author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v William Piazza, Appellant.
    Argued September 11, 1979;
    decided October 23, 1979

      POINTS OF COUNSEL

      Sidney G. Sparrow and David R. Kliegman for appellant.
    I. The evidence, taken in a light most favorable to the proseention, failed to establish a prima facie case of arson against defendant William Piazza. (People v Ledwon, 153 NY 10; People v Crimmins, 41 AD2d 933; People v Cuozzo, 292 NY 85; People v Rooks, 40 Misc 2d 359; People v Weiss, 290 NY 160; People v Crum, 272 NY 348; People v Cashin, 259 NY 434; People v Mummiani, 258 NY 394; People v La Belle, 18 NY2d 405; People v Wachowicz, 22 NY2d 369.) II. The court committed reversible error in refusing to admit into evidence an affidavit of the chief prosecution witness which was materially inconsistent with his trial testimony. (People v Schainuck, 286 NY 161; People v Hill, 52 AD2d 609; People v Walsh, 262 NY 140; United States v Krulewitch, 145 F2d 76; Gordon v United States, 344 US 414; People v Crimmins, 36 NY2d 230.) III. The unprecedented use of a monumentally unfair verdict sheet denied appellant a fair trial. IV. Errors in the charge deprived defendant of a fair trial. (People v Feldman, 296 NY 127; People v Leyra, 1 NY2d 199; People v Trouche, 14 AD2d 361; Ryan v People, 79 NY 593; People v Fiorentino, 197 NY 560; People v Reddy, 261 NY 479; People v Lewis, 275 NY 33; People v Rodriguez, 32 AD2d 545; People v Cotto, 28 AD2d 1116; People v Bartelini, 285 NY 433.) V. Prosecutorial misconduct denied defendant a fair trial, and in any event cannot be tolerated as a matter of public policy. (People v Savvides, 1 NY2d 554; Napue v Illinois, 360 US 264; Giglio v United States, 405 US 150; People v Crimmins, 36 NY2d 230; People v Schwartzman, 24 NY2d 241; People v Mangi, 10 NY2d 86; People v Rojas, 51 AD2d 589; People v Randolph, 42 AD2d 986.) VI. The court permitted the prosecution to impermissibly bolster a thin conspiracy case with a bald hearsay statement of a dead man not in furtherance of the conspiracy and with a postconspiracy statement of a coconspirator which was designed to conceal the conspiracy. (People v Marshall, 306 NY 223; People v Salko, 60 AD2d 307; Newman v United States, 331 F2d 968, 379 US 975; Grunewald v United States, 353 US 391; Krulewitch v United States, 336 US 440; Lutwak v United States, 344 US 604; Landers v United States, 304 F2d 577; People v Chaplin, 8 AD2d 286; Cuyler v McCartney, 40 NY 221; People v Pontani, 33 AD2d 688.) VII. The court deprived appellant a fair trial by refusing to redact Donnelly’s alleged statement concerning a prior similar act done by Donnelly on behalf of "Sam the owner”. (People v Molineux, 168 NY 264; People v Zackowitz, 254 NY 192; People v Calvano, 30 NY2d 199; People v McKinney, 24 NY2d 180; People v Grutz, 212 NY 72; People v Spillman, 309 NY 295;
      Kelly v Home Mut. Fire Ins. Co., 190 App Div 764; People v Hassan, 196 App Div 89.) VIII. Cumulative errors on evidentiary rulings denied appellant a fair trial. (Huff v Bennett, 6 NY 337; Washington v Long Is. R. R. Co., 13 AD2d 710; People v Buchanan, 145 NY 1; Day v Johnson, 265 App Div 383; People v Central Greyhound Lines, 6 AD2d 649.) IX. The trial court improperly denied appellant’s motion to set aside the verdict based upon newly discovered evidence. (People v Beaudet, 32 NY2d 371; People v Diaz, 19 NY2d 547; People v Bell, 32 AD2d 781; People v Kuss, 36 AD2d 306; People v Di Sessa, 42 AD2d 952; People v De Tore, 34 NY2d 199.)

      John J. Santucci, District Attorney (Barry A. Schwartz of counsel), for respondent.
    I. The evidence adduced at trial established a prima facie case on all counts against defendant William Piazza. As such, the indictment should not be dismissed. (People v Cleague, 22 NY2d 363.) II. The court’s refusal to admit into evidence an affidavit signed by witness Peter Kearns was de minimus. (People v Schainuck, 286 NY 161; Resten v Forbes, 273 App Div 646; People v Crimmins, 36 NY2d 230.) III. The verdict sheet given to the jury by the court was proper. IV. Defendant was afforded a fair trial. The trial court’s charge to the jury adequately set forth the principles of law necessary to resolve this case. (People v Leyra, 1 NY2d 199; Ryan v People, 79 NY 593; People v Stilwell, 244 NY 196; Hickory v United States, 160 US 408; Alberty v United States, 162 US 499; People v Bartelini, 285 NY 433; People v Falletto, 202 NY 494; People v Crimmins, 36 NY2d 230; People v Farmer, 196 NY 65; People v Kingston, 8 NY2d 384.) V. The trial of this case was free of prosecutorial misconduct. (People v Savvides, 1 NY2d 557; People v Myles Corp., 53 AD2d 873; Brady v Maryland, 373 US 83; Moore v Illinois, 408 US 786; Napue v Illinois, 360 US 264; People v Stridiron, 33 NY2d 287.) VI. The trial court properly admitted into evidence John Donnelly’s statement to Peter Kearns that he was committing the arson for "Sam the owner”; the admission into evidence of Sam Piazza’s statement to Fire Marshall Kelly that Donnelly was a "gambler” and "had a girlfriend” was error, but such error was harmless. (People v Rastelli, 37 NY2d 240, 423 US 995; People v Epton, 19 NY2d 496; People v Harris, 294 NY 424; People v Tavormina, 257 NY 84; People v Flack, 125 NY 324; People v Mackell, A1 AD2d 209; People v Potwora, 44 AD2d 207; People v Connolly, 253 NY 330; People v Chaplin, 8 AD2d 286; Krulewitch v

      United States, 336 US 440.) VII. The court properly allowed into evidence Peter Kearns’ testimony relating John Donnelly’s statement, made on the night of the crime, that on a prior occasion he had committed arson for "Sam the owner”. VIII. The newly discovered evidence was not brought with due diligence. Moreover, the evidence falls far short of the standard set forth in the statute in that it is not of such a character so as to create a probability that the verdict would have been more favorable to defendant. (People v Salemi, 309 NY 208; People v Becker, 215 NY 126; People v Bolster, 24 AD2d 774; People v Crimmins, 38 NY2d 407.)
   OPINION OF THE COURT

Fuchsberg, J.

The defendant William Piazza stands convicted by a jury of arson in the third degree, conspiracy in the second degree and criminal solicitation in the second degree, all relating to the incendiary destruction of a commercial building owned by his father, Sam Piazza. The Trial Judge had imposed consecutive indeterminate terms of seven and three years on the arson and conspiracy counts respectively and granted an unconditional discharge on the one for solicitation. On review, the Appellate Division modified the sentences so they would run concurrently; it otherwise affirmed the judgment of conviction.

Defendant’s arguments on this appeal essentially fall into two categories. One is that the evidence was insufficient to support the verdict on the charge of arson; the other is that the trial was marked by a series of errors, which, taken individually or in combination, require a new trial of all the charges on which he was found guilty. For the reasons which follow, we are of the opinion that the indictment for arson should have been dismissed, but that in all other respects the order of the Appellate Division was correct.

At the heart of the People’s case was a theory that the Piazzas had conspired to cause the fire and accompanying explosion to permit the father to terminate an unprofitable lease held by a unit of the Strauss Stores Corporation. To make out its prima facie case of conspiracy and of solicitation, the prosecution, among other things, produced direct proof from Richard Masto and William Yezzi, partners in an auto repair business, to establish that, in the late summer and early fall of 1972, both Sam and William Piazza had repeatedly, though unsuccessfully, tried to induce them to blow up the store for a payment of $10,000. To spell out the arson and to link the conspiracy with the actual event, which occurred approximately a half year after Masto and Yezzi had been solicited, the District Attorney went on to present evidence that the human instrument through which the conspiracy then acted was one John Donnelly, whose death in the ensuing conflagration led to the original felony murder charge. With Donnelly dead, in the main the evidence of the arson took the form of a recitation of declarations made by the decedent to a Peter Kearns. This hearsay evidence was admissible because Donnelly’s utterances had been against his penal interest (see, generally, People v Maerling, 46 NY2d 289, 295-299; People v Settles, 46 NY2d 154, 166-170).

