author: Kaye, J. Hancock, Jr., J.

text:
    The People of the State of New York, Appellant, v Sammie Lee Wesley, Respondent.
    Argued February 16, 1989;
    decided April 4, 1989

      POINTS OF COUNSEL

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for appellant.
    The court below erred in granting standing to defendant. (People v Millan, 69 NY2d 514; People v Mosley, 68 NY2d 881; People v. Ponder, 54 NY2d 160; People v Van Buren, 87 AD2d 900; People v Farinaro, 110 AD2d 653; People v Alicia, 113 AD2d 944; People v McKinney, 127 AD2d 853; United States v Salvucci, 448 US 83; Rakas v Illinois, 439 US 128.)

      Gary Muldoon for respondent.
    The court below properly ruled that defendant had standing to contest the search. (People v Mosley, 68 NY2d 881; People v Millan, 69 NY2d 514; People v Ponder, 54 NY2d 160; People v Ycasa, 140 Misc 2d 114; People v Martin, 135 AD2d 355; People v Pagan, 138 Misc 2d 802; People v Simon, 107 AD2d 196; People v Gonzalez, 68 NY2d 950.)
   OPINION OF THE COURT

Kaye, J.

The central issue to be decided on this appeal is whether defendant has standing to challenge a search that results in the discovery of contraband, based solely on his alleged constructive possession of that contraband. Consonant with State law since People v Ponder (54 NY2d 160) abrogating "automatic standing,” we conclude that defendant failed to establish standing to challenge the search and therefore reverse the Appellate Division order overturning his conviction.

I.

Defendant was arrested following a search of the house occupied by his girlfriend, Jacquelin Glass, and their infant son. The Rochester Police Department Narcotics Unit had received information that a large quantity of marihuana had been delivered to that location from Florida. Members of the unit arrived at the house shortly before midnight to execute a "no-knock” search warrant. Police with sledgehammers entered through both the front and side doors. Defendant attempted to hold the front door closed and was handcuffed as soon as the officers were inside.

The search of the house began in the upstairs master bedroom, where the officers immediately found two suitcases containing nearly 75 pounds of marihuana bricks in one of the closets. A smaller quantity of marihuana was discovered in a dresser, along with a handgun and $800 in cash; this dresser contained men’s clothing and masculine toilet articles. Another dresser held women’s clothing, but also contained a shoe box with a wallet and various items of identification in defendant’s name. Other identification belonging to defendant, including a temporary driver’s license and birth certificate, as well as unopened mail addressed to him and an address book with his parole officer’s card, was found elsewhere in the bedroom. Men’s and women’s clothing hung in the closet in which the marihuana was discovered. In addition to several scales and a box of envelopes of a type commonly used to package "nickel bags” of marihuana, $18,000 in cash was found in three metal boxes in another bedroom closet; inside one of the boxes was identification bearing a photograph of defendant in the name of Sam Glass.

A search of a second bedroom similarly disclosed men’s and women’s clothes in the closet, and a large cardboard box holding defendant’s correspondence and other personal items, including a number of photographs of him. When the ground floor was searched, more photographs of defendant were found in the living room. A stolen .45 caliber pistol and clip of ammunition were found in the kitchen cupboard. At the time of the search, Glass told one officer that "all the stuff upstairs” belonged to defendant. Both Glass and defendant were charged with possession of the guns and marihuana.

Before trial, both defendants moved for suppression of the fruits of the search. The People opposed defendant’s motion on the basis that he had no standing to complain of the search of Glass’s house, pointing to defendant’s failure in his motion papers to allege any privacy interest in the premises and in particular to earlier testimony before the Grand Jury. Both defendant and Glass had testified under oath before the Grand Jury that defendant never stayed at Glass’s house, that he kept no clothes or other personal property there except for a few stored papers, that a male boarder had resided in the house, and that defendant had no proprietary interest in the premises but was merely a visitor, albeit a daily one.

Defendant’s motion to suppress was denied for lack of standing. A hearing was conducted on Glass’s motion, which was also denied on the ground that the search warrant met the "totality of circumstances” test set forth in Illinois v Gates (462 US 213). Following a jury trial, defendant was convicted of possession of the marihuana and one of the guns, and Glass was convicted on the marihuana charge.

On separate appeals, the Appellate Division reversed Glass’s conviction and dismissed the indictment, holding that the trial court erred in applying the Gates test rather than the Aguilar-Spinelli test (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410) in evaluating the search warrant, and that under the latter standard, the warrant application was inadequate (136 AD2d 892, lv denied 71 NY2d 968). The Appellate Division likewise reversed defendant’s conviction, citing this court’s decisions in People v Millon (69 NY2d 514) and People v Mosley (68 NY2d 881, rearg denied 69 NY2d 707, cert denied 482 US 914) for the propositions that defendant had standing because "the People rely on the constructive possession of the drugs as the basis for the arrest of defendant” and that "the People may not predicate the charges against defendant on the theory that he constructively possessed the drugs because he was present on the premises at the time the search warrant was executed and simultaneously deprive him of standing to challenge the legality of the search.” (139 AD2d 946.) The court did not address the question whether defendant’s allegations constituted an assertion of a legitimate expectation of privacy in the premises. Reasoning that once standing was established the same result was required in defendant’s case as on Glass’s appeal, the Appellate Division dismissed the indictment.

We now determine that defendant failed to establish standing to challenge the search and therefore reverse the Appellate Division order.

II.

The exclusionary rule has as an objective the social benefit of deterring unlawful police conduct. Given that the basis of the rule is a social policy judgment, it is not surprising that there has been no consensus concerning the contours of the rule. The decision as to who is, or should be, entitled to enforce the prohibition against unreasonable searches and seizures necessarily entails balancing the cost of the loss of probative evidence against the gain in deterring lawless police conduct. Courts in other States have chosen to weigh these factors differently, but in this State, as in the Federal courts, it has long been held that the policy best serving these competing interests is one that — recognizing the rights protected by the Fourth Amendment as personal rights — limits invocation of the exclusionary remedy to persons whose own protection has been infringed by the search and seizure. (Rakas v Illinois, 439 US 128, 138; People v Cefaro, 21 NY2d 252, revd on rearg on other grounds 23 NY2d 283; compare, People v Martin, 45 Cal 2d 755, 290 P2d 855.) "In order to qualify as a 'person aggrieved by an unlawful search and seizure’ one must have been a victim of a search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” (Jones v United States, 362 US 257, 261.)

The test by which a defendant’s Fourth Amendment personal right, or "standing,” is established has hardly been a static one. In early Federal court decisions, a defendant’s standing was measured by principles of property law. Only defendants who made affirmative claims of ownership (or possession) of the seized property or of a significant possessory interest in the premises searched had standing to challenge a search and seizure (Simmons v United States, 390 US 377, 389-390).

An exception to this general requirement applied in cases in which a criminal defendant was charged with a possessory offense. In such cases, the defendant was given standing to challenge the search or seizure of contraband without being required to assert ownership or possession of the property or the premises in which it was found. In creating this so-called "automatic standing” exception in Jones v United States (362 US 257), the Supreme Court was concerned with two separate anomalies it perceived in the application of traditional standing rules to cases involving possessory offenses. First was the dilemma faced by the defendant required to admit possession of the property or premises in order to vindicate Fourth Amendment rights, at a time when such evidence was admissible at trial and also likely sufficient for conviction of the charge of possession. Second was the position assumed by the government, characterized by Justice Frankfurter as "contradictory,” as it argued in the pretrial stages of the case that the defendant had failed to establish any possessory interest in the property and hence did not have standing, and then proceeded to prove at trial that the defendant had in fact possessed the property (Jones v United States, supra, at 261-264). The Jones automatic standing rule, which addressed these anomalies, was adopted in this State (see, People v Hansen, 38 NY2d 17).

Subsequent Supreme Court decisions eliminated both policy bases upon which the automatic standing rule rested. First, in Simmons v United States (390 US 377, supra), the court held that testimony in á suppression hearing cannot be used at trial against a defendant on the prosecution’s direct case, thus removing much of the self-incrimination dilemma that had motivated the automatic standing rule.

Second, in Rakas v Illinois (439 US 128) and Rawlings v Kentucky (448 US 98), the Supreme Court substantially reevaluated the nature of the interest that would give rise to Fourth Amendment standing. In Jones, the defendant not only had been charged with a possessory narcotics offense, but also had been staying for some time as a guest in the apartment that was searched and was present at the time of the search. In addition to automatic standing for those who, like Jones, were charged with possessory offenses, the Supreme Court had gone on, in a second branch of its opinion, to reject the lower courts’ view that ownership of or a leasehold interest in the premises was required to demonstrate a Fourth Amendment interest in the premises, and stated instead that "anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him”. (Jones v United States, supra, at 267.) Writing for a majority of the court in Rakas, Justice Rehnquist expressly rejected legitimate presence on the premises as a test for assessing Fourth Amendment rights. Borrowing instead a related concept from Katz v United States (389 US 347), the court opined that the issue of "standing” was simply an application of substantive Fourth Amendment doctrine and that the determinative question was "whether the person who claims the protection of the Amendment has a legitimate expectation of privacy”. (Rakas v Illinois, supra, at 143.)

Rakas was a case where the defendant’s Fourth Amendment claim was based on his connection to the invaded premises — in that case, an automobile. What the newly articulated "legitimate expectation of privacy” standard meant in cases where the defendant’s claim was based solely on the defendant’s interest in the seized property was clarified in Rawlings v Kentucky (supra) and in United States v Salvucci (448 US 83), both decided the same day. As with the "legitimately on [the] premises” aspect of Jones, Justice Rehnquist likewise found that possession of the seized goods was " 'too broad a gauge’ ” of Fourth Amendment rights (United States v Salvucci, supra, at 92-93), and while claiming that ownership or possession of the seized property was one "factor to be considered”, opted for a totality of the circumstances test directed primarily if not exclusively at the defendant’s expectation of privacy in the searched premises (see, United States v Salvucci, supra, at 91-92) Thus, the second policy basis for the automatic standing rule vanished, for there was no inconsistency in simultaneous assertions by the government that the defendant possessed the charged contraband but lacked a legitimate expectation of privacy in the area from which it was seized, and in Salvucci the rule was abolished as matter of Federal constitutional law.

