author: Chief Judge Cooke.

text:
    In the Matter of Norman Bindler, Respondent, v Harrison J. Goldin, as Comptroller of the City of New York, et al., Appellants.
    Argued November 10, 1980;
    decided December 18, 1980

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Marvin R. Kwartler and L. Kevin Sheridan of counsel), for appellants.
    The Teachers Insurance and Annuity Association (TIAA) Education Law Optional Retirement Plan is a “public retirement system”. If it is not, there is no statutory authorization for the city to assume any portion of required employee contributions to such plan. (Matter of Alro Liqs. v New York State Liq. Auth., 29 AD2d 271, 27 NY2d 984; Matter of Pell v Coveney, 37 NY2d 494; Williams v Williams, 23 NY2d 592; Matter of Sabot v Lavine, 42 NY2d 1068; Matter of Breen v Board of Trustees of N. Y. Fire Dept. Pension Fund, 299 NY 8; New York State Bankers Assn. v Albright, 38 NY2d 430, 953; Matter of Anderson v Board

      of Educ., 46 AD2d 360, 38 NY2d 897; Mangam v City of Brooklyn, 98 NY 585; Matter of Marx v Bragalini, 6 NY2d 322; Metro Burak v Rosenthal & Rosenthal, 83 Misc 2d 637, 51 AD2d 1003.)

      Abraham L. Shapiro, Lewis Rosenberg and Jay Grossman for respondent.
    Chapter 892 of the Laws of 1975 refers only to public retirement systems and as such has no effect on TIAA member contributions to this private pension system. (Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205.)
   OPINION OF THE COURT

Chief Judge Cooke.

The issue on this appeal is whether the City of New York is authorized by subdivision b of section 480 of the Retirement and Social Security Law to pay only one half of an electing employee’s contribution to the optional retirement program pursuant to article 125-A of the Education Law (Education Law, §§ 6250-6256).

Petitioner has been a member of the faculty of Bronx Community College since 1963. In 1967, he elected to participate in the optional retirement program established under article 125-A and became a member of the Teachers Insurance and Annuity Association (TIAA), which operates the program. Article 125-A allows certain employees of the Board of Higher Education in the City of New York to elect to participate in the optional program as an alternative to membership in the New York City teachers’ or employees’ retirement systems (see Education Law, § 6253, subds 1, 2).

The optional program provides “for the purchase of contracts providing retirement and death benefits for or on behalf of electing employees”, which contracts are purchased through contributions by the city and employee, “to the extent authorized or required”, and are issued to and and become the property of the employee (Education Law, § 6251, subd 1). The board designates the insurer to which the contributions are to be paid and approves the form and content of contracts purchased (id., subd 2). The board is also authorized to provide for the administration of the optional program and to perform or authorize performance of the functions necessary thereto (id., subd 3). The city and board are not parties to the contract purchased under the optional program and are not liable for retirement or death benefits provided through the program; such benefits are payable by the insurer under the terms of the contract (§ 6255). Contributions are governed by section 6252, which specifies that 3% of an employee’s salary shall be deducted by the comptroller as the employee contribution, except that the employee contribution shall be assumed by the city “during such period as either section seventy-a of the retirement and social security law or section B3-36.1 or section B20-41.1 of the administrative code of the city of New York provides that the contribution of any member of the New York city employees’ retirement system or the New York city teachers’ retirement system in the employ of the city shall be reduced by at least eight percentum of his compensation” (Education Law, § 6252, subd 2). The final proviso to subdivision 2 of section 6252 provides that “notwithstanding any of the foregoing provisions of this subdivision to the contrary”, the city shall make the employee contribution for the fiscal year beginning July 1,1972 and ending June 30, 1973.

Until July, 1977, the city paid the 3% employee contribution. At that time, however, the comptroller began deducting from petitioner’s salary the employee contribution at the rate of 1.5% of his salary. The city took the position that the reduction by one half of its obligation to pay the employee contribution was required by subdivision b of section 480 of the Retirement and Social Security Law, which, although extending to 1981 any program set to expire in 1974 “under which an employer in a public retirement system funded by the state or one of its political subdivisions assumes all or part of the contribution which would otherwise be made by its employees toward retirement”, reduces by one half the rate of contribution “assumed by an employer in any of the public retirement systems funded and maintained by a city” for the period January 1, 1976 to July 1,1981.

When the city declined petitioner’s request to cease withholding the portion of his salary, he commenced this article 78 proceeding, alleging that the deduction was unauthorized in that the optional program was privately operated and thus not within the terms of subdivision b of section 480. Following respondents’ unsuccessful cross motion to dismiss on the grounds of laches and Statute of Limitations, and after service of an answer, Special Term granted the petition on the ground that the optional program was a private retirement system to which subdivision b Spf section 480 did not apply. The Appellate Division affirmed and granted leave to appeal to this court. For the reasons that follow, there should be a reversal.

Respondents urge that the optional retirement program, though privately operated by TIAA, is a public retirement system within the meaning of subdivision b of section 480. In support, respondents point to the history of subdivision 2 of section 6252 and subdivision b of section 480 and to the absence of other authority for the city to assume any part of the employee contribution. To the contrary, petitioner, asserting that the optional retirement program is a private system, maintains that subdivision b of section 480 is inapplicable because it applies only to public retirement systems. Since there is no doubt that a private retirement system is beyond the reach of subdivision b of section 480, the inquiry is whether the optional program is a private or public system within the meaning of the statute. It is concluded that the optional program is a public retirement system for purposes of subdivision b of section 480.

;

It is recognized that the optional retirement program created by article 125-A has certain attributes that are of a private nature. The program provides that retirement and death benefits are payable from a private source, the insurer with whom the employee contracts, rather than the city. Additionally, TIAA, a private entity, operates the program. These aspects of the program, however, cannot and do not negate the aspects of the program that connect it to the public and bring it within the reach of subdivision b of section 480.

Of telling significance is that the program is offered by a public entity, is available to public employees and is funded by contributions made by the public employer. Moreover, the board is charged with designating the insurer and approving the form and content of the contracts under which benefits are paid to electing employees. Authority to administer the program is vested in the board, which may perform or authorize performance of functions necessary to administration. Quite simply, the program operates under public authority for the benefit of public employees. The program is an alternative to other established public retirement systems and is merely another means for the city to provide retirement benefits to its employees. That the alternative relieves the city of certain burdens borne under then existing retirement systems does not mean the program is any less a public retirement system for purposes of subdivision b of section 480. Thus, the optional program does come within the language of subdivision b of section 480.

