author: Jasen, J. Wachtler, J.

text:
    The People of the State of New York, Respondent, v Sheldon Sanders, Appellant.
    Argued March 31, 1982;
    decided May 18, 1982

      POINTS OF COUNSEL

      Irving Anolik for appellant.
    I. Defendant-appellant was denied a fair trial and a constitutional right of “confrontation” by the insidious use of tape recordings between the deceased Abram Brown and the informer Goldberg, on the theory that Brown’s conversations with Goldberg constituted “declarations against penal interest” which became admissible as evidence-in-chief against appellant. Thus, for the first time in the State of New York, alleged “declarations against penal interest” of a third party were admitted as evidence-in-chief to inculpate an appellant rather than exculpate him. Finally, it is clear that there was absolutely no waiver by appellant of any of these points. II. The “lynch-pin” of the entire prosecution’s case was the tape recordings between Goldberg and the deceased Brown. Since Brown had died long before the trial commenced, appellant Sanders was obviously deprived of an essential constitutional right of confrontation by being precluded from examining Brown as to the significance of his statements in the tape recordings and to ask other important questions concerning what was said. The court, however, admitted these statements of Brown contained in the tape-recorded conversations as “declarations against penal interest” for the purpose of convicting Sanders. The use of these tape-recorded, unsworn declarations of Brown, represent the first use of such declarations against penal interests to inculpate a defendant. (People v Settles, 46 NY2d 154; People v Maerling, 46 NY2d 289; People v Brown, 26 NY2d 88; People v Geoghegan, 51 NY2d 45; Ohio v Roberts, 448 US 56; Dutton v Evans, 400 US 74; Pointer v Texas, 380 US 400; Barber v Page, 390 US 719; Berger v California, 393 US 314; Bruton v United States, 391 US 123.) III. There was insufficient evidence to have warranted an indictment, and insufficient evidence to have warranted presenting this case to a jury for deliberation. There was no testimony corroborating the statement of defendant that he had given Brown $250, nor was there any corroboration of Brown himself who “testified” as an unsworn witness through tape recordings admitted on the theory of “contrary to penal interest.” In short, there was no proof that any crime was ever qommitted by Sanders. (Lent v Shear, 160 NY 462; People v Colascione, 22 NY2d 65; People v Court, 43 NY2d 817; People v Insogna, 28 AD2d 771; People v Murray, 40 NY2d 327; Smith v United States, 348 US 147; People v Sweeney, 213 NY 37; People v Cohen, 223 NY 406; People v Clougher, 246 NY 106.) IV. Since the main “witness”, Abram Brown, was deceased, and thus could not be cross-examined, it was gross error to have prohibited the defense from subpoenaing Justices Schwartz and Hughes and Mr. Sobell, the law secretary to Justice Schwartz, particularly in view of the fact that the trial record contains numerous references to alleged contacts claimed by Brown with these individuals, in the tapes which were recorded. This denial of confrontation was tantamount to a denial of a fair trial, even without the added factor that Brown was unavailable as a witness due to his prior death. (People v Gilliam, 45 AD2d 744, 37 NY2d 722; Alderman v United States, 394 US 165; Douglas v Alabama, 380 US 415; Pointer v Texas, 380 US 400; Dennis v United States, 384 US 855; United States v Seeger, 180 F Supp 467; United States v Davenport, 312 F2d 303, 374 US 841; Snyder v Massachusetts, 291 US 97; Malloy v Hogan, 378 US 1; Solesbee v Balkcom, 339 US 9, 926.) V. Since appellant had been subpoenaed to appear before a Grand Jury and had notified the prosecutor and Goldberg that he was represented by counsel, it was therefore grave error to have solicited a conversation between Goldberg and appellant on June 9, 1977, long after Brown had been arrested, after defendant had appeared in the prosecutor’s office, after Goldberg had testified before the Grand Jury and following the recognition that defendant was a target of the Grand Jury proceeding and was represented by a lawyer. It was not a spontaneous utterance. (People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154; People v Maerling, 46 NY2d 289; People v Cunningham, 49 NY2d 203; People v Skinner, 52 NY2d 24; Massiah v United States, 377 US 201; Hensley v Municipal Ct., 411 US 345; People v Pitt, 78 AD2d 545; People v Pinzon, 44 NY2d 458.) VI. The trial court committed other errors. (People v Sher, 38 NY2d 600; Singleton v Lefkowitz, 583 F2d 618; People v Foy, 32 NY2d 473; People v Bell, 38 NY2d 116; People v Bretagna, 298 NY 323; People v Chaplin, 8 AD2d 286.) VII. It was error for the court to permit the adduction of evidence of an uncharged crime, namely, that Investigator Beecher of the District Attorney’s office had apparently been involved in a bribe transaction with Brown, a transaction admittedly not involving Sanders in any way, shape or form. (People v Cook, 42 NY2d 204; People v Trent, 71 AD2d 866; People v Sorenson, 70 AD2d 892; People v Allweiss, 48 NY2d 40.) VIII. Át most, Sanders was a casual facilitator. No conspiracy was proved in the case at bar, be it unilateral or otherwise, since appellant had no stake in the outcome; had nothing to gain from the result; and no evidence was introduced that he participated in an agreement. (People v Schwimmer, 66 AD2d 91, 47 NY2d 1004; United States v Peoni, 100 F2d 401; United States v Andolschek, 142 F2d 503; United States v Falcone, 109 F2d 579, 311 US 205; People v O'Farrell, 175 NY 323;
      People v Hooghkerk, 96 NY. 149; People v Mullens, 292 NY 408; People v McGee, 49 NY2d 48; People v Bell, 48 NY2d 913; United States v Hysohion, 448 F2d 343.)

      Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Schwimmer, 66 AD2d 91, 47 NY2d 1004; People v Daniels, 37 NY2d 624; People v McGee, 49 NY2d 48; People v Salko, 47 NY2d 230; People v Rastelli, 37 NY2d 240; People v Cona, 49 NY2d 26; People v Berger, 52 NY2d 214.) II. Brown’s statements were properly received because they were made during a joint criminal enterprise, and were against Brown’s penal interest. (People v Salko, 47 NY2d 230; United States v Zane, 495 F2d 683; People v Luciano, 277 NY 348, 278 NY 624, 305 US 620; People v Liccione, 63 AD2d 305; People v Berkowitz, 50 NY2d 333; People v Settles, 46 NY2d 154; People v Geoghegan, 51 NY2d 45.) III. The court-acted within its discretion when it refused to permit defendant to call Justice Schwartz; when it refused to let the defense examine a part of Goldberg’s office file in the Lehman case; and when it refused to adjourn the trial for the defense to contact Lehman. (People v Gilliam, 45 AD2d 744, 37 NY2d 722; People v Stahl, 53 NY2d 1048; People v Singleton, 41 NY2d 402; People v Foy, 32 NY2d 473.) IV. Defendant’s May 23, 1977 conversation with Goldberg did not contain any reference to any uncharged crime committed by defendant. (People v Ortiz, 54 NY2d 288; Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1.) V. Defendant’s statements during the June 9,1977 conversation were not obtained in violation of his right to counsel, and, in any event, provide no basis for reversal. (People v De Mauro, 48 NY2d 892; People v Charleston, 54 NY2d 622; People v McGee, 49 NY2d 48; United States v White, 401 US 745; People v Samuels, 49 NY2d 218; People v Carmine A., 53 NY2d 816; People v Ermo, 47 NY2d 863; People v Dean, 47 NY2d 967; People v Baldi, 54 NY2d 137; People v Maerling, 46 NY2d 289.) VI. The court’s various rulings were correct and did not deprive defendant of a fair trial. (People v Marks, 6 NY2d 67; People v Ashwal, 39 NY2d 105; People v Ruiz, 52 NY2d 929; People v Bretagna, 298 NY 323; People v McGee, 49 NY2d 48.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are asked to decide whether the recorded statements of a third party inculpating the defendant in the crimes charged were properly admitted into evidence under the coconspirators’ exception to the hearsay rule. In resolving this issue, we must determine whether the use of these recorded statements violated defendant’s constitutional right “to be confronted with the witnesses against him.” (US Const, 6th Arndt; NY Const, art I, § 6.)