Shortly after the Supreme Court did away with the automatic standing rule for possessory offenses in Salvucci, this court was faced with the policy choice whether, absent any Federal constitutional constraint to do so, the automatic standing rule should be retained as a matter of State constitutional law. We chose to abrogate the rule, "seeing no reason at this time to diverge from the Supreme Court’s analysis in Salvucci”. (People v Ponder, 54 NY2d 160, 165; see also, People v Hunter, 55 NY2d 930.) Ponder established that, as a matter of State constitutional law, a defendant seeking to challenge a search and seizure could not rest upon the fact that the People had charged possession, but was required to demonstrate a personal legitimate expectation of privacy in the searched premises.

Since Ponder, the courts in possession cases have analyzed the issue whether a defendant has asserted a legitimate expectation of privacy, and hence has standing, independently of the question how the People later intended to prove the charges, be it through evidence of the defendant’s connection to the area where the contraband was discovered or otherwise. Indeed, there are many cases where a defendant’s possession of seized property was ultimately proved through evidence of dominion and control, but where the defendant was found not to have established a sufficient legitimate expectation of privacy in the searched premises to invoke the remedy of suppression reserved for those asserting a violation of personal Fourth Amendment rights (see, e.g., People v Gomez, 67 NY2d 843; People v Vargas, 140 AD2d 472; People v Seaberry, 138 AD2d 422; People v Torres, 133 AD2d 713, revd on other grounds 72 NY2d 1007; People v Krauss, 120 AD2d 678; People v Wilkerson, 108 AD2d 831; People v Vasquez, 97 AD2d 524; People v Delmonico, 94 AD2d 773; People v Lerhinan, 90 AD2d 74; People v Traynham, 85 AD2d 748). In other cases where the defendant was found to have standing, or where there was a hearing on the question, the analysis has nonetheless been based on the privacy claims made by the defendant, and not on the nature of the People’s proposed trial evidence (see, e.g., People v Simon, 107 AD2d 196; People v Castrechino, 105 AD2d 1089; People v Bogle, 100 AD2d 762; People v Battee, 94 AD2d 935).

Only recently, in a unanimous opinion, this court again applied the rule of Ponder that it is a defendant’s burden to demonstrate his or her own constitutional interest in seeking suppression. In People v Rodriguez (69 NY2d 159), the defendant was charged with possession of drugs and hypodermic instruments found in an apartment in which he was sleeping. Affirming the denial of the defendant’s motion to suppress, we traced the evolution of the standing requirement up to the abrogation of the automatic standing rule and, citing Ponder, restated its holding that "the search and seizure entitlement under our own State Constitution was sufficient if accorded only to those with standing and that there was no reason to apply a more generous standing rule than was allowed under the Federal constitutional standard”. (Id., at 162.)

This analysis is codified in CPL 710.60, which allocates to the defendant seeking suppression of evidence the initial burden of showing sufficient grounds for the motion based on sworn allegations of fact; such grounds necessarily include a showing of standing — that is, a legitimate expectation of privacy in the searched premises.

Placing upon a defendant the burden of asserting an interest in the searched premises at the pretrial stage is fair, sensible and consonant with this court’s long-established view that Fourth Amendment rights are personal. While the People will, of course, have some notion before trial of how the defendant’s possession of the seized contraband is to be proved, it is after all the defendant alone who actually knows his or her connection with the searched area (see, People v Gomez, 67 NY2d 843, 844, supra). It is thus neither unjust nor unreasonable to require that the defendant set forth that interest, protected by the rule that such testimony cannot be used to prove the charges.

Defendant argues that unless standing is afforded to defendants in constructive possession cases, the People are unfairly permitted to assert contradictory positions, in that they contest the defendant’s expectation of privacy before trial but ultimately prove that the defendant had sufficient dominion and control over the area of possession. In fact, there is nothing contradictory about the positions taken by the People. To point out that a defendant has failed to meet the burden of asserting facts showing a legitimate expectation of privacy is not a denial that the defendant had any connection to the premises; it is simply an insistence that the required personal privacy interest be asserted by the defendant, the party whose interest it is, and the one who uniquely knows its nature. The People’s trial proof would not necessarily suffice in all constructive possession cases to demonstrate that a defendant had a cognizable interest in searched premises, even though it proved constructive possession — for instance, where the defendant had abandoned the premises, or secreted property in an area open to the public, or had been permitted only to store belongings temporarily. Indeed, defendant made just such a claim before the Grand Jury. While the trial jury with good reason chose to believe otherwise, there was no anomaly in mandating that the material facts be asserted by the defendant.

Nor does the dilemma of "the innocent defendant who has little or no connection with the place and is accused on the basis of false or mistaken evidence” (dissenting opn, at 369, n 3) support the proposition that all defendants charged with constructive possession should have standing. The policy choice made by this State was to limit the remedy of suppression to defendants whose own rights have been infringed, which reflects the belief that the trial process itself protects the innocent. Accordingly, there is no anomaly endemic to constructive possession cases that requires departure from the long-established rule in this State that a defendant seeking suppression must assert personal standing.

III.

Since Ponder, we have carved out a narrow exception in one particular class of constructive possession cases. In cases where a defendant is charged with possession of a gun based on the statutory presumption found in Penal Law § 265.15 (3), which attributes possession of a gun to the passengers in an automobile simply by virtue of their presence in the car where the gun is found, we have held that the defendant has a right to challenge the legality of the search regardless of whether he or she is otherwise able to assert a cognizable Fourth Amendment interest. We reasoned that fundamental tenets of fairness require that a defendant charged with possession under the statutory presumption be given an opportunity to contest the search (People v Millan, 69 NY2d 514, 520). However, we made clear in Millan that this exception was in no way inconsistent with Ponder, which remains the law (id., at 519).

The Millan decision, as well as a reference in Millan to People v Mosley (68 NY2d 881), have apparently engendered confusion about the scope of the exception articulated in Millan (see, e.g., People v Rada, 141 Misc 2d 218; People v Febus, NYLJ, Aug. 29, 1988, at 18, col 6; People v Williams, 140 Misc 2d 741; People v Ycasa, 140 Misc 2d 114; People v Pagan, 138 Misc 2d 802; People v Martinez, 136 Misc 2d 665) or, put the other way, about the continued vitality of Ponder. The issue is squarely presented in this case, where the Appellate Division read Millan and Mosley to mean that a defendant charged with constructive possession of contraband, although not pursuant to a statutory presumption of possession, must be granted standing to challenge the search that uncovered that contraband. If the Appellate Division is correct, the holding of Ponder is so substantially eroded as to be effectively overruled. There will be few cases where a possessory offense is based neither on a search of the person (in which case there plainly is standing) nor on evidence of constructive possession.

A reading of Mosley and Millan that so drastically undercuts our long-standing view of what is a constitutionally protected interest for purposes of the standing requirement is too sweeping. In Millan we were concerned with the unfairness created by a particular category of cases — those in which the legal fiction of Penal Law § 265.15 (3) was alone both probable cause to arrest and sufficient to satisfy the People’s burden of proof of possession of a gun merely because of the circumstance of the defendant’s presence in the automobile where the weapon was found. The statute was prompted by the frequency of cases in which the People were unable to secure any conviction when a gun was hidden in an automobile with more than one occupant, for under traditional legal principles, the very fact that more than one person had access to the gun generally defeated a charge of constructive possession (see, People v Lemmons, 40 NY2d 505). The broad remedy adopted by the Legislature was, in effect, to place each person in the same position as though the gun had actually been found on his or her person. To deny standing in such circumstances created an anomaly we addressed in Millan, by holding that defendants arrested and charged on the basis of Penal Law § 265.15 (3) have a right to contest the legality of the search of an automobile that the statute transformed through a legal fiction into an extension of their persons.

The unfairness we perceived in Millan is not present in cases where a defendant is charged with constructive possession on the basis of evidence other than the statutory presumption. No presumption is used to secure a conviction. More importantly, unlike presence in an automobile, no single circumstance necessarily suffices to establish a prima facie case against a defendant charged with constructive possession. Instead, the People bear the substantial burden of establishing defendant’s ability and intent to exercise dominion or control over the contraband (compare, 1 CJI [NY] 9.70, with 3 CJI [NY] PL 265.15 [3]).

Indeed, the very opposite may be said of the concern that led us to formulate the Millan exception. The statutory presumption allowed the precise circumstance that had resulted in lack of standing — passenger status — to form the sole basis for conviction. In other constructive possession cases, by contrast, the circumstance that a defendant has an insufficient interest in the premises to claim standing will generally also tend to undermine any charge that the defendant was able to exercise dominion and control over contraband therein. Thus, the Millan exception to the requirement that a defendant who seeks to contest the legality of a search be able to assert a violation of personal rights has no application in this context.

The Appellate Division’s reading of our memorandum decision in People v Mosley (68 NY2d 881, supra) was also too broad. In Mosley, the defendant and his two companions were stopped and frisked. The predicate for Mosley’s arrest was the discovery of a starter’s pistol on the person of one of Mosley’s friends during the course of the search. The arresting officer took Mosley into custody for jointly and constructively possessing the gun. During a later station house search, a pistol was found in Mosley’s own pocket. We concluded that the stop and frisk were unjustified and that no probable cause existed for the subsequent arrest of defendant and station house search that led to discovery of the pistol in Mosley’s pocket. Mosley unquestionably had standing to contest whether the discovery of a gun in his friend’s possession constituted probable cause for his own arrest. There is no parallel to the present case.

In short, no Millan-Mosley "rule” or "principle” restoring automatic standing in constructive possession cases has been established, eroded or jettisoned by this court, despite the contrary assertion in virtually every paragraph of the dissenting opinion.

IV.

There remains for our consideration the question whether Millan should now be extended to permit all defendants charged with constructive possession to claim standing for that reason alone. We think not. To do so would be to depart from Ponder and the cases that have followed it, requiring that a defendant assert the violation of a personal privacy right. To be sure, stare decisis is a matter of judicial policy and not alone reason for adhering to precedent. Nonetheless, the existence of settled doctrine is a powerful argument for the exercise of restraint (see generally, People v Hobson, 39 NY2d 479, 487-490). Before the court departs from a precedent that remains vital and operates effectively, it should be clear that justice is thereby advanced. Here, we find no reason to depart from Ponder to adopt the rule advocated by the defendant and the dissent.

Perhaps most significantly for present purposes, the Ponder rule is more fair and less anomalous than anything they suggest. Given a single search and two defendants, under the dissent’s proposal the defendant who actually possessed contraband might be denied standing to seek suppression unless a legitimate expectation of privacy were asserted, while the defendant who possessed that contraband constructively would automatically be entitled to challenge the search. That same anomaly exists even as to a single defendant: according to the dissent, if charged with constructive possession of drug paraphernalia scattered throughout a room, a defendant automatically has standing to seek suppression, yet if charged with possessing "hypodermic needles both in and beside the bed where he was sleeping and a bag of cocaine on top of which he was lying” (dissenting opn, at 375, referring to People v Rodriguez, supra), defendant must first assert a constitutional interest. Moreover, by looking to the use sought to be made of the seized property, the dissent’s proposal reintroduces the hairsplitting Fourth Amendment distinctions between contraband and "mere evidence” that were repudiated in Warden v Hayden (387 US 294). If the State proposes to charge a defendant with possessing property, in the dissent’s view standing would automatically be granted; but if the value of the property is evidentiary, the same defendant would have to meet the burden of asserting a cognizable interest in the premises.

Nor does the Ponder rule create the unfairness or anomaly that defendant here stands convicted while his girlfriend remains free (dissenting opn, at 367). That result arises because, despite substantial evidence to the contrary, defendant chose to take the position that he had little connection with the searched premises. Had he asserted a similar interest in the premises to that of his girlfriend, the result might well have been otherwise.

As this case has been decided by the Appellate Division and presented to us, only the fact that this is a constructive possession case is asserted as support for defendant’s claim of standing to seek suppression of the contraband. That is simply insufficient under the law.

Accordingly, the order should be reversed and the case remitted to the Appellate Division, Fourth Department, for consideration of the facts and other issues not reached on appeal to that court.

Hancock, Jr., J.

(dissenting). When the State bases an

individual’s guilt on his lawful dominion and control over a place where contraband is found, it may not dispute that same dominion and control to deny him the right to challenge the police conduct in searching that place. The logic and simple justice of this principle was the basis of the Federal and State constitutional rule announced in People v Millan (69 NY2d 514). The same principle was also at the root of our decision in People v Mosley (68 NY2d 881). Indeed, it seems virtually unthinkable that the law could be otherwise.

The issue in this case is whether an individual has standing to challenge the police search of the place where contraband is found, when the State has charged him with possession of the contraband solely on the ground that he had dominion and control over that place — not that he had direct control over the contraband itself. This case, therefore, does not involve "automatic standing”. Defendant’s claimed standing is not based merely on his being charged with some possessory crime. Hence, the majority’s reliance on decisions such as People v Ponder (54 NY2d 160) and United States v Salvucci (448 US 83, 92-93) is entirely misplaced. The distinction is crucial.

Nor is this a case where the People’s proof of dominion and control, if accepted, would not establish a cognizable right of privacy under the State and Federal Constitutions. The claim here involves defendant’s dominion and control over an apartment where he allegedly resided with his girlfriend and child —not some area in which he could have no lawful interest. Thus, the majority’s illustrations of places where a defendant would have no legitimate expectation of privacy — e.g., abandoned premises, public area, temporary storage place (majority opn, at 359) — miss the point.

The present appeal centers only on this: the question of defendant’s standing based on the State’s own allegations— allegations that are the sine qua non of the constructive possession charge here — i.e., that defendant exercised sufficient dominion and control over the place searched to be responsible for what is inside; whether, if the State bases its charge against defendant solely on such assertions, it should be allowed to take exactly the opposite position when defendant seeks to vindicate his right to be protected from an unconstitutional search. Here, defendant’s guilt is predicated solely on the People’s claim that he had possessory control over the apartment where the drugs and gun were found. In permitting the People to deny that defendant had such dominion and control in order to bar his challenge to the concededly illegal search of the apartment, the majority now approves the State’s assertion of such squarely contradictory positions.

This ruling directly contravenes the principles and reasoning which underlie our decisions in People v Millan (supra, at 519, 522, n 7 [defendant accused of constructive possession of a gun found in a taxicab in which he was a passenger should have the right to contest search of cab]) and People v Mosley (supra [when police base their arrest of defendant on his companion’s possession of a weapon, defendant should have right to contest legality of frisk of companion which lead to discovery of the weapon]). In People v Millan (supra, at 519-520), we said that to deny the defendant a right to contest the search of the cab "would be repugnant to the requirements of fair play which have 'evolved through centuries of Anglo-American constitutional history’, particularly as applied to the relationship 'between the individual and government’ [cites omitted]. The rule the People would have us sanction is this: the government, through its agents, may search a taxicab and, upon finding a gun, use the legal fiction of constructive possession to prosecute all passengers, conscious or not of the gun’s existence, and yet deny those it accuses a right to question the actions of its agents in conducting the search. Such a rule offends fundamental tenets of fairness inherent in New York criminal jurisprudence ([citing] NY Const, art I, § 6 * * * People v Mosley, 68 NY2d 881 [other cites omitted]) and we reject it. ” (Emphasis added.)

Applying the rule set forth in Millan and Mosley, the courts of this State have uniformly allowed defendants charged with constructive possession of an item, based on possessory control over an area, to challenge the legality of the search of that area (see, People v Wesley, 139 AD2d 946 [4th Dept]; People v Hicks, 138 AD2d 519, 520 [1st Dept]; People v Knight, 138 AD2d 294, 296 [1st Dept]; People v Collins, 137 AD2d 542, 545 [2d Dept]; People v Giles, 137 AD2d 1, 4 [1st Dept]; People v Martin, 135 AD2d 355, 356 [1st Dept]; People v Fore, 131 AD2d 329, 330 [1st Dept]; People v Pagan, 138 Misc 2d 802, 803-805 [Sup Ct, Bronx County]; People v Martinez, 136 Misc 2d 665, 667-668 [Sup Ct, Queens County]; see also, People v Davis, 130 AD2d 268, 272 [1st Dept]; People v Ycasa, 140 Misc 2d 114, 120 [Crim Ct, NY County]). No distinction has been made between constructive possession charges which are aided by a statutory presumption (see, e.g., Penal Law §§ 220.25, 265.15) and those which are not (see, e.g., People v Martin, supra, at 356; People v Ycasa, supra, at 120; People v Pagan, supra, at 803-804; and see, Preiser, Criminal Procedure, 39 Syr L Rev 237, 251-252 [1988]).

The majority now abandons the principles articulated in Millan and Mosley and seriously erodes these precedents. Here, the police, acting under an invalid search warrant, searched the apartment where defendant’s girlfriend, Jacquelin Glass, lived with the couple’s infant child. They discovered and seized a gun and drugs. Both defendant and his girlfriend were charged with constructive possession of these items and both moved to suppress on the basis of the invalid warrant. Their motions were denied and, after a joint trial, both were convicted. On trial, the proof against defendant consisted entirely of evidence that he had dominion and control over the apartment where the contraband was found. Based on the court’s charge with respect to constructive possession, the jury found that the proof was sufficient to establish defendant’s guilty possession of the items (see, Penal Law § 10.00 [8]). In addition to proving that defendant’s girlfriend, Jacquelin Glass, and their child lived there, the People established that a dresser in the apartment contained men’s clothing and toilet articles; another dresser contained a shoe box with a wallet and various items of identification bearing defendant’s name; other items identifying defendant as the owner were found elsewhere in the apartment, including a temporary driver’s license, birth certificate, unopened mail addressed to defendant, and an address book with his parole officer’s card.

On Jacquelin Glass’s appeal to the Appellate Division, that court declined to adopt the "totality of circumstances test” as applied to the search warrant (see, Illinois v Gates, 462 US 213) and held the warrant invalid under the Aguilar-Spinelli rule (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410). Accordingly, it dismissed the charges (see, People v Glass, 136 AD2d 892). The court likewise dismissed the charges in defendant’s appeal. Applying Millan and Mosley, the court disagreed with the suppression court and held that "the People may not predicate the charges against defendant on the theory that he constructively possessed the drugs * * * and simultaneously deprive him of standing to challenge the legality of the search” (139 AD2d 946).

I

As a result of the majority’s reversal of the Appellate Division and its reinstatement of the judgment, defendant— charged with criminal possession based on what he states was a tenuous connection with his girlfriend’s apartment — stands convicted and sentenced on evidence obtained from a concededly invalid search warrant. His girlfriend, however — who, as the tenant and occupant of the apartment, could have had no defense to a claim of constructive possession — was permitted to challenge the search. She did so and, on her appeal, the charges were dismissed. She now remains free.

