text:
    The People of the State of New York, Respondent, v Julio Marrero, Appellant.
    Argued January 13, 1987;
    decided April 2, 1987

      POINTS OF COUNSEL

      Andrew C. Fine, Katherine Preece and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Robert M. Raciti and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

The defense of mistake of law (Penal Law § 15.20 [2] [a], [d]) is not available to a Federal corrections officer arrested in a Manhattan social club for possession of a loaded .38 caliber automatic pistol who claimed he mistakenly believed he was entitled, pursuant to the interplay of CPL 2.10, 1.20 and Penal Law § 265.20, to carry a handgun without a permit as a peace officer.

In a prior phase of this criminal proceeding, defendant’s motion to dismiss the indictment upon which he now stands convicted was granted (94 Misc 2d 367); then it was reversed and the indictment reinstated by a divided Appellate Division (71 AD2d 346); next, defendant allowed an appeal from that order, certified to the Court of Appeals, to lapse and be dismissed (Oct. 22, 1980). Thus, review of that aspect of the case is precluded (People v Corley, 67 NY2d 105).

On the trial of the case, the court rejected the defendant’s argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from criminal liability under New York’s mistake of law statute (Penal Law § 15.20). The court refused to charge the jury on this issue and defendant was convicted of criminal possession of a weapon in the third degree. We affirm the Appellate Division order upholding the conviction.

Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.

The starting point for our analysis is the New York mistake statute as an outgrowth of the dogmatic common-law maxim that ignorance of the law is no excuse. The central issue is whether defendant’s personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.

The common-law rule on mistake of law was clearly articulated in Gardner v People (62 NY 299). In Gardner, the defendants misread a statute and mistakenly believed that their conduct was legal. The court insisted, however, that the "mistake of law” did not relieve the defendants of criminal liability. The statute at issue, relating to the removal of election officers, required that prior to removal, written notice must be given to the officer sought to be removed. The statute provided one exception to the notice requirement: "removal * * * shall only be made after notice in writing * * * unless made while the inspector is actually on duty on a day of registration, revision of registration, or election, and for improper conduct” (L 1872, ch 675, § 13). The defendants construed the statute to mean that an election officer could be removed without notice for improper conduct at any time. The court ruled that removal without notice could only occur for improper conduct on a day of registration, revision of registration or election.

In ruling that the defendant’s misinterpretation of the statute was no defense, the court said: "The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. 'The rule on the subject appears to be, that in acts mala in se, the intent governs, but in those mala prohibita, the only inquiry is, has the law been violated?’ (3 Den., 403). The act prohibited must be intentionally done. A mistake as to the fact of doing the act will excuse the party, but if the act is intentionally done, the statute declares it a misdemeanor, irrespective of the motive or intent * * * The evidence offered [showed] that the defendants were of [the] opinion that the statute did not require notice to be given before removal. This opinion, if entertained in good faith, mitigated the character of the act, but was not a defence [sic]” (Gardner v People, 62 NY 299, 304, supra). This is to be contrasted with People v Weiss (276 NY 384) where, in a kidnapping case, the trial court precluded testimony that the defendants acted with the honest belief that seizing and confining the child was done with "authority of law”. We held it was error to exclude such testimony since a good-faith belief in the legality of the conduct would negate an express and necessary element of the crime of kidnapping, i.e., intent, without authority of law, to confine or imprison another. Subject to the mistake statute, the instant case, of course, falls within the Gardner rationale because the weapons possession statute violated by this defendant imposes liability irrespective of one’s intent.

The desirability of the Gardner-type outcome, which was to encourage the societal benefit of individuals’ knowledge of and respect for the law, is underscored by Justice Holmes’ statement: "It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales” (Holmes, The Common Law, at 48 [1881]).

The revisors of New York’s Penal Law intended no fundamental departure from this common-law rule in Penal Law § 15.20, which provides in pertinent part:

"§ 15.20. Effect of ignorance or mistake upon liability.
* * *
"2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment * * * (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”

This section was added to the Penal Law as part of the wholesale revision of the Penal Law in 1965 (L 1965, ch 1030). When this provision was first proposed, commentators viewed the new language as codifying "the established common law maxim on mistake of law, while at the same time recognizing a defense when the erroneous belief is founded upon an ‘official statement of the law’ ” (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [1964]).

The defendant claims as a first prong of his defense that he is entitled to raise the defense of mistake of law under section 15.20 (2) (a) because his mistaken belief that his conduct was legal was founded upon an official statement of the law contained in the statute itself. Defendant argues that his mistaken interpretation of the statute was reasonable in view of the alleged ambiguous wording of the peace officer exemption statute, and that his "reasonable” interpretation of an "official statement” is enough to satisfy the requirements of subdivision (2) (a). However, the whole thrust of this exceptional exculpatory concept, in derogation of the traditional and common-law principle, was intended to be a very narrow escape valve. Application in this case would invert that thrust and make mistake of law a generally applied or available defense instead of an unusual exception which the very opening words of the mistake statute make so clear, i.e., "A person is not relieved of criminal liability for conduct * * * unless” (Penal Law § 15.20). The momentarily enticing argument by defendant that his view of the statute would only allow a defendant to get the issue generally before a jury further supports the contrary view because that consequence is precisely what would give the defense the unintended broad practical application.

The prosecution further counters defendant’s argument by asserting that one cannot claim the protection of mistake of law under section 15.20 (2) (a) simply by misconstruing the meaning of a statute but must instead establish that the statute relied on actually permitted the conduct in question and was only later found to be erroneous. To buttress that argument, the People analogize New York’s official statement defense to the approach taken by the Model Penal Code (MPC). Section 2.04 of the MPC provides:

"Section 2.04. Ignorance or Mistake.
"(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment” (emphasis added).

Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause, it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision (see, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 15.20, at 36; LaFave and Scott, Substantive Criminal Law § 5.1, n 95; Drafting a New Penal Law of New York: An Interview with Richard Denzer, 18 Buffalo L Rev 251, 252 [1968-1969]). The proposition that New York adopted the MPC general approach finds additional support in the comments to section 2.04 (see, Model Penal Code § 2.04, comment 3, n 33, at 279 [Official Draft and Revised Comments 1985]). It is not without significance that no one for over 20 years of this statute’s existence has made a point of arguing or noting or holding that the difference in wording has the broad and dramatically sweeping interpretation which is now proposed. Such a turnabout would surely not have been accidentally produced or allowed. New York’s drafters may even have concluded that the extra clause in the MPC was mere surplus-age in view of the clear exceptionability of the mistake authorization in the first instance. Moreover, adding specified conditions by judicial construction, as the dissenters would have to do to make the mistake exception applicable in circumstances such as these, would be the sheerest form of judicial legislation.

It was early recognized that the "official statement” mistake of law defense was a statutory protection against prosecution based on reliance of a statute that did in fact authorize certain conduct. "It seems obvious that society must rely on some statement of the law, and that conduct which is in fact 'authorized’ * * * should not be subsequently condemned. The threat of punishment under these circumstances can have no deterrent effect unless the actor doubts the validity of the official pronouncement — a questioning of authority that is itself undesirable” (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [emphasis added]). While providing a narrow escape hatch, the idea was simultaneously to encourage the public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. If later the statute was invalidated, one who mistakenly acted in reliance on the authorizing statute would be relieved of criminal liability. That makes sense and is fair. To go further does not make sense and would create a legal chaos based on individual selectivity.

In the case before us, the underlying statute never in fact authorized the defendant’s conduct; the defendant only thought that the statutory exemptions permitted his conduct when, in fact, the primary statute clearly forbade his conduct. Moreover, by adjudication of the final court to speak on the subject in this very case, it turned out that even the exemption statute did not permit this defendant to possess the weapon. It would be ironic at best and an odd perversion at worst for this court now to declare that the same defendant is nevertheless free of criminal responsibility.

The "official statement” component in the mistake of law defense in both paragraphs (a) and (d) adds yet another element of support for our interpretation and holding. Defendant tried to establish a defense under Penal Law § 15.20 (2) (d) as a second prong. But the interpretation of the statute relied upon must be "officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.” We agree with the People that the trial court also properly rejected the defense under Penal Law § 15.20 (2) (d) since none of the interpretations which defendant proffered meets the requirements of the statute. The fact that there are various complementing exceptions to section 15.20, none of which defendant could bring himself under, further emphasizes the correctness of our view which decides this case under particular statutes with appropriate precedential awareness.

It must also be emphasized that, while our construction of Penal Law § 15.20 provides for narrow application of the mistake of law defense, it does not, as the dissenters contend, "rule out any defense based on mistake of law.” (See, dissenting opn, at 399-400.) To the contrary, mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later, it is determined that there was a mistake in the law itself.

