author: Gabrielli, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Thomas Conyers, Respondent.
    Argued February 19, 1981;
    decided April 2, 1981

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Meredith Anne Feinman of counsel), for appellant.
    I. When defendant’s silence prior to and at the time of arrest is inconsistent with his trial testimony, its use for impeachment purposes is consistent with the Federal and the State Constitutions and State rules of evidence. (Doyle v Ohio, 426 US 610; People v Luongo, 47 NY2d 418; People v Yazum, 13 NY2d 302; People v Hobson, 39 NY2d 479; Cooper v Morin, 49 NY2d 69; People v Isaacson, 44 NY2d 511; Matter of Gardner v Broderick, 20 NY2d 227, 392 US 273; Matter of Spevack, 16 NY2d 1048, 385 US 511; People v Reese, 258 NY 89; Griffin v California, 380 US 609.) II. In view of the overwhelming evidence of defendant’s guilt and the properly admitted evidence of his flight from the police, there is no reasonable possibility that the jury’s verdict was affected by the few references to his silence at the time of his arrest. (Doyle v Ohio, 426 US 610.)

      Philip L. Weinstein and William E. Hellerstein for respondent.
    I. The record facts do not support appellant’s argument that this case really involves cross-examination and comment on prearrest silence; and even if that argument is supported by the record, it was waived by appellant’s failure to raise properly in this court. (Matter of Cook, 194 NY 400.) II. Cross-examination and comments on a suspect’s silence at the time of arrest for impeachment is (a) inadmissible under State evidentiary law; (b) violates the State due process clause; and (c) violates the Federal due process clause as interpreted in Doyle v Ohio (426 US 610). (People v Davis, 43 NY2d 17; People v Dawson, 50 NY2d 311; People v Savage, 50 NY2d 673; United States v Hale, 422 US 171; United States v Nunez-Rios, 622 F2d 1093; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511; People v Leyra, 302 NY 353; People v Sandoval, 34 NY2d 371; Doyle v Ohio, 426 US 610.)
   OPINION OF THE COURT

Gabrielli, J.

Defendant Thomas Conyers was tried before a jury and convicted of several criminal counts in connection with the armed robbery of Marion Dantzler and Grace Johnson. The Appellate Division, however, reversed the conviction after concluding that defendant had been deprived of his right to a fair trial (65 AD2d 437). We affirmed the decision of the Appellate Division, in part because, in our view, defendant’s right to due process of law had been violated by the District Attorney’s use of his postarrest silence to impeach his testimony at trial (49 NY2d 174). The People then petitioned the Supreme Court for a writ of certiorari, seeking a further review of our determination upon Federal constitutional grounds.

While the People’s petition was pending, the Supreme Court handed down its decision in Jenkins v Anderson (447 US 231). In that case, the court held that the use of a defendant’s prearrest silence for impeachment purposes does not offend any of the guarantees contained in the United States Constitution. Shortly after Jenkins was decided, the court granted the People’s petition for certiorari in Conyers I, vacated our order and remanded the case to our court for further consideration in light of Jenkins (New York v Conyers, 449 US 809), presumably because our analysis in Conyers I touched upon some of the same constitutional issues that were considered in that case. Upon reconsideration, we now adhere to our prior ruling and hold that, absent circumstances not here present, our State rules of evidence preclude the use of a defendant’s pretrial silence to impeach his trial testimony. Inasmuch as our present holding is founded upon familiar principles of State evidentiary law, we do not find it necessary to consider whether the use of a defendant’s postarrest silence for impeachment purposes is permissible under the constitutional principles articulated in Jenkins or whether the due process clause of our State Constitution (NY Const, art I, § 6) precludes the use of such evidence to impeach a defendant’s trial testimony.

The controversy in Conyers I arose out of the defendant’s attempts to place an exculpatory version of events before the jury through his own trial testimony. In an effort to refute the testimony of the two alleged victims, Dantzler and Johnson, that defendant had robbed them at gunpoint after accosting them on the street and forcing them into a nearby apartment building, defendant took the witness stand and testified that he had merely been attempting to collect a gambling debt from Dantzler in the latter’s apartment when Dantzler drew a gun. Defendant, according to his own testimony, managed to wrest the gun from Dantzler’s control and escape from the apartment with the gun and a pouch containing the proceeds of his bet after he and his accomplice, Saunders, subdued Dantzler and bound his hands. Dantzler, however, was somehow able to free himself from his bonds in time to pursue defendant and Saunders out onto the street. The ensuing chase was interrupted,, according to defendant, when a police officer intervened and placed defendant and Saunders under arrest.

Seeking to portray defendant’s version of events as a recent fabrication, the District Attorney, over timely objection by defense counsel, questioned defendant about his failure to explain the situation to the arresting officer immediately upon his arrest. Reference to defendant’s postarrest silence was also made during the District Attorney’s summation to the jury. It was these references to defendant’s postarrest failure to speak that ultimately formed the basis of our ruling upholding the reversal of Conyers’ conviction.

As is evident from our opinion in Conyers I, our decision in that case, although based upon constitutional grounds, was heavily influenced by our conviction that evidence of an individual’s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth (People v Conyers, 49 NY2d 174, 181-182, supra; accord Doyle v Ohio, 426 US 610, 617-618, n 8). As noted in our earlier decision, the individual’s silence in such circumstances may simply be attributable to his awareness that he is under no obligation to speak or to the natural caution that arises from his knowledge that anything he says might later be used against him at trial (People v Rutigliano, 261 NY 103, 107; accord United States v Hale, 422 US 171, 176-177). Alternatively, the individual may refrain from speaking because he believes that efforts to exonerate himself under the circumstances would be futile (People v Dawson, 50 NY2d 311, 322; People v Conyers, supra, at pp 181-182). Finally, it is a lamentable but undeniable fact of modern society that some of our citizens harbor a mistrust for law enforcement authority which leads them to shun contact with the police even when the avoidance of contact is not in their own best interest (see People v Conyers, supra, at p 182). Such individuals may refrain from speaking to law enforcement officials not because they are guilty of some crime, but rather because they are simply fearful of coming into contact with those whom they regard as antagonists. In short, although a defendant’s failure to come forward with an exculpatory version of events prior to trial may reflect negatively upon the veracity of his trial testimony, his prior silence also may be attributable to a variety of innocent circumstances that are completely unrelated to the truth or falsity of his testimony. Accordingly, evidence of a defendant’s pretrial silence must be regarded as having minimal probative significance and as having a correspondingly low potential for advancing the truth-finding process even when offered solely for purposes of impeachment.

On the other hand, the risk of prejudice is substantial whenever the prosecution attempts to impeach a defendant’s trial testimony by questioning him about his prior failure to come forward with an exculpatory version of events. Jurors, who are no„t necessarily sensitive to the wide variety of alternative explanations for a defendant’s pretrial silence, may be prone to construe such silence as an admission and, as a consequence, may draw an unwarranted inference of guilt. Because evidence of a defendant’s pretrial silence may have a disproportionate impact upon the minds of the jurors and because the potential for prejudice inherent in such evidence outweighs its marginal probative worth, we conclude that the use of such evidence for impeachment purposes cannot be justified in the absence of unusual circumstances (accord United States v Hale, 422 US 171, supra; cf. People v Rothschild, 35 NY2d 355).