The consequences of the rule the majority adopts today are best illustrated by what is permitted in this case. The People may charge a defendant with possession of an item based solely on dominion and control over the place where it is found; they may have in their files sufficient evidence of defendant’s dominion and control of the place to secure an indictment from the Grand Jury, to satisfy the court that there is a prima facie case, and to defeat defendant’s motion to dismiss the indictment on the Grand Jury minutes (see, CPL 210.20, 190.75); they may subsequently adduce sufficient evidence of defendant’s dominion and control over the place to secure a conviction from the jury; and yet, the People may withhold this evidence of dominion and control in opposing defendant’s suppression motion and successfully contend that his admitted connections with the place are insufficient to let him contest the search.

Aside from the obvious unfairness of such a rule, it is immediately apparent that the rule works to the detriment of the innocent defendant. For if a defendant’s connection with the place is doubtful and if the People’s evidence can be refuted or explained away, the defendant is on the horns of a dilemma. If he tells the truth, he cannot, under the rule adopted today, set forth in his moving papers or in his suppression testimony sufficient evidence of dominion and control over the area to contest the illegal search. He must give up his attack on the search and stake all on his ability to refute the People’s proof at trial. Under the constitutional principle of Millan and Mosley, as correctly applied by the Appellate Division, this trap is avoided. It is assumed that, if the People have sufficient evidence of a defendant’s dominion and control over the place to charge and indict a defendant on the basis of constructive possession, there must be enough evidence of dominion and control to give defendant a right of privacy in the place and standing to contest an invalid search.

The majority offers no purposive, policy, or societal reason as the basis for its decision to all but jettison what, I think, is concededly the sound and just principle of Millan and Mosley. It is not contended that it is fair that defendant should be punished while his girlfriend — who unquestionably had dominion and control over the apartment — goes free; or that it makes sense that the People may possess sufficient evidence of a defendant’s control and dominion over a place to obtain an indictment and ultimately a conviction and yet block the suppression motion because defendant has no right of privacy in the place;* ** or that a rule which operates more favorably for the guilty than for the innocent can be a good rule. Nor is it explained why it does offend fundamental fairness to deny a defendant the right to contest the search of a place when his alleged possession of contraband, based on dominion and control over the place, is aided by a statutory presumption, but does not do so when there is no such presumption. Rather, the majority’s reasoning seems to be predicated on what it perceives to be the command of the law as it is.

I disagree with the majority’s conclusion that adherence to precedent (i.e., People v Ponder, 54 NY2d 160, supra; People v Rodriguez, 69 NY2d 159) compels it to reach the result that it does. The State and Federal Constitutions and the rule we announced in Millan, in my view, clearly compel just the opposite result. There are, of course, cases when the social interests of symmetry and certainty to be served by adherence to precedent must give way to the social interests served by equity and fairness. (See, Cardozo, The Nature of the Judicial Process, at 112, 113 [1921].) Assuming for the moment that my colleagues are correct in their assessment of the existing precedential constraints on their decision, this would certainly be one such exceptional case. For, if my colleagues are correct that the law precludes application of the Millan-Mosley rule, the law most assuredly "ought not to” do so (see, Fuller, The Law in Quest of Itself, at 4-15 [1940]; Patterson, Cardozo’s Philosophy of Law, 88 U Pa L Rev 156 [1939]). But the focus of this dissent is primarily on what the majority seems to have adopted as its premise: that our precedents require the result it reaches.

The majority’s reasoning for the anomalous and, I think, manifestly unfair result is founded on these propositions: (1) that Millan is distinguishable because, in that case, the proof of dominion and control over the gun on which the guilty possession was based (Penal Law § 10.00 [8]) was aided by a statutory presumption (Penal Law § 265.15 [3]) while, in this case, constructive possession of the contraband was ascribed to defendant by proof of his dominion and control over his girlfriend’s apartment without benefit of such presumption; (2) that this case is in point with People v Ponder (supra) and the holding in that case compels a reversal; and (3) that an affirmance would be contrary to our holding in People v Rodriguez (supra). Each proposition will be addressed.

II

The constitutional rule of Millan-Mosley is grounded on fundamental fairness: that the State should not be heard to deny dominion and control over an area to defeat a defendant’s suppression motion while asserting such dominion and control to indict and convict him. In a sense, the doctrine embodies the principle of judicial estoppel. The State simply cannot have it both ways. It cannot use its evidence of dominion and control to indict and convict but pretend there is no such evidence when defendant complains that his constitutional rights were violated.

There can be no plausible reason why this rule should apply with any less vigor where the proof of defendant’s dominion and control over a place — and, hence, his constructive possession of the contraband found therein — is aided by a statutory presumption than where it is not. The unfairness is the same. In each case the defendant can be convicted on unconstitutionally obtained evidence based on the People’s proof of the same dominion and control which would have constituted a sufficient right of privacy for defendant to contest the illegal search.

The fact that Millan — as contrasted with the case before us —involved a statute which gave rise to a rebuttable presumption of defendant’s dominion and control is a distinction without significance. In each case, the People had the burden of establishing sufficient facts for a finding of dominion and control over the area or place from which the jury could, if it chose, infer dominion and control over the item found therein (see, Penal Law § 10.00 [8]; People v Reisman, 29 NY2d 278, 285; People v Terra, 303 NY 332, 335; see also, 1 CJI [NY] 9.70). That the rebuttable statutory presumption in Millan permitted the People to establish a prima facie case of dominion and control by showing defendant’s presence in the automobile where the weapon was found is of no moment. The legal theory on which guilt is based remains the same — constructive possession over the area searched (see, People v Lemmons, 40 NY2d 505, 510; 3 CJI [NY] PL 265.15 [3]).

The majority nevertheless takes the position that the holding in Millan was based solely on the fact that the People were aided by the presumption contained in Penal Law §265.15 (3) and, therefore, that the decision is inapplicable here. This is plainly not so. The majority ignores the fact that Millan relied on our earlier decision in Mosley, a case not involving a statutory presumption. Our decision in Mosley was premised on the same equitable principle at the root of our decision in Millan: it would offend fundamental fairness to permit the People, for the purpose of providing probable cause to arrest defendant, to impute to defendant possession of a weapon found on his confederate and, at the same time, deprive him of the right to contest the illegal search of the confederate which produced the weapon.

In sum, there is no principled distinction between Millan and the case before us. The injustice for each defendant is the same. The sheer unfairness of giving the State the advantage of asserting contradictory positions is the same. The ultimate fact on which guilt is premised in each case is the same: constructive possession based on dominion and control over a space. Our court concluded in Millan that the contradictory positions taken by the People called for an application of the equitable principle we found embodied in the State and Federal Constitutions (see, People v Millan, supra, at 519-520, 522, n 7). That the People’s proof of dominion and control against defendant in Millan was aided by a presumption but is not so aided here is certainly no basis for treating this defendant differently. Fundamental principles of fairness do not turn on such nice distinctions.

Ill

The majority’s contention that People v Ponder (supra), dictates the result reached here is without basis. That case is simply not in point. In Ponder, a witness, who knew defendant, saw him running away from a hardware store where a robbery had just taken place and the owner had been shot and fatally wounded. Defendant, the witness observed, had a black and silver object protruding from his jacket. The police, from their prior experience, knew that defendant might seek refuge in his grandmother’s house nearby. They searched the grandmother’s house for the weapon. In the basement, inside a washing machine, they discovered a sawed-off .22 caliber rifle.

Unlike the case at bar, there was no claim that defendant’s possession of the weapon was constructive possession or that his possession was based in any way on his allegedly exercising dominion and control over the place where it was found. On the contrary, the police had direct evidence that defendant had used the weapon in the robbery and had run with it from the scene. The weapon was sought as evidence in connection with charges stemming from the robbery and fatal shooting which had just occurred. Because it was clear that defendant could not have had a reasonable expectation of privacy in his grandmother’s house, or in the cellar or the washing machine, we held that he had no standing to challenge the search of his grandmother’s house. Obviously, under the settled rule that Fourth Amendment rights are personal to the person whose rights are violated and cannot be asserted by another (see, Alderman v United States, 394 US 165, 174), the defendant could not rely vicariously on the violation of his grandmother’s rights.

Ponder is virtually on point with Rakas v Illinois (439 US 128), a decision reached by the Supreme Court less than two years before it did away with the "automatic standing” rule (see, Jones v United States, 362 US 257) in its decision in United States v Salvucci (448 US 83, supra). In Rakas, the police seized incriminating evidence against defendants from the automobile in which they were riding. The evidence was obtained for use in robbery charges against them. The defendants neither owned the car nor the items found and, under the law, their status as mere passengers gave them no right of privacy for purposes of contesting the search. The court rejected their argument that because they were targets of the search and the evidence could be used against them they should be allowed to rely on the owner’s Fourth Amendment rights (see, Alderman v United States, 394 US 165, 174, supra).

The material elements in Ponder differed from Rakas in only one respect. In Ponder, there was the additional weapon possession charge (based on eyewitness testimony) stemming from the robbery and shooting. Had our court decided to stick with the "automatic standing” rule of Jones, despite the Supreme Court’s overruling in Salvucci, we would have been compelled to give Ponder standing based solely on this possession charge, even though only his grandmother’s constitutional rights had been violated.

This case is not Ponder. Nor is it Rakas. Defendant is not seeking to rely on constitutional rights of a third person. Here, it is defendant’s own constitutional rights that were concededly violated and which he seeks to vindicate. Nor does this case involve "automatic standing” which, without more, would permit any defendant charged with any possessory crime to challenge any search resulting in the seizure of incriminating evidence — whether or not the search itself intruded upon defendant’s privacy right. Rather, this case involves the critically different Millan-Mosley principle. The People may not seek to prove defendant’s guilt on facts showing his dominion and control over a place and yet deny the defendant the benefit of those same facts to establish his right of privacy therein. If there is enough evidence of defendant’s lawful dominion and control to indict and convict, there is enough for defendant to contest the search. The principle is as simple as that.