The modern availability of this defense is based on the theory that where the government has affirmatively, albeit unintentionally, misled an individual as to what may or may not be legally permissible conduct, the individual should not be punished as a result. This is salutary and enlightened and should be firmly supported in appropriate cases. However, it also follows that where, as here, the government is not responsible for the error (for there is none except in the defendant’s own mind), mistake of law should not be available as an excuse (see, Jeffries, Legality, Vagueness and the Construction of Penal Statutes, 71 Va L Rev 189, 208 [1985]).

We recognize that some legal scholars urge that the mistake of law defense should be available more broadly where a defendant misinterprets a potentially ambiguous statute not previously clarified by judicial decision and reasonably believes in good faith that the acts were legal. Professor Perkins, a leading supporter of this view, has said: "[i]f the meaning of a statute is not clear, and has not been judicially determined, one who has acted 'in good faith’ should not be held guilty of crime if his conduct would have been proper had the statute meant what he 'reasonably believed’ it to mean, even if the court should decide later that the proper construction is otherwise.” (Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 45.) In support of this conclusion Professor Perkins cites two cases: State v Cutter (36 NJL 125) and Burns v State (123 Tex Crim 611, 61 SW2d 512). In both these cases mistake of law was viewed as a valid defense to offenses where a specific intent (i.e., willfully, knowingly, etc.) was an element of the crime charged. In Burns, the court recognized mistake of law as a defense to extortion. The statute defining "extortion” made the "willful” doing of the prohibited act an essential ingredient of the offense. The court, holding that mistake of law is a defense only where the mistake negates the specific intent required for conviction, borrowed language from the Cutter case: "In State v Cutter * * * the court said: 'The argument goes upon the legal maxim ignorantia legis neminem excusat. But this rule, in its application to the law of crimes, is subject * * * to certain important exceptions. Where the act done is malum in se, or where the law which has been infringed was settled and plain, the maxim, in its rigor, will be applied; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offence, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied’ ” (Burns v State, 123 Tex Crim, at 613, 61 SW2d, at 513, supra [emphasis added]). Thus, while Professor Perkins states that the defense should be available in cases where the defendant claims mistaken reliance on an ambiguous statute, the cases he cites recognize the defense only where the law was ambiguous and the ignorance or mistake of law negated the requisite intent (see also, People v Weiss, 276 NY 384, supra). In this case, the forbidden act of possessing a weapon is clear and unambiguous, and only by the interplay of a double exemption does defendant seek to escape criminal responsibility, i.e., the peace officer statute and the mistake statute.

We conclude that the better and correctly construed view is that the defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong. Any broader view fosters lawlessness. It has been said in support of our preferred view in relation to other available procedural protections: "A statute * * * which is so indefinite that it 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’ and is unconstitutional. If the court feels that a statute is sufficiently definite to meet this test, it is hard to see why a defense of mistake of law is needed. Such a statute could hardly mislead the defendant into believing that his acts were not criminal, if they do in fact come under its ban * * * [I]f the defense of mistake of law based on indefiniteness is raised, the court is * * * going to require proof * * * that the act was sufficiently definite to guide the conduct of reasonable men. Thus, the need for such a defense is largely supplied by the constitutional guarantee” (Hall and Seligman, Mistake of Law and Mens Rea, 8 U Chi L Rev 641, 667 [1941]).

Strong public policy reasons underlie the legislative mandate and intent which we perceive in rejecting defendant’s construction of New York’s mistake of law defense statute. If defendant’s argument were accepted, the exception would swallow the rule. Mistakes about the law would be encouraged, rather than respect for and adherence to law. There would be an infinite number of mistake of law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are concededly complex. Even more troublesome are the opportunities for wrongminded individuals to contrive in bad faith solely to get an exculpatory notion before the jury. These are not in terrorem arguments disrespectful of appropriate adjudicative procedures; rather, they are the realistic and practical consequences were the dissenters’ views to prevail. Our holding comports with a statutory scheme which was not designed to allow false and diversionary stratagems to be provided for many more cases than the statutes contemplated. This would not serve the ends of justice but rather would serve game playing and evasion from properly imposed criminal responsibility.

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

Hancock, Jr., J.

(dissenting). The rule adopted by the majority prohibiting the defense of mistake of law under Penal Law § 15.20 (2) (a) in the circumstances here is directly contrary to the plain dictates of the statute and a rejection of the jurisprudential reforms and legislative policies underlying its enactment. For these reasons, as more fully explained herein, we cannot agree with this decision.

I

The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20 (2) (a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.

There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness or "choosing freely to do wrong”, our supposed man who has acted innocently and without any intent to do wrong should not be punished (see, United States v Barker, 514 F2d 208, 228-229 [Bazelon, Ch. J., concurring]). Indeed, under some standards of morality he has done no wrong at all (Patterson, Cardozo’s Philosophy of Law, Part II, 88 U Pa L Rev 156, 169-171 [1939-1940]). Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and would not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.

The maxim "ignorantia legis neminem excusat” finds its roots in Medieval law when the "actor’s intent was irrelevant since the law punished the act itself” (United States v Barker, supra, at 228 [Bazelon, Ch. J., concurring]; emphasis in original; see, Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]) and when, for example, the law recognized no difference between an intentional killing and one that was accidental (Ames, Law and Morals, 22 Harv L Rev 97, 98 [1908]). Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law (adding the element of intent [mens rea] and recognizing defenses based on the actor’s mental state — e.g., justification, insanity and intoxication) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian — preferring the interests of society (e.g., in deterring criminal conduct, fostering orderly judicial administration, and preserving the primacy of the rule of law) to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal (see, White, Reliance on Apparent Authority as a Defense to Criminal Prosecution, 77 Colum L Rev 775, 784-789 [1977]; Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 40, 41 [1939]; Ryu and Silving, Error Juris: A Comparative Study, 24 U Chi L Rev 421, 431-434 [1957]; United States v Barker, supra, at 230-232 [Bazelon, Ch. J., concurring]).

Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense (see, e.g., White, op. cit., 77 Colum L Rev 775, 784; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486; Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]). The utilitarian arguments for retaining the rule have been drawn into serious question (see, LaFave and Scott, Substantive Criminal Law § 5.1; Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 U Va L Rev 189, 208, 209 [1985]; White, op. cit, at 785-787; Perkins, op. cit., 88 U Pa L Rev 35, 51-53; United States v Barker, 514 F2d 208, 228-231 [Bazelon, Ch. J., concurring], supra) but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. It is contrary to "the notion that punishment should be conditioned on a showing of subjective moral blameworthiness” (White, op. cit., at 784). This basic objection to the maxim "ignorantia legis neminem excusat” may have had less force in ancient times when most crimes consisted of acts which by their very nature were recognized as evil (malum in se) (id., at 784). In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the "common law fiction that every man is presumed to know the law has become indefensible in fact or logic” (id., at 784; see, Note, Proposed Penal Law of New York, op. cit., at 1486; Ryu and Silving, op. cit., 24 U Chi L Rev 421, 433, 434 [1957]; United States v Barker, supra, at 228-232 [Bazelon, Ch. J., concurring]).

With this background we proceed to a discussion of our disagreement with the majority’s construction of Penal Law § 15.20 (2) (a) and the policy and jurisprudential arguments made in support of that construction. There are two grounds for our dissent: which the Legislature has considered and rejected in its decision to abandon the unqualified common-law rule in favor of permitting a limited mistake of law defense in the circumstances presented here.

(1) that the majority’s construction of Penal Law § 15.20 (2) (a) is directly contrary to the plain wording of the statute, renders the statute ineffective and deprives it of any meaning, and superimposes on the language of the statute a limitation found in the language of Model Penal Code § 2.04 (3) (b) which the Legislature has specifically rejected; and
(2) that the policy and jurisprudential reasons advanced by the majority for its rejection of what appears to be the clear intendment of Penal Law § 15.20 (2) (a) are the very reasons

II

Penal Law § 15.20 (effect of ignorance or mistake upon liability), in pertinent part, provides: "2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment”.

It is fundamental that in interpreting a statute, a court should look first to the particular words of the statute in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 NY2d 8, 15, 16; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 94, 232). Here, there is but one natural and obvious meaning of the statute: that if a defendant can establish that his mistaken belief was "founded upon” his interpretation of "an official statement of the law contained in * * * statute” (Penal Law § 15.20 [2] [a]), he should have a defense. No other natural and obvious meaning has been suggested.

It is difficult to imagine a case more squarely within the wording of Penal Law § 15.20 (2) (a) or one more fitted to what appears clearly to be the intended purpose of the statute than the one before us. For this reason it is helpful to discuss the statute and its apparent intended effect in the light of what defendant contends was his mistaken belief founded on an official statement of the law contained in a statute.