We note that our decision today to curtail the use of a particular category of evidence on the ground that its potential for prejudice outweighs its probative worth is far from unprecedented in our case law. In People v Molineux (168 NY 264), for example, we held that evidence of a defendant’s prior criminal acts may not be used as part of the People’s direct case to establish the defendant’s propensity to commit the crime charged. Although we recognized that such evidence is “marginally relevant to the question of the accused’s guilt”, we concluded that it should be excluded as a matter of judicial policy because “its probative value is * * * outweighed by its potential for prejudice” (People v Santarelli, 49 NY2d 241, 247; accord People v Allweiss, 48 NY2d 40, 46). Similarly, we held in People v Sandoval (34 NY2d 371) that evidence of a defendant’s prior criminal acts should not be admitted for impeachment purposes unless the trial court determines in the exercise of its discretion that the evidence “will have material probative value on the issue of defendant’s credibility, veracity or honesty” (id., at p 376). Once again, our judicially created rule of exclusion was premised upon the familiar standard “whether the prejudicial effect * * * outweighs the probative worth of the evidence” on the issue for which it is being admitted (id.).

Like the Molineux and the Sandoval rules, the rule announced in our decision today represents a simple recognition of our judicial responsibility to formulate rules of evidence to protect the integrity of the truth-finding process. Evidence that is highly prejudicial but of low probative worth has traditionally been excluded from criminal trials because it carries with it a grave potential for distorting the search for truth which is at the heart of our adversary system. As the Supreme Court has succinctly observed: “When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out” (Shepard v United States, 290 US 96, 104, quoted in United States v Hale, 422 US 171, 180, supra). Here, as previously noted, the value of defendant Conyers’ silence as impeachment evidence was more than outweighed by the danger of prejudice and confusion in the minds of the jurors. Hence, it was error for the trial court to permit such evidence to be placed before the jury.

Accordingly, upon reargument following remand by the Supreme Court of the United States, this court’s prior determination affirming the order of the Appellate Division should be adhered to.

Meyer, J.

(dissenting). Eschewing reliance upon Federal or State constitutional provisions, the majority once again affirms the reversal of defendant Conyers’ armed robbery conviction and, so doing, makes its possible on retrial for Conyers to swear that he was the victim rather than the perpetrator of the robbery without fear of impeachment by evidence that he failed to make a similar claim at the time he was arrested. The basis for so doing is said to be that proof of silence under the circumstances is both highly prejudicial and of low probative value. Precedent it is said can be found in the Molineux (168 NY 264) and Sandoval (34 NY2d 371) rules balancing probative value and prejudice. I disagree for several reasons.

Primary is the skewed view of probativeness and prejudice adopted by the majority. My evaluation of both is spelled out in detail in the dissent in Conyers I (49 NY2d 174, 190-195). As to probativeness, its essence is that there is no more compelling instinct (and thus no greater force for truth telling) than that of self-preservation: “it is natural to expect that one who has been outraged in person or property will make prompt disclosure or explanation, the more so when his or her failure to do so will result in his or her own arrest” (49 NY2d, at p 194). To that may now be added that doing so may be expected to provide him or her with police protection against the attacker from whom he or she flees and make more probable the apprehension and conviction of the attacker which the victim can normally be expected to consider a result devoutly to be wished. The inherent incredibility of testimony by a defendant that he was in fact the victim of a crime rather than the perpetrator is so great that jurors of average intelligence are bound to wonder what defendant said at the time of arrest. Short of constitutional proscription so requiring, jurors should not be left to flounder on such subjects.

As to prejudice, the factors suggested by the majority are not so foreign to the experience of the average jurors that they cannot be trusted to evaluate, as they do other inconsistencies in defendant’s testimony, the explanation for his silence which defendant is free to put before them. Moreover, defendant would be entitled, as was the defendant in Dawson (50 NY2d 311, 322-323), to an instruction to “the jurors, upon request that * * * they may consider the witness’ prior failure to come forward only insofar as it casts doubt upon the witness’ in-court statements by reason of its apparent inconsistency”.

A further reason for my disagreement is the majority’s apparent elevation to a general standard of the ad hoc rules of Molineux and Sandoval. Decisions in both areas have recognized that “the individual facts and circumstances of each case” will determine admissibility (People v Sandoval, 34 NY2d 371, 375; cf. People v Ventimiglia, 52 NY2d 350). Yet the majority appears to be saying that a defendant’s postarrest silence can never be probative, no matter the circumstances, and to that extent at least to be departing from, rather than following the Molineux and Sandoval lead. Here ad hoc evaluation should dictate admissibility. Conyers’ silence was particularly probative because he testified at trial that he was fleeing from a criminal who had held him at gunpoint. Surely there is enough of a probability that a victim in these circumstances would seek the protection of the police and the apprehension of his pursuer that a jury should consider defendant’s conduct in contrast.

For the foregoing reasons, and those stated in my Conyers I dissent, I would reverse the order of the Appellate Division insofar as appealed from, and would remit to the Appellate Division for further proceedings.

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

Upon reargument following remand by the Supreme Court of the United States, this court’s prior determination affirming the order of the Appellate Division is adhered to.

      . Defendant’s alleged accomplice, Saunders, was also convicted of having robbed Dantzler and Johnson. Saunders’ conviction was affirmed by the Appellate Division (63 AD2d 868), and his application for permission to appeal to this court was subsequently denied (44 NY2d 956).

      . It is this grave danger of prejudice that distinguishes the situation in the instant case from the situation presented in People v Dawson (50 NY2d 311, supra), in which we held that a nonparty witness’ failure to come forward with exculpatory information prior to trial may be used to impeach the witness’ trial testimony under certain carefully controlled conditions. Although we recognized in Dawson that evidence of a nonparty witness’ pretrial silence is of extremely limited probative worth, we declined to adopt a per se rule of exclusion, holding instead that such evidence may he used as long as the utmost caution is exercised in order to ensure that the defendant is not deprived of a fair trial (id., at pp 321-324). The need for caution, however, is substantially greater in a case where the prosecution seeks to impeach the testimony of the defendant through the use of his prior silence. While the risk in the case of a nonparty defense witness is of indirect prejudice only, the risk in the case of a defendant who has been silent is of direct prejudice. In the case of a nonparty defense witness, the hazard is merely one of unwarranted doubt in the minds of the jurors that his testimony is truthful. In the case of a defendant, however, the hazard is the far more serious danger that the jury will draw the unjustified inference that the defendant’s pretrial silence was the equivalent of an admission of guilt. It is because of this substantially greater potential for prejudice when it is the defendant whose testimony is to be impeached by his own pretrial silence that we reach a different conclusion in this case than that reached in Dawson.


source: Caselaw Access Project

author: Wachtler, J. Jasen, J.

license: Public Domain

text:
    Uniformed Firefighters Association, Local 94, IAFF, AFL-CIO, et al., Respondents, v Augustus A. Beekman, as Fire Commissioner of the City of New York and Chairman of the Board of Trustees, et al., Appellants. In the Matter of the City of New York et al., Appellants, v Nicholas Mancuso et al., Respondents. In the Matter of Samuel De Milia, as President of the Patrolmen’s Benevolent Association of the City of New York, et al., Respondents, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Appellants.
    Argued February 18, 1981;
    decided April 2, 1981

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Leonard Koerner and Paul T. Rephen of counsel), for appellants in the first above-entitled matter.
    I. Special Term’s reading of section 207-k of the General Municipal Law and section B19-7.84 of the Administrative Code of the City of New York is contrary to the plain language of these provisions and is counter to their legislative history. Even under the heart bill, an applicant for accidental disability retirement must affirmatively establish accidental causation. (Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Matter of Ferrigno v Board of Trustees of Police Pension Fund of City of N. Y., Art. II, 63 AD2d 872, 48 NY2d 788; Matter of De Leon v Levitt, 65 AD2d 646; Matter of Bunnell v New York State Policemen’s & Firemen’s Retirement System, 50 AD2d 244, 39 NY2d 742; Matter of Croshier v Levitt, 5 NY2d 259; Matter of Brady v City of New York, 22 NY2d 601; Matter of Tremblay v Levitt, 65 AD2d 901 ; Matter of Meyer v Levitt, 64 AD2d 743.) II. Special Term should have directed respondent union trustees to cease boycotting action on heart bill cases. (Matter of City of New York v Schoeck, 294 NY 559.)

