author: Per Curiam. Chief Judge Wachtler

text:
    The People of the State of New York, Appellant, v Stephen Sullivan, Respondent.
    Argued October 6, 1986;
    decided November 25, 1986

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Steven R. Kartagener of counsel), for appellant.
    The courts below committed clear error in dismissing this reckless manslaughter indictment for legal insufficiency because when the evidence before the Grand Jury is viewed in the light most favorable to the prosecution, there exists a legally sufficient case presenting substantial factual questions that must be decided by a petit jury. (People v Howell, 3 NY2d 672; People v Pelchat, 62 NY2d 97; People v Warner-Lambert Co., 51 NY2d 295; People v Dorsey, 102 AD2d 123; People v Dunleavy, 41 AD2d 717, 33 NY2d 573; People v Di Napoli, 66 NY2d 812; People v Donohue, 309 NY 6; People v Deitsch, 97 AD2d 327; People v Haney, 30 NY2d 328; People v Dossinger, 106 AD2d 661.)

      Bruce A. Smirti for respondent.
    I. The courts below were correct in dismissing the indictment for reckless manslaughter, inasmuch as respondent was acting within the scope of his employment as a New York City Police Officer, in conformity with his training as a member of the Emergency Services Unit, and within the guidelines promulgated by the New York City Police Department regulating the use of a shotgun; thus his conduct was not a " 'gross deviation’ from the standard of conduct a reasonable person would observe in the situation”. (People v Leonardo, 89 AD2d 214, 60 NY2d 683; People v Pelchat, 62 NY2d 97; People v Di Napoli, 66 NY2d 812; People v Warner-Lambert Co., 51 NY2d 295; People v Howell, 3 NY2d 672; People v Deitsch, 97 AD2d 327; People v Tate, 87 Misc 2d 6.) II. The District Attorney improperly submitted the charge of reckless manslaughter to the Grand Jury. (People v Hartley, 103 AD2d 935; People v Wall, 34 AD2d 215, 29 NY2d 863; People v Green, 56 NY2d 427; People v Glover, 57 NY2d 61; People v Murch, 263 NY 285; People v Colon, 77 AD2d 370; People v John P., 122 Misc 2d 77; People v Stanfield, 36 NY2d 467; People v Strong, 37 NY2d 568; People v Smith, 87 AD2d 640.)
   OPINION OF THE COURT

Per Curiam.

When a Grand Jury is presented with conflicting versions of a shooting death, it may choose to indict the defendant for second degree manslaughter rather than intentional murder, provided that either charge is supported by sufficient evidence. Here, the evidence was sufficient to support either, and the Grand Jury opted for second degree manslaughter.

The evidence before the Grand Jury showed that Mrs. Eleanor Bumpurs was a 66-year-old, obese, emotionally disturbed woman who had fallen behind in her rent payments. The Housing Authority made numerous attempts to help her with her rent, but she refused aid. Her daughters were contacted, but they ignored the problem and refused to help. Furthermore, a psychiatric examination, conducted while Mrs. Bumpurs held the interviewing doctor at knifepoint, led to the conclusion that Mrs. Bumpurs needed hospitalization. Ultimately, the Housing Authority obtained a judgment of eviction against her.

Housing Authority officials judged that physically dispossessing Mrs. Bumpurs would be a dangerous proposition. In the past, those visitors to whom Mrs. Bumpurs responded at all, were greeted with a knife. She was also rumored to have thrown lye at an "intruder.” On the day the Housing Authority arrived to remove Mrs. Bumpurs from the premises, she threatened to kill or hurt anyone who dared to enter. Housing Authority police, informed of Mrs. Bumpurs’ violent history, radioed for backup assistance from New York City Police. The two city police officers who responded observed Mrs. Bumpurs’ abusive reactions when Housing Authority officers attempted to gain entrance to her apartment. They decided to summon aid from an elite specialized team of city police called the Emergency Service Unit (ESU). The members of the ESU are highly trained crisis intervention officers often called to aid in dealing with emotionally disturbed persons (EDP’s). Defendant is a decorated member of the ESU with 19 years’ experience, who responded to such a call involving Mrs. Bumpurs.

Several people in the large group that had gathered outside her apartment by this time, including ESU members, attempted to soothe Mrs. Bumpurs and convince her to come out of her apartment peacefully, to no effect. Police next removed the lock on the apartment in order to ease entrance and to observe Mrs. Bumpurs. They were able to see through the broken lock that she held a large carving knife and that the apartment was filled with a smoky odiferous substance described as smelling like insecticide or boiling lye. One of the police held the door closed to prevent Mrs. Bumpurs from charging into the crowd with her knife.

The ESU members present developed a plan based on department regulations. Two officers would enter the apartment and attempt to restrain her, while a third would cover the others. A fourth officer would guard the doorway. They were considering removing the door, when the police noticed that Mrs. Bumpurs had left the doorway area with her knife. Taking advantage of Mrs. Bumpurs’ absence from the entranceway, ESU Officers Elter, Tedeschi and Adams, equipped with gas masks, burst into the apartment, while defendant, without a gas mask that would distort his view, covered them at the door with a shotgun. Officers Elter, Tedeschi and Adams held plastic protective shields and Elter had only an EDP pole, designed to encircle the disturbed person’s waist and pin her against the wall, for offensive use.

The plan went awry when Mrs. Bumpurs ran toward Elter, making hacking motions at him with her knife. The EDP pole apparently had no effect other than knocking Elter off balance. Defendant observed Elter on the floor with only a plastic shield to protect himself and Mrs. Bumpurs running toward him. At about the same time, Adams, who was attempting to disarm her with his shield, also faltered and lost balance, placing himself in an equally vulnerable position with only a plastic shield.

It was at this moment that defendant stepped forward and shouted to Mrs. Bumpurs to drop the knife. When she ignored the commands he decided to shoot at Mrs. Bumpurs’ body mass to protect his fellow officers. That this shot was justified is undisputed. The department regulations instruct an officer to shoot an EDP if absolutely necessary and to shoot toward the body mass. The question to be resolved in this case involves defendant’s second shot which led to Mrs. Bumpurs’ death.

Defendant testified before the Grand Jury that the first shot did not seem to deter Mrs. Bumpurs and that she continued to approach the downed officers with her knife. Thus, he testified, a second later, he fired the second shot. While the testimony of most of the observers corroborated this account, one witness estimated that the second shot was fired as many as five seconds later.

Although both shots were aimed at Mrs. Bumpurs’ body mass, one of the shots hit her hand, removing her thumb and index finger. The other shot hit her chest. There was some medical testimony that the shot to the hand was first. Medical testimony further indicated that it would have been impossible to wield the knife after the hand wound. Thus, there was evidence that Mrs. Bumpurs was no longer threatening the officers with a knife after the first shot and that defendant had as many as five seconds to observe this changed circumstance and stop shooting.

The Grand Jury, having been instructed on the justification defense and the elements of higher homicide offenses, nonetheless indicted defendant for the crime of manslaughter in the second degree. Supreme Court dismissed the indictment on defendant’s motion, reasoning that the evidence before the Grand Jury established that defendant followed departmental procedure and that there was, therefore, no basis to find that defendant’s conduct constituted a gross deviation from the standard of conduct that a reasonable person would observe in the same situation. The Appellate Division affirmed, one Justice dissenting.

The conclusion of the courts below is erroneous and must be reversed. When the evidence is taken in the light most favorable to the People and all conflicting and exculpatory evidence is ignored (see, People v Warner-Lambert Co., 51 NY2d 295, 299), the facts could support a finding of an unnecessary shooting, after a five-second observation period, of an unarmed woman. Such conduct would support a finding of a "gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]). Thus, that evidence, " 'if unexplained and uncontradicted would warrant conviction by a trial jury’ ” (People v Di Napoli, 66 NY2d 812, 815; People v Pelchat, 62 NY2d 97, 105).

Defendant presents the question whether, on these facts, he could properly be indicted for the crime of reckless manslaughter arguing that the evidence would support a petit jury finding that "defendant was guilty of an intentional shooting or no other” (People v Wall, 29 NY2d 863, 864). We cannot agree that in the situation presented, defendant could not have been found to have acted recklessly in deciding to shoot the second time in disregard of the circumstances which may have rendered a second shot unnecessary and contrary to departmental instructions. The Grand Jury could have found the second shot to have been unnecessary and that defendant was or should have been aware of that circumstance because (a) the first shot removed the threat of the weapon, (b) five seconds passed before the second shot, and (c) defendant’s vision was unobscured by a mask.

Unlike a petit jury’s obligation to convict upon being convinced beyond a reasonable doubt, the Grand Jury’s authority to indict upon a showing of sufficient evidence is permissive only (GPL 190.65; 1 CJI [NY] 1.03, p 10; LaFave & Israel, Criminal Procedure, at 620, n 3; Note, Grand Jury as an Investigatory Body, 74 Harv L Rev 590). CPL 190.65 (1) provides that "a grand jury may indict a person for an offense when * * * the evidence before it is legally sufficient to establish that such person committed such offense” (emphasis added). Consistent with centuries of history (see, People v Valles, 62 NY2d 36, 42-44 [Meyer, J., dissenting]; Kuh, Grand Jury "PresentmentFoul Blow or Fair Play?, 55 Colum L Rev 1103, 1108), CPL 190.65 allows the Grand Jury to decide that an excessively technical application of the law upon a particular defendant would work an unfairness that would be contrary to the conscience of the community (LaFave & Israel, Criminal Procedure, at 620). This power to extend lenity does not present it solely with the extreme choices of complete absolution or indictment on the top count supported by legally sufficient evidence. The Grand Jury, unlike the petit jury (People v Scarborough, 49 NY2d 364, 371; People v Discala, 45 NY2d 38, 43), is permitted to mitigate the harshness of the law by returning a true bill for only a lesser offense (LaFave & Israel, Criminal Procedure, at 620). In contrast, in the context of the petit jury, the "mercy-dispensing power is a thing apart from the true duty imposed upon a jury * * * it is, rather, an inevitable consequence of the jury system” (People v Mussenden, 308 NY 558, 562; cf. People v Tucker, 55 NY2d 1, 7-8).