Defendant stands convicted after a jury trial of criminal possession of a weapon in the third degree for carrying a loaded firearm without a license (Penal Law § 265.02). He concedes that he possessed the unlicensed weapon but maintains that he did so under the mistaken assumption that his conduct was permitted by law. Although at the time of his arrest he protested that he was a Federal corrections officer and exempt from prosecution under the statute, defendant was charged with criminal possession of a weapon in the third degree. On defendant’s motion before trial the court dismissed the indictment, holding that he was a peace officer as defined by CPL 2.10 (25) and, therefore, exempted by Penal Law § 265.20 from prosecution under Penal Law § 265.02 (94 Misc 2d 367). The People appealed and the Appellate Division reversed and reinstated the indictment by a 3-2 vote (71 AD2d 346). Defendant’s appeal to this court was dismissed for failure to prosecute and the case proceeded to trial. The trial court rejected defendant’s efforts to establish a defense of mistake of law under Penal Law § 15.20 (2) (a). He was convicted and the Appellate Division has affirmed.

Defendant’s mistaken belief that, as a Federal corrections officer, he could legally carry a loaded weapon without a license was based on the express exemption from criminal liability under Penal Law § 265.02 accorded in Penal Law § 265.20 (a) (1) (a) to "peace officers” as defined in the Criminal Procedure Law and on his reading of the statutory definition for "peace officer” in CPL 2.10 (25) as meaning a correction officer "of any penal correctional institution” (emphasis added), including an institution not operated by New York State. Thus, he concluded erroneously that, as a corrections officer in a Federal prison, he was a "peace officer” and, as such, exempt by the express terms of Penal Law § 265.20 (a) (1) (a). This mistaken belief, based in good faith on the statute defining "peace officer” (CPL 2.10 [25]), is, defendant contends, the precise sort of "mistaken belief * * * founded upon an official statement of the law contained in * * * a statute or other enactment” which gives rise to a mistake of law defense under Penal Law § 15.20 (2) (a). He points out, of course, that when he acted in reliance on his belief he had no way of foreseeing that a court would eventually resolve the question of the statute’s meaning against him and rule that his belief had been mistaken, as three of the five-member panel at the Appellate Division ultimately did in the first appeal (see, People v Marrero, 71 AD2d 346, supra).

The majority, however, has accepted the People’s argument that to have a defense under Penal Law § 15.20 (2) (a) "a defendant must show that the statute permitted his conduct, not merely that he believed it did” (respondent’s brief, at 26 [emphasis added]). Here, of course, defendant cannot show that the statute permitted his conduct. To the contrary, the question has now been decided by the Appellate Division and it is settled that defendant was not exempt under Penal Law § 265.20 (a) (1) (a). Therefore, the argument goes, defendant can have no mistake of law defense. While conceding that reliance on a statutory provision which' is later found to be invalid would constitute a mistake of law defense (see, Model Penal Code § 2.04 [3] [b] [i]), the People’s flat position is that "one’s mistaken reading of a statute, no matter how reasonable or well intentioned, is not a defense” (respondent’s brief, at 27).

Nothing in the statutory language suggests the interpretation urged by the People and adopted by the majority: that Penal Law § 15.20 (2) (a) is available to a defendant not when he has mistakenly read a statute but only when he has correctly read and relied on a statute which is later invalidated (respondent’s brief, at 26). Such a construction contravenes the general rule that penal statutes should be construed against the State and in favor of the accused (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 271) and the Legislature’s specific directive that the revised Penal Law should not be strictly construed but "must be construed according to the fair import of [its] terms to promote justice and effect the objects of the law” (Penal Law § 5.00).

More importantly, the construction leads to an anomaly: only a defendant who is not mistaken about the law when he acts has a mistake of law defense. In other words, a defendant can assert a defense under Penal Law § 15.20 (2) (a) only when his reading of the statute is correct — not mistaken. Such construction is obviously illogical; it strips the statute of the very effect intended by the Legislature in adopting the mistake of law defense. The statute is of no benefit to a defendant who has proceeded in good faith on an erroneous but concededly reasonable interpretation of a statute, as defendant presumably has. An interpretation of a statute which produces an unreasonable or incongruous result and one which defeats the obvious purpose of the legislation and renders it ineffective should be rejected (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

Finally, the majority’s disregard of the natural and obvious meaning of Penal Law § 15.20 (2) (a) so that a defendant mistaken about the law is deprived of a defense under the statute amounts, we submit, to a rejection of the obvious legislative purposes and policies favoring jurisprudential reform underlying the statute’s enactment. It is self-evident that in enacting Penal Law § 15.20 (2) as part of the revision and modernization of the Penal Law (L 1965, ch 1030) the Legislature intended to effect a needed reform by abolishing what had long been considered the unjust archaic common-law rule totally prohibiting mistake of law as a defense. Had it not so intended it would simply have left the common-law rule intact. In place of the abandoned ”ignorantia legis” common-law maxim the Legislature enacted a rule which permits no defense for ignorance of law but allows a mistake of law defense in specific instances, including the one presented here: when the defendant’s erroneous belief is founded on an "official statement of the law” (see, Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485, 1486).

This reform, like the changes adopted in Model Penal Code § 2.04 (3) and those proposed by various legal commentators, was prompted by the prevailing dissatisfaction with the common-law rule (see, Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]; Note, op. cit., 64 Colum L Rev 1469, 1485, 1486). Both the Model Penal Code and Penal Law § 15.20 (2) accept the general concept that the outright prohibition of the mistake of law defense under the common law should be replaced with a rule permitting "a limited defense based on a reasonable belief on the part of the defendant that the law is such that his conduct does not constitute an offense” (Model Penal Code § 2.04, comment 3, at 274 [Official Draft and Revised Comments 1985]; see, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 15.20, at 36-37).

The majority construes the statute, however, so as to rule out any defense based on mistake of law. In so doing, it defeats the only possible purpose for the statute’s enactment and resurrects the very rule which the Legislature rejected in enacting Penal Law § 15.20 (2) (a) as part of its modernization and reform of the Penal Law. It is fundamental that a construction of a statute which does not further the statute’s object, spirit and purpose must be rejected (see, Price v Price, 69 NY2d 8, 16, supra; Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38, 39; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677, 685, 686; People v Ryan, 274 NY 149, 152; McKinney’s Cons Laws of NY, Book 1, Statutes § 96).

Although expressing its evident conviction that the statute should be treated as an "exceptional exculpatory concept * * * intended to be a very narrow escape valve” (majority opn, at 387), the majority cites no language in the statute or in the legislative history supporting its views or the construction of Penal Law § 15.20 (2) (a) which seems so contrary to the statute’s plain language and evident purpose. Despite the assertion that such construction reflects "appropriate precedential awareness” (id., at 389), the majority cites no precedential authority.

Instead, the majority bases its decision on an analogous provision in the Model Penal Code and concludes that despite its totally different wording and meaning Penal Law § 15.20 (2) (a) should be read as if it were Model Penal Code § 2.04 (3) (b) (i). But New York in revising the Penal Law did not adopt the Model Penal Code. As in New Jersey, which generally adopted the Model Penal Code but added one section which is substantially more liberal, New York followed parts of the Model Penal Code provisions and rejected others. In People v Goetz (68 NY2d 96), we said that the Legislature’s rejection of the verbatim provisions of the Model Penal Code was crucial in determining its intent in drafting the statute. The significanee of the alterations here can be no different.

While Penal Law § 15.20 (2) and Model Penal Code § 2.04 are alike in their rejection of the strict common-law rule, they are not alike in wording and differ significantly in substance. The Model Penal Code provides a limited defense for ignorance of the law (Model Penal Code § 2.04 [3] [a]). Penal Law § 15.20 (2) omits any such defense. In respect to the defense based upon an actor’s reliance on an official statement of law contained in a statute the Model Penal Code and the New York statute are totally dissimilar (compare, Model Penal Code § 2.04 [3] [b] [i], to Penal Law § 15.20 [2] [a]). The Model Penal Code does not permit a defense for someone who acts in good faith upon a mistaken belief that a specific statute authorizes his conduct. The defense is limited to an act in reliance on an official statement of law in a statute "afterward determined to be invalid or erroneous” (Model Penal Code § 2.04 [3] [b]; emphasis added). The New York statute, in contrast, specifically permits the defense when the actor proceeds under "a mistaken belief” that his conduct does not "constitute an offense” when that "mistaken belief is founded upon an official statement of the law contained in * * * a statute” (Penal Law § 15.20 [2] [a]; emphasis added).

Thus, the precise phrase in the Model Penal Code limiting the defense under section 2.04 (3) (b) (i) to reliance on a statute "afterward determined to be invalid or erroneous” which, if present, would support the majority’s narrow construction of the New York statute, is omitted from Penal Law § 15.20 (2) (a). How the Legislature can be assumed to have enacted the very language which it has specifically rejected is not explained (see, People v Goetz, 68 NY2d 96, 109, 110, supra; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 94, 240, at 413).