      Murray A. Gordon, Edward M. Edenbaum and Kenneth E. Gordon for respondents in the first above-entitled matter.
    I. Section 207-k of the General Municipal Law creates a rebuttable presumption of entitlement to the pension benefits provided by section B19-7.89 of the Administrative Code of the City of New York and is not the nullity which it is rendered by appellants’ construction. (Williams v Williams, 23 NY2d 592; New York State Bankers Assn. v Albright, 38 NY2d 430; Helvering v Reynolds Co., 306 US 110; National Labor Relations Bd. v Bell Aerospace Co., 416 US 267; Matter of Hotel Assn. of N. Y. City v Weaver, 3 NY2d 206; Matter of Foscarinis [Corsi], 284 App Div 476; Matter of Dobess Realty Corp. v Magid, 186 Misc 225; Matter of Del Giorno v Police Dept. of City of N. Y., 33 AD2d 665, 26 NY2d 821; Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464; United States v American Trucking Assns., 310 US 534; Woollcott v Shubert, 217 NY 212. II. The construction of the term “accidental” in section B19-7.84 by the courts below was clearly correct. (Bell Aerospace Co. Div. of Textron v National Labor Relations Bd., 475 F2d 485; United States v Leslie Salt Co., 350 US 383; Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Masse v Robinson Co., 301 NY 34; Matter of Gray v Semete-Solvay Co., 231 NY 518; Matter of Jamroz v Refined Syrups & Sugars, 33 AD2d 859; Matter of Greensmith v Franklin Nat. Bank, 21 AD2d 576, 16 NY2d 973; Matter of Suber v Hope’s Windows, 38 AD2d 656; Matter of Jones v Curran & Co., 33 AD2d 525.) III. The courts below correctly dismissed appellants’ mandamus proceeding. (Matter of City of New York v Vizzini, 54 AD2d 535; Textron, Inc. v American Woolen Co., 122 F Supp 305.)

      Allen G. Schwartz, Corporation Counsel (Leonard Koerner, Jeffrey D. Friedlander and Paul T. Rephen of counsel), for appellants in the second above-entitled matter.
    In order to be entitled to retirement for accident disability or to accidental death benefits under the relevant provisions of the city’s administrative code relating to police officers and firefighters, an applicant must demonstrate both that the disability or death was service connected and was the result of an accident. The specific language of section 207-k of the General Municipal Law provides that impairment of the health of certain police officers and firefighters which result from diseases of the heart is presumed to be service connected. However, nothing in the language of that provision, its legislative history, or-the rules of statutory construction demonstrates that the Legislature intended that it be read as providing an additional presumption of accident causation. (New York State Bankers Assn. v Albright, 38 NY2d 430; United States v American Trucking Assns., 310 US 534; Matter of Woodruff v Howes Constr. Co., 228 NY 276; Matter of Croshier v Levitt, 5 NY2d 259; Matter of Drayson v Board of Trustees of Police Pension Fund of City of N. Y., Art. 2, 37 AD2d 378, 32 NY2d 852; Matter of Brady v City of New York, 22 NY2d 601; Matter of McCadden v Moore, 276 App Div 490, 301 NY 760; Matter of Sansone v Levitt, 67 AD2d 1044; Matter of Tremblay v Levitt, 65 AD2d 901.)

      W. Bernard Richland and David S. Weiss for respondents in the second above-entitled matter.
    The terms and the expressed intent of the Legislature conclusively establish as law the long-standing practice, application and interpretation of the “heart bill” to require the presumption that a cardiac-incurred death or disability of a police officer mandates the grant of accidental death or disability pension benefits, absent a showing by competent proof that such cardiac-incurred death or disability did not arise out of the performance of police duty. (Matter of Currie v Town of Davenport, 37 NY2d 472; Gasperino v Larsen Ford, 300 F Supp 1182, 426 F2d 1151, 400 US 941; People v Newman, 32 NY2d 379, 414 US 1163; Park West Mgt. Corp. v Mitchell, 47 NY2d 316; Matter of Board of Educ. v City of New York, 41 NY2d 535; Matter of Chatlos v McGoldrick, 302 NY 380.)
   OPINION OF THE COURT

Wachtler, J.

The question in these cases is whether section 207-k of the General Municipal Law, often called the “heart bill”, establishes a presumption that a disabling or fatal heart condition suffered by a New York City policeman or fireman was accidentally sustained as a result of his employment which, if not rebutted by contrary proof, entitles the employee or his family to accidental, line-of-duty pension or death benefits.

The courts below held that the statute establishes such a presumption. The city and its representatives appeal. They concede that the statute establishes a presumption that the heart condition was job related. They urge, however, that it does not create any presumption that the heart condition was accidental. Thus in their view, to qualify for the benefits, the employee or his family must affirmatively prove that the heart condition which caused the disability or death was the result of a particular accident occurring at a specific time and place.

The City of New York has long provided special pension benefits to police officers and firemen who become disabled as a result of their service to the city. Prior to 1940 these line-of-duty retirement benefits were payable upon a -finding that the disability was job related; there was no requirement that it be the result of an accident (L 1920, ch 427, § 1; Administrative Code of the City of New York, §§ B18-4.0, B19-4.0). In that year, however, when the present retirement system was adopted, the Administrative Code sections providing line of duty disability and death benefits for policemen and firemen required and still require proof that the employee’s disability or death was accidental (Administrative Code, §§ B18-39.0, B18-43.0, B19-7.8, B197.84). Thus, for instance, line-of-duty death benefits are not payable unless there is evidence that the employee’s death “was the natural and proximate result of an accident sustained while a member and while in the performance of duty at some definite time and place and that such death was not the result of wilful negligence on his part” (Administrative Code, §§ B18-39.0, B19-7.8).

In most cases, where a police officer or fireman suffers a sudden traumatic injury during a particular incident, the code’s requirement of proof establishing a job-related accident poses no real impediment to recovery of a line-of-duty pension or death benefits. For many years, however, the police and firemen’s associations have urged the Legislature that this requirement creates an unrealistic, if not impossible, burden of proof in cases where death or disability results from a heart condition. It is their position that statistical and medical studies show that heart conditions are an occupational hazard for firemen and police officers serving in large metropolitan areas. They claim that such conditions are the result of a gradual process attributable to the continuous stress and sudden bursts of physical and mental strain routinely required in the line of duty and that it is unrealistic to look for particular incidents as the cause (see, e.g., Memorandum, NY Legis Ann, 1970, pp 85-86). Throughout the years various public officials and agencies have opposed, and continue to oppose, any relaxation of the burden of proof in these cases, noting that heart conditions are generally not considered job-related accidents and that there is insufficient support for the contention that this is a special risk for those employed as firemen or police officers.