Additionally, the history and operation of subdivision 2 of section 6252 and subdivision b of section 480 show that the optional program was intended to benefit from the extension provided by subdivision b of section 480. The optional program originally obligated the city to assume the 3 % employee contribution only during the periods when the contribution of any member of the city employees’ or teachers’ retirement systems was being reduced by 8% 1965, ch 1028). In 1970, apparently in anticipation of a decrease in the reduction of employee contributions for certain members of the teachers’ retirement system and to assure continued payment by the city of the employee contribution for members of the optional program (see NY Legis Ann, 1970, p 189), a clause was added to subdivision 2 of section 6252 to provide that the city assume the employee contribution for fiscal year July 1,1970 to June 30,1971 without regard to the percentage reduction of contributions for members of the employees’ and teachers’ retirement systems (Education Law, § 6252, subd 2, as amd by L 1970, ch 771, § 2). That clause was twice amended to extend the city’s obligation for fiscal years 1971-1972 (Education Law, § 6252, subd 2, as amd by L1971, ch 611, § 2) and 1972-1973 (Education Law, § 6252, subd 2, as amd by L 1972, ch 375, § 2). During the 1970-1973 period, the rate of reduction in employee contributions did not reach 8% / Thus, as of June 30, 1973, nothing in subdivision 2 of section 6252 of the Education Law specifically authorized or obligated the city to assume the 3 % employee contribution.

The city’s obligation, however, was indeed continued beyond 1973. By section 2 of chapter 383 of the Laws of 1973, the Legislature introduced the predecessor to subdivision b of section 480, providing that “[a]ny program under which an employer in a public retirement system funded by the state or political subdivision thereof assumes all or part of the contribution which would be otherwise made by its employees toward retirement, which expires on or before August thirty-first, nineteen hundred seventy-three, shall be extended until August thirty-first, nineteen hundred seventy-three.” In the Extraordinary Session of that year, the Legislature amended section 2 of chapter 383 to extend to June 30, 1974 the programs under which a public employer assumed employee contributions (L 1973, ch 1046, §66). Significantly, the fiscal note to this legislation, summitted pursuant to section 50 of the Legislative Law, expressly points to the costs to New York City of extending the optional retirement program (see Fiscal Note, Part V, reprinted in McKinney’s Session Laws of NY, 1973, pp 1957,1959). The Legislature again extended such programs until July 1, 1976, adding subdivision b of section 480 to the Retirement and Social Security Law (L 1974, ch 510, § 24).1

In 1975, at the height of the city’s fiscal crisis, the Legislature amended subdivision b of section 480, by adding a clause that from January to June, 1976 the rate of contribution “assumed by an employer in any of the public retirement systems funded and maintained by a city, shall be one-half of the rate of such contribution assumed by such employer for the immediately preceding payroll period” (Retirement and Social Security Law, § 480, subd b, as added by L 1974, ch 510, § 24, as amd by L 1975, ch 892, § 1). Through subsequent amendments, the programs under which an employer in a public retirement system assumed employee contributions and the city’s modified obligations were extended to July 1,1981 (Retirement and Social Security Law, § 480, subd b, as added by L 1974, ch 510, § 24, as amd by L 1975, ch 892, § 1, as amd by L 1976, ch 491, § 2, as amd by L 1977, ch 347, § 1, as amd by L 1978, ch 464, § 7, as amd by L 1979, ch 321, § 7). Thus, the city’s obligation to assume employee contributions under the optional program was extended by subdivision b of section 480 and its predecessors, but was modified by requiring the city to assume only one half of the employee contribution.

In sum, the statutory development in subdivision 2 of section 6252 of the Education Law and subdivision b of section 480 of the Retirement and Social Security Law lead to the conclusion that the city lawfully deducted from petitioner’s salary the employee contribution at a rate of 1.5% of his salary. The term “public retirement system” under subdivision b of section 480 has not been statutorily defined to exclude the optional program from its scope and the indicia of a public system evident in the optional program and the language and history of subdivision b of section 480 indicate that members of the program indeed were to benefit from the extension. Nothing has been brought to the court’s attention that compels a different conclusion.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

      . During the 1970-1973 period, the rate of reduction in employee contributions authorized by section B3-36.1 of the New York City Administrative Code did not reach 8% (see Administrative Code of City of New York, § B3-36.1, subd m, par 1, els [i]-[k] ; par 2, els [h]-[j]). Under section B20-41.1 of the code, for fiscal year 1970-1971, the authorized rate of reduction in employee contributions was 5%, contingent upon passage of certain legislation, or 8% in the event the legislation failed (Administrative Code, § B20-41.1, subds m, n), and for fiscal years 1971-1972 and 1972-1973 the rate was 5% (id., subds o, p). The Administrative Code does not itself provide for reduction beyond 1973 and the rate last authorized by sections B3-36.1 or B20-41.1 did not reach 8%.

      . Here too, the fiscal note points to the costs to the city of extending increased take-home pay provisions (see Fiscal Note, Part III, reprinted in McKinney’s Session Laws of NY, 1974, pp 681, 683).


source: Caselaw Access Project

author: Jones, J. Jasen, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Herman Gonzales, Also Known as Julio Rodriguez, Appellant, v Stephen Dalsheim as Warden of Ossining Correctional Facility, et al., Respondents.
    Argued November 20, 1980;
    decided December 22, 1980

      POINTS OF COUNSEL

      Robert Selcov and David Leven for appellant.
    Respondents unjustifiably delayed relator’s parole revocation hearing until relator had completed service of his intervening sentence. (People ex rel. Walsh v Vincent, 40 NY2d 1049; Matter of Piersma v Henderson, 60 AD2d 1001, 44 NY2d 982; Moody v Daggett, 429 US 78; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; Matter of Smith v Chairman of N. Y. State Bd. of Parole, 60 AD2d 775; People ex rel. Royster v Bombard, 55 AD2d 940; Matter of Hernadandez v

      Hammock, 63 AD2d 861; Lindsay v New York State Bd. of Parole, 48 NY2d 883; People ex rel. Levy v Dalsheim, 66 AD 2d 827, 48 NY2d 1019.)

