent the officer from performing a lawful duty. That element of intent relates not to the result proscribed by the statute — causing the injury — but to the circumstances which make that result one for which defendant is strictly liable (see, People v Conyers, 65 AD2d 437, affd on other grounds 49 NY2d 174; People v Hendrix, 56 AD2d 580, affd on other grounds 44 NY2d 658; People v Hassin, 48 AD2d 705; see also, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 110.00, at 412-413).

Similar reasoning was employed in People v McDavis (97 AD2d 302, 303-304). Like the assault second statute involved here which requires no proof of intention to cause injury, the manslaughter first statute (Penal Law § 125.20 [1]) in McDavis does not require intent to cause death. The manslaughter first statute does, however — again, like the assault second statute here — require proof of intent on a different element: in subdivision (1), intent to produce serious physical injury. Because the statute requires no proof of intent to cause death, the proscribed result, it was held that there can be no attempt to commit that crime (see, People v McDavis, supra, at 303-304).

The People maintain, however, that an attempt to commit assault, second degree (Penal Law § 120.05 [3]), may be shown "by proving that a defendant intended to and came dangerously close to, preventing a police officer from performing his duty by means of assaultive behavior”. Here, it is argued, the intent to interfere with the police officers’ performance of their duties may be shown by defendant’s intended, albeit unsuccessful, efforts to injure them while they were attempting to handcuff him.

But the gravamen of a charge under subdivision (3) of Penal Law § 120.05 is not — as the People seem to contend — the defendant’s intention to interfere with the policeman’s or other listed worker’s duties but, rather, the unintended injury to such person while the defendant has the intention of interfering. It is this unintended result for which the statute imposes strict responsibility. The defendant here could not be guilty under subdivision (3) of attempting to inflict an unintended injury, and the People may not make it otherwise through an effort to shift the emphasis from the unintended injury to the defendant’s intention to interfere.

The People’s argument — that the specific intent required for the crime of attempt may be supplied by defendant’s intent to assault the police officer — must fail for another reason. It engrafts onto the attempt crime an element of intent that the main crime lacks. The result is an unacceptable anomaly. The higher crime of assault second is one in which a defendant may be held strictly responsible for an injury without proof of intent to injure; the lesser crime, attempted assault second, under the People’s theory, becomes a crime which requires proof of intent to injure — an element not required for the higher crime.

Finally, the People’s construction of assault, second degree —making the focus of the crime the interference with the performance of lawful duties rather than the injury to the performer — creates another obvious difficulty. The interference component of Penal Law § 120.05 (3) does not require a successful interference or a completed act but only an intention to interfere. Thus, the crime of attempted assault second, as the People see it, would call for an attempt to intend to interfere, a seeming impossibility (see, People v Lynn, 115 Misc 2d 76, 77 [App Term, 2d Dept]; King v State, 339 So 2d 172 [Fla]; Allen v People, 175 Colo 113, 485 P2d 886, 888; cf., State v Wilson, 218 Ore 575, 346 P2d 115; see generally, 21 Am Jur 2d, Criminal Law, § 158, at 313; 22 CJS, Criminal Law, § 74).

For these reasons, we conclude that the crime of attempted assault in the second degree is a legal impossibility. The holdings in People v Allah (126 AD2d 778); Matter of Shannon B. (122 AD2d 268, affd on other grounds 70 NY2d 458); People v Jackson (111 AD2d 983); People v Lattmen (101 AD2d 662); People v Roberts (99 AD2d 761); People v Nelson (92 AD2d 1036); and People v Early (85 AD2d 752), relied on by the People and cited by the dissent, are not to the contrary. None of those decisions addressed the issue before us now — whether a person can attempt an assault under Penal Law § 120.05 (3).

The order of the Appellate Division, insofar as appealed from, should be reversed and the assault counts dismissed (see, People v Mayo, 48 NY2d 245).

Bellacosa, J.

(dissenting). I vote to affirm the Appellate Division order upholding defendant’s conviction for attempted assault in the second degree against two police officers. He was charged with attempted rape, first degree, sexual abuse, first degree, unlawful imprisonment, second degree, and two counts of assault, second degree; and he was convicted after a nonjury trial of one count of sexual abuse, third degree, and two counts of attempted assault, second degree. The issue is whether attempted assault under the circumstances of this case is a cognizable crime.

The salient facts are that defendant intended to prevent the police officers from performing their lawful duty by attempting to inflict physical injury upon them. Both arresting officers suffered physical injuries and required medical treatment following their altercation with defendant. Testifying on his own behalf, defendant stated that prior to his arrest he had “main lined” cocaine intravenously, that he became paranoid, and that he had “certainly tried to get away from [the officers]” while they attempted to handcuff him.

A person is guilty of assault, second degree, when “[w]ith intent to prevent a * * * police officer * * * from performing a lawful duty, he causes physical injury to such * * * police officer” (Penal Law § 120.05 [3] [emphasis added]). "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00 [emphasis added]). Both provisions contain specific intent elements. When only one culpable mental state “appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears” (Penal Law § 15.15 [1]). "A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability” (Penal Law § 15.15 [2]).

The majority’s reversal analysis overrides the plain wording of and specified rules of interpretation for these related statutes. Moreover, strict liability statutes are generally disfavored (Packer, Mens Rea and the Supreme Court, 1962 Sup Ct Rev 107, 109) and are typically crimes against the public welfare of the misdemeanor variety (1 LaFave and Scott, Substantive Criminal Law § 3.8, at 341). In contrast to the guidance offered by the Model Penal Code § 2.05, which permits the substitution of strict criminal liability in lieu of traditional common-law mens rea only for noncriminal violations, the majority holds that a New York class D felony, with an express culpable mental state element, is a strict liability crime.

Overriding the presumption of Penal Law § 15.15 that a culpable mental state of a statute applies to all the elements, absent clear legislative intent to the contrary, the majority simply states, without any supporting authority, that the Legislature contemplated fracturing the intent element of the assault statute so as to apply only to the obstruction of a lawful duty and not to the prescribed physical injury result. It treats the latter as unintended or accidental. Thus, it is concluded that there can be no attempt to commit an assault because one cannot intend to commit an unintended result. This dialectical reasoning trips over its asserted logic right at the starting blocks because the hypothesis that Penal Law § 120.05 (3) is a strict liability felony cannot stand up.

This court has consistently applied the rule of construction mandated by Penal Law § 15.15 that "[i]n the absence of a clear legislative intent to impose strict criminal liability, such construction should not be adopted” (People v Coe, 71 NY2d 852, 855; see, People v Chesler, 50 NY2d 203, 209). We have held offenses to be of the strict liability variety where the statute specifies only an actus reus, where the purpose of the law suggests that it is a strict liability offense and where the legislative history indicates an intent that the offense was one of strict liability (see, People v Nogueros, 42 NY2d 956, 956-957; see also, 1 LaFave and Scott, Substantive Criminal Law § 3.8, at 342-344). None of those situations apply here.

The Legislature instead expressly provided that Penal Law § 120.05 (3), the felony at issue here, was a specific intent crime. The purpose of the statute is to impose criminal responsibility for certain physical injuries arising from intended acts against a special category of crime victim, a growing phenomenon. Legislative history even discloses that the drafters intended that a specific sliding scale of culpability should apply to each of the felony assault varieties, with an attempt to commit those offenses being an available lesser crime as well. "The proposed assault formulation, requiring actual physical injury, places the crime of assault in the main category of offenses (robbery, larceny, perjury, etc.) which are committed only when the offender succeeds in his criminal objective. And as with other offenses of this nature, an unsuccessful endeavor (a common law assault not resulting in a battery) constitutes an attempt. Attempted assault,’ therefore, becomes a logical and meaningful offense under the proposed Article, having considerable utility in connection with certain specific intent assault crimes” (Proposed New York Penal Law, Commission Staff Notes, at 330-331 [emphasis added]).