From 1948 to 1968 a dozen heart bills similar to section 207-k of the General Municipal Law were passed by the Legislature but on each occasion were vetoed by the Governor (see State Division of the Budget Report, May 4, 1970, reprinted in the Appendix to Uniform Firefighter’s Assn, v Beekman, at p 191). Finally in 1970, the Legislature passed and the Governor signed section 207-k of the General Municipal Law, which in relevant part provides: “Notwithstanding the provisions of any * * * administrative code to the contrary * * * any condition of impairment of health caused by diseases of the heart, resulting in total or partial disability or death to a paid member of the uniformed force of a paid police department or fire department * * * who successfully passed a physical examination on entry into the service * * * which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

The statute which was originally effective for a year was reenacted annually until 1979 when it was extended for a two-year period expiring on June 30, 1981 (L 1979, ch 321). Following the adoption of this statute, at least until 1979, the Boards of Trustees of the Police Department Pension Fund and the Fire Department Pension Fund granted accidental line-of-duty disability pensions and death benefits in heart cases without requiring proof that the condition was the result of any particular accidents or incidents in the employee’s career. In 1973 the Corporation Counsel of the City of New York endorsed this action by issuing an opinion in which he concluded that it carried out the evident intent of the Legislature.

In recent years, however, the Mayor of the City of New York has spoken against the heart bill and in 1979 urged the Legislature not to reenact it. In addition the Corporation Counsel informed the board of trustees of the pension fund that “it does not have discretion to interpret” the statute “as it has in the past”. Rejecting the 1973 opinion of his predecessor, the Corporation Counsel issued a new opinion (No. 22-79) in which he concluded that “accidental causation of heart disability or death is not to be presumed under 207-k”; instead the burden is on the applicant to prove that the disabling or fatal heart condition was accidentally caused. He also informed the trustees that accidental causation could not be established by proof of a “health impairment which progressively develops from the performance of the duties” normally associated with the position. Rather the applicant must show that the condition was the result of a particular, sudden and unexpected event in which the employee was not performing “the ordinary activities expected of persons in such employment.”

The sponsor of the 1979 reenactment of the statute expressly rejected this interpretation and stated on the record that the purpose of the bill was to create a presumption which “extended to every element of proof of a line of duty disability, including proof of the line of duty accidental nature of the disability * * * [this] presumption would prevail where there was not substantial competent evidence to show that the heart disability was not sustained by a line of duty accident.”

The 1979 opinion of the Corporation Counsel produced a deadlock in each of the boards, which by statute are composed of representatives of the city and the employees, each group having an equal number of votes with 7/12ths necessary for a quorum and to sustain any board action (Administrative Code, §§ B18-13.0, B18-2.0, B19-7.56). The city trustees made clear their intention to deny any heart disability applications which were not supported by evidence of accidental causation as prescribed in the opinion of the Corporation Counsel, thus relegating the applicant to ordinary disability or death benefits (Matter of City of New York v Schoeck, 294 NY 559). The trustees representing the employees then commenced these suits challenging the new interpretation of the statute and, to prevent the boards from granting only ordinary disability or death benefits by an equally divided vote, refused to attend meetings relating to heart disability applications, thus depriving the boards of a quorum. The city in turn brought mandamus proceedings against the employees’ trustees to compel them to attend the meetings and vote on the applications.

In Matter of De Milia v McGuire, brought by the police officers as an article 78 proceeding, Justice Ascione converted the proceeding into a declaratory judgment and held that the statute created a dual presumption of line-of-duty and accidental causation. Subsequently in Uniformed Firefighters Assn. v Beekman, Justice Greenfield held that the statute had the same effect in eases involving applications for line-of-duty, accidental disability filed by firemen with heart conditions. He also concluded that this determination rendered unnecessary the city’s petition for an order of mandamus against the employees’ trustees in Matter of City of New York v Mancuso.

On appeal to the Appellate Division the three suits were consolidated and affirmed, without opinion. The Appellate Division also granted the city and its representatives leave to appeal to this court.

The appellants note that by its terms section 207-k only creates a presumption that a heart condition suffered by a police officer or fireman was incurred in the performance of his duty, and makes no reference to accidental causation. They claim that the statute is clear and unambiguous on its face and that it should not be held to create any presumption that a heart condition was accidentally caused.

However, as we have recently indicated, “the absence of ambiguity facially is never conclusive. Sound principles of statutory interpretation generally require examination of a statute’s legislative history and context to determine its meaning and scope” (New York State Bankers Assn. v Albright, 38 NY2d 430,434). Here the extensive legislative history shows that the literal reading proposed by the city would frustrate the statutory purposes.

As noted, the theory behind the bill, as outlined by its proponents, is not only that heart conditions are an occupational hazard for police officers and firemen, but also that this is a unique condition which generally is not the result of any particular incident but involves a gradual and progressive degeneration as a result of the continuous stress and strain of the job. The practical application of the statute by the boards shows that they understood it to have the effect of dispensing with the need for heart disability applicants to point to particular accidents as the cause of the condition. This practical interpretation, involving operational practices, by the agencies primarily responsible for administering the statute is entitled to great weight (see, e.g., Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). The Legislature which was annually apprised of the controversy surrounding the statute must have been aware of the way it was being interpreted and administered and by reenacting it on nine separate occasions, without any change in the wording, must be deemed to have accepted the interpretation (cf. Lucenti v Cayuga Apts., 48 NY2d 530, 541). This is especially true of the most recent enactment when the sponsor of the bill expressly endorsed the accepted and long-standing interpretation.

We recognize that in similar statutes, relating to firemen and police officers employed by the State or localities outside the City of New York, the Legislature has, after some apparent experimentation, adopted a different approach to this type of presumption (see Retirement and Social Security Law, § 363-a). With respect to police officers and firemen in the City of New York, however, the Legislature has not seen fit to change the statute or its settled effect despite the city’s ardent efforts. For the courts to approve a change in the interpretation of the statute, which would blunt its known impact, would amount to judicial repeal.

Thus we agree with the courts below that plaintiffs are entitled to a declaratory judgment that section 207-k of the General Municipal Law creates a presumption that a disabling or fatal heart condition suffered by a New York City police officer or fireman was accidentally sustained as a result of his employment if not rebutted by contrary proof. We also agree that this declaration eliminates the factor which caused the employees’ trustees to absent themselves from board meetings involving heart disability applications thus rendering unecessary the city’s petition for mandamus relief.

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

Jasen, J.

(dissenting). The majority today holds that subdivision a of section 207-k of the General Municipal Law establishes a dual presumption that any disabling or fatal heart condition suffered by a New York City policeman or fireman is not only service connected, but is also the result of an accident, thus entitling the employee or his family to “accidental” rather than “ordinary” pension or death benefits for any such ailment. In my view, such an interpretation is contrary to the clear and unequivocal wording of the statute and was not intended by the Legislature. I, therefore, respectfully dissent.