As an alternate interpretation of Penal Law § 15.20 (2) (a) the majority suggests that the Legislature intended that the statute should afford a defense only in cases involving acts mala in se such as People v Weiss (276 NY 384 [involving kidnapping charges]) "where specific intent is an element of the offense” (majority opn, at 391). Again such construction is at odds with the plain wording of Penal Law § 15.20 (2) (a) and finds no support in the statutory history or the literature. There are, moreover, other fundamental objections to such construction which, we believe, rule out any possibility that the Legislature could have intended it. The essential quality of evil or immorality inherent in crimes mala in se (murder, robbery, kidnapping, etc.) is incompatible with the notion that the actor could have been operating "under a mistaken belief that [his conduct] [did] not, as a matter of law, constitute an offense” (Penal Law § 15.20 [2] [a]). There are no policy or jurisprudential reasons for the Legislature to recognize a mistake of law defense to such crimes. On the contrary, it is not with such inherently evil crimes but with crimes which are mala prohibita — i.e., "the vast network of regulatory offenses which make up a large part of today’s criminal law” (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; see, White, op. cit, 77 Colum L Rev 775, 784) — where reasons of policy and fairness call for a relaxation of the strict "ignorantia legis” maxim to permit a limited mistake of law defense.

Nor does it seem possible that the Legislature could have intended to permit a mistake of law defense only in the limited circumstance where it had already been permitted prior to the enactment of the statute, i.e., to negate a specific element of the charge (see, People v Weiss, supra). Such a reading, contrary to the statute’s plain meaning, makes Penal Law § 15.20 (2) (a) superfluous. While it is quite true that New York has followed the Model Penal Code in codifying the "ignorantia legis” maxim as the basic rule (see, majority opn, at 387; dissenting opn, at 395-396) we are concerned here not with the basic rule but with the modifications and exceptions to that rule enacted in Penal Law § 15.20 (2). It is only through these limited exceptions that the easing of the common-law rule is effected. Reading the statute merely as a codification of People v Weiss (supra) would amount to a total rejection of the legislative purpose of effecting this needed jurisprudential reform. The interpretation is contrary to accepted canons of statutory construction (McKinney’s Cons Laws of NY, Book 1, Statutes §§ 94, 95, 96, 143, 145).

Ill

Any fair reading of the majority opinion, we submit, demonstrates that the decision to reject a mistake of law defense is based on considerations of public policy and on the conviction that such a defense would be bad, rather than on an analysis of CPL 15.20 (2) (a) under the usual principles of statutory construction (see, majority opn, at 390-391). The majority warns, for example, that if the defense were permitted "the exception would swallow the rule”; that "[mistakes about the law would be encouraged”; that an "infinite number of mistake of law defenses * * * could be devised”; and that "wrongminded individuals [could] contrive in bad faith solely to get an exculpatory notion before the jury.” (Majority opn, at 391, 392.)

These considerations, like the People’s argument that the mistake of law defense " 'would encourage ignorance where knowledge is socially desired’ ” (respondent’s brief, at 28), are the very considerations which have been consistently offered as justifications for the maxim "ignorantia legis”. That these justifications are unabashedly utilitarian cannot be questioned. It could not be put more candidly than by Justice Holmes in defending the common-law maxim more than 100 years ago: "Public policy sacrifices the individual to the general good * * * It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales” (Holmes, The Common Law, at 48 [1881]; emphasis added). Regardless of one’s attitude toward the acceptability of these views in the 1980’s, the fact remains that the Legislature in abandoning the strict "ignorantia legis” maxim must be deemed to have rejected them.

We believe that the concerns expressed by the majority are matters which properly should be and have been addressed by the Legislature. We note only our conviction that a statute which recognizes a defense based on a man’s good-faith mistaken belief founded on a well-grounded interpretation of an official statement of the law contained in a statute is a just law. The law embodies the ideal of contemporary criminal jurisprudence "that punishment should be conditioned on a showing of subjective moral blameworthiness” (White, op. cit, 77 Colum L Rev 775, 784).

It is no answer to protest that the defense may become a "false and diversionary stratagem[ ]” or that "wrongminded individuals [could] contrive” an "infinite number of mistake of law defenses” (majority opn, at 392); for it is the very business of the courts to separate the true claims from the false. Such in terrorem arguments should have no more force here than similar objections which doubtless were voiced with equal intensity to the long-accepted defenses of justification, accident, mistake of fact, insanity, entrapment, duress and intoxication. As Justice Holmes wrote in commenting on John Austin’s argument that permitting the mistake of law defense would present courts with problems they were not prepared to solve: "If justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try” (Holmes, The Common Law, at 48 [1881]).

IV

If defendant’s offer of proof is true, his is not the case of a "free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong” (Pound, Introduction to Sayre, Cases on Criminal Law [1927], quoted in Morissette v United States, 342 US 246, 250, n 4). He carried the gun in the good-faith belief that, as a Federal corrections officer, it was lawful for him to do so under the words of the statute (Penal Law § 265.20 [a] [1] [former a]; CPL 2.10, 1.20 [see, dissenting opn, at 397, n 7). That his interpretation of the statute as exempting corrections officers (whether or not employed in a State facility) was a reasonable one can hardly be questioned. If the statute does not plainly say that corrections officers are exempt, as defendant contends, the statute at the very least is ambiguous and clearly susceptible to that interpretation. Indeed, Supreme Court in dismissing the indictment (94 Misc 2d 367) and two of the five-member panel in the first appeal to the Appellate Division (71 AD2d 346) read the statute as it was read by defendant and the police officials and others whose opinions he sought. We believe that under our present Penal Law and the policies underlying its revision (L 1965, ch 1030) this defendant should not be found guilty of violating Penal Law § 265.02 if he can establish that his conduct was based on a good-faith mistake of law founded on the wording of the statute.

We do not believe that permitting a defense in this case will produce the grievous consequences the majority predicts. The unusual facts of this case seem unlikely to be repeated. Indeed, although the majority foresees "an infinite number of mistake of law defenses” (majority opn, at 392), New Jersey, which adopted a more liberal mistake of law statute in 1978, has apparently experienced no such adversity (no case construing that law is mentioned in the most recent annotation of the statute; see, dissenting opn, at 400, n 10). Nor is there any reason to believe that courts will have more difficulty separating valid claims from "diversionary stratagem[s]” in making preliminary legal determinations as to the validity of the mistake of law defense than of justification or any other defense.

But these questions are now beside the point, for the Legislature has given its answer by providing that someone in defendant’s circumstances should have a mistake of law defense (Penal Law § 15.20 [2] [a]). Because this decision deprives defendant of what, we submit, the Legislature intended that he should have, we dissent.

There should be a reversal and defendant should have a new trial in which he is permitted to assert a defense of mistake of law under Penal Law § 15.20 (2) (a).

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

Order affirmed.

      ."Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong” (Pound, Introduction to Sayre, Cases on Criminal Law [1927], quoted in Morissette v United States, 342 US 246, 250, n 4).

      . Kant, Philosophy of Law, at 13, 14, 28, 37 (Hastie trans 1887); cf., Bentham, Theory of Legislation, at 1-4 (Ogden ed 1931).

      .Although "ignorantia legis” does not literally refer to mistake of law, the maxim is ordinarily understood, as we use it here, to include both ignorance and mistake of law (see, e.g., Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 208 [1985]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485 [1977]; Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]).

      .See, 2 Holdsworth, History of English Law, at 50-54, 258-259 (4th ed 1936); 3 Holdsworth, at 310-314, 371-375; United States v Barker, 514 F2d 208, 228 (Bazelon, Ch. J., concurring).

      .The societal interests mentioned in the literature include: facilitating judicial administration, encouraging knowledge and obedience to law and preservation of integrity of legal norms (77 Colum L Rev 775, 787). Justice Holmes, for example, stressed society’s interests in deterrence, noting that acceptance of ignorance or mistake of law as a defense would encourage ignorance at the expense of the public good (see, Holmes, The Common Law, at 48 [1881]; Ellis v United States, 206 US 246, 257). John Austin justified "ignorantia legis” on the ground that if the defense were permitted, the courts would be confronted with questions about defendant’s mental state which they could not solve (Austin, Lectures on Jurisprudence, at 496-501 [4th ed 1873]; see, White, op. cit., 77 Colum L Rev, at 785, 786; People v O’Brien, 96 Cal 171, 176, 31 Pac 45, 47 [1892]). For a discussion of the societal interest in maintaining primacy of the law as a reason for the common-law maxim, see, Hall, General Principles of Criminal Law, at 382, 383 (2d ed 1960).

