author: Simons, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent-Appellant, v Richard Bell, Appellant-Respondent.
    Argued January 5, 1989;
    decided February 16, 1989

      POINTS OF COUNSEL

      Patrick M. Wall and Oren Root Jr. for appellant-respondent.
    I. The secretly recorded conversation between Bell and a prosecutorial agent, after Bell had obtained counsel with respect to the subject matter of the inquiry, violated Bell’s constitutional right to counsel. (People v Middleton, 54 NY2d 474; People v Skinner, 52 NY2d 24; People v Ferrara, 54 NY2d 498; People v Mealer, 57 NY2d 214; People v Costello, 101 AD2d 244; People v Bongarzone, 69 NY2d 892; People v Sanders, 56 NY2d 51.) II. Bell should have been acquitted of the bribery counts since it was not shown that he knew Wallace had “witness status”. III. The Attorney-General lacked statutory authority to prosecute. (People v Di Falco, 44 NY2d 482; Matter of Dondi v Jones, 40 NY2d 8; Matter of Additional Jan. 1979 Grand Jury, 50 NY2d 14.) IV. The evidence under the misdemeanor counts was insufficient. (People v Mullens, 292 NY 408.) V. Bell was improperly sentenced as a second felony offender. (People v Orr, 57 AD2d 578; People v Mangiapane, 87 AD2d 851; People v Kennedy, 128 Misc 2d 937; North Carolina v Pearce, 395 US 711.)

      Robert Abrams, Attorney-General (Edward D. Saslaw, O.

      Peter Sherwood, Lawrence S. Kahn, John Michael Ryan, Christine Duisin and Stephen J. Quigley of counsel), for respondent-appellant.
    I. Bell was properly sentenced as a second felony offender. (People v Nitzberg, 289 NY 523; People v Palmer, 109 NY 413; People v Ercole, 4 NY2d 617; People v Mickle, 91 AD2d 920; People v Orr, 57 AD2d 578; People v Kennedy, 128 Misc 2d 937; People v Woodman, 94 Misc 2d 266, 73 AD2d 847.) II. Defendant’s conversations with Walter Wallace were voluntary statements and recordings of them were therefore properly received in evidence. (People v Ferrara, 54 NY2d 498; People v Skinner, 52 NY2d 24; People v Farruggia, 61 NY2d 775; People v Margolies, 125 Misc 2d 1033; People v Middleton, 54 NY2d 474; People v Short, 110 AD2d 205, 67 NY2d 657; People v Mealer, 57 NY2d 214, 460 US 1024; People v Gruttola, 43 NY2d 116; People v Cintron, 134 Misc 2d 453; People v Sanders, 56 NY2d 51.) III. The affirmed finding of fact that defendant bribed a "witness” was more than amply supported by the evidence and was legally correct. (Matter of Dondi v Jones, 40 NY2d 8.) IV. Defendant was properly prosecuted by the Attorney-General. (People v Liebowitz, 112 AD2d 383; Matter of Driscoll v Troy Hous. Auth., 6 NY2d 513; Virag v Hynes, 54 NY2d 437; Matter of Feinberg, 24 AD2d 1, 18 NY2d 499; Matter of L & S Hosp. & Institutional Supplies Co. v Hynes, 84 Misc 2d 431, 51 AD2d 515; People v Zara, 44 Misc 2d 698; Matter of Mann Judd Landau v Hynes, 49 NY2d 128; People v Yonkers Contr. Co., 24 AD2d 641, 17 NY2d 322; Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408.) V. The evidence supporting defendant’s convictions for tax and liquor crimes, as well as for conspiring to obstruct governmental administration, was sufficiently corroborated to satisfy CPL 60.22. (People v Cobos, 57 NY2d 798; People v Rugg, 91 AD2d 692; People v Fielding, 39 NY2d 607; People v Torello, 94 AD2d 857; People v Rossi, 11 NY2d 379; People v Weis, 32 AD2d 856, 397 US 1047; People v Spiegel, 60 AD2d 210, 48 NY2d 647.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of various charges involving violation of the tax and liquor laws, bribing a witness and conspiracy to obstruct governmental administration, and sentenced as a second felony offender to multiple concurrent terms of imprisonment having a maximum of four and a minimum of two years. On appeal, a divided Appellate Division, modified the judgment by vacating the sentence as a second offender and otherwise affirmed. Justice Sullivan, who dissented and voted to affirm, granted both parties leave to appeal.

Defendant’s principal challenge is to the validity of the bribery convictions. He contends that evidence of the briberies, established by a tape-recorded telephone conversation with a police informant, was obtained in violation of his right to counsel under the State and Federal Constitutions because at the time the conversation occurred defendant had retained an attorney to represent him on the tax violations then under investigation. He claims further that he could not be guilty of bribing a witness because at the time he made his telephone call he did not know that the informant had been subpoenaed to testify before the Grand Jury or that he might be subpoenaed in the future. Finally, defendant maintains that he cannot be sentenced as a second felony offender because he was originally sentenced on the predicate felony more than 10 years before commission of the present felonies (see, Penal Law § 70.06 [1] [b] [iv]). The Appellate Division, accepting this argument, held that the date of a predicate felony for enhanced sentencing purposes is the date of the original sentence notwithstanding that the original conviction was subsequently vacated as the result of a successful appeal and defendant resentenced after further proceedings. Defendant also raises several other points before this court which require no discussion. We find no merit to defendant’s contentions and therefore modify the order of the Appellate Division, reinstate the second offender sentence and remit the matter to the Appellate Division for consideration of the factual issues as to sentence.

I

Defendant Richard Bell and his codefendants John Dobson and Vincenzio Caravello owned and operated two Manhattan night clubs, The Mine Shaft Club and The Hell Fire Social Club. The Attorney-General, at the request of the Commissioner of Taxation and Finance, had commenced an investigation into allegations that The Mine Shaft had failed to pay taxes (see, Executive Law §63 [3]). On November 7, 1985, defendant warned Walter Wallace, a former manager of The Mine Shaft, that there might be a subpoena out for him and told him to stay around the house. The next day Wallace attended a meeting with defendant, Caravello and Dobson at which defendant told Wallace to go on "vacation” and to avoid "subpoena people” and reporters working on the investigation but to "keep in touch” while out of town. Wallace was assured he would be given money for expenses and $2,000 was subsequently delivered to him for that purpose. Wallace went to stay with friends in Westchester. The next day, after seeing his picture on the front page of the New York Post, Wallace spoke with defendant and Caravello and defendant told him, in a manner Wallace perceived as threatening, that he should leave that night for Hawaii with Caravello.