It is true that, taken in the light most favorable to the People, the evidence may have been technically sufficient to support indictment of an intentional crime. But this fact would not preclude the Grand Jury from indicting defendant on the lesser included offenses of manslaughter in the second degree (Penal Law § 125.15) or criminally negligent homicide (Penal Law § 125.10; see, People v Green, 56 NY2d 427). Certainly, the Grand Jury was not obliged to accept defendant’s testimony concerning intent as a concession that he acted with the necessary culpable mental state to support a charge of murder (Penal Law § 15.05 [1]) and not the lesser included culpable mental state to support manslaughter in the second degree (Penal Law § 15.05 [3]) or the lesser included culpable mental state to support criminally negligent homicide (Penal Law § 15.05 [4]; see, People v Green, supra; People v Stanfield, 36 NY2d 467). In the context of the decision to charge lesser included offenses to the petit jury after trial, on the facts presented here — as opposed to the cases cited and hypothesized by the dissent (dissenting opn, p 509) — this defendant would be entitled to a charge of reckless manslaughter, since the evidence could support a finding that he acted, in reckless disregard of the circumstances which rendered his conduct unjustified (Penal Law § 35.05).

Either party should be given a requested charge-down when, first, "it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense [and, second,] there is a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser offense but not the greater” (People v Glover, 57 NY2d 61, 63; People v Green, 56 NY2d 427, 430, supra). It is settled that reckless manslaughter satisfies the first prong or impossibility test (People v Ford, 66 NY2d 428, 439; People v Green, supra, pp 433-434). The question remains whether, on these facts, there is a reasonable view of the evidence that would support a verdict of reckless manslaughter but not murder or manslaughter based upon an intentional shooting.

An indictment for murder in the second degree would depend on a Grand Jury finding of a specific design to effect death — not merely an intent to shoot (Penal Law § 125.25 [1]; People v Patterson, 39 NY2d 288, affd 432 US 197). This case presents a peculiar set of facts in which the Grand Jury may have chosen to reject the permissive inference that a defendant intends the natural consequences of his intentional acts (People v Getch, 50 NY2d 456, 465). On the contrary, it could have found that defendant was not at all intent upon killing Mrs. Bumpurs and that he was, in fact, not concerned with the likelihood that he might kill her in his mistaken belief that she still possessed a weapon, but rather he merely wanted to protect his fellow officers. The Grand Jury could have concluded that in the tension and confusion of the situation, defendant either consciously disregarded the danger to her or negligently failed to perceive it in favor of his concern with stopping her, regardless of the fact that he had five seconds to note that she no longer represented a lethal threat. Such findings could establish the elements of reckless manslaughter or criminally negligent homicide (Penal Law § 15.05 [3], [4]; §§ 125.10, 125.15; People v Licitra, 47 NY2d 554, 558, rearg denied 53 NY2d 938).

Accordingly, the order of the Appellate Division should be reversed and the indictment reinstated.

Chief Judge Wachtler

(dissenting). I vote to affirm the order of the Appellate Division dismissing the indictment. Although there are strong policy arguments which would suggest that a police officer should not be prosecuted for doing precisely what would be expected of him, I agree with the majority that the Grand Jury nevertheless would have had the right to indict this defendant upon legally sufficient evidence. However, because Grand Juries have been known to indict on less than legally sufficient evidence, our Criminal Procedure Law permits judicial review of their findings. In this case, meaningful judicial review requires dismissal.

On a challenge to the sufficiency of the evidence before the Grand Jury, the reviewing court must view the evidence presented in a light most favorable to the People (People v Warner-Lambert Co., 51 NY2d 295, 299, cert denied 450 US 1031). So viewed, such evidence is sufficient if, unexplained and uncontradicted, it would warrant conviction by a trial jury (People v Di Napoli, 66 NY2d 812, 815; People v Pelchat, 62 NY2d 97, 105). Here, the evidence presented to the Grand Jury would have supported an indictment for murder or manslaughter based on an intentional shooting (to which the defense of justification was interposed). However, the Grand Jury did not charge the defendant with those crimes. In my view, the indictment charging the defendant with a reckless shooting is a compromise with no support in the evidence.

I.

During the course of an eviction of an emotionally disturbed tenant, housing police had reason to call upon the Emergency Service Unit (ESU) of the New York City Police Department, an elite unit of volunteers specially selected and trained, whose duties include responding to all police situations involving emotionally disturbed persons (EDP’s). The two ESU officers who arrived were told that the tenant, Eleanor Bumpurs, was very large, usually armed with a knife, and could be cooking lye. The two officers attempted to persuade Mrs. Bumpurs to open her door, threatening to break her lock if she refused.

When Mrs. Bumpurs refused to cooperate, the ESU officers told her they were going to punch out the cylinder of one of the locks on her door (Housing Authority personnel had a passkey to the other), but would not try to enter her apartment. Upon doing so and peering into the apartment, the officers noticed a hazy cloud or mist in the living room and smelled a strong odor which they believed could be lye or some other caustic liquid. The officers saw Mrs. Bumpurs standing directly behind the door, armed with a long knife. Their request that she drop the knife and open the door produced no response.

The ESU officers left to get more equipment from their truck and to radio for assistance. They returned with bullet proof vests, a plastic shield, and an "EDP bar” made of iron pipe, about seven feet long, with a U-shaped piece of iron at the end, which is used to pin the emotionally disturbed person against a wall or floor. The two then returned to the fourth floor apartment and again tried to convince Mrs. Bumpurs to put down the knife and open the door while they waited for reinforcements. They attached a rope to the doorknob, unlocked the second lock with the Housing Authority passkey, and swung the door open about six inches two or three times to see if Mrs. Bumpurs would throw any lye.

An ESU sergeant, as well as four ESU officers, one of whom was the defendant, a 19-year veteran of the police department who had earned 18 commendations and had spent 14 years on the ESU, responded. One of the original ESU officers on the scene informed three of the new arrivals who had proceeded to the apartment that Mrs. Bumpurs was an EDP with a history of lye throwing and that she was armed with a knife. A new arrival at the scene, Officer Adams, told Mrs. Bumpurs through the door that he wanted to make sure nobody would be hurt. She replied, "if somebody comes in, we will see who gets hurt”. Adams saw through the cylinder hole the mist in the living room and detected a chemical smell. The defendant, Officer Sullivan, who was not looking through the cylinder hole at the time, also noticed a smell which he believed to be an insecticide.

When he arrived, the sergeant determined the ESU officers would have to enter the apartment to subdue Mrs. Bumpurs. As the officers were discussing how to effect their entry, they noticed that Mrs. Bumpurs had moved to a stool near the window at the rear of the living room, where she sat with the knife in her right hand. The sergeant decided that then was the time to move, because Mrs. Bumpurs was in clear view and in a location where the officers would have time to maneuver. All except the defendant put on gas masks or goggles, and it was determined that Officer Elter would enter first with the EDP bar, followed by Officers Adams and Tedeschi carrying plastic shields, and then the defendant, whom the sergeant had assigned to check and carry the shotgun which was always used on EDP calls and whose primary duty was to protect the three officers in front of him. The sergeant would stand behind the defendant, and the last officer would remain at the door in order to open it if the others had to make a quick exit.

While the officers present continued to implore Mrs. Bumpurs to drop her knife, Officer Elter moved across the living room with the EDP bar extended in front of him. Mrs. Bumpurs rose from her seat and approached him. As they came together, he placed the end of the EDP bar in her midsection, while she slashed and hacked at him and the bar with the knife. Officer Adams came to Elter’s left side and attempted to knock the knife out of Mrs. Bumpurs’s hand with his shield. At the same time, Elter lost his grip on the bar and Mrs. Bumpurs almost succeeded in knocking it onto the floor. Recovering, he again tried to pin her with the bar, but she pushed the bar down again and resumed stabbing at it with her knife. Officer Adams’s continuing efforts to disarm Mrs. Bumpurs with his shield were also unsuccessful. She suddenly turned on him and started stabbing at him over his shield, forcing him down on one knee with the shield over his head to protect himself. As Elter tried to displace Mrs. Bumpurs with the bar, she resumed her attack on him, causing him to lose his balance and fall forward as she extricated herself from behind the bar.

The defendant, who had been standing a few feet behind Officer Elter, stepped up to his right side and yelled several times at Mrs. Bumpurs to drop her knife. With the shotgun at his hip, he then fired two shots at her from a distance of approximately two feet. There was a considerable difference of opinion among the various witnesses before the Grand Jury on the interval between the two shots, the estimates ranging from less than a second to three to five seconds.

The officers present who could see what happened to Mrs. Bumpurs between the shots all testified that the first shot did not stop her or cause her to drop the knife, and that she continued her attack until hit in the chest by the second shot. The defendant testified before the Grand Jury that he fired the first shot because he was in fear for Officer Elter’s life. As he had been trained, he aimed at Mrs. Bumpurs’s "center of mass”, or the center of her chest. Although nothing obstructed his view of her, he believed his first shot missed, "because it had no effect whatsoever” on her. After pumping another shell into the chamber and seeing that Mrs. Bumpurs still held the knife with which she continued slashing, he squeezed the trigger, firing a second shot into her chest. He estimated that the second shot followed the first by only one second, and did not see where it hit, though he did see Mrs. Bumpurs stop and then step into the kitchen, where she fell.

The knife blade and its shattered handle were found in the living room. Emergency Medical Service Technicians found Mrs. Bumpurs still alive on the kitchen floor, her right hand missing several fingers and bleeding profusely, and her upper right chest also bleeding. Despite her resistance and the difficulties caused by her size, first aid was administered and Mrs. Bumpurs was removed to the hospital, but efforts there to save her life failed.