      .Professor LaFave notes the unfairness of never recognizing ignorance or mistake of law as a defense to offenses which are purely regulatory: "The early criminal law was 'well integrated with the mores of the time’, so that 'a defendant’s mistake as to the content of the criminal law * * * would not ordinarily affect his moral guilt’ [n omitted]. But the vast network of regulatory offenses which make up a large part of today’s criminal law does not stem from the mores of the community, and so 'moral education no longer serves us as a guide as to what is prohibited’ [n omitted]. Under these circumstances, where one’s moral attitudes may not be relied upon to avoid the forbidden conduct, it may seem particularly severe for the law never to recognize ignorance or mistake of the criminal law as a defense. Moreover, some would question whether it is desirable to characterize as criminal an individual who has not demonstrated any degree of social dangerousness, that is, a person whose conduct is not anti-social because (i) he reasonably thought the conduct was not criminal, and (ii) the conduct is not by its nature immoral” (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; emphasis in original). Dissatisfaction with the traditional common-law rule totally prohibiting a mistake of law defense may be seen in decisions in New York and other jurisdictions recognizing the defense in certain circumstances even in the absence of an authorizing statute (see, e.g., People v Weiss, 276 NY 384, 389 [permitting defense to negate an essential element of the People’s proof]; see also, United States v Barker, 514 F2d 208, 228 [Bazelon, Ch. J., concurring]; State v Cutter, 36 NJL 125; Ostrosky v State, 704 P2d 786 [Alaska Ct App]).

      .By virtue of Penal Law § 265.20 (a) (1) (a) "peace officers”, as defined in the CPL 1.20, are expressly exempt from criminal liability under Penal Law § 265.02. CPL 1.20 incorporates the definition of "peace officer” in CPL 2.10, which includes "correction officers of any state correction facility or of any penal correctional institution”. Penal Law § 265.20 (a) was amended in 1980 to remove "peace officer” from (a) (1) (a) and to include "peace officer” in (a) (1) (c) (L 1980, ch 843, §§ 44, 45).

      .The majority held that Penal Law § 265.20 (a) (1) (a) included only State correction officers. The dissenters agreed with Supreme Court that under the unambiguous language of CPL 2.10 defendant was a "peace officer” within the meaning of Penal Law § 265.20 (a) (1) (a) and exempt from prosecution under Penal Law § 265.02.

      .It is suggested that Penal Law § 15.20 (2) (a) should be read as intended to apply when "it is determined that there was a mistake in the law itself. ” (Majority opn, at 390; emphasis in original.) Such interpretation is refuted by the language of the statute which provides a defense not when there is a "mistake in the law”, but, under particular circumstances, when the defendant is mistaken, i.e., when he acts "under a mistaken belief that [his conduct] does not, as a matter of law, constitute an offense” (Penal Law § 15.20 [2] [a]).

      .In addition to permitting defenses based on ignorance of the law and reasonable reliance on official statements afterward determined to be invalid or erroneous, the New Jersey statute provides a defense, under the following broad provision, when: "(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude” (NJ Stat Ann § 2C:2-4 [c] [3]).

      .In Goetz (68 NY2d 96, 109), we noted of the Model Penal Code provision on justification: "While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.” This difference in wording— involving the addition of the word "reasonable” to Penal Law § 35.15 — we found to be a "crucial” distinction between the Model Penal Code and the Penal Law (id., at 110).

      .Model Penal Code § 2.04 (3) (b) (i) states: "A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment”.

      .New York’s experience has been similar. It is stated that "for over 20 years of this statute’s existence” (majority opn, at 388) no one has sought to predicate a defense on the statute. That history is significant not as demonstrating that Penal Law § 15.20 (2) does not plainly afford a mistake of law defense, as the majority suggests, but simply that, as in New Jersey, the enactment of the statutory defense has not resulted in an "infinite number of mistake of law defenses” (id., at 392).


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    In the Matter of Sun-Brite Car Wash, Inc., Appellant, v Board of Zoning and Appeals of the Town of North Hempstead et al., Respondents. Allen Avionics, Inc., et al., Appellants, v Universal Broadcasting Corp. et al., Respondents.
    Argued March 17, 1987;
    decided April 28,1987

      POINTS OF COUNSEL
    A. Thomas Levin for appellant in the first above-entitled proceeding.

      Robert F. Dolan, Town Attorney, for respondents in the first above-entitled proceeding.

      Edward T. Robinson III and Stephen J. Lynch for appellants in the second above-entitled action.

      Patrick M. Murphy, Jr., Matthew Feinberg and Carole E. Zdan for respondents in the second above-entitled action.
   OPINION OF THE COURT

Kaye, J.

A property holder in nearby proximity to premises that are the subject of a zoning determination may have standing to seek judicial review without pleading and proving special damage, because adverse effect or aggrievement can be inferred from the proximity. Where, however, petitioner’s only substantiated objection is the threat of increased business competition — an interest not within the "zone of interest” protected by the zoning laws — even a close neighbor lacks standing to contest a zoning determination.

Sun-Brite Car Wash

In March 1984 respondents Gulf Oil Corp. and Fenley & Nichol Co. (Gulf) applied for a permit to erect a prefabricated metal automatic car wash on their property, which is used as a gas station — a nonconforming legal use. The automatic car wash was to replace a self-service car wash. The Building Department denied the application both because the proposed use was not permitted in the district and because the proposed structure did not comply with the building code, which prohibited unprotected metal structures in business and industrial zones. Gulf appealed the denial by applying to respondent Board of Zoning and Appeals for a use variance. The application was first forwarded to the Planning Commission, and after the plan was amended in accordance with its recommendations, the Board held a public hearing — consisting largely of evidence of competitive business losses that would result from the variance — and granted the variance.

Petitioner, Sun-Brite Car Wash — the long-term lessee of a car wash across the street from Gulf, also a nonconforming legal use — commenced this article 78 proceeding to annul the Board’s determination. Supreme Court found, first, that SunBrite, as a lessee in the immediate vicinity of the affected property, was as a matter of law "aggrieved” within the meaning of Town Law § 267 (7), and therefore had the requisite standing. Second, on the merits, the court vacated the Board’s decision, holding that upon review of the administrative record applicants had failed to demonstrate that the property was unsuitable for permitted uses or could not yield a reasonable return. The Appellate Division reversed, concluding that Sun-Brite lacked standing to bring this article 78 proceeding because its only substantiated objection to the variance was that it would result in competition. We granted leave to appeal and now affirm.

Allen Avionics

Defendant Universal Broadcasting purchased a portion of the subject property from defendant Incorporated Village of Mineóla. The Village Board of Trustees approved the transaction, stipulating that the height of the radio tower Universal proposed to build would be limited to 250 feet, that the tower was permissible on the property — located in the Village’s "M-l Light Manufacturing Zone” — and that the Village would issue a building permit. In August 1982, some two years after the purchase, Universal applied for a building permit, which was issued on October 5, 1983 following an engineer’s report but without a public hearing. That very day the Village Board of Trustees temporarily suspended the permit pending investigation of the safety of the tower. After the Environmental Protection Agency and the Department of Health issued opinions that the operation of a radio tower presented no undue health risk, the permit was reissued. Plaintiffs — owners of properties adjacent to the parcel — thereafter commenced this action seeking to enjoin construction, maintenance and use of the tower, alleging that it was dangerous to public health or safety, and to plaintiffs’ properties, and further that radiation emitted from the tower would interfere with Allen’s business of manufacturing electric parts, and thus excluded from use in an M-l district.

Following a trial on the merits, including extensive engineering testimony, Supreme Court held that the construction of a 250-foot radio tower was authorized by and conformed to the Mineóla Village Code, and required no zoning change or public hearing. Alternatively, the court concluded that, even if the tower was not a permitted use, plaintiffs lacked standing to maintain the injunction action because they failed to establish that the tower threatened imminent injury to their property or business, or would cause a genuine change to the community, or would increase community hazards. The court termed the claim of possible collapse "highly speculative and unsupported by the evidence,” adding that plaintiffs "completely failed to establish that their real and/or personal property will be jeopardized by the construction of the tower, or that their employees will be placed in serious peril, or that radiation emitted from the tower will interfere with its manufacturing business.” The Appellate Division affirmed on the basis that plaintiffs lacked standing. We granted leave to appeal and, in this appeal as well, affirm the Appellate Division order, but on a different rationale.

Discussion

Central to both appeals is the issue whether the petitioning parties have standing to assert their claims.

Zoning ordinances are a proper exercise of the police power because they are enacted to protect the health, safety and welfare of the community. In general, a person acquiring premises in a restricted zone may reasonably rely both on the promise the ordinance itself provides and on the fact that the municipality will enforce the ordinance, thereby protecting against diminution in the value of the property by nonpermitted uses. If the municipality fails to enforce its zoning laws, or acts arbitrarily or capriciously in varying the application of the ordinance, and a person is thereby aggrieved, it may seek relief in its own right. As in any other challenge to administrative action, a "petitioner need only show that the administrative action will in fact have a harmful effect on [it] and that the interest asserted is arguably within the zone of interest to be protected by the statute.” (Matter of Dairylea Coop, v Walkley, 38 NY2d 6, 9; see also, Matter of Dental Socy. v Carey, 61 NY2d 330, 334.)