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegel of counsel), for respondents.
    I. Appellant was not entitled to preliminary and final revocation hearings during the period he was incarcerated in New Jersey because he was not in a place subject to the convenience and practical control of the New York Parole Board. (Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445; People ex rel. Walsh v Vincent, 40 NY2d 1049; People ex rel. Delrow v New York State Div. of Parole, 75 AD2d 324; People ex rel. Spinks v Dillon, 68 AD2d 368, 48 NY2d 1025.) II. In any event, appellant is specifically excluded from the 90-day time specification because any al-. leged delay was caused by his own conduct which resulted in his imprisonment in New Jersey. (People ex rel. Spinks v Dillon, 68 AD2d 368, 48 NY2d 1025; People ex rel. Levy v Dalsheim, 66 AD2d 827, 48 NY2d 1019; People ex rel. Mystek v Smith, 66 AD2d 985, 46 NY2d 938; People ex rel. Poole v Commissioner, Dept. of Corrections, State of N. Y., 54 AD2d 1034; People ex rel. Harris v Dalsheim, 69 AD2d 911; People ex rel. Flores v Dalsheim, 66 AD2d 381; People v Singer, 44 NY2d 241; People ex rel. Calloway v Skinner, 33 NY2d 23; Matter of McLucas v Oswald, 40 AD2d 311.) III. The interstate compact and its amendment (Executive Law, §§ 259-m, 259-n) is not a means to provide preliminary and final parole revocation hearings, but rather, insofar as pertinent here, simply a uniform method to retake out-of-State parolees without extradition. (People ex rel. Spinks v Dillon, 68 AD2d 368, 48 NY2d 1025.) IV. Judicial precedent involving out-of-State parolees supports respondents’ position. (Shepard v United States Bd. of Parole, 541 F2d 322, 429 US 1057; Moody v Daggett, 429 US 78; Shelton v Taylor, 550 F2d 98; People ex rel. Dutcher v New York State Bd. of Parole, 71 AD2d 963, 48 NY2d 799; People ex rel. Levy v Dalsheim, 66 AD2d 827, 48 NY2d 1019; People ex rel. Hernandez v Dalsheim, 69 AD 2d 909, 48 NY2d 1020; Matter of McLucas v Oswald, 40 AD2d 311.)
   OPINION OF THE COURT

Jones, J.

A parolee is entitled to a prompt final parole revocation hearing notwithstanding the circumstance that he is in the physical custody of the authorities of a sister State unless the Board of Parole shows that such a hearing cannot be held subject to its convenience and practical control.

In December, 1973 relator was sentenced in Supreme Court, Bronx County, to an indeterminate sentence having a maximum term of eight years. On December 23, 1976 he was paroled to New Jersey on a parole violation warrant issued by that State against him. He remained incarcerated in New Jersey until he was paroled in that State on April 18, 1977. Following his release, the New Jersey authorities also agreed to supervise his New York parole pursuant to the provisions of the Uniform Act for Out-of-State Parolee Supervision (Executive Law, § 259-m et seq.-, NJ Stat Ann, § 2A: 168-14 et seq.).

On May 8, 1978 relator was arrested in New Jersey on various charges and remained in custody in lieu of $125,000 bail. He was interviewed on May 31, 1978 at the Passaic County Jail by a New Jersey parole officer who prepared an arrest report dated June 5, 1978, a copy of which was forwarded to the New York authorities. The New-York authorities decided not to issue a parole violation warrant at this time inasmuch as a high bail had been set and because of a request from the New Jersey authorities that New York take no action.

Relator was convicted in the New Jersey courts of statutory rape, desertion and nonsupport and sentenced to State prison. Again a copy of the report prepared by the New Jersey parole officer with respect to these convictions was provided the New York authorities. On December 15, 1978 a New York parole violation warrant was issued and lodged against relator as a detainer. A commissioner of the New York State Board of Parole reviewed relator’s case on December 26,1978 and declared him delinquent as of April 10, 1978.

When relator’s New Jersey imprisonment ended on March 1, 1979 the New Jersey parole authorities transferred him forthwith to New York. A preliminary parole revocation hearing was held on March 16, 1979 at Biker’s Island, and a final revocation hearing was held on May 28, 1979 at which time relator’s parole was revoked.

In August, 1979 relator instituted the present proceeding for a writ of habeas corpus, contending that he had been denied his right to prompt parole revocation hearings. Special Term dismissed his petition, stating that relator’s entitlement to hearings did not accrue until he was released from New Jersey and that on that basis the hearings were timely held. The Appellate Division affirmed, two Justices dissenting. The majority concluded that, although the New York parole violation warrant was executed on December 15,1978, it was not until March 1,1979, when he was transferred from New Jersey to New York, that relator was “subject to the convenience and practical control of the Parole Board” (People ex rel. Walsh v Vincent, 40 NY2d 1049, 1050). The dissenting Justices disagreed with this latter conclusion and would have computed relator’s entitlement from December 15,1978. Inasmuch as there was no showing here by the Parole Board that relator was not subject to the “convenience and practical control” of the board although he was physically in the custody of the New Jersey authorities in the period from December 15,1978 to March 1,1979, there must be a reversal.

We start with the legislative mandate that a preliminary revocation hearing must be held within 15 days after the execution of the parole revocation warrant (Executive Law, § 259-i, subd 3, par [c], cl [i]) and that the final revocation hearing must be held within 90 days of the preliminary hearing (par [f], cl [i]). The application of these provisions is clear if the parolee is in custody in a facility within the jurisdiction of our State’s Parole Board. Problems of computation of the statutory time schedule have been seen to arise, however, when the -parolee is in custody but not within the jurisdiction of the Parole Board.

We first held that the right of the parolee to prompt revocation hearings was not diminished because he was being held on an unrelated criminal charge in an institution over which the Parole Board had jurisdiction, albeit the detention there was only temporary and the parolee was held as a local prisoner (Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445). Next we held that the right to prompt revocation hearings was not suspended because the parolee was lodged, not in an institution under the jurisdiction of the Parole Board, but in a local correctional facility. The criterion we again said was whether the parolee was “subject to the convenience and the practical control of the Parole Board” (People ex rel. Walsh v Vincent, 40 NY2d 1049, 1050, supra). We wrote in that case, “In the absence of a showing by the correctional or parole authorities that a particular local facility in the State is, for strong practical reasons, beyond its convenience and control, a situation difficult to bring to mind, a parolee is entitled to a prompt final parole revocation hearing” (id.). We declined to follow the rule announced in Moody v Daggett (429 US 78) that a Federal parolee convicted of a Federal offense committed while on parole is not entitled to a prompt parole revocation hearing until he has been taken into custody as a parole violator at the expiration of the intervening sentence.

We turn, then, to apply to this case the principles declared in Walsh, namely, that a parolee is entitled to prompt revocation hearings if he is “subject to the convenience and practical control of the Parole Board”, and that the burden of showing that the parolee is “beyond its convenience and control” lies with the Parole Board. In view of the relative ease of interstate communication and transportation and the vitality of legal and practical interstate co-operation today we perceive no sufficient justification for laying down a per se rule that imprisonment in a sister State means necessarily and always that the imprisoned parolee is not subject to the convenience and control of New York State parole authorities. The out-of-State aspect of such a situation, of course, will bear directly and significantly on the necessary showing to be made by the parole authorities; the determination, however, must necessarily depend on the circumstances of the individual case. Evidence of the reluctance or unwillingness of the correctional authorities in the sister State to co-operate in making appropriate provision for a suitable hearing or a demonstration that the hearing should be held within the State of New York and that, notwithstanding the co-operation of the authorities of the sister State, significant practical difficulty would be encountered in arranging for the presence of the parolee at such a hearing would suffice to meet the modest burden placed on the New York State parole authorities.

In the present case, no showing has been made by the Parole Board beyond submission of proof that relator was incarcerated in the State of New Jersey during the period December 15, 1978 to March 1, 1979 and of speculative arguments which could be advanced in every instance of out-of-State imprisonment.