The doctor who treated Mrs. Bumpurs at the hospital and the pathologist who performed the autopsy gave expert testimony before the Grand Jury. They both agreed that she had been hit by two shotgun blasts, and both agreed that the hand wound she suffered was so severe that it would have been impossible for her to hold onto the knife after being shot in the hand, though she could have still moved her arm and remained standing. The chest wound was the more severe, however, and it would have been difficult if not impossible for Mrs. Bumpurs to have remained standing after having been shot in the chest. Therefore, the treating physician concluded that the hand injury was caused by the first shot and the chest wound by the second.

II.

The decisive issue in this case is: If the evidence unequivocally establishes an intentional shooting and "that a complete defense such as justification may be present, [so that] the prosecutor must charge the grand jurors on that defense” (People v Goetz, 68 NY2d 96, 115), may the prosecutor "hedge” on the intentional charges by also instructing the Grand Jury on a lesser offense based on reckless shooting, in the hope that the Grand Jury will reach a compromise verdict?

The People, in their brief to our court, concede that when the defendant and the other members of the ESU entered Mrs. Bumpurs’s apartment for the purpose of subduing, as humanely as possible, the knife-wielding, mentally unbalanced woman, they were met with a ferocious, life-threatening response. The People further concede the situation degenerated into one warranting strong police action to preserve the safety of two officers who had become vulnerable targets of her violent slashing. Indeed, the People state there is "no question at all as to whether defendant acted properly and with justification when he loosed the first shotgun blast at Mrs. Bumpurs.”

What the People do claim is that the Grand Jury could have found the second shot to have been unnecessary and that the defendant was or should have been aware of that fact because (a) the first shot disarmed the victim, (b) almost five seconds passed between the two shots and (c) the defendant’s vision, unlike that of the others present, was not obscured by goggles or mask.

Penal Law § 125.15 (1), for violation of which the Grand Jury indicted the defendant, provides:

"A person is guilty of manslaughter in the second degree when:
"1. He recklessly causes the death of another person.”

In turn, Penal Law § 15.05 (3) provides: "3. 'Recklessly.’ A person acts recklessly with respect to a result or circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation”.

Two higher charges, murder in the second degree and manslaughter in the first degree, were also submitted to the Grand Jury. Justification was charged as to all three offenses.

The Grand Jury declined to indict the defendant with the two higher crimes. The murder charge was based on Penal Law § 125.25 (1), which provides in pertinent part that a person is guilty of murder in the second degree when "[w]ith intent to cause the death of another person, he causes the death of such person”. The manslaughter charge was based on Penal Law § 125.20 (1), which provides in pertinent part that a person is guilty of manslaughter in the first degree when "[w]ith intent to cause serious physical injury to another person, he causes the death of such person”. The evidence before the Grand Jury, including the defendant’s uncontradicted testimony, corroborated by all the attendant circumstances, that he intentionally fired his shotgun twice at his victim’s chest, would certainly have supported an indictment for either of these counts if the defendant’s actions were not justified.

In my view, however, the same conclusive evidence of intentional shooting negates any possibility that the defendant’s shooting of Mrs. Bumpurs was reckless. It may be useful to ask whether, if this defendant were indicted on charges of manslaughter in the first degree or murder in the second degree, both based on an intentional shooting, would he, on the evidence presented to the Grand Jury in this case, be entitled to a charge of manslaughter in the second degree as a lesser included offense? To be entitled to such charge, the defendant must show "that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense. That established, the defendant must then show that there is a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser offense but not the greater” (People v Glover, 57 NY2d 61, 63). Although it has been held that in the abstract it is impossible to commit murder in the second degree or manslaughter in the first degree without also committing reckless manslaughter (see, People v Green, 56 NY2d 427, 433, rearg denied 57 NY2d 775, and cases cited), it seems clear that in this case the second prong of the Green-Glover test would not have been met — that is, there is no reasonable view of the evidence that would support a finding that the defendant committed reckless manslaughter. What the evidence before the Grand Jury did show, as this court has noted in an analogous jury trial situation, is "that defendant was guilty of an intentional shooting or no other” (People v Wall, 29 NY2d 863, 864).

Indeed, the cases have consistently approved refusals to charge reckless manslaughter as a lesser included offense under similar circumstances. In People v Hartley (103 AD2d 935, 936, affd 65 NY2d 703), for example, the court held "that the wounds inflicted upon the victim were numerous, that they were inflicted by an axe, and that at least one of the blows to the head was inflicted after the victim lost consciousness, support a conclusion that defendant’s acts were neither reckless (Penal Law, § 125.15) nor negligent (Penal Law, § 125.10), but, rather, intentional in nature.” Similarly, it was held that no reasonable view of the evidence would support the submission of manslaughter in the second degree where the defendant’s own testimony, like that of the defendant at bar, "made plain that he intentionally shot at” his victim (People v Smith, 87 AD2d 640, 642; see also, People v Russo, 41 NY2d 1091, 1092, rearg denied 42 NY2d 974).

Each of the cases holding a defendant to have been entitled to a lesser included charge is easily distinguishable as having involved a hand-to-hand struggle between the defendant and his victim during which, the defendant claimed, he only attempted to repel the victim’s attack but somehow during the struggle recklessly inflicted fatal injury (see, e.g., People v Tai, 39 NY2d 894; People v Murray, 40 NY2d 327, rearg denied 40 NY2d 1080, cert denied 430 US 948).

The majority’s holding in this case will allow a District Attorney, in a case where the defendant admits an intentional act (which admission is fully and unequivocally corroborated by the other evidence) and claims justification, to nullify the Grand Jury’s finding that the act was indeed justified as claimed by giving it the option of a compromise verdict. The giving of such a choice in this case was not warranted by any reasonable view of the evidence; the indictment based upon it was therefore properly dismissed. In addition, the majority has vitiated the second prong of the Green test in that every defendant charged with murder in the second degree or manslaughter in the first degree will now be entitled at trial, upon request, to an instruction on reckless manslaughter as a lesser included offense, regardless of whether there is any support in the evidence for the lesser charge. In short, because the majority has broken with precedent for no justifiable policy reason, I dissent and vote to affirm the order of the Appellate Division.

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion; Chief Judge Wachtler dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . Penal Law § 15.05 (3) defines "recklessly” as follows: "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation”.

      . Even if there were question as to whether defendant actually perceived the risk and consciously disregarded it, this evidence before the Grand Jury could support a finding of criminally negligent homicide (Penal Law § 125.10), a lesser included offense of manslaughter in the second degree (People v Stanfield, 36 NY2d 467) — a further basis for reinstating the indictment (see, e.g., People v Valles, 62 NY2d 36; People v Montanez, 41 NY2d 53, 59).

      . The Grand Jury’s failure to return a true bill for the greater offenses of murder in the second degree and manslaughter in the first degree in no way supports the conclusion that it found the shooting justified (dissenting opn, p 510, n 3). On the contrary, since the Grand Jury was instructed that justification applied to all three charges, the court should assume that the Grand Jury followed instructions and, instead, did not return an indictment on the greater charges because proof of one or more of their elements was lacking.

      . The majority holds that these facts, viewed in a light most favorable to the People, could have led the Grand Jury to conclude that the defendant merely wanted to prevent Mrs. Bumpurs’s menacing movements at his fellow officers and that, "in the tension and confusion”, defendant, aware of the grave risk created by firing a shotgun at Mrs. Bumpurs, "disregarded the danger to her * * * in favor of his concern with stopping her, regardless of the fact that he had five seconds to note that she no longer represented a lethal threat.” (Majority opn, p 502.) The conclusion posited is that such findings would establish the elements enumerated in the majority opinion of reckless manslaughter. Conspicuously absent from the enumerated elements, however, is the element of the statutory definition of recklessness that "[t]he risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]). As the Appellate Division noted, even in the unlikely event the Grand Jury made the findings ascribed to it by the majority, the above-quoted element of recklessness would not be satisfied as a matter of law.

      . Justification may be a defense to a crime requiring a criminal intent less than the specific intent required for the particular act (see generally, People v McManus, 67 NY2d 541, 547-548). This court has held specifically that justification may be asserted as a defense to reckless manslaughter in the first degree (Penal Law § 125.15 [1]) (see, e.g., People v Huntley, 59 NY2d 868, affg 87 AD2d 488).

      . The prosecutor instructed the grand jurors that the defense of justification, if accepted by them, would exonerate the defendant of liability for all three crimes charged. The Grand Jury obviously ignored this instruction, the correctness of which is not a question before this court.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    Myrna Tarter, Respondent, v State of New York, Appellant. William E. Tyner, Respondent, v State of New York, Appellant.
    (Claim No. 70105.)
    (Claim No. 70888.)
    Argued November 17, 1986;
    decided December 18, 1986

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (R. Scott Greathead, O. Peter Sherwood, Peter H. Schiff and Michael S. Buskus of counsel), for appellants in the first and second above-entitled claims.
    I. The common law of judicial immunity, which insulates Judges from tort liability, is equally applicable to parole determinations because by statute they constitute judicial functions and because parole decision-making involves the same type of judgmental decisions performed by Judges. (Sassower v Signorelli, 96 AD2d 585, 61 NY2d 756; Stump v Sparkman, 435 US 349; Pierson v Ray, 386 US 547; Bradley v Fisher, 13 Wall [80 US] 335; Butz v Economou, 438 US 478; Imbler v Pachtman, 424 US 409; Nelson v Missouri Osteopathic Found., 626 F Supp 604.) II. Because parole determinations are discretionary, no tort liability can be imposed. (Matter of Friedman v Hammock, 80 AD2d 976, 54 NY2d 799; People ex rel. Herbert v New York State Bd. of Parole, 97 AD2d 128; Matter of Qafa v Hammock, 80 AD2d 952; Matter of Ganci v Hammock, 99 AD2d 546; Matter of Ristau v Hammock, 103 AD2d 944; Tango v Tulevech, 61 NY2d 34; Schostick v State of New York, 109 AD2d 46, 66 NY2d 602; Santangelo v State of New York, 101 AD2d 20; Wasserstein v State of New York, 32 AD2d 119, 27 NY2d 627; Welch v State of New York, 74 AD2d 661.) III. Public policy considerations— including the chilling effect such liability will have on the parole and correctional systems — compel the conclusion that no legal "duty” should be recognized. (Donahue v Copiague Union Free School Dist., 47 NY2d 440; Torres v Little Flower Children’s Servs., 64 NY2d 119; De Angelis v Lutheran Med. Center, 58 NY2d 1053; Strauss v Belle Realty Co., 65 NY2d 399; Pulka v Edelman, 40 NY2d 781; Hoffman v Board of Educ., 49 NY2d 121; Vu v Singer Co., 706 F2d 1027, 464 US 938; Matter of Briguglio v New York State Bd. of Parole, 24 NY2d 21; Gielski v State of New York, 10 AD2d 471, 9 NY2d 834; Henry v Bronx Lebanon Med. Center, 53 AD2d 476.) IV. Because the claims, though otherwise denominated, sound in negligent police protection, yet fail to identify a special duty or special relationship, they fail to state a cause of action. (Alquijay v St. Luke’s-Roosevelt Hosp. Center, 63 NY2d 978; Hoffman v Board of Educ., 49 NY2d 121; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Crosland v New York City Tr. Auth., 110 AD2d 148; De Long v County of Erie, 60 NY2d 296; Helman v County of Warren, 67 NY2d 799; Vitale v City of New York, 60 NY2d 861; Ast v State of New York, 66 NY2d 998; Riss v City of New York, 22 NY2d 579; Bardavid v New York City Tr. Auth., 61 NY2d 986.)

      John P. D’Ambrosio for respondent in the first above-entitied claim.
    I. A claim is stated. (Matter of Hines v State Bd. of Parole, 293 NY 254; Matter of Briguglio v New York State Bd.

      of Parole, 24 NY2d 21; People ex rel. Herbert v New York State Bd. of Parole, 97 AD2d 128; Matter of Delman v New York State Bd. of Parole, 93 AD2d 888; Matter of Harden v New York State Bd. of Parole, 103 AD2d 777; Matter of Bacon v Hammock, 96 AD2d 557; Matter of Consilvio v New York State Bd. of Parole, 57 AD2d 955; Matter of Paulsen v New York State Bd. of Parole, 46 AD2d 661; Matter of Tomarkin v Bombard, 56 AD2d 881; Taylor v State of New York, 36 AD2d 878.) II. The Parole Board had a duty to act in accordance with law in releasing Montgomery. (Pulka v Edelman, 40 NY2d 781; Robilotto v State of New York, 104 Misc 2d 713; Matter of Jorge v Hammock, 84 AD2d 362; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69; Strauss v Belle Realty Co., 65 NY2d 399.)

      David H. Fromm, Aaron J. Broder, Frederick A. Polatsek and Mark L. Freyberg for respondent in the second above-entitled claim.
    I. The doctrine of sovereign immunity does not insulate the State from liability for injuries inflicted upon an individual by a parolee who was released from prison by the Board of Parole where, in releasing the parolee, the Board of Parole failed to act in accordance with law. (Matter of Hines v State Bd. of Parole, 293 NY 254; People ex rel. Herbert v New York State Bd. of Parole, 97 AD2d 128; Matter of Tomarkin v Bombard, 56 AD2d 881; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69; Welch v State of New York, 74 AD2d 661; Taylor v State of New York, 36 AD2d 878; Brownshield v State of New York, 76 AD2d 849; Archer v Equitable Life Assur. Socy., 218 NY 18; Tango v Tulevech, 61 NY2d 34; Santangelo v State of New York, 101 AD2d 20.) II. Public policy considerations warrant holding the State liable for injuries to individuals inflicted by a parolee where the Board of Parole failed to act in accordance with law in releasing the parolee. (Hoffman v Board of Educ., 49 NY2d 121; Donohue v Copiague Union Free School Dist, 47 NY2d 440; Klostermann v Cuomo, 61 NY2d 525; Torres v Little Flower Children’s Servs., 64 NY2d 119; Payton v United States, 679 F2d 475; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69.) III. Since Tyner’s claim is not one for negligent police protection, Tyner is not required to demonstrate either a special undertaking to protect him or reliance on specific assurances of protection. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; O’Connor v City of New York, 58 NY2d 184.)
   OPINION OF THE COURT

Titone, J.

The question to be resolved on this appeal is whether the State and the New York State Board of Parole may be held liable for negligently releasing dangerous prisoners on parole, where the parolees inflict serious injuries upon members of the public. We hold that since parole release decisions are quasi-judicial in character, the State and its employees are absolutely immune from tort actions arising from such decisions.

I

Claimant Myrna Tarter was shot in the vestibule of her apartment building by one Michael Montgomery. He had been convicted four years earlier of attempted manslaughter in the first degree and criminal possession of a weapon in the second degree for a similar shooting. After serving 4 of the 4 to 12 years to which he was sentenced, Montgomery was released on parole. Less than two months later, he shot Tarter and rendered her a paraplegic.

In her claim against the State, Tarter alleged that the State Division of Parole and the State Board of Parole failed to act in accordance with the law in paroling Montgomery, to supervise Montgomery in accordance with the terms of his parole, to obtain and file complete information with regard to Montgomery, to properly condition his parole, to investigate violations of parole committed by Montgomery and to revoke his parole. Upon defendant’s motion to dismiss, the Court of Claims held that the claim contained insufficient factual allegations and dismissed with leave to file an amended claim within 90 days. Claimant’s cross motion for disclosure was denied. The Appellate Division modified holding that the allegation that the Parole Board failed to act "in accordance with the law” (Executive Law § 259-i [5]) stated a claim with sufficient specificity, given the lack of disclosure to date. The court granted leave to appeal to this court and certified the following question: "Was the order of this Court, which modified the order of the Court of Claims of the State of New York, properly made?”

II

As claimant William Tyner waited in his car for a red light to change, Leslie Pastrana suddenly opened the passenger door of Tyner’s vehicle and shot him in the abdomen. Tyner, too, became a paraplegic as a result of the shooting. One year earlier, Pastrana had been convicted of attempted burglary in the second degree, the crime involving the threatening and attacking of a police officer with a knife. Pastrana served one year of a sentence of one to three years and was released on parole. The subsequent shooting occurred less than two months later.

Two and one-half years after the shooting, Tyner made a motion in the Court of Claims to file a late claim against the State and the New York State Board of Parole (Court of Claims Act § 10 [6]) and for an order granting preclaim discovery (Court of Claims Act § 17 [2]; CPLR 3102 [¶] [amended L 1984, ch 294, § 3]). He alleged that the Board had released Pastrana recklessly and in violation of its own procedures. The motion to file a late claim was granted and the preclaim discovery motion adjudged moot. The Appellate Division affirmed, but granted leave to this court, certifying the following question: "Was the order of the Court of Claims of the State of New York as affirmed by this Court, properly made?”

Ill

The procedures governing parole are found in Executive Law article 12-B (§ 259 et seq.). The Board of Parole, at least one month prior to the expiration of the minimum period of imprisonment fixed by the sentencing court, must conduct an interview of the inmate and "determine whether he should be paroled at the expiration of the minimum period * * * in accordance with the guidelines adopted pursuant to subdivision four of section two hundred fifty-nine-c” (Executive Law § 259-i [2] [a]; 9 NYCRR 8002.2). The guidelines promulgated to aid in making the discretionary parole release decision required that, in addition to a mathematical grid which reflects the usual parole dispositions in cases involving similar offenses, the following be considered: "(1) the institutional record, including program goals and accomplishments, academic achievements, vocational education training or work assignments, therapy and interpersonal relationships with staff and inmates; (2) performance, if any, as a participant in a temporary release program; and (3) release plans, including community resources, employment, education and training and support services available to the inmate” (9 NYCRR 8002.3; see, Executive Law § 259-i [2] [c]). Moreover, it is specifically stated that a discretionary release is not to be granted merely as a reward for good behavior in prison, but after considering whether there is a reasonable probability that the inmate will remain at liberty without violating the law if released, that the release will not endanger society and that the release will not so deprecate the severity of the crime as to undermine respect for the law (Executive Law § 259-i [2] [c]; 9 NYCRR 8002.1). Consideration of the guidelines is mandatory prior to a parole decision (9 NYCRR 8002.1, 8002.3), but the ultimate decision is discretionary (see, Executive Law § 259-i [2] [c]; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69; Matter of Ganci v Hammock, 99 AD2d 546, 547; 9 NYCRR 8002.1).

It is the Board’s alleged failure to consider the guidelines that forms the substance of claimants’ claims. Neither claimant attempts to convince the court that an exercise of discretion ending in an erroneous disposition would lead to liability. Indeed such a ruling would conflict with this court’s line of decisions foreclosing suit against a governmental unit as a result of an official’s negligent exercise of discretion (see, e.g., Tango v Tulevech, 61 NY2d 34; Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831). Instead, claimants argue that the Board failed to perform the supposedly ministerial act of considering the mandatory guidelines.

Executive Law § 259-i (5) states: "Any action by the board pursuant to this article shall be deemed a judicial function and shall not be reviewable if done in accordance with law.” Claimants maintain that this section affords immunity to the Board from tort liability only when it acts in accordance with the law. We disagree. The process delineated in section 259-i (5) has no bearing on the discrete question before us, relating to the nature and extent of the liability of Parole Board members to third parties. Claimants’ arguments on this point are irrelevant. Clearly, as is true with many judicial functions, a higher authority may review a decision with the possible view toward a reversal or modification to correct an error of law (see, e.g., CPLR 5501), and parole dispositions may be annulled if found not to have been made in accordance with the law (CPLR 7801; Matter of Ganci v Hammock, supra).