In the late summer months of 1976, Dr. Wallace B. Lehman, a Nassau County orthopedic specialist, contacted his attorney, Paul Goldberg, and informed him that a hearing was to be held by the Nassau County Medical Society to determine whether to suspend the doctor’s authority to treat patients under the Workers’ Compensation Law. Goldberg agreed to represent Dr. Lehman at the hearing. Although the Medical Society found that the charges against Dr. Lehman were without substance, the chairman of the Workers’ Compensation Board, Arthur Cooperman, determined that the doctor had violated various provisions of the law and accordingly announced the suspension of Lehman’s authority to treat patients under the law effective December 31,1976. Dr. Lehman, through his attorney, then decided to seek judicial review of this determination by way of an article 78 proceeding.

On December 15, 1976, Goldberg attended a dinner meeting sponsored by the New York State Society of Orthopedic Surgeons. After the meeting ended, Goldberg was introduced to the society’s counsel, defendant Sheldon Sanders. At that time, it was agreed that Goldberg and the defendant would appear as cocounsel in the Lehman v Cooperman proceeding.

On December 23,1976, Goldberg instituted an article 78 proceeding in Supreme Court, New York County, seeking to set aside the determination suspending Dr. Lehman’s authority to treat workers’ compensation patients. In addition to filing the petition, Goldberg applied for an order staying the administrative determination. After filing these papers, Goldberg had a telephone conversation with the defendant in which the defendant told Goldberg that he had spoken to his “friend” and that his “friend” had told him he thought Goldberg’s request for a stay would be granted. In an earlier conversation, defendant had told Goldberg that he had a “friend” who was “one of the chief law assistants” at Supreme Court, New York County.

Goldberg’s request for a stay was granted on December 29, 1976. Approximately two weeks later, Goldberg again spoke with the defendant over the telephone. In this conversation, the defendant told Goldberg that he knew the stay would be granted because he paid his “friend who worked in Supreme Court, New York County” $250. When Goldberg exclaimed “You what?”, the defendant repeated that he had paid his “friend” $250 to obtain the stay.

After initially discussing the matter with certain members of the Committee on Grievances of the New York City Bar Association, Goldberg met with the New York County District Attorney on January 19,1977. Based on the information about the defendant provided by Goldberg, the District Attorney began an investigation into corruption in the New York County Supreme Court. Goldberg agreed to assist the District Attorney in this endeavor, and consented to having all his conversations pertaining to the investigation recorded.

On January 21, 1977, Goldberg, equipped with a recording device, met with defendant in his Nassau County office. At this meeting, defendant told Goldberg about a “friend” of his named “Abe Brown” who was “one of the chief opinion clerks in Special Term in New York County.” According to defendant, Brown was a “crook” who could give them anything they wanted “down there”, for example: “If you want to go to the Appellate Division, go to the Appellate Division. You want the motion lost in six months, it will be lost in six months. You want it decided in three weeks, it will be decided in three weeks.” Defendant stated that he had “dealt with Abe before” and, in fact, had called Brown concerning the Lehman v Cooperman proceeding. Defendant confirmed that, upon an earlier visit to Brown’s house, he had paid Brown $250 in connection with Goldberg’s earlier application for a stay. Defendant also stated that Brown wanted $500 for “the rest of it.” When asked by Goldberg what Brown would do for this money, defendant responded: “We win * * * on the grounds that the Chairman was arbitrary and capricious.” Although the defendant was of the opinion that Goldberg would win the case even without paying Brown, defendant stated that, if it was his case alone, he “would do everything.” Defendant also cautioned Goldberg that their “clients haven’t got the slightest idea of any of this bullshit.” Later in the same conversation, defendant returned to the subject of Abram Brown and reminded Goldberg that he had “laid out $250” and suggested that this amount be added to their client’s bill. Goldberg replied that he would “think about it.”

Goldberg next spoke with the defendant on January 27, 1977. Defendant asked Goldberg whether he had decided to enlist the services of Brown. Goldberg replied that Brown “might be useful”, particularly in light of a motion Goldberg had made the day before to strike the answer that had been filed in the Lehman v Cooperman proceeding. Defendant agreed to contact Brown and arrange a meeting with Goldberg. Defendant told Goldberg that he would not be present at this meeting because he did not “want to be a broker in the deal” and that he did not “want any fall offs” or “commissions”.

Over the next few days, defendant made a number of unsuccessful attempts to contact Brown by telephone. On February 2, 1977, Goldberg called defendant’s office and was told by his secretary that defendant had left Brown’s telephone number, that Goldberg should call Brown, and that Goldberg should tell Brown that the defendant had told Goldberg to call. Goldberg followed defendant’s instructions and a meeting was scheduled with Brown the following day at Brown’s office. At this meeting, Brown told Goldberg that he was familiar with the case of Lehman v Cooperman since he had reviewed the original papers when they were filed and because he had discussed the matter with the defendant. Brown informed Goldberg that he “got the stay” by speaking to the “guy working with” the Judge who granted it. Brown then advised Goldberg that the best course would be to delay the litigation, and told Goldberg that he would see what he could do in terms of losing the papers that had been filed. After leaving Brown, Goldberg called the defendant and told him about the meeting with Brown. When told by Goldberg that Brown had not mentioned “a number or an amount”, defendant said: “All right he’s afraid of you * * * I’ll talk to him tonight, I’ll tell him that he can have any transaction he wants directly with you.”

On February 4, 1977, defendant told Goldberg that he had spoken with Brown and that he would take care of everything. Defendant told Goldberg to “do what [Brown] tells you” and that the plan was to move the case “to the right people”. Later that same day, Goldberg sent the defendant a check in the amount of $125. This check was accompanied by a note in which Goldberg indicated that the $125 represented his “share of the disbursements” that they discussed earlier. According to Goldberg’s testimony at trial, the “disbursements” referred to the $250 that defendant had paid to Brown to obtain the stay. Goldberg’s $125 check was later returned in canceled'form, bearing the defendant’s indorsement.

On February 8, 1977, Brown informed Goldberg that he had spoken with the “guy” who was handling Goldberg’s motion to strike the answer in the Lehman v Cooperman proceeding and that there would be no problem. Two days later, the motion to strike was granted. On February 15, 1977, Brown again spoke with Goldberg and assured him that the granting of the motion to strike the answer would delay the proceeding until spring. Brown then suggested that they ought to give the “guy” who handled the matter a “certificate” of “one unit * * * American currency” and that “applicable taxes, handling charges and all that” could be taken care of at a later date. The next day, Goldberg went to Brown’s office and paid him $100 in cash.

In the conversations between Brown and Goldberg in the weeks that followed, Brown told Goldberg that the Lehman v Cooperman proceeding would continue to be delayed and that “everything’s progressing according to plan.” In one of these conversations, Brown warned Goldberg not to call him at his office unless Goldberg kept the conversation “cryptic”. On March 23, 1977, Goldberg called the defendant and the defendant asked him how the “new deal” was working out. After Goldberg said “fine”, the defendant proclaimed that it was “a good connection”.

On May 11, 1977, Goldberg telephoned the defendant and told him that a cross petition had been filed by their adversary seeking to remove the Lehman v Cooperman proceeding to the Appellate Division. Defendant replied that Goldberg should “keep it in the Supreme Court” and “[l]et it drag” because he thought Goldberg had “a good situation down there.” Later that day, Goldberg called Brown and informed him about the attempt to remove the proceeding from Supreme Court. Brown also told Goldberg that he would be “better off down here” since there was “more control over the situation.” The next day, Brown was told by Goldberg that Brown’s “cousin” thought it best to keep the proceeding in Supreme Court and that his “cousin” was awaiting Goldberg’s decision.