Whether in the form of an article 78 proceeding for review of an administrative determination or an action for an injunction, challenges to zoning determinations may only be made by "aggrieved” persons (see, Town Law § 267 [7]; Little Joseph Realty v Town of Babylon, 41 NY2d 738, 741; 3 Rathkopf, Zoning and Planning § 43.01). By the same token, an aggrieved person may have standing to seek judicial review even where a statute vests exclusive power to enjoin zoning violations in local authorities (see, e.g., Village Law § 7-714), because such a person pursues "more than a civic interest in law enforcement; he is vindicating a discrete, separate identifiable interest of his own” (Little Joseph Realty v Town of Babylon, supra, at 742).

While the immediate parties to an administrative proceeding are aggrieved persons who may seek judicial review, it is less clear what other persons are aggrieved in a sense that entitles them to seek review. Aggrievement warranting judicial review requires a threshold showing that a person has been adversely affected by the activities of defendants (or respondents), or — put another way — that it has sustained special damage, different in kind and degree from the community generally (see, Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1, 5; Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211). Traditionally, this has meant that injury in fact must be pleaded and proved.

Standing principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules (see, Matter of Douglaston Civic Assn. v Galvin, supra, at 6). Because the welfare of the entire community is involved when enforcement of a zoning law is at stake, there is much to be said for permitting judicial review at the request of any citizen, resident or taxpayer; this idea finds support in the provision for public notice of a hearing. But we also recognize that permitting everyone to seek review could work against the welfare of the community by proliferating litigation, especially at the instance of special interest groups, and by unduly delaying final dispositions (see, 4 Anderson, American Law of Zoning § 27.09 [3d ed]; but see, Ayer, Primitive Law of Standing in Land Use Disputes: Some Notes From a Dark Continent, 55 Iowa L Rev 344, 360).

While something more than the interest of the public at large is required to entitle a person to seek judicial review— the petitioning party must have a legally cognizable interest that is or will be affected by the zoning determination — proof of special damage or in-fact injury is not required in every instance to establish that the value or enjoyment of one’s property is adversely affected (see, Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1, supra; Little Joseph Realty v Town of Babylon, 41 NY2d 738, supra). The fact that a person received, or would be entitled to receive, mandatory notice of an administrative hearing because it owns property adjacent or very close to the property in issue gives rise to a presumption of standing in a zoning case. But even in the absence of such notice it is reasonable to assume that, when the use is changed, a person with property located in the immediate vicinity of the subject property will be adversely affected in a way different from the community at large; loss of value of individual property may be presumed from depreciation of the character of the immediate neighborhood. Thus, an allegation of close proximity alone may give rise to an inference of damage or injury that enables a nearby owner to challenge a zoning board decision without proof of actual injury (see, Matter of Prudco Realty Corp. v Palermo, 93 AD2d 837, affd., on other grounds 60 NY2d 656; Matter of Marasco v Luney, 99 AD2d 492, Iv denied 63 NY2d 605; see also, 4 Anderson, American Law of Zoning § 27.18 [3d ed]; 3 Rathkopf, Zoning and Planning § 43.04).

The status of neighbor does not, however, automatically provide the entitlement, or admission ticket, to judicial review in every instance. Petitioner, for example, may be so far from the subject property that the effect of the proposed change is no different from that suffered by the public generally (cf., Brechner v Incorporated Vil. of Lake Success, 23 Misc 2d 159, 161 [Meyer, J.]; 3 Rathkopf, op. cit. § 43.04; ALI Model Land Development Code §§9-103, 9-104 [Proposed Official Draft 1975] [property owner within 500 feet has standing]). Moreover, petitioner must also satisfy the other half of the test for standing to seek judicial review of administrative action — that "the interest asserted is arguably within the zone of interest to be protected by the statute.” (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9, supra.) Petitioner’s status may be challenged on the ground that the interest it is asserting is not arguably within the "zone of interest” which the regulation is designed to protect. In such instances, even where petitioner’s premises are physically close to the subject property, an ad hoc determination may be required as to whether a particular petitioner itself has a legally protectable interest so as to confer standing.

We next turn to application of these principles to the facts presented. In both cases before us, the petitioning parties have asserted standing based on close physical proximity, and standing has been disputed by respondents.

Sun-Brite’s standing is first of all challenged because it is a lessee. A leaseholder may, however, have the same standing to challenge municipal zoning action as the owner. A change in contiguous or closely proximate property obviously can as readily affect the value and enjoyment of a leasehold as the underlying ownership interest (see, Lavere v Board of Zoning Appeals, 39 AD2d 639, affd no opn 33 NY2d 873 [month-to-month tenant]; Daub v Popkin, 5 AD2d 283, affd no opn 4 NY2d 1024; Community Planning Bd. No. 2 v Board of Stds. & Appeals, 43 AD2d 670; 4 Anderson, American Law of Zoning § 27.13 [3d ed]). Sun-Brite’s status as a tenant is therefore not an impediment to its right to maintain this proceeding.

However, Sun-Brite lacks standing to seek judicial review because, as established in the administrative proceeding, its only substantiated objection was the threat of increased business competition, which is not an interest protected by the zoning laws (see, Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9, supra; Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d, at 211, supra; Matter of Paolangeli v Stevens, 19 AD2d 763; see also, 4 Anderson, American Law of Zoning § 27.17 [3d ed]; 3 Rathkopf, Zoning and Planning § 43.06). Individual property owners "have no vested rights to monopolies created by zoning laws or ordinances. These are not enforced at the instance of one competitor in order to prevent or reduce competition.” (Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d, supra, at 215.) Thus, by virtue of the administrative action "the land owner has lost nothing and cannot be said to have been aggrieved.” (3 Rathkopf, Zoning and Planning § 43.06, at 43-34.) As we made clear in Cord Meyer (20 NY2d, supra, at 218), the fact that petitioner is a competitor would not alone deprive it of standing if there were other injury, such as depreciation in the value of the property arising from the manner in which the use is conducted (see also, 3 Rathkopf, Zoning & Planning § 43.06, at 43-35). Here, however, the administrative record reveals that the only substantiated objection to the variance was the claim that it would result in increased competition. Zoning laws do not exist to insure limited business competition. Therefore, as the Appellate Division correctly concluded, petitioner lacked standing to maintain this proceeding.

In Allen, we affirm the Appellate Division order but we do so on a different ground. As adjoining land owners, plaintiffs are members of a group presumptively affected by the change on neighboring property and therefore technically have standing to maintain this action. Indeed, the Village ordinance recognizes plaintiffs as property owners who must be given notice prior to a hearing on an application for a conditional or special use, and on a zoning change application.

Having the admission ticket to judicial review is not, however, a guarantee of success on the merits. The Appellate Division order must be affirmed because, in the words of the Special Term Judge, plaintiffs "have not established the major elements of their causes of action set forth in the complaint.” We agree with the Trial Judge on the legal proposition that the tower is clearly within the broad definition contained in the Mineóla Village Code, without limitation as to height and subject only to approval by the Board of Trustees. Moreover, there is an affirmed finding, amply supported by the record, that plaintiffs are threatened with no irreparable injury. While observing that it was unnecessary to reach the merits of plaintiffs’ claims, the Appellate Division also stated that it had reviewed the entire record, including the expert testimony, and concluded that the evidence supported Special Term’s finding that plaintiffs failed to establish that construction of the tower would result in any imminent threat of irreparable injury or result in diminution of the value of plaintiff’s property. In these circumstances, there is no cause to remit the matter to the Appellate Division for a determination on the merits.

Accordingly, in each case the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

In each case: Order affirmed, with costs.

      .The Mineóla Village Code provides that metal buildings "shall be permissible in Business M-l and M-2 Districts, subject to the approval of the Board of Trustees.” (Art XVII, § 60-109.) Section 60-2 of the Code defines building to include "the word ’structure’ [and] a structure shall be deemed to be any combination of materials forming any construction and shall include, among other things * * * radio towers.”

      .Plaintiffs own property at 224 East Second Street, Mineóla, within the M-l Light Manufacturing Zone, and 255 East Second Street, within the M-2 Industrial District. Universal’s property is located at 260 East Second Street, within the M-l Light Manufacturing Zone.

      .We need not, and do not, reach the question whether Sun-Brite lacks standing because its nonconforming use does not place it within the "zone of interest” protected by the statute.

      .Article XXIII, § 60-149.1 of the Mineóla Village Code provides: "(3) Before an application for a conditional or special use may be heard by the Board of Zoning and Appeals, a complete and accurate list of the names and addresses of the owners of all the lands within a radius of two hundred (200) feet of the property affected by such application as appears on the latest completed assessment roll of the County of Nassau shall be submitted simultaneously with the application. The applicant shall send, by registered mail, to each owner shown on said list, not less than ten (10) nor more than twenty (20) days before the date set for a hearing upon this application, a notice addressed to such owners signed by the applicant, generally identifying the property affected thereby, and setting forth the use requested and the date, hour and place fixed by the Board of Zoning and Appeals for the hearing thereon.”