As a result, Wallace decided to get counsel and speak to the authorities. He and his attorney met with members of the Attorney-General’s staff on November 13, discussed his involvement with The Mine Shaft and the instructions he had received from defendant and the other partners, and offered to assist in the investigation. On November 19, 1985, the Attorney-General’s staff decided to accept Wallace’s assistance and to attempt to tape-record his telephone conversations with The Mine Shaft partners. The same day, the Grand Jury issued a subpoena duces tecum to defendant requesting documents pertaining to the operation of The Mine Shaft. Defendant then retained an attorney who notified the Assistant Attorney-General of his representation on the morning of the 20th.

Later on the 20th, an investigator from the Attorney-General’s office met with Wallace in Ohio, where he had gone after his meeting with the Attorney-General’s staff. The investigator had Wallace sign a cooperation agreement, served him with a Grand Jury subpoena and interviewed him concerning The Mine Shaft operations. At that time, Wallace agreed to allow the investigators to monitor and tape his future telephone calls. During the next two days he called Caravello twice, as he had been instructed to do by defendant, and, in response to Caravello’s request, he gave Caravello a number where defendant could reach him.

At approximately 1:00 p.m. on November 21 defendant telephoned Wallace and bribed him. The call was monitored and recorded by the police and is the subject of this appeal. In that conversation defendant told Wallace that he hoped The Mine Shaft information did not "have to come out for a long time”, to "stay away” and that money would be sent to him. He also told Wallace what to say if he were questioned by authorities about its operation. For the most part, the conversation was sustained by defendant’s instructions to Wallace to stay in Ohio, to avoid investigators and, if he was interviewed, to make sure his story was consistent with defendant’s story. During the conversation Wallace told defendant, falsely, that he had learned a subpoena had been left at his New York apartment. Defendant responded, "Right. What there [sic] really doing they subpoenaed everybody * * * its [sic] just not you.”

As a result of this conversation, defendant was charged with two counts of bribery in violation of section 215.00 of the Penal Law. The first count charged an offense under subdivision (a), attempting to influence Wallace’s testimony, and the second, an offense under subdivision (b), seeking to influence Wallace to avoid testifying.

Based on the testimony of Wallace, other employees and the police officers involved in the investigation defendant was also charged with several tax and liquor law violations and conspiracy to obstruct governmental administration. The Supreme Court, New York County, granted defendant’s motion for a Huntley hearing addressed to the tape-recorded telephone conversation with Wallace and, after the hearing, denied his motion for suppression. Defendant then waived a jury and agreed to a trial by the court based on the Grand Jury minutes and the minutes of the suppression hearing. On the basis of that evidence the trial court convicted defendant and sentenced him as a second felony offender.

II

Defendant seeks a dismissal of the entire indictment, contending that his recorded conversation with Wallace, a prosecutorial agent, should be suppressed and that in its absence the other counts fail for lack of sufficient corroboration. Noting that the conversation with Wallace took place after the Attorney-General knew he was represented, he claims that his State and Federal constitutional rights to counsel were violated. He relies principally on the broader State rule as developed in People v Skinner (52 NY2d 24).

When a defendant in custody is represented on a pending charge, he may not, without his attorney present, be questioned about that charge (People v Hobson, 39 NY2d 479), or about unrelated criminality if the police know of his representation (People v Rogers, 48 NY2d 167) or know of another pending charge on which defendant is represented (People v Smith, 54 NY2d 954; People v Bartolomeo, 53 NY2d 225). In Skinner, we took a further step and prohibited noncustodial interrogation about a matter under investigation if counsel had been retained specifically on the matter and had instructed the police not to question the defendant in his absence. Our ruling was designed to prevent the police from rendering the right to counsel ineffective by questioning the defendant about matters relating to the subject of the representation in the absence of counsel retained on the matter (id., at 32; People v Hauswirth, 89 AD2d 357, 359, affd 60 NY2d 904). The holding also granted the same protection to criminal defendants, as a matter of State constitutional law, as that granted a civil litigant who enjoys the benefit of "the ethical responsibility of attorneys in civil matters not to communicate on the subject of the representation with an individual known to be represented by an attorney on the matter” (People v Skinner, supra, at 29).

In the present case defendant had been served with a Grand Jury subpoena duces tecum in connection with the tax investigation calling for him to produce records in his possession. His right to counsel attached on that matter on November 20, 1985 when his lawyer contacted the Attorney-General (see, People v Rogers, 48 NY2d 167, supra). Moreover, Wallace was clearly acting as an agent of the police when he allowed the police to monitor and tape his conversation because he had agreed to cooperate with them for the purpose of obtaining evidence against defendant. Defendant contends that under these circumstances the protection afforded by the Skinner rule should be extended to prohibit his noncustodial questioning about an unrelated crime under investigation.

We addressed the question in People v Ferrara (54 NY2d 498). In that case, defendant retained counsel in connection with his appearances before the Grand Jury investigating fraud in the nursing home industry. The prosecutor, suspecting perjury, arranged to record defendant’s subsequent conversations with a nursing home operator during which defendant offered cash kickbacks. Defendant was again called before the Grand Jury and denied any knowledge of the kickbacks. On the basis of that denial, he was indicted for perjury and the taped conversation was offered to establish his guilt. He claimed that the tape should have been suppressed because the prosecutor violated his right to counsel by arranging to record the conversation. We held that neither the Federal nor State constitutional guarantee of the right to counsel includes the right to have counsel present when a criminal enterprise is being planned or executed, noting that the critical fact requiring suppression in Skinner "was that the defendant was represented on the very matter about which he was questioned, a past crime” (People v Ferrara, supra, at 508).

People v Middleton (54 NY2d 474, 480) set forth some factors to be considered in deciding when a conversation between a person accused and a police officer is proscribed by the constitutional right to counsel. They included consideration of who initiated the conversation, whether the bribe offer furnished a valid independent basis for investigation, the risk that defendant took in offering the bribe with respect to the possible recording of it, and whether, in view of the credibility problems in such cases, it is usual practice to attempt to record a conversation.

A consideration of the Middleton factors in this case establishes that the People did not violate defendant’s right to counsel by recording his conversation with Wallace. It is particularly relevant that although Wallace initiated the calls, he did so on instructions from defendant and, indeed, the taped phone call in question was placed by defendant to instruct Wallace on how to testify or, preferably, avoid testifying. Wallace said very little. It is also significant that defendant had previously instructed Wallace to go on "vacation” and avoid subpoenas, and promised him that he would be "taken care of’ if he did. These facts provided evidence of a possible new crime and support the conclusion that the Attorney-General had a valid independent basis for arranging to tape the conversations and that he was not attempting to obtain incriminating evidence of defendant’s prior offenses in violation of his right to counsel (see, People v Ferrara, supra, at 508).

Furthermore, the conversations were limited in scope and sought only to determine whether defendant was in the process of committing a "new crime”. The investigators instructed Wallace that they were only interested in obtaining more information about how he would be "taken care of’ and in confirming that defendant was involved in a possible bribe, not in obtaining additional evidence on the underlying tax offenses. Accordingly, the conversation related almost exclusively to defendant’s plan to influence Wallace’s testimony or avoid his testifying altogether, and Wallace did not question defendant about the crime for which he had obtained representation (see, People v Ferrara, supra, at 505). Thus, defendant’s reliance on People v Sanders (56 NY2d 51) is unavailing because there, the conversations recorded by the police were offered to prove defendant was involved in the very crime for which he had retained counsel.

Finally, it is worth remembering the basis for our rules on right to counsel. We established a broad right under our State Constitution because, as explained in People v Rogers (48 NY2d 167, 173, supra), "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.” There is no sound reason for extending that right to protect a defendant against incriminating himself in a new unrelated crime, however. Where the questioning is in a noncustodial setting, the State does not exert an "overwhelming” or "coercive influence” on the individual nor are the purposes underlying the Skinner rule implicated when the investigation involves a new crime. The People did not, by taping the conversation between defendant and Wallace, interfere with defendant’s representation concerning the Grand Jury investigation nor did they breach the ethical proscription against direct communication with persons represented by counsel on the subject of the representation.

Defendant also claims that his right to counsel under the Federal Constitution has been violated requiring suppression of the conversation (see, Maine v Moulton, 474 US 159). The crimes involving defendant were still in their investigatory stages, however, and no formal charges had been filed at the time the conversation took place. Therefore, defendant’s right to counsel had not attached under the Federal Constitution (see, Kirby v Illinois, 406 US 682).

ra

Defendant next contends that he cannot be guilty of bribing a witness under section 215.00 of the Penal Law because he lacked the necessary mens rea to commit the crime. He argues first that even if it be assumed that Wallace had been properly subpoenaed at the time of the November 21 telephone conversation, he did not know of his witness status or of the facts that arguably transformed Wallace into "a person about to be called as a witness”. He claims further that the facts as he perceived them should control in determining his guilt under the statute, i.e., that while Wallace was in Ohio, a subpoena had been left at his New York apartment. Because he believed Wallace was not properly served, defendant contends that he could not be guilty of bribing a witness because under his subjective perception, Wallace was not a witness within the intendment of the statute. Implicit in this is the contention that the statute is not violated unless the bribe is made after the witness is under subpoena to the knowledge of defendant. Manifestly, Wallace was "a witness or a person about to be called as a witness” at the time of the crime under any reasonable interpretation of the statute. The trial court made only a general finding that defendant knew Wallace was about to become a witness, however, and therefore defendant’s contention makes it necessary to construe the language of the statute to determine if this finding was supported by the evidence.

Penal Law § 215.00 states that: "[a] person is guilty of bribing a witness when he confers * * * any benefit upon a witness or a person about to be called as a witness in any action or proceeding upon an agreement * * * that (a) the testimony of such witness will thereby be influenced, or (b) such witness will absent himself from * * * such action or proceeding.” (Emphasis added.)

The section is a part of article 215 of the Penal Law and is one of a number of provisions enacted to guard against corrupt interference with the judicial system by those seeking to improperly influence witnesses’ testimony or induce them to avoid testifying. The section does not define who is "a witness or a person about to be called as a witness” or impose a requirement that the witness actually be under subpoena before the conduct is considered criminal and we are left to do so.

In the dictionary sense, a witness is a person who "personally sees or perceives a thing” (Black’s Law Dictionary 1438 [5th ed 1979]) or "one who has knowledge of a fact or occurrence sufficient to testify with respect to it.” (97 CJS, Witnesses, § 1.) The CPL, incorporating the uniform act for securing out-of-State witnesses, defines a witness as "a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding” (CPL 640.10 [1]). Finally, the California courts, in construing identical language contained in their statute, i.e., "a witness or a person about to be called as a witness”, have held that the crime may be committed before the witness is subpoenaed (see, People v Martin, 114 Cal App 392, 300 P 130; People v McAllister, 99 Cal App 37, 277 P 1082; see also, Annotation, Influencing or Tampering with Witness, 8 ALR4th 769).

The conclusion to be drawn from these definitions is that an individual’s status as a witness depends upon the evidence he can supply the court, not the immediacy of the need for the evidence. The necessity for such evidence does not depend upon the stage of the investigation or whether a subpoena has been issued. An investigation is frustrated equally whether a bribe is offered one day before a subpoena issues or one day after. If the evidence is sufficient to support a finding that defendant reasonably should have believed that the person would be a witness and that he intentionally attempted to influence the witness’s testimony or induce the witness to avoid testifying, the crime is complete. This view is consistent with the statute’s underlying purpose, to guard against subversion of judicial proceedings by suppressing needed evidence. Moreover, acceptance of defendant’s interpretation of the statute would only encourage efforts to influence potential witnesses before the investigation had fully developed and subpoenas issued.

When the bribery occurred on November 21, Wallace was "a witness or a person about to be called as a witness”. He had signed a cooperation agreement with the Attorney-General and agreed to allow taping of his telephone calls. In addition, he had been served with a subpoena directing his appearance before the Grand Jury in the matter. Irrespective of those circumstances, however, defendant was chargeable with knowledge that Wallace was "a witness or a person about to be called as a witness” because Wallace was the manager of The Mine Shaft and possessed knowledge crucial to any investigation of the club’s tax liability. Defendant and his partners recognized this by urging him to leave the jurisdiction and giving him money to do so. Defendant also revealed his knowledge of Wallace’s status during the November 21 conversation when he stated that the authorities had "subpoenaed everybody * * * its [sic] just not you.” Based upon this evidence, the trial court’s finding that defendant possessed sufficient knowledge of Wallace’s status as a witness was amply supported. This finding of knowledge, undisturbed by the Appellate Division, binds this court and is legally sufficient to support the finding of guilt.

IV

The People’s cross appeal questions the Appellate Division’s vacatur of defendant’s second felony offender sentence. The Appellate Division found the predicate crime could not be used to enhance defendant’s punishment because his original sentence was imposed "more than ten years before commission of the felony of which the defendant presently stands convicted” (Penal Law § 70.06 [1] [b] [iv]).