Abram Brown was arrested on May 13, 1977. Ten days later, defendant told Goldberg over the telephone that it was “very important” for them to get together as soon as possible to discuss a matter involving their case. Defendant refused to talk with Goldberg over the telephone because he was concerned about the line being tapped. That night, Goldberg met the defendant outside his office building. Defendant asked Goldberg if he was “wired” and proceeded to frisk him, but was unsuccessful in locating the recording device hidden on Goldberg’s person. After alluding to Brown’s predicament, defendant said to Goldberg: “[T]he only thing that you and I have to be concerned about — I don’t think it’s a concern if nobody knows anything — is that $125 check you sent me for disbursements.” Defendant also assured Goldberg that the only people they had to worry about were each other. Defendant also asked Goldberg whether he had told another undercover agent by the name of “Beecher” that “me [the defendant] and Abe had a, you [Goldberg] and Abe had a transaction.” Goldberg replied that he had not told Beecher about their dealings with Brown.

In the weeks that followed, defendant attempted to reach Goldberg by telephone on several occasions. On June 9, 1977, Goldberg left a telephone number with defendant’s secretary. The number given by Goldberg was that of a telephone located in the wireroom of the District Attorney’s office. Later that evening, defendant called Goldberg at this number. After discussing the pending investigation by the Grand. Jury into the activities of Abram Brown, defendant requested that he and Goldberg meet so that their stories would be “consistent”. Goldberg told defendant that, in light of the investigation, they should not be seen together. Goldberg also stated that he planned to answer the Grand Jury’s questions. Defendant replied that, although he was fearful of losing his license to practice, he too would tell the District Attorney that he “had a dealing with Abe Brown” and that Goldberg “reimbursed [defendant] for it * * * or part of it.”

Defendant was indicted for conspiracy in the third degree (Penal Law, former § 105.05), three counts of bribery in the second degree (Penal Law, § 200.00) and one count of criminal facilitation in the second degree (Penal Law, former § 115.00). Because Abram Brown had died shortly after his arrest, his recorded conversations with Goldberg were admitted into evidence, over objection at defendant’s trial as statements made in the course and furtherance of a conspiracy. The jury found defendant guilty of conspiracy to commit bribery and two counts of bribery in the second degree. Defendant was sentenced to concurrent three-year indeterminate terms on the two bribery counts and to 90 days’ imprisonment on the conspiracy count. The Appellate Division unanimously affirmed defendant’s convictions, without opinion, and leave to appeal was granted by an Associate Judge of this court.

Defendant contends, among other things, that Brown’s recorded statements should not have been admitted into evidence because they did not qualify as declarations of a coconspirator. Defendant further asserts that even if Brown’s statements otherwise satisfy the requirements of this exception to the hearsay rule, the use of these declarations as evidence against him violated his constitutional right of confrontation. We disagree.

In this State, it has long been settled that the declarations of one coconspirator made in the course and furtherance of a conspiracy are admissible against all other coconspirators as an exception to the general rule against hearsay. (People v Berkowitz, 50 NY2d 333, 341; People v Salko, 47 NY2d 230,237-238; People v Rastelli, 37 NY2d 240,244, cert den 423 US 995; see, also, McCormick, Evidence [2d ed], § 267, pp 645-646; Richardson, Evidence [10th ed — Prince], § 244.) The coconspirators’ exception is predicated primarily on the theory of vicarious admission, to wit: parties engaged in a criminal partnership are bound by one another’s declarations to the same extent that a principal is bound by the declarations of his agent. (People v Salko, supra, at p 237; cf. People v McGee, 49 NY2d 48, 57 [overt act of one coconspirator attributable to other to establish offense of conspiracy].) However, before evidence can be admitted against a defendant under this hearsay exception, the People must establish, by prima facie proof, the existence of a conspiracy between the declarant and the defendant “without recourse to the declarations sought to be introduced.” (People v Salko, supra, at p 238.)

Applying these principles to the facts of this case, we conclude that, as an evidentiary matter, the trial court did not abuse its discretion by admitting Brown’s recorded statements under the coconspirators’ exception to the hearsay rule. A review of the record reveals, among other things, that the defendant, while acting as cocounsel in the Lehman v Cooperman proceeding, not only discussed the case with Brown on various occasions, but by his own admissions paid Brown $250 in order to obtain favorable treatment in connection with the stay application. In addition, defendant was the individual who told Goldberg that the proceeding could be won by paying Brown an additional $500. Defendant also arranged the initial meeting between Brown and Goldberg, and thereafter called Brown in order to make certain that the Lehman v Cooperman proceeding would receive the appropriate treatment. Beyond this, defendant told Goldberg to follow Brown’s instructions, that “[everything [would] be taken care of”, and that Brown’s plan was to move the case to the “right people”. In short, independent of the recorded statements made by Brown, defendant’s conversations with Goldberg alone contain prima facie proof of the existence of a joint criminal enterprise between the defendant and Brown to improperly influence the outcome of a case for profit. That being so, the statements made by Brown in .the course and furtherance of that conspiracy were properly admitted into evidence against the defendant.

Having established that Brown’s statements were properly admitted into evidence under the coconspirators’ exception to the hearsay rule, it becomes necessary to resolve the remaining question whether the use of these statements at trial was violative of defendant’s constitutional right of confrontation. In our view, there was no impairment of defendant’s right to confront the witnesses against him.

Both the Federal and State Constitutions guarantee an accused the right at trial “to be confronted with the witnesses against him.” (US Const, 6th Amdt; NY Const, art I, § 6; see Pointer v Texas, 380 US 400, 406.) If applied literally, this right would require the exclusion at trial of all out-of-court statements where the declarant was unavailable for cross-examination. Yet, the confrontation clause has never been interpreted in such a way as to mandate the wholesale abrogation of the hearsay exceptions at a criminal trial. (Ohio v Roberts, 448 US 56, 63; Dutton v Evans, 400 US 74, 80; Pointer v Texas, 380 US 400, 407, supra.) Indeed, various types of extrajudicial statements have been recognized as admissible evidence notwithstanding the absence of an opportunity to confront and cross-examine the declarant. (E.g., Mattox v United States, 156 US 237, 243-244; People v Corey, 157 NY 332, 347-348 [dying declarations]; People v Del Vermo, 192 NY 470 [spontaneous declarations]; Dutton v Evans, 400 US 74, supra; People v Salko, 47 NY2d 230, 241, supra [statements of coconspirator]; People v Sugden, 35 NY2d 453, 460; People v Nisonoff, 293 NY 597, 601-603 [business and public records].)

While the Supreme Court has recognized that “hearsay rules and the Confrontation Clause are generally designed to protect similar values” (California v Green, 399 US 149, 155) and “stem from the same roots” (Dutton v Evans, 400 US 74, 86, supra), the court has also been quick to acknowledge that the two are not entirely equatable. The confrontation clause is, therefore, something more than a mere “codification of the rules of hearsay and their exceptions as they existed historically at common law.” (California v Green, supra, at p 155.) Nevertheless, the court has continuously declined the invitation to adopt any definitive standard that would govern the relationship between the confrontation clause and the various exceptions to the hearsay rule. (See Ohio v Roberts, 448 US 56, 66, n 9, supra.)

In its most recent excursion into this area, the Supreme Court outlined a two-pronged approach for determining whether evidence, admissible under an exception to the hearsay rule, may be received without violating the confrontation clause. First, the hearsay declarant must be “unavailable” at the time of trial. Second, the statement to be admitted must bear “indicia of reliability” sufficient to “ ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement’ ” even in the absence of cross-examination. (Ohio v Roberts, supra, at pp 65-66 [quoting California v Green, 399 US 149, 161, supra].) The court also observed that “[Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” (Ohio v Roberts, supra, at pp 66.)

Although the coconspirators’ exception has been part of the settled law of this State for quite some time (e.g., People v Davis, 56 NY2d 95; Cuyler v McCartney, 40 NY 221), we need not and do not adopt in this case a rule by which every extrajudicial statement qualifying under this exception to the hearsay rule is admissible at a criminal trial notwithstanding the constitutional right of confrontation. On the other hand, defendant has not advanced any reason which would cause us to recognize a State constitutional right of confrontation broader than the Sixth Amendment guarantee as interpreted by the Supreme Court. We confine ourselves, therefore, to deciding the case before us.

Applying the two-pronged test of Ohio v Roberts (supra) to the facts of this case, no person can be more “unavailable” for cross-examination than one who has died prior to trial. Furthermore, the circumstances surrounding Brown’s statements provided the jury with the “indicia of reliability” necessary for a proper evaluation of the truth of these declarations even without the aid of cross-examination.

In the first place, Brown’s conversations with Goldberg were memorialized on tape. As a result, there was no question at trial that he actually uttered the statements in issue. Second, Brown had personal knowledge concerning the matters about which he spoke, and there is no possibility that his statements were based on faulty recollection. Third, at the time these statements were made, Brown had no motive to lie since he believed that he was speaking in confidence to a cohort engaged in a joint criminal enterprise. (Cf. Chambers v Mississippi, 410 US 284, 300; Dutton v Evans, 400 US 74, supra; People v Salko, 47 NY2d 230, supra.) Fourth, Brown’s statements were independently corroborated, to some extent, by defendant’s conversations with Goldberg, as well as by the events that transpired during the Lehman v Cooperman proceeding. Finally, the fact that these extrajudicial statements directly implicated Brown in a joint criminal enterprise provides additional assurance of their trustworthiness. (See Chambers v Mississippi, supra, at pp 300-301.)

In short, given the clear necessity of using the tapes due to Brown’s death and in view of the independent “indicia of reliability” surrounding his declarations, the admission into evidence of these recorded statements did not violate defendant’s constitutional right of confrontation. To paraphrase somewhat, “the possibility that cross-examination of [Brown] could conceivably have shown the jury that the statements], though made, might have been unreliable was wholly unreal.” (Dutton v Evans, 400 US 74, 89, supra.)

While defendant asserts a variety of other contentions in support of reversal, only one requires a brief discussion. Prior to the recording of defendant’s conversation with Goldberg on June 9, 1977, defendant had retained counsel in connection with his appearance before the Grand Jury investigating Brown’s activities, and this fact was conveyed to both the District Attorney and to Goldberg. Under these circumstances, the recorded statements of June 9 were taken in violation of defendant’s right to counsel (see People v Skinner, 52 NY2d 24) and, therefore, the conversation should have been suppressed.

Contrary to the People’s assertion, the defendant did not waive his right to judicial determination of this claim since he made a pretrial motion to suppress all the recorded conversations. True, a motion to suppress is, by statute, “the exclusive method of challenging the admissibility of evidence upon the grounds specified in setion 710.20” (emphasis supplied), and, in the absence of such a motion, a defendant “waives his right to judicial determination of any such contention.” (CPL 710.70, subd 3.) One of the grounds for suppression specified in CPL 710.20 is that the evidence sought to be admitted consists of or describes a statement by the defendant “involuntarily made, within the meaning of section 60.45, to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him.” (CPL 710.20, subd 3.) A statement is “involuntarily made” when, among other things, it is obtained “in violation of such rights as the defendant may derive from the constitution of this state”. (CPL 60.45, subd 2, par [b], cl [ii] [emphasis supplied].) Thus, absent a motion to suppress, there is no error to be reviewed on appeal. Here, although defendant’s motion to suppress was predicated on the ground that the conversations were obtained as the result of an illegal wiretap and even though the right-to-counsel claim was never raised at the trial level, this claim is so fundamental that it may be raised for the first time on appeal. (See, e.g., People v Carmine A., 53 NY2d 816, 818; People v Ermo, 47 NY2d 863, 865.)

Nevertheless, we conclude that any error occasioned by the failure to suppress defendant’s statements of June 9 was harmless beyond a reasonable doubt. The record contains overwhelming proof of defendant’s guilt. Moreover, contrary to defendant’s suggestion, this was not the only conversation in which he admitted his involvement with Brown. In fact, in the conversations of early January, 1977, and of January 21, 1977, both occurring prior to defendant retaining counsel, defendant told Goldberg that he had paid Brown $250 in connection with Goldberg’s pending stay application. These admissions, coupled with the other references to Brown throughout the conversations between defendant and Goldberg, all of which were taped prior to defendant retaining counsel, clearly established defendant’s involvement with Brown beyond any doubt. Defendant’s statement on June 9 to the effect that he “had a dealing with Abe Brown” was merely cumulative for it was, at most, the mere reiteration of a fact that had already been made abundantly clear to the jury by the other untainted conversations and evidence properly received at trial. Under these circumstances, there is no reasonable possibility that the erroneous admission of the June 9 conversation contributed to defendant’s convictions. (See People v Crimmins, 36 NY2d 230, 237; see, also, Milton v Wainwright, 407 US 371; see, generally, Kamisar, La Fave and Israel, Modern Criminal Procedure [5th ed], pp 809-818.)

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

Wachtler, J.

(dissenting). In my view a new trial is required because the prosecution should not have been permitted to bolster its case by the use of statements it had improperly obtained from the defendant on June 9, 1977.

I can understand why the court may be inclined to give the issue brief mention and apply a harmless error rule. The point was not properly presented at trial and the defendant’s brief in this court leaves the impression that there is nothing in the record to support the contention but the conclusory statements of counsel. Nevertheless the constitutional principle involved is considered so fundamental that statutes generally requiring that a point be preserved for review (CPL 470.05, subd 2) and that suppression issues be raised by a motion to suppress (CPL 710.70, subd 3) are inapplicable. The issue need not be preserved (e.g., People v Samuels, 49 NY2d 218, 221) and thus need not be raised in any particular manner (cf. People v Charleston, 54 NY2d 622, and see Gabrielli, J., concurring). In fact, we can consider it even when it has not been raised on appeal (People v Carmine A., 53 NY2d 816). All that is required is that there be sufficient facts in the record to permit adequate review (see, e.g., People v De Mauro, 48 NY2d 892, 893; People v Charleston, supra).

A review of the record in this case shows that after Brown’s arrest the defendant retained an attorney to represent him and attempted to reach Goldberg by phone. Goldberg did not return any of these calls but informed the prosecutor’s investigators of them. They instructed him to tell the defendant that he could reach Goldberg at a certain number which was actually an unlisted number for a phone located in the prosecutor’s office. When the defendant called Goldberg back at that number the conversation was recorded. The transcript of the recording shows that it began with a discussion of the fact that the defendant had previously retained an attorney and that those working for the prosecutor were well aware of it. During the conversation the defendant admitted his involvement with Brown.

Thus the case does not involve a mere technical application of the embattled exclusionary rule, nor does it involve second-guessing the necessarily hasty conduct of police officers on the street. Here the investigation was initiated and conducted throughout by members of the prosecutor’s staff who, knowing the defendant had retained counsel, not only permitted their undercover agent to discuss the case with the defendant, but actually encouraged the conversation and arranged that it would occur at a place where it could be recorded for later use at trial. We are all agreed that the prosecutor’s conduct violated the State constitutional right to counsel.

Nevertheless the majority is to affirm on the ground that the error is harmless. However no case is cited, and I know of none, in which this court has held that the use at trial of a statement obtained in violation of the defendant’s State constitutional right to counsel has been held to be harmless.

In the past we have noted, and it should be obvious, that an admission is a unique type of evidence. Although physical evidence and statements made during the course of-a crime may provide strong, if only circumstantial evidence of guilt, nothing so conclusively establishes guilt as the defendant’s own acknowledgment of his involvement made after the crime has been completed (People v Jones, 47 NY2d 528, 534). We have noted that an admission made at this stage is a “legal bombshell” (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 440) which is most likely to affect the jury’s verdict (People v Jones, supra). We have held that if the statement has been illegally obtained, its use at trial requires reversal even when we have also expressly found that the other evidence of the defendant’s guilt is “overwhelming” (People v Bevilacqua, 45 NY2d 508, 511, 515).

The evidence in this case is not so extraordinary as to call for a different result. The primary witness against the defendant was a dead man, Abe Brown, whose veracity had to be determined by the jury on a bare record. The other principal witness, Goldberg, did not actually witness the alleged crimes, and was only able to testify that he heard the defendant say that he had a “friend” at court and occasionally mentioned Brown at a time when the briberies were allegedly being committed. Although the prosecutor now urges that this testimony alone was sufficient to convince the jury of the defendant’s involvement with Brown, he obviously did not feel at trial that he could do without the statements the defendant made after Brown’s arrest, in which the defendant so clearly acknowledged his relationship with Brown and the crime then under investigation (see, e.g., People v Jones, supra, at p 534). Even when several persons have witnessed the defendant’s commission of the crime and he has been arrested with evidence of the crime in his possession we have been unable to conclude beyond a reasonable doubt, that his confession did not contribute to the verdict (People v Jones, supra). The evidence in the case now before us is no more compelling.

Thus the conviction should be reversed and a new trial ordered.

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

Order affirmed.

       Brown’s recorded statements were also admitted into evidence as declarations against his penal interests. (See People v Maerling, 46 NY2d 289, 295-299; People v Settles, 46 NY2d 154,166-167; New York Proposed Code of Evidence, § 804, subd [b], par [3]; see, generally, Richardson, Evidence [10th ed — Prince], §§ 255-266.) Inasmuch as the admission of Brown’s statements can be sustained under the coconspirators’ exception, we do not address the applicability of any other hearsay exception to the facts of this case.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    Rector, Church Wardens and Vestrymen of St. Bartholomew’s Church in the City of New York, Respondent, v Committee to Preserve St. Bartholomew’s Church, Inc., et al., Appellants.
    Argued May 11, 1982;
    decided May 18, 1982

      POINTS OF COUNSEL

      Gerald D. Fischer for appellants.
    I. Appellants did not stipulate to be bound by the order of Special Term dated November 24, 1981 defining the electorate, nor to waive their right to appeal therefrom. (Columbia Broadcasting System v Roskin Distrs., 31 AD2d 22, 28 NY2d 559; Matter of Washington Ave. Baptist Church, 215 App Div 529.) II. Special Term disenfranchised many members of the church by its erroneous interpretation of section 43 of the Religious Corporations Law. (Matter of Jones v Gallo, 37 AD2d 793; Matter of Eve v Mahoney, 45 AD2d 945.) III. The meeting of December 18, 1981 should have been enjoined since basic requisites of Democratic fairness and equal access to the electorate were denied to appellants. IV. A new vote is required by reason of the closeness of the vote and the possibility that the erroneous determination by the lower court of voter qualifications could have affected the outcome. (Matter of McGuinness v De Sapio, 9 AD2d 65; Matter of Kelly v Cohen, 255 App Div 787; Bramley v Miller, 270 NY 307.)

      Paul Windels, Jr., Kenneth W. Greenawalt, Raymond T. Munsell and Todd B. Sollis for respondent. I. Under the circumstances in which Special Term’s rulings were issued, the parties are bound by the determination as to voter eligibility and voting procedures and cannot complain of the election result. (Baron v Lombard, 71 AD2d 823, 50 NY2d 896; Matter of McGuinness v De Sapio, 9 AD2d 65; Gonzalez v Archbishop, 280 US 1; Serbian Orthodox Diocese v Milivojevich, 426 US 696; Matter of Williams, 57 Misc 327; Matter of Anthony v Cardin, 91 Misc 2d 506; Rector, Churchwardens & Vestrymen of Church of Holy Trinity, Brooklyn v Manufacturers Trust Co., 18 Misc 2d 761, 9 AD2d 932, 10 AD2d 628; Kroth v Congregation Chebra Ukadisha Bnai Israel Mikalwarie, 105 Misc 2d 904; Bernstein v Salvatore, 62 AD2d 945.) II. The court below properly refused to overturn Special Term’s denial of appellants’ last-minute application to enjoin the vote. (Long Is. Oil Terms. Assn. v Commissioner of N. Y. State Dept, of Transp., 70 AD2d 303; Eidelberg v Steinberg, 6 AD2d 895.) III. All of the individual appellants voted at the meeting and no member of the church who was qualified to vote was disenfranchised.
   OPINION OF THE COURT

Wachtler, J.

On this appeal a committee of church members (Committee) seeks to set aside a church election authorizing the sale of certain church property. It is contended that the procedures employed were not in accordance with the law although they comported with the interpretation of Special Term prior to the election. The Appellate Division found no basis for setting aside the election but granted the Committee leave to appeal to this court on a certified question as to the correctness of its order.

The underlying dispute involves the sale or long-term lease of a portion of the real property belonging to St. Bartholomew’s Church in Manhattan. The transaction is opposed by a group of parishioners who have formed the defendant “Committee to Preserve St. Bartholomew’s Church Inc.” In December, 1980 the church authorities commenced an action to enjoin the group from using that name. They also sought to impress a constructive trust on any funds solicited under that name. The Committee responded with two counterclaims: (1) to impress a constructive trust on funds intended for the Committee and (2) to require the church authorities to convene a special meeting to vote on a proposed resolution to amend the by-laws. Under this proposal no sale of church property could be made unless a majority of the church members voted to approve the sale.

After the court granted a preliminary injunction prohibiting the Committee from using the disputed name, the name was changed by mutual consent, thus terminating the first cause of action. The court also granted summary judgment to the defendants on the second counterclaim and directed the church to hold an election on the proposed resolution.

The church authorities appealed this order to the Appellate Division and sought a stay. The Appellate Division denied the stay but directed that the appeal be expedited.

In the meanwhile, the church had agreed to a letter of intent with a developer concerning the proposed leasehold which required the church to obtain, within a limited period, final ecclesiastical and church member approval of the transaction. Faced with this time stricture the church authorities decided to submit the proposed sale to the parish membership; however, on the eve of the vote the Committee sought and obtained from Justice Greenfield an order enjoining the election on the ground that the church authorities had failed to comply with the prior order directing them to hold an election on the proposed bylaw.

The church authorities then applied to have the injunction vacated. At a conference before Justice Greenfield, by stipulation of the parties and with his approval, the text of a proposed by-law amendment requiring a vote of the parish for authorization of the disposition of the church property was approved, and the vestry thereafter amended the by-lav/ accordingly. During their appearance before Justice Greenfield, the church authorities and the Committee agreed that he should resolve their remaining disputes concerning the scheduled election. This agreement was made orally in chambers and was not subsequently entered on the record. However, in his decision Justice Greenfield noted that the parties had stipulated that “the ruling of this court would dispose of the issues pertaining to church election matters” and proceeded to prescribe the guidelines for voter qualifications. The court also vacated the order enjoining the election and refused to sign a further injunction when the Committee claimed that it had been denied access to certain membership information.

Neither side contested the court’s determination of voter qualifications prior to the election. Indeed, in a letter informing the church members of the court’s decision the Committee proclaimed a victory, announced the voter qualifications as determined by the court and urged all those qualified to vote in the election to do so. At the election held in December, 1981 the balloting was conducted in the manner prescribed by Justice Greenfield and the majority of the members voted approval of the sale.

The Committee then appealed to the Appellate Division claiming the election should be set aside, not because of any failure to comply with the procedures ordered by Justice Greenfield, but on the ground that the procedures established by the court violated subdivision 6 of section 43 of the Religious Corporation Law as made applicable by the by-law amendment. The Appellate Division found no basis for setting aside the election nor do we under the unusual circumstances of this case.

In this case it is clear that all parties were mindful of the fact that a determination had to be reached as soon as possible. In order to insure an expeditious resolution of their dispute they agreed to submit the controversy to Justice Greenfield prior to any sale or election and to comply with his determination. In accordance with this agreement the court quickly resolved the dispute and, more important, the parties accepted the court’s determination and actually conducted the election in accordance with the guidelines the court had prescribed. It was only after the Committee lost the election that it claimed that the procedures employed violated the law.

At this stage the Committee should not be permitted to raise this contention. As far as its rights are concerned it is sufficient to note that the election was conducted in accordance with Justice Greenfield’s ruling, which the parties had actively sought, agreed to abide by, and did in fact adopt as the operative guidelines with respect to this particular election. In short the parties charted their own course and the Committee cannot now seek tó change the rules merely because it has been disappointed by the outcome of the election (cf. Stevenson v News Syndicate Co., 302 NY 81, 87; Cullen v Naples, 31 NY2d 818, 820; Martin v City of Cohoes, 37 NY2d 162, 165-166).

Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

Order affirmed, with costs, and question certified answered in the affirmative.

       In the companion appeal the Appellate Division reversed and dismissed the defendant’s second counterclaim calling for an election on the proposed by-law. An appeal taken to this court purportedly as of right was dismissed for nonfinality.


author: Fuchsberg, J.

text:
    In the Matter of Ricky Ralph M., an Infant, by Marjorie W., His Guardian and Parent, Appellant. Onondaga County Department of Social Services, Respondent.
    Argued March 24, 1982;
    decided May 18, 1982

      POINTS OF COUNSEL

      Charles E. Blitman, George T. Dunn and Gerald T. Barth for appellant.
    Appellant is not an unfit parent. (Stanley v Illinois, 405 US 645; Matter of Malpica-Orsini, 36 NY2d 568; Matter of “Male F.”, 97 Misc 2d 505; Caban v Mohammed, 441 US 380; Matter of Dickson v Lascaris, 53 NY2d 204.)

      Ira S. Dubnoff and James H. Hughes for respondent.
    I. The instant appeal presents no question of law reviewable by this court. (Matter of Hofbauer, 47 NY2d 648; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482; Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1; Matter of Rothko, 43 NY2d 305; Simon v Electrospace Corp., 28 NY2d 136; Matter of City of New York [Fifth Ave. Coach Lines], 22 NY2d 613; St. Agnes Cemetery v State of New York, 3 NY2d 37.) II. The order of the court below regarding unfitness has a sound and substantial basis in the testimony. (Matter of Sanjivini K., 47 NY2d 374; People ex rel. Anonymous v Anonymous, 10 NY2d 332; Matter of Anonymous, 104 Misc 2d 985.) III. The order of the court below will not be overturned unless it lacks a sound and substantial basis in testimony. (Matter of Corey L v Martin L, 45 NY2d 383; Matter of Ray A. M., 37 NY2d 619; Bunim v Bunim, 298 NY 391; Matter of Darlene T., 28 NY2d 391; People ex rel. Portnoy v Strasser, 303 NY 539; Matter of Irene O., 38 NY2d 776; Matter of Jewish Child Care Assn. of N.Y. [Sanders], 5 NY2d 222; Di Stefano v Di Stefano, 60 AD2d 976.)
   OPINION OF THE COURT

Fuchsberg, J.

Substantively, we hold that, since the termination of parental rights must be predicated on one or more of the grounds specifically enumerated in section 384-b of the Social Services Law, none of which include “unfitness” as such, it could not be based on a finding of the latter alone. Procedurally, we further hold that a habeas corpus proceeding to obtain custody of a child is not an appropriate substitute for a proceeding under section 384-b.

The litigation to which these rulings pertain arises from the birth of a male child out of wedlock on March 14,1974. From the beginning, the mother, then but 14 years of age, was intent on putting the child up for adoption. Persisting in this course over the objection of Ricky Ralph M., the child’s father, himself then only 16, by April 11, 1974 she already had surrendered the child to the Onondaga County Department of Social Services and this agency, in turn, had placed the child with foster parents in contemplation of adoption. Less than a month later, on May 6, 1974, the father, who always acknowledged his parenthood, commenced a habeas corpus proceeding against the agency with the objective of procuring the transfer of custody of the child to himself. The mother of the child never opposed his application. Nevertheless, without any alteration in the nature of the proceeding, some eight years later we now confront an order of the Appellate Division affirming, without opinion, an order of the Family Court which permanently terminated the father’s parental rights.

Before tracing the tortuous and attenuated course by which this result was reached, a sense of order calls upon us to identify some distinctive characteristics of the two legal concepts, custody and parental rights, which here seem to have been so unceremoniously run together.

Custody is dominated by concern for the best interest of the child (see Friederwitzer v Friederwitzer, 55 NY2d 89, 95; Matter of Nehra v Uhlar, 43 NY2d 242, 248; Domestic Relations Law, §§ 70, 240; 2 Foster-Freed, Law and the Family, § 29:5). Case law tells us that, where a battle for custody is waged between parent and a third party, as here between father and agency, the parent may not be denied custody absent a threshold showing of “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” (Matter of Bennett v Jeffreys, 40 NY2d 543, 544). Obeisance to the parental relation is so strong that, even when “extraordinary circumstances” do exist, this alone does not justify depriving the parent of custody. It does no more than trigger the “best interests of the child test.” (Id., at p 548.) Even so, the underlying parental rights subsist.

In contrast, the far more embracing matter of a judicial termination of parental rights is, as is legal adoption, a creature of statute (Matter of Malpica-Orsini, 36 NY2d 568, 570). When it is sanctioned, it “is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development” (Lassiter v Department of Social Servs., 452 US 18, 39 [Blackmun, J., dissenting]; see Domestic Relations Law, § 117). For all practical purposes, the parent no longer exists. In producing this result, it cuts across a norm of nature as instinctive and as fulfilling as only procreation and the ensuing bond between parent and offspring can be (Developments — The Family, 93 Harv L Rev 1156, 1351). As the majority put it in Lassiter, “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one” (452 US, at p 27) and may not be accomplished without stern adherence to the dictates of due process (see Santosky v Kramer, 455 US _, 50 USLW 4333, 4335). It follows that, except by consent of the parent affected (Social Services Law, § 384), termination may be ordered only for one or more of four reasons set forth in section 384-b of the Social Services Law. These are (1) abandonment (subd 4, par [b]), (2) inability to care for the child due to mental illness or retardation (subd 4, par [c]), (3) permanent neglect (subd 4, par [d]), and (4) severe or repeated child abuse (subd 4, par [e]).

So oriented, in retracing the path by which this case arrives at the present point, we first note that, from the beginning, it was not uninfluenced by the evolution of unwed fathers’ rights which has followed the United States Supreme Court’s 1972 decision in Stanley v Illinois (405 US 645), where, in striking down a statute under which the children of unwed fathers automatically became wards of the State upon the death of the mother, it declared that “all * * * parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody” (405 US, at p 658). Specifically, the father’s suit was initially dismissed by the Family Court because, though consent to a proposed adoption by an unwed mother was mandatory under our Domestic Relations Law (§111, subd 1, par [c]), neither the consent of nor notice to an unwed father was required. But relying on Stanley and on Matter of Malpica-Orsini (36 NY2d 568, app dsmd sub nom. Orsini v Blasi, 423 US 1042), where Stanley was interpreted to entitle an unwed father only to an opportunity to be heard on what was in the best interests of the child, the Appellate Division vacated the dismissal and remanded so that “certain minimal rights are extended to the natural father of an illegitimate child” (49 AD2d 1035).

On remand, the Family Court, satisfied that the father had standing to seek custody, but finding that the best interests of the child would better be served by proceeding with the adoption, denied his habeas petition. Again there was a reversal. This time the Appellate Division had to reckon with Caban v Mohammed (441 US 380), in which the Supreme Court, disregarding its disposition of Malpica-Orsini, had then for the first time held section 111 of our Domestic Relations Law unconstitutional because the statute afforded unequal protection to unwed fathers by providing that the consent of unwed mothers, but not of unwed fathers, was essential to an adoption. In the end, the Appellate Division concluded that, absent his consent, the best interest of the child “cannot act as a substitute for a finding of abandonment”, that “[wjhere the issue is the right of a natural parent to custody of his child, it is established that a parent cannot be replaced because someone else could do a better job of raising the child” and that neither the “abandonment, fitness or persistent neglect” nor the “extraordinary circumstances” which could trigger a denial of custody under Matter of Bennett v Jeffreys (40 NY2d 543, 548, supra) had been found here. The reversing court, without any formal amendment of the nature of the proceeding, yet unaccountably intermingling the language of custody and termination, then returned the matter to the Family Court for a hearing on “the present status and intent of the parties necessary to make a proper determination upon abandonment”. (70 AD2d 367, 372.)

On this third time around, the Family Court early in 1980 heard evidence relevant to the father’s background and ability to care for his son. Neither all good nor all bad, it was established that he resided with his mother and stepfather, each of whom, favorably described by the Judge, expressed a strong desire to help manage a home for their son and grandson. Though the unwed father had gone through a troublesome period in his late teens, during which he was convicted of larceny, resisting arrest and possession of stolen property and had followed a vocational pattern of short-term employments, since then he had been working steadily as a teacher’s aide in a community day care center. On this background, though the Judge found that Ricky Ralph M. had “neither surrendered, nor abandoned, nor permanently neglected his child”, he decided that the father was “not fit to raise his child” and thereupon permanently terminated his parental rights. We now reverse the order which, without comment, affirmed this determination.

The Legislature, the progenitor of law bearing on termination of parental rights, was not unaware of the importance of those rights in enacting a statute as specific as section 384-b of the Social Services Law. Its accompanying statement of legislative findings and intent includes the unsurprising observation that “it is generally desirable for the child to remain with or be returned to the natural parent because the child’s need for a normal family life will usually best be met in the natural home, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered” (§ 384-b, subd 1, par [a], cl [ii]). In this connection, recognizing that parents, like children, and like human beings generally, come in all ranges of perfection and imperfection, we have made it clear that, under our legal system, the State does not seek to “find ‘better’ parents for a child even though the natural parents may be willing and able to provide proper care” (Matter of Sanjivini K., 47 NY2d 374, 382). The security of the family institution and constitutional principle require no less (see Stanley v Illinois, 405 US 645, 651, supra).

By no means does the statute encourage a court, as it did here, to back into a parental termination decision. Rather, such a proceeding may be originated only by an authorized agency or foster parent (subd 3, par [b]) who serves a petition on notice to the parent and “such other persons as the [appropriate judicial officer] may in his discretion prescribe” (subd 3, par [e]). Here, no proceeding was ever brought by the agency, much less by a foster parent. The courts never had anything more before them than the father’s custody proceeding.

Consequently, the proper course for the Appellate Division to have followed, once Caban’s requirement for parental consent had been brought to its attention, was to deal with custody, the only issue raised in the petition before it. This issue not only was governed, as indicated, by procedures different from those mandated by section 384-b, but its ultimate adjudicatory goal was a determination of the best interests of the child rather than whether any of the grounds listed in subdivision 4 of section 384-b were present.

Indeed, the procedural jumble that in fact ensued may very well explain how the Family Court came to reach its determination to sever the father’s rights solely on a generalized finding of “unfitness”, a term used to describe one of the “extraordinary circumstances” which may correctly concern a court passing on custody (Matter of Bennett v Jeffreys, 40 NY2d 543, supra). It simply is not one of the findings which will support an order of termination under subdivision 4 of section 384-b (see, also, subd 3, par [g]).

Moreover, we observe that the section 384-b criteria — abandonment, mental illness or mental retardation, permanent neglect and repeated child abuse — when associated with a parent’s treatment of his or her child, each connote aspects of “unfitness”. Accordingly, the use of this common word in a general or descriptive rather than in a word-of-art sense in this connection is hardly remarkable (see, e.g., Santosky v Kramer, 455 US_, 50 USLW 4333, 4337, supra; Smith v Organization of Foster Families, 431 US 816, 862 [Stewart, J., dissenting]; Matter of Leon RR, 48 NY2d 117, 124; Matter of Sanjivini K., 47 NY2d 374, 382, supra).

All this said, we are not unaware of the fact that it often may be difficult to confine real life situations involving such emotional issues as child custody and adoption to the cold wording of statutes. Some degree of flexibility must be allowed. But wholesale disregard of the statutory scheme compels remittal to the Family Court for consideration of the question properly before it, custody of appellant’s child. Upon remittal, if the agency seeks termination of appellant’s rights, it should do so formally by commencing a proceeding pursuant to section 384-b. In this way, the agency’s petition will give the father notice of the ground or grounds on which it intends to rely. Finally, should the agency commence a termination proceeding, it, of course, will be governed by the United States Supreme Court’s recent holding that “[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence” (Santosky v Kramer, 455 US _, 50 USLW 4333, supra).

For all these reasons, the order of the Appellate Division should be reversed and the matter remitted to Family Court, Onondaga County, for further proceedings in accordance with this opinion.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order reversed, with costs, and matter remitted to the Family Court, Onondaga County, for further proceedings in accordance with the opinion herein.

      . Simultaneously, to strengthen his custody claim, the father commenced a filiation proceeding to establish his paternity, which, after overcoming procedural hurdles not here relevant, he succeeded in accomplishing.

      . A temporary injunction obtained by the father has continued to maintain the rights of the parties in status quo.

      . A fifth reason, purely declaratory of course, is that both parents are dead (subd 4, par [a]).

      . Subsequent to the Appellate Division’s reversal, the Legislature incorporated the substance of the Malpica-Orsini holding in a new statute, section 111-a of the Domestic Relations Law (L 1976, ch 665, § 3). At the same time, the Legislature enacted section 384-c of the Social Services Law which provided for similar notice of a proceeding to terminate parental rights or for surrender of a child to an agency for the purpose of freeing the child for adoption (L 1976, ch 665, § 1). This notice, too, was to be for the sole purpose of presenting evidence relevant to the best interests of the child.

      . The court had dismissed the appeal for want of a substantial Federal question (sub nom. Orsini v Blasi, 423 US 1042).

      . Section 111 of the Domestic Relations Law has been recast to fill the statutory void left by the holding in Caban (L 1980, ch 575, § 1). The statute now requires consent of the father of a child born out of wedlock if the father has maintained substantial and continuous or repeated contact with the child as evidenced by certain factors (subd 1, pars [d], [e]). On the present appeal, the agency does not contend that appellant’s consent would not be required under the amended statute and we would not hold otherwise. It is conceded that the agency prevented the appellant from maintaining contact with his child since its surrender by the mother (cf. Matter of Sanjivini K., 47 NY2d 374, 381, supra; Matter of Bennett v Jeffreys, 40 NY2d 543, 548, supra).