      .Article XXIV of the Code incorporates the Village Law, which in section 7-708 (1) provides that "owners of twenty per centum or more of the land immediately adjacent extending one hundred feet therefrom, or by the owners of twenty per centum or more of the land directly opposite thereto, extending one hundred feet from the street frontage of such opposite land” are entitled to protest zoning changes.


author: Simons, J.

text:
    Robert E. Morris, Jr., et al., Appellants, v Charles Scribner, Jr., et al., Respondents.
    Argued March 17, 1987;
    decided April 28, 1987

      POINTS OF COUNSEL

      Gerald D. Fischer for appellants.

      Douglas M. Parker, Judah Gribetz, George A. Pierce, Jr., and Hugh R. Jones for Rector, Church Wardens and Vestrymen of St. Bartholomew’s Church in the City of New York, respondent.

      William Rand for Charles Scribner, Jr., and others, respondents.
   OPINION OF THE COURT

Simons, J.

This action arises from a dispute between New York City’s St. Bartholomew’s Church, its rector, church wardens and vestrymen, and a minority of the church’s parishioners who oppose the proposed construction of a high-rise commercial office tower on a portion of the church’s Park Avenue property. On this appeal, plaintiff parishioners seek a declaratory judgment determining that defendants have used church funds for purposes other than the "support and maintenance” of the church, in violation of Religious Corporations Law § 5, and an order enjoining further violations of the statute. Defendants’ present activities in connection with the office tower development plan do not violate the Religious Corporations Law and, therefore, we affirm the order appealed.

St. Bartholomew’s Church is a religious corporation of the Protestant Episcopal faith. Since 1980 it has sought to develop its real estate by contracting with a developer for the construction of an office tower on the site of its Community House, adjacent to the church, through a long-term lease arrangement. Because St. Bartholomew’s is an "architectural and historic * * * edifice of enormous cultural significance”, it has been designated a protected landmark by the city’s Landmark Preservation Commission (see, Rector, Church Wardens & Vestrymen v Committee to Preserve St. Bartholomew’s Church, 84 AD2d 309, 310, appeal dismissed 56 NY2d 645). As a result of this designation, the church must obtain a certificate of appropriateness from the Commission, permitting alteration of the landmark site, before development of the church property may proceed. The Commission has repeatedly refused to grant a certificate of appropriateness to St. Bartholomew’s for the construction of the high-rise office tower, however, and plaintiffs have challenged, in this and related actions, defendants’ expenditure of church funds to contest the landmark designation, and to plan and develop the construction it proposes (see, e.g., Rector, Church Wardens & Vestrymen v Committee to Preserve St. Bartholomew’s Church, 56 NY2d 71 [upholding church election authorizing sale of church property]; Rector, Church Wardens & Vestrymen v Committee to Preserve St. Bartholomew’s Church, 84 AD2d 309, supra [dissolving preliminary injunction barring the church from selling or leasing its real property]).

In this action, plaintiffs contend that the defendants have violated section 5 of the Religious Corporations Law. They argue that moneys contributed to an incorporated church are analogous to trust funds which can only be spent as prescribed by the statute. They assert that the use of St. Bartholomew’s funds to pursue the office tower development plan constitutes an improper diversion from the trust purposes for which the funds were originally donated because the disputed funds were not invested for the "support and maintenance” of the church, but rather were wasted in a highly speculative profit-seeking scheme and are now beyond recoupment (relying on Westminster Presbyt. Church v Trustees of Presbytery, 222 NY 642; St. Nicholas Cathedral v Kedroff, 302 NY 1, revd 344 US 94; Kroth v Congregation Chebra Ukadisha Bnai Israel Mikalwarie, 105 Misc 2d 904; Beth Jacob v Morgen Appliances, 196 Misc 677). Plaintiffs acknowledge the general power of the defendants to sell or lease church real property, but they challenge the proposed tower development as a speculation which has little chance of success and which already has cost in excess of $1,060,000 and resulted in substantial liabilities. It is defendants’ position that the activities of churches are not strictly limited to the performance of religious activities. They contend that there can be no charge that the church has stopped its religious observances to pursue a real estate business, and that the development plan is incidental to the maintenance and upkeep of the religious corporation: it is designed to improve the financial condition of the church and to support its activities. They maintain that St. Bartholomew’s is engaged in an orderly plan to alleviate its financial difficulties by realizing the value of its principal asset — its real estate —and that this is a proper exercise of corporate authority under Religious Corporations Law § 5 not subject to judicial review.

Preliminarily, we note that resolution of this internal dispute by a civil court does not violate the First Amendment prescription that religious bodies be left free to decide church matters for themselves, uninhibited by State interference, because the appeal can be decided on the basis of statutory interpretation and common-law precedent without reference to matters of religious belief or dogma (see, First Presbyt. Church v United Presbyt. Church, 62 NY2d 110, 117 [dispute over title to church property]; Avitzur v Avitzur; 58 NY2d 108, cert denied 464 US 817 [dispute concerning secular obligations of religious marriage contract]).

The primary purpose of the Religious Corporations Law is to provide an orderly method for the administration of the property and temporalities dedicated to the use of religious groups, and to preserve them from exploitation by those who might divert them from the true beneficiaries of the corporate trust (St. Nicholas Cathedral v Kedroff, 302 NY 1, 29, supra). The general powers and duties of the trustees of religious corporations are set forth in Religious Corporations Law § 5. Writing in 1914, Chief Judge Willard Bartlett observed: "[t]he law of the state of New York prescribing, as it has done ever since 1875, that the temporalities of a religious corporation shall be administered in accordance with denominational usage, contemplates the co-existence of a church in the spiritual sense and a church in the legal sense, working together toward the same beneficent ends” (Westminster Presbyt. Church v Trustees of Presbytery, 211 NY 214, 223). In a similar vein, Chief Judge Hiscock interpreted the predecessor statute to Religious Corporations Law § 5: "We think that when this provision provides that the trustees of an 'incorporated church’ shall administer this property for the support and maintenance of 'the church corporation’ it contemplates and takes into account the purposes and needs of the congregation which creates, perpetuates and is represented by the corporation or legal entity. The term 'incorporated church’ for the purposes of this provision naturally suggests the entire church as it consists of the spiritual and legal bodies which go to make it up” (Trustees of Presbytery v Westminster Presbyt. Church, 222 NY 305, 317).

St. Bartholomew’s is an "incorporated church” created, under the laws of New York, to enable its members to meet for "divine worship or other religious observances” (Religious Corporations Law § 2; see, Johnston v Hughes, 112 App Div 524, 526, revd, on other grounds 187 NY 446). The trustees of the church must administer the temporalities of the "legal church” in accordance with the usages, and in support and maintenance of, the "spiritual church” (see, Westminster Presbyt. Church v Trustees of Presbytery, 211 NY 214, 223, supra). Within the strictures of the Religious Corporations Law concerning the administration and disposition of church property, an incorporated church is free to engage in enterprises that are incidental to the maintenance and upkeep of the religious corporation (see, Beth Jacob v Morgen Appliances, 196 Misc 677, 678, supra; and see, 50 NY Jur, Religious Societies, § 118, at 43; cf., People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350 [availability of tax exemption for profit-making activities of religious corporation is dependent upon determination that the activity is reasonably incident to major corporate purpose]). That an incorporated church may invest its funds in income-producing property is reasonably implied from the trustees’ power, and duty, to act to preserve the corporation’s funds (see, Bowman v Bloomfield Mgt., 197 Misc 523, 524-525). Manifestly, the trustees are also empowered to administer church property in such a manner that the assets are rendered more productive in order to assure the continued viability of the corporation’s spiritual objectives (see, id.; see also, Beth Jacob v Morgen Appliances, 196 Misc 677, 678, supra; 50 NY Jur, Religious Societies, § 118, at 43-44; but see, Annotation, Benevolent Corporations-Powers, 100 ALR 579 [stating then-majority view that religious corporations, inter alia, may not engage in enterprise for profit]). Any profit-making activities undertaken by the "legal church” are, of course, subject to the limitation that the proceeds must support the lawful purpose of the "spiritual church” (see, Not-For-Profit Corporation Law § 204 [limitation on profit-making activities]; Religious Corporations Law § 2-b [applicability of Not-For-Profit Corporation Law]; Religious Corporations Law § 5-a [investment of funds]).