In general, a New York City policeman or fireman is entitled to “accidental” as opposed to “ordinary” retirement or death benefits only if it can be shown that the condition causing the disability or death occurred in the line of duty and was the result of a specific accident. (Administrative Code of the City of New York, §§ B18-39.0, B18-43.0, B19-7.8, B19-7.84.) By enacting section 207-k (subd a) of the General Municipal Law, the so-called “heart bill”, the Legislature significantly lessened the burden of proof imposed upon New York City policemen and firemen as an antecedent to the collection of “accidental” benefits by relieving them of the requirement of proving that the condition causing their death or disability occurred in the “line of duty”. This result was obtained through the creation of a rebuttable statutory presumption that the ailment was “incurred in the performance and discharge of duty”. (General Municipal Law, § 207-k, subd a.)

Nowhere in the statute is any mention mad'e, directly or indirectly, of the further requirement that the disabling or fatal condition be the result of a specific accident. Indeed, it is indisputably clear that the statute does not provide for a presumption that the employee’s disability or death was accidental. Nonetheless, a majority of this court has decided today that the Legislature, by explicitly creating one narrow presumption, has in fact created two and has, for some unknown reason, simply not bothered to spell out the second one in the statute.

The majority bases its conclusion solely upon the legislative history and prior administrative interpretation of the statute. While such interpretive guideposts may appropriately be used to discern the Legislature’s intent where that body has ambiguously expressed its will, they may not be used as a license to ignore the plain meaning of a statute or as the justification to extend the terms of an otherwise clear legislative enactment. In the guise of construing the statute in light of its history to save it from “judicial repeal”, the court has today judicially amended the statute to extend its scope by adding a second presumption which finds no support whatever in the language of the statute. In doing so, the court has gone beyond the bounds of proper judicial interpretation. Instead of interpreting the words of the statute, the majority has decided to rewrite them. I decline the invitation to sit as a member of a committee on revision. (Matter of Barton v Lavine, 38 NY2d 785, 787.)

This court long ago decided that the best way to determine what the Legislature meant was to examine what it said. While a strictly literal reading of statutory language is rarely necessary and many extrinsic sources may properly be consulted to assist the court in the interpretation of the words used by the Legislature, this court has consistently held that such sources are no substitute for the clear and unambiguous language of the statute. In McCluskey v Cromwell (11 NY 593, 601-602), for example, this court stated: “[I]n the construction, both of statutes and contracts, the intent of the framers and parties is to be sought, first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable, to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture, in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction, for the purpose of either limiting or extending their operation. Courts cannot correct supposed errors, omissions or defects in legislation, or vary by construction, the contracts of parties. The office of interpretation is to bring sense out of the words used, and not bring a sense into them. (Lieber’s Political and Legal Hermeneutics 87; 2 Ruth. Inst., ch. 7, § 2; Story on Const., § 392; Purdy v. People, 4 Hill 384; Smith’s Statutes, &c., § 478; Waller v. Harris, 20 Wend. 561.)” This rule of statutory construction has been consistently followed by this court. (See, e.g., Matter of Barton v Lavine, 38 NY2d 785, 787, supra; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 305; Meltzer v Koenigsberg, 302 NY 523, 525; Town of Putnam Val. v Slutzky, 283 NY 334, 343; Matter of Hering v Clement, 196 NY 218, 220-221; Settle v Van Evrea, 49 NY 280, 281-282; Newell v People ex rel. Phelps, 7 NY 9, 97 [Johnson, J., concurring].)

The majority attempts to avoid this settled rule of construction by noting that a literal reading of statutory terms is rarely “conclusive”, relying upon New York State Bankers Assn. v Albright (38 NY2d 430). Such reliance is, in my view, misplaced. As a general proposition, the majority is, of course, correct in its statement that stark literalism is no substitute for reasoned interpretation, and the Bankers Assn. case clearly supports this notion. However, it is also clear that the court in Bankers Assn. did not intend to overrule the equally important rule of statutory construction that a clear statute needs no interpretation. Moreover, it must be remembered that what was rejected in Bankers Assn, was an attempt to artificially extend the terms of a statute beyond their intended meaning with an interpretation by a litigant which was at best only arguably supported by a literal reading of the statute. That case provides little authority for the judicial extension of a clear statute undertaken by the majority in the instant case.

Nor am I persuaded that the prior administrative interpretation of the statute compels the result reached by the majority. It is true that the Corporation Counsel of the City of New York had, between 1973 and 1979, consistently accepted the dual presumption upon which this court today places its imprimatur. However, we have only recently noted that where “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight. And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight.” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459.) Here, no special competence is required to understand the language used by the Legislature and the administrative interpretation clearly ignores that language. Hence, the prior opinions of the Corporation Counsel and the prior practice of the trustees of the various pension funds should be accorded no weight.

Finally, if there were any doubt that the Legislature understood how to create a dual presumption when it intended to, we need look no further than the analogous “heart bill” statutes applying to other police officers and firemen in this State to dispel this doubt. In 1969, the Legislature enacted section 363-a of the Retirement and Social Security Law (L 1969, ch 1103, §1) which explicitly contained a presumption that the heart ailments of covered firemen and policemen were the result of an accident. In 1973, that statute was amended to include a separate and distinct “line of duty” presumption much like the one embodied in subdivision a of section 207-k of the General Municipal Law. (L 1973, ch 1046, § 30.) In 1974, the Legislature deleted the “accidental injury” presumption in the Retirement and Social Security Law insofar as it applied to policemen while leaving intact the presumption for firemen. (L 1974, ch 967, § 1.) While the question of the effect of this deletion has not yet reached this court, it has been interpreted below as depriving such policemen of the benefit of this presumption. (Matter of Acciavatti v Levitt, 57 AD2d 131.) This legislative treatment of identical subject matter makes it clear that when the Legislature intends to afford a public servant the benefit of an “accidental injury” presumption, it knows full well how to enact one. Hence, where, as here, the Legislature fails to include such a presumption in a “heart bill”, it can only be concluded that the omission was intentional.

In sum, it seems to me that neither the legislative history of subdivision a of section 207-k of the General Municipal Law or its prior administrative interpretation compels the result reached by the majorty today. I would, therefore, modify the orders appealed from in Uniformed Firefighters Assn, v Beekman and Matter of De Milia v McGuire by reversing so much of such orders as affirm judgments declaring that subdivision a of section 207-k of the General Municipal Law contains a presumption of accidental casualty and further modify such orders by declaring that the statute provides only for a rebuttable presumption that the disabling or fatal heart ailment of a New York City policeman or fireman was incurred in the line of duty.

I note also that I would grant the relief requested by the city in Matter of City of New York v Mancuso. (See Matter of City of New York v De Milia, 73 AD2d 849.) However, in light of the decision of the majority on the primary issue in these cases, there is no need to detail the reasons for my view on this issue.

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

In each case: Order affirmed, with costs.

      . The mandamus proceeding against the trustees of the Police Retirement Fund was decided prior to these suits (see Matter of City of New York v De Milia, 73 AD2d 849) and is not a part of this appeal.

      . As originally enacted, section 363-a provided that a heart condition suffered by a policeman or fireman was presumed “to be the natural and proximate result of an accident” (L 1969, ch 1103). In 1973 the statute was amended to provide that the presumption extends to both service connection and accidental cause (L 1973, ch 1046, § 30). In 1974 it was again amended to provide that the dual presumption only applies to firemen. Policemen now only have a presumption that the condition was job related (L 1974, ch 967, § 1).