Contrary to the majority’s footnoted characterization of what I am "apparently argu[ing],” my position is simply compelled by the mandate of the relevant Penal Law statutes properly interpreted together. Moreover, the ratio decidendi of People ex rel. Gray v Tekben (57 NY2d 651) does not nearly support the proposition promoted by the majority. Gray, charged with assault, second degree (Penal Law § 120.05 [3]), asserted as his defense that he lacked intent to interfere with a correction officer. The Judge in that bench trial, sua sponte, considered as a lesser included offense assault, third degree (Penal Law § 120.00 [1] [assault with intent to injure]). On appeal, Gray argued "assault with intent to injure is not a lesser included offense of assault with intent to interfere with a peace officer”. He asserted that "[t]hese two intents are quite different and simply cannot be considered to be included within each other”. Gray, construing the lesser included offense rule did not hold that Penal Law § 120.05 (3) was a strict liability felony and our opinion was expressly limited to the lesser included issue. That is a matter different in kind and in sweep, from the issue in this case — whether there can be such a crime as attempted assault. Searching analysis is required to decide this case, not out-of-context extrapolations from our and the Appellate Division’s memoranda decisions in Gray.

If dicta words are to be given such decisive weight, however, then I respectfully suggest that the more relevant, more recent and more persuasive dictum of Matter of Shannon B. (70 NY2d 458) on the precise question at hand ought instead to be controlling rather than snippets of language from People ex rel. Gray v Tekben (supra). Chief Judge Wachtler in Matter of Shannon B. (supra) said that "appellant’s acts of resistance, which included striking the officer, were acts which, if committed by an adult, would have constituted the crimes of obstructing governmental administration (Penal Law § 195.05) and attempted assault in the second degree (Penal Law § 110.00, 120.05 [3])” (id., at 461 [emphasis added]). A year later, the court announces there can be no such crime.

Also, in one fell swoop, at least a half dozen other appellate determinations on this subject are seemingly overturned (see, People v Jackson, 111 AD2d 983; People v Lattmen, 101 AD2d 662; People v Roberts, 99 AD2d 761; People v Nelson, 92 AD2d 1036; People v Early, 85 AD2d 752; People v Robinson, 71 AD2d 779 [in response to "the assertion that he was convicted of a nonexistent crime”, the court held "it was legally possible for defendant to attempt to commit the crime” [id., at 780 (emphasis added)]).

It is instructive to consider this court’s discussion of attempted assault as it plays off felony murder. A fleeing criminal who does not intend to kill a pursuing officer "but only intended to frighten or so wound the officer as to prevent his effecting the defendant’s arrest” is, under a predecessor statute (Penal Code § 218 [5]), guilty of either assault or attempted assault (People v Hüter, 184 NY 237, 242-244; see also, People v Berzups, 49 NY2d 417). This long-standing implicit recognition of attempted assault against a police officer in the performance of duty, the statutory language itself, and the legislative history of all the related legislative expressions, make a compelling case for affirmance. It is very hard for me to figure out how this court can reject this array of authorities and now simply declare that there cannot be such a crime of attempted assault on the ground that the consummated crime was a strict liability felony when defendant was, in fact, convicted for a specific intent crime.

Even if I were to accept for argument’s sake only that Penal Law § 120.05 (3) could be a strict liability felony, the ultimate conclusion that there can be no such crime as an attempt of it is, on its own analysis, odd. Unless I misunderstand the majority, a perpetrator acting with the highest degree of mental culpability — specific intent — cannot be guilty of a lesser included offense — a class E felony — by attempting to commit the object crime which requires no criminal mental state — a class D felony. The paradox of this topsy-turvy result should be plain to all. After all, the higher classified crime is said to require no culpable mental state, while the lower attempt one is said to require the highest known to the law; yet the latter, which imposes a higher elemental and evidentiary burden on the prosecutor, is declared impossible to commit — by definition. The "logic” of this syllogism eludes me. Moreover, the Legislature, I would assume, will be startled to learn it is saddled with such impotency on this flawed threshold premise.

Even in those jurisdictions where an assault is categorized by statutory definition as attempted battery, "the courts have upheld convictions for attempted assault on the ground that the crime of assault — with its usual requirement of present ability to inflict injury — is more limited than attempted battery” (2 LaFave and Scott, Substantive Criminal Law § 6.2, at 21). Surely, then, where the definition of assault embraces the common-law definition of both assault and battery, the crime of attempted assault should be existentially available. Where one acts with intent to prevent an arrest and engages in conduct tending to effect a physical injury in that connection, then an attempt conviction after prosecution on the consummated crimes should be sustained (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 110, at 412, and its cited cases).

I do not believe that an attempted assault under Penal Law § 120.05 (3) should be analogized in any event with attempts to commit nonspecific intent type crimes or other inapposite offenses dependent on the legal conceit of transferred intent. That would make the sweep of the holding here even more regrettable. Felony murder is surely not a strict liability offense nor has this court ever recognized it as such. Rather the predicate felony "functions as a replacement for the mens rea or intent necessary for common-law murder” (People v Berzups, 49 NY2d 417, 427, supra). Further, the lesser culpable mental state categories of criminal negligence and recklessness will not generally support an attempt conviction to commit crimes premised on such nonintent culpability. Yet, under specific and limited circumstances, despite the express argument that no such crime exists, we have upheld such convictions. In People v Foster (19 NY2d 150), we held that defendant could plead guilty to attempted manslaughter, second degree, requiring specific attempt intent, even though the statutory definition of the crime itself was causing death "without a design to effect death” (see also, People v Francis, 38 NY2d 150).

In sum, the assault statute at issue creates a specific intent crime. So a conviction for its attempt based on a founded intent to commit the crime with an act in its furtherance is existentially possible and should be recognized. Abstract logic, even if correctly applied, has no role to play in overriding the Legislature’s policy choices and prerogatives in creating, defining and classifying crimes in this State. We should hearken to the settled law, simple justice and plain legal logic which sing out in harmony for an affirmance of the judgment of conviction in this case.

Accordingly, defendant’s conviction for attempted assault in the second degree should be sustained.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in a separate opinion. Order, insofar as appealed from, reversed, etc.

      . Defendant was convicted of sexual abuse in the third degree in connection with the crime for which he was arrested. The court did not reach the counts of obstructing governmental administration which had been submitted on defendant’s request as lesser included offenses of assault in the second degree.

      . The dissent apparently argues that an intent to injure is required under Penal Law § 120.05 (3) (see, dissenting opn, at 608-609). This contention is directly contrary to the plain wording of the statute and our prior holding in People ex rel. Gray v Tekben (57 NY2d 651, 653 [it is possible to commit the crime "without possessing the intent to injure”], affg 86 AD2d 176, 178 [where the Appellate Division stated: "Under that section, the only intent required to be proved was that petitioner acted with the intent to prevent a peace officer from performing a lawful duty. Proof of intent to cause physical injury was not required. * * * The crime is thus one of strict liability as far as the injury is concerned. Even if the petitioner caused the injury to the officer accidentally, he was guilty of assault in the second degree if the accident happened while he intentionally acted to prevent the performance of the officer’s duty”]).

      . Because — under the People’s construction of Penal Law § 120.05 (3)— the lesser crime requires an element not required for the greater, attempted assault in the second degree could not, in any event, be a lesser included offense of assault, second degree (CPL 1.20 [37]; see, People ex rel. Gray v Tekben, 57 NY2d 651, 653; People v Glover, 57 NY2d 61, 64).


source: Caselaw Access Project

author: Simons, J. Titone, J. Chief Judge Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Bernard Harris, Appellant.
    Argued September 13, 1988;
    decided October 20, 1988

      POINTS OF COUNSEL

      Bernard, Harris appellant pro se.