On the other hand, the " 'erroneous manner in which [the court’s] jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act’ ” (Stump v Sparkman, 435 US 349, 359 reh denied 436 US 951, quoting Bradley v Fisher, 13 Wall [80 US] 335, 357). A Judge is not protected from a civil suit by an unsuccessful litigant merely when the Judge’s decisions are letter-perfect. Judges have long been immune even from tort liability suits alleging that their decisions were tainted by improper motives (see, e.g., Stump v Sparkman, supra, pp 358-363; Bradley v Fisher, supra; Murray v Brancato, 290 NY 52, 55; Yates v Lansing, 5 Johns 282, 291). Courts have recognized that it is imperative to the nature of the judicial function that Judges be free to make decisions without fear of retribution through accusations of malicious wrongdoing. It has been adjudged worth the price of leaving some injured parties without a remedy to allow such officials to exercise the independence of judgment critical to our judicial system without harassment or intimidation (Cleavinger v Saxner, 474 US —, 106 S Ct 496; Butz v Economou, 438 US 478, 514; Bradley v Fisher, supra).

This is no less the case with respect to government officials who exercise quasi-judicial functions. The nature of judicial immunity is that it plainly protects Judges only in the performance of their judicial functions (Stump v Sparkman, supra; Murray v Brancato, supra; Prosser and Keeton, Torts § 132, at 1058 [5th ed]; see also, Park Knoll Assoc. v Schmidt, 59 NY2d 205, 209). The immunity stems from the special nature of the judicial duties (Butz v Economou, supra). Logically, other neutrally positioned government officials, regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts (id., pp 513-514; Prosser and Keeton, Torts § 132, at 1059 [5th ed]; see also, Harlow v Fitzgerald, 457 US 800, 807).

The functions of the impartial Board in deciding whether to grant parole are classically judicial tasks (Butz v Economou, supra, pp 513-514; Sellars v Procunier, 641 F2d 1295, 1303, cert denied 454 US 1102; see also, Cleavinger v Saxner, supra, p 502; Santangelo v State of New York, 101 AD2d 20, 28). The Board must measure the facts of a particular inmate’s case against the backdrop of the guidelines. Just as a Judge performs the original sentencing function, weighing the defendant’s particular situation against case law, sentencing statutes and the Judge’s prior experience, the Board must fit the inmate’s factual circumstances within the guidelines and use its discretion in its disposition of the matter. Both are decisions which involve the officials’ expertise, an application of law and an exercise of their judgment. We do not suggest that every official act involving discretion will be considered a judicial function conferring absolute immunity. It is the peculiar nature of the duties of the Board of Parole with respect to the weighing of evidence, deciding the relative importance of the determining factors and the ultimate discretionary disposition which render it so. Therefore, the Board’s actions are entitled to absolute immunity, notwithstanding that discovery could prove claimants’ allegations.

Finally, any claim based upon the negligent supervision of the parolees must fail because of the complete lack of allegations of both a special duty to protect the claimants as identified individuals and the reliance on the part of the claimants on specific assurances of protection (Helman v County of Warren, 67 NY2d 799, 801; De Long v County of Erie, 60 NY2d 296).

Accordingly, in Tarter v State of New York the order of the Appellate Division should be reversed, without costs, the motion to dismiss the claim granted, the claim dismissed and the certified question answered in the negative. In Tyner v State of New York, the order of the Appellate Division should be reversed, with costs, and claimant’s motion to file a late claim denied; the certified question is not answered as it is unnecessary.

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

In Tarter v State of New York: Order reversed, etc.

In Tyner v State of New York: Order reversed, etc.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Karen T. Ely, Appellant.
    Argued November 12, 1986;
    decided December 18, 1986

      POINTS OF COUNSEL

      Stephen R. Coffey and Salvatore D. Ferlazzo for appellant.
    I. The use of tape recordings without a proper foundation violated defendant’s right to a fair trial. The failure to redact the tapes, in any event, further prejudiced defendant in denying her right to a fair trial. (People v McGee, 49 NY2d 48, cert denied sub nom. Waters v New York, 446 US 942; People v Arena, 65 AD2d 182; People v Washington, 46 NY2d 116; People v Sher, 38 NY2d 600; United States v McKeever, 160 F Supp 426, 271 F2d 669; United States v McMillan, 508 F2d 101; United States v Craig, 573 F2d 455; People v Cook, 37 NY2d 591; People v Crandall, 67 NY2d 111.) II. The trial court denied the accused the effective assistance of counsel by unduly restricting cross-examination of key prosecution witnesses. (People v Chin, 67 NY2d 22; People v Malinsky, 15 NY2d 86; People v Rosario, 9 NY2d 286; People v Roth, 30 NY2d 99; People v Rensing, 14 NY2d 210; People v Mandel, 61 AD2d 563, 48 NY2d 952, 448 US 908; People v Baier, 73 AD2d 649; People v Parks, 41 NY2d 36; People v Freshley, 87 AD2d 104; Davis v Alaska, 415 US 308.) III. The trial court’s charge to the jury that they must maintain law and order was unduly inflammatory and prejudicial to defendant. (United States v Robinson, 635 F2d 981, 451 US 992; People v King, 72 AD2d 930; People v De Jesus, 42 NY2d 519; People v Garcia, 63 AD2d 719.)

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
    I. There was sufficient foundation for receiving tapes of telephone conversations between decedent and defendant to show motive. (People v Fitzgerald, 156 NY 253; Pierson v People, 79 NY 424; People v Buchanan, 145 NY 1; People v Scott, 153 NY 40; People v Harris, 136 NY 423; People v Beaudet, 32 NY2d 371; Hendrickson v People, 10 NY 13; People v Seppi, 221 NY 62; People v Harris, 209 NY 70; People v Guadagnino, 233 NY 344.) II. Defendant’s attorney was afforded wide latitude and was not unduly restricted in cross-examination. III. The charge herein was balanced and in no way was it prejudicial to defendant. (People v Russell, 266 NY 147; People v Lupo, 305 NY 448.)
   OPINION OF THE COURT

Meyer, J.

The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered. Absent such proof, the defendant’s concession that the voice on the tapes is his or hers and that he or she recalls making some of the statements on the tapes does not exclude the possibility of alteration and, therefore, does not sufficiently establish authenticity to make the tapes admissible. Moreover, when, as here, tapes which are admitted to prove motive contain evidence of crimes other than that for which defendant is on trial, unrelated to motive or the relevance of which to motive is outweighed by its prejudicial effect, which is not itself otherwise admissible and not explanatory of the acts done or words used in the admissible part of the tapes, such material should be redacted before submission of the tapes to the jury. The tapes admitted in this case having been admitted without sufficient foundation and without proper redaction, the order of the Appellate Division affirming the judgment of conviction should be reversed and a new trial ordered.

I

On February 6, 1982, Raymond Ely was to have commenced overnight visitation with his son, Robert, pursuant to a stipulation entered into during the course of the divorce proceedings between him and defendant, Karen Ely, his estranged wife. On February 5, 1982, however, Raymond Ely was found dead on the passenger side of the front seat of his station wagon, which was parked behind a bus terminal in downtown Albany. Defendant and Robert Huntington were charged with his murder in an indictment alleging that the deceased was strangled in the cellar of defendant’s Rensselaer home on the night before his body was discovered, and then transported to Albany. Defendant’s primary motive for the killing, the People later would argue, was to deny Raymond Ely the opportunity to visit overnight with their son.

Huntington pleaded guilty to murder in the second degree and was the prosecution’s chief witness against defendant at the trial out of which this appeal arises. He testified that during the first week of January 1982, defendant approached him and enlisted his services in the murder of her husband. Pursuant to a prearranged plan, Raymond Ely was invited to defendant’s home on February 4, 1982 at 7:30 p.m. to pick up certain items of personal property which it had been agreed were to be retained by him. Stating that she needed assistance with some cleaning up in the cellar, defendant, according to Huntington, lured her husband into the basement where Huntington was waiting. While defendant held her husband’s wrists, Huntington strangled him with a clothesline. After defendant checked him for a pulse and removed all his possessions "to make it look like a robbery had occurred,” the two carried the body of Raymond Ely into his station wagon, which Huntington then drove into downtown Albany, where he abandoned it. The following day, defendant told Huntington that she and Robert’s baby-sitter had disposed of defendant’s possessions in a dumpster in East Greenbush.

Huntington testified that the purpose of the murder, as he understood it, was to stop the deceased from exercising his "visiting rights * * * for their son, Robert.” According to Raymond Ely’s matrimonial attorney, Paul Oliver, defendant and the deceased had stipulated that defendant would have five successive Sunday visits with their son, after which overnight weekend visitation would commence on Saturday, February 5, 1982. Notably, Huntington told the jury that when on the night of the killing he expressed doubt about carrying out the murder plan, defendant stated, "Don’t back out on me now. We have to do it tonight. We have to do it before the weekend.”

The most damning evidence of motive, however, consisted of three tapes of recorded telephone conversations between defendant and the deceased (exhibits 39, 40 and 41). The recordings were made by the deceased at his attorney’s suggestion during August and September 1981, and were intended for use as evidence in the parties’ then pending divorce proceeding. Prior to commencement of the trial, defendant’s attorney sought a ruling (see, People v Ventimiglia, 52 NY2d 350, 362) excluding the tapes on the ground of relevance, marital privilege and prejudice. The Trial Judge denied the request, reasoning that the conversations were not privileged because not made as part of an attempted reconciliation, but reserved decision as to relevancy pending proof at trial "as to what the motive is.” In response to the prosecutor’s offer of proof, the court further commented that if the People succeeded at trial in presenting evidence that defendant’s motive was to prevent the deceased from keeping the child overnight, the court would admit the tapes as relevant, subject to proof of the requisite foundation.

The evidence of foundation presented at trial as to exhibits 39 and 40 came from Raymond Ely’s roommate, who testified that the tapes had been made by him outside their home, at a time and place unknown to her, and then placed by him in a shopping bag which he stored in the living room and later moved into the bedroom closet. After the murder she retrieved the tapes from the closet and turned them over to the police.