      . The statute provides in full:
      “§207-k. Disabilities of policemen and firemen in certain cities.
      “a. Notwithstanding the provisions of any general, special or local law or administrative code to the contrary, but except for the purposes of sections two hundred seven-a and two hundred seven-c of this chapter, the workmen’s compensation law and the labor law, any condition of impairment of health caused by diseases of the heart, resulting in total or partial disability or death to a paid member of the uniformed force of a paid police department or fire department, where such paid policemen or firemen are drawn from competitive civil service lists, who successfully passed a physical examination on entry into the service of such respective department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”


author: Per Curiam.

text:
    In the Matter of William Cahn, an Attorney, Appellant, v Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Responent.
    Argued February 12, 1981;
    decided April 7, 1981

      POINTS OF COUNSEL

      Edward Newman for appellant.
    I. Appellant has not been convicted of a criminal offense, which if committed in this State would constitute a felony. (Matter of Chu, 42 NY2d 490; People v Gottlieb, 36 NY2d 629; United States v Aadal, 368 F2d 962, 386 US 970; People ex rel. Goldman v Denno, 9 NY2d 138; Matter of Leifer, 63 AD2d 174; Rubin v Empire Mut. Ins. Co., 25 NY2d 426; Greenspan v Travelers Ins. Co., 98 Misc 2d 43.) II. Automatic disbarment deprives appellant of due process and equal protection constitutional rights. (Schware v Board of Bar Examiners, 353 US 232; Vlandis v Kline, 412 US 441; Stanley v Illinois, 405 US 645; Matter of Milchman, 74 AD2d 92; Matter of Schleimer, 69 AD2d 142; Matter of Howard, 75 AD2d 933; Matter of Rinehart, 74 AD2d 314; Matter of Brown, 75 AD2d 398; Miller v Carter, 547 F2d 1314, 434 US 356; Jiminez v Weinberger, 417 US 628.)

      Frank A. Finnerty, Jr., for respondent.
    I. The constitutionality of the automatic disbarment of attorneys convicted of felony crimes, without further hearing, is beyond cavil. (Matter of Peltz, 60 AD2d 587, 43 NY2d 646, 436 US 926; Matter of Davis, 60 AD2d 613, 44 NY2d 641, 439 US 881; Matter of Rosenberg, 62 AD 2d 1065, 44 NY2d 648, 439 US 934; Matter of Brasco, 62 AD2d 1006, 45 NY2d 711, 441 US 905; Matter of Podell, 61 AD2d 1019, 45 NY2d 711, 441 US 905; Matter of Thies, 61 AD2d 1037, 45 NY2d 865, 924, 46 NY2d 940.) II. Certain Federal felony crimes of which petitioner-appellant was convicted work an automatic disbarment in New York notwithstanding the July, 1979 legislative amendment of section 90 of the Judiciary Law.

      Stanley R. Goodman for Long Beach Lawyers Association, amicus curiae.

    In the absence of statutes embracing conduct of equal scope and magnitude, an examination of the record should be made, prior to automatic disbarment under section 90 (subd 4) of the Judiciary Law. (Matter of Chu, 42 NY2d 490; People v Broody, 5 NY2d 500; Matter of Barash, 20 NY2d 154; Matter of Schleimer, 69 AD2d 142; Matter of Rosenbaum, 72 AD2d 251; Matter of Milchman, 74 AD2d 92; United States v Knox, 396 US 77; Matter of Howard, 75 AD2d 993; Matter of Rinehart, 74 AD2d 314; Matter of Brown, 75 AD2d 398.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division for further proceedings in accordance with this opinion. The question certified should be answered in the negative.

Appellant was admitted to the New York Bar in 1949 and served for a number of years as Nassau County District Attorney. He was convicted in 1976 in Federal court of offenses that included making false statements, a felony under Federal law (US Code, tit 18, § 1001). Because appellant’s Federal felony conviction automatically disbarred him under subdivision 4 of section 90 of the Judiciary Law, as it then existed (see Matter of Chu, 42 NY2d 490; Matter of Thies, 45 NY2d 865), the Appellate Division ordered appellant’s name stricken from the roll of attorneys (Matter of Cahn, 59 AD2d 179, mot for lv to app den 44 NY2d 641, cert den 439 US 1069).

The Legislature amended section 90 in 1979 to limit automatic disbarment to only those felonies in other jurisdictions that would also constitute felonies under New York law (L 1979, ch 674). At the same time, it provided that an attorney who had been automatically disbarred under the prior law could seek vacatur or modification of the disbarment on the ground that the offense in the other jurisdiction would not be a felony in New York (L 1979, ch 674, § 3). Appellant brought a petition pursuant to this provision, which requires that the Appellant Division determine if the offense for which the petitioner was convicted would be a felony under State law and, if not, grant a hearing to consider whether any relief would be appropriate. For purposes of this determination, the felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail (see Matter of Chu, 42 NY2d 490, 492, swpra), though it must have essential similarity. Because the Appellate Division failed to expressly determine the threshold question whether appellant’s offense would constitute a felony under New York law, the matter should be remitted for this determination and such other proceedings as are proper.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Wachtler taking no part.

Order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. Question certified answered in the negative.


author: Jasen, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Jose Rodriguez, Appellant.
    Argued February 11, 1981;
    decided April 9, 1981

      POINTS OF COUNSEL

      David B. Perlmutter for appellant.
    The trial court’s failure to suppress physical evidence seized from Ridriguez was reversible error due to the clear absence of probable cause for defendant’s underlying arrest. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; United States v Harris, 403 US 573; People v West, 44 NY2d 656; People v Elwell, 50 NY2d 231; Wong Sun v United States, 371 US 471; Whiteley v Warden, 401 US 560; People v Hanlon, 36 NY2d 549; People v Brown, 40 NY2d 183; People v Hendricks, 25 NY2d 129.)

      Robert M. Morgenthau, District Attorney (Grace Goodman and Vivian Berger of counsel), for respondent.
    I. Defendant’s suppression motion was correctly denied since the informer’s reliability and the trustworthiness of his information were shown to be sufficient to permit the police officer to rely upon the information, which provided probable cause for defendant’s arrest. (Aguilar v Texas, 378 US 108; People v Elwell, 50 NY2d 231; United States v Canestri, 518 F2d 269; People v Coffey, 12 NY2d 443, 376 US 916; People v Powell, 30 NY2d 634; People v Bowers, 50 A2d 1047; Spinelli v United States, 393 US 410; Draper v United States, 358 US 307; People v Hanlon, 36 NY2d 549; People v Holmes, 50 AD2d 792.) II. The alleged factual and legal errors in the decision of the suppression court do not warrant reversing the conviction. (People v Slaughter, 37 NY2d 596; People v Powell, 36 AD2d 177, 30 NY2d 634; People v Cerrato, 24 NY2d 1, 397 US 940.)
   OPINION OF THE COURT

Jasen, J.

The question before us is whether, in the circumstances of this case, the courts below could properly conclude that a police informant was sufficiently reliable and was possessed of a sufficient basis of knowledge to justify the warrantless arrest of defendant based upon that informant’s tip.

This case arises out of a police investigation focused upon the Brown Social Club at 233 Eldridge Street in Manhattan, a gathering place thought by police to be a source of illegal narcotics. Detective William Burbage, a New York City police officer assigned to the United States Department of Justice to aid in narcotics investigations in the city, was charged with the duty of observing the club from the window of an apartment across the street. On October 31,1977, Burbage observed the defendant Jose Rodriguez at the Brown Social Club between 2:00 and 3:00 p.m. talking to various people within and without the club. He was identified at that time by a motor vehicle registration check of his automobile which was parked in front of the club.

Later that day, Burbage was notified that an individual named Louis Garcia, who was in police custody on an unrelated charge, had information which he was willing to relate upon condition that his co-operation be noted with appropriate authorities. Burbage immediately went to meet Garcia at Beekman Downtown Hospital where the latter was receiving medical treatment while in custody. During a lengthy interview, Garcia gave what Burbage would later describe as a “run-down” on eight individuals involved in the sale of large quantities of heroin. The information conveyed matched to a great extent facts already uncovered by the police in their on-going investigation. Indeed, some of those mentioned had already been apprehended on drug charges. Garcia stated that he acquired his knowledge of this illegal activity through narcotics dealings with several people involved in the drug trade on Eldridge Street.

With respect to defendant Rodriguez, Garcia related the following information: that Rodriguez was the manager of the Brown Social Club; that he supplied the club with heroin for sale to customers; that he owned a 1965 Buick and that the first three numbers on its license were 964; that the Buick was multicolored on the right side because of body damage; that Rodriguez went daily between 8:00 and 9:00 A.M. to an apartment on Second Street between First and Second Avenues to obtain heroin from a white male named “Jerry”, which Rodriguez would then deliver to the club; and that the heroin would be wrapped in multicolored packets which would in turn be wrapped in newspaper. Garcia also gave the police a description of Rodriguez which accurately described the man observed by the police earlier in the day.

On the strength of this information, a police surveillance team was set up the next morning to observe the area of Second Street between First and Second Avenues described by Garcia. At approximately 8:30 A.M., police observed defendant’s car, a 1965 Buick, license number 964 GMY, with damage and coloration as described by Garcia, parked upon the described portion of Second Street with one unidentified female occupant. Police also observed defendant enter and later exit from 73 Second Street, a four-story apartment building. The police did not see what apartment defendant visited in 73 Second Street and did not know what if anything occurred upon his visit there. When defendant emerged into the street, he re-entered his car and began to drive away. He was stopped by the police shortly thereafter at Houston Street and Second Avenue. He was immediately arrested and searched.

As a result of the search, police found a newspaper-wrapped package containing 350 multicolored packets, each containing heroin, in defendant’s sock. In his other sock was another package containing over 300 packets. Also, some 51 “aluminum” packets containing cocaine, along with two marihuana cigarettes, were found in defendant’s shirt pocket.

Defendant was charged with several crimes based upon his possession of illegal drugs. He moved to suppress the physical evidence obtained from him at the time of his arrest. This motion was denied after a hearing on November 20, 1978. Following the denial of his suppression motion, defendant failed to appear at his next scheduled court appearance. His bail was declared forfeited and a warrant was issued for his arrest. He was later arrested and pleaded guilty to one count of criminal possession of a controlled substance in the third degree (Penal Law, § 220.16) in satisfaction of the entire indictment and was sentenced to a term of imprisonment of from three to nine years. On appeal, the Appellate Division affirmed defendant’s conviction, without opinion, one Justice dissenting.

In this court, defendant asserts, as he did below, that the warrantless seizure of his person and. the concomitant seizure of the illegal drugs he carried were unlawful because the police did not have probable cause to believe he had committed any crime. He argues that the information provided by the informant Garcia did not provide probable cause because Garcia had not been shown to be a reliable informant and because the People failed to demonstrate that the information conveyed was based upon Garcia’s personal knowledge or observation of defendant. He concludes that his conviction must be reversed and an order of suppression granted.

This case presents a question by now familiar to this court, to wit: whether and under what circumstances an informant’s tip may be relied upon by police officers to justify a warrantless arrest and search of a citizen. The standard to be applied in such cases is also familiar. Before the liberty of one of our citizens may be placed in jeopardy on the hearsay relation of another, it must be shown that the informant has some “basis of knowledge” from which he could properly conclude that the subject of the tip was indeed involved in illegal activity and that the informant himself is reliable. (Aguilar v Texas, 378 US 108, 114.) It is our task upon this appeal to determine whether each of the components of this “two-prong test” have been satisfied.

We address ourselves first to the question whether the informant in this case can be considered to be “reliable” and conclude that he can be. To be considered “reliable”, an informant need not be a disinterested public-spirited citizen. The courts have long recognized that many police informants are not pillars of the community and many co-operate with the police only to curry favor with the authorities at a time when their own right to continued liberty is in peril. Indeed, the criminal record of an informant or the current predicament in which he finds himself within the criminal justice system does not necessarily render him unreliable. Neither, however, can we blithely accept as true the accusations of an informant unless some good reason for doing so has been established. Otherwise the liberty of each of us is at too great a risk. Thus, before the police can act upon the informant’s tale, they must be prepared to demonstrate that they had good reason to believe that this particular informant was telling the truth.

There is, of course, no one acid test of reliability. Over the years several factors have been considered by the courts to be adequate indicia of reliability. For example, an informant will be considered reliable if he has come forward with accurate information in the past. (Aguilar v Texas, 378 US 108, swpra.) He may also be considered reliable if he makes a statement under oath (People v Wheatman, 29 NY2d 337, 345) or where details of his story have been confirmed by police observation (People v Elwell, 50 NY2d 231, 237). It must be emphasized that the above-mentioned factors are merely illustrative and that no one factor is the sina qua non of reliability. In most cases, a combination of factors, considered together, lead the court to conclude that an informant is worthy of belief. So it is in this case.

Here, although Garcia had never before given information to police, there are other indicia of reliability in the record before us from which the courts below could properly conclude that Garcia was reliable. First, the information given, by Garcia corresponded exactly with information already in the possession of the police. His tip was not limited to an accusation of defendant. Rather, it also included a “run-down” of at least seven other individuals. Much of the information in this part of the tip had already been confirmed by the police in their independent investigation. Thus, while Garcia had never come forward before, the police could at least assure themselves that much of what he said was accurate, for they already knew it to be true. (See United States v Canestri, 518 F2d 269, 272; People v Coffey, 12 NY2d 443, cert den 376 US 916.) Second, Garcia’s description of defendant with regard to his appearance and his mode of operation was also confirmed by the police. This, too, could properly be considered as evidence of Garcia’s veracity. (People v Elwell, 50 NY2d 231, 237, supra.)

Defendant makes much of the fact that Garcia was in custody at the time of his statement, noting that he may have been willing to offer any statement, even a false one, to better his own position. However, as we have noted, Garcia’s predicament is not necessarily an indicator of his unreliability. In fact, it may well have been a strong motivation for Garcia to tell the truth. In custody on serious charges, Garcia made his statement to assist his captors in uncovering the crime of another. He knew that the police would act upon it. He must also have known that sending the police on a fruitless errand would avail him of little, for this sport, too, could as easily become part of his record. Hence, he had every reason to tell all and tell it truthfully.

In short, the record contains ample evidence from which the courts below could have concluded that Garcia was a reliable informant. We see no reason, on the record before us, to disturb the holdings of the courts below on this issue.

Having determined that Garcia was a reliable informant, we must now examine the question whether the People have sufficiently demonstrated that he had personal knowledge of facts upon which he could properly base his accusation of defendant. In other words, we must determine if the remaining component — the so-called “basis of knowledge” test — of the two-prong Aguilar standard has been satisfied.