Defendant was first sentenced on the predicate felony in November of 1973 but his conviction was reversed and a new trial directed because of a prejudicial jury charge. His second conviction, after a new trial, was also reversed. He subsequently pleaded guilty to the crime of burglary in the third degree and was sentenced on June 9, 1980. The majority at the Appellate Division determined that the "sentence” referred to in the statute was the first sentence, notwithstanding the reversal of the conviction and vacatur of the sentence after defendant’s successful appeal, and that it could not be used to enhance defendant’s punishment because it was more than 10 years old. We agree with Justice Sullivan, for the reasons stated in his dissenting opinion (see, 138 AD2d 298, 299-300) that the "sentence” is the sentence imposed as a part of the final judgment on June 9,1980.

Before concluding, certain matters in the dissent must be addressed.

First, it is necessary to correct some factual inaccuracies.

The dissent, noting the earlier efforts to influence Wallace to leave the jurisdiction, assumes that the bribery was a continuing crime extending from November 8 to November 21. It then contends that the bribery was a crime under investigation and a crime for which defendant had sought the assistance of counsel. Evidence of the earlier contacts between defendant and Wallace were important for they gave the police a valid independent basis for investigating possible bribery but the fact remains that defendant was not charged with continuing crimes occurring over a two-week span from November 8 to November 21 but with two counts of bribery, both occurring on November 21, 1985, and both established by the tape-recording of his telephone conversation with Wallace on that date. Moreover, the tape did not contain "admissions” of a previous crime committed by defendant, as the dissent would have it, it recorded the crimes themselves. Thus, notwithstanding the comments of Saslaw quoted in the dissent, defendant was not prosecuted for a "continuing crime” or a "crime in progress” at the time he hired counsel and the trial court did not find he had been.

Continuing its argument of a crime in progress, the dissent would hold that inasmuch as the police knew of defendant’s earlier misconduct, they were required to halt their investigation, rather than go forward with it, because the misconduct was encompassed within the broad scope of defendant’s right to counsel. The Attorney-General instituted this investigation at the request of the Commissioner of Taxation and Finance to inquire solely into allegations of tax irregularities and defendant obtained counsel to assist him after a subpoena had been issued on November 19 seeking his records dealing with that investigation. Whether defendant’s conduct on November 8 constituted bribery or not, defendant was not charged as a result of it, it did not make up any part of the offenses contained in the indictment and he had not retained counsel in connection with it.

Finally, it should be understood that the call which contained the bribes was placed by defendant and resulted from instructions defendant gave Wallace to "keep in touch”, not from instructions the police or the Attorney-General gave him to call defendant.

Second, it is necessary to consider some matters of law, specifically, what this court held in People v Skinner (52 NY2d 24, supra). Our precise ruling was that an individual who is represented on a matter under investigation may not be interrogated on that matter, even in a noncustodial setting, in the absence of counsel. We did not, as the dissent implies, extend the right of counsel beyond the specific matter for which counsel was retained and not a single decision of this or any other court which does so hold is cited to support that contention.

As to the correct interpretation of People v Sanders (56 NY2d 51, supra), the dissent finds it necessary, because it views defendant’s conduct as one continuing crime, to construe our holding in that case as resting on a finding that the crime was completed. Whether the crime was completed or not, however, was irrelevant to the decision in Sanders. The evidence was suppressed there because it related to a crime on which defendant was represented.

Finally, the dissent is concerned that the majority has taken an "errant footstep” and diluted the broad right to counsel previously recognized by this court. On the contrary, our decision follows a well-defined path established by earlier precedents and is consistent with the policy considerations underlying them (see, e.g., People v Ferrara, supra; People v Middleton, supra; People v Mealer, 57 NY2d 214, 218; see also, Maine v Moulton, 474 US 159, 180, supra; People v Bongarzone, 69 NY2d 892). The rule asserted by the dissent, on the other hand, would extend People v Rogers (48 NY2d 167, supra) to noncustodial interrogation and hold that once an individual retains counsel he or she may not be dealt with directly on any matter in an absence of counsel. Under this reasoning, the police must suspend normal investigative techniques and give a defendant a preferred position facilitating his commission, planning or solicitation of a new crime, merely because he has counsel during the investigation of his earlier criminality (see, People v Ferrara, supra, at 508). The right to counsel does not extend that far, nor should it.

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion and, as modified, is affirmed.

Bellacosa, J.

(dissenting). The prosecution brazenly violated defendant’s right to counsel in this case. Its conduct in that regard should not be countenanced, especially not by this court, because of the unwavering efficacy we have given to this fundamental constitutional bulwark.

Very simply, the defendant’s bribery of his former business colleague, Wallace, for which defendant stands convicted, was not a "new crime”, legally or factually. The term "new crime” is a legal phrase of art here. It takes on legal significance in this case to qualify as an exception (People v Middleton, 54 NY2d 474) to the otherwise inviolate rule that the prosecution and its agents may not inquire of or gather evidence from a defendant who has, to its conceded knowledge, hired counsel for legal protection against particular prosecutorial pursuit (People v Skinner, 52 NY2d 24). The undisturbed findings of fact from the courts below include: (1) that the crime, which the majority classifies as "new”, was rather a continuing one begun prior to the recording of the critical telephone conversation between defendant and his former colleague, who by then was a cooperating police agent; (2) that the Attorney-General was investigating that very crime, seeking to get concrete evidence of its commission in order to prosecute; and (3) that the Attorney-General was informed that defense counsel had been retained for the very investigation against defendant, which already included a formal Grand Jury subpoena to defendant for his business records.

The facts are as essentially set forth in the majority opinion, but I emphasize and encapsulate specific features as bearing on the counsel deprivation issue, which is the only point on which I disagree with the majority. I conclude that the recorded telephone conversation, containing admissions by defendant to his former colleague working on behalf of the Attorney-General, should be suppressed as acquired directly and intentionally in violation of defendant’s New York constitutional counsel rights.

In 1985, the Attorney-General’s office commenced an investigation into allegations that The Mine Shaft, a New York City social club, failed to pay taxes. On November 13, Walter Wallace, manager of The Mine Shaft, contacted the Attorney-General’s office to discuss the investigation. Wallace told an Assistant Attorney-General of a November 8 meeting with defendant Bell and his codefendants Dobson and Caravello, the owners and operators of the club, during which Bell told Wallace to take a vacation. Wallace was given $2,000 and told to keep in touch and that he would be taken care of. After meeting with the Assistant Attorney-General, Wallace left for Ohio.