Thus, despite the forebodings of the majority, an affirmance would clearly not disturb Ponder. That decision, together with Rakas and Alderman, will continue to stand for the sound proposition that a defendant — even one charged with a possessory crime — should not be permitted to move for suppression unless he can assert that his own constitutional rights were violated. He may not, in effect, get a free ride on someone else’s constitutional rights — i.e., in Ponder, the grandmother’s rights. Here, unlike Ponder, defendant seeks to assert his own constitutional rights based on the very facts with which the People seek to convict him. Under Millan-Mosley, defendant would be permitted to do this. Under the majority decision, he may not.

Finally, the scrupulous care with which the majority seeks to avoid any disturbance of precedent, I respectfully submit, is misdirected. It is not the apprehended effect of an affirmance in somehow eroding the court’s ruling in Ponder that should be the source of concern (for the usefulness of the Ponder rule, had we affirmed the Appellate Division, would have remained totally undiminished as it did under Millan). Instead, the proper focus should be the adverse impact that a reversal will have on the constitutionally based rule of Millan-Mosley and, consequently, on the rights of individuals charged with constructive possession who will be precluded from complaining about illegal searches — even when the State has sufficient evidence of their lawful possessory interests in the place searched to obtain a conviction.

IV

The final reason given by the majority for its holding is the assertion that an affirmance would be contrary to our decision in People v Rodriguez (supra). This too, I submit, is simply not so. First, the defendant in Rodriguez never raised the issue presented here and in Millan and Mosley. It must be noted, of course, that Rodriguez preceded our decision in Millan by two and one-half months. Indeed, the dissenter in Millan observed that the majority decision "casts considerable doubt” on our earlier decision in Rodriguez (People v Millan, supra, at 524 [Bellacosa, J., dissenting]). Second, and perhaps more importantly, there is no indication in the record in Rodriguez— unlike Millan and the present case — that defendant was charged with constructive possession based on the theory that he had dominion and control over the place searched. Although ammunition in Rodriguez, drugs, and drug paraphernalia were found throughout the apartment, it appears that the only items defendant was charged with possessing were hypodermic needles both in and beside the bed where he was sleeping and a bag of cocaine on top of which he was lying. Thus, it seems that the People were proceeding on the theory that defendant actually possessed the items. Since the People were not claiming that Rodriguez had dominion and control over the apartment and, therefore, constructive possession of its contents, there would have been no reason to make the fundamental fairness-due process argument later accepted in Millan.

V

In studying the majority opinion for a satisfactory explanation of its decision to avoid application of the Millan-Mosley principle in this case, it is, I submit, reasonable to ask these questions:

1. Are there any reasons based on policy or principle offered to explain the decision? I think the answer is clearly no. The majority’s efforts to sustain its decision on policy grounds (e.g., "[p]lacing upon a defendant the burden of asserting an interest in the searched premises at the pretrial stage is fair” [majority opn, at 359]; it is a "long-established rule in this State that a defendant seeking suppression must assert personal standing” [id., at 360]; "the Ponder rule is more fair and less anomalous than anything [the dissenters] suggest” [id., at 363]) are the same arguments which confronted the court in Millan. But we considered them in Millan and concluded that the overriding concern was the unfairness of permitting the People to assert squarely contradictory positions. Nowhere does the majority explain how the presence or absence of a statutory presumption can be relevant to the concepts on which Millan-Mosley is based and the determining factor in the decision to avoid its application here.

2. Is the decision compelled by precedent and the command of positive law? Again, the answer must be no. For reasons stated, I am convinced that neither Ponder (see, part III, supra) nor Rodriguez (see, part IV, supra) compels the majority’s result. Indeed, Millan-Mosley compels just the contrary.

3. What then is the reason? The remaining possibility is that the decision reflects an unarticulated policy choice to retreat from Millan-Mosley. Repeated references to Ponder and to the pre-Millan decisions of Rodriguez and People v Gomez (67 NY2d 843), as well as the majority’s efforts to recast this case as one involving "automatic standing” to bring it within Ponder, suggest that this may be so.

But whatever the reason or explanation for the majority’s decision, the holding comes to this: the State may charge and indict a defendant on a set of facts which, if proven, would establish his guilt, and, at the same time, deny him the use of that set of facts as the basis for a constitutional objection which would defeat the charge. I am unable to accept this proposition as one which comports with the deeply rooted traditions of fair play inherent in Anglo-American law and in the principles of due process which underlie our system of justice (see, Anti-Fascist Comm. v McGrath, 341 US 123, 162 [Frankfurter, J., concurring]; Wardius v Oregon, 412 US 470, 475-476; Malinski v New York, 324 US 401, 413-415; Lisenba v California, 314 US 219, 236; People v Isaacson, 44 NY2d 511, 520). In endorsing this proposition, the majority has taken a long step toward undercutting the principle of Millan-Mosley, a constitutional rule based on these fundamental concepts of due process. With this result, I must express my profound disagreement.

Accordingly, because the search was concededly invalid (People v Glass, supra), the indictment was properly dismissed. I, therefore, respectfully dissent and vote to affirm.

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

Order reversed, etc.

      . In a suppression hearing, a defendant may, of course, rely on evidence elicited during the People’s direct case in order to sustain his or her burden of proving standing (People v Gonzalez, 68 NY2d 950, 951).

      . The dissent’s suggestion that such a showing can be made retrospectively by parsing the People’s trial proof renders this legislative choice nugatory, and is procedurally awkward. People v Rodriguez (69 NY2d 159) exemplifies the problems posed by such hindsight analysis: there, the defendant pleaded guilty — as is often the case — under one count of a three-count indictment, and a potential witness who had previously spoken to the police was missing at the time of the suppression hearing. An appellate court would have surmised little if anything, in those circumstances, about what type of evidence of possession the People had, or could have used.

      . Thus, the Appellate Division erred when it implied that the People’s theory was that defendant constructively possessed the drugs merely because he was present at the time of the search. The People presented ample additional proof of constructive possession.

      . Mosley plainly does not stand for the proposition that defendant had standing to litigate the validity of the search of his friend, a third party (dissenting opn, at 371-372, n 6). Such a reading would be openly at odds with Ponder and People v Henley (53 NY2d 403).

      . The rationale of Millan is that depriving defendant of the right to contest the search offends principles of fundamental fairness inherent in the Due Process Clauses of the Federal and State Constitutions (citing, inter alia, Anti-Fascist Comm. v McGrath, 341 US 123, 162 [Frankfurter, J., concurring]; see also, Wardius v. Oregon, 412 US 470, 475-476; Malinski v New York, 324 US 401, 414-415; Lisenba v California, 314 US 219, 236; People v Isaacson, 44 NY2d 511, 520).
      Chief Judge Cooke, writing for the court in People v Isaacson (44 NY2d, at 520, supra), summarized the principle thus: "[Due process] embraces fundamental rights and immutable principles of justice (People v Terra, 303 NY 332, 334) and use of the term is but another way of saying that every person’s right to life, liberty and property is to be accorded the shield of inherent and fundamental principles of justice (see Ives v South Buffalo Ry. Co., 201 NY 271, 293, 295-296; see, also, People v Yamin, 45 Misc 2d 407, 417). Due process of law guarantees respect for personal immunities 'so rooted in the traditions and conscience of our people as to be ranked as fundamental’ (Snyder v Massachusetts, 291 US 97,105 [Cardozo, J.]).”

      . The issue is not whether an individual has standing whenever charged with constructive possession of contraband.

      . The majority’s rationalization for this "Catch-22” (see, People v Martinez, 136 Mise 2d 665, 666-667) of having to choose between two unacceptable alternatives is this: "[T]he circumstances that a defendant has an insufficient interest in the premises to claim standing will generally also tend to undermine any charge that the defendant was able to exercise dominion and control over contraband therein.” (Majority opn, at 362.) In other words, the majority reasons, if the defendant is unable to establish standing, the evidence of dominion and control would be insufficient and the defendant would be acquitted. But, this does not follow. If the defendant has been indicted, it presupposes that sufficient evidence of his dominion and control has been presented to the Grand Jury to constitute a prima facie case. It is, of course, possible that the jury, despite defendant’s claimed "insufficient interest in the premises”, will believe the People’s evidence and that, because of defendant’s inability to challenge the illegal search, he will be convicted.
      Similarly, with respect to the fact that defendant’s girlfriend was able to challenge the concededly unlawful search while defendant was denied the same right, the majority explains that, "[h]ad he asserted a similar interest in the premises to that of his girlfriend, the result might well have been otherwise.” (Majority opn, at 364.) The comment obviously assumes defendant’s guilt and that, in denying that he had dominion and control over the apartment, defendant was not telling the truth. But what if he were telling the truth? How does the rule work for the innocent defendant who has little or no connection with the place and is accused on the basis of false or mistaken evidence?

      . Contrary to the majority opinion, the Millan-Mosley due process rule does not depend on "retrospectively * * * parsing the People’s trial proof’ (majority opn, at 359, n 2). Rather, the rule simply prohibits, on fundamental fairness grounds, the "squarely contradictory assertions of power by the Government” (Jones v United States, 362 US 257, 264) in charging defendant with the dominion and control over a place with evidence sufficient to obtain an indictment and, at the same time, denying defendant the right to contest an unconstitutional search of that place. Our reference to the fact that the People again use this evidence to convict is made only to emphasize the unfairness of allowing the State to take such contradictory positions.

      . Contrary to the majority opinion (see, majority opn, at 362), the statutory presumption does not alter the People’s burden of proof. Even when Penal Law § 265.15 applies, the People must prove beyond a reasonable doubt that defendant had the ability and intent to exercise dominion and control over the contraband (see, People v Terra, 303 NY 332, 334). Section 265.15 (3) merely recognizes an inference based on common experience which the jurors would have been free to draw even without the statute and are free to reject with the statute (see, People v Reisman, 29 NY2d 278, 285-286; People v Terra, supra, at 335).