The States of both New York and New Jersey are parties to the interstate compact for out-of-State parole supervision (Executive Law, § 259-m et seq.; NJ Stat Ann, § 2A:168-14 et seq.). This compact, in addition’ to manifesting a general disposition and readiness to foster interstate cooperation in parole matters, contains explicit provisions for supervision by the receiving State over parolees of the sending State (Executive Law, § 259-m, subd 1, par [2]). As recited, in this case New Jersey authorities provided such supervision with respect to this relator, and copies of the New Jersey parole reports were furnished the New York authorities. Provision is made in the compact by means of which, with the consent of New Jersey officials, relator could have been returned for revocation hearings in New York (Executive Law, § 259-m, subd 1, par [3]). Further, the interstate compact authorized the Chairman of the New York Board of Parole to request the New Jersey officials to conduct a preliminary violation hearing while relator was incarcerated in New Jersey, which would have had the same force and effect as a hearing conducted in New York (Executive Law, § 259-o, subd 3). Relator incarcerated in New Jersey had the same rights that he would have had if incarcerated or reincarcerated in New York, and the judicial and administrative officers of New Jersey were deemed to be the agents of the New York authorities (Executive Law, § 259-n, subd 1, par [e]).

The record in this case contains only evidence of co-operation between the States of New Jersey and New York with respect to relator. In this circumstance, the New York parole authorities have tendered no proof either that they made a request for relator’s transfer for a hearing in New York or that they requested that a preliminary violation hearing be held in New Jersey. They offer only argumentative speculation as to what response the New Jersey officials might have made had New York requested a temporary transfer of relator to New York for the purpose of conducting parole revocation hearings here, or what response might have greeted a request that a preliminary violation hearing be held in New Jersey. Nor was any proof tendered that it would have been inappropriate to have the New Jersey authorities hold the preliminary hearing or that significant difficulties would have been encountered in arranging for relator’s presence at a hearing in New York. On this record it cannot be said that the New York State Board of Parole has met its burden of showing that relator was not or could not easily have been brought within its convenient and practical control during the period from December 15, 1978 to March 1, 1979. To characterize the present situation otherwise would be to denigrate the significance of the interstate compact to which all 50 States are parties and to ignore the failure of the Parole Board to advance other than hypothetical obstacles. (Cf. Matter of Higgins v New York State Div. of Parole, 72 AD2d 583.)

Accordingly, the order of the Appellate Division should be reversed, the writ of habeas corpus sustained and relator restored to parole supervision.

Jasen, J.

(dissenting). The majority today holds that a New York parolee who is incarcerated in a sister State for a crime committed therein is within the convenience and practical control of the New York Board of Parole such that he must be given a preliminary parole revocation hearing within 15 days after a parole violation warrant has been delivered to the sister State authorities unless the Board of Parole can establish that the parolee is, in fact, beyond its control. In our view this ruling ignores the practical and legal difficulties inherent in the out-of-State supervision of parolees and places an unnecessary burden upon the Board of Parole. We, therefore, respectfully dissent.

In this case relator was convicted of assault in the first degree in December, 1973 and was sentenced to an indeterminate term of from 0 to 8 years of imprisonment for that offense. In December, 1976, he was paroled by the New York authorities only to be sent to New Jersey in compliance with a parole revocation detainer warrant lodged against him. He remained in custody in New Jersey until April, 1977 when that State paroled him. Upon his release, relator and his wife remained in New Jersey and parole authorities there agreed to supervise his New York parole. Relator remained at liberty until May, 1978 when he was arrested in New Jersey and charged with several crimes. He was eventually convicted of statutory rape and desertion and nonsupport. He was sentenced to a term of imprisonment and was transferred to a New Jersey State prison facility. On December 15, 1978, a New York parole violation warrant was lodged against relator at the New Jersey prison. On March 1, 1979, relator was again paroled by New Jersey. He was thereupon returned to New York in compliance with its parole warrant and was given a preliminary parole revocation hearing on March 16,1979, and a final parole revocation hearing on May 28, 1979. His parole was ultimately revoked.

A majority of this court is of the view that even though relator was incarcerated in New Jersey, the Board of Parole was obligated by statute to provide him with a preliminary parole revocation hearing within 15 days of the transmittal of the New York parole warrant to the New Jersey authorities. The majority concludes that the State’s failure to afford relator such a hearing automatically entitles him to a return to parole status. We cannot agree.

In New York, a parolee is entitled by statute to a preliminary parole revocation hearing “within fifteen days after the warrant for retaking and temporary detention has been executed” against him. (Executive Law, § 259-i, subd 3, par [c], cl [i].) At that hearing, the sole issue to be ád~ dressed is whether there is probable cause to believe that the parolee has violated the conditions of his parole in an important respect. Proof of conviction of a crime constitutes such probable cause as a matter of law. (Executive Law, § 259-i, subd 3, par [c], cl [iv].) Thereafter, the parolee is entitled to a final parole revocation hearing within 90 days of the probable cause determination. (Executive Law, § 259-i, subd 3, par [f], cl [i].)

These statutes insure that a parolee who is accused of violating the conditions of his parole has a fair opportunity, within a reasonable time of the alleged violation, to be heard in opposition to the State’s attempt to once again deprive him of his liberty. (See, e.g., Morrissey v Brewer, 408 US 471.) Violation of these statutory rules, at least insofar as the 90-day time limit for a final parole revocation hearing is concerned, results in an automatic dismissal of parole violation charges and an automatic restoration to parole status. (People ex rel. Levy v Dalsheim, 66 AD2d 827, affd 48 NY2d 1019.)

However, the right to a hearing within these statutory time limits is not absolute. Indeed, there exist several statutory and judicially created conditions which must be met before a parolee’s right to a hearing arises. If one of these “exceptions” applies, the parolee has no right to a hearing so long as the situation creating the “exception” prevails.

One such exception, long recognized by New York law, is that an accused parole violator is not entitled to a parole revocation hearing unless and until he comes within the “convenience and practical control” of the Parole Board (See, e.g., People ex rel. Walsh v Vincent, 40 NY2d 1049; Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445.) A parolee has been held to be within such “convenience and practical control” when he is incarcerated in any New York State penal institution or any local facility run by a political subdivision of the State. (Id.) However, the question whether a parolee who is being held in a sister State institution is within such control is one which this court has not as yet addressed. Lower courts which have addressed the issue, although they have not been unanimous, have for the most part concluded that a parolee being held in an out-of-State prison is not within the convenience and practical control of the Parole Board. (See People ex rel. Pyclik v Smith, 78 AD2d 1008; People ex rel. Copeland v Smith, 78 AD2d 1008; People ex rel. Delrow v New York State Div. of Parole, 75 AD2d 324; but see Matter of McLucas v Oswald, 40 AD2d 311, app dsmd 32 NY2d 761.) This conclusion was reached by the court below in this case.