Where, as here, the profit-seeking activity undertaken by the trustees of a religious corporation is reasonably incidental to its support and maintenance, and is directed toward assuring that the needs of the "spiritual church” will be met, there is no occasion for a court’s interference in the process. The prudence of the particular investment or expenditure, legally incurred, must be left to the determination of the church members (see, Koch v Estes, 146 Misc 249, affd 240 App Div 829, affd 264 NY 480; Kroth v Congregation Chebra Ukadisha Bnai Israel Mikalwarie, 105 Misc 2d 904, 917, supra). The wisdom of defendants’ decision concerning some of these matters may be questioned by plaintiffs, but the remedy is not by appeal to the courts. As another court said so well, "[i]f the courts will not interfere with the determination of the board of directors of a business corporation honestly and fairly arrived at, it certainly should not do so in the case of a religious corporation, the conduct of whose temporal affairs is often actuated by considerations which cannot be measured in terms of dollars and cents” (see, Koch v Estes, 146 Misc 249, 257, affd 240 App Div 829, affd 264 NY 480, supra). Plaintiffs’ second cause of action, now before us, although questioning the trustees’ prudence in pursuing the development plan, does not allege that the trustees have acted dishonestly or unfairly or that they have abandoned church purposes in favor of engaging in a commercial enterprise. There is, therefore, no ground to support the interference of the courts in the St. Bartholomew’s development plan at the present time.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed.

Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

Order affirmed, with costs, and certified question answered in the affirmative.

      .On this appeal, plaintiffs seek review of the Appellate Division affirmance of the order dismissing the second cause of action discussed above, and also the fifth and sixth causes of action, brought against individual defendants as a derivative action. Special Term had dismissed these causes of action without prejudice for failure to join 5% of the church membership as required by Not-For-Profit Corporation Law § 623 (a) and § 720 (b). We do not reach the merits of the dismissal of these two causes of action, for plaintiffs have since served an amended complaint, alleging the derivative action claims, in which the requisite number of members has joined. Hence, any issue as to the dismissal of the fifth and sixth causes of action is moot.

      .Religious Corporations Law § 5 provides, in pertinent part: "The trustees of every religious corporation shall have the custody and control of all the temporalities and property, real and personal, belonging to the corporation and of the revenues therefrom, and shall administer the same in accordance with the discipline, rules and usages of the corporation and of the ecclesiastical governing body, if any, to which the corporation is subject, and with the provisions of law relating thereto, for the support and maintenance of the corporation, or, providing the members of the corporation at a meeting thereof shall so authorize, of some religious, charitable, benevolent or educational object conducted by said corporation or in connection with it, or with the denomination, if any, with which it is connected; and they shall not use such property or revenues for any other purpose or divert the same from such uses.”


text:
    The People of the State of New York, Appellant, v Nathaniel McClean, Respondent.
    Argued March 25, 1987;
    decided April 30, 1987

      POINTS OF COUNSEL

      Sol Greenberg, District Attorney (Renee Z. Farnham of counsel), for appellant.

      Robert S. Smith for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of robbing King’s Variety Store in Albany. The conviction rests largely on testimony by his two accomplices, Ricky Cuff, who entered the store before the robbery, posing as a customer, and Jacob Whitbeck, who drove the getaway vehicle. They were the only witnesses who identified defendant as the gunman. On appeal, the Appellate Division reversed the judgment and ordered a new trial, a majority of the court agreeing with defendant’s contention that the People had improperly bolstered the accomplices’ testimony at trial by presenting to the jury written statements each had executed shortly after being taken into custody by the police. The People urge that the statements were properly received to rehabilitate the accomplices after defense counsel had claimed during cross-examination that their testimony was a recent fabrication invented to obtain preferred treatment from the authorities. The dissenting Justice at the Appellate Division, who believed the written statements were properly received, granted the People leave to appeal to this court. We now affirm.

Generally, the testimony of a witness may not be corroborated or bolstered by evidence of prior consistent statements made before trial (see, People v Davis, 44 NY2d 269, 277; People v Singer, 300 NY 120, 124; Crawford v Nilan, 289 NY 444, 450-451; People v Katz, 209 NY 311, 336-339). The reason, of course, is that an untrustworthy statement is not made more trustworthy by repetition. There is a recognized exception to the rule, however, which permits evidence of prior consistent statements when the witness’ testimony is assailed as a recent fabrication. Mere impeachment by proof of inconsistent statements does not constitute a charge that the witness’ testimony is a fabrication. But if the cross-examiner seeks to impeach the witness by evidence tending to show that his testimony is of recent invention, given under motives of interest or bias, the party calling the witness, in order to rebut that inference, may show that the witness made statements similar to his trial testimony at some earlier time when he was free from the alleged bias (see, People v Baker, 23 NY2d 307, 322-323; People v Mirenda, 23 NY2d 439, 451-452; People v Singer, supra). An impeached witness cannot be rehabilitated by his antecedent consistent statements unless the cross-examiner has created the inference of, or directly characterized the testimony as, a recent fabrication (People v Davis, 44 NY2d 269, 277, supra). If he does, then prior consistent statements which antedated the existence of the motive to fabricate alleged at trial may be admitted, not to prove or disprove any of the facts in issue, but to aid in establishing the credibility of the witness (see, People v Katz, 209 NY 311, 341, supra; People v Jung Hing, 212 NY 393, 401). If the same motive to falsify which exists at the time of the testimony existed at the time the prior consistent statement was made, the statement remains inadmissible (see, People v Davis, supra, at 278).

This rule applies equally to an accomplice witness. When an accomplice is called to testify for the People, an inference may arise that he is incriminating defendant for the purpose of exempting himself from prosecution and, when defense counsel challenges the testimony as fabricated for such reasons, the People may properly show that the accomplice’s testimony is consistent with a version of the facts given before the motive to falsify arose (see, People v Baker, 23 NY2d 307, supra; People v Singer, 300 NY 120, supra; People v Katz, supra; and see, People v Branch, 34 AD2d 541, affd 27 NY2d 834; People v Sease-Bey, 111 AD2d 195, 196).

In this case the accomplices’ testimony was critical on the issue of identification and, when defense counsel challenged it as a recent fabrication, the People sought to reenforce the accomplices’ credibility by presenting to the jury the written statements they had executed at the time of their arrest. Whether the statements were admissible under the exception to the rule depends upon whether they were given to the police before the motive to falsify existed.

The robbery in question occurred November 1, 1979. Cuff was in the store at the time and was interviewed by the police at the scene. Whitbeck was questioned separately soon after-wards. Neither admitted prior knowledge of the crime, nor identified defendant. On November 5 the two men were again questioned. Cuff was taken to the police station first and told that Whitbeck had implicated him. After questioning, he confessed his complicity in the crime and identified defendant. The police then arrested Whitbeck at his home, told him that Cuff had implicated him and threatened him with a long prison term if he did not identify the gunman. After confessing and identifying defendant from photographs, both accomplices executed written statements consistent with their subsequent trial testimony.

At the trial, on cross-examination, defense counsel contended that the accomplices’ identification of defendant was a recent fabrication resulting from police pressure during custodial interrogation and motivated by the accomplices’ self-interest and hope for leniency. That motive arose on November 5 when the witnesses were arrested and charged with participating in the crime and inasmuch as the statements were given after the motive to falsify arose, the statements were not admissible.

The People contend that the motive to fabricate did not arise on November 5 because no plea bargain had yet been made, and was not made until a year and a half later. The hope for preferred treatment, however, which was the only motive charged by the defense, was precisely the same at the time of arrest as it was at the time of trial, whether the plea bargain was entered into in November or several months later. Indeed, at the time of trial the accomplices had served their prison sentences and arguably had even less motive to falsify than at the time of arrest. In so ruling, the Appellate Division did not adopt a per se rule foreclosing the rehabilitation of accomplice witness by means of prior consistent statements; it merely applied established legal principles.

The dissenter at the Appellate Division, in support of his contention that the statements were admissible, relied upon our decision in People v Baker (23 NY2d 307, 322-323, supra), but Baker is distinguishable, for there the accomplice was cooperating with the police. Here, the accomplices, arrested and charged, were reacting to police pressure to name the gunman in the robbery. Their statements supported the clearly identified police theory of the crime and were the products both of their certain knowledge that they were accused of aiding in commission of the robbery, and of encouragement by the police to identify defendant. More importantly, however, in Baker defense counsel on cross-examination claimed that the accomplice fabricated his testimony not only because of a desire to avoid prosecution but also because he received preferred treatment in the form of money and food after giving his statement and before trial. Thus, while the accomplice’s motive to falsify in Baker was undoubtedly influenced by his knowledge that the police had evidence implicating him in the crime and his desire for leniency, it was also substantially influenced, as defense counsel had emphasized during cross-examination and as the court found, by the subsequent gifts of money and food (cf., People v Caserta, 19 NY2d 18). Inasmuch as the Baker accomplice’s statement, given prior to receiving these gifts, was consistent with his trial testimony and preceded significant events which defense counsel contended had influenced him to fabricate his trial testimony, the prior consistent statement was admissible. In this case, the motive to falsify existed when the written statements were given and it is not claimed that any other motives arose thereafter. Thus, permitting the statements to be received in evidence was erroneous and, given the nature of the proof, we cannot say it was harmless.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed.