text:
    The People of the State of New York, Respondent, v Timothy Bleakley and Jeffrey J. Anesi, Appellants.
    Argued March 25, 1987;
    decided May 7, 1987

      POINTS OF COUNSEL

      Oren Root, Jr., and Patrick M. Wall for appellants.

      Carl A. Vergari, District Attorney (Richard L. Hecht and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

We hold that it is reversible error when the Appellate Division manifestly avoids its exclusive statutory authority to review the weight of the evidence in criminal cases.

Each defendant, Timothy Bleakley and Jeffrey J. Anesi, has been found guilty by a jury at a joint trial of two counts of rape in the first degree, one count of sodomy in the first degree and sexual abuse in the first degree. By a divided court, the Appellate Division affirmed the judgments of conviction.

The principal issue is whether defendants have been deprived of one of their available statutory standards of intermediate appellate court review, a review based on the weight of the evidence (CPL 470.15 [5]). We discern that in this case they have been so deprived.

The very serious crimes for which both defendants stand convicted started out with some drinking in taverns late in the evening, then some social and amicable bar encounters in the early morning hours which evolved to an automobile setting where the victim and the two defendants planned to "do some coke” together. They did so. The versions of what happened thereafter differ sharply. The victim testified to a horrible and forcible double rape and sodomy. The defendants testified to one consensual sexual incident. There is other evidence of a circumstantial nature dealing with sexual conduct and possible forcible circumstances. There are also serious credibility and discrepancy assertions with respect to all the key witnesses.

Unquestionably, these features all relate principally to the jury’s properly exercised function and its resolution in this respect eliminates any further relevant concern with respect to the evidentiary standard of sufficiency or reasonable doubt (this is not a People v Ledwon, 153 NY2d 10, or People v Santos, 38 NY2d 173, type case). But, based on what is before us on this record, the Appellate Division did not do the factual analysis of whether the jury determination was against the weight of the evidence, a review which may take place only in an intermediate appellate court (CPL 470.15 [5]).

The complementary review scheme erected in our Constitution and statutes imposes a heavy duty on our important and overburdened intermediate appellate courts which speak the final word in most cases and especially with respect to review of fact issues. That is why the issue is so critical to the proper outcome of this case.

Unlike this court which, with few exceptions, passes on only questions of law, intermediate appellate courts are empowered to review questions of law and questions of fact. They do so in both civil cases (CPLR 5501 [c]) and criminal cases (People v Redmond, 225 NY 206; People v Stevens, 104 NY 667; CPL 470.15). Indeed, this unique factual review power is the linchpin of our constitutional and statutory design intended to afford each litigant at least one appellate review of the facts (Cohen and Karger, Powers of the New York Court of Appeals § 109, at 465 [rev ed]).

On the criminal side, however, the history of this unique review power had been the subject of some confusion. For years an appellate determination that the verdict was against the weight of the evidence warranted only the ordering of a new trial, while sufficiency and reasonable doubt deficiencies necessitated the corrective action of dismissal of the criminal charges (see, e.g., People v McCaleb, 25 NY2d 394; People v Klose, 18 NY2d 141; People v Bellows, 281 NY 67; compare, People v Holmes, 52 NY2d 976; People v Robare, 109 AD2d 923). The Criminal Procedure Law revisors recommended and the Legislature enacted a significant clarifying change upgrading the corrective action to dismissal of criminal charges under either standard of review (see, CPL 470.20 [2], [5]; People v Crimmins, 36 NY2d 230; People v Kidd, 76 AD2d 665). The change was justified because, in the words of the drafters, "[t]he People, having had full opportunity to prove their case at trial and having failed to do so, should not be accorded another chance” (Staff Comment to Proposed CPL 240.40, at 328 [1967]).

This case presents a new difficulty. The Appellate Division (125 AD2d 687 [2d Dept], Iv granted 69 NY2d 744) was divided as to whether its review power was limited to a determination of the legal sufficiency of the evidence or whether it should also weigh the evidence and, if appropriate, reverse the judgments based on a factual determination that the verdict was against the weight of the evidence. In upholding the judgments of conviction, a majority of the court articulated the view that their function as an appellate court was not to substitute their judgment for that of the jury on matters of credibility or the weight to be accorded to the evidence presented at trial, but rather to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the defendants’ guilt had been proven beyond a reasonable doubt (id., at 691). Indeed, the majority took exception to the dissent’s conclusion that the guilty verdicts were contrary to the weight of the evidence. "[B]y voting to reverse the judgments of conviction based on apparent inconsistencies in the complainant’s testimony, our dissenting colleague chooses to ignore the well-established legal standards with respect to the scope of appellate review in criminal cases” (id,., at 692; see also, cases cited in the respective opinions).

Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each requires a discrete analysis. For a court to conclude, as the Appellate Division did in this case, that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial (Cohen v Hallmark Cards, 45 NY2d 493, 499) and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.

To determine whether a verdict is supported by the weight of the evidence, however, the appellate court’s dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People ex rel. MacCracken v Miller, 291 NY 55, 62; compare, People v Smith, 63 NY2d 41, 52; see also, Cohen and Karger, Powers of the New York Court of Appeals § 112, at 484 [rev ed]). If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict (CPL 470.20 [2]).

Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury. Great deference is accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor. Without question the differences between what the jury does and what the appellate court does in weighing evidence are delicately nuanced, but differences there are.

Here the Appellate Division, on a plain reading of the majority and dissenting opinions, failed to provide its exclusive review authority which is expressly withheld from the trial court and even from this court. We must, therefore, remit for that court to complete its consideration of the case, including application of its weight of evidence review.

In directing the corrective action in this case, we do not imply that the Appellate Division must manifest its weight of evidence review power by writing in all criminal cases (compare, CPL 470.25 and 470.40). But where the order and writings of the intermediate appellate court manifest a lack of application of that review power which appellants are entitled to, then we reverse and remit.

We have examined the other issues and conclude they are not dispositive or meritorious.

Accordingly, the order of the Appellate Division should be reversed and the case remitted for further proceedings in accordance with this opinion.

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

Order reversed, etc.


source: Caselaw Access Project

author: Titone, J. Simons, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Edward Chapman, Doing Business as Middleman Home Improvement Products Co., Appellant.
    Argued March 24, 1987;
    decided April 28, 1987

      POINTS OF COUNSEL

      Kent V. Moston and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Lawrence J. Schwarz and Anthony J. Girese of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

A waiver of immunity obtained in violation of a Grand Jury witness’ State constitutional right to counsel (NY Const, art I, § 6) is not an effective waiver within the meaning of CPL 190.40 (2) (a). Accordingly, where a Grand Jury witness testifies under such a constitutionally defective waiver, the witness, whether voluntary or compelled, receives the automatic transactional immunity conferred by that statute and cannot thereafter be prosecuted for any matter on which responsive testimony has been given (CPL 50.10 [1]; see, Matter of Rush v Mordue, 68 NY2d 348).

The accusatory phase of the present criminal action began on November 23, 1983, when a felony complaint was filed against defendant, leading to an arraignment at which defendant was represented by retained counsel. Several months after the arraignment, however, defendant’s counsel was relieved by court order, in part because defendant was apparently unable to pay his legal fees.

Having received a forwarded notice that his case would be presented to a Grand Jury, defendant appeared, unrepresented, on the scheduled date and indicated to the Assistant District Attorney handling the matter that he wished to testify. In response to the presiding Judge’s question whether he wished to testify without the advice of counsel, defendant stated only that he was unable to afford an attorney. Rather than pursuing the inquiry, the court shifted subjects, explaining to defendant that he would have to sign an irrevocable waiver of immunity before he would be permitted to testify, that he would then be required to answer every question posed, that his testimony could later be used against him and that he might regret his decision "[d]own the road.” When defendant told the court that he felt that he had to testify to “clear up” the matter, the court simply admonished him not to take the matter "too lightly” and wished him “good luck.” Following this discussion, defendant signed an immunity waiver.

Appearing before the Grand Jury promptly after this colloquy, defendant stated that he had not discussed his decision to testify with an attorney, although he acknowledged that he did understand the significance of the immunity waiver as it was explained to him by the Judge. Defendant also stated, in response to a question, that he had not been aware of his right to have counsel present in the Grand Jury room during his testimony (see, CPL 190.52). Once again, there was no further exploration of whether defendant wished to proceed without counsel or any discussion of the possibility of assigning an attorney if defendant were unable to retain one. Rather, defendant was immediately sworn and asked to resign and swear to the immunity waiver in the Grand Jury’s presence (see, CPL 190.45 [1], [2]). He then testified concerning the incidents that were the subject of the Grand Jury’s inquiry.

Following the Grand Jury’s issuance of an indictment, defendant made a dismissal motion, arguing that his immunity waiver should be deemed ineffective because it was obtained in violation of his right to counsel. The trial court agreed with this position and, concluding that transactional immunity had consequently been conferred, dismissed the indictment without leave to the People to resubmit. On appeal by the People, however, the Appellate Division modified by granting the People permission to seek a new indictment before another Grand Jury. Although that court concurred in the conclusion that the indictment before it was tainted by defendant’s uncounseled immunity waiver, it rejected the contention that the constitutional infirmity rendered the waiver ineffective, resulting in a complete bar to prosecution under the transactional immunity provisions of CPL 50.10 and 190.40. Instead, the court held, it was only the further use of the uncounseled testimony that was prohibited, and the People were entitled to pursue the prosecution if they had sufficient independent evidence of defendant’s guilt. We conclude that the Appellate Division was in error and that its order must be reversed.

Initially, it is undisputed, and indeed is beyond dispute, that the circumstances surrounding defendant’s execution of the immunity waiver and his subsequent Grand Jury testimony constituted a violation of his State constitutional right to the assistance of counsel at every critical stage of the proceeding (NY Const, art I, § 6). Regardless of whether he was actually represented at the time he appeared before the Grand Jury, defendant’s indelible right to counsel had attached when the felony complaint against him was first filed (see, People v Samuels, 49 NY2d 218; cf., CPL 190.52 [conferring waivable right to advice of counsel during testimony before the Grand Jury]), and that right continued throughout the criminal proceeding, notwithstanding the order relieving the specific attorney who had represented him at arraignment. Indeed, since defendant had already been accused of a serious crime, his appearance before the Grand Jury was unquestionably an occasion "when legal advice is most critically needed” (People v Settles, 46 NY2d 154, 164). Accordingly, neither his uncounseled waiver of the right to such legal advice nor his immediately ensuing waiver before the Grand Jury of his statutory right to immunity may be deemed to be valid renunciations of those rights under the State Constitution.

Furthermore, the taint resulting from the absence of counsel was not mitigated by the limited judicial intervention that occurred in this case. Although the Judge presiding over the Grand Jury proceedings informed defendant of the consequences of waiving his right to remain silent, no mention was made of the importance of independent legal counsel or the imprudence of making the decision to appear and testify without first obtaining the advice of a trained, experienced attorney. In light of these omissions, it can hardly be said that the court’s inquiry was sufficiently searching to assure that any waiver of the right to counsel that may have occurred was made intelligently and with full knowledge of the " 'dangers and disadvantages’ ” of forgoing constitutional protection (cf., People v Sawyer, 57 NY2d 12, 21; People v White, 56 NY2d 110). To the contrary, defendant’s evident lack of understanding, as reflected by his statements that he could not afford an attorney and that he was unaware of his right to have the advice of counsel during his testimony, suggests that any waiver may well have been made in ignorance of the protections that the Constitution and the statutes afford (see, NY Const, art I, § 6; CPL 190.52 [l]).

Having concluded that defendant’s State constitutional right to counsel was violated and that his waiver of immunity was the tainted fruit of that violation, we further conclude that the immunity waiver was ineffective for all purposes, including the application of CPL 190.40 (2) (a), the keystone of our modern immunity rules. Enacted to eliminate the confusing thicket of decisional law and overlapping legislative provisions that had evolved both before and after the enactment of the predecessor provision (former Penal Law § 2447, subsequently superseded by Code Crim Proc § 619-c; see, People v Williams, 81 AD2d 418, affd 56 NY2d 916), CPL 190.40 now provides that every Grand Jury witness who gives responsive testimony automatically receives full transactional immunity unless he has "effectively waived such immunity.”

The People have argued that the effectiveness of a waiver under this provision should be determined exclusively by reference to CPL 190.45, which prescribes the formal requisites for immunity waivers and delineates certain specific instances in which such waivers must be deemed ineffective. In essence, the People argue, a waiver is ineffective and transactional immunity is consequently conferred if, and only if, the subscribed waiver was not properly sworn to before the Grand Jury (CPL 190.45 [2]) or a witness whose appearance was compelled was not adequately informed of his right to the assistance of counsel (CPL 190.45 [3]). In all other circumstances, the People contend, the immunity waiver is "effective” within the meaning of the statute, and any defects or improprieties in the manner in which it was procured must be redressed through such constitutionally mandated remedies as suppression or use immunity.

We decline, however, to adopt this restrictive view, since it would leave the voluntary target-witness without meaningful protection. Our State’s immunity statutes were designed to strike a fair balance between the government’s legitimate need to gather evidence and society’s equally compelling need to afford full protection to the witness whose constitutional rights are in jeopardy (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 190.40, at 244-246). Moreover, the statutory rules governing the substitution of immunity for the witness’ constitutional privilege "must be interpreted liberally in order that the individual’s rights are adequately guarded” (People v Williams, 81 AD2d, at 422, supra).

In this context, we conclude that in order to safeguard the rights of individuals who have already been accused, CPL 190.40 (2)’s requirement of an "effective” waiver must be construed to mean a waiver obtained under circumstances that are fully consistent with the witness’ State constitutional right to counsel (see, People v Samuels, 49 NY2d 218, supra; cf., People v Dunbar, 53 NY2d 868). Indeed, in light of the special solicitude with which we have historically treated that right (see, e.g., People v Cunningham, 49 NY2d 203, 207; People v Hobson, 39 NY2d 479; see also, People v Velasquez, 68 NY2d 533, 536-537), it would be anomalous for us now to recognize an effective waiver of the important protections afforded by our immunity statutes without first assuring that the witness’ constitutional right to counsel had been scrupulously honored.

Contrary to the People’s argument and in contrast to the apparent distinction created in CPL 190.45 (3) and 190.52 (l), the State constitutional guarantee of the right to counsel admits of no distinction between voluntary and compelled witnesses. While witnesses whose appearance has been compelled may be the ones most obviously in need of protection, we cannot ignore the equally compelling need to ensure the protection of those who, like defendant, appear voluntarily, perhaps in the hope of exonerating themselves or obtaining leniency through a sympathetic presentation (cf., People v Settles, supra, at 163). Accordingly, where, as here, the right to counsel has already attached by virtue of a previously filed accusatory instrument (see, People v Samuels, supra), the accused’s statutory immunity rights cannot effectively be waived unless the strictures of the State constitutional guarantee have been observed.

In this case, our conclusion that defendant’s waiver of immunity was ineffective because it was obtained in violation of his State constitutional right to counsel compels the further conclusion that the indictment against him should have been dismissed with prejudice. The dissenters’ suggested remedy of suppression is not adequate to redress the constitutional violation that occurred here. Transactional immunity was automatically conferred when defendant testified before the Grand Jury without having executed an effective waiver (CPL 190.40 [2]), and he thereafter could not be prosecuted for "any transaction, matter or thing concerning which he gave evidence” (CPL 50.10 [1]). Since it is undisputed that defendant’s Grand Jury testimony concerned the subject matter of the indictment, the Appellate Division erred in authorizing resubmission of the charges.

For all of the foregoing reasons, the order of the Appellate Division, insofar as it authorized resubmission of the charges to a new Grand Jury, should be reversed and the order of the trial court dismissing the indictment with prejudice reinstated.

Simons, J.

(dissenting). Defendant executed a waiver of immunity and testified before the Grand Jury investigating him, without benefit of counsel, after his right to counsel attached. That being so, I agree with the majority that defendant’s testimony must be suppressed for all purposes and the indictment dismissed (CPL 60.45 [2]; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154). The waiver of immunity was invalid on constitutional grounds and, therefore, defendant was entitled to the prescribed constitutional remedy — suppression and use immunity (see, People v Swanson, 18 AD2d 832; Pitler, New York Criminal Practice Under the CPL § 5.12, at 246-247 [1972]). Transactional immunity is a creature of statute, however, and inasmuch as defendant effectively executed a statutory waiver of immunity, I find no reason in law or public policy to immunize him from further prosecution for the charged crimes by granting him the relief only the statute confers. Accordingly, I would affirm the Appellate Division’s order suppressing defendant’s testimony but permitting the People to seek an indictment from another Grand Jury without using the suppressed testimony.

The parties do not dispute that defendant appeared in court on his own initiative and willingly sought to testify before the Grand Jury. He was presented to the court as a pro se defendant. If the court had inquired further to determine whether defendant’s election to proceed without counsel was knowing and intelligent, that no doubt would have been the end of the matter because defendant’s desire to testify is apparent from the record (see, People v Mitchell, 61 NY2d 580; People v Sawyer, 57 NY2d 12, 21, rearg dismissed 57 NY2d 776, cert denied 459 US 1178; People v McIntyre, 36 NY2d 10, 17). Although the court knew defendant had previously been represented, and advised him of his right to counsel, it did not determine whether he wished new counsel appointed. Nevertheless, the court thoroughly explained the nature and effect of a waiver of immunity and defendant proceeded to the Grand Jury room and swore to the waiver before the Grand Jury. At that time the Assistant District Attorney advised him again of his right to assistance of counsel but defendant did not request that counsel be appointed. Based on this we are asked to rule not only that defendant’s testimony may not be used against him but that he may never be prosecuted for any crime related to matters the Grand Jury was considering because, the waiver having been executed without the advice of counsel, he automatically received transactional immunity.

The concept of immunity is derived from the constitutional right against self-incrimination. The Fifth Amendment of the Federal Constitution and article I, § 6 of the State Constitution, provide in similar language that no person shall be compelled in any criminal case to be a witness against himself. Because of these constitutional protections, the State may not compel testimony from a witness which may be used against him. In many Grand Jury investigations, however, particularly those involving official corruption and organized crime, the testimony of involved persons or potential accomplices is critical to support more serious charges against others. When that is so, the Fifth Amendment right of the witness may be protected by granting him immunity. If the protection accorded is coextensive with the witness’ constitutional right, the witness may be compelled to testify or be subject to civil contempt or imprisonment if he fails to comply. The immunity conferred thus serves the reciprocal purposes of protecting the witness’ Fifth Amendment rights and permitting the Grand Jury to receive necessary testimony from a witness who might otherwise properly refuse to testify, on constitutional grounds. Both the Supreme Court and this court have held that the witness’ constitutional rights are fully protected by use immunity, which precludes the prosecution from using his testimony against him in a subsequent criminal case (Kastigar v United States, 406 US 441, reh denied, 408 US 931; Matter of Anonymous Attorneys, 41 NY2d 506, 509-510; see also, Shales v Leach, 119 AD2d 990).

New York’s present immunity statute, however, provides broader protection. Historically, immunity rights in this State were found in several different unrelated statutes which were often confusing and difficult to harmonize and attempts to apply them frequently produced unintended results. Potential defendants or involved witnesses particularly in Grand Jury investigations, frequently flouted the Grand Jury or frustrated its investigation (see generally, Staff Comments to Proposed New York Criminal Procedure Law § 95.40 [renum CPL 190.40 under current statute], at 150-153 [1967]). The Legislature solved this problem by enacting a unique immunity statute, which substantially expanded a witness’ protection beyond constitutional limits, so that such testimony could be compelled (CPL 50.10, 190.35; see also, CPL 190.40; Lefkowitz v Cunningham, 431 US 801, 809). Under the statute, a witness testifying before a Grand Jury automatically receives transactional immunity unless he executes a waiver (CPL 50.10, 190.35, 190.40). This protection prevents the People not only from using a witness’ testimony to incriminate him, but also prevents the People from prosecuting the witness on any matter related to the transaction about which he has testified (see generally, Pitler, New York Criminal Practice Under the CPL § 5.10, at 240-244 [as to use and transactional immunity generally]). The Legislature has also provided how immunity may be waived and what omissions or defects render the waiver ineffective for purposes of affording the witness the broad protection of transactional immunity (CPL 190.45). Inasmuch as the source of the immunity defendant seeks here is statutory, the validity of his waiver should be judged by statutory requirements. Defendant’s waiver of immunity was effective under these statutory provisions and because it was, he is only entitled to constitutional use immunity.

In judging the validity of the waiver, it is important to note that the statute implementing transactional immunity for Grand Jury witnesses creates three classifications of witnesses: (1) those called by the People; (2) those called by the Grand Jury itself; and (3) defendants or possible defendants (see, CPL 190.50). It provides that all Grand Jury witnesses are entitled to transactional immunity unless immunity is "effectively waived” (CPL 190.40 [emphasis added]). Defendant was not compelled to testify, of course, but willingly appeared before the Grand Jury in an attempt to exonerate himself. He had no right to appear unless he executed a waiver, but once he executed the waiver, the District Attorney was required to permit him to testify (CPL 190.50 [5]). Defendant did execute a waiver and it met the statutory requirements. That the statute also permits any witness, after executing a waiver, to have counsel present in the Grand Jury room and that defendant did not get the benefit of this right is irrelevant (see, CPL 190.52). We are concerned only with the effectiveness of his waiver of immunity. His right to counsel is fully protected by suppression of his testimony.

The grounds for declaring a statutory waiver ineffective are set forth in CPL 190.45 (2), (3) and (4). Those subdivisions provide that a waiver is not valid: (a) if the witness does not swear to it before the Grand Jury (subd [2]); (b) if a witness "called by the people” is deprived of his right to counsel (subd [3]); and (c) to the extent that the witness is questioned about matters outside the scope of a limited waiver (subd [4]).

In this case, defendant executed an unlimited waiver of immunity and swore to it before the Grand Jury. More importantly, defendant was not called by the People (CPL 190.45 [3]). That being so, he was not entitled to the additional statutory right to counsel prior to executing the waiver. The Legislature conferred this right only on witnesses compelled to testify, not on target defendants who volunteer to testify (CPL 190.45 [3]). The language of the statute is specific and if the Legislature did not intend to so limit the right, it could easily have said so. By interpreting CPL 190.45 (3) otherwise, the majority has rendered its first sentence meaningless.

The legislative history supports treating witnesses compelled to appear differently from those who are targets of the investigation and appear to exonerate themselves. As the staff notes make clear, the statutory grant of transactional immunity was not intended to protect target witnesses who appear in an attempt to exculpate themselves. They come before the Grand Jury for their own purposes and presumably they do so only after carefully considering the decision with or without the advice of counsel. The statute was not changed to help them. On the contrary, one of the principal purposes behind the new statute was to make it easier to indict target witnesses, to facilitate obtaining evidence against them by providing a means to "compel testimony from the tainted or accomplice type of witness who would otherwise be able to avail himself of the self-incrimination privilege” (Staff Comments to Proposed New York Criminal Procedure Law § 95-40 [renum CPL 190.40 under current statute], at 152-153 [1967]; see also, Governor’s mem to L 1970, chs 996, 997 [enacting CPL], 1970 McKinney’s Session Laws of NY, at 3140-3141).

Nor is the relief the court grants here necessary as a matter of policy. The majority contends that unless we afford defendant transactional immunity, "the voluntary target-witness [is left] without meaningful protection [and his] constitutional rights are in jeopardy” (majority opn, at 502). Their statement wholly ignores the "meaningful” and substantial protection afforded by the exclusionary rule. This court, more than most others, has been sensitive to the defendants’ right to counsel (see, e.g., People v Knapp, 57 NY2d 161; People v Bartolomeo, 53 NY2d 225; People v Skinner, 52 NY2d 24). When that right has been impaired by improper official action, we have had no difficulty finding an appropriate remedy. Thus, if a statement has been obtained from a defendant without honoring his right to counsel, the statement has been suppressed (see, e.g., People v Samuels, 49 NY2d 218, supra); if a defendant has been tried before a petit jury under circumstances violating his constitutional right to counsel or to appear pro se, a new trial has been granted (People v McDonald, 68 NY2d 1; People v Mattison, 67 NY2d 462, cert denied — US —, 107 S Ct 571; People v Macerola, 47 NY2d 257; see also, People v Sawyer, 57 NY2d 12, supra). Those remedies have been adequate in the past and the majority fails to explain why they are not adequate here.

In sum, there is no constitutional or statutory requirement that we grant transactional immunity and I can find no overriding public policy concern suggesting that we should. That being so, I see no need to go beyond the explicit language of the statute and free defendant from prosecution.

I, therefore, dissent and would affirm the order of the Appellate Division.

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

Order insofar as appealed from reversed and order of Nassau County Court reinstated.

      .Since the court’s inquiry was clearly inadequate in this case, we need not decide whether a truly searching judicial inquiry would have sufficed as a substitute for the presence and independent advice of a retained or assigned attorney at this early pretrial phase of the proceeding (cf., People v Sawyer, 57 NY2d 12).

        .We note that the record does not even support a conclusion that an unequivocal waiver of the right to counsel occurred. Defendant never stated, either before the presiding Judge or the Grand Jury, that he did not want the aid of an attorney. Rather, he merely told the Judge that he was unable to afford one. Far from indicating an unequivocal wish to proceed pro se, this comment suggests that defendant may well have welcomed the advice of counsel had he known that a court-appointed attorney would be provided if he were financially unable to retain one (see, CPL 190.52 [1]).

      .Subdivision (1) of CPL 190.45 requires that the waiver be in writing. Under subdivision (2), even a written waiver is "not effective unless and until it is sworn to before the grand jury”. Subdivision (3) describes the rights of individuals specifically called by the People and asked to execute an immunity waiver, with express provision made for the invalidity of the waiver if those rights are not observed. Finally, subdivision (4) concerns limited waivers, which are invalid to the extent that the questioning exceeds the waiver’s agreed-upon scope.

      .Under CPL 190.45 (3), "[a] person who is called by the people as a witness in a grand jury proceeding and requested by the district attorney [to waive immunity] has a right to confer with counsel before deciding whether he will comply with such request,” and "[a]ny waiver obtained * * * in violation of [that requirement] is invalid and ineffective.” In contrast, under CPL 190.52 (1), "[a]ny person who appears as a witness and has signed a waiver of immunity” is entitled to the assistance of assigned or retained counsel in the Grand Jury room, but no provision is made for mandatory advisement of that right or for invalidation of the waiver if the right is not observed.


author: Per Curiam.

text:
    Rose Gilly, Appellant, v City of New York, Respondent.
    Argued March 16, 1987;
    decided April 30, 1987

      POINTS OF COUNSEL

      Solomon R. Agar for appellant.

      Doron Gopstein, Acting Corporation Counsel (Helen P. Brown and June A. Wittershein of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

The substance of a report prepared by a physician employed by defendant to examine plaintiff, and furnished to her, can be elicited by plaintiff as part of her direct case.

Plaintiff, Rose Gilly, was injured on November 7, 1978 when defendant’s ferryboat, on which she was a passenger, struck a seawall. Plaintiff was thrown on her back and several passengers fell on top of her. She was admitted to the hospital complaining of shortness of breath and chest pains. Defendant’s liability has already been established; only an assessment of damages and comparative fault are at issue in this action.

Prior to trial, defendant retained Dr. John Edson, a cardiologist, to examine plaintiff and report his findings. Dr. Edson’s report, dated October 7, 1982, stated that plaintiff suffered from angina, that the condition was permanent, and that it would be impossible to refute that the condition had been caused or accelerated by the ferryboat accident. A copy of the report was sent to plaintiff’s counsel pursuant to court rules (22 NYCRR 660.11; now 202.17). Plaintiff subpoenaed Dr. Edson to testify as to both his fact findings and his conclusions on the cause of her condition. Prior to the voir dire, it was reported that the doctor did not wish to get involved in the trial but would appear if subpoenaed; at the voir dire Dr. Edson indicated no opposition to relating his findings. On defendant’s motion the trial court precluded his testimony in its entirety. Plaintiff, claiming that her injury resulted in heart disease, sought $500,000 in damages; she was awarded $15,000, and the Appellate Division affirmed the judgment. On appeal to this court, plaintiff contends that the trial court erred in precluding Dr. Edson’s testimony. We agree that error was committed, but only to the extent that the court precluded the substance of Dr. Edson’s report.

In McDermott v Manhattan Eye, Ear & Throat Hosp. (15 NY2d 20) we addressed the related issue of whether a physician-defendant could be called as an expert witness by the plaintiff in a medical malpractice case. We held that he could be, and refused to limit his testimony to "facts within his knowledge” and things he "actually saw and did.” The more enlightened view, we concluded, was that plaintiff should be permitted to examine his doctor-opponent as fully and freely as other qualified witnesses, and that such testimony could include expert opinion (id., at 26-29). We distinguished People ex rel. Kraushaar Bros. & Co. v Thorpe (296 NY 223) — in which we had held that a person may not be required to give an expert opinion involuntarily — noting that the defendant-physician was not an independent, disinterested witness forced to attend the trial merely because he is "accomplished in a particular science, art, or profession” who might be called upon in every case "in which any question in his department of knowledge is to be solved” (id., at 29). Rather, he was already connected to the case. Thus, while the "unwilling witness who is in no way connected with the action” could not be compelled to testify as an expert for the plaintiff, we held in McDermott that the defendant-physician — by virtue of his existing association with the case — could be (id.).

We further noted in McDermott that, in the required retrial of that case, the Judge would undoubtedly be confronted with a separate request by plaintiff "to call as a witness * * * an independent ophthalmologist who had examined her, prior to [the first] trial, at the instance of a defendant” for the purpose of interrogating him solely about "the condition of her eyes and such other facts which he might have ascertained on his examination.” The court did no more than comment that the plaintiff was "certainly privileged to question [the ophthalmologist] to the extent she has indicated” (id., at 30). We had no occasion to, nor did we, consider plaintiff’s right to question that physician as to his findings on the cause of her condition, the issue presented before us.

Here we conclude that a physician in the position of Dr. Edson, who has examined the plaintiff, formulated his findings and had them conveyed to both parties in litigation, should not be barred from relating the substance of his report when called as a witness by plaintiff. Permitting such evidence furthers truth-seeking objectives without engendering the concerns expressed in McDermott (supra) and Kraushaar (supra). First, disinterested persons need not fear being drawn into litigation on limitless occasions because of their distinctions and attainments. Dr. Edson voluntarily involved himself in the case, when he undertook to — and did in fact — examine plaintiff and report his findings regarding her condition, and at trial expressed no objection to relating his findings. Second, the physician is not being compelled to express an opinion against his will, but only to relate conclusions already formulated and fully disclosed (see, Liddy v Frome, 85 AD2d 716; Nielsen v Brown, 232 Ore 426, 444, 374 P2d 896). Finally, there is no danger that by giving this limited evidence the physician would be thrust into an ethical dilemma or pulled apart by competing loyalties (see, Meyer, The Expert Witness: Some Prospects for Change, 45 St John’s L Rev 105, 114). Once a physician’s report has been reduced to writing and served on the adversary, it ceases to be for the exclusive use of defendant. At that point both sides have access to this probative evidence and there is no basis for withholding it from the trier of fact.

In concluding that the evidence should not, as a general matter, be foreclosed, we of course do not negate the discretion that may be exercised by the lower courts in particular cases to protect against abuse, overreaching and undue prejudice to any party.

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial granted.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Alexander taking no part.

Order reversed, etc.


author: Hancock, Jr., J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Hector Millan, Appellant.
    Argued February 11, 1987;
    decided May 7, 1987

      POINTS OF COUNSEL

      John T. McClintock and Norman L. Reimer for appellant.

      Robert M. Morgenthau, District Attorney (Eleanor J. Ostrow and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

The People charged defendant with criminal possession of a weapon solely on the basis of the statutory presumption of possession (Penal Law § 265.15 [3]) arising from the fact that the weapon was discovered in the passenger compartment of the taxicab in which he was riding. We hold that under these circumstances the People’s imputation of constructive possession of the weapon to defendant as the predicate for the crime with which he was charged constituted a sufficient basis for defendant to challenge the police conduct in searching the passenger compartment of the cab. Moreover, irrespective of his right to challenge the search, defendant, as a passenger in the cab, had a right to contest the legality of the stop of the cab and to seek suppression of the weapon as the product of that allegedly unlawful police conduct. On the moving papers presented to it, the suppression court should not have denied suppression without according defendant a hearing on these issues.

I

Defendant seeks a reversal of his conviction for criminal possession of a weapon, third degree. On the evening of June 15, 1984, defendant and two companions, Hector Colon and Anthony Veggacada, were riding in a taxicab near the intersection of 112th Street and 5th Avenue in Manhattan. Plainclothes police officers assigned to the street crime unit and traveling in a yellow medallion taxi directed the driver of defendant’s cab to pull over. The three occupants were ordered out of the passenger compartment and searched without their consent. When the police, in searching the interior of the cab, discovered a gun in a black leather bag resting on the back seat, they placed the passengers under arrest and charged them with its possession. The explanation for the arrest given by the prosecutor, as related in the decision of the suppression court, was that "the police saw [defendant, Colon and Veggacada] seated in the back of a livery cab and approached. The police claimed the [three occupants] made 'suspicious moves’ and, accordingly, the People assert, [they] were ordered out of the cab.” Defendant’s motion to suppress the weapon because of the illegality of the stop and search was denied without a hearing.

In the jury trial which followed, as in the proceedings before the suppression court, there was no evidence that defendant owned the gun or knew of its presence; the only basis for guilt was the statutory rule that the presence of a gun in an automobile "is presumptive evidence of its possession by all persons occupying such automobile at the time [it] is found” (Penal Law § 265.15 [3]). After defendant was convicted of the gun possession charge, the Appellate Division affirmed with a divided court (118 AD2d 236).

The contentions of defendant which we address concern the propriety of the court’s denial of his motion to suppress the

weapon without a hearing. Noting that defendant disavowed any interest or claim of a privacy right in the bag and that "automatic standing” is no longer the rule in New York (People v Ponder, 54 NY2d 160), the suppression court held that defendant lacked standing to contest the search of the passenger compartment. It concluded that his rights as a passenger in a taxicab were no greater than the rights of the passenger in the private automobile involved in Rakas v Illinois (439 US 128) and reasoned that defendant could, therefore, claim no right of privacy in the area searched. It also determined that there was an insufficient showing that the seizure of the gun resulted directly from the stop. Thus, his claim that the stop had been unlawful could provide no basis for suppression.

The Appellate Division majority, in its opinion, agreed that Rakas was controlling on the question of defendant’s right of privacy in the passenger compartment of the cab and rejected defendant’s argument that under Rios v United States (364 US 253) "a taxicab passenger has greater standing to object to a search of the taxicab than the passengers in Rakas had to contest the search of a private car” (118 AD2d 236, 242, n 3, supra). It also agreed that there was no ground for suppression of the gun as the product of the allegedly unlawful stop, finding on its review of the trial record a sufficient showing "that the taxicab in which defendant was a passenger passed a red light and that the stop was justified” (118 AD2d 236, 244, supra).

For reasons stated hereafter, there should be a modification. Defendant should have the right to a suppression hearing at which he may, if he chooses, contest the legality of the conduct of the police both in making the initial stop and in searching the interior of the cab.

II

The critical factor in our analysis of defendant’s right to challenge the search is that the charge against him was founded only on the statutory presumption arising from the facts that he was riding in the passenger compartment of the cab and that the gun was subsequently found in the passenger compartment. We hold simply that the People may not predicate defendant’s guilt solely on the constructive possession of the weapon attributed to him as a passenger in the cab based on the presumption (Penal Law § 265.15 [3]) and simultaneously deprive him of the right to challenge the search. In a recent decision, People v Mosley (68 NY2d 881), we applied the same rationale where the police based their claimed probable cause for arresting defendant on their discovery of a starter pistol on the person of his companion, Mackie. In holding that defendant could question the lawfulness of his arrest by challenging the asserted basis for it — the search of his companion — we stated that "[i]nasmuch as the People rel[ied] on the discovery of the starter pistol on Mackie as the basis for the arrest of defendant — that defendant constructively possessed the weapon concealed on Mackie’s person — defendant ha[d] standing to contest the frisk of Mackie” (id., at 883; emphasis added).

The holding here is in no way inconsistent with our decision in People v Ponder (54 NY2d 160, supra). In Ponder we adopted the Supreme Court’s ruling in United States v Salvucci (448 US 83) abrogating the so-called "automatic standing rule” established in Jones v United States (362 US 257), under which a defendant charged with a possessory crime was permitted to challenge the legality of the search without regard to whether he had an expectation of privacy in the premises searched and without alleging any possessory interest in the items seized. Here defendant does not ground his right to contest the legality of the search on any asserted right to possess the gun or on any claim that merely because he was accused in the indictment of a crime of possessing it he should have "automatic standing”. His asserted right to question the legality of the search rests entirely on the circumstances giving rise to the presumption.

Our holding that defendant had a right to challenge the search of the taxicab on constitutional grounds is based on our analysis of applicable Federal and State authorities (see, United States v Salvucci, 448 US 83, 88, supra; Rios v United States, 364 US 253, 262, n 6, supra; People v Mosley, 68 NY2d 881, supra; People v Ponder, 54 NY2d 160, supra) and on our conclusion that to deny a defendant a hearing under these circumstances would be repugnant to the requirements of fair play which have "evolved through centuries of Anglo-American constitutional history”, particularly as applied to the relationship "between the individual and government” (AntiFascist Comm. v McGrath, 341 US 123, 162 [Frankfurther, J., concurring]; see, Wardius v Oregon, 412 US 470, 475-476; Malinski v New York, 324 US 401, 414-415; Lisenba v California, 314 US 219, 236; People v Isaacson, 44 NY2d 511, 520). The rule the People would have us sanction is this: the government, through its agents, may search a taxicab and, upon finding a gun, use the legal fiction of constructive possession to prosecute all passengers, conscious or not of the gun’s existence, and yet deny those it accuses a right to question the actions of its agents in conducting the search. Such a rule offends fundamental tenets of fairness inherent in New York criminal jurisprudence (see, NY Const, art I, § 6; People v Acevedo, 69 NY2d 478; People v Mosley, 68 NY2d 881, supra; People v Isaacson, supra; People v Brown, 40 NY2d 381) and we reject it.

Ill

Before the suppression court defendant urged a separate and independent basis for excluding the gun: that irrespective of the legality of the police actions in searching the cab, their actions in stopping it were unjustified and the gun should be suppressed as the product of the unlawful stop. As a passenger, defendant had standing to contest the stop of the vehicle and he, therefore, should have been given a hearing on this issue as well.

The exclusionary rule generally bars from trial all "physical, tangible materials obtained either during or as a direct result of an unlawful invasion” (Wong Sun v United States, 371 US 471, 485; People v Bethea, 67 NY2d 364; People v Johnson, 66 NY2d 398; People v Bigelow, 66 NY2d 417; People v Gokey, 60 NY2d 309; People v Elwell, 50 NY2d 231; cf., People v Arnau, 58 NY2d 27). As noted in People v Stith (69 NY2d 313), there are circumstances when the exclusionary rule will not be applied: when, for example, the evidence "is gained from an independent source” (Silverthorne Lbr. Co. v United States, 251 US 385, 392), or when "the detrimental consequences of illegal police action become so attenuated” that the taint of the initial misconduct is dissipated (Brown v Illinois, 422 US 590, 609 [Powell, J., concurring in part]).

Here, from the information before the suppression court, it appears that the police actions in stopping the cab, ordering the defendant to get out, searching him without his consent, searching the back of the cab, opening the bag and finding the gun constituted one continuous chain of events. There was nothing before the suppression court to show that the taint of the allegedly improper stop had become attenuated, that the gun would have been independently discovered or that for any other reason the gun was not " 'come at by exploitation of that illegality’ ” (Wong Sun v United States, supra, at 488, quoting Maguire, Evidence of Guilt, at 221 [1959]). Under Federal and New York constitutional law it was error to deny a hearing on the issue of the stop.

Contrary to the People’s contentions the moving papers were minimally sufficient to warrant a hearing. In any event, as noted by the dissent at the Appellate Division (118 AD2d 236, 247, supra) it is clear from the suppression court’s written decision that its reason for denying the motion "had nothing to do with the sufficiency of defendant’s papers, but, rather, had to do with defendant’s alleged lack of standing to challenge the seizure of the gun” and that "any objection to the sufficiency of the papers [was] waived.”

The order of the Appellate Division should be modified and the case remitted to Supreme Court, New York County, for a suppression hearing and in the event that defendant prevails thereon, for dismissal of the indictment; in the event that the People prevail, the judgment should be amended to reflect that result. As so modified, the order appealed from should be affirmed.

Bellacosa, J.

(dissenting). My vote to affirm this gun possession conviction is based on simply articulated differences from the majority.

I do not believe that good practice, controlling precedents or sound constitutional imperatives require a suppression hearing when a taxicab passenger asserts an insufficient legal and factual basis for recognized standing to challenge the stop of the cab or to be accorded an expectation of privacy in the contents of a zippered bag in the back passenger compartment of the cab.

Defendant alleged merely that the taxicab was stopped "despite the fact that they [the police] had no reason to believe that any of the occupants of the vehicle had committed a crime or were committing a crime at the time of the arrest” and that the police "recovered a gun from the rear passenger area of the cab”. The suppression court, with only this boilerplate language before it, denied the suppression motion without a hearing.

The specific facts and circumstances leading up to the arrest were not developed until trial. Late one evening defendant Millan and two companions were passengers in the back seat of a livery cab traveling in an area suffering from a reputation for robberies of taxicabs. Two police officers assigned to the Taxi Robbery Squad stopped the cab because they believed that the cab driver was signaling for help by a recognized technique of driving at an excessive speed and passing through a red light. As the two officers approached the cab, the passengers made "furtive” movements and one was overheard stating, "You don’t do things like that, be cool”. The police ordered the three men out of the cab and patted them down. One officer then looked in the back seat and recovered a zippered bag. When asked who owned the bag, none of the passengers responded. The bag was opened and contained a loaded semiautomatic pistol. The three men were charged with its possession.

I agree that the court may not use post mortem facts developed at a trial to infuse life or legitimacy into a previously decided suppression matter (People v Gonzalez, 55 NY2d 720; see also, People v Dodt, 61 NY2d 408, 417; People v Wilkins, 65 NY2d 172, 180; People v James, 67 NY2d 662). The only relevancy in reciting these facts of the case is to show that had defendant fulfilled his pleading burden at the suppression stage, there would have been a hearing with ample facts, in my view, to deny suppression.

In People v Gruden (42 NY2d 214), this court concluded that "[generally hearings are not available merely for the asking [and] [w]e therefore hold that the court may summarily grant a motion to dismiss unless the papers submitted by the prosecutor show that there is a factual dispute which must be resolved at a hearing” (supra, at 217). In People v Weaver (49 NY2d 1012), we specifically applied the Gruden holding in the suppression context, and in People v Lomax (50 NY2d 351) we applied the legal reasoning behind Gruden’s holding to the summary denial of a defendant’s motion to dismiss without an evidentiary hearing.

Even if we assume that defendant derived standing from his meager papers to challenge the stop of a cab within which he was a passenger, the conclusory allegations contained in his omnibus motion were insufficient at the next step of analysis to establish a factual issue requiring a hearing on the merits. The defendant’s allegation that the taxicab was stopped despite the fact that no crime was being committed overlooked the totally legitimate possibility that the vehicle could have been stopped for a traffic violation based upon a very minimal factual basis supporting reasonable suspicion (People v Ingle, 36 NY2d 413, 414-415).

It is my view that a regulated vehicle on a city street, under the spare facts presented to the suppression court, may be stopped within constitutional limitations subject to standing challenge only by the driver in this case and not by all the passengers.

The majority goes further however, and again I respectfully disagree, because even if the stop were to be deemed subject to challenge by this defendant he does not automatically acquire a legitimate, recognized, reasonable expectation or entitlement to privacy to the compartment or contents in the back of that cab. I had thought that was plainly decided in the People’s favor under Rakas v Illinois (439 US 128) and sundry other cases (see, e.g., United States v Salvucci, 448 US 83; People v Rodriguez, 69 NY2d 159; People v David L., 56 NY2d 698, cert denied 459 US 866; People v Hunter, 55 NY2d 930; People v Ponder, 54 NY2d 160; People v Osmond, 109 AD2d 897). The majority casts considerable doubt on these cases by failing in its effort to distinguish some of them and by ignoring others of them completely.

Finally, the majority seems to be rebelling unnecessarily against this cogent line of precedents that are delicately balanced on respect for search and seizure rights, a respect which I fully share, and on an appreciation of the reasonableness component embedded in that right. That reasonableness aspect compels my conclusion on the particular facts of this case that defendant did not do enough at the pleading outset of this prosecution to warrant a suppression hearing on standing as to the stop or the search.

The irony for the People is that had defendant done so he would surely have lost on the merits, but by holding back he successfully finesses that into an unreasonable victory at the appellate stage.

Chief Judge Wachtler and Judges Simons, Kaye and Ti-tone concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in a separate opinion; Judge Alexander taking no part.

Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      .Penal Law § 265.15 (3) states in pertinent part: "The presence in an automobile, other than a stolen one or a public omnibus, of any firearm * ** * is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon * * * is found”.

      .The facts as related here are essentially those set forth in the decision of the suppression court denying defendant’s motion and in the moving papers before that court. The court held no hearing and made no findings. Our statement must be viewed as a recitation of allegations only.

      .In its jury charge during the trial of defendant, Colon and Veggacada for weapon possession, third degree, the court stated: "Seems to me that there’s absolutely no other evidence in the case as to Millan other than the presumption which would permit you to find Millan guilty”.

      . The Appellate Division’s use of the trial testimony for the purpose of supporting the determination of the suppression court in denying the motion was contrary to established precedent (see, e.g., People v James, 67 NY2d 662, 664; People v Dodt, 61 NY2d 408, 417; People v Gonzalez, 55 NY2d 720, 721, cert denied 456 US 1010). The papers before the suppression court contain no reference to any traffic violation or other conduct of the cab driver which would constitute a reason for the stop.

      .Because our decision that defendant had a right to challenge the search of the cab depends upon the fact that he was charged with constructive possession of a weapon under the presumption (Penal Law § 265.15 [3]) and because our holding that he has a right to contest the search of the cab is limited to that situation, it is unnecessary to reach the issue addressed in the briefs and at argument whether, under other circumstances, defendant as a passenger in a cab would have had a right of privacy in the passenger compartment (see, Rakas v Illinois, 439 US 1281). We do not decide that issue.

      .The People’s arguments that defendant had no standing to challenge the search of the cab have no bearing on defendant’s right to contest the stop. As pointed out by Professors LaFave and Israel, Rakas "should not be taken to mean that persons who are 'merely passengers’ will never have standing” and, as two concurring and four dissenting Justices in Rakas recognized, "a passenger does have standing to object [to alleged police misconduct]. If either the stopping of the car or the passenger’s removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit” (1 LaFave and Israel, Criminal Procedure § 9.1, at 726; emphasis in original).

      .Our decision to modify and to require a hearing on the legality of both the stop and the search, while based on our analysis of Federal constitutional law, rests equally on independent State grounds: that defendant’s rights under our State Constitution (NY Const, art I, §§ 6, 12) were violated (see, Michigan v Long, 463 US 1032, 1041-1042; People v Stith, 69 NY2d 313, 316, n).


author:
Kaye, J.
      Bellacosa, J.

text:
    The People of the State of New York, Respondent-Appellant, v Daniel Gallagher, Appellant-Respondent.
    Argued March 18, 1987;
    decided May 7, 1987

      POINTS OF COUNSEL

      Nathan R. Sobel and Freda S. Nisnewitz for appellant-respondent.

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent-appellant.
   OPINION OF THE COURT

Kaye, J.

Where a defendant is charged with a single homicide, in an indictment containing one count of intentional murder and one count of depraved mind murder, both counts may be submitted to the jury, but only in the alternative.

After an all-night St. Patrick’s Day celebration involving the consumption of large quantities of alcohol, defendant — a veteran New York City police officer — shot and killed a fellow police officer. Defendant was charged in a single indictment with two counts of murder in the second degree. The first count accused him of intentional murder (Penal Law § 125.25 [1]), the second charged him with depraved mind murder (Penal Law § 125.25 [2]). Prior to submitting the case to the jury, the Trial Judge informed counsel of his intention to charge both murder counts as well as manslaughter in the first degree (Penal Law § 125.20 [1]) as a lesser included offense of intentional murder, and manslaughter in the second degree (Penal Law § 125.15 [1]) as a lesser included offense of depraved mind murder. Defense counsel objected on the ground that such a charge would permit the jury to return two guilty verdicts — one under each count of the indictment— and requested that the murder counts be charged in the alternative, thereby allowing no more than a single verdict of guilty. The court refused. The jury retired for deliberations and, consistent with the Trial Judge’s instructions, returned a verdict convicting defendant of intentional murder (as charged in the first count of the indictment) and reckless manslaughter (the lesser included offense charged under the second count). Defendant was sentenced to 15 years to life on the murder count, and 4 to 12 years for manslaughter, to be served concurrently.

A divided Appellate Division upheld the trial court’s actions, but in the interest of justice modified the judgment by reversing the manslaughter conviction and vacating that sentence, on the theory that defendant should not be punished twice for the same criminal act (see, People v Perez, 45 NY2d 204, 209). We now determine that it was error not to charge the two counts in the alternative, and therefore reverse defendant’s conviction and order a new trial.

One who acts intentionally in shooting a person to death— that is, with the conscious objective of bringing about that result (Penal Law § 15.05 [1]) — cannot at the same time act recklessly — that is, with conscious disregard of a substantial and unjustifiable risk that such a result will occur (Penal Law § 15.05 [3]). The act is either intended or not intended; it cannot simultaneously be both. Thus, where the shooting (the act) and the death (the result) are the same, a defendant cannot be convicted twice for the murder, once for acting "intentionally” and once for acting "recklessly” (see, People v Brown, 32 AD2d 760, affd, without opn 27 NY2d 499).

It follows, therefore, that the two second degree murder counts in the present indictment — intentional murder and depraved mind murder — are inconsistent counts as defined in CPL 300.30 (5), because guilt of one necessarily negates guilt of the other. A finding that defendant committed intentional murder by killing his victim with the conscious objective of causing his death precludes the inconsistent finding that defendant at the same time committed depraved mind murder by recklessly and thus unintentionally killing that same victim under circumstances evincing a depraved indifference to human life. By no rational theory could the jury have found defendant guilty of both crimes.

CPL 300.40 (5) provides that "[i]f an indictment contains two inconsistent counts, the court must submit at least one thereof’ and that if "a verdict of guilty upon either would be supported by legally sufficient trial evidence, the court may submit both counts in the alternative and authorize the jury to convict upon one or the other depending upon its findings of fact. In such case, the court must direct the jury that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other.” Thus, if the court elects to charge the two inconsistent counts, it must do so in the alternative; it may not permit the jury to find the defendant guilty of both. Here the Trial Judge properly charged both counts but improperly refused to submit them in the alternative. This error permitted the jury to sidestep its responsibility of deciding which (if either) mental state defendant possessed at the time of the shooting. Because the jury found defendant guilty of both intentional and reckless homicide, it is impossible to determine what if anything the jury decided on the issue of defendant’s mental state at the time of the offense. A new trial is therefore required.

We reject the People’s contention that because defendant, as a result of the Appellate Division modification, now stands convicted of only one crime — intentional murder — any prejudice flowing from a double verdict has been eliminated and the order below should be affirmed. It is not for the Appellate Division in the first instance to determine whether defendant acted intentionally or recklessly at the time of the crime. That is the jury’s function. Because the jury here failed to make the critical determination of defendant’s mental state, an omission that cannot be cured by the Appellate Division’s exercise of interest of justice jurisdiction, the error has not been rendered academic.

This result, reached by the application of simple logic and common sense as well as statutory and decisional law, is not— as the People suggest — precluded by the law relating to lesser included offenses within a single count of an indictment. The People point particularly to People v Glover (57 NY2d 61), People v Green (56 NY2d 427) and the "kaleidoscopic” degrees of mental culpability found in Penal Law § 15.05 (People v Green, 56 NY2d, at 432, supra), urging that this court has recognized that where two crimes requiring the same act and result differ only as to the requisite mental state, it is impossible to commit the crime requiring the higher mental state without concomitantly committing the lesser crime (id.; CPL 1.20 [37]). Such an argument, however, overlooks the quite different context of that rule. Lesser included offenses of a single count must be charged in the alternative. The accused by definition cannot be found to have had more than one of the mental states on the kaleidoscope of culpable mental states, and the trier of fact must determine which one is applicable. As we made clear in Green, that rule as applied to lesser included offenses was adopted in part to benefit the accused — enabling the trier of fact to extend mercy by providing a less drastic choice than acquittal or conviction of the crime charged — as well as the State — preventing an empty prosecution where some element of the crime charged was not made out (id., at 433).

The mere statement of the rule and its rationale make plain its inapplicability to the present situation. Here the jury was not asked to find one mental state or the other, as in the case of lesser included offenses that must be charged in the alternative (see, CPL 300.50 [1]). Rather, it was permitted to find two. Where there is but one shooting and one death, it follows that allowing two convictions can be no favor or benefit to the accused; it confers an unintended advantage on the prosecution, enabling the People to secure a double conviction instead of simply protecting against an empty prosecution; and it allows the jury to avoid determining the key issue of mens rea.