The majority, however, holds that relator’s incarceration in New Jersey did not place him beyond the reach of the New York State Board of Parole. This holding is premised primarily upon the existence of a compact between New York and New Jersey (and all other States) which under certain circumstances would allow New York authorities to exercise jurisdiction over relator while he was in New Jersey. (Executive Law § 259-m.) The court notes also that the New York statute provides that all persons who are incarcerated out of State pursuant to the compact are entitled to all rights which they would have had in New York (Executive Law, § 259-n, subd 1, par [e]) and that New York can allow the New Jersey authorities to conduct a preliminary parole revocation hearing (Executive Law, § 259-o, subd 3). The majority is apparently of the belief that the existence of the compact and the statutory procedures contained therein place petitioner within the “convenience and practical control” of the New York State Board of Parole. While such an analysis is, at first blush, appealing, it cannot withstand close scrutiny.

First, in order for the New York State Board of Parole to retain jurisdiction over a parolee who has been jailed in a sister State, the statute requires that the parolee be held in a “compact institution.” (Executive Law, § 259-n, subd 1, par [d].) Further, the portion of the statute which would extend to a New York parolee, in an out-of-State prison, the benefits of New York law, also expressly limits its effects to those prisoners in “compact institutions”. (Executive Law, § 259-n, subd 1, par [e].) There is no showing here that petitioner was being held in such an institution. Instead, it seems plain that he was held in New Jersey State prison due to his violation of New Jersey law. Inasmuch as relator was not within a “compact institution”, his argument that he should be accorded the benefit of the compact and related statutes carries little weight. (People ex rel. Pyclik v Smith, 78 AD2d 1008, supra; People ex rel. Copeland v Smith, 78 AD2d 1008, supra.)

It must be remembered that relator was not arrested in New Jersey for violation of his New York parole. He was arrested, instead, for a violation of New Jersey law. Had he been detained for his parole violation only, he might well have been placed in a “compact institution”, if in fact one exists in New Jersey, for his detention would have arisen by operation of the compact. However, where, as here, a parolee’s arrest and incarceration has nothing to do with his New York parole, the applicability of the compact, is at least questionable. Moreover, the compact itself expressly provides that a “sending state”, here New York, may not have access to its parolee in any case if that parolee is charged with or convicted of an offense in the “receiving state”, here New Jersey, without the consent of the “receiving state”. (ExecutiveLaw, § 259-m,subd 1,par [3].) Thus, while it is possible that New Jersey might have allowed New York to reassert jurisdiction over relator, such co-operation was by no means assured and would not be required by the interstate compact.

Given the uncertainty of New Jersey’s response and the inability of the New York authorities to demand its co-operation under the compact, the mere existence of the compact did not place relator within the “convenience and practical control” of the New York State Board of Parole. In our view, the earliest time at which such control could be asserted with any certainty was when relator was returned to New York on March 1, 1979. Since he received a preliminary parole revocation hearing within 15 days thereafter, the requirements of New York law have been satisfied.

Nor do we believe that the burden of establishing the inapplicability of the compact or the unco-operativeness of the “receiving state” should be placed on the Board of Parole. In our view, where, as here, a New York parolee is arrested in a “receiving state” for a violation of that State’s law, the effect of the interstate compact on the parolee’s availability, dependent as it is on a sister State’s goodwill, is so uncertain as to render the parolee beyond the convenience and practical control of the Board of Parole as a matter of law. Indeed, even if we were to assume that the “receiving state” would in most cases willingly co-operate, and interrupt the early stages of its own criminal process to afford the New York parolee a preliminary hearing within the 15-day time limit required by New York law, the co-ordination of effort required in the short time allowed surely makes the provision of a hearing much more inconvenient, if not completely impractical. Thus, while it is true that the Board of Parole must show that a New York parolee held in New York is beyond its control to justify its failure to comply with statutory time limits (People ex rel. Walsh v Vincent, 40 NY2d 1049, 1050, supra), the practical difficulties inherent in the provision of a hearing to a New York parolee incarcerated in an out-of-State prison for a crime committed in a sister State militate against placing the same burden on the Board of Parole in such cases.

The majority’s conclusion that relator was not afforded timely parole revocation hearings is also undercut by the fact that any delay in such hearings is attributable to him. The statute which creates the strict time limits in which parole revocation hearings must be given states that, at least insofar as the 90-day time limit for a final hearing is concerned, such time limits may be extended if the parolee himself causes the delay. (Executive Law, § 259-i, subd 3, par [f], cl [i].) In this case, relator’s commission of several serious crimes in New Jersey and his resultant incarceration in New Jersey caused the delay in his return to New York. Thus, having caused the delay of which he now complains, he cannot assert it as a basis for dismissal of the parole revocation charges.

Finally, in our view it can also be said that relator had no right to a hearing until his return to New York for it was only then that the parole revocation warrant was “executed” against him. The law requires only that a preliminary hearing be held within 15 days of the execution of the parole violation warrant. (Executive Law, § 259-i, subd 3, par [c], cl [i] ; see, also, People ex rel. Delrow v New York State Div. of Parole, 75 AD2d 324, swpra.) Here, the New York parole warrant did not become operative against defendant until his release in New Jersey. Thus, it was not executed until then and no right to a hearing arose prior to that time. We are mindful that no such delay in “execution” operates upon a parolee’s incarceration for the commission of an unrelated crime in New York. (Lindsay v New York State Bd. of Parole, 48 NY2d 883; Matter of Piersma v Henderson, 44 NY2d 982, cert den 439 US 1088.) This is so because in such a situation the parolee is at all times subject to the power and control of the State of New York. Thus, if New York is holding him, it matters little whether the State’s power to detain him is exercised through a parole detainer or his commitment on a second crime. The State which is holding him is the same State which must give him a parole revocation hearing. In this situation, New York is, of course, not allowed to play a shell game with the various detainers to avoid giving a parolee a hearing.

Obviously, a completely different situation is presented where an operative criminal commitment is in force in New Jersey and a New York parole revocation warrant is merely waiting in the wings. In this situation, the New York detainer has no effect until the New Jersey proceedings have run their course. Hence, in this case, the New York detainer was at the very least dormant until relator’s release in New Jersey. Only at that time did it hold him. In our view, the mere fact that the detainer was physically sent to New Jersey at an earlier time is irrelevant to its time of “execution” in the legal sense. Thus, the instant warrant was not executed until relator’s return to New York and the hearings afforded relator were, therefore, timely.

Nor does the existence of the previously described interstate compact require a contrary view of the term “execution”. That statute, while it provides procedures for the return of parole violators, specifically contemplates the interruption of the process during the pendency of local criminal proceedings against a parolee in the “receiving state”, here New Jersey. During such proceedings, a parolee is held by virtue of the power of the receiving State which the compact recognizes as supreme. (Executive Law, § 259-m, subd 1, par [3].) Thus, while preparations or negotiations for the prisoner’s return to the “sending state” may be had in the interim, no “execution” of a parole warrant can be allowed without the consent of the “receiving state”. Thus, until such “receiving state” in fact acquiesces and consents to a retaking by the sending State, there can be no “execution” of a parole revocation detainer warrant under the compact.