Kearns’ story, the District Attorney tells us, was not offered to prove that William Piazza committed the arson, but only to establish that the building had been demolished by criminal agency rather than by accident. The witness’ account began with his assertion that he encountered Donnelly, an old friend, at a neighborhood bar at about 10 p.m. on the night of the arson, March 15, 1973. According to Kearns, Donnelly said he had "to do a job” and prevailed upon his friend to drive him to the building where it was to be done. En route, as Kearns recounted to the jury, Donnelly reminded him that several months earlier "I was telling you I had to take care of a building” and then confided that "tonight I have to do it”. At about the time they arrived at the location, Donnelly is also supposed to have pointed out the "targeted” premises; explained that the plan was to spill oil on the bottom of the basement floor as an accelerant; commented "I see the boys are doing their job” when they came upon an oil truck in front of the building; pointed to a door in the rear that he said was to have been unlocked for him; and mentioned that he was doing the job for "Sam the owner” and had done another job for "the same party” on a prior occasion. Kearns completed his version of the evening’s adventures by describing how, after leaving Donnelly, he had driven but a short distance before the sound of a blast caused him to return, only to find the building ablaze. It was not until months later, after Donnelly’s body was found beneath the postfire rubble, that Kearns admitted to knowledge of the events of that night.

Consistent with the fact that this testimony at no time directly implicates William Piazza (as distinguished from Sam Piazza) in the arson, both sides agree that whether a prima facie case of arson was made out depends, as in most prosecutions for that crime, solely on circumstantial evidence (People v Reade, 13 NY2d 42, 46). We therefore turn immediately to consideration of its sufficiency.

' In so confining our inquiry on this point, we are not unaware of those cases, which, on an agency rationale, advance the theory that, since a conspirator is liable for the acts of his coconspirator in furtherance of the conspiracy (see, e.g., People v Salko, 47 NY2d 230, 237), the conspirator may be deemed an accomplice in the criminal acts committed by his coconspirator (see People v Collins, 234 NY 355, 361; Shapiro v Ferrandina, 478 F2d 894). On the other hand, in this connection we also observe that the statute defining accomplice liability, though it specifically enumerates a variety of other criminal conduct, nowhere mentions "conspiring” as a predicate for liability (Penal Law, § 20.00). However, we have no occasion to rule on that question here. For, as already indicated, the People did not elect to proceed on the assumption that a conspirator-accomplice approach was in order, and, holding to the path it thus pursued, requested no such charge. The trial court, for its part, delivered none. Rather, it specifically instructed the jury that the defendant might be convicted of the conspiracy count and yet be found innocent of the arson. So, the issue having implicitly been kept out of the case by common consent of the parties and the Trial Judge, it is not now to be inserted on our initiative (People v Morhouse, 21 NY2d 66, 75; People v Robinson, 284 NY 75, 81; cf. Martin v City of Cohoes, 37 NY2d 162, 165).

Returning then to examine the circumstantial evidence, we note at the outset the oft-stated rule that, in order to establish a defendant’s guilt beyond a reasonable doubt on the basis of exclusively circumstantial proof, "the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them; and the facts proved must exclude 'to a moral certainty’ every reasonable hypothesis of innocence” (People v Benzinger, 36 NY2d 29, 32; People v Wachowicz, 22 NY2d 369, 372). Put another way, such evidence "is of no value if consistent with either the hypothesis of innocence or the hypothesis of guilt” (People v Suffern, 267 NY 115, 127; People v Montanez, 41 NY2d 53, 57). Thus, though in the affirmed posture in which the present case comes to us the proofs are to be taken most favorably to the People, it is with the caveat that the facts and inferences to be drawn from them must be "so reasonable that they cannot be confused with mere conjecture or suspicion” (People v Castillo, 47 NY2d 270, 277). This stern rule does not proceed from any assumption of inherent weakness of circumstantial evidence vis-á-vis direct evidence, but from the need to insure that the "careful reasoning” necessary to knit together the multiple strands of a skein of circumstantial evidence is not abandoned for unwarranted and, hence, impermissible conclusions "based on probabilities of low grade or insufficient degree” (People v Cleague, 22 NY2d 363, 367; accord People v Kennedy, 47 NY2d 196, 201-203).

To meet these criteria, three facets of the proof served to buttress the prosecution’s submission that William Piazza remained, to the end, an active participant in the carrying out of the arson for which a conspiracy originally was formed some six months earlier. These were (1) that Sam and the defendant had visited the basement of the building on the late afternoon of the fire; (2) that, as Donnelly’s wife testified, on the evening in question her husband left their house saying he had "a job to do for the Piazzas”, that Sam Piazza called later that evening to inquire after her husband, and that, when she called the defendant the following morning, she was informed that her husband had never appeared; and (3) that, on the morning after the fire, the defendant operated a payloader to level the site at the bottom of which Donnelly’s body ultimately was found.

But the power of these baldly stated proofs was dissipated by other related circumstances, largely unimpeachable, which were developed at trial. For instance, as to the appellant’s and his father’s presence in the basement, proof elicited from the People’s own witnesses established that, as recently as February 6, 1973, only five weeks before the conflagration, a New York City Building Department health code violation order had been served on Sam Piazza, as owner of the building, because, without his leave, certain of his tenants in these commercial premises had been using the basement for residential purposes, and that, to the elder Piazza’s knowledge, the offending tenants themselves had been served with violation orders for the continuance of this illegal practice on the very day before the fire. Moreover, on the occasion the Piazzas were observed in the basement by the Strauss employee who saw them there, he gathered from their conversation that they were engaged in disconnecting the supply of gas and electricity in order to discourage the tenants’ unlawful occupancy. Against this background, and especially in the absence of any testimony that connected it in any way with the arson, the bare fact of defendant’s visit to the basement cannot be said to exclude a reasonable hypothesis of innocence.

The second item from which it is claimed the inference of guilt could ineluctably flow came in the form of hearsay, the admissibility of which is not our concern, since it went in without exception (People v Robinson, 36 NY2d 224). It consisted of Donnelly’s statement, made to his wife on the evening of the fire, that he was going "to do a job for the Piazzas”. The sinister interpretation placed upon this is countered by the fact that Donnelly had in the past done odd jobs, including engine repairs, for both Piazzas, and also by Kearns’ admission during cross-examination that Donnelly had told him he had a "motor job” to do. Indeed, this tended to confirm defendant’s own statement that Donnelly failed to report to him as per prearrangement to work on an engine at another place on the night of the arson.

Furthermore, while Donnelly’s reference to "the Piazzas”, taken literally, included the defendant, it was not unreasonable to interpret it as shorthand for "Sam Piazza” or some project related in some way to the family affairs in which the father appears to have been the possessory as well as the dominant figure. Noteworthy too was Mrs. Donnelly’s testimony that, on the preceding evening, Sam Piazza telephoned for her husband and that, early the next evening, on the date of the fire, Donnelly had gone "to see what Sam wanted”. And, later that night, according to Mrs. Donnelly, it was Sam, not William, who called to inquire about her husband’s whereabouts. Thus, given this complexion, Donnelly’s remark can hardly be deemed proof that " 'points with almost unerring certainty’ to defendant’s guilt” (People v Wachowicz, 22 NY2d 369, 373, supra, citing People v De Martini, 218 NY 561, 595).

The prosecutor chose to interpret the third circumstance, defendant’s bulldozing of the debris at the site of the fire on the day after its occurrence, as indicating an attempt to conceal Donnelly’s body or any evidence that the fire was incendiary in origin. However, absent an iota of evidence that either the defendant, the many firemen who clambered over the area or any of those who promptly responded to officially survey its condition that morning had an inkling that a body lay under the debris, this point at best had to be heavily laden with speculation. Beyond that, the evidence at trial showed that, on the morning after the fire, the defendant, who appears to have been exposed to liability at an earlier time by the collapse of another structure, had been told by a Chief Inspector of the Department of Buildings and by other city personnel that a leaning wall still standing after the explosion presented an immediate danger which had to be removed to secure the area; and, while none of these authorities may have intended that the debris be plowed into the excavation, officials in whose presence it was carried out made no effort to halt or deter this activity. The defendant’s behavior after the fire may, therefore, be viewed as consistent with his innocence (cf. People v Lewis, 275 NY 33, 38 [no inference of guilt may be drawn from defendant’s failure to attempt to extinguish fire in barn and instead protect his home]).

Nor can proof of defendant’s participation in the arson as such be deduced from the meetings with Masto and Yezzi. That this is competent evidence from which defendant’s guilt of the conspiracy could be inferred (see People v Colascione, 22 NY2d 65, 74-75; People v Gross, 51 AD2d 191, 195), and the solicitation charge established, is not disputed. But this conspiracy, operating fully half a year before the burning of the building, does not create more than an inference of some undefined involvement by the defendant in the eventual arson itself. In short, neither on this account nor on the basis of the other circumstantial evidence is the defendant so connected with the actual commission of the arson to the degree that his conduct can be said to negate a reasonable and innocent explanation. We find any inference of guilt drawn to be within the range of conjecture (see People v Cleague, 22 NY2d 363, 366-367, supra).

Accordingly, for the jury to have found the defendant guilty of the arson, it had to have done so on the strength of a few facts, which, viewed most favorably to the People, must be considered inadequate as a matter of law to support an ultimate conclusion of guilt beyond a reasonable doubt. Though, concededly, "they may furnish some grounds of suspicion” (People v Lewis, 275 NY 33, 42, supra), the episodes described, taken in true perspective, were so riddled with "subjective inferential links based on probabilities of low grade or insufficient degree” (People v Cleague, supra, p 367) that, on examining the evidence as a whole, the conclusion is inescapable that the circumstantial evidence fell below the standards for determining its sufficiency.

We pass now on the assignments of reversible error on which defendant stakes his claim that the conspiracy and solicitation convictions also must be overturned. First, we reject the assertion that the prosecutor deprived the defendant of a fair trial by allegedly withholding information he was bound to disclose while the witness Kearns was on the stand. By no means does the record sustain such an accusation.

During Kearns’ cross-examination, defense counsel’s inquiry as to whether he had received immunity elicited that the witness was told only that "regardless of what I did in the past * * * I should tell the truth”. Dissatisfied with this answer, presumably because he thought it either unresponsive or evasive, counsel repeated the question, and Kearns replied this time in the negative. That answer turned out to be but a fleeting one, for, to the follow-up query "Do you know what immunity is?”, Kearns’ more measured response was "I don’t know * * * No guilt or something like that”. Though the equivocal nature of this answer certainly left the path open to further questioning, defendant’s trial counsel, who the record discloses to have been experienced, able and thorough, was apparently satisfied with the response and elected to drop this line of examination, indeed never to return to it. The prosecutor, who, incidentally, was not the same. Assistant District Attorney who had appeared at the Grand Jury presentment, also let the matter lie. In fact, the record of the hearing held on a posttrial motion based on newly discovered evidence informs us (see infra, n 2) that when Kearns appeared before the Grand Jury, an Assistant District Attorney had advised the witness that he would not be prosecuted if he told the truth.

The defendant would have us place these circumstances within the compass of People v Savvides (1 NY2d 554, 557). There we minced no words in declaring that, in the face of a prosecutor’s knowledge that a witness’ testimony denying that a promise of leniency was given is false, he or she has no choice but to correct the misstatement and to elicit the truth. This is no less than an effectuation of the principle that "nondisclosure of evidence affecting credibility falls within” the rule enunciated in Brady v Maryland (373 US 83) (Giglio v United States, 405 US 150, 154, quoting Napue v Illinois, 360 US 264, 269; People v Cwikla, 46 NY2d 434, 441). It therefore implies no relaxation of our unwillingness to tolerate any departure from that standard when we observe that, unlike the witness in Sawides, Kearns was not the target of the Grand Jury inquiry; that there is nothing to indicate that his co-operation was bargained for, directly or indirectly; and that the existence of such an understanding is not to be inferred simply from the fact that he did not waive the automatic immunity which otherwise is conferred by statute on all witnesses who testify before a Grand Jury (see CPL 190.40, 190.45).

Moreover, the sequence of questions and answers that brought the matter to the fore presented the jury, overall, not with a categorical denial (see People v Mangi, 10 NY2d 86, 90), but, at worst, with a confused picture as to whether or not immunity had been granted and what that legal term meant. Add the patent indecisiveness of the witness’ answers and defense counsel’s failure to request of either court or prosecutor that he be supplied with information that would have removed any uncertainty (see People v Cwikla, supra, pp 441-442). In this frame of reference, we do not fault the prosecutor for failing to volunteer a clarification. Rather, it is not too much to assume that astute defense counsel, far from any thought of being victimized by the People, was happy to leave things in a posture which allowed him a range of inferences from which to mount a later argument. Similarly, from the prosecution’s standpoint, the decision to let the matter rest need have represented nothing more than an advocate’s perfectly understandable disinclination to open the door to an adversary’s further sparring with an indecisive witness. We conclude, therefore, that what now is attacked as prosecutorial misconduct, actually was no more than a reflection of the defendant’s own choice of trial tactics.

We next consider another prong of the defendant’s reversible error position. This too features Kearns. Early in the investigation, when this witness’ friendship with Donnelly became known, he signed an affidavit in which he swore that he knew nothing of the fateful fire and that he had last seen Donnelly when the latter had departed alone from the bar where they had met that night. Since this version was materially at odds with the one Kearns ventured at trial, the defense employed the contents of the affidavit to attack his credibility. However, while counsel, in his questions on cross-examination, was permitted to incorporate the haec verbae language of this inconsistent statement, the Trial Judge, for the expressed reason that the witness readily conceded its falsity, refused to allow the physical document itself to be introduced into the evidence. The net result was that it was unavailable for inspection by the jury.

To support his argument that the Trial Judge’s banning of the affidavit was grievous error, defendant leans heavily on People v Schainuck (286 NY 161), where the court stated that "the right to scrutinize prior inconsistent statements cannot be cut off by the mere admission by the witness that he has been guilty of inconsistency” (id., at p 165).

But in Schainuck, where the defendant was even precluded from examining the statement, the court also found that defendant had been deprived of a critical "opportunity to compare, detail for detail, the conflicting versions, and to spread them before the jury” (286 NY 161, 165; see People v Hill, 52 AD2d 609, 611; 3A Wigmore, Evidence [Chadbourn rev], § 1037). In contrast, in the present case defense counsel was given, and took, the opportunity to emphasize the glaring inconsistencies by quoting them almost verbatim in framing his questions. The contents of the affidavit having thus found their way into the record, the jurors during their deliberations were privileged, if they so desired, to have had it read to them with or without the testimony which it so dramatically contradicted. Moreover, nothing here indicated the existence of any issue, such as one concerning the writing’s authenticity, form, circumstances of execution, or physical integrity, which might make its facial characteristics relevant. Nor is this an instance in which the subtleties of expression or the omissions and inclusions in the statement required particularly close study of the detail and refinements of composition (cf. Kesten v Forbes, 273 App Div 646, 647 [Sheintag, J.]). Therefore, though a written statement usually will be received when it tends to establish inconsistency, and ordinarily may not be used as a source for cross-examination unless it is (Larkin v Nassau Elec. R. R. Co., 205 NY 267, 269-270), it was not beyond the discretion vouchsafed to a Trial Judge to refuse to allow the defense to put the document in the jury’s hands (see People v Sorge, 301 NY 198, 202).

Finally, we address defendant’s argument that the verdict sheet prepared by the court was so unfair as to have "commanded a conviction”. The sheet listed the offenses submitted to the jury and all possible verdicts that could be reached and, so, fully complied with the letter of CPL 310.20 (subd 2). However, in form, it first enumerated the alternative of finding the defendant "not guilty of anything” and, thereafter, the 15 possible permutations of the charges under which the defendant could be found guilty of one or more. Since this unduly emphasized the options of guilt, we agree that the better course would have been for the court simply to have instructed the jury that it could find the defendant guilty or not guilty on each of the four counts. Nevertheless, in the special circumstances of this case, where, as it turned out, the jury punctuated its deliberations with periodic requests to be reinstructed on each charge, any error inhering in the verdict sheet was harmless.

Before concluding, we further note that, having examined defendant’s remaining contentions, we are of the opinion that each of them is either without merit or rendered academic by the reversal of the arson conviction.

Accordingly, the order of the Appellate Division should be modified to reverse and dismiss the arson count, and otherwise must be affirmed.

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

Order modified in accordance with the opinion herein and, as so modified, affirmed.

      . The indictment, which also included a felony murder count, was handed down jointly against father and son, but, after many trial adjournments occasioned by the elder Piazza’s ill health, the cases were severed so that the prosecutor could proceed against the son separately. We are advised that the indictment against Sam Piazza is still pending undetermined.