Judicial inquiry into the factual basis of an informant’s tip is premised upon the notion that the relation of any informant, even a reliable one, is of little probative value if the informant has not himself witnessed the facts which he relates. In such a case, his personal credibility, which as we have noted must also be established, would be irrelevant, for he cannot personally stand behind the description of criminal activity which he gives. Moreover, if the tip of an otherwise reliable informant were accepted at face value, without inquiry into his “basis of knowledge”, the liberty of the subject of the tip could often be placed in jeopardy on the strength of mere rumor and suspicion. Inasmuch as the Constitution does not allow officers of the law in the normal course of their duty to base an arrest upon such slim authority, it would seem obvious that an informant’s tip, based upon equally insufficient grounds, cannot serve as the basis of a valid arrest. Thus, it has long been recognized that the police may not predicate a warrantless arrest upon an informant’s tip unless they are prepared to demonstrate that the informant had an adequate “basis of knowledge”. (Aguilar v Texas, 378 US 108, 114, supra; see, also, e.g., People v West, 44 NY2d 656, 657; People v Wirchansky, 41 NY2d 130, 131.)

In many cases, the basis of knowledge of an informant is established by his own testimony. If an informant carefully describes the underlying circumstances in which he obtained his information and his description of such circumstances clearly indicates that he speaks with personal knowledge of the event which he relates, the “basis of knowledge” requirement is satisfied. A much more difficult problem is presented where the informant does not specifically set forth the factual basis upon which his story rests.

One way of establishing an informant’s basis of knowledge in the absence of a clear statement by the informant of the source of his information has been through subsequent police verification of the details of the tip itself prior to making an arrest. Where the tip is extremely detailed, and the police verify by their own observation that the actions of the subject of the tip comport exactly with the prediction of the informant, it has been held in the Federal courts that it is reasonable to infer that the informant had personal knowledge of the facts which he so accurately related. (Draper v United States, 358 US 307; see, also, Spinelli v United States, 393 US 410.)

This court has only recently discussed this method of establishing an informant’s “basis of knowledge” in People v Elwell (50 NY2d 231, supra). In the Elwell case, we examined the scope of the Federal rule as articulated in Draper and its progeny and noted that the cases which applied the rule in this State were not easily reconciliable. After a thorough review of the case law and the applicable constitutional provisions, a majority of this court decided that whatever the rule may be under the Federal Constitution (US Const, 4th Arndt), the parallel provision of our State Constitution (NY Const, art I, § 12) required a holding that a warrantless search or arrest “will be sustained only when the police observe conduct suggestive of, or directly involving, the criminal activity about which an informant who did not indicate the basis for his knowledge has given information to the police” (50 NY2d, at p 241.) Thus, in Elwell we held that where an informant gives none of the underlying facts concerning his acquisition of the incriminating information conveyed and no other evidence exists from which a court could properly infer a “basis of knowledge”, police observation of innocent activity will not suffice to validate the arrest.

Defendant, relying upon our decision in Elwell, notes that in the case before us, the only activity monitored by the police prior to his arrest was defendant’s approach to and exit from 73 Second Street and his use of a damaged 1965 Buick and argues that observation of such innocent activity cannot serve to verify the information in the tip. While defendant is correct in his conclusion that in light of the Elwell case such police verification is an insufficient base upon which to predicate a finding that Garcia spoke with personal knowledge of the facts which he related, this conclusion does not end our inquiry for there exists another independent base upon which such a finding could properly be made.

Even though the courts below could not properly infer a “basis of knowledge” from police verification of defendant’s innocent acts, they could properly consider the detailed nature of Garcia’s statement with respect to the criminal activity he predicted as evidence to support the inference that Garcia spoke with personal knowledge. As we have only recently noted in Elwell, a warrantless arrest or search can be sustained not only where “conduct suggestive of, or directly involving, the criminal activity” is observed by police, but also where “the information furnished about the criminal activity is so detailed as to make clear that it must have been based on personal observation of that activity” (50 NY2d, at p 241; see, also, People v Hanlon, 36 NY2d 549, 557). Thus, where an informant’s tip describes a criminal enterprise in minute detail, the exactness of the language of the tip itself can serve to negate the inference that the informant is relying upon mere rumor or conjecture.

In this case, Garcia related the following information with respect to defendant Rodriguez: that Rodriguez was the manager of the Brown Social Club; that he supplied the club with heroin for sale to customers; that he owned a 1965 Buick and that the first three numbers on its license were 964; that the Buick was multicolored on the right side because of body damage; that Rodriguez went daily between 8:00 and 9:00 a.m. to an apartment on Second Street between First and Second Avenues to obtain heroin from a white male named “Jerry”, which Rodriguez would then deliver to the club; and that the heroin would be wrapped in multicolored packets which would in turn be wrapped in newspaper. The very existence of such detail in the tip could establish Garcia’s “basis of knowledge” and supports the inference that Garcia spoke with personal knowledge of the facts. Thus, on the basis of this detailed statement, the court below could properly conclude that Garcia had demonstrated to police an adequate “basis of knowledge”.

It must be remembered that the raison d’etre of all of the judicial tests which have been enunciated by the courts with respect to informants’ tips is to ensure that no arrest or search will be made without probable cause. We must not become so involved in the intricacies of judicial rule-making that we lose sight of this ultimate aim. Thus, the real question in this case is whether the officers who made the arrest in issue reasonably believed that defendant was committing a crime in their presence. This issue presents a mixed ques-ion of law and fact which is in most cases beyond the limited review powers of this court. (People v McRay, 51 NY2d 594, 601.) We have only recently noted that “where reasonable minds may differ as to the inference to be drawn from the established facts, this court, absent an error of law, will not disturb the findings of the Appellate Division and the suppression court”. (Id.) The record contains evidence from which the courts below could infer that the police had probable cause to arrest defendant and, more specifically, that Garcia spoke with personal knowledge of the facts in giving his detailed tip to police. Therefore, since we are unable to say as a matter of law that the record before us could not provide a legally sufficient base upon which to predicate such a factual finding, we can go no further.

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

Meyer, J.

(dissenting). Respectfully I dissent for in my view the facts of the instant case do not establish the basis for knowledge required by either the Federal constitutional test declared in Spinelli v United States (393 US 410) or the State constitutional test enunciated by us in People v Elwell (50 NY2d 231).

The Spinelli informant stated that Spinelli was operating a handbook using two specified telephone numbers, but did not give the source of his knowledge. The FBI had followed Spinelli for five days and observed him enter the apartment in a building in which were installed two telephones bearing the particular numbers. Moreover, the warrant application stated that Spinelli was known to the FBI and local enforcement agents as a bookmaker and associate of bookmakers. The Supreme Court held there was no sufficient basis for a finding of probable cause stating (at p 416): “We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v. United States, 381 U. S. 214 (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.”

Here the informant gave detail which aside from the colored wrappings and use of newspaper could readily have been obtained from rumor or general reputation. That others at the social club were known drug dealers no more strengthens the informant’s basis of knowledge than did the fact that Spinelli was known to be, and to associate with, bookmakers strengthen the informant’s basis of knowledge in Spinelli’s case. In Spinelli the telephone numbers were confirmed before the warrant was sought; here warrantless arrest was made without confirmation of the colored wrappings or use of newspaper or of anything more than that, like Spinelli, Rodriguez was seen on one day to visit a particular apartment.

The order of the Appellate Division should be reversed, the motion to suppress should be granted and the indictment should be dismissed.

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

Order affirmed.