    I. A single detective’s mere thirdhand recital of hearsay-on-hearsay reports does not meet the probable cause standard under the Aguilar-Spinelli rule and the Malinsky-Havelka rerequirement. (People v McRay, 51 NY2d 594; People v Johnson, 66 NY2d 398; People v Malinsky, 15 NY2d 86; People v Richetti, 302 NY 290; People v Cantre, 95 AD2d 522; People v Havelka, 45 NY2d 636; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Hicks, 38 NY2d 90; People v Wheatman, 29 NY2d 337.) II. Absent any significant intervening event, a "statement basically written by the detective and executed by the defendant” in the wake of an unlawful arrest should not have been admitted into evidence. (People v Clements, 37 NY2d 675; Coolidge v New Hampshire, 403 US 443; United States v Marshall, 488 F2d 1169; McDonald v United States, 335 US 451; People v Gallmon, 19 NY2d 389, 390 US 911; United States v Reed, 572 F2d 412; People v Rogers, 52 NY2d 527; Nardone v United States, 308 US 338; People v Johnson, 66 NY2d 398; Taylor v Alabama, 457 US 687.) III. The suppression court improperly placed burden of proving involuntariness of statements and the lack of admonition and valid waiver of Miranda rights on defendant when it presumed that the officers acted lawfully and apparently required defendant to overcome presumption of regularity. (Columbe v Connecticut, 367 US 568; Miranda v Arizona, 384 US 436; People v Valle, 121 Misc 2d 621; Davis v North Carolina, 384 US 737; Spano v New York, 360 US 315; United States v Hackley, 636 F2d 493; Oregon v Elstad, 470 US 298; People v Gonzalez, 55 NY2d 720; People v Hutchinson, 59 NY2d 923; Lego v Twomey, 404 US 477.)

      Paul T. Gentile, District Attorney (Karen Swiger and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt of murder in the second degree was proven beyond a reasonable doubt, by overwhelming evidence. II. As the record supports the affirmed findings of fact that the police had probable cause to arrest appellant, and that his written confession was voluntary and sufficiently attenuated from his arrest to purge any taint, even assuming that his arrest violated Payton, this court lacks power to review these issues. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Malinsky, 15 NY2d 86, 19 NY2d 262; People v Havelka, 45 NY2d 636; People v Tutt, 38 NY2d 1011; People v Charleston, 54 NY2d 622; People v Oden, 36 NY2d 382; People v Bigelow, 66 NY2d 417; People v Bastidas, 67 NY2d 1006; People v Bethea, 67 NY2d 364.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted after trial of murder, second degree, for the stabbing death of his former girlfriend. The evidence against him included a statement he made in the police station approximately an hour after the police arrested him in his apartment without a warrant. Defendant contends that the statement should have been suppressed because it was obtained in violation of constitutional guarantees against illegal searches and seizures (see, NY Const, art I, § 12; US Const 4th Amend). The People contend that the entry and arrest were consensual but maintain that even if illegal under Payton v New York (445 US 573), the confession was admissible because it was sufficiently attenuated from the illegality. This is particularly so, they claim, because at the time of the arrest the police were acting on probable cause. The trial court found the entry and arrest were not consensual and that finding, undisturbed by the Appellate Division, is binding on this court. Accordingly, the issue before us is limited to whether the causal connection between the illegality and the confession was attenuated.

Ordinarily, questions of attenuation are mixed questions of law and fact that we may review only to ascertain whether there is support in the record for the determination of the lower courts (see, People v Borges, 69 NY2d 1031, 1033; People v Conyers, 68 NY2d 982, 984; People v Bastidas, 67 NY2d 1006, 1007). In this case however, we must look to the legal sufficiency of the evidence, particularly the weight to be attributed to probable cause in cases involving Payton violations. We conclude defendant’s statement should have been suppressed on Fourth Amendment grounds and therefore reverse the order of the Appellate Division and order a new trial.

On January 11, 1984 the police found the dead body of Thelma Staton in her apartment and investigation quickly developed probable cause to believe that defendant Bernard Harris was the killer. Five days later, on January 16, 1984, three police officers went to his apartment, without an arrest warrant, to take him into custody. The officers knocked on the apartment door but there was no response so one officer went down a fire escape to the window of the apartment, knocked on it, and said "Police”. As he did so, the other two officers, with guns drawn and at their side, again knocked on the front door. Defendant looked out the peephole of the door and one officer displayed his badge. Defendant then opened the front door and allowed the officers to enter. One of the officers testified that as he did so defendant stated that he was glad the police had come for him. The police then read defendant his Miranda rights. He acknowledged that he understood them and stated that he was willing to answer their questions. The officers told defendant that he was suspected of murdering Thelma Staton and the officers testified that after they did so defendant poured himself a glass of wine and then admitted that he had killed the victim with a knife. He was arrested, taken to the station house where he was again given Miranda warnings, and made the written inculpatory statement to the police which was received at trial and is the subject of this appeal. Subsequently, defendant was given Miranda warnings a third time, just prior to the making of a videotaped interview with an Assistant District Attorney. However, this time when asked whether he wanted to speak about the death of Thelma Staton, defendant answered that he was tired and stated: "Well, I really don’t know what to say right now * * * I have said all I can say.” Nonetheless, a full statement was videotaped in which defendant again admitted that he had murdered Staton.

After a Huntley hearing, Supreme Court suppressed the first statement, given in defendant’s apartment, as the product of an illegal arrest and it suppressed the third videotaped statement given to the Assistant District Attorney, because it was taken after defendant had stated that he did not wish to be questioned further. It denied the motion to suppress the second statement finding the Miranda warnings had been repeated and defendant waived his rights before making the statement. The court’s findings, undisturbed by the Appellate Division, included findings that the police had probable cause to arrest defendant at the time they entered his apartment, that they went there with the intention of making a warrant-less arrest in his home and that defendant opened the door and permitted the police to enter because he was submitting to their authority. The trial court concluded that "no clearer violation” of Payton v New York (445 US 573, supra) could be established.

Defendant was convicted after a bench trial and the judgment was affirmed by a divided Appellate Division. Justice Sandler, with whom Justice Wallach concurred, agreed with the Supreme Court’s determination that the police had made an illegal arrest but nevertheless found attenuation based upon the existence of probable cause. He also found that defendant gave his written statement at the station house not because he felt committed by what he had said at his apartment but because he had made a clear decision to admit his guilt prior to the illegal entry of the police. The trial court made no such finding and Justice Sandler cited no evidence in the record to support his conclusion.

Justice Asch, joined by Justice Kassal, concurred in affirmance in a separate writing. He found that defendant had consented to the police entry but held that, assuming a Payton violation, any "taint” resulting from the illegal arrest was removed by the lapse of time between the initial confession and the rereading of the Miranda warnings before defendant made his second confession.

Justice Rosenberger dissented and voted to reverse the judgment and remand the matter for a new trial. He concluded that there was no significant intervening event between the defendant’s initial statement in his apartment, found by the hearing court to be the result of his unlawful arrest, and the written statement given at the police station.

In Payton v New York (445 US 573, supra), the Supreme Court held that arrest was a species of seizure and that a warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest violates the Fourth Amendment. Noting that the Fourth Amendment protects individual privacy in a number of settings, it pointed out that in none of them is the zone of privacy more clearly defined than in "the unambiguous physical dimensions of an individual’s home” (445 US, at 589, supra). Accordingly, it held that the fruits of illegal entries must be suppressed even though the police might have probable cause to conduct a search or effectuate an arrest outside the home without a warrant. Under the rule of Payton, this arrest was clearly illegal, as the courts below found, and it only remains to determine the consequences of the illegal police conduct.

In Wong Sun v United States (371 US 471), the Supreme Court first considered whether a confession, otherwise admissible, must be suppressed if it is the "fruit” of an antecedent illegal arrest. The court held that verbal evidence "which derives so immediately from an unlawful entry and an unauthorized arrest” is no less the product of official illegality than the more common physical, tangible evidence obtained as a direct result of an unlawful invasion. Therefore, the exclusionary rule operates to bar from trial any verbal statements obtained as a direct result of an unlawful invasion (id., at 485). In Brown v Illinois (422 US 590), the Supreme Court clarified the Wong Sun decision and addressed the proper effect that should be given to Miranda warnings administered after an illegal arrest.

In Brown, defendant was unlawfully arrested and taken to a police station where some two hours later, after being given proper Miranda warnings, he made the incriminating statements used against him at trial. Justice Blackmun, speaking for the court, noted the Fourth and Fifth Amendment concerns in the case and stated that for the causal chain between the illegal arrest and the subsequent statements to be broken Wong Sun requires not merely that the statement meet the Fifth Amendment’s standards but also requires "consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment” (id., at 602). The court reasoned that if Miranda warnings, by themselves, were sufficient to attenuate the taint of an unconstitutional arrest, any incentive to avoid Fourth Amendment violations would be substantially impaired and the exclusionary rule diluted. Thus, the court held that Miranda warnings in and of themselves do not purge the taint of the original illegality. The court rejected a "but for” standard that would require suppression of all statements made after police illegality, however, and held that the question of whether a confession is the product of a free will under Wong Sun must be answered by reviewing the facts of each case. Three of the factors to be considered, the court said, are the temporal proximity of the arrest and the confession, the presence of intervening circumstances and the purpose and flagrancy of the official misconduct. The fact that the statement was freely made after the proper reading of Miranda warnings is necessary for the purposes of the Fifth Amendment, but this type of "voluntariness” is merely a threshold requirement in Fourth Amendment analysis for "if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached” (Dunaway v New York, 442 US 200, 217).

In the present case, defendant was given Miranda warnings and freely gave his statements at the apartment and at the police station and thus the Fifth Amendment threshold requirement has been satisfied. But because defendant was illegally arrested in his home, the court must determine, by applying the factors delineated in Brown, whether the statement given in the police station was sufficiently purged of the taint of this Fourth Amendment Payton violation or the causal connection between the illegality and the confession remains. The trial court’s conclusion of attenuation rested on its finding that Miranda warnings had been repeated before the statement was made. The two opinions for affirmance in the Appellate Division based their finding of attenuation on the repetition of the Miranda warnings, the lapse of time between the arrest and the station house statement and the benign nature of the police conduct because of the existence of probable cause. The courts below did not identify any intervening event, other than the Miranda warnings, between the arrest and the making of the statement at the police station.

Considering first temporal proximity, defendant’s written statement was given approximately one hour after the illegal arrest, a considerably shorter period than the time which elapsed between the illegal arrest and the suppressed statement in Brown v Illinois (supra). The People argue that the shortness of the interval between the arrest and the statement in the police station and the officers’ testimony concerning defendant’s conduct in the apartment indicates the confession was an act of free will formed before the police entry. It can be argued with equal force that the statement was given by defendant in submission to the authority of the police who had illegally entered his home and arrested him. In short, the temporal relationship between the illegal arrest and the statement is, at best, ambiguous. Standing alone, it cannot serve to attenuate the illegality and it becomes important to look for events occurring within the interval between arrest and confession (see, Dunaway v New York, 442 US 200, 220 [Stevens, J., concurring], supra).

In this case, the short time period and the continuous police presence with defendant from the time he was arrested until the time he gave his statement, without any legally significant intervening event, indicate that the station house statement was no less a product of the Fourth Amendment violation than was the statement defendant made in his apartment which the courts below suppressed. Reading defendant his Miranda rights again may have cured the Fifth Amendment violation but, as Brown v Illinois (supra) held, standing alone it could not attenuate the link between the Fourth Amendment violation and the statement. Having just given a statement in his apartment which inculpated him in the crime, defendant had already committed himself and "there was little incentive to withhold a repetition of it” (United States v Johnson, 626 F2d 753, 759, affd 457 US 537). Thus, there is no evidence relating to the first two Brown factors which would break the link between the illegal arrest and the incriminating statement. More importantly the third factor, the purpose and flagrancy of the official misconduct, militates against a finding of attenuation. Not all evidence connected with police misconduct must be suppressed. The principal purpose of the exclusionary rule is deterrence and at some point the causal relationship between the evidence and the illegality became so attenuated that suppression of the evidence exacts a far too heavy price and the remedy of exclusion no longer justifies its cost. The "taint” doctrine must be extended far enough to serve the purpose of deterrence, however, and thus the purpose and flagrancy of the police conduct becomes a legitimate and important factor in the equation. If the impetus for the illegality has been a purposeful violation of the Fourth Amendment more is required to attenuate the causal chain between it and the confession. But it should be noted that the converse is not true. An otherwise inadmissible confession may not be admitted into evidence simply because there has been no showing of purposeful misconduct. Misconduct is a factor, not a controlling factor, and while the severity of the police illegality may fortify a finding that strong deterrence is required, attenuation is not established by showing that the police conduct was undertaken in good faith (Taylor v Alabama, 457 US 687; see generally, 4 LaFave, Search and Seizure § 11.4 [b], at 397-398 [2d ed]).

In the case before us, the trial court found the police went to defendant’s apartment to arrest him and, as the police conceded, if defendant refused to talk to them there they intended to take him into custody for questioning. Nevertheless, they made no attempt to obtain a warrant although five days had elapsed between the killing and the arrest and they had developed evidence of probable cause early in their investigation. Indeed, one of the officers testified that it was department policy not to get warrants before making arrests in the home. From this statement a reasonable inference can be drawn, as the dissent below did, that the department’s policy was a device used to avoid restrictions on questioning a suspect until after the police had strengthened their case with a confession (see, 124 AD2d 472, 478). Thus, the police illegality was knowing and intentional, in the language of Brown (supra, at 605) it "had a quality of purposefulness”, and the linkage between the illegality and the confession is clearly established. Moreover, these illegal efforts continued after defendant’s detention because the Assistant District Attorney subsequently obtained a third statement from him unlawfully.

The analysis highlights the distinction between this case and cases such as People v Conyers (68 NY2d 982) and Rawlings v Kentucky (448 US 98) on which the People and the dissent rely. In Conyers the arrest was not only free of flagrant and purposeful misconduct, it was legal when made. Given the appropriateness of police conduct at the time and the fact that defendant’s statement was made after he had been left alone for two hours, we affirmed the Appellate Division’s factual finding of attenuation. In Rawlings defendant was detained for 45 minutes while two police officers went to obtain a warrant. The Supreme Court cautioned that under strict custodial conditions such a short lápse of time might not purge the taint of an illegal arrest. However, in the case before it the court denied suppression because the arrest was made in the "congenial” atmosphere of defendant’s home and his statement was made "spontaneously”, to avoid implicating a friend in the crime (id., at 108-109). The dissent also relies on People v Rogers (52 NY2d 527, cert denied 454 US 898) and the Appellate Division’s decision in People v Matos (93 AD2d 772). Both cases involve situations in which defendant was confronted with incriminating evidence independently obtained and the courts held that the intervening events broke the causal chain between the illegality and confession. The Rogers case is also distinguishable because of the elapsed time, the nature of the police conduct, and the additional intervening factor that defendant had talked with his brother during his three-hour detention. In the case before us, the police deliberately made an illegal arrest, according to the practice of the department, to obtain a confession of defendant. None of the courts below found any intervening event sufficient to attenuate that illegality, nor do we.

Two Justices of the Appellate Division distinguished this case because the police had probable cause to arrest the defendant. They reasoned that the defendant’s arrest could have taken place lawfully anywhere except in his apartment and that this "major difference in the character of the underlying illegality” (124 AD2d, at 473) supported a determination that there had been sufficient attenuation to purge the primary taint of the illegal arrest. Judge Titone’s concurring opinion states the distinction intended, that the wrong in Payton cases such as this lies not in the arrest, "but in the unlawful entry into a dwelling without proper judicial authorization”. The argument is contrary to the express language of Payton’s holding that "a 'basic principle of Fourth Amendment law’ [is] that searches and seizures inside a home without a warrant are presumptively unreasonable” notwithstanding probable cause (445 US 573, 586, supra). We implicitly rejected it in Conyers. Indeed, we applied that interpretation earlier in Riddick v New York (445 US 573), the companion case of People v Payton. In Riddick, the police made a warrantless felony arrest based upon probable cause in defendant’s apartment and, as an incident of that arrest, seized tangible evidence. Upon remand from the Supreme Court, we suppressed the evidence without comment and ordered a new trial (People v Riddick, 51 NY2d 764; cf., People v Payton, 51 NY2d 169 [remitted for a new hearing on exigent circumstances]). Had the arrest been legal we would have held the evidence properly obtained as incident to a legal arrest or remitted for a determination on the question. Implicit in our decision was a holding that because of the illegal entry, and notwithstanding probable cause for the arrest, the evidence was illegally acquired.

Indeed, the issue is no longer open for discussion. United States v Johnson (626 F2d 753, affd 457 US 537, supra), presented factual circumstances almost identical to the present appeal. The police had entered defendant’s apartment and arrested him without a warrant although they possessed probable cause. He confessed at the apartment and again at the police station. The Circuit Court of Appeals, applying Payton, held the arrest was illegal and, after applying the rule in Brown v Illinois (supra), it suppressed both confessions. On appeal to the Supreme Court, the People argued that the statements should not be suppressed because the rule in Payton should not be applied retroactively. The Supreme Court, without questioning the application of Payton by the Circuit Court, affirmed its determination that the arrest was illegal and that the confessions must be suppressed. That holding controls here.

Finally it should be noted that as a matter of policy, deterring Payton violations by suppressing confessions causally related to them is no less important than deterring investigative detentions or street arrests made on less than probable cause. All are entitled to the same level of scrutiny and evidence obtained as a result of such misconduct must be suppressed unless the taint of the illegality has become sufficiently attenuated.

Accordingly, the order of the Appellate Division should be reversed, defendant’s statement suppressed and a new trial ordered.

Titone, J.

(concurring). I concur in the majority’s result and reasoning on constraint of our recent decision in People v Conyers (68 NY2d 982). In that case, the court, for the first time and without further discussion, utilized the factors delineated in Brown v Illinois (422 US 590; see also, Rawlings v Kentucky, 448 US 98) to determine whether statements made by a defendant arrested in violation of the rule enunciated in Payton v New York (445 US 573) were sufficiently attenuated from the "illegality” to permit their admission into evidence. Despite my concurrence, here and in Conyers (supra), I continue to have serious misgivings about the unquestioning use of the Brown analysis in cases involving Payton violations.

As a threshold matter, before attenuation is considered, the courts must first determine whether "the challenged evidence is in some sense the product of illegal governmental activity” (United States v Crews, 445 US 463, 471). In cases such as Brown v Illinois (supra) and its progeny, an affirmative answer to that preliminary question may be assumed, since the "illegality” is the absence of probable cause and the wrong consists of the police’s having control of the defendant’s person at the time he made the challenged statement. In these cases, the "challenged evidence” — i.e., the postarrest confession — is unquestionably "the product of [the] illegal government activity” — i.e., the wrongful detention. In cases involving Payton violations, in contrast, the initial causal relationship between the illegality and the subsequently obtained statement is more dubious. Unlike in Brown (supra), it is not the detention itself that is wrongful, but rather the manner in which the arrest was carried out. Although we sometimes use legal shorthand and refer to the police action as an "illegal arrest,” the true wrong in Payton cases lies not in the arrest but in the unlawful entry into a dwelling without proper judicial authorization. Whether there is a sufficient causal relationship between this unlawful entry and the police’s subsequent obtaining of a statement is a matter that should be explored before the court embarks on the more traditional attenuation inquiry (Crews v United States, supra). It was apparently this missing step that troubled Justice Sandler at the Appellate Division (see, 124 AD2d 472 [Sandler, J., concurring]). In my view, the absence of guidance from this court on the issue will continue to lead to analytical problems in future Payton cases.

Chief Judge Wachtler, J.

(dissenting). There is no sound basis in law or public policy — indeed it would seem to be against public policy — for this court to suppress a confession which was wholly the product of a defendant’s free will, unaffected by any police illegality. The majority does so in this case, ostensibly because the application of factors found relevant in Brown v Illinois (422 US 590), indicate that a second confession was not sufficiently attenuated from a prior confession. Nowhere, however, in the majority opinion, or in the Appellate Division concurring opinions, or in the trial court opinion, are there any facts from which it can be reasonably inferred that either the first confession or the second confession was the product of anything other than defendant’s independent and self-motivated decision to confess to killing his girlfriend. I do not believe that the majority’s purported establishment of a connection, in the abstract, between two completely voluntary confessions provides a basis for suppression here.

The facts are unusual but uncomplicated. Defendant’s girlfriend, Thelma Staton, was killed when her throat was cut with a knife. The police, with probable cause to believe that defendant did the killing, but without an arrest warrant, went to question defendant at his home. The police knocked at the door, and, after some delay, defendant came to the door and asked "who is it.” A detective held his badge up to the peephole, and defendant then opened the door, stating "I’m glad you came for me.” Defendant was then read the Miranda warnings, which he acknowledged that he understood. He then invited the police officers to sit down, and said that he was going to fix himself a glass of wine. One detective then sat down, and told defendant that he wanted to talk to him about the death of Thelma Staton. After pouring the wine, defendant stated that he loved Thelma Staton, but that she was not bringing up her child "right,” and that he had killed Thelma Staton by cutting her throat with a knife.

Defendant was then arrested and taken to the police station. The Miranda warnings were again read to him, and he indicated that he understood them. Defendant then dictated a confession to a police officer, who wrote it down as defendant spoke. When the confession was completed, defendant read it, and made one change by crossing out a section which stated that he had taken the murder weapon with him after the crime. This was changed to read that defendant had thrown the knife out of the window immediately after killing the victim. After this change was made, defendant signed the confession.

These facts were found by the trial court, were undisturbed by the Appellate Division, and, finding support in the record, now bind this court.

On these facts, the two lower courts found a Payton violation, apparently holding that defendant did not sufficiently consent to the entry of the police into his home (see, Payton v New York, 445 US 573). I agree with the concurrers at the Appellate Division that this conclusion is questionable. Indeed, although the trial court did, as the majority notes, denominate the Payton issue "clear”, it nevertheless appears that the lower courts did not come to grips with the potentially dispositive issue of consent. But, even if there was no consent, and thus a Payton violation, I am at a loss to understand what legal principle necessitates suppression of the defendant’s confessions.

Initially, I note that this question is reviewable by us. Both lower courts held without analysis that the first confession was suppressible. However, simply put, when using the correct legal standard together with the facts found by those courts this conclusion is without basis (Cohen and Karger, Powers of the New York Court of Appeals §§ 114, 115 [rev ed]). Indeed, the majority exercises its power to review the suppression of the second confession on this very basis.

The fundamental principle here, repeated by the United States Supreme Court and this court so often as to be axiomatic, is that "it has never been enough to show that evidence must be suppressed simply because it is discovered subsequent to an illegal arrest; it must in addition be shown that the police exploited the illegal detention in such a way as to establish that it was the detention which produced the challenged statements” (People v Rogers, 52 NY2d 527, 535, cert denied 454 US 898; see, People v Conyers, 68 NY2d 982, 983; People v Arnau, 58 NY2d 27, 32; Rawlings v Kentucky, 448 US 98; Brown v Illinois, 422 US 590, supra). We have consistently rejected, and should reject again today, the notion that "a person illegally detained be forever granted immunity from prosecution or conviction” (People v Rogers, supra, at 531). Instead, our judgment should be anchored upon the settled rule that defendant’s statements may be admissible against him at trial provided that the statements "were acts of free will unaffected by any illegality in the initial detention” (Rawlings v Kentucky, supra, at 110).

Applying these principles in Brown v Illinois (supra, at 603), the Supreme Court held that when an illegal arrest has been followed by a confession, the question becomes whether the confession was actively produced by the arrest, or by some independent force. In Brown the court stated that relevant factors to analyze this question were the presence of Miranda warnings, temporal proximity of the arrest and confession, intervening circumstances, and the flagrancy of police misconduct (id., at 603-604). But these are only factors, none of which is dispositive, to be used as tools to assess the independence of a confession from any police illegality; mathematical summation of values accorded to each factor is no substitute for sensitive assessment of the facts of each case, and the reaching of a well-founded conclusion whether a police illegality actively caused a confession.

The case law bears this out; where it is clear that a confession is the product of a force independent from an allegedly unlawful detention, the confession is admissible. For example, in People v Rogers (supra), a confession caused by defendant being confronted with legally obtained evidence was admissible; in Rawlings v Kentucky (supra), a confession caused by the police discovering physical evidence in a purse was admissible; and in People v Matos (93 AD2d 772), the defendant’s statements caused by the knowledge that his girlfriend told the police "about the rape” were admissible.

Similarly, on the facts in this record, defendant’s confessions manifestly were not the product of a Payton violation. Defendant was expecting the arrival of the police, as shown by his reaction that he was "glad” when they got there. Nor can it reasonably be inferred that defendant was feeling any police coercion as he fixed himself a glass of wine to make himself more comfortable, and then explained how he had both loved his girlfriend and killed her. These are not the statements and actions of a man reacting to police coercion or illegality; on the contrary, these facts portray a man who quite independently had decided to confess before the police arrived, and whose decision, therefore, was formed independently from any illegal police conduct. As a result, neither the first confession, nor the second confession which followed, were in any way actively produced by any police illegality.

Thus the case law does not require suppression here. My disagreement with the majority, however, goes beyond this. I take issue with the assertion that deterrence of Payton violations requires suppression in this case; indeed, I believe that suppressing this defendant’s freely and independently given confessions will, in net effect, encourage police conduct posing greater threats than are presented in this case.

As to the deterrence argument: the majority asserts that if we do not suppress here we will encourage Payton violations. In reality, however, use of defendant’s confessions will not have this effect. Here the defendant welcomed the police, sipped wine and confessed. If we did not suppress here the rule would remain, as it has long been, that there will be suppression if the confession is actively produced by police illegality. Given this fact, the deterrence benefit furthered by this case eludes me. Armed with probable cause to arrest a suspected murderer, surely the police will not forego obtaining a warrant with hopes of meeting a congenial host, and thereby circumventing Brown v Illinois (supra). Nor should we be worried that the police will choose to run the risk that, if this oddity does not occur, the whole police investigation will be jeopardized, including not only confessions obtained, but all physical evidence discovered as well.

Even more distressing, this decision will encourage more intrusive and dangerous police conduct than that which the majority erroneously believes it needs to deter. The majority suppresses here not on the usual grounds of the lack of probable cause, but, ironically, because there was probable cause. The majority’s rationale turns directly on that finding: it reasons that because there was probable cause there should have been a warrant, but because there was no warrant, suppression is required.

But what is missed here is that if the police had been conducting a routine investigation, without probable cause, defendant’s confessions would be admissible. Thus in the name of deterrence, for the sake of suppressing a manifestly independent confession, the majority encourages the questioning of suspects before probable cause is obtained.

Where deterrence is unnecessary, and where defendant’s confessions were not the product of police illegality, there should be no suppression. I therefore dissent.

Judges Kaye, Alexander, Titone and Hancock, Jr., concur with Judge Simons; Judge Titone concurs in a separate opinion; Chief Judge Wachtler dissents and votes to affirm in another opinion in which Judge Bellacosa concurs.

Order reversed, etc.

      . The dissent relies on similar reasoning, but the weakness of the argument is demonstrated by contrasting it with People v Emanuel (98 Mich App 163, 295 NW2d 875). In Emanuel, the People introduced evidence that before his illegal arrest defendant had voluntarily told two police officers that he had information about the crime. The officers told him to go to the police station and report it but when he did not appear, two other officers sought him out and asked to talk with him. Defendant’s first words on meeting them were that he had "intended” to talk to them. Under these circumstances, the court could hardly be faulted for taking defendant’s words at face value. The proof of intent in Emanuel is far different from the police officers’ testimony concerning defendant’s statements in this case. In Emanuel there was evidence of antecedent circumstances, i.e., events transpiring prior to the illegal arrest, as well as defendant’s unambiguous statement when the police arrived. The only evidence supporting voluntariness in the present case is the testimony of police officers who conducted the illegal arrest and there is no indication that the trial court accepted it. Indeed, the court explicitly found that defendant’s actions were in submission to the authority of two police officers at the front door, displaying a badge and with guns drawn, and a third at the window of his apartment.
      In response to the dissent’s statement that the courts "apparently” held the entry into defendant’s home was not consensual, the trial court found, and its findings were undisturbed by the Appellate Division, that "no clearer violation” of Payton could be established. Nor were the police present to "investigate”. The trial court found that the police went to defendant’s apartment to make a warrantless arrest and labeled the claim that they were only there to investigate "nonsense”. Thus, the dissent, while rejecting the Brown test for measuring the taint, relies on a "sensitive assessment” of facts, as it finds them, which are contrary to the findings of the courts below.

      . This view has been accepted by some courts (see, State v Thomas, 405 So 2d 462 [Fla App]; Thompson v State, 248 Ga 343, 285 SE2d 685). The effort to separate the two events and hold that the confession need not be suppressed because the arrest is legal and has been described by a prominent authority as a "gross misapplication” of the inevitable discovery rule (see, 4 LaFave, Search and Seizure § 11.4 [b], at 397).

      . As to the dissent’s argument that deterrence is not required in Payton cases because the police will not make warrantless arrests at the home and risk having confessions suppressed, the simple answer is that they did so here and apparently do so routinely in this police department.

        As to the dissent’s argument that the majority is suppressing because there was probable cause, the position of the majority is that suppression is required because there was an illegal arrest, notwithstanding probable cause, and the causal relationship between the illegality and the evidence obtained was not attenuated.

      . Contrary to the majority’s assertion and the views of one commentator (see, majority opn, at 623, n 2), the misgivings I express here are far more substantial than a simple "misapplication” of the "inevitable discovery doctrine.”

      . The precise holding of the Supreme Court in Payton was not that the arrest per se was unlawful, but rather that an otherwise improper warrant-less entry into the home cannot be justified by the sovereign’s common-law right to effect an arrest without a warrant, even when the arrest is supported by probable cause. This reading of Payton is evident both from Justice Stevens’ characterization of the question presented (445 US 573, 574 ["the constitutionality of * * * statutes that authorize police officers to enter a private residence without a warrant * * * to make a routine felony arrest”]) and from the court’s rationale (id., at 589-590): "But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home * * * In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”
      The language quoted by the majority — that " 'a "basic principle of Fourth Amendment law” [is] that searches and seizures inside a home without a warrant are presumptively unreasonable’ ” (majority opn, at 623-624, quoting Payton v New York, supra, at 586 [emphasis supplied]) — is certainly not to the contrary.

      . In People v Riddick (51 NY2d 764), we ordered suppression of physical evidence found in a dresser drawer while the police were unlawfully on the premises without a warrant. In that case, there was a logical causative relationship between the unlawful entry and the discovery of the physical evidence on the premises. Thus, Riddick is not inconsistent with the view that it is the warrantless entry, and not the arrest, that Payton proscribes. In contrast, there is no such logical causative relationship where, as here, the evidence to be suppressed is a confession made at the police station after the in-home arrest has been completed. Further, contrary to the majority’s suggestion (majority opn, at 624), the Supreme Court’s holding in United States v Johnson (457 US 537) is not controlling because there is no indication that the court, which was concerned with the retroactivity issue, even considered the attenuation problem that the case presented (see, People v Ford, 62 NY2d 275, 281, n).


author: Hancock, Jr., J. Titone, J.

text:
    Jacqueline J. Lynch et al., Appellants, v Bay Ridge Obstetrical and Gynecological Associates, P. C., et al., Respondents.
    Argued September 15, 1988;
    decided October 27, 1988

      POINTS OF COUNSEL

      Joseph E. Mohbat for appellants.
    I. Plaintiffs had a cause of action. Dr. Rubino owed his patient the direct duty to detect her pregnancy before prescribing a fetus-threatening drug. Breach of that duty was the proximate cause of direct damages suffered by plaintiff-appellant. (Cohn v Lionel Corp., 21 NY2d 559; Westhill Exports v Pope, 12 NY2d 491; Vaccaro v Squibb Corp., 52 NY2d 809; Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697; Ferrara v Galluchio, 5 NY2d 16; Battalla v State of New York, 10 NY2d 237; Ken

      nedy v McKesson Co., 58 NY2d 500.) II. Plaintiffs’ summary judgment motion should be granted when defendants offer no proof in opposition. (Zuckerman v City of New York, 49 NY2d 557.)

      Jeffrey N. Rejan and Alvin P. Bluthman for respondents.
    I. Plaintiffs’ claims do not assert a cause of action under New York law. (Milks v McIver, 264 NY 267; Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; Vaccaro v Squibb Corp., 52 NY2d 809; Tebbutt v Virostek, 65 NY2d 931; Friedman v Meyer, 90 AD2d 511; Farago v Shulman, 104 AD2d 965; Schloendorff v Society of N. Y. Hosp., 211 NY 125; McCandless v State of New York, 3 AD2d 600, 4 NY2d 797; Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697.) II. The courts below properly denied plaintiffs’ motion for summary judgment as plaintiffs have not shown a departure from the professional standard of care. (McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20.)
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiffs appeal from an order dismissing their malpractice complaint for failure to state a cause of action (CPLR 3211 [a] [7]). In her complaint and supporting papers (see, CPLR 3211 [c]), plaintiff alleges that she consulted defendant Rubino, her gynecologist, because she had not had a menstrual period for over three months and her "home pregnancy tests” were negative. After a visual examination and with no blood or urine analysis, defendant informed her that she was not pregnant. Without explaining any of the attendant risks, he prescribed the hormonal drug Provera. When plaintiff had the prescription filled, she became aware — from the warning on the label and advice given by the pharmacist — that the drug was known to pose a serious risk of producing congenital defects in the child if ingested during early pregnancy. Relying on Rubino’s advice that she was not pregnant, plaintiff took the drug as prescribed. When menstruation did not occur, she consulted another gynecologist who ascertained from laboratory tests that she was indeed pregnant and cautioned her about the drug’s potentially harmful effects on a fetus in early stages. Fearing that these harmful effects had occurred, plaintiff and her husband elected to have the pregnancy terminated.

Plaintiff alleges that defendants’ negligence forced her either to risk having a congenitally defective child or to submit to an abortion in violation of her "personal, moral and religious convictions”. She seeks damages for her physical, psychological, and emotional injuries resulting from the abortion and from having to decide whether to undergo it.

The courts below — citing Tebbutt v Virostek (65 NY2d 931), Bovsun v Sanperi (61 NY2d 219) and Vaccaro v Squibb Corp. (52 NY2d 809) — viewed the case as involving an injury to the fetus for which plaintiffs could not recover emotional or psychological damages. Additionally, the Appellate Division held that Rubino’s conduct could not have been the proximate cause of the injuries stemming from the abortion. Unlike plaintiffs in Martinez v Long Is. Jewish Hillside Med. Center (70 NY2d 697), the court reasoned, plaintiffs here acted "on their own, without the affirmative advice of the defendants, [and] thereupon took the final step of procuring an abortion” (134 AD2d 240, 242). We now modify.

The complaint and affidavits sufficiently define a cause of action in malpractice for the physical and emotional injuries suffered by plaintiff as a result of defendants’ negligence in rendering medical services to plaintiff, and, thereby, breaching their duty of care owed directly to her. Contrary to defendants’ contentions, plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on the fetus (cf., Tebbutt v Virostek, 65 NY2d 931, supra; Vaccaro v Squibb Corp., 52 NY2d 809, supra). The breach of duty claimed by plaintiff is Rubino’s failure to perform a pregnancy test before advising her that she was not pregnant and before prescribing a drug with potentially harmful side effects if taken during early pregnancy. Indeed, according to her pleading she was the patient and she was the one injured by the negligent diagnosis and prescription. It is the erroneous advice that she was not pregnant — not an injury to a third person as in Tebbutt or Vaccaro or Bovsun — which, plaintiff asserts, led to the actions directly causing her injuries: her ingestion of the dangerous drug and her decision to terminate the pregnancy to avoid the drug’s harmful effects. Reduced to its essentials, the case presents a malpractice action based on medical advice which put plaintiff in the position of having to make decisions and take actions which caused her physical and emotional injuries. That these decisions and actions involved an abortion does not, as defendants suggest, require us to regard the case as something it is not — i.e., an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it (see, Endresz v Friedberg, 24 NY2d 478) or a claim for damages based on plaintiff’s emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss (see, Tebbutt v Virostek, supra).

In addressing defendants’ contention that the claimed negligence could not, as a matter of law, be the proximate cause of the injuries incident to the abortion, we must, of course, assume the truth of the allegations in the complaint and supporting affidavits (Cohn v Lionel Corp., 21 NY2d 559, 562). Ordinarily, plaintiff’s allegations that the injury was a consequence of her physician’s negligent advice would be sufficient to create a question of fact for the jury (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Sewar v Gagliardi Bros. Serv., 69 AD2d 281, 289 [Simons, J.], affd 51 NY2d 752). Defendants argue, however, that this case presents an exception to the rule because plaintiff did not submit to the abortion on the advice of her physician, as in Martinez, but made the choice to proceed on her own. The independence of plaintiff’s decision, defendants contend, elevates her choice to a superseding cause which absolves them from liability. We disagree.

We have recognized that an intervening act which is "not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct * * * may well be a superseding act which breaks the causal nexus (see, e.g., Martinez v Lazaroff, 48 NY2d 819, 820; Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952, supra; Rivera v City of New York, 11 NY2d 856)” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see, Prosser and Keeton, Torts § 44, at 303-316 [5th ed]). But we have cautioned that whether an act is foreseeable and the course of events normal are questions which are generally subject to varying inferences presenting issues for the fact finder to resolve (Derdiarian v Felix Contr. Corp., supra, at 315). There is, we conclude, a factual question presented here: whether, under the circumstances, it could reasonably be expected that plaintiff, upon discovering that she had taken the drug in the mistaken belief that she was not pregnant, would elect to undergo an abortion.