On November 19, subpoenas were served on defendant Bell and Caravello calling for the production of the records of The Mine Shaft.

The next morning, November 20, Bell’s attorney contacted the Attorney-General’s office to inform the prosecution that he had been retained by Bell in connection with the Grand Jury investigation. Assistant Attorney-General Saslaw testified at the trial with respect to this critical development as follows:

"First of all, it wasn’t a legal problem I was not aware of and I didn’t consider it to be a significant problem. I did consider that there was — that at that particular point, as to the investigation of sales taxes that Mr. Bell was represented by counsel and that no further interviews of Mr. Bell by the office or by agents of the office could take place
* * *
"At that point — assuming what Mr. Wallace was saying was true indicated that a crime might be in the process of being committed.” (Record on app, at A-361, A-363 [emphasis added].)

Later that day, an investigator from the Attorney-General’s office met with Wallace in Ohio and Wallace signed a cooperation agreement. During the evening of November 20, Wallace, at the direction of the Attorney-General’s investigator, placed several phone calls to New York City. Two of the calls were made to Caravello. During these conversations with Caravello, Wallace indicated a need for more money and further instructions as to how long he should stay away. He gave Caravello a phone number where he could be reached the next day. On the afternoon of November 21, defendant Bell, having been told that Wallace was waiting for further instructions, placed a telephone call from New York to Wallace in Ohio. The conversation, monitored and recorded by Wallace for the prosecution, included Bell telling Wallace what to say if he were questioned by the authorities about the operation of The Mine Shaft. Bell also repeated to Wallace earlier "advice” to stay away for awhile and again that he would be taken care of.

The precedents of this court instruct that when a person not in custody has obtained counsel on a matter under investigation and the police have knowledge of such representation, the target may not be questioned about the subject matter of the investigation in the absence of counsel (People v Skinner, 52 NY2d 24, supra). He has, after all, unequivocally invoked his guaranteed protection of counsel for dealing with the authorities on his behalf and they, in turn, are legally sealed off from dealing with him other than through his counsel. To be sure, we have carved out a policy exception that this right to counsel is not violated when the otherwise forbidden communications concern a "new crime” (People v Middleton, 54 NY2d 474, supra; People v Ferrara, 54 NY2d 498, 508).

In People v Mealer (57 NY2d 214, cert denied 460 US 1024), we went so far as to apply the "new crime” exception to a new crime in progress. In Mealer, defendant was indicted for murder and incarcerated while awaiting trial. His right to counsel on the murder charge had attached. While imprisoned, defendant arranged to meet with a prosecution witness in an effort to get the witness to alter his testimony. The witness informed the police and was instructed to "play along” if offered a bribe. A bribe was offered, and in his subsequent trial for bribery, defendant moved to suppress his statements on the ground that he could not be interrogated in the absence of counsel. We held that there was no violation because the police were "investigating a new crime in progress”.

The instant case must be approached from the opposite end of Mealer (supra). Here, although the bribery scheme was "in progress”, it was not a "new crime”. It was the crime. It had been in progress and was already part of the Attorney-General’s investigation at the time at which defendant’s right to counsel had attached.

The sole issue on which I thus depart from the majority is whether the bribing of Wallace by Bell can be considered a new crime within the exception precedents of this State’s revered right to counsel protections. I conclude it cannot and should not possibly be so here.

The trial court specifically found that by the time of the recorded conversation between Bell and Wallace, the defendant’s bribery scheme was in fact the subject of the Attorney-General’s concerted investigation. As if that were not enough, there is an undisturbed, prosecutorially conceded, fact finding that Bell’s attorney informed the Attorney-General prior to the arranged, recorded conversation that Bell had retained him with respect to the Grand Jury investigation. We have no power or reason to dispute or contradict these dispositive facts. Thus, defendant Bell’s right to counsel had attached to a past or, at the very least, to an ongoing crime of bribery — not a new crime as in People v Middleton (54 NY2d 474, supra) or a new ongoing one as in People v Mealer (57 NY2d 214, cert denied 460 US 1024, supra).

Thus, this case does not fit into either category of "new crime” exceptions to the Skinner case. Furthermore, People v Sanders (56 NY2d 51) is completely inapplicable, not for the reason stated by the majority (majority opn, at 162) but because it pertains to an already completed crime.

The prosecution understandably tries to put the best face on the entire fact picture relevant to the counsel violation issue. It choreographs the bribe charge as an isolated matter occurring only on November 21 when, in fact, the bribe effort on that day was a replication of an endeavor between the parties going back to November 8. However convenient and successful that prosecutorial strategy may be, it cannot in the end obscure the realistic assessment of what was really perpetrated here: the purposeful evasion of defendant’s counsel right by the prosecutor and by its acquired agent, Wallace.

Moreover, the majority wrongly lays at the doorstep of my analysis a consequential immunity from prosecution. The "immunity”, such as it is, (1) is not against prosecution for bribery, but against the use of illegally acquired evidence snared directly from the defendant himself after he has interposed counsel of his choice between himself and the forces of the government in a targeted investigation; and (2) derives not from my opinion but from the Constitution itself and its implementing mechanism, the exclusionary rule, a protection in our adversarial system which guarantees the defendant protection by an attorney from being pursued and prosecuted with evidence acquired from himself after the attorney has been secured. Finally, the counsel protection rule does not require a "halt” to a legitimate investigation; it bars the prosecution from inquisitorially pursuing, actively instigating, and proving its case out of the defendant’s own counsel-protected mouth, which is hardly a novel concept under our law.

The flagrancy of the prosecution’s evasion of defendant’s counsel right is proven out of his mouth in testimony at trial —he subjectively and cavalierly "did not consider” the interposition of defense counsel "to be a significant problem”. It escapes me why, in view of our court’s proud history of undeviating allegiance to this critical area of constitutional protection, the majority should now extend the "new crime” exception and bestow its imprimatur on the prosecution’s guileful evasion of this defendant’s constitutional counsel protection.

The "new crime” exception applied here in any event envelopes the principle. Harkening to the lessons expressed in People v Hobson (39 NY2d 479, 485-488) dealing directly with deviations from this State’s right to counsel protections and precedents, I conclude with a rhetorical query: Might this case be another "errant footprint” like Robles, Lopez and Wooden (id., at 488), which will require course correction in some future case, as we forthrightly had to do in Hobson itself? That, however, will not restore the lost right to the present defendant or to anyone else who will be similarly deprived by application of the precedent made in his case.

I would reverse on the defendant’s appeal, grant suppression and remit for such further proceedings as may be appropriate.

Chief Judge Wachtler and Judges Kaye, Alexander and Hancock, Jr., concur with Judge Simons; Judge Bellacosa dissents and votes to reverse on defendant’s appeal in a separate opinion; Judge Titone taking no part.

Order modified by reinstating the sentence and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Specifically, defendant was convicted of two counts of bribing a witness, 15 counts of failure to file New York State sales tax returns in violation of Tax Law § 1145 former (b), four counts of failure to file New York City General Corporation Tax returns in violation of Administrative Code of the City of New York § R46-5.0, two counts of serving liquor without a license in violation of Alcoholic Beverage Control Law § 130 (3), and one count of conspiracy to obstruct governmental administration.

      . Formerly the statute did not encompass acts intended to influence a witness to leave the jurisdiction (see, People v Maynard, 151 App Div 790, 794). The present formulation was enacted to cover such conduct (see, Staff Notes of Temporary State Commission on Revision of Penal Law and Criminal Code, Proposed New York Penal Law, 1964 McKinney’s Spec Pamph, at 377).


source: Caselaw Access Project

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

license: Public Domain

text:
    The People of the State of New York, Respondent, v Julio Luna, Appellant.
    Argued January 5, 1989;
    decided February 21, 1989

      POINTS OF COUNSEL

      Carol A. Zeldin and Philip L. Weinstein for appellant.
    Appellant’s right to be free from unreasonable searches and seizures was violated when a customs officer frisked him based on nothing more than that he was a nervous traveler from Ecuador. (Terry v Ohio, 392 US 1; United States v Montoya de Hernandez, 473 US 531; United States v Brignoni-Ponce, 422 US 873; United States v Ramsey, 431 US 606; People v Dworkin, 30 NY2d 706; Carroll v United States, 267 US 132; United States v Sanders, 663 F2d 1; United States v Vega-Barvo, 729 F2d 1341; United States v Des Jardins, 747 F2d 499; People v Materon, 107 AD2d 408.)

      John J. Santucci, District Attorney (Ernest Burstein of counsel), for respondent.
    Defendant was the subject of a reasonable border search and, therefore, his right to be free from unreasonable searches and seizures was not violated. (United States v Ramsey, 431 US 606; People v Materon, 107 AD2d 408; People v Van Horn, 76 AD2d 378; United States v Mabie, 580 F Supp 1382; Almeida-Sanchez v United States, 413 US 266; United States v Luc-Thirion, 501 F Supp 875; United States v Nieves, 609 F2d 642; United States v Carter, 592 F2d 402; United States v Rivera-Marquez, 519 F2d 1227; United States v Yee Ngee How, 105 F Supp 517; United States v Vega-Barvo, 729 F2d 1341.)
   OPINION OF THE COURT

Hancock, Jr., J.

This appeal requires us to determine the level of suspicion, if any, necessary under the Federal and State Constitutions to justify singling out an entrant at the national border for a pat-down search. Defendant contends that the same "reasonable suspicion” required for stops and frisks in domestic situations should apply (see, Terry v Ohio, 392 US 1, 30; People v La Pene, 40 NY2d 210, 223). The People argue that pat downs are merely incidental to routine border searches for which no justification is required other than the fact that they occur at the border (see, United States v Ramsey, 431 US 606, 619). We agree with neither position. However, for the reasons which follow, we do hold that the pat-down search in this case was constitutionally reasonable and, consequently, that the evidence seized was admissible.

At 3:15 a.m. on April 14, 1985, Customs Inspector Brian Quinn was processing passengers from an international flight from Ecuador which had just arrived at the American Airlines Terminal at Kennedy Airport in New York City. Defendant, a 48-year-old Ecuadorian apparently traveling alone, approached the inspection station and presented his passport and luggage. Quinn questioned defendant about his trip but, because defendant did not appear to understand English, the two communicated through hand gestures.

Quinn thought defendant appeared "agitated” and "nervous”. His hands were shaking and his face seemed contorted; he kept shifting from foot to foot and was glancing around the room as if to avoid eye contact. Defendant did not interfere with the inspection and there seemed nothing unusual about his passport or the particular items in his single suitcase. But defendant’s appearance and behavior, as well as the fact that he was traveling alone from a "high-profile” country, led Quinn, a seven-year veteran of the customs service, to suspect that defendant was a drug courier.

Quinn directed defendant to a nearby room where he patted him down. When Quinn discovered a bulge around each of defendant’s ankles, he removed two packets of cocaine and placed defendant under arrest. Defendant was subsequently charged with criminal possession of a controlled substance in the first degree.

At trial, defendant moved to suppress the evidence on the ground that Officer Quinn did not have the requisite "reasonable suspicion” to justify a stop and frisk. The hearing court denied the motion finding that defendant’s origination from a "drug export” country and his nervous appearance supported a "minimal” level of suspicion sufficient for a pat down at the border. Subsequently, defendant was convicted on his guilty plea to the lesser charge of criminal possession of a controlled substance in the second degree. On appeal, the Appellate Division affirmed, citing People v Materon (107 AD2d 408) and concluding that the customs officer possessed "articulable suspicion” justifying the pat down. We now affirm.

It is settled that a routine inspection of luggage and other belongings at the national border, conducted without a warrant or even probable cause, does not violate the constitutional proscriptions against unreasonable searches and seizures (see, United States v Ramsey, supra, at 616; People v Dworkin, 30 NY2d 706). The paramount interests in national security and preventing contraband from entering the country render such routine inspections "reasonable” solely because they involve persons or items crossing our borders (see, United States v Ramsey, supra, at 616; United States v Thirty-Seven Photographs, 402 US 363, 376; Carroll v United States, 267 US 132, 153-154). At the border, an entering individual’s constitutionally protected privacy is necessarily diminished, and the balancing of rights and interests is struck more favorably to governmental concerns (see, United States v Montoya de Hernandez, 473 US 531, 539-540; Carroll v United States, supra, at 154).

Thus, the brief detention of incomers and the inspection of their luggage and other property is constitutionally permissible at border crossings without any suspicion of criminal activity (see, United States v Montoya de Hernandez, supra, at 537-538; United States v Thirty-Seven Photographs, supra, at 376; People v Dworkin, supra); other privacy intrusions of greater degree require some justification, but less than is required in the interior (see, United States v Montoya de Hernandez, supra, at 538; United States v Ramsey, supra, at 619; United States v 12 200-Ft. Reels of Film, 413 US 123, 125). Indeed, under the Terry standard of "reasonable suspicion”, the Supreme Court in Montoya de Hernandez approved a prolonged and humiliating detention of an incomer who was held by customs agents to determine, through her natural bodily processes, whether or not she was carrying narcotics internally (see, United States v Montoya de Hernandez, supra, at 544). Applying the Terry standard, the Supreme Court found the detention justified because the customs officials had a " 'particularized and objective basis for suspecting the particular person’ of alimentary canal smuggling” (id., at 541-542, quoting United States v Cortez, 449 US 411, 417, 418, citing Terry v Ohio, 392 US, at 21, n 18, supra).

Although the defendant in Montoya de Hernandez was subject to a pat down, strip search, and rectal examination during her detention, the validity of those searches was not in issue. Significantly, the Supreme Court noted that it was taking "no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches” (id., at 541, n 4 [emphasis added]); the court did not even mention pat downs. Hence, it remains unclear whether the Supreme Court considers pat downs part of the "[r]outine searches of the persons and effects”, which "are not subject to any” justification (id., at 538), or considers them a form of "limited intrusion” beyond the "routine customs search and inspection”, which must rest on some level of suspicion (id., at 541). Nor is it clear whether it would make a difference if an individual is singled out from among others for the pat down.

While we, too, have yet to address the requirements for border pat downs, other courts, both New York and Federal have done so. Their opinions differ, however, as to the quantum of suspicion, if any, that is required.

The most prevalent view appears to be that "no suspicion” is required — i.e., that the relatively minor intrusion of a pat down needs no more justification than that the person is entering the country (United States v Braks, 842 F2d 509, 514 [1st Cir]; see also, United States v Sandler, 644 F2d 1163, 1167 [5th Cir]; United States v Oyekan, 786 F2d 832, 835 [8th Cir]; United States v Vega-Barvo, 729 F2d 1341, 1345 [11th Cir]; United States v Mabie, 580 F Supp 1382 [ED NY]). The rationale advanced in support of this position is that anything "less intrusive than a strip search” is routine at the border (United States v Kallevig, 534 F2d 411, 413, n 4 [1st Cir]), that "a pat-down or frisk fall within this category” (United States v Vega-Barvo, supra, at 1345; see also, United States v Nieves, 609 F2d 642, 645-646 [2d Cir]), and that a pat down involves "little indignity or embarrassment * * * it is no worse than having a stranger rummage through one’s luggage, a practice which is clearly acceptable” (United States v Sandler, supra, at 1167 [5th Cir]). There are other views.

Judging a pat down or frisk to be somewhat more intrusive than being "required to disclose the contents of his or her baggage” (United States v Des Jardins, 747 F2d 499, 504 [9th Cir]), a number of courts have held that customs officers must have some suspicion of criminal activity before proceeding. Denominating the level of necessary suspicion as simply "some” (United States v Dorsey, 641 F2d 1213, 1218 [7th Cir]), "mere” (United States v Grayson, 597 F2d 1225, 1228 [9th Cir]), "minimal” (United States v Couch, 688 F2d 599, 604 [9th Cir]), or "articulable” (People v Materon, 107 AD2d 408, 413, supra; see also, People v Rivera, 143 AD2d 783), these courts have reasoned that a pat down constitutes a significant interference with personal privacy and dignity. Though certainly not as invasive or degrading as a strip search, cavity search, or prolonged involuntary detention, a pat down is, nonetheless, according to this view, an intrusion on one’s privacy sufficiently greater than that involved in a routine inspection of luggage to require some minimal level of particularized suspicion. We agree.

Although the usual restrictions on searches and seizures are relaxed at the border, individuals presenting themselves for entry into this country are not entirely without constitutional protection (United States v Montoya de Hernandez, supra, at 539; see also, id., at 560 [Brennan, J., dissenting]; United States v Brignoni-Ponce, 422 US 873, 881; United States v Sanders, 663 F2d 1, 3; People v Materon, supra, at 413). While routine detentions, inspections, and questioning at the border may be conducted without any particularized justification, constitutionally protected privacy is not so diminished there that an individual should not be free from being singled out for an extended detention and full body pat down at the whim of a customs officer. There must be some justification for nonroutine investigations involving additional "intrusions on privacy and indignities” (United States v Dorsey, supra, at 1218; see, Terry v Ohio, supra, at 17 [a frisk is a "serious intrusion upon the sanctity of the person * * * and not to be undertaken lightly”]).

The reasonableness of a border intrusion must be evaluated —with full consideration of the government’s heightened interests — by weighing the degree of that intrusion against the level of suspicion sought to justify it (see, United States v Asbury, 586 F2d 973, 976; United States v Brown, 499 F2d 829, 833, cert denied 419 US 1047; United States v Guadalupe-Garza, 421 F2d 876, 878). While singling out an individual for a "stop and frisk” is not comparable to the kind of detention and search involved in Montoya de Hernandez which, the Supreme Court held, may be justified by "reasonable suspicion” (473 US, at 541, supra), it certainly cannot be dismissed as a mere trifling intrusion (see, United States v Dorsey, supra, at 1218; United States v Grayson, 597 F2d 1225, 1228). One cannot equate the invasion of personal privacy in taking an incomer aside and subjecting that person to the physical probing of a full body frisk with the intrusion incident to a normal border luggage inspection. Hence, albeit a limited intrusion, we believe that a pat down at the border must be justified by some level of suspicion. In light of the strong government interests at the border, however, that level of suspicion need not be as objectively clear as that usually required for a stop and frisk.

As other courts which have struggled with this question have found, the level of suspicion justifying a border pat down is not susceptible to facile or precise formulation. Regardless of the label employed, however, we believe that the suspicion need only be real and based upon legitimate factors. The suspicion giving rise to the pat down must not be a guise for harassment or caprice (see, United States v Ramos, 645 F2d 318; United States v Nieves, 609 F2d 642, 648, n 10, supra); and, of course, it must not be based on factors that are either improper or arbitrary, such as race or gender (see, United States v Asbury, 586 F2d 973, 976-977, supra; United States v Nieves, supra, at 647, n 9). But, in view of the special concerns at the border, more than that ought not to be required.

For these reasons, we believe that under the Fourth Amendment of the Federal Constitution, a pat-down search of an entrant singled out at the border is justified if, but only if, it is supported by some such suspicion. Moreover, we decline defendant’s invitation to hold that a higher level of suspicion for this kind of search is required under the State Constitution. Hence, evidence seized as a result of a pat down, conducted by customs officers on the basis of such suspicion, may be admitted against the incomer in a criminal prosecution in the courts of this State (cf., People v Griminger, 71 NY2d 635, 641; People v Ridgeway, 64 NY2d 952).

Applying the foregoing principles to the facts of this case, we have little difficulty in concluding, as did the courts below, that the pat down which led to the seizure of cocaine from defendant’s person was justified. Defendant had just arrived alone, carrying a single suitcase, on a flight originating from a distant country believed to be a major source of illegal narcotics. His behavior was agitated and he appeared nervous. Viewed cumulatively, these circumstances were sufficient to create in the mind of an experienced customs inspector a bona fide suspicion of criminal activity, thereby justifying the limited intrusion and indignity to defendant of being singled out for a pat-down search.

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

Bellacosa, J.

(concurring). I agree that there should be an affirmance of the conviction. No Fourth Amendment right of the defendant, an Ecuadorian drug courier, was violated by the pat-down search conducted by a veteran customs officer at JFK Airport upon defendant’s arrival for entry into the United States transporting two packets of cocaine strapped to his ankles.

My separate view concerns the majority’s rationale for deciding this case — the adoption of a “some suspicion” legal standard to test the legality of the customs officer’s action. The policy struggle to fashion an articulable test by which customs agents and law enforcement officials can regulate their actions, and by which courts can judge those actions, is concededly difficult and delicate. Important personal privacy protections afforded by our Fourth Amendment may be involved.

The facts of this case and the state of the law, however, lead me to conclude that the struggle in this area is largely unnecessary. The solution is much simpler than appears. Constitutional and pragmatic analysis clearly favors the view that a pat-down search of the kind used in this vein of cases is valid without a new minimal level of suspicion being required. This is one of those rare categories of law enforcement action —protecting the vast borders of the United States — which lie outside the equally vast protective reaches of the Fourth Amendment (United States v Montoya de Hernandez, 473 US 531, 538; United States v Ramsey, 431 US 606, 619-621; see also, Almeida-Sanchez v United States, 413 US 266, 272). Our own guiding precedent states plainly: "The mere crossing of the border is a sufficient basis for a search” (People v Dworkin, 30 NY2d 706, 708).

Despite these firm principles and predicates, the majority proceeds to reject the very same rule which it concedes is the prevalent one today among the courts of this Nation (majority opn, at 177, and cases cited there) and adopts a new "some level of suspicion” test. This new low-level suspicion standard dilutes the potency of the "probable cause” and "reasonable suspicion” standards under the Fourth Amendment because it introduces yet another "subtle verbal gradation[ ] [which] may obscure rather than elucidate the meaning of the provision in question” (United States v Montoya de Hernandez, 473 US 531, 541, supra). If luggage may be minutely probed and pored over by customs officials as standard operating procedure without any level of suspicion — and that is the law — then I see nothing illegal in applying the no suspicion rule with respect to border-entry pat downs which are, in my view, no more intrusive as a matter of degree or of kind.

This new verbal placebo is also manifestly susceptible to certain compliance or easy evasion and, thus, is functionally no standard at all. It may seem viscerally distasteful to swallow a standardless border-entry pat-down search, but such forthrightness, when constitutional and practical considerations warrant, is the better and preferred course in my view so long as a choice is available to us.

The authorities relied upon by the majority for the slim standard it adopts may even be read as more consonant with the other prevalent set of authorities and with the rule preference I urge. Indeed, the First Circuit nicely sums up the situation: "[T]he several apparently differing standards that other courts have applied to routine border searches simply represent alternative formulations of the 'no suspicion’ standard that have arisen in an effort to articulate what actually is assumed to occur” (United States v Braks, 842 F2d 509, 515 [1st Cir] [emphasis added]).

Let me quickly note that the well-established test I propose here would not justify pat downs predicated on arbitrary and illegal factors like race or gender, abhorrent to our public policy and to our sense of fair and equal justice. The well-stated formulation of the First Circuit does not erect unreasonable barriers against entry through our borders or unreasonable intrusions on personal privacy, and adequately circumscribes the actions of customs officials when it allows such pat-down searches in "a reasonable manner, based on subjective suspicion alone, or even on a random basis” (United States v Braks, 842 F2d 509, 514, supra [emphasis added], quoting, United States v Stornini, 443 F2d 833, 835 [1st Cir], cert denied 404 US 861).

In sum, this case should not be decided on the relative opaqueness of the Supreme Court’s present view of pat-down border searches (majority opn, at 177) or, for that matter, on any prediction of its future view. I believe the great weight of authority presently available as a guide to us from that court, from this court, and from most courts which have addressed the issue, conclusively establishes that this type pat-down border search is outside the Fourth Amendment and thus requires no new "some suspicion” standard to justify it.

We would do better to affirm in this case for the reasons developed in the prevalent authorities.

Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur with Judge Hancock, Jr.; Judge Bellacosa concurs in result in a separate opinion; Judge Titone taking no part.

Order affirmed.

      . The court also held that the customs inspection station at Kennedy International Airport was the functional equivalent of the national border. This holding is not in dispute (see, Almeida-Sanchez v United States, 413 US 266, 273).

      . In this regard, the dissenting opinion of Justice Brennan refers to "[travelers at the national border [being] routinely subjected to questioning, patdowns, and thorough searches of their belongings [which] do not violate the Fourth Amendment [emphasis added]”. Citing Terry v Ohio (392 US 1), however, Justice Brennan’s opinion then states that individuals "may be singled out on 'reasonable suspicion’ and briefly held for further investigation” (United States v Montoya de Hernandez, 473 US 531, 551 [emphasis added]).

      . In Ramos, the court upheld a border pat down on the ground that it represented the "subjective response of a customs inspector who concluded in good faith, and absent a whisper of improper motive, that a secondary examination was in order” (645 F2d 318, 322 [emphasis added]). Similarly in Nieves, the court noted that the agents who conducted the pat down and detention were neither "harassing], intimidat[ing] or humiliating] the [suspect] in any way” (609 F2d 642, 648, n 10).

      . In Asbury, the court listed 12 factors that might be taken into account in determining whether an intrusion at the border was justified. Among these are: excessive nervousness, unusual conduct, an itinerary suggestive of wrongdoing, inadequate luggage, evasive or contradictory answers, and the discovery of incriminatory matter during the routine inspection. In Nieves, the same court held that an "investigative stop” at the border must be supported by " 'rational inferences’ ” drawn from the facts (609 F2d, at 647, n 9 [emphasis added], quoting Terry v Ohio, 392 US 1, 21).