      .  It later was to appear that this statement was but one of at least three different accounts emanating from Kearns. One of these surfaced for the first time after the trial and contained an admission that Kearns had been a full participant in Donnelly’s plan to destroy the building and was to share in the latter’s reward for doing so. This revelation led to a CPL 440.10 motion to set aside the judgment because of newly discovered evidence. The Trial Judge denied the motion and the defendant now also appeals from that part of the Appellate Division’s order aifirming that decision. We have made clear that while such a motion is appealable to this court (CPL 450.15, subd 1), it is not reviewable (People v Crimmins, 38 NY2d 407, 409).

      . CPL 310.20, insofar as pertinent, provides:
      "Upon retiring to deliberate, the jurors may take with them: * * *
      "2. A written list prepared by the court containing the offense submitted to the jury by the court in its charge and the possible verdicts thereon.”
      Of particular help to juries in multiparty and multicount cases, and in those in which there is a potential for inconsistent verdicts, the statute now expressly permits a practice that had been engaged in by numerous trial courts (McKinney’s Cons Laws of NY, Book 11 A, Commentaries by [now Judge] Richard Denser, p 584; see, generally, 23A CJS, Criminal Law, § 1369, subd d).


source: Caselaw Access Project

author: Chief Judge Cooke. Jasen, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Herbert L. Rogers, Appellant.
    Argued September 13, 1979;
    decided October 23, 1979

      POINTS OF COUNSEL

      Michael J. Obus, Matthew Muraskin and Barbara M. Rosen for appellant.
    I. Appellant’s statement should have been suppressed since it was the product of unlawful interrogation. (People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Vella, 21 NY2d 249; People v Donovan, 13 NY2d 148; People v Kaye, 25 NY2d 139; People v McKie, 25 NY2d 19; People v Paulin, 25 NY2d 445; People v Jackson, 41 NY2d 146; People v Stroud, 63 AD2d 721; People v Stewart, 41 NY2d 65.) II. It was error to inform the jury that the charge regarding appellant’s decision not to testify had been requested by appellant. (People v McLucas, 15 NY2d 167; People v Britt, 43 NY2d 111.) III. If appellant’s robbery conviction is reversed, his plea of guilty to burglary in the third degree should be vacated. (People v Clark, 45 NY2d 432; People v Selikoff, 35 NY2d 227; People v Lowrance, 41 NY2d 303; People v Jones, 57 AD2d 905; People v Campana, 40 AD2d 833, 33 NY2d 538.)

      Denis Dillon, District Attorney (Judith K. Sternberg and William C. Donnino of counsel), for respondent.
    I. Defendant’s statement was spontaneous; it was not the product of improper police interrogation; therefore, it was correctly admitted into evidence at his trial for robbery. (People v Hetherington, 27 NY2d 242; People v Taylor, 27 NY2d 327; People v Carl, 46 NY2d 806; People v Maerling, 46 NY2d 289; People v Clark, 41 NY2d 612; Massaiah v United States, 377 US 201; United States v Garcia, 377 F2d 321; People v Ramos, 40 NY2d 610; People v Townes, 41 NY2d 97.) II. The court’s charge, to which no exception was taken, did not constitute reversible error. (People v Turner, 48 AD2d 674; People v Carlton, 48 AD2d 775; People v Patterson, 39 NY2d 288; People v McLucas, 15 NY2d 167; People v Britt, 43 NY2d 111.) III. If appellant’s conviction of robbery is vacated, his plea of guilty to burglary in the third degree must be vacated. (People v Clark, 45 NY2d 432.)
   OPINION OF THE COURT

Chief Judge Cooke.

We hold today that once an attorney has entered the proceeding, thereby signifying that the police should cease questioning, a defendant in custody may not be further interrogated in the absence of counsel. We may not blithely override the importance of the attorney’s entry by permitting interrogation of an accused with respect to matters which some may perceive to be unrelated.

Defendant was convicted, after jury trial, of robbery in the first degree and, upon plea of guilty, of burglary in the third degree. The evidence at trial in part consisted of eyewitness testimony and certain statements made by defendant while in custody and after his attorney had instructed police to cease further questioning. Defendant unsuccessfully sought to suppress this proof and the judgments of conviction were affirmed by the Appellate Division, without opinion. There should be a reversal and a new trial on the robbery indictment.

Defendant was arrested in his home on December 16, 1975 at about 10:15 a.m. as a suspect in a liquor store robbery committed by two youths on February 7, 1975. Defendant was handcuffed, placed in a patrol car and taken to the robbery squad in Mineóla. At the time of arrest, and again at police headquarters, Miranda warnings were administered. Defendant informed the police that he had an attorney but that he was willing to speak in the absence of the attorney. After a two-hour period of interrogation in which defendant denied complicity in the crime, the police received a communication from his attorney instructing them to cease further questioning.

Thereafter, the police asked no further questions about the robbery but, under a purported waiver of defendant’s rights, continued to question concerning unrelated activities in which he had not participated. These queries continued for approximately four hours after the communication from his attorney. During this entire period, defendant was manacled.. After inquiries ceased, the police completed the paper work necessary to process defendant and no further information was sought. Defendant then uttered an inculpatory statement which was overheard by one of the detectives who had been questioning him. His motion to suppress the statement was denied on the ground that the assertion was spontaneously volunteered, and this appeal is based on that ruling.

The genesis of defendant’s utterance must be determined to be either as one arising out of sheer spontaneity or as having been induced by illegal police questioning. The threshold issue is whether once a defendant is represented on pending matters, the police may question the defendant on items unrelated to the subject of that representation after the defendant, in the absence of counsel, has waived his rights.

This court has jealously guarded the individual’s privilege against self incrimination and right to counsel, demanding that these fundamental rights be accorded the highest degree of respect by those representing the State. Indeed, it has been announced in broad language that "[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel * * * There is no requirement that the attorney or the defendant request the police to respect this right of the defendant” (People v Arthur, 22 NY2d 325, 329; see, also, People v Settles, 46 NY2d 154; People v Hobson, 39 NY2d 479).

The People maintain nonetheless that a waiver in the presence of counsel is necessary only when the defendant is subjected to interrogation concerning the charge on which he is represented. Thus, it is urged that the four-hour interrogation after the attorney had entered the proceeding was proper because it dealt only with unrelated matters. The People’s position, however, is untenable, it being at odds with the thrust of recent decisions concerning the scope of the State constitutional right to counsel (NY Const, art I, § 6).

It is true that previous decisions of this court, rendered in an era when the Arthur rule was in doubt, excepted from its scope questioning about a charge unrelated to the one on which defendant was represented (see People v Taylor, 27 NY2d 327; People v Hetherington, 27 NY2d 242; but see People v Vella, 21 NY2d 249). And, when the Arthur rule was revitalized in People v Hobson (39 NY2d 479, 483, supra), the exception for unrelated charges was again articulated, although there the court had no need to apply the rule. Since Hobson, however, it has been difficult to define the precise reach of the limitation concerning unrelated charges. Perhaps this is a result of the obvious difficulty encountered in drawing the subtle distinctions necessitated by the interaction of the Hobson and Taylor rules.

Specifically, in People v Ramos (40 NY2d 610), where the defendant, who was represented by an attorney on a drug charge, had been advised not to make any statements at the time of his arrest on an unrelated charge, the advice of the attorney was deemed sufficient to trigger the Arthur rule, and the statements concerning the unrelated charge were suppressed. The ruling was based not on "the mere fortuity that [defendant] was represented by counsel on an unrelated charge, but rather * * * on the attorney’s affirmative and direct action relative to the interrogation which was about to be commenced” (Ramos, 40 NY2d, at p 617). The broad Taylor rule was refined and limited to include the situation "where counsel had not entered the proceeding and where no request for counsel had been made, even though the same defendant might, by mere happenstance, be represented by counsel in a totally unrelated proceeding” (id.).

Last term in People v Carl (46 NY2d 806, 807), it was held to be a “technicality of little significance” that defendant was questioned concerning a crime different than the one for which he was in custody. Prior to the interrogation, counsel had instructed the Sheriff not to speak with defendant in the absence of counsel. Notwithstanding that separate crimes were involved, the court determined that the charges were sufficiently related to preclude interrogation in the absence of counsel because the two incidents occurred within approximately one week, both involved burglaries or attempted burglaries at the same location and both were charged in the same indictment.

The Taylor limitation was further refined in People v Ermo (47 NY2d 863), where defendant was questioned about both an assault and a homicide, committed seven months apart, in the absence of the attorney who represented him on the assault charge. Although conceding that the police would have been entitled to question defendant on the homicide alone, the court nonetheless held statements concerning the homicide to be inadmissible because “the police exploited concededly impermissible questioning as to the assault for the purpose and with the effect of advancing their interrogation on the homicide charge” (id., at p 865). By suppressing these statements, however, the question no longer was whether the defendant was represented on the charge about which he was questioned. Rather, the focus of inquiry was the circumstances of the interrogation and whether its subject included a charge on which defendant had an attorney (see 47 NY2d, at p 868, Gabrielli, J., dissenting).

Thus following Hobson it has been urged in several cases and under a variety of circumstances that the exception concerning unrelated charges was applicable. In each instance, however, it has been found that the exception could not be applied or expanded consistent with the Hobson rationale. It is evident that in these cases, the Taylor rule was considerably narrowed (but cf. People v Coleman, 43 NY2d 222; People v Clark, 41 NY2d 612). The common thread running through these holdings is the simple fact that defendant was represented by an attorney at the time of the interrogation. We today recognize that the Taylor rule is inconsistent with the principles enunciated in Hobson and declare that once a defendant is represented by an attorney, the police may not elicit from him any statements, except those necessary for processing or his physical needs. Nor may they seek a waiver of this right, except in the presence of counsel.

Our acknowledgment of an accused’s right to the presence of counsel, even when the interrogation concerns unrelated matters, represents no great quantitative change in the protection we have extended to the individual as a shield against the awesome and sometimes coercive force of the State. An attorney is charged with protecting the rights of his client and it would be to ignore reality to deny the role of counsel when the particular episode of questioning does not concern the pending charge. It cannot be assumed that an attorney would abandon his client merely because the police represent that they seek to question on a matter unrelated to the charge on which the attorney has been retained or assigned. Finally, it is the role of defendant’s attorney, not the State, to determine whether a particular matter will or will not touch upon the extant charge. Once a defendant has an attorney as advocate of his rights, the attorney’s function cannot be negated by the simple expedient of questioning in his absence.

The presence of counsel confers no undue advantage to the accused. Rather, the attorney’s presence serves to equalize the positions of the accused and sovereign, mitigating the coercive influence of the State and rendering it less overwhelming. That the rule diminishes the likelihood of a waiver or self incriminating statements is immaterial to our system of justice (see People v Settles, 46 NY2d 154, 164, supra; People v Donovan, 13 NY2d 148, 152). Although the State has a significant interest in investigating and prosecuting criminal conduct, that interest cannot override the fundamental right to an attorney guaranteed by our State Constitution. Available are means other than subjecting a person represented by an attorney to interrogation in the absence of counsel.

Having determined that the police interrogation was improper, we turn then to the question whether the inculpatory statement was admissible as a "spontaneously volunteered statement” (People v Hobson, 39 NY2d, at p 483, supra). To fit within this narrow exception, the "spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (People v Maerling, 46 NY2d 289, 302-303). Given the unique circumstances here, there can be no conclusion other than that defendant’s statement did not fall within the exception. Defendant, a youth of limited education, was vigorously questioned by two experienced detectives. Although no physical force was employed, the interrogation covered an extensive period — approximately six hours — and during this entire time defendant was manacled to furniture. A coercive atmosphere had been affirmatively created by the continuous interrogation and the significant restriction on defendant’s freedom of movement. The statement was made in the interrogation room when defendant was still handcuffed and while the police processed the paper work in his presence. It cannot be doubted that the psychologically coercive influence of the police tactics had its effect on defendant and induced the statement apparently directed to himself (compare People v McKie, 25 NY2d 19, and People v Kaye, 25 NY2d 139, with People v Garofolo, 46 NY2d 592, and People v Maerling, 46 NY2d 289, supra).

Mere custody exerts some coercive influence on a suspect, but generally, such influence alone will not form the predicate for finding a statement nonspontaneous as a matter of law. Nor is a statement to be precluded simply because it followed a period of questioning conducted at some prior time. Here there is much more; defendant’s will was overborne by a course of conduct destructive of dignity with no respite save for a mere half hour.

The introduction of defendant’s inculpatory statement was error, which cannot be termed "harmless beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237), and requires a new trial. Since defendant’s plea of guilty to burglary in satisfaction of another indictment was entered upon an agreement that the sentence imposed would run concurrently with the sentence imposed on the robbery conviction, the plea should be vacated (People v Clark, 45 NY2d 432).

The order of the Appellate Division should be reversed, judgments and plea of guilty vacated, statement suppressed and case remitted to Nassau County Court for a new trial on the robbery indictment and further proceedings on the burglary indictment in accordance with this opinion.

Jasen, J.

(dissenting). I simply cannot accept the theory, espoused by the majority of this court, that a defendant represented by counsel in a pending criminal proceeding may not be questioned by law enforcement officers even about concededly unrelated matters in the absence of that counsel. To reach such a result, the majority not only misperceives the right of an accused to be represented by counsel, but, also, blindly elevates that right above the compelling interest of the State to investigate and prosecute criminal conduct.

It has long been recognized in this State that law enforcement officers may question a defendant about matters which are unrelated to the criminal proceeding in which the defendant is represented by counsel. (People v Ermo, 47 NY2d 863, 865; People v Coleman, 43 NY2d 222, 226-227; People v Clark, 41 NY2d 612, 615, cert den 434 US 864; People v Hobson, 39 NY2d 479, 483; People v Taylor, 27 NY2d 327, 331-332; People v Hetherington, 27 NY2d 242,. 245.) Contrary to the majority’s assertion, this rational rule of law is hardly inconsistent with the principle that "[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel” (People v Arthur, 22 NY2d 325, 329; People v Hobson, 39 NY2d 479, 483, supra). That no inconsistencies were ever perceived or, indeed, anticipated by this court from the application of these two distinct concepts is apparent from the plain language of Hobson itself, where this court, in unanimously reaffirming the rule of the Arthur case (supra) observed: "[T]he fact that a defendant is represented by counsel in a proceeding unrelated

to the charges under investigation is not sufficient to invoke the [Arthur] rule (see People v Hetherington, 27 NY2d 242, 245, supra; People v Taylor, 27 NY2d 327, 331-332).” (People v Hobson, 39 NY2d, at p 483, supra.) Thus, the majority’s assertion that these rules of law are inconsistent is belied by the unequivocal language of the very case from which they attempt to draw support.

Nor does the rule of law which authorizes the questioning of a defendant as to matters unrelated to the proceeding in which he is represented by an attorney impinge upon the right of an accused to be assisted by counsel. With respect to these unrelated matters, there has yet to be any formal commencement of a criminal proceeding against the defendant to which the right to counsel would attach. (People v Simons, 22 NY2d 533, 539; People v Stanley, 15 NY2d 30, 32-33.) Further, the defendant, after being informed of his constitutional rights, could simply refuse to respond to inquiries posed to him by the law enforcement officers or request that an attorney be provided for him during questioning. A defendant is under no compulsion to answer any questions whatsoever, even as to unrelated matters. Thus, as in this case, where a defendant voluntarily chooses to provide the police with information concerning criminal activitiy which differs from the criminal conduct which gave rise to his arrest and there is absolutely no indication of exploitation of defendant by law enforcement officers, a defendant’s right to counsel is simply not jeopardized.

In my opinion, implementation of the majority’s holding— purportedly predicated on right to counsel principles — will serve only to impede effective law enforcement by depriving police officers of valuable sources of information. For example, pursuant to the majority’s position, law enforcement officers will be precluded from questioning a defendant charged with driving a motor vehicle while intoxicated about a brutal murder unless they first contact the defendant’s attorney representing him on the driving while intoxicated charge and secure his presence at the questioning. This is so even if the defendant was an innocent bystander who witnessed the murder and voluntarily agreed to co-operate with the police. Surely, the right to counsel was never intended to prevent a defendant from voluntarily co-operating with the police concerning matters unrelated to the crime for which he is charged. To hold to the contrary defies both constitutional principles and common sense.

Even accepting, arguendo, the view of the majority that defendant was improperly questioned as to unrelated crimes, there exists an additional, and, indeed, fatal flaw in the rationale adopted by the majority. I had thought it was a well-established principle of law in this State that a spontaneous statement made to police by a defendant who had been advised of his constitutional rights is not rendered inadmissible solely because the defendant was in custody and represented by counsel who was not present when the statement was volunteered. (People v Clark, 41 NY2d 612, 615, supra; People v Hobson, 39 NY2d 479, 483, supra; People v Kaye, 25 NY2d 139, 143-144; Matter of Carlton W., 63 AD2d 830; People v Howard, 62 AD2d 179, 181; People v Talamo, 55 AD2d 506, 507-508.)

Yet, today, the majority holds that the concededly volunteered statement of this convicted defendant was not spontaneous, and, therefore, must be suppressed. Such conclusion is reached by the majority only after reviewing the facts in the record and drawing inferences therefrom. This, we are unable to do. (NY Const, art VI, § 3.)

The issue of whether an inculpatory statement is "spontaneous” and, thus, admissible into evidence despite law enforcement officers’ failure to honor a defendant’s right to counsel is essentially one of fact. (People v Maerling, 46 NY2d 289, 301.) Here, County Court, after considering all the facts and circumstances present, determined that defendant’s inculpatory statement was spontaneous. This finding of spontaneity, being affirmed by the Appellate Division, is beyond our review if there exists any factual support in the record for such determination. (Id.; cf. People v Leonti, 18 NY2d 384, 390.) Stated differently, the sole question before this court is whether, under any view of the facts, it could be concluded that defendant’s statement was not solicited by law enforcement officers.

The testimony adduced at the suppression hearing reveals that defendant was not physically abused or threatened by the police officers. Defendant was questioned only as to matters concerning unrelated crimes after 1:00 p.m. and, further, all questioning of defendant occurred during the daytime and ceased by 4:45 p.m. It was not until a half hour later when defendant, while gazing out the window, uttered the inculpatory statement. The police officers were not conversing with defendant at this time, as they were completing their paper work with respect to defendant’s arrest.

Given these circumstances, I find more than ample evidence to support County Court’s determination that defendant’s statement was spontaneous. In my opinion, the majority, in holding to the contrary, has transgressed our limited scope of review in these matters and has, in actuality, usurped the authority of County Court and the Appellate Division to pass upon issues of fact. Where reasonable minds may differ as to the inferences to be drawn from a certain set of circumstances, this court "may not interfere with the affirmed findings of that court possessing authority to resolve the issues of fact.” (People v Wharton, 46 NY2d 924, 925.)

Further, as we noted in People v Kaye (25 NY2d 139, 145, supra), "[tjruly voluntary confessions constitúte a highly trustworthy type of evidence * * * No court has yet held that a police officer must take affirmative steps, by gag or otherwise, to prevent a talkative person in custody from making an incriminatory statement within his hearing. * * * To require a police officer to prevent a prisoner from volunteering a statement, or to prevent the officer from divulging statements spontaneously made to him would stretch the comprehension of the average citizen to the breaking point. Our decisions must appear to be rational, fair as well as practical, if the courts are to retain the respect of the people. The admonition of Justice Cardozo is particularly appropriate under these circumstances — '[Jjustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament.’ (Snyder v. Massachusetts, 291 U. S. 97, 122.)”

Accordingly, I would affirm the order of the Appellate Division.

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

Order reversed, judgments and plea of guilty vacated, statement suppressed and case remitted to Nassau County Court for further proceedings on the indictments in accordance with the opinion herein.

      . Defendant does not challenge on this appeal the refusal to suppress identification testimony or the statements made by defendant prior to the call to the police by defendant’s attorney.

      . Contrary to the suggestion of the dissent, this holding creates no undue impediment to the investigation of criminal conduct unrelated to the pending charge. An accused represented by counsel may still be questioned about such matters; we hold simply that information obtained through that questioning in the absence of counsel may not be used against him. Thus, the police may continue to obtain information from a defendant who is a mere witness to unrelated events.

      . [2] Defendant raises as another point on this appeal that the trial court erred when it informed the jury that the defendant had requested the charge that no inferences were to be drawn from the defendant’s failure to testify. Defendant failed to object to the charge and thereby failed to preserve this issue for review. In any event, in light of the disposition of this case, it is unnecessary to rule on this issue. Because a new trial is warranted, however, we note that it is unnecessary and improper to qualify the charge with words indicating that it is given at defendant’s request (see People v McLucas, 15 NY2d 167).


author: Gabrielli, J. Jasen, J.

text:
    In the Matter of Alfred Forte, Respondent, v Supreme Court of the State of New York et al., Appellants.
    Argued September 12, 1979;
    decided October 23, 1979

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Barry A. Schwartz of counsel), for John J. Santucci, appellant.
    The refusal of the court below to apply the plain meaning of CPL 450.50 (subd 2) to the case at bar was error. (Matter of Kellog v Supreme Ct., County of Queens, 36 AD2d 841, 29 AD2d 615; People v Rodriguez, 11 NY2d 279; People v Stern, 3 NY2d 658; People v Ryback, 3 NY2d 467; People v Leyra, 1 NY2d 199; People v Rosenthal, 197 NY 394; People v Mackell, 47 AD2d 209; People v Bissert, 71 App Div 118; People v Benson, 208 Misc 138.)

      Frank S. Polestino and John T. Gallager for respondent.
    I. Prohibition under CPLR article 78 lies here. (Mayor of N. Y. v Hamilton Fire Ins. Co., 10 Bosw 537, 39 NY 45; Cumings v Morris, 3 Bosw 560; Nicholson v Greeley Sq. Hotel Co., 227 NY 345; Skupeen v City of New York, 29 AD2d 282; Matter of Dondi v Jones, 40 NY2d 8; Matter of Di Lorenzo v Murtagh, 36 NY2d 306; Abney v United States, 431 US 651; Matter of Kraemer v County Ct. of Suffolk County, 6 NY2d 363; People v Rosenthal, 197 NY 394; People v Davis, 163 App Div 662.) II. CPL 450.50 (subd 2) is a bar to the criminal prosecution here. (People v Ziegler, 29 Misc 2d 429; Matter of Fisher v New York State Employees’ Retirement System, 279 App Div 315; People v Midgett, 86 Misc 2d 1003; Matter of Forte v Supreme Ct. of State of N. Y., 62 AD2d 704; People v Munger, 37 AD2d 950; Matter of Ferraro v Supreme Ct., County of Queens, 36 AD2d 841; Matter of Kellog v Supreme Ct., County of Queens, 29 NY2d 615; Schneider v Schneider, 17 NY2d 123; Matter of State of New York v King, 36 NY2d 59; Matter of Nigrone v Murtagh, 36 NY2d 421; People v Wilson, 8 NY2d 391.)
   OPINION OF THE COURT

Gabrielli, J.

Whenever a criminal defendant’s pretrial motion to suppress evidence is granted, CPL 450.20 (subd 8) authorizes the People to appeal that determination to an intermediate appellate court provided that the People first file "a statement asserting that the deprivation of the use of the evidence ordered suppressed has rendered the sum of the proof available to the people with respect to a criminal charge which has been filed in the court either (a) insufficient as a matter of law, or (b) so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed” (CPL 450.50, subd 1). If such an appeal is unsuccessful and the order suppressing the evidence is not overturned by an appellate court, the taking of the appeal then "constitutes a bar to the prosecution of the accusatory instrument involving the evidence ordered suppressed” (CPL 450.50, subd 2).

In this article 78 proceeding, we are presented with the novel claim that this statutory scheme permits the People, after taking an unsuccessful appeal from an order suppressing evidence, to obtain a superseding indictment charging the same defendant with the same crimes contained in the first indictment, and to then prosecute that defendant pursuant to the new indictment. For the reasons discussed below, we hold that CPL 450.50 (subd 2) constitutes a bar to the prosecution of such a defendant for the crimes charged in the original indictment, and that this prohibition may not be evaded by obtaining a superseding indictment charging the defendant with the commission of those same crimes, at least in the absence of exceptional circumstances not here present.

The relevant facts underlying this appeal are uncomplicated and undisputed. In January, 1976, a Queens County Grand Jury handed up an indictment charging petitioner and a codefendant with four counts of murder in the second degree. Petitioner made a pretrial motion to suppress certain statements he allegedly had made to the authorities, and that motion was granted by Supreme Court, Queens County. The People appealed to the Appellate Division after filing a statement declaring that "the deprivation of the use of the evidence suppressed has rendered the sum of the proof available to the People with respect to the crime charged in the indictment so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed”. The Appellate Division affirmed the order suppressing the statements, and the People were denied leave to appeal to this court.

Petitioner then moved in Supreme Court to dismiss the indictment. On the return date of the motion to dismiss, the People raised no objection to the dismissal of the indictment, but informed the court and the petitioner that the Grand Jury had issued a superseding indictment charging petitioner with the same crimes charged in the original indictment. The court dismissed the first indictment, but refused to dismiss the superseding indictment. Petitioner subsequently commenced this article 78 proceeding in the Appellate Division, seeking a writ prohibiting his continued prosecution upon the superseding indictment. The Appellate Division granted the requested writ of prohibition, and respondents now appeal by permission of this court.

Before discussing the merits of this appeal, we must first determine whether the extraordinary remedy of a writ of prohibition lies in a case of this type. We recently declared in Matter of Vega v Bell (47 NY2d 543, 546-547), that if a petitioner wishes "to raise his claim in the context of an article 78 proceeding seeking the extraordinary remedy of a writ of prohibition, he is subject to the limitations controlling the issuance of such a writ. As we stated in Matter of Dondi v Jones (40 NY2d 8, 13): '[T]he extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer "acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59, 62; Matter of Nigrone v Murtagh, 36 NY2d 421, 423-424). It must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from legislative, executive or ministerial action (Matter of Kaney v New York State Civ. Serv. Comm., 190 Misc 944, 951, affd 273 App Div 1054, affd 298 NY 707; 23 Carmody-Wait 2d, NY Prac, § 145:215, p 788; see Comment: The Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 84)’ (accord Matter of Jaffe v Scheinman, 47 NY2d 188, 192-193; Matter of B. T. Prods. v Barr, 44 NY2d 226, 231-232; Matter of Steingut v Gold, 42 NY2d 311, 315-316)”.

Applying these principles to the case before us, it is readily apparent that all the prerequisites for issuance of a writ of prohibition are present and, thus, if petitioner’s substantive arguments are sound, we must conclude that the Appellate Division did not err in issuing the writ. It is the gist of petitioner’s argument that as a result of the unsuccessful appeal from the order of suppression, the District Attorney lacked the power to obtain a superseding indictment, the Grand Jury lacked the power to indict the petitioner, and the courts lack the power to try him upon that indictment. So viewed, for purposes of the propriety of the writ of prohibition, petitioner’s claim is indistinguishable from the claim asserted by the petitioner in Matter of Vega v Bell (supra), in which it was claimed that the Grand Jury lacked the power to indict a juvenile unless he was first provided with a removal hearing in a local criminal court. While rejecting the substantive claim asserted in Vega, we concluded that an article 78 proceeding seeking a writ of prohibition was an appropriate means of asserting such a claim, since it was "petitioner’s claim that he may not be brought to trial upon the pending indictment because the Grand Jury lacked the power to indict him” (47 NY2d, at p 547). We must reach the same result in the instant appeal, for we can discern no principled distinction between the two claims for purposes of determining the availability of the writ of prohibition.

That prohibition is available was foreshadowed by and is not inconsistent with our holding in Matter of Kellog v Supreme Ct., County of Queens (29 NY2d 615), in which we affirmed an order of the Appellate Division dismissing a petition seeking to prohibit prosecution of certain charges in an indictment following an unsuccessful appeal by the People from an order suppressing evidence involving one or more charges in that indictment. Our decision in Kellog was premised not upon the assumption that prohibition may never lie to prevent prosecution of a defendant following an unsuccessful appeal by the People from an order suppressing evidence, but rather upon the discretionary nature of the writ of prohibition. As we have previously stated, "[prohibition is not mandatory, but may issue in the sound discretion of the court” (La Rocca v Lane, 37 NY2d 575, 579; see Comment, The Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 97-98). In Kellog, unlike the present case, the merits of the petitioner’s substantive claims were obscured by a variety of collateral issues. There, the petitioner and several others had been charged with certain crimes by a multiple count indictment. Although the People had unsuccessfully appealed from an order suppressing certain evidence related to at least one count in the indictment, it was not evident whether that evidence was in fact relevant to those counts which the People sought to continue to prosecute. Since the language of the statute then in existence barred prosecution only of the "charges” involving the suppressed evidence, and not all the charges contained in the accusatory instrument (see Code Grim Pro, § 518-a) the applicability of the statutory prohibition in that case was far from clear. Under those circumstances, we were unable to conclude as a matter of law that the Appellate Division had abused its discretion in refusing to issue a writ of prohibition. Had we then concluded that the writ was unavailable as a matter of law, there would have been no occasion to review the exercise of discretion. Here, in contradistinction, the legal issues are clearly and forcefully presented: the determination whether the People have the power to prosecute this petitioner comprises a question of law, resolution of which depends solely upon the proper interpretation of CPL 450.50 (subd 2), and which does not involve any disputed questions of fact. Hence, this is a proper case for issuance of the extraordinary writ of prohibition should petitioner’s substantive claims be sound. Accordingly, we now turn our attention to the validity of those arguments.

The dispositive question on this appeal is whether CPL 450.50 (subd 2) prohibits further prosecution only of the accusatory instrument involved in the unsuccessful appeal by the People, or whether it precludes all further prosecution of the petitioner for the charges contained in that indictment. The respondents contend that since the statute speaks of "the accusatory instrument involving the evidence ordered suppressed”, it does not prevent the prosecution of the petitioner for the same crimes pursuant to a superseding indictment. In essence, the respondents suggest that the use of the word "the” limits the phrase "accusatory instrument” to the particular instrument commencing the prosecution involving the original appeal. While this argument is not without some surface appeal, we are compelled to reject it, for the term "accusatory instrument” as employed in this statute encompasses not merely the instrument qua instrument, but also the criminal charges contained therein.

The present statute is derived from section 518-a of the Code of Criminal Procedure. The latter section, which was first adopted in 1962 (L 1962, ch 954, § 3), was part of a comprehensive package designed to provide a procedure for determining the admissibility of evidence alleged to have been seized in violation of law. As a part of that package, it was deemed advisable to allow the People the opportunity to appeal a pretrial suppression order immediately. Were no such appeal authorized, the People would in effect be deprived of any opportunity to appeal from an order of suppression, for if the defendant were subsequently convicted despite the absence of the suppressed evidence, the People perforce would neither wish to nor have any occasion to appeal, whereas if the defendant were to be acquitted, permitting an appeal from the order suppressing the evidence would serve no purpose since the acquittal would bar retrial even were it subsequently to be determined that the evidence was wrongfully suppressed.

At the same time, however, it was recognized that an order suppressing evidence would normally be deemed an interlocutory order, and there exist sound policy reasons for limiting appeals from interlocutory orders in pending criminal cases (see Matter of State of New York v King, 36 NY2d 59, 63-64). The Legislature sought to balance these opposing considerations, and to enact a statute which would allow an appeal where such was absolutely essential, without at the same time encouraging or authorizing a drastic increase in appeals from nonfinal orders. Thus, the statute allowed the People to appeal as of right from an order suppressing evidence, but only in those cases in which the effect of the order sought to be appealed from, if not overturned, would be to destroy the People’s case altogether. To ensure that such appeals would in fact be taken only in cases of that nature, the statute provided that unless the People were to prevail on such an appeal, the taking of the appeal itself would constitute "a bar to the filing of any criminal charge and to the prosecution of any existing criminal charge against the [defendant] involving the [evidence] in question” (Code Grim Pro, § 518-a). Accordingly, the People were put to the choice of either continuing the prosecution without the suppressed evidence in the hope of nonetheless obtaining a conviction, and in the knowledge that an acquittal would end the matter for once and for all, or appealing the order suppressing the evidence, with the knowledge that a failure to prevail on that appeal would likewise finally terminate the prosecution.

The draftsmen of the Criminal Procedure Law initially recommended that the language of section 518-a of the Code of Criminal Procedure be continued in the Criminal Procedure Law without any significant modification relevant to this issue (Staff Comments to proposed CPL 230.40). When the Criminal Procedure Law was actually adopted, however, the language was changed slightly. Instead of precluding, prosecution of the charges which involved the suppressed evidence, the present statute, CPL 450.50 (subd 2), bars subsequent prosecution of the entire accusatory instrument. While there exist no concrete indicia of the purpose of this change in terminology, it is highly probable that the modification was intended to obviate the need to determine which of the charges in an accusatory instrument actually "involve” the suppressed evidence. That inquiry, which was mandated by section 518-a of the Code of Criminal Procedure, was inherently tortuous and its results were tenuous at best. When viewed both prospectively and abstractly, as must always be the case prior to a trial, the interplay between the evidence and the various related charges in an indictment cannot readily be traced. Hence, the statute was amended to simply preclude prosecution of the accusatory instrument and all the charges contained therein regardless of whether the suppressed evidence was relevant to all the charges. So viewed, the amendment of the statute does not indicate any intent to limit the prosecutory bar to the actual accusatory instrument involved in the original prosecution. Rather, the change served to expand the scope of that prohibition to include all charges contained in the accusatory instrument. Thus, to interpret the statute as the People would have us do would be to do violence to the patent purpose of the statute.

Indeed, were we to interpret the statute as the respondents suggest, rather than eliminating unnecessary appeals and proceedings, the effect of the law would be to increase the number of appeals and to place an undue burden upon an already overstrained criminal justice system. The purpose of the bar against future prosecutions is to discourage frivolous appeals by providing that any appeal from an order of suppression, unless successful, will terminate the prosecution. Were we to allow the People to avoid this result by the simple expedient of obtaining a superseding indictment following the failure to overturn the suppression order on appeal, the statutory scheme would become something of a charade. Absent a clear indication that the Legislature so intended, the statute should not be deemed to allow the District Attorney, after first declaring as a precondition to taking an appeal from an order suppressing evidence that the People would have no case without that evidence, subsequently to return to the Grand Jury and obtain a superseding indictment based upon the very evidence which he had previously declared to be insufficient. Not only would such a procedure defeat the legislative intent to terminate all proceedings on the accusatory instrument following an unsuccessful appeal, but it would actually place a greater and totally unnecessary burden upon the criminal justice system by mandating the commencement of a new criminal proceeding following an unsuccessful appeal by the People rather than simply allowing the prior proceeding to continue. Were this the case, the bar of CPL 450.50 (subd 2) would be more illusory than real. Thus, we decline the respondents’ invitation to interpret the statute in such a way as to render it essentially meaningless.

In sum, we conclude that when the People take an unsuccessful appeal from an order suppressing evidence, CPL 450.50 (subd 2) prohibits subsequent prosecutions of the same defendant upon either the same or a superseding accusatory instrument for the crimes charged in the original instrument, at least in the absence of extraordinary circumstances.

Accordingly, the judgment appealed from should be affirmed.

Jasen, J.

(dissenting). Inasmuch as I am unable to agree with the majority’s conclusion that the extraordinary writ of prohibition lies in this case, I respectfully dissent and would vote to reverse the judgment of the Appellate Division and dismiss the petition. Were I to reach the issue whether CPL 450.50 (subd 2) bars the prosecution of the four counts of murder embodied in the superseding indictment, I would hold, in the context of this case, that this statutory provision does not preclude subsequent prosecution.

In Matter of Kellog v Supreme Ct., County of Queens (29 NY2d 615), this court considered the precise issue raised herein, to wit: whether the writ of prohibition should be available to a criminal defendant to challenge the trial court’s jurisdiction over the subject matter of an indictment upon the ground that section 518-a of the Code of Criminal Procedure (the predecessor of CPL 450.50) prohibits prosecution of the charges contained in that indictment. In upholding the decision of the Appellate Division, that prohibition did not properly lie, this court stated in clear and unequivocal terms that "[w]e find nothing in this case to warrant resort to the extraordinary remedy of prohibition.” (Id., at p 616 [emphasis added].)

While I would think principles of stare decisis themselves would require that the petition be dismissed in this case, there exists an additional, but nonetheless compelling, reason not to deviate from our holding in Kellog. The traditional purpose of prohibition is to restrain a lower court from acting without or in excess of its jurisdiction. (See Matter of Vega v Bell, 47 NY2d 543, 546-547; Matter of State of New York v King, 36 NY2d 59, 62; CPLR 7803, subd 2; Comment, The Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76.) As Justice Hopkins perceptively observed at the Appellate Division in the Kellog case, "[t]hat purpose is not what the petitioners in reality are seeking by the present application. It can hardly be claimed that the Supreme Court * * * does not have jurisdiction over both the subject matter of the indictment and the persons of the petitioners. Nor can it be said that the trial court acted beyond its jurisdiction in denying the petitioners’ motions to dismiss the indictment.” (Matter of Kellog v Supreme Ct., County of Queens, 36 AD2d 841, affd 29 NY2d 615.)

Petitioner in this case, as in Kellog, is not challenging the jurisdiction of Supreme Court per se, but, rather, is seeking to invoke the writ of prohibition as the procedural mechanism to register his dissatisfaction with Supreme Court’s determination denying his motion to dismiss the indictment. The propriety of such ruling, however, could be challenged by petitioner on appeal if he was ultimately found guilty at trial. As this court has stated on numerous occasions, prohibition will not usually lie "if there be an adequate remedy by way of appeal” (Matter of Roberts v County Ct. of Wyoming County, 34 NY2d 246, 249; see, e.g., La Rocca v Lane, 37 NY2d 575, 579; Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 437). Indeed, it has been observed that this principle retains its vitality even if it could be said that the court acted in excess of its jurisdiction or power. (See, e.g., Matter of State of New York v King, 36 NY2d 59, 62, supra.)

Thus, in accordance with this well-established body of case law, I would hold, as a matter of law, that the Appellate Division abused its discretion in entertaining petitioner’s claim and issuing the writ. I find no basis to depart from our holding in Kellog and cannot endorse the majority’s strained distinction of that case. Accordingly, I would dismiss the petition.

If it were to reach the merits of this appeal, I would hold, in the context of the particular facts of this case, that CPL 450.50 (subd 2) does not preclude prosecution of the charges contained in the superseding indictment. While I do not necessarily disagree with the majority’s conclusion that the language of CPL 450.50 (subd 2) should be construéd to encompass within its scope of prohibition all charges contained in the original indictment, I cannot endorse the position that the provisions of CPL 450.50 (subd 2), even if so construed, should work to prohibit the prosecution of the charges contained in a superseding indictment if such charges are predicated upon newly discovered evidence.

Here, although it is true that the District Attorney was aware of the codefendant’s oral promise to testify on the People’s behalf at the time he filed the statement required by CPL 450.50 (subd 1), the District Attorney did not actually have the codefendant’s testimony until she testified under oath before the second Grand Jury, several months after the District Attorney filed the 450.50 (subd 1) statement. Prior to that time, the District Attorney merely had the tacit promise of the codefendant to testify against the defendant. Such a promise to testify can hardly be considered "available” evidence for use by the prosecutor in a criminal prosecution against the defendant. The possibility remained, as it frequently does with criminal codefendants, that this prospective witness might renege on her promise to co-operate and would refuse to testify on the People’s behalf at the time of her appearance before the second Grand Jury. Thus, contrary to the majority’s assertion, this is not a case in which the District Attorney is attempting to denominate as "newly discovered” evidence testimony which was actually "available” to him at the time the CPL 450.50 (subd 1) statement was filed.

Nor do I believe that CPL 450.50 (subd 2) should be construed as prohibiting the prosecution of a superseding indictment, although containing the same charges embodied in the original indictment, when the superseding indictment is based upon newly discovered evidence, such as in this case. Nowhere can it be found that the Legislature intended that in every instance a criminal defendant should be forever immune from prosecution stemming from particular criminal conduct once the People appeal an interlocutory order of a criminal court suppressing evidence and are unsuccessful on that appeal. Such a construction of CPL 450.50, in my opinion, would only work to proliferate the instances where legal technicalities serve to encumber our system of criminal justice. This is not to say that courts should condone, or indeed tolerate, abuses of the appellate procedure allowing the People to appeal orders suppressing evidence. However, in cases such as this, where evidence of murder not previously available to the District Attorney later becomes available, CPL 450.50 should not be applied blindly to prohibit the prosecution of the murder charges embodied in a superseding indictment. In view of today’s holding, legislative action is required.

Chief Judge Cooke and Judges Jones, Wachtler, Fuchs-berg and Meyer concur with Judge Gabrielli; Judge Jasen dissents and votes to reverse in a separate opinion.

Judgment affirmed, with costs.

      . Respondents suggest that even if CPL 450.50 (subd 2) would normally bar reindictment of a defendant following an unsuccessful appeal by the People from an order suppressing evidence, the result should be different in those cases in which the People uncover significant new evidence following the taking of such an appeal. Even if we were to agree with this proposition, it would not sustain the superseding indictment at issue in the instant case, since here all the evidence, including the now-claimed new evidence, was concededly available to the People at the time the required statement was filed as a prerequisite to the appeal from the order suppressing evidence, although all the evidence may not have been available when the matter was first presented to the Grand Jury. Hence, we need not and accordingly do not reach this issue, although we note that it is a matter which might be resolved most readily by legislative clarification of the statute.

      . We note that claims such as these are to be distinguished from those based upon a perceived defect in the proceedings or the ultimate decision of a Grand Jury which has the power to indict a particular individual should the Grand Jury determine that reasonable cause exists to believe that such person has committed an offense. Here, as in Matter of Vega v Bell (supra), the basis of the claim is that the petitioner simply could not be indicted for the crimes charged, despite the strength of the evidence presented and the correctness of the Grand Jury’s procedures. Such a contention is founded on an alleged excess of power, rather than a mere error of law, and hence prohibition is an available remedy.

       (See Matter of Higby v Mahoney, 48 NY2d 15; Baden v Staples, 45 NY2d 889; People v Hobson, 39 NY2d 479.)