Accordingly, for all of the above reasons, we believe the order of the Appellate Division should be affirmed.

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

Order reversed, without costs, writ of habeas corpus sustained and relator restored to parole supervision.

      . In the light of the relative positions of the State Board of Parole and the parolee, the ready access of the former to communication with its counterpart parole authorities in the sister State and the circumstance that the board’s convenience and practical control can always best be evaluated, at least initially, by the Parole Board itself, it is appropriate in this case, too, to place the burden of making the necessary showing on the Parole Board rather than the parolee.

      . It is implicit in these decisions that we have not subscribed to the proposition that the parolee has waived or forfeited his right to prompt parole revocation hearings because it has been action of his own which has led to his subsequent incarceration (cf. Executive Law, § 259-i, subd 3, par [f], cl [i]) or that to establish his right to relief following denial of prompt hearings he must demonstrate that he has suffered actual prejudice.

      . Respondent’s contention that the compact amendment has never been implemented by the New York State Board of Parole is raised for the first time on brief in our court and no proof in the record supports the contention. In any event, the Parole Board is not at liberty to ignore statutory mandate.

      . Some lower courts have expressed similar views on the question of whether a New York parolee in a Federal institution is entitled to an immediate hearing. (See People ex rel. Spinks v Dillon, 68 AD2d 368, app dsmd 48 NY2d 1025; Matter of Mullins vState Bd of Parole, 43 AD2d 382, app dsmd 35 NY2d 992; but see Matter of Higgins v New York State Div. of Parole, 72 AD2d 583.)

      . By the terms of the compact, each State which is a party thereto must designate one of its penal institutions as a “compact institution” and incarcerate prisoners detained pursuant to the compact therein unless specific contractual arrangements to the contrary are made by the particular States involved. (Executive Law, § 259-n, subd 1, par [c].)

      . It should be noted that incarceration in New York for an unrelated crime would not invoke the statutory extension. This is so because incarceration in New York causes no delay inasmuch as the parolee is continually available to the Parole Board.


author: Chief Judge Cooke. Jasen, J.

text:
    The People of the State of New York, Respondent, v Harry G. Skinner, Appellant.
    Argued October 15, 1980;
    decided December 22, 1980

      POINTS OF COUNSEL

      Joseph A. Shifflett and Rose H. Sconiers for appellant.
    Appellant’s statements and admissions to the Amherst police on March 10, 1977 must be suppressed. (People v Coleman, 43 NY2d 222; People v Sugden, 35 NY2d 453; People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479; People v Di Biasi, 7 NY2d 544; People v McKie, 25 NY2d 19; People v Roberson, 41 NY2d 106; People v Samuels, 49 NY2d 218; People v Townes, 41 NY2d 97; Brewer v Williams, 430 US 387.)

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent.
    Defendant’s statements were properly held admissible at trial. (People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Rogers, 48 NY2d 167; People v McKie, 25 NY2d 19; People v Cunningham, 49 NY2d 203; People v Settles, 46 NY2d 154; People v Samuels, 49 NY2d 218; People v Coleman, 43 NY2d 222.)
   OPINION OF THE COURT

Chief Judge Cooke.

Another in the line of cases concerning the scope of the right to counsel in this State, this appeal presents the question whether an individual who has obtained counsel specifically on the matter under investigation may be interrogated on the very same subject in a noncustodial setting after defendant’s attorney had instructed the police not to question defendant in his absence. The answer is in the negative.

On the morning of June 22, 1975, the body of Diane Snell was found off North French Road in the Town of Amherst, Erie County. Police attention focused almost immediately upon defendant, who had been seen talking with the victim in a local bar the previous night. Two days after the murder, defendant was twice questioned by Amherst detectives. During these interviews, defendant admitted having spoken to Ms. Snell and agreed, after hesitation, to submit to a polygraph examination. In the course of these and other interviews, defendant did not admit involvement in the murder. During a second polygraph examination on October 6, 1975, defendant acknowledged that upon leaving the bar he gave the victim a ride to the Riverside section of Buffalo. A drive taken with defendant covering the route traveled with Ms. Snell produced nothing further. The journey ended when defendant requested that he be taken home.

Sometime during the early fall of 1975, defendant retained an attorney, Leo Fallon, because of the repeated instances of questioning by the police. Mr. Fallon assured defendant that he need not speak to the police. He called the department to inform the authorities that he represented defendant and instructed them not to question defendant unless he was present. Defendant apparently was not contacted again by the police until March 10, 1977. On that day, defendant was served with an order to show cause, returnable about a week later, why he should not be compelled to appear in a lineup in connection with the Snell investigation. Earlier that afternoon, Mr. Fallon’s office contacted an Assistant District Attorney to confirm that defendant was represented and to acknowledge receipt of the order. The assistant nonetheless instructed the Amherst police to have defendant served personally with the order to show cause, informing an officer that defendant was represented but giving no instructions concerning questioning of defendant.

Detectives Hohensee and Meredith proceeded to defendant’s apartment, where Meredith read the order to show cause. Defendant signed it and. was given a copy. When defendant became upset and asked why he had to appear in a lineup, Hohensee responded that defendant should give the copy to his attorney who would explain and handle the matter.

Following this exchange and because defendant appeared very upset, Hohensee asked defendant if he wanted to talk about the homicide and that if he was involved, to tell all that he knew, “to get it off his chest once and for all.” Defendant agreed to talk. Given the Miranda warnings, he stated that he understood. Thereafter, defendant made the damaging admissions now sought to be suppressed. Defendant, with his consent, was taken to police headquarters where he then refused to make a statement until he had spoken with his attorney. He was not interrogated further.

Defendant unsuccessfully moved to suppress the statements made on March 10. The hearing court found that although the police knew that defendant was represented on the matter, the questioning occurred in a noncustodial setting and thus the statements did not warrant suppression. Upon conclusion of a jury trial, defendant was convicted of first degree manslaughter. The Appellate Division affirmed, agreeing that the March 10 statements need not have been suppressed because the interrogation was noncustodial and that it was neither a judicial procedure nor related to service of the order (71 AD2d 814). Contrary to these determinations, it is concluded that defendant’s New York constitutional rights were violated by the interrogation in the absence of the attorney retained on the matter and, therefore, reversal is in order.

Our determination is guided by principles founded upon State constitutional guarantees of the privilege against self incrimination, the right to be aided by counsel and due process (see NY Const, art I, § 6; People v Cunningham, 49 NY2d 203; People v Settles, 46 NY2d 154; People v Hobson, 39 NY2d 479). It has long been established in this State that under certain circumstances the right to counsel “includes the right of an accused to have an attorney present while he is considering whether to waive his rights” (People v Cunningham, 49 NY2d 203, 208, supra). In such cases, the right to counsel is said to have “indelibly attached” — i.e., there can be no effective waiver of counsel unless made in the presence of counsel (People v Settles, 46 NY2d 154, 165, 166, supra). This rule of nonwaivability has been recognized in two lines of decisions. In one, it has been ruled applicable to a suspect who is represented by an attorney (e.g., People v Rogers, 48 NY2d 167; People v Hobson, supra; People v Arthur, 22 NY2d 325). In the other, it has been made explicit that a waiver by a person against whom formal criminal proceedings have been commenced will be ineffectual in the absence of counsel (e.g., People v Samuels, 49 NY2d 218; People v Settles, supra).

We have recently again expressed our respect for the right to counsel, ruling impermissible custodial interrogation of an unrepresented individual after the indiviudal has requested the assistance of counsel (People v Cunningham, supra). We there made “clear that an uncounseled waiver of a constitutional right will not be deemed voluntary if it is made after the right to counsel has been invoked” (id., at p 205). A request for the aid of counsel by an individual in custody imports clearly that the individual considers himself or herself incompetent to face the power of the State without an attorney’s advice (id., at p 209). Once an individual expresses the need for counsel he or she stands in the same position as one who has obtained the aid of an attorney and the State may not thereafter seek a waiver in the absence of counsel (id., at pp 209-210; see, also, People v Marrero, 51 NY2d 56, 59).

The reasons for the nonwaiver rule are many. The right to counsel at trial would be empty indeed if it did not include the right to have the presence of an attorney at pretrial proceedings (see People v Donovan, 13 NY2d 148, 152). The prohibition simply recognizes the right and need of an individual to have a competent advocate at his or her side in dealing with the State. Requiring that a person waive the constitutional right to counsel in the presence of an attorney ensures that the person relinquishes the valuable right to the assistance of counsel intelligently and voluntarily, aided by someone acting in his or her interest (see People v Hobson, 39. NY2d 479, 484, 485, supra).

This court’s vigilance in protecting the right to counsel finds additional support even in the ethical responsibility of attorneys in civil matters not to communicate on the subject of the representation with an individual known to be represented by an attorney on the matter (see New York State Bar Association Code of Professional Responsibility, DR 7-104, subd A, par [1]; see, also, ABA Code of Professional Responsibility, DR 7-104, subd A, par [1]). We would be hard pressed logically to proscribe such conduct in the civil context yet blithely overlook it in the criminal sphere (see People v Hobson, 39 NY2d 479, 484-485, supra).

The People do not dispute the validity of these principles but assert that none are applicable here because defendant was not in custody during the March 10 interrogation. It is true that many of the cases in this area have involved an individual who was in custody when the police obtained damaging evidence. True it is, also, that there have been broad statements in dicta from this court that the non-waiver rule is inapplicable when an individual has contact with the police in a noncustodial setting (see People v McKie, 25 NY2d 19; see, also, People v Hobson, 39 NY2d 479, 483, supra). We think the People’s assertion in this case, however, too broadly characterizes the reported cases.

Two decisions of this court demonstrate that whether a person is in custody at the time of interrogation is not controlling when an attorney represents that person on the matter about which he or she is questioned. In People v Townes (41 NY2d 97), it was ruled that the State could not use against the defendant statements made in the absence of counsel to a member of the New York City Civilian Complaint Review Board during an interview upon defendant’s complaint of mistreatment by the arresting officers. Defendant, incarcerated at Riker’s Island, had been arraigned, assigned counsel and indicted at the time of the interview, the subject of which was “inextricably interwoven” with the criminal charges (id., at p 104). This court ordered the statements suppressed without reference to the custodial settings (see 41 NY2d, at pp 102-105, and concurring opn of Jasen, J., id., at pp 105-106). That custody was not determinative was made clear in People v Roberson (41 NY2d 106), a case factually distinguishable from Townes only because defendant made the complaints and was interviewed after he was released on bail. The court there ruled, without alluding to custody, that Townes was dispositive, noting that the interrogation could not be considered “divorced from the criminal prosecution” (id., at p 109). Thus, we treated the fact of custody as irrelevant in the face of defendant’s known representation on a pending charge and the questioning of him on that matter purportedly for a different purpose (see People v Roberson, supra, at p 110 [dissenting opn]). We refused to give the right to counsel so little meaning that it could easily be circumvented in the manner asserted.

People v McKie (supra) does not compel a different result. It was there concluded that the defendant’s inculpatory statement was not the product of police interrogation. Unnecessarily broad statements in that case concerning a requirement that an individual be in custody before the nonwaiver rule becomes operative have since been eviscerated (see People v Townes, 41 NY2d 97, 103, supra; People v Roberson, 41 NY2d 106,109, supra).

. That Townes and Roberson both involved interrogation following formal commencement of the criminal action against the defendant does not alter the result here, where judicial proceedings were commenced for an order in furtherance of the investigation. The court in those cases did not rely on formal commencement alone but considered also the fact that the defendants had been assigned counsel at the time of questioning. Indeed, formal commencement had not yet been explicitly recognized as giving rise to an indelible right to counsel (see People v Settles 46 NY2d 154, supra)k Additionally, with formal commencement the defendant simply is treated as if an attorney has entered the proceedings on his behalf (see People v Settles, supra, at p 166).

We thus reject the People’s argument here that in the absence of formal commencement of the criminal action the defendant could be questioned with impunity following service of the order to show cause simply because he was not in custody at the time of the interrogation. In retaining an attorney specifically in response to repeated police-initiated contacts, defendant unequivocally indicated that he felt himself unable to deal with the authorities without legal assistance. In a real sense, he had activated his constitutional right to interpose an attorney between himself and the overwhelming power of the State. The attorney did intercede, demanding that the police not question defendant. And until March 10, the police apparently honored that demand. But on that date, after completing their task of serving defendant with the order and with knowledge that defendant was represented by an attorney on the matter under investigation the police questioned defendant on that matter in the absence of counsel. Quite simply, rather than defer to defendant’s invocation of the right to counsel, the police studiously ignored it.

The motivations of the police in conducting the interrogation are immaterial, for the impact on the right to counsel is the same. That right is rendered illusory if the State’s agents are permitted to subject an individual represented by counsel to questioning in a noncustodial setting. The effects of a waiver of counsel are no less real in that setting; waiver of the right to counsel once invoked should be no less ineffective than when made by a person in custody. We thus reiterate that where, as here, a defendant is known to have invoked the right to and obtained the services of counsel on the matter about which the person is questioned, the State may not use statements elicited from that person in the absence of a waiver of counsel made in the presence of the attorney (see People v Townes, supra; People v Roberson, supra).

Accordingly, the order of the Appellate Division should be reversed, motion to suppress defendant’s statements granted and a new trial ordered.