      . In an effort to distinguish Mosley, the majority states: "Mosley plainly does not stand for the proposition that defendant had standing to litigate the validity of the search of his friend [Mackie]” (majority opn, at 362, n 4). These statements are flatly contradicted by the language of our decision in Mosley: "Inasmuch as the People rely on the discovery of the starter pistol on Mackie as the basis for the arrest of defendant — that defendant constructively possessed the weapon concealed on Mackie’s person — defendant has standing to contest the frisk of Mackie” (68 NY2d 881, 883 [emphasis added]). Thus, contrary to the assertion of the majority, the issue in Mosley was whether defendant had standing to contest the search of Mackie. We determined defendant had standing by simply applying the principle later articulated as a constitutional rule in Millan — the same principle of judicial estoppel which the Appellate Division, in my view, properly applied here.

      . The People’s contradictory positions here are reminiscent of the positions taken by the prosecution in Jones v United States (362 US 257) which provoked the following comment from Justice Frankfurter: "It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession of the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41 (e).” (362 US, at 263-264.)

      . The majority opines that there are few cases in which a defendant would not have standing under the Millan-Mosley rule and that, therefore, the rule should be narrowly interpreted (majority opn, at 361). There is nothing in Millan indicating that our articulation of the principle was begrudging or suggesting that there should be any hesitancy in applying it where, as here, the facts call for it. Nor is there anything in Ponder indicating that the decision was intended to be extended to situations where defendants would be unfairly prevented from asserting their constitutional rights. But there are, of course, cases where Millan and Mosley would not give standing. Ponder and Rodriguez are two examples.


source: Caselaw Access Project

author: Per Curiam. Titone, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Clementin Allen, Appellant.
    Decided April 4, 1989

      APPEARANCES OF COUNSEL

      Stephanie T. Knowles and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Three plain-clothes police officers, while on anticrime patrol in The Bronx, received a radio report of an armed robbery in progress at a nearby address. The report described the perpetrators as four black males armed with two guns apiece. Just moments after receiving this information and as the officers were approaching the crime scene, they spotted the defendant and three other black males running away from the direction of the robbery. Believing that defendant and his three companions might be the perpetrators, the officers exited their unmarked patrol vehicle, identified themselves and approached the four men for questioning. The four suspects then scattered and fled in different directions with defendant leading one of the officers on a chase into a dark alley. Before following defendant into the alley, the officer, concerned for his own safety, called for uniformed backup. When help arrived, the two officers proceeded into the alley and apprehended defendant who was apparently attempting to scale a wall. Defendant was then handcuffed and brought out of the alley into a brighter area so that he could be safely searched for weapons and questioned. Immediately after being handcuffed, but prior to any questioning, defendant spontaneously admitted his complicity in the robbery. Defendant later moved to suppress his statements, contending that he was under arrest as soon as he was handcuffed and that the arrest was not supported by probable cause since no inculpatory statements were made until after the handcuffs had been applied. Supreme Court denied the motion and defendant was subsequently convicted, upon a jury verdict, of two counts of robbery in the first degree. The Appellate Division affirmed the conviction, concluding, inter alia, that under the circumstances the handcuffing of defendant did not constitute an arrest. We agree and thus affirm.

In the circumstances presented, the police officers were entitled to handcuff defendant to effect his nonarrest detention in order to ensure their own safety while they removed him to a more suitable location to pat him down for weapons (see, People v Chestnut, 51 NY2d 14; People v Benjamin, 51 NY2d 267). Nothing in our precedents establishes a rule that the application of handcuffs will always be dispositive of whether the detention of a suspect on reasonable suspicion has been elevated into a full-blown arrest (People v Hicks, 68 NY2d 234; cf., People v Tirado, 69 NY2d 863). Where, as here, police officers find themselves in a rapidly developing and dangerous situation presenting an imminent threat to their well-being, they must be permitted to take reasonable measures to assure their safety and they should not be expected "to await the glint of steel” before doing so (People v Benjamin, 51 NY2d, at 271, supra). This case does not present a situation in which the officers’ initial use of handcuffs was gratuitous and not warranted by the threat confronting them (cf., People v Tirado, 69 NY2d 863, supra). Nor does it involve the unnecessary, prolonged handcuffing of a suspect detained on reasonable suspicion after the threat justifying the use of handcuffs has been neutralized. Here, the poor lighting conditions prevailing in the alley, combined with the officers’ reasonable belief that defendant might be armed, justified the limited use of handcuffs to prevent defendant from reaching for a concealed weapon while the officers were taking him to a safer location.

Finally, the determination that reasonable suspicion existed to justify the nonarrest detention of defendant involves a mixed question of fact and law and is supported by evidence in the record. Therefore, this issue is beyond our review (People v Jones, 69 NY2d 853, 855; People v Harrison, 57 NY2d 470, 477).

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

Titone, J.

(concurring). I agree that the facts presented by this case do not require suppression. In light of the fact that the officers were acting during the course of a hot pursuit of an armed robbery suspect, which unavoidably led them into a dark alley, they were justified in handcuffing defendant for the limited purpose of facilitating a frisk to ensure their own safety. Since defendant’s statement was made immediately and there is no indication that defendant was confined in handcuffs beyond the point that was necessary to enable the officers to complete a limited pat-down, there is no ground for disturbing the Appellate Division’s finding that an arrest did not occur.

I cannot join the majority’s memorandum opinion, however, because I find its language overly broad and its analysis insufficiently protective of Fourth Amendment rights. Use of phrases that evoke vivid images of police officers in danger may have some superficial appeal, but they ultimately only serve to obscure, rather than enhance, analysis. Indeed, the Supreme Court’s decision in Dunaway v New York (442 US 200), in which the court rejected an attempt to distinguish between "arrests” and "custodial detentions for questioning,” should make us particularly wary of terms like "nonarrest detention.”

Moreover, although there are those rare situations such as this one (see also, People v Chestnut, 51 NY2d 14), in which the use of handcuffs is not necessarily the equivalent of an arrest, I am extremely uncomfortable with the majority’s formulation, which suggests that a street encounter accompanied by the use of handcuffs may not be deemed an arrest in the future if the handcuffing is not "gratuitous” or "prolonged.” In my view, the majority’s unnecessary speculation about the use of handcuffs in other situations (see, majority opn, at 380) creates a very real risk that handcuffing will increasingly become an accepted practice in connection with the limited "stop and frisks” authorized by Terry v Ohio (392 US 1), since, by definition, these citizen-police encounters are all characterized by the presence of an articulable threat to the officers’ safety.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Titone concurs in a separate opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed.


text:
    Stephen M. Cowles, Appellant, v Thomas V. N. Brownell, Respondent.
    Argued January 12, 1989;
    decided April 6, 1989

      POINTS OF COUNSEL

      Richard A. Insogna for appellant.
    I. A motion for summary judgment may not be granted where it appears that there are issues of material fact to be resolved by trial. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Nidds v Procidano, 95 AD2d 912; Stillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Koblenz Jewelers v Insurance Co. of N. Am., 88 AD2d 688; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439.) II. There were material issues of fact presented in the record which require resolution at trial. III. Duress, such as to render the delivery of the release something other than the free and voluntary act of plaintiff, is an issue in this action. (Matter of Ryder, 279 App Div 1131; People v Blakley, 34 NY2d 311; Dziuma v Korvettes, 61 AD2d 677; People v Siragusa, 81 Misc 2d 368; Dunkin’ Donuts v Rovegno, 100 AD2d 532.) IV. Failure of consideration, sufficient to invalidate the release, is an issue in this action. (Ripley v International Rys., 8 NY2d 430; Schram v Cotton, 281 NY 499; Keller v American Chain Co., 255 NY 94; People v Castelo, 24 AD2d 827.) V. The practice of extracting releases or covenants not to sue in exchange for having criminal charges dropped is against public policy and the instrument by which it is sought to be accomplished is void. (Rumery v Town of Newton, 778 F2d 66; Newton v Rumery, 480 US 386; Matter of Doe v Coughlin, 71 NY2d 48; People v Alvarez, 70 NY2d 375; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57; People v P. J. Video, 68 NY2d 296; People v Class, 67 NY2d 431.) VI. The result achieved in the court below is founded upon an incorrect rationale, mistaken facts and inapplicable law and should be reversed. (People v Blakley, 34 NY2d 311; Newton v Rumery, 480 US 386.)

      Edward B. Flink and Kevin Laurilliard for respondent.
    I. Release-dismissal agreements are valid and enforceable when the parties voluntarily and knowingly enter into such agreements. (Newton v Rumery, 480 US 386; People v Blakley, 34 NY2d 311; Dziuma v Korvettes, 61 AD2d 677; People v Siragusa, 81 Misc 2d 368; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397.) II. Summary judgment was properly granted. (Willig v Rapaport, 81 AD2d 862; Capelin

      Assocs. v Globe Mfg. Corp., 34 NY2d 338; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255; Bernstein v Freudman, 102 AD2d 805; Martin Delicatessen v Schumacher, 52 NY2d 105; First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397; Finserv Computer Corp. v Bibliographic Retrieval Servs., 125 AD2d 765; Rotuba Extruders v Ceppos, 46 NY2d 223.) III. The New York State Constitution does not invalidate release-dismissal agreements. (People v P. J. Video, 68 NY2d 296; Rivers v Katz, 67 NY2d 485; Bellanca v New York State Liq. Auth., 54 NY2d 228; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511; People v Hobson, 39 NY2d 479; Newton v Rumery, 480 US 386; PruneYard Shopping Center v Robins, 447 US 74; Cooper v California, 386 US 58; People v Fuller, 57 NY2d 152.) IV. Public policy mandates that the release-dismissal agreement be enforced. (Matter of Abramovich v Board of Educ., 46 NY2d 450; Fourth Ocean Putnam Corp. v Suburbia Fed. Sav. & Loan Assn., 124 AD2d 550; Buys v County of Nassau, 133 AD2d 94; Newton v Rumery, 480 US 386.)
   OPINION OF THE COURT

Per Curiam.