Moreover, the general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability (see, Restatement [Second] of Torts § 443). Thus, a reasonable attempt to avoid the danger created by a defendant’s conduct — an action that should certainly be considered a "normal consequence” of that conduct — cannot amount to a superseding act which breaks the chain of causation (see, Prosser and Keeton, Torts § 44, at 307-308 [5th ed]; Restatement [Second] of Torts § 445). Applying these rules here and assuming the truth of the allegations in the complaint, it is apparent that plaintiffs "choice” to have an abortion cannot be said to be, as a matter of law, a superseding cause. As the complaint alleges, the physician’s negligent diagnosis and treatment were the precipitating causes of all that followed; but for the gynecologist’s conduct, plaintiff would not have been in the position of having to choose between two objectionable alternatives: undergo an abortion or risk having a baby with serious birth defects. That plaintiff made the very choice forced upon her by defendants’ negligence cannot insulate them from legal responsibility for such conduct.

We conclude, however, that plaintiffs cross motion for partial summary judgment was properly denied. The order of the Appellate Division should be modified, with costs to appellants, by denying defendants’ motion to dismiss and, as so modified, affirmed.

Titone, J.

(dissenting). Because the majority has not adequately considered the consequences of its present holding, I write separately to express my own dissenting views.

It is elementary that, except in limited circumstances not present here, a person cannot recover for emotional shock sustained as a result of injury to another (Kennedy v McKesson Co., 58 NY2d 500; cf., Bovsun v Sanperi, 61 NY2d 219). This rule has traditionally been applied to prohibit a mother’s recovery for the emotional distress she suffered as a result of injury or death to the fetus she carried (Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809; cf., Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697). Further, the circumstances under which the law permits recovery for purely emotional trauma resulting from a frightening event are extremely limited (see, Kennedy v McKesson Co., supra, at 504-505 [and cases cited therein]; see also, Martinez v Long Is. Jewish Hillside Med. Center, supra; Johnson v Jamaica Hosp., 62 NY2d 523).

While acknowledging these principles, the majority attempts to treat this case as a garden-variety tort action seeking recovery for the physical, as well as emotional, injuries plaintiff sustained as a result of defendants’ alleged malpractice (majority opn, at 635-636). However, the only physical injuries plaintiff was able to allege were the loss of live fetal tissue and blood, coupled with the pain and discomfort, that attends a normal abortion. I do not, of course, intend to minimize or belittle the physical trauma that accompanies many, if not most, abortions. I emphasize this point only to demonstrate that the "physical injury” on which plaintiff’s suit — including its claim for severe emotional and spiritual damages — is based is really nothing more than an ordinary elective abortion similar to that undergone by thousands of women each year.

If this plaintiff is permitted to maintain an action, so too may any other woman who can allege an intentional or negligent act that led to the invariably painful decision to terminate a pregnancy. In effect, the "unusual circumstances” that the court first recognized as a basis for recovery in Martinez v Long Is. Jewish Hillside Med. Center (supra, at 699) have now become the norm. With this decision, the court has effectively embraced a new cause of action for "wrongful infliction of abortion.”

While I am certainly sympathetic with the suffering of plaintiffs such as Mrs. Lynch and I am as disturbed as the majority by the grossly negligent medical conduct that has been alleged here, I cannot agree that the recognition of such a cause of action is sound, at least in light of the present state of the law. If Mrs. Lynch had decided not to terminate her pregnancy and instead carried the child to term, she might have been rewarded with the birth of a healthy child, in which case there would, of course, be no basis for recovery (cf., O’Toole v Greenberg, 64 NY2d 427, 432-434). Even more to the point, if the feared result had actually occurred and the child had been born deformed, Mrs. Lynch would have had no right to seek recovery for the anguish she would unquestionably feel at seeing her child suffer over its lifetime (Vaccaro v Squibb Corp., supra; Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109). In such circumstances, recovery would be denied because it would embroil the court in the impossible calculus involved in weighing the "anguish that only parents can experience upon the birth of a[n afflicted] child” against the "love that even an abnormality cannot fully dampen” (Becker v Schwartz, supra, at 414-415). In my view, assessing the monetary value of the suffering that Mrs. Lynch experienced, and discounting it in recognition that she found abortion to be a less harrowing option than carrying the pregnancy to term, is an equally difficult — and indeed an impossible — calculation to make.

On an even more fundamental level, I am disturbed by the message that the court sends when it permits Mrs. Lynch to recover while denying relief to similarly situated women who have chosen to carry their pregnancies to term and have borne a deformed or impaired child. A rule affording such a preference to the decision to abort is unquestionably inconsistent with "the 'very nearly uniform high value’ which the law and mankind have placed upon human life” (O’Toole v Greenberg, supra, at 432, quoting Becker v Schwartz, supra, at 411). The decision to terminate or continue a pregnancy is a matter of private choice with which the courts cannot, and should not, interfere. By rewarding the decision to abort with an opportunity to recover for emotional injury that is specifically withheld from the woman who carries the pregnancy to term, the court has, however unintentionally, embroiled itself in precisely the type of value judgment and line-drawing that it quite properly sought to avoid in Howard v Lecher (supra, at 113) and Becker v Schwartz (supra, at 413-414; see also, O’Toole v Greenberg, supra; Albala v City of New York, 54 NY2d 269).__

Here, as in Howard v Lecher (supra, at 113), "[t]here can be no doubt that the plaintiffs have suffered” and that the alleged slipshod behavior of the defendant doctor would, if proven, constitute serious negligence deserving of severe legal consequences. However, despite the temptation to punish the doctor’s wrongdoing and afford the plaintiffs a remedy for their suffering, "the law cannot provide a remedy for every injury incurred * * *. [I]t is this court’s duty to consider the consequences of recognizing a novel cause of action and to strike a delicate balance between the competing policy considerations” (Albala v City of New York, supra, at 274-275). Because I strongly disagree with the manner in which that balance has been struck here, I dissent and vote to affirm the Appellate Division order dismissing the complaint.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa concur with Judge Hancock, Jr.; Judge Titone dissents in part and votes to affirm in a separate opinion.

Order modified, etc.

       Unless otherwise indicated, "plaintiff” will refer to Jacqueline Lynch. Coplaintiff William Lynch asserts a derivative cause of action as her husband.

      . Regardless of their specific religious and moral beliefs, there are few women who do not experience some emotional trauma when forced to decide whether to terminate a problematic pregnancy. Indeed, the only legally significant difference between this case and Martinez v Long Is. Jewish Hillside Med. Center (70 NY2d 697) is that this plaintiff’s attorney had the foresight to rely on his client’s abortion itself as a form of physical injury. The same allegations should certainly have been made in Martinez, obviating the need for any dispute as to whether "[ujnder [the] unusual circumstances” Mrs. Martinez’s claim for emotional injuries alone was actionable.

      . Although the cause of action the majority recognizes includes a component of physical impact, the gist of the claim is the emotional trauma flowing from the destruction of the fetus. Thus, it is somewhat disingenuous to suggest, as the majority does, that "plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on the fetus” (majority opn, at 635). Indeed, the majority has simply repackaged old wine in a new bottle.

      . I do not intend to suggest that women in Mrs. Lynch’s position would take into account the availability of a damages remedy when making the decision to terminate or continue a pregnancy. I am concerned about the majority’s holding primarily because it creates an appearance of rewarding one decision over the other.