As to the tape designated exhibit 41, Paul Oliver testified that, in or about September 1981, he received it from Raymond Ely and thereafter kept it in Ely’s file at his office until he, too, handed the tape to the police. He also testified that in his opinion the notations on all three tapes were in the handwriting of Raymond Ely. He conceded, however, that Ely had had exhibit 41 in his own possession "probably” for "anywhere from three weeks to a month” before delivering it to him.

Custody of all three tapes after delivery to the police was established by the testimony of Police Officer Mancuso, and defendant stipulated in court that the female voice on the tapes was hers. In separate rulings as to exhibits 39 and 40 and then as to exhibit 41, the Trial Judge held that sufficient foundation had been established.

A substantial portion of the content of the tapes involved Raymond Ely’s unsuccessful efforts to persuade defendant to allow him visitation with their son. Defendant’s steadfast refusal to acquiesce in such requests is evidenced by those portions of the tape in which she offered to waive her claim to child support, despite her $50 per week wages, in exchange for an agreement that the deceased would have no visitation rights, and by her repeated statements that he would be afforded visitation "over my dead body.”

Defendant based her position in respect of visitation, at least in part, on her contention that Robert, then about two years old, did not want to see his father because he had done "something” to frighten the boy. But she also maintained that the deceased was not the boy’s father and the tapes include the first conversation during which she so informed him. In response to Raymond Ely’s statements that he thought that her pregnancy was their attempt at improving a troubled marriage, defendant explained that she would have left the deceased before the child was even conceived but remained with him because she was then under indictment for arson and it was the feeling of her attorney that her defense would be enhanced if she continued in the marriage. She had, therefore, waited until the charges were dropped before leaving him.

Similar references to the arson charges appear throughout the tapes. On a number of occasions defendant reacted to her husband’s asking, in disbelief that he was not the father of the child, how she could "live a lie” by not revealing that to him earlier, by responding repeatedly that she lied because she had to, in light of her attorney’s advice that she remain married while the arson charge was pending. On one occasion, however, she added that if the deceased pressed forward with court proceedings, she would "swear” in court, in support of her claim for child support, that he was Robert’s father, adding that "of course I’ll do what I have to in Court. Doesn’t everybody?”

After the Trial Judge held the foundation of the tapes sufficient, defendant moved that there be redacted from them references to the fire and related arson charge, as well as the fact that defendant’s lawyer had advised her to live with the deceased until the arson charge was dismissed. He argued that these references were unfairly prejudicial, especially in light of the dismissal of the arson indictment. The prosecutor countered that the tapes, themselves, would inform the jurors about the dismissal and that "the rest go to the willingness and ability to lie,” i.e., to defendant’s credibility. The Trial Judge denied the motion, reasoning that "the entire tape is relevant to motive, that there’s a flavor to it. It is a cohesive whole and to chop it up into little pieces like that really diminishes the integrity of the exhibit.” Defense counsel requested reconsideration of that ruling after the playing of the first tape revealed 12 separate references to the arson charge. Reasoning again that the conversations went to motive and that "many of these things are intertwined,” the Trial Judge denied the motion, adding that defendant’s claim of prejudice was overstated because the dismissal of the arson charge was mentioned on the tapes.

Defendant testified in her own behalf, denying involvement in the murder and stating that Huntington had told her that he, alone, killed Raymond Ely. On cross-examination, the prosecutor confronted defendant with a series of statements which, more often than not, she admitted were correctly recorded on the tapes. Defendant did not, however, concede that the tapes were completely accurate and, in fact, she did not recall having made certain statements with which she was confronted. The People argue on the basis of these admissions and of defense counsel’s summation statement that "[defendant] admits what was said on those tapes” that foundation was sufficiently established or was waived.

The jury returned a verdict of guilty of murder in the second degree. On appeal from the judgment of conviction, the Appellate Division affirmed (115 AD2d 171). It held that there was sufficient foundation for admission of the tapes "in the testimony of the victim’s mother™ and the decedent’s matrimonial attorney concerning custody of the exhibits”, in defendant’s stipulation that it was her voice on the tapes, and in her several admissions on cross-examination that she recalled portions of the conversations recorded on the tapes (115 AD2d, at pp 173-174, supra). As to redaction, it held the references to the pending arson charges relevant as bearing upon defendant’s motive and as an explanation concerning why defendant, having allegedly become pregnant by another man, remained with her husband as long as she did (ibid., at p 174).

Defendant appeals by leave of a Judge of this court (67 NY2d 882). Because the foundation for the tapes was not sufficiently established, there must be a reversal and a new trial and, in view of the possibility that on the further trial a proper foundation may be established, we note that, because much of the material on the tapes was neither related to nor inextricably interwoven with material related to motive, redaction from the tapes of such material will be required unless admissible on some other ground than to establish motive.

II

Admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by "clear and convincing evidence” establishing "that the offered evidence is genuine and that there has been no tampering with it” (People v McGee, 49 NY2d 48, 59, cert denied sub nom. Waters v New York, 446 US 942). The necessary foundation may be provided in a number of different ways. Testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered (People v McGee, 49 NY2d, at p 60, supra; People v Arena, 48 NY2d 944, 945; United States v Sandoval, 709 F2d 1553, 1555; United States v Buzzard, 540 F2d 1383, cert denied 429 US 1072) or of a witness to the conversation or to its recording, such as the machine operator, to the same effect (e.g., United States v Hassell, 547 F2d 1048, 1054, cert denied sub nom. McIntosh v United States 430 US 919; United States v McMillan, 508 F2d 101, 104-105, cert denied 421 US 916; Gonzales v United States, 314 F2d 750, 752) are two well-recognized ways. Testimony of a participant in the conversation together with proof by an expert witness that after analysis of the tapes for splices or alterations there was, in his or her opinion, no indication of either (United States v Craig, 573 F2d 455, 477-478, cert denied 439 US 820) is a third available method.

A fourth, chain of custody, though not a requirement as to tape recordings (People v McGee, 49 NY2d, at p 60, supra), is also an available method (United States v Halderman, 559 F2d 31, 109, cert denied sub nom. Mitchell v United States, 431 US 933; United States v Hughes, 658 F2d 317, 323; United States v Blakey, 607 F2d 779, 787; United States v Fuentes, 563 F2d 527, cert denied sub nom. Sansone v United States 434 US 959). It requires, in addition to evidence concerning the making of the tapes and identification of the speakers, that within reasonable limits those who have handled the tape from its making to its production in court " 'identify it and testify to its custody and unchanged condition’ ” (People v Connelly, 35 NY2d 171, 174). This was the method employed in the instant case, but the testimony presented failed to establish precisely when or even where the recordings were made by decedent and thus left open the possibility that they had been altered by him in some way before they were (as to exhibits 39 and 40) brought to the apartment where he resided or (as to exhibit 41) turned over to attorney Oliver.

Were there other foundation proof to overcome that discrepancy, the gap in the chain of custody would affect the weight but not the admissibility of the tapes (People v McGee, 49 NY2d, at p 60, supra). Here, however, the record is devoid of further proof. Defendant’s stipulation that the voice on the tapes is hers does no more than identify the speaker, but, as already indicated, identity and authenticity are separate facets of the required foundation, both of which must be established (see also, United States v Biggins, 551 F2d 64, 66; United States v Hassell, 547 F2d, at pp 1054-1055, supra). Indeed, in view of the ease with which voices may be transposed on tapes and the difficulty, except for an expert, of detecting such a change, this must necessarily be so. To the extent that People v Theriault (75 AD2d 971), relied on by the Appellate Division (115 AD2d, at p 174, supra), suggests the contrary, it is not to be followed.

Moreover, the gap in the proof was not remedied by defendant’s admissions during cross-examination that she recalled having made particular statements contained on the tape (see, n 2, supra). Limited as they are to isolated portions of the conversation, these admissions do not satisfy the requirement that the fairness and accuracy of the entire recorded conversation be established as a predicate of admissibility (People v Arena, 48 NY2d 944, supra, affg 65 AD2d 182, 183; see, People v McGee, 49 NY2d, at p 60, supra; United States v Buzzard, 540 F2d, at p 1386, supra; United States v McKeever, 169 F Supp 426, revd on other grounds 271 F2d 669), the more particularly so in light of defendant’s denial that she recalled making a number of other statements with which she was confronted (compare, United States v Parodi, 703 F2d 768, 790 [upholding admissibility where defendant admitted that he " 'said what was on the tapes’ ”], with United States v Wells, 525 F2d 974, 976 [denying admissibility where, among other things, defendant denied making statements]). Nor did the statement of defendant’s attorney made during summation that "[s]he admits what was said on those tapes” supply the missing foundation or waive that deficiency in the introduction of the tapes, for that statement was made long after the tapes were admitted in evidence and in the context in which made clearly was limited to an admission that her husband had said to her "these lies will catch up with you.”

Because the evidence presented was insufficient to supply the required foundation, it was an abuse of discretion as a matter of law for the Trial Judge to admit them into evidence.

Ill

There is no question that those portions of the tapes which tended to establish that defendant’s motive for procuring the murder of her former husband was to prevent his having overnight visitation with the child fall within one of the recognized exceptions to the rule proscribing introduction of evidence of uncharged crime (People v Ventimiglia, supra; People v Molineux, 168 NY 264). The Molineux exceptions are, however, subject to limitations.

The first, which "is intended to eliminate the danger that a jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged” (People v Ventimiglia, 52 NY2d, at p 359, supra), requires that the evidence not only be probative of the crime charged, but also that its probative value "outweighs its potential for prejudice” (id.; accord, People v McKinney, 24 NY2d 180, 184). The second limits that which is to be admitted pursuant to the exception to evidence which is directly related to the issue upon which offered or which, though not itself directly related, is "inextricably interwoven” with directly related material in the sense that it is "explanatory of the acts done or words used in the otherwise admissible part of the evidence” (People v Ventimiglia, 52 NY2d, at p 361, supra; accord, People v Crandall, 67 NY2d 111, 116-117; People v Vails, 43 NY2d 364, 368). A third is that the evidence not be unnecessary to the People’s case (e.g., evidence of identity when identity is conclusively established, People v Robinson, 68 NY2d 541 [decided herewith]), or merely cumulative (People v Ventimiglia, 52 NY2d, at p 361, supra).

Thus, that a tape contains relevant evidence is but the beginning of the inquiry, not the end of it. Whether there should be redaction of a tape turns not, as the Trial Judge here ruled, upon whether "there is a flavor to it,” but on whether the material to be redacted is more prejudicial than probative. Nor does it turn on "the integrity of the exhibit,” except as material not itself directly probative is essential to an understanding of what is.

The People argued before the Trial Judge and before us that virtually all of the statements contained in the tapes were probative of motive because they demonstrated not only defendant’s opposition to allowing her husband to visit overnight with their son, but also that she and the deceased lived in a "charade marriage relationship” during the time when the arson charge was pending. They rely upon People v Scott (153 NY 40), People v Buchanan (145 NY 1) and People v Harris (136 NY 423). In each of those cases, however, as well as in People v Benham (160 NY 402), the purported motive for the murder was the spouse’s "desire to get rid of the marriage relation” (People v Harris, 136 NY, at p 451, supra; People v Scott, 153 NY, at p 50, supra; People v Buchanan, 145 NY, at pp 22, 27, supra), in proof of which evidence of infidelity was held admissible. Here, however, the motive sought to be established was not to rid defendant of the marital relationship — for that she chose the conventional and entirely legal means of divorce — but to deny her husband the opportunity of establishing a truly parental relationship with the child through overnight visitation. As to that, defendant’s efforts to get the decedent to waive his visitation rights and her threats that he would obtain visitation "over my dead body,” for example, were clearly relevant and admissible. That they had been living "in a charade marriage relationship” which, but for the pendency of the arson charge, would have been sooner terminated by divorce, the procurement of which was already in progress when the tapes were made (and which ultimately resulted in visitation provisions contrary to defendant’s wishes), was not.

Nor were the many references to the arson charges, and other highly prejudicial material on the tapes, admissible because "inextricably interwoven” with evidence admissible as probative of motive. Prejudicial material "not necessary to a full comprehension of the” directly related evidence (People v Ward, 62 NY2d 816, 818) is inadmissible, even though part of the same conversation (id.; People v Ventimiglia, 52 NY2d, at pp 360-361, supra) or, indeed, of the same sentence (People v Crandall, 67 NY2d, at pp 116-117, supra). So, in People v Vails (43 NY2d, at p 368, supra) reference to prior drug sales was held "intrinsic to the bargaining” between defendant and the undercover officer and admissible because "concerned [with] the price to be paid and the quality of the drugs,” but in People v Crandall (67 NY2d, at p 117, supra) redaction of the exact amount of money paid at the time of the drug purchase for which defendant was being tried was required, because "not necessary to comprehension” and because, it being more than the agreed price of the drugs then sold, would have revealed to the jurors that another uncharged drug sale had occurred. Thus, it is not enough that prejudicial unrelated other crime evidence is part of a "cohesive whole” or even that it may assist the jury by shedding light upon the "contextual setting” in which a statement was made (People v Ward, 62 NY2d, at p 818, supra); to be admissible it must be necessary to comprehension of the otherwise admissible statements.

It follows from the foregoing principles that the many references to the arson charge should have been, and on retrial should be, redacted, even though the tapes also revealed that the charges had ultimately been dismissed. While a defendant who takes the stand may be interrogated on cross-examination concerning a criminal act committed even though not formally charged with it (Richardson, Evidence § 498, at 483 [Prince 10th ed]), that could not justify introduction as part of the People’s direct case of the arson evidence, unless otherwise admissible. The prejudicial impact of involvement in arson, a crime of violence, is pointed up by the Trial Judge’s Sandoval ruling, which prohibited cross-examination of defendant about her alleged role in the fire for the very reason that such questioning would portray her as a person predisposed to commit violence. Nor can we agree that prejudice would necessarily be obviated by the revelation that the charges had been dismissed, for dismissal of a criminal charge is not tantamount to acquittal (cf. People v Vidal, 26 NY2d 249, 253), a fact of which, it may be assumed in this day of pervasive media coverage of crime, the average juror will not be unaware. Because there was, therefore, no basis other than that they were part of the taped conversation for admission of the references to the arson charges, and defendant’s refusal to grant her husband’s requests for visitation were readily comprehensible without such references, they should have been redacted as requested.

Review of the tape transcripts pursuant to the request for redaction discloses much other material that should be excluded, either on the People’s direct case or entirely. In the former category is defendant’s statement that she would lie under oath, for it is axiomatic that the credibility of defendant as a witness is not in issue until she testifies (see, People v Rahming, 26 NY2d 411, 418; People v Harris, 25 NY2d 175, 177; People v Kulis, 18 NY2d 318, 322-323). Such statements will become admissible on retrial, if defendant again takes the stand, but only as part of the People’s rebuttal (see, People v Santarelli, 49 NY2d 241, 247-249). In the latter category are the many disparaging and at times vulgar remarks directed by defendant at her husband, illustrative of which are her responses to his requests to see his son: "I said go find another broad and go make a son then, if you want to see one” and "[i]f you want to see your son, go out and make one with some chippy that you’re living with.” Such statements go more to defendant’s base character than to her motive for the murder of her husband. Although marginally probative, they are both cumulative and so unduly prejudicial as to require redaction (People v Ward, supra), for it is indeed questionable whether even a clear limiting instruction would have overcome the prejudice thus engendered United States v Cianchetti, 315 F2d 584, 589-591; see, People v Ventimiglia, 52 NY2d, at p 362, supra).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.

      . For example, the tapes contain the following exchange between defendant and the deceased:
      "male: I wasn’t going to bed with anybody when we were together, never.
      "female: We weren’t together. We were only together because my father asked you to stay. I only told you that [the baby] was yours because I was afraid that I was going to jail if I didn’t have a husband, just the way Paul Sleasman [defendant’s attorney on the arson charge] told me. Now, honest to God, Raymond, just please let it alone.” (Material in brackets added.)

      . The People point to the following exchange between the prosecutor and defendant:
      "Q. Do you remember saying repeatedly that Raymond Ely would get visitation over your dead body?
      "A. Yes, I do.
      "Q. Do you remember saying if he got visitation you would move with the child to Florida?
      "A. Yes I do.
      "Q. Do you remember saying that you wanted your husband out of your life and out of Robert’s life?
      "A. Yes, sir.
      "Q. Do you remember Raymond saying on those tapes after you told him for the first time that Robert was not his child, that he now would have to take Robert off his insurance?
      "A. Yes.
      "Q. Do you remember telling him not to do that yet?
      "A. Yes, I do.”

      . For example, defendant denied admitting to her husband in a taped conversation that the only reason she feared that he would kidnap their child was that he had on one occasion been five minutes late in returning the child to her after a visit with him.

      . The reference should have been to decedent’s roommate, whose testimony regarding the tapes is summarized above.

      . We have considered defendant’s other arguments and find them either unpreserved or without merit.


author: Kaye, J. Titone, J.

text:
    The People of the State of New York, Appellant, v Domesindo Velasquez, Respondent.
    Argued November 20, 1986;
    decided December 18, 1986

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Andrew J. Turro and Mark Dwyer of counsel), for appellant.
    The hearing court’s determination that defendant’s statements were improperly obtained was erroneous. (People v Settles, 46 NY2d 154; People v Hobson, 39 NY2d 479; People v Skinner, 52 NY2d 24; People v Bertolo, 65 NY2d 111; People v Cardona, 41 NY2d 333; Feuerstein v People of State of N Y., 515 F Supp 573; United States v Lam Lek Chong, 544 F2d 58; United States v Bagaric, 706 F2d 42; United States v Nagelberg, 434 F2d 585.)

      Raymond S. Sussman for respondent.
    The hearing court’s decision that defendant’s statements were obtained in violation of his rights was correct and should be affirmed. (People v Bartolomeo, 53 NY2d 225.)
   OPINION OF THE COURT

Kaye, J.

There having been no State interrogation, defendant’s right to counsel was not violated where, though represented by counsel in a State court prosecution against him, he testified without counsel on behalf of a friend in a Federal prosecution against the friend on related charges.

The essential facts are undisputed. On February 8, 1983, after receiving a tip that there was an illegal alien with a gun, officers of the Immigration and Naturalization Service (INS) entered a Manhattan apartment shared by defendant and Raphael Rolando Rosario. They searched the apartment, found a defaced pistol and a sawed-off shotgun, and arrested both men. The next day, based on information supplied by an INS agent, a felony complaint was lodged in Criminal Court, New York County, charging defendant with possession of a forged instrument and criminal possession of a weapon. The complaint referred to both weapons found in the apartment. Oscar Gonzalez-Suarez filed a notice of appearance on defendant’s behalf. Simultaneously, Rosario, an illegal alien, was indicted in the Federal court for possession of the pistol, and was represented by Raymond Sussman.

In late March or early April 1983, in the course of trial preparation Rosario introduced defendant to Sussman as a defense witness, and the two discussed Rosario’s case. Moreover, as a courtesy, on April 19, 1983, Sussman aided defendant in securing a month’s adjournment of his case, when defendant’s own lawyer failed to appear in Criminal Court and Sussman, there on unrelated matters, encountered defendant. Rosario’s trial in Federal court commenced April 25, 1983. The case agent for the prosecutor was one of the officers who had made the arrest.