The issue before us is whether a release from civil liability of a municipality and two police officers, given by plaintiff as a condition of the District Attorney’s consent to dismissal of criminal harassment charges, should be enforced. We conclude that the release should not be enforced, and therefore deny defendant’s motion to dismiss the complaint.

On July 20, 1984, plaintiff and a companion were stopped in a car by two City of Amsterdam police officers — one of them the defendant in the present case. Plaintiff alleges that defendant arrested him without cause and beat him without provocation. Plaintiff was charged with two counts of harassment, a violation (Penal Law § 240.25 [1]). Several months after his arraignment, while the charges were pending, plaintiff filed a notice of claim for injuries sustained in the course of the incident.

Plaintiff’s lawyer and the Assistant District Attorney assigned to the case discussed the possibility of a negotiated disposition of the charges but plaintiff, maintaining that the charges were baseless, refused to accept the offer of an adjournment in contemplation of dismissal. Then, on December 19, 1984, shortly before trial, the prosecutor in open court offered to dismiss the charges provided plaintiff agreed to release the City and the two arresting officers from all civil claims arising from the incident. After discussing the offer with his attorney plaintiff accepted it, stating that he did so reluctantly, as this was the only way the matter could be disposed of without trial. The prosecutor gave no reason for imposing the condition.

After executing the release, plaintiff commenced the present tort action against defendant for malicious prosecution, false arrest, assault and battery. Defendant moved to dismiss the complaint on the ground that plaintiff had previously released all claims against him. In opposition, plaintiff contended that the Assistant District Attorney was aware that defendant had been involved in many similar assaultive incidents leading to civil suits, that the District Attorney’s office made a practice of demanding releases in those cases, that the prosecutor had opined that there was no merit to the charges against plaintiff but had insisted on obtaining a release, and that plaintiff had agreed to that condition because the expense and risk of trial were unacceptable but had been advised by his lawyer that the agreement would prove unenforceable. Supreme Court summarily dismissed the complaint, but the Appellate Division reversed and remitted for further proceedings, concluding that summary judgment had been improperly granted (127 AD2d 325).

At the hearing that followed, plaintiff’s attorney testified that from the beginning, the prosecutor had conveyed to him the view that the criminal charges were unfounded, and that the City had repeatedly been sued over defendant officer’s conduct. The prosecutor, by contrast, testified that he had believed the criminal case against plaintiff to be a good one, based on his conversations with the three police officer eyewitnesses and their reports. The reason proffered by the prosecutor for his ultimate decision was that "constantly being faced with the specter of a [civil] lawsuit, rather than proceed any further, the People decided that the most expedient solution to this case, and one that would be satisfactory to both parties, would be a dismissal, our consideration in return for a release from Mr. Cowles, his consideration.” The prosecutor also testified that an affidavit he had submitted in connection with defendant’s motion to dismiss had been prepared for him by defendant’s attorney. Supreme Court again dismissed the complaint, finding that plaintiff had voluntarily entered into the release-dismissal agreement. The Appellate Division affirmed, concluding that plaintiff was "fully apprised of the rights he was waiving and the benefit he was receiving in exchange therefor.” (138 AD2d 877.) We now reverse and deny the motion to dismiss.

The prosecutor’s decision to condition dismissal of the criminal charges against plaintiff upon relinquishment of his right to seek civil damages for defendant’s alleged misconduct was unrelated to the merits of the People’s case. Consequently, there remain unresolved factual allegations not only regarding defendant’s conduct, but also regarding the District Attorney’s office, which stands accused of routinely demanding such waivers in order to protect a police officer whose misdeeds it knows. The record in this case demonstrates that the practice of requiring the release of civil claims in exchange for dismissal of charges simply to insulate a municipality or its employees from liability can engender at least an appearance of impropriety or conflict of interest. The integrity of the criminal justice system mandates that an agreement made in the circumstances presented not be enforced by the courts.

Although the Appellate Division noted the danger of coercion presented by the choice offered plaintiff, it found that plaintiff had voluntarily agreed to execute the release. That finding, having support in the record, is not reviewable by us. We cannot agree with the Appellate Division, however, that voluntariness is the central consideration in determining whether to give effect to the arrangement. Nor do we agree that the release-dismissal agreement entered into here is fundamentally the same as a plea bargain (see, 127 AD2d, at 328; but see, id. [Kane, J., concurring]). In plea bargains, there is an admission of wrongdoing by the defendant and imposition of an agreed punishment; in return for forgoing conviction on the highest charges, the prosecution and defense are spared the burden and risk of trial. The process thus may be advantageous to both sides and to the public as well, not only because of economy, but also because a wrongdoer is punished with speed and certainty.

The same cannot be said of the agreement in this case. Insofar as the integrity of the criminal justice system was concerned — the paramount interest here — on this record there was no benefit, only a loss. Assuming plaintiff to have been guilty of the criminal charges leveled against him (as the prosecutor maintains) the People’s interest in seeing a wrongdoer punished has not been vindicated. Assuming him to have been innocent (as he maintains), or the case against him to have been unprovable, the prosecutor was under an ethical obligation to drop the charges without exacting any price for doing so. In either case, as in a case where the prosecutor simply determines that charges are not worth pursuing, such an agreement leaves unanswered questions about defendant’s conduct in making the arrest and about the motives of the District Attorney’s office. There is no public interest to be advanced by enforcing the agreement here. Rather, the agreement may be viewed as undermining the legitimate interests of the criminal justice system solely to protect against the possibility of civil liability; it surely does not foster public confidence that the justice system operates evenhandedly.

Insulation from civil liability is not the duty of the prosecutor. The prosecutor’s obligation is to represent the People and to that end, to exercise independent judgment in deciding to prosecute or refrain from prosecution. This obligation cannot be fulfilled when the prosecutor undertakes also to represent a police officer for reasons divorced from any criminal justice concern. To enforce a release-dismissal agreement under these circumstances is simply to encourage violation of the prosecutor’s obligation.

In reaching this conclusion, we are aware that a plurality of the United States Supreme Court recently upheld a release-dismissal agreement similar to the one at issue (see, Newton v Rumery, 480 US 386). To the extent that the decision was based on the fact that in Rumery the prosecutor had what was deemed "an independent, legitimate reason * * * directly related to [the County Attorney’s] prosecutorial responsibilities” (id., at 398), we agree that such a reason — if genuine, compelling and legitimately related to the prosecutorial function — might overcome the strong policy considerations disfavoring enforcement of such agreements. We emphasize, however, that absent such reasons, release-dismissal agreements present an unacceptable risk of impairing the integrity of the criminal justice process.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant’s motion to dismiss the complaint denied.

Titone, J.

(concurring). I concur in the majority’s decision to reverse, but I cannot agree with the majority’s case-specific analysis, which purportedly is premised on this record alone and resolves only the enforceability of the agreement at issue here. Like the majority, I conclude that the release is invalid and that the affirmed findings of "voluntariness” by the courts below are not dispositive. I would hold, however, that, as a general proposition, these agreements, in which criminal charges are dismissed in exchange for the defendant’s execution of a release from civil liability, offend public policy and will not be enforced. Accordingly, I write separately to explain my reasons for reversal.

Release/dismissal agreements discharging public officials and government agencies from civil liability as a quid pro quo for the dismissal of pending criminal charges against the releasor have been the subject of considerable debate in recent years (see generally, Fielkow, 42 USC § 1983 — Buying Justice: The Role of Release-Dismissal Agreements in the Criminal Justice System, 78 J of Grim L & Criminology 1119). Although the lower courts of this State have focused principally upon the potentially coercive aspects of these agreements (see, Dziuma v Korvettes, 61 AD2d 677; see also, Matter of City of Cohoes v Spizowski, 72 AD2d 847, 848 [Greenblott, J., concurring]; People v Siragusa, 81 Misc 2d 368), courts of other jurisdictions have looked beyond the private concerns of the litigants and considered their public policy implications (see, Boyd v Adams, 513 F2d 83, 88; MacDonald v Musick, 425 F2d 373, cert denied 400 US 852; Dixon v District of Columbia, 394 F2d 966, 969; Gray v City of Galesburg, 71 Mich App 161, 247 NW2d 338). The leading exposition on the subject to date is Newton v Rumery (480 US 386), in which a closely divided Supreme Court declined to adopt a per se rule of invalidity and upheld the particular release/dismissal agreement before it on the ground that it was voluntary and supported by what the majority deemed "an independent, legitimate reason * * * directly related to [the County Attorney’s] prosecutorial responsibilities” (id., at 398). Significantly, despite the deep divisions within the Rumery court, all of the Justices agreed that, regardless of their voluntary or involuntary character, release/dismissal agreements carry a serious potential for public mischief (id., at 394-395 [plurality opn per Powell, J.]; id., at 400-401 [O’Connor, J., concurring]; id., at 410-415 [Stevens, J., dissenting]).

First, as noted by the United States Court of Appeals and acknowledged by the Supreme Court majority in Rumery, such agreements " 'tempt prosecutors to trump up charges in reaction to a defendant’s [civil] claims, suppress evidence of police misconduct, and leave unremedied deprivations of constitutional rights’ ” (480 US, at 394, supra, quoting 778 F2d 66, 69). Second, the availability of such agreements creates a troublesome conflict of interest for prosecutors, who are called upon to balance the private concerns of witnesses and public servants against the legitimate concerns of their primary client, the People of the State of New York, in the enforcement of the criminal laws (see, 480 US, at 412-414 [Stevens, J., dissenting]). Third, they give rise to a serious risk that the societal interest in the prosecution of meritorious criminal charges will be compromised in an effort to protect local law enforcement personnel from the embarrassment and expense that attends civil litigation (see, id., at 400 [O’Connor, J., concurring]). Finally, by providing potential private litigants with a powerful incentive to forgo arguably meritorious claims, these release/dismissal arrangements interfere with an important mechanism for vindicating individual rights and holding public servants accountable, much "to the detriment * * * of society as a whole” (id.).

As is evident even from this very limited list of concerns, the reasons for objecting to release/dismissal agreements extend far beyond their potential for coercion. In addition to their potential for impairing the integrity of criminal justice process, such agreements encourage prosecutors to violate ethical rules which forbid attorneys from pressing criminal charges "solely to obtain an advantage in a civil matter” (Code of Professional Responsibility DR 7-105) and caution against using the criminal process to force settlement of private claims (Code of Professional Responsibility EC 7-21). Even more seriously, by permitting prosecutors to utilize their considerable discretion over the decision to prosecute in the service of goals unrelated to any legitimate law enforcement concerns, they breed cynicism and deprive the public of the independent, disinterested prosecutorial judgment to which it is entitled.

Weighed against this very real potential for harm, the reasons that are most often cited in support of permitting release/dismissal agreements are insubstantial. The benefits of insulating municipalities and law enforcement officers from the burdens of defending against civil claims, however frivolous or lacking in legal merit, are simply not, without more, proper factors for prosecutors to consider in exercising their discretion to prosecute or withhold prosecution of particular crimes. Moreover, while reducing court congestion and promoting judicial economy are generally worthy goals, they cannot justify judicial approval of a quid pro quo arrangement that undermines the fundamental integrity of the criminal justice system. As this court has recently observed, "[t]he first order of business of the criminal courts * * * is justice, not economy or convenience” (People v Ricardo B., 73 NY2d 228, 235). Similarly, the "first order of business” of the State’s prosecutors, who have been accorded considerable discretion within their own sphere of responsibility (see, Matter of Schumer v Holtzman, 60 NY2d 46; People v Zimmer, 51 NY2d 390, 394; People v Di Falco, 44 NY2d 482, 486-487; People v Mackell, 47 AD2d 209, affd 40 NY2d 59), is not to contribute to the improvement of the court system as a whole, but rather to ensure that, within the practical limits of the State’s resources, the people are zealously and ethically represented in the criminal courts.

To be sure, there are many instances in which a legitimate prosecutorial purpose might exist for dismissing seemingly meritorious criminal charges.* * For example, dismissal might well be deemed an appropriate course where the District Attorney’s resources are overtaxed, the crime is not a serious one, the defendant does not pose a serious ongoing threat to society or a witness wishes to avoid public exposure. In such cases, however, the prosecutor already has an independent motive for seeking dismissal, and the decision to exact a civil release in addition would therefore constitute prosecutorial overreaching. On the other hand, where these or similar considerations are not present, an agreement by the prosecutor to dismiss meritorious charges in exchange for a civil release would be difficult to justify.

For all of these reasons, I conclude that release/dismissal agreements are violative of public policy and should not be given judicial recognition. A promise is ordinarily deemed unenforceable when the interests favoring enforcement are "clearly outweighed in the circumstances” by strong public policies militating against enforcement (see, Restatement [Second] of Contracts § 178 [1]). The substantial potential for corruption of the system that is inherent in these agreements, coupled with the potential for misuse of prosecutorial authority and the dubious societal benefits they confer, counsels against the adoption of any rule that would sanction, or even merely encourage, their use.

It is on this point that the majority and I part company. Although the majority Per Curiam opinion contains much dictum suggesting its disapproval of these release/dismissal agreements, the majority has pointedly stopped short of holding that release agreements obtained in exchange for dismissal of criminal charges should generally not be enforced. In fact, one must search the majority Per Curiam with great care in order to find a legal principle that has some application beyond "the circumstances presented” (majority opn, at 386). Apparently, and without acknowledging as much, the majority has opted for an approach similar to that adopted by both the plurality and the concurrer in Newton v Rumery (480 US, at 392 [plurality opn per Powell, J.], 399 [O’Connor, J., concurring], supra), which involves analyzing the validity of release/dismissal agreements on a case-by-case basis. I have several serious objections to this approach — both in principle and as the majority has applied it here.

First, although it has invoked "the record” and indicated that its finding of unenforceability is limited to the circumstances presented in this particular case, the majority has made factual assumptions that are not actually based on what was established below. The dispositive fact for the majority appears to be that the District Attorney entered into the challenged agreement "solely to protect against the possibility of civil liability” (majority opn, at 387). In fact, although plaintiff has made that claim at various points in this litigation, defendant has disputed it. Moreover, the Assistant District Attorney who actually obtained the release explained at the evidentiary hearing held on defendant’s motion that he did so because it was his "understanding from dealing with [plaintiffs trial attorney] that he [the attorney] would always blame the police” and because he (the Assistant District Attorney) simply "got tired of fighting with [plaintiffs trial attorney].” Thus, it is far from established that the people’s primary goal in trading a dismissal for a civil release was, in reality, to insulate the police or any other government officer from exposure to civil liability.

The majority’s effort to wrestle the disputed facts presented here into manageable form points up some of the more fundamental difficulties with its insistence on a case-specific approach to determining the validity of these release/dismissal agreements. Obviously, any inquiry into the motives of parties to a prior agreement is problematic, since it invites post hoc rationalizations and, in some instances, testimony that is tailored to the contours of the case law. Further, the case-by-case approach is unsatisfactory because it would require the courts to second-guess the soundness, legitimacy and probity of the prosecutor’s expressed rationale, bringing the courts into direct conflict with the well-established rule that, as elected law enforcement officials, prosecutors have virtually unreviewable discretion to act within the proper sphere of their authority (see, Matter of Schumer v Holtzman, supra; People v Zimmer, supra; People v Di Falco, supra; People v Mackell, supra).

Finally, the majority’s case-specific approach, which provides little guidance for District Attorneys, future criminal defendants and their attorneys, is unsound from the standpoint of judicial policy, because it will lead to uncertainty as to the enforceability of these agreements in other cases. Such uncertainty is a particularly undesirable result in this context, since it creates the risk that a prosecutor entering into a release/dismissal agreement will discharge his side of the bargain by dismissing the criminal charges, only to discover after litigation in a subsequent civil proceeding — to which he is not a party — that the defendant’s side of the bargain, the release, is unenforceable. Manifestly, such a degree of unpredictability would not be tolerated in the law governing commercial contracts. I find it difficult to understand why the majority is willing to tolerate it in this specialized area of release/ dismissal agreements, in which the public interest is so directly implicated.

I do not suggest that there could never be a set of facts in which both parties’ reasons for entering into a particular release/dismissal agreement are so clear and compelling that they would outweigh the strong public policies that generally preclude enforcement of such agreements. However, in this case of first impression in our court, there is no need to speculate about the type of circumstances that might warrant creating an exception to a general rule against enforcement. The common-law process is sufficiently flexible to accommodate and account for special situations as they arise. Accordingly, unlike my colleagues in the majority, I have no reluctance to reach the conclusion that, as a general matter, these agreements violate public policy, while reserving the possibility that some novel fact pattern that is not now readily apparent might subsequently suggest itself as an exception.

In this case, it is sufficient to note that there are no special circumstances and no compelling reasons to give judicial recognition to the release/dismissal agreement that is proffered as a defense to plaintiff’s claims. Accordingly, I agree that the release is invalid and that, consequently, the motion to dismiss the complaint should be denied.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Titone concurs in result in a separate opinion.

Order reversed, etc.

      . This is not to suggest that the coercive aspects of these agreements are insignificant. To the contrary, in most instances, the circumstances surrounding these agreements are inherently coercive, since they are made at a time when the civil claimant is facing the prospect of a criminal trial, with all of its accompanying risk, expense and embarrassment. Under such circumstances, even an intelligent and informed defendant, whether innocent or guilty of the charges, would be hard-pressed to resist an offer permitting him to walk away without further consequence in exchange for relinquishing a civil claim which might ultimately prove unsuccessful anyway.

      . It would be naive not to recognize that law enforcement personnel occasionally file preemptive disorderly conduct, obstructing governmental administration and harassment charges in order to obtain bargaining leverage when they anticipate that an unpleasant encounter between police and a private citizen will lead to a civil lawsuit. As was noted in Boyd v Adams (513 F2d 83, 89), " 'the danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest.’ ”

      . I note that the majority’s Per Curiam opinion does not seem to take this possibility into account.

      . To be distinguished are ordinary plea bargains in which the defendant relinquishes his right to a trial on pending criminal charges in exchange for more lenient penal treatment. In plea bargaining situations, the defendant admits his guilt and the societal interest in punishing wrongdoing is, at least in some measure, fulfilled (see, Newton v Rumery, 480 US 386, 393, n 3 [plurality opn]). In contrast, when criminal charges are disposed of through release/dismissal agreements, the only interest that is satisfied is that of those who wish to see the civil litigation finally resolved. Further, as Justice Stevens noted in his dissenting opinion in Newton v Rumery (supra, at 411), unlike plea bargains in which some penal sanction is imposed, these agreements "exact[] a price unrelated to the character of the defendant’s own conduct.” Thus, conventional plea bargains represent compromises that are consistent with the purposes of the governing penal statutes, while release/ dismissal agreements do not.

      . At an earlier point in its Per Curiam opinion, the majority notes that "there remain unresolved factual allegations” and "unanswered questions” regarding defendant’s conduct, the practices of the District Attorney’s office in general and the motives of that office in entering into this particular agreement (majority opn, at 386, 387). These acknowledgements make it even more difficult to understand the basis for the majority’s assumption that the purpose of the challenged agreement was to protect the police.