In view of the result reached, we do not consider the alternative theory advanced by defendant that depraved mind murder is an "inclusory concurrent count” of intentional murder (CPL 300.40 [3] [b]). Additionally, because a new trial is required, we need not and do not pass on the additional trial errors alleged by defendant.

The People’s cross appeal taken from the Appellate Division’s reversal of the reckless manslaughter conviction must be dismissed because it was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to * * * modification” (CPL 450.90 [2] [a]). Thus, only the indictment for intentional murder in the second degree is left for further proceedings.

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

Bellacosa, J.

(concurring). I concur in the result reached by the majority but for different reasons. While the inconsistent verdict rationale is attractive and I am certain more readily understandable to most people, it nevertheless in my view impinges on the carefully drawn definitional integrity of our complementary legal codices, the Criminal Procedure Law and the Penal Law, especially CPL 300.30 (5) and Penal Law § 15.05 (3). Moreover, it undermines the particularly apt reasoning of our own recent cases (People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427; People v Perez, 45 NY2d 204).

The facts and the issue are clearly stated in the majority opinion. Simply stated, there was one death but there were two homicide charges of equally serious rank, each of which, however, has a different culpable mental state. Common sense and understanding may be defied by the seeming incompatibility of an individual simultaneously intending an act and recklessly causing that same act, but the heart of this case is whether the Penal Law definitions and the Criminal Procedure Law provisions concerning instructions to juries countenance some legal reconciliation of those facially conflicting concepts.

I believe that the correct analysis and application of the many converging statutes, concepts and policies require a reversal and further proceedings on the surviving count of the indictment because the instructions to the jury were wrong in this case. We all reject the argument that CPL 300.40 (3) (a) authorizes a Trial Judge to instruct the jury that it may return a verdict of guilt on both of two equally ranked murder charges with respect to one homicide. That statute should not be construed so narrowly as though in some literal vacuum, but must be applied in relation to other statutes, policies and evidence in particular cases. My differences with the majority center on my conclusion that by conceptual analogy to People v Glover (57 NY2d 61, supra), People v Green (56 NY2d 427, supra) and People v Perez (45 NY2d 204, supra), the depraved indifference murder count, even though of equal degree of crime classification severity, is nevertheless of a lesser degree of culpability to intentional murder for concurrent count jury instruction purposes because the lesser culpable mental state, recklessness (see, People v Register, 60 NY2d 270, 278), is subsumed under the highest culpable mental state known to the criminal law — intent. Thus, by realistic application of statutes woven together in a complex, technical web, I conclude that depraved indifference murder, for purposes of in struction to the jury, is a lesser category of crime which qualifies as an inclusory concurrent count even though the classification degree, for purposes of punishment upon conviction, is equivalent as a legal fiction to intentional murder. The importance of this analysis is that defendant then becomes entitled to have the jury instructed in the alternative with respect to the two theories of his criminal homicidal responsibility (CPL 300.40 [3] [b]). In addition to the lesser included count alternative instructions which the defendant got, he was also entitled to have the jury told that he could be found guilty of either intentional murder or depraved indifference murder or some lesser count of either one.

I cannot accept the majority’s view that intentional murder and depraved indifference murder are inconsistent counts under CPL 300.30 (5). That subdivision provides that "[t]wo counts are 'inconsistent’ when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other” (emphasis added). Under the pertinent Penal Law definitions, an offender commits intentional murder when his conscious objective is to cause the death of another (Penal Law § 15.05 [1]) and commits depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). The culpable mental state for depraved indifference murder is recklessness (People v Register, 60 NY2d 270, supra), which is in turn defined as a person acting "when he is aware of and consciously disregards a substantial and unjustifiable risk that [a] result occur or that such circumstance exists” (Penal Law § 15.05 [3]). These controlling definitions do not in my view lend themselves to the facile mutual exclusivity which the majority gives them. The guilt of one offense does not "necessarily negate” guilt of the other because the carefully drawn language does not by its words so state, and because there may be circumstances, where in the split second it takes to form and hold a culpable mental state, that a person can intend an act and simultaneously be "aware of and consciously disregard” a risk. Intent and conscious disregard may be compatible rather than inconsistent in the workings of the human mind and under the statute. And those are the words of the statutes themselves.

It should be noted, of course, that the majority’s reference to People v Brown (32 AD2d 760, affd without opinion 27 NY2d 499) is not helpful because Brown was decided prior to the adoption of the Criminal Procedure Law and the Penal Law, whose new definitions control and must be construed in order to decide this case on a correct rationale.

A useful exercise to cross-check the validity of my analysis is to view defendant’s criminal homicidal liability as if it were on two charts. Each chart has a top count with lesser included counts under each top count. On chart 1, the top count is intentional murder with lesser included counts going down to reckless manslaughter in the second degree. Everyone agrees that with respect to the counts on this chart the instructional choices must be given in the alternative, that is, the jury can select only one guilty count from chart 1. So the jury in this case selected the top count — intentional murder in the second degree. But chart 2’s top count of depraved indifference murder is also ranked as murder in the second degree and it, too, contains lesser included counts which were charged to the jury in the alternative, as everyone would agree is correct. In this respect, the jury selected not the top count for guilt but the lesser included offense of reckless manslaughter in the second degree. The nub of the People’s argument on this point is that the jury could find guilty counts on chart 1 and on chart 2 at whatever level or degree. Defendant’s argument, on the other hand, is that he is entitled to have the jury select only one guilty count from either chart 1 or chart 2. There is more legal and common sense in defendant’s argument, not simply because there is only one homicide victim, but because otherwise the jury could have found defendant guilty twice for the identical crime against a single victim, e.g., reckless manslaughter in the second degree as a lesser of intentional murder and, again, reckless manslaughter in the second degree as a lesser of depraved indifference murder. These surely do not result in an inconsistent verdict for they are identical, but they should have been offered in the alternative only under the inclusory concurrent count theory and provision of the Criminal Procedure Law.

In People v Green (56 NY2d 427, supra), we concluded that second degree assault was a lesser included offense of assault in the first degree, notwithstanding the fact that the degree of culpability specified for each differs from the other. In so holding, we rejected the prosecution’s "overly mechanical reading” of the term "lesser included offense” which would have allowed a charge down only when "under every set of circumstances, commission of the greater offense necessarily involved commission of the lesser”. Instead, we recognized that the various culpable mental states (i.e., intentional, knowingly, reckless and criminal negligence) "involve 'fine gradations along but a single spectrum of culpability’, the lower mental states being necessarily included in the higher forms of mental culpability” and "that the kaleidoscopic nature of the varying degrees of mental culpability warranted the broader view of the statutory definition” (People v Green, supra, at 432-433, citing People v Stanfield, 36 NY2d 467, 473). By parallel reasoning, a similarly flexible interpretation with respect to determining what are inclusory or noninclusory concurrent counts for purposes of alternative instructions to the jury would make good sense and good law in the framework of> our statutory codifications. This would also help to bring some order to the necessarily intricate workings of statutes which sought to catalogue the myriad situations that can occur, recognizing that some situations will never precisely fit (see, e.g., People v Mussenden, 308 NY 558; People ex rel. Maurer v Jackson, 2 NY2d 259; Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 300.40, at 578; CPL 300.50, at 609-610).

Even though I concur in the result which the majority reaches, I am compelled to express my separate rationale because the conclusory interpretation of the verdict as "inconsistent” does not correctly synchronize the careful definitional infrastructure of two massive codifications.

Chief Judge Wachtler and Judges Simons and Hancock, Jr., concur with Judge Kaye; Judge Bellacosa concurs in result in a separate opinion; Judges Alexander and Titone taking no part.

On defendant’s appeal, order reversed and a new trial ordered. The People’s appeal dismissed.