Jasen, J.

(dissenting). I must dissent. The majority has today created an entirely new rule of law, to wit: that one who is suspected of having committed a crime and who is not in custody, not indicted, not arraigned and not even formally accused by anyone, cannot waive his right to counsel, after being advised of his constitutional rights, in the comfort and quiet of his own home in the presence of police officers whom he himself invited to remain there. The purported legal basis for such a rule is that the suspect’s right to counsel had somehow “indelibly” attached merely because defendant had retained an attorney to counsel him during the ongoing investigation. In my opinion, such a rule is not supported by logic, common sense, need or the prior decisions of this court and I cannot support its acceptance into the law of this State.

At the outset, it should be made clear that I am not suggesting that we retreat in any way from the expansion of the right to counsel which this court, in recent years, has undertaken (see, e.g., People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479) or from the even newer concept of “indelible” attachment of the right to counsel which contemplates that in certain situations no effective waiver of counsel can be had in the absence of counsel (see, e.g., People v Cunningham, 49 NY2d 203; People v Settles, 46 NY2d 154). Certainly, the doctrine of stare decisis, if it is to mean anything at all, must protect such relatively young precedents from being cavalierly cast aside. However, the mere fact that the scope of protection afforded a criminal defendant by our State Constitution has been expanded in recent years cannot itself be viewed as a justification for all future expansions. If this were so, the creation and refinement of law through reasoned judicial decision would be a shallow process indeed. Instead, each new expansion of settled principles into virgin territory should at a minimum be accompanied by some demonstration that there is an imbalance or inadequacy in existing law which must be remedied by the creation of a broader rule. Each expansion must have its own justification. My dissent is, therefore, based not upon any conviction that existing precedent was wrongly decided, but rather upon my conclusion that there is no justification in law or logic for today’s expansion of the “New York right to counsel”.

As far as the law is concerned, the majority strives mightily to connect the facts of the instant case to one of the many cases of recent vintage which address the scope of a criminal defendant’s right to counsel under the New York Constitution. (See NY Const, art I, § 6.) This effort, however, has been unsuccessful. Indeed, not a single case cited by the majority addresses the situation presented here where a person who is not in custody and not accused of any crime voluntarily waives his right to counsel. Indeed, all of the “nonwaiver” cases cited by the majority fall into one of two general categories. Into the first category fall those cases where the person attempting to waive his or her right to counsel was in custody at the time of questioning. (See, e.g., People v Cunningham, 49 NY2d 203, supra; People v Townes, 41 NY2d 97; People v Hobson, 39 NY2d 479, supra; People v Arthur, 22 NY2d 325, supra.) Into the other fall those cases where the person attempting to waive his or her right to counsel had been formally accused in some manner of the commission of a crime. (See, e.g., People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154, supra; People v Roberson, 41 NY2d 106.) While it is, of course, true that the court has not in its opinion always expressly noted the existence of these factors, it is also true that the court has never adopted a so-called “nonwaiver” rule where both of these have been absent.

Moreover, it has been expressly stated by the court in People v Hobson (39 NY2d 479, supra), a case upon which the majority relies in this and in countless other “non-waiver” cases, that custody is essential to the applicability of the rule. (39 NY2d, at p 483; see, also, People v McKie, 25 NY2d 19, 28.) Hence, existing law does not require reversal of defendant’s conviction in this case.

Nor do logic, common sense or considerations of sound public policy require such a result. Those charged with the enforcement of the criminal law have for centuries heavily depended upon the statements of the guilty in their quest to identify and detain criminals. We do not know and we need not inquire into the motive which a murderer may have for coming forward with self incriminating admissions save to assure ourselves that these statements were not prompted by the coercive power of the State. In the instant case, there was no imbalance between the hapless individual and the organized State. Even if we were to assume that at one point defendant recognized his own incompetence to deal with the coercive power of the State and, as a result, retained a lawyer, the record is clear that he had a change of heart in this regard for reasons unconnected with any improper use of the State’s power. Perhaps the heavy burden of conscience motivated defendant. Perhaps a desire to confuse or mislead the police did so. In any case, defendant chose of his own free will to invite the State’s officers into his home, there to converse with them at his pleasure and only to the extent desired. There is not the tiniest hint in the record that the police activity in this case amounted to anything more than alert recognition of defendant’s willingness to speak and an offer of the opportunity to do so. This being so, it defies reason to hold that the police cannot accept defendant’s invitation into his home to listen to what he has to say. Indeed, to do so is to hold that the most talkative of criminals cannot ever discuss his case with the most reasonable of constables in the most -hospitable surroundings if he has ever previously discussed his case with a lawyer. This strains the concept of fairness “till it is narrowed to a filament.” (Snyder v Massachusetts, 291 US 97,122 [Cardozo, J.].)

In my opinion, the right to counsel was intended to place a buffer between the inartful defendant and the organized State. It was not intended to protect the murderer from his conscience or from the natural pressures that the commission of such an awful act might have upon the mind of any man. Once a defendant is in custody or is formally accused, it may well be difficult, if not impossible, to distinguish between the various effects of the several pressures upon him. Thus, we may say at least that the State by virtue of the coerciveness inherent in the criminal process might have prompted any confession. Where, as here, no such factors exist and we have before us only the picture of a man willing, for whatever reason, to face his questioners alone, no such evidence of coercion can be inferred. To hold that defendant cannot speak or that the police cannot listen in these circumstances and to reverse defendant’s murder conviction is to reward what most of our citizenry would consider to be good police work with public rebuke and to place yet another hurdle in the path of effective law enforcement. If the courts are to retain the respect of the people, our decisions must appear to be rational and fair, as well as practical. I cannot say this decision falls into either category.

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

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

Order reversed, etc.

      . The hearing court granted defendant’s motion to the extent of suppressing statements, which could be construed as inculpatory, made during the ride on October 6 after defendant stated that he wanted to go home. The court also suppressed identification testimony as the product of unduly suggestive identification procedures.

      . Contrary to the dissent’s suggestion, the contours of the developing State constitutional right to counsel were not immutably fixed by every statement in Hobson (see People v Cunningham, 49 NY2d 203, supra; People v Rogers, 48 NY2d 167, supra). Indeed, this case is but an application of Townes and Roberson, which were decided without reference to custody and shortly after the Hobson decision itself.

      . To the dissent’s observation that police depend upon statements of the “guilty” to further an investigation, it need only be noted that law enforcement officials must operate within the bounds of our State constitutional guarantees of the privilege against self incrimination and the right to counsel.

       The Appellate Division affirmed the suppression court’s finding that defendant was not in custody at the time he made the incriminating statements in issue. The question of whether custody exists is one of fact and we are unable to disturb this affirmed finding of fact unless there is no evidence in the record to support it. (See, e.g., People v Bryant, 50 NY2d 949.) This finding is not disputed by the defendant on this appeal.