Sussman secured a subpoena for defendant’s testimony at Rosario’s trial; Rosario himself did not testify at the trial. After conferring privately with Sussman on two further occasions about his testimony, defendant testified for Rosario— with no Miranda warnings — both at the Mapp hearing and thereafter at the trial, where he was cross-examined by an Assistant United States Attorney. In his direct testimony, responding to Sussman’s questions, defendant for the first time recounted that he saw the gun in the apartment while he was preparing for bed, and he put it under the bed. This testimony was essential evidence in the State prosecution against defendant for possession of the pistol.

Following Rosario’s Federal conviction, on May 12, 1983, defendant was indicted by a New York County Grand Jury for criminal possession of a weapon in the third degree — the pistol. Sussman filed a notice of appearance for defendant on May 24, 1983, the day of his arraignment. Sussman acknowledged that he had never met Oscar Gonzalez-Suarez, never spoken on the telephone with him, had no discussion with him about the case, and received no case file or other document from him when he took over defendant’s representation.

Upon receiving notice that defendant’s Federal testimony would be used in the State prosecution, defendant sought suppression on the grounds that he had not been given Miranda warnings and had been denied his right to counsel. The People, in turn, sought the disqualification of Sussman, contending that they would call both Sussman and Rosario as witnesses, and that defendant would be prejudiced in cross-examination by the fact that Sussman had represented Rosario. The hearing court denied the People’s motion to disqualify Sussman, but granted defendant’s suppression motion, and the Appellate Division affirmed, without opinion. Only the suppression ruling is challenged on appeal.

The question presented by this appeal is the scope of defendant’s right to counsel in the State criminal proceeding, which attached by virtue of either the filing of the felony complaint (see, CPL 1.20 [17]) or the notice of appearance of counsel in his behalf in State court. More particularly, defendant urges that his right to counsel was violated when he testified in Federal court in a matter related to the State prosecution against him. We conclude that it was not.

The Sixth Amendment right to counsel assures the accused a fair trial by guaranteeing professional assistance in preparing and presenting a case and coping with the intricacies of substantive and procedural criminal law (United States v Ash, 413 US 300; Powell v Alabama, 287 US 45; see also, Kirby v Illinois, 406 US 682, 689; People v Ridgeway, 101 AD2d 555, 560-561 [Hancock, Jr., J.], affd 64 NY2d 952; People v Settles, 46 NY2d 154, 161). Additionally, while the line between the Fifth Amendment protection against self-incrimination and the Sixth Amendment right to counsel is not always crystal-clear, the right to counsel protects persons, whether in custody or not, against the use of incriminating statements made as the result of governmental interrogation, including prosecutorial inducements to make such statements without the assistance of counsel (see, e.g., United States v Henry, 447 US 264; Brewer v Williams, 430 US 387; Massiah v United States, 377 US 201). In this State the right to counsel, both as to the time of its attachment and as to its waiver, is broader than the protection afforded under the Federal law (see, People v Settles, 46 NY2d 154, 161, supra). The rule that, once an attorney enters the proceeding, the police may not question defendant in the absence of counsel is "a rule grounded in this State’s constitutional and statutory guarantees of the privilege against self-incrimination, the right to the assistance of counsel, and due process of law”. (People v Hobson, 39 NY2d 479, 483.)

Thus, in addition to minimizing the adversarial imbalance in trial preparation and presentation, the right to counsel protects an accused in pretrial dealings with the overwhelming, coercive power of the State (People v Skinner, 52 NY2d 24, 32; People v Settles, 46 NY2d 154, 161, supra) by excluding incriminating evidence obtained by the State in violation of that right. Concomitantly, the exclusion of incriminating evidence obtained by agents of the State operates to deter their interference with the rights of the accused.

Central to the scope of the right of counsel is the involvement of the State in eliciting that evidence. The right to counsel does not clothe an accused with absolute immunity as to all incriminating statements made outside the presence of a lawyer. While the right to counsel guarantees that an accused will have a competent advocate in confronting the power of the State, that protection does not extend to encounters with private citizens absent collusion of the State. The right to counsel, quite simply, requires the exclusion of statements obtained from a person whose right to counsel has attached, through interrogation by agents of the State; statements induced by nongovernmental entities, acting privately, do not fall within the ambit of this exclusionary rule. The requirement that the incriminating evidence be elicited by State interrogation serves both the underlying purpose of minimizing the imbalance between the accused and the State and the goal of deterring improper conduct on the part of its agents.

Consonant with the important interest to be protected, the word "interrogation” must be read broadly. Plainly, "interrogation” goes beyond the direct custodial questioning by police or prosecutors such as took place in virtually all of our right to counsel cases. Interrogation includes not only formal questioning by the police or prosecutor, but also more subtle forms of State inducement to make incriminating statements (see, People v Maerling, 46 NY2d 289, 303; see also, People v Ferro, 63 NY2d 316, 322 [5th Amend]; White, Interrogation Without Questions: Rhode Island v Innis and United States v Henry, 78 Mich L Rev 1209, 1236-1241; 1 LaFave, Criminal Procedure § 6.4, at 473). By the same token the State cannot, through the facade of private citizens, elicit incriminating evidence without infringing defendant’s right to counsel (see, People v Cardona, 41 NY2d 333; Maine v Moulton, 474 US —, 106 S Ct 477, 487-488). Moreover, the State’s actual motivation in interrogating defendant is irrelevant (see, People v Townes, 41 NY2d 97).

We need not even reach the question whether interrogation by Federal officers, independent of any State collusion, could ever result in a violation of the State right to counsel and the exclusion of evidence in a State proceeding, because here it is plain that the incriminating evidence was not elicited by governmental interrogation.

Though represented by counsel, defendant for his own purposes chose to cooperate privately with Sussman, without his lawyer. Defendant points to the fact that an INS agent furnished the information for the felony complaint, and that an INS agent was assisting the Federal prosecutor. Nonetheless, the incriminating statements were uttered in response to Sussman’s question, apparently an unanticipated consequence of a bold defense strategy, and defendant was examined by the United States Attorney only after he had already incriminated himself. While certain immaterial details may have emerged on cross-examination — for example, that the gun was on the television set — defendant had already admitted on direct questioning that he had taken possession of the pistol and secreted it. Significantly, defendant did not even seek suppression of only the cross-examination. Thus, to the extent that defendant may have been induced by anyone to incriminate himself, such inducement was not that of the State but of a private attorney, now defendant’s own lawyer. There is no evidence, indeed no contention, that the State used Sussman to elicit the incriminating statements from defendant.

Although defendant incriminated himself in a Federal courtroom, the physical setting itself does not transform defendant’s testimony into an act of State interrogation. Even incriminating statements given in the most coercive setting— prison — are not subject to suppression absent involvement of the police or the prosecutor in eliciting that evidence (see, People v Cardona, 41 NY2d 333, supra). Nor does the subpoena constitute State involvement in the interrogation of defendant. The subpoena was issued at Sussman’s instance, and not as a vehicle for the State to secure defendant’s testimony.

Defendant’s right to counsel was not infringed because his incriminating statements were not obtained through interrogation by the police or the prosecutor, and the statements were therefore improperly suppressed. Accordingly, the order of the Appellate Division should be reversed and defendant’s motion to suppress denied.

Titone, J.

(dissenting). I must dissent. In my view, the manner in which defendant’s statements were elicited was totally inconsistent with the most fundamental aspects of his right to counsel. Accordingly, I would affirm the order from which the People now appeal.

The source of my disagreement with the majority is its conclusion that a person who has been brought into a courtroom under subpoena and required to answer questions under oath has not been interrogated under the auspices of the government. Whatever private agreements may have been made between defendant and Rosario’s attorney, there was no indication on the record of the suppression hearing that defendant’s appearance at Rosario’s trial was anything but one resulting from service of compulsory process. Moreover, the supervision of the proceeding by a Federal Judge was alone sufficient basis to conclude that defendant’s statements were made with the direct participation of the State.

Having concluded that subpoenaed testimony given in a courtroom is no less the product of governmental action than are statements elicited in a police station, I must further conclude that the use of such testimony at defendant’s State trial violated his right to counsel. Defendant was both actually represented and the subject of a criminal prosecution arising out of the same incident at the time he testified. Accordingly, under our State’s Constitution (NY Const, art I, § 6), he had an indelible right to counsel that could not be waived in the absence of counsel (see, People v Skinner, 52 NY2d 24; People v Settles, 46 NY2d 154; People v Hobson, 39 NY2d 479). Any waiver of his rights, either to remain silent or to be represented, was thus ineffectual, since defendant was clearly unrepresented at the proceeding.

Even more fundamentally, despite the obvious jeopardy in which he had been placed, there is no indication that defendont was ever advised by the presiding Federal Judge that he had a right to consult with an attorney before testifying or, for that matter, that he had a right to refrain from testifying entirely in light of his own potential liability. As a consequence, there is not even a basis for inferring that his waiver of both his State and Federal constitutional rights was an informed one. Certainly, we would not permit a witness with potential criminal liability to testify under such circumstances in our State’s courts. To allow testimony taken under these circumstances in Federal court to be admitted as evidence in defendant’s State trial is, in my view, to cast aside our most fundamental notions of fairness.

In short, the facts presented here do not require an attenuated extension of the right to counsel, but rather go to the very heart of that basic constitutional right. Because I cannot justify the admission of statements obtained under these conditions, I must respectfully dissent.

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

Order reversed, etc.

      . By contrast, there having been no proceedings against defendant in the Federal court, no right to counsel was triggered there (see, United States v Duvall, 537 F2d 15; Brewer v Williams, 430 US 387; 1 LaFave, Criminal Procedure § 6.4, at 466).

      . No contention is made that, by assisting defendant in securing an adjournment of the State proceeding, Sussman thereby became a lawyer for defendant obligated to advise him concerning his Federal court testimony.

      . We do not decide that any different result would follow if the incriminating evidence had been elicited by the Federal prosecutor.

       Whatever their prior relationship may have been, it is clear that Rosario’s attorney, Sussman, was not protecting defendant’s interests at Rosario’s trial.