      . Santosky mandates that section 384-b (subd 3, par [g]) of the Social Services Law be read to require that all of the statutory grounds be proved by clear and convincing evidence.


author: Wachtler, J. Fuchsberg, J.

text:
    Helen C. Greene, Respondent, v Theodore J. Greene, Individually and as a Partner of the Law Firm of Finley, Kumble, Wagner, Heine and Underberg, et al., Appellants. (And a Third-Party Action.)
    Argued February 16, 1982;
    decided May 18, 1982

      POINTS OF COUNSEL

      Winthrop J. Allegaert, Thomas I. Sheridan, III, and Judith H. Weil for Theodore J. Greene, appellant.
    I. Respondent’s claim for rescission is barred by the six-year Statute of Limitations governing claims in equity. (Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 63 AD2d 244; Royal Hair Pin Corp. v Rieser Co., 35 Misc 2d 20, 18 AD2d 925, 13 NY2d 1044; Pitcher v Sutton, 238 App Div 291, 264 NY 638; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48; Motyl v Motyl, 35 AD2d 1051; Buttles v Smith, 281 NY 226; Curry v Chollette, 57 AD2d 604; Borgia v City of New York, 12 NY2d 151; Gilbert Props. v Mill-stein, 33 NY2d 857; Triangle Underwriters v Honeywell, Inc., 604 F2d 737.) II. The rescission claim fails to state a cause of action because no wrongdoing is alleged. (Dulberg v Mock, 1 NY2d 54; Kazaras v Manufacturers Trust Co., 4 AD2d 227, 4 NY2d 930.) III. Documentary evidence establishes that respondent ratified the trust. (Griffin v Griffin, 79 AD2d 828.)

      Finley, Kumble, Wagner, Heine, Underberg & Casey (Alan M. Gelb and Philip S. Kaufman of counsel), appellant pro se.

    I. Respondent’s claim of constructive fraud accrued upon execution of the trust and not upon her actual knowledge of any right of action or the termination of the lawyer-client relationship. (Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 63 AD2d 244; Curry v Chollette, 57 AD2d 604; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48; Buttles v Smith, 281 NY 226; Motyl v Motyl, 35 AD2d 1051; Pitcher v Sutton, 238 App Div 291, 264 NY 638; Naetzker v Brocton Cent. School Dist., 50 AD2d 142, 41 NY2d 929; Borgia v City of New York, 12 NY2d 151; Siegel v Kranis, 29 AD2d 477; Davis v City of New York, 38 NY2d 257; Citibank [New York State] v Suthers, 68 AD2d 790.) II. The mere allegation that respondent was induced to execute the trust without facts demonstrating misconduct of which the trust was a product failed to state a cause of action for rescission. (Gerdes v Reynolds, 281 NY 180; Kalmanash v Smith, 291 NY 142; Kazaras v Manufacturers Trust Co., 4 AD2d 227, 4 NY2d 930.) III. Respondent’s actions have ratified and affirmed the execution of the trust. (Northridge Coop. Section No. 1 v 32nd Ave. Constr. Corp., 10 AD2d 244, 9 NY2d 818; Kazaras v Manufacturers Trust Co., 4 AD2d 227, 4 NY2d 930.)

      Ralph L. Ellis, Jeffrey H. Squire and John G. Nicolich for respondent.
    I. The Statute of Limitations does not bar Mrs. Greene’s first cause of action. (Radin v Opperman, 64 AD2d 820; Place v Hayward, 117 NY 487; Whitehead v

      Kennedy, 69 NY 462; Howard u Murray, 43 NY2d 417; Greene v Greene, 80 AD2d 55; Abrams, Kisseloff & Kissin v 160 Bleecker St. Assoc., 67 AD2d 629; Parker v Parker, 66 AD2d 328; Borgia v City of New York, 12 NY2d 151; Siegel v Kranis, 29 AD2d 477; Grago v Robertson, 49 AD2d 645.) II. Mrs. Greene has stated a valid first cause of action. (Guggenheimer v Ginzburg, 43 NY2d 268; Foley v D’Agostino, 21 AD2d 60; Matter of Howell, 215 NY 466; Rodgers v Sound of Music Co., 67 Misc 2d 412.) III. Lacking sufficient knowledge and understanding of defendants’ acts, Mrs. Greene never “ratified” the Greene trust. (Corrigan v Bobbs-Merrill Co., 228 NY 58; Smith v Kidd, 68 NY 130; First Nat. Bank of Morrisville v Starke Design, 11 AD2d 595; Adair v Brimmer, 74 NY 539; Matter of Young, 249 App Div 495, affd sub nom. Matter of New Rochelle Trust Co., 274 NY 543; King v Mackellar, 109 NY 215; Andre v Pomeroy, 35 NY2d 361; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)
   OPINION OF THE COURT

Wachtler, J.

The plaintiff commenced this action against her former attorneys seeking (1) rescission of a trust agreement and (2) an accounting for mismanagement of the fund. On the defendants’ motion the trial court dismissed the rescission cause of action but the Appellate Division reversed. The defendants appeal by leave of the Appellate Division on a certified question concerning the correctness of its order.

Two primary issues are raised on the appeal: (1) whether the plaintiff has stated a cause of action for rescission and (2) whether the cause of action is barred by the Statute of Limitations. The latter issue also presents a question concerning the applicability of the “continuous treatment” doctrine to an attorney who drafts an agreement and then acts as trustee and attorney under the agreement.

In 1964, when she was a college sophomore, plaintiff received treatment for a mental illness at a New York City hospital. She remained a patient at that facility and a related one until 1967. While in those institutions plaintiff was approached by a family lawyer (not associated with the defendants) and at his urging signed a trust agreement, dated February 5, 1965, in which she virtually surrendered to him all management and control over her inheritance for her lifetime.

Upon her release from the hospital in 1967 the plaintiff retained the defendants to have the 1965 trust agreement set aside. The defendants commenced an action on her behalf in the Supreme Court and, in 1969, succeeded in having the 1965 trust agreement rescinded. In that action the court concluded that the attorney who drafted the agreement and later became the trustee, was chargeable with overreaching. The court noted in particular the plaintiff’s mental condition at the time the 1965 trust agreement was executed as well as her lack of experience in business and legal matters and ignorance of the content and effect of this agreement.

A few months after that decision the defendants drafted a new trust agreement for the plaintiff. This 1969 agreement designates the plaintiff as a cotrustee of the fund. The other trustee is the defendant Theodore Greene, who is a member of the defendant firm but, incidentally, is not related to the plaintiff. As a trustee under the agreement the defendant Greene is empowered to invest up to $100,000 of plaintiff’s funds without her approval; beyond that amount her consent is necessary. He is to receive a fee for his services as trustee, as well as various other payments including 10% of the profits from the sale of trust assets. The agreement also provides that he is authorized to make investments which “are not of the type customarily made by [tjrustees” and his liability for his handling of the fund is “limited solely to * * * willful misconduct, or gross neglect”.

The initial term of the trust agreement was for two years, to be automatically renewed at that point, and at two-year intervals unless the plaintiff gives notice of termination. In 1977 the plaintiff served the notice of termination and commenced this action.

In the first cause of action, seeking rescission of the 1969 trust agreement, the plaintiff claims that the defendants “induced” her to enter the agreement knowing that she was 25 years old, had no business experience or independent advice and relied entirely on the defendants. In the second cause of action, for an accounting, plaintiff claims that the trust assets were mismanaged in various ways, including “self-dealing” by the defendants. It is alleged, for instance, that the defendant firm induced the defendant Greene to invest trust funds in companies which were clients of the defendant firm or in which partners of the law firm had an interest as investors, officers or directors, “without full and adequate disclosure to the plaintiff”.

In an examination before trial the plaintiff testified that she did not understand the agreement and was under the impression that it was a normal trust and that the trustee would be required to act in a “conventional” and “prudent” manner. The defendants have thus far evaded demands that they appear for an examination before trial. After obtaining numerous adjournments they made this motion to dismiss the first cause of action on several grounds, including the Statute of Limitations. They also contended that the complaint fails to state a cause of action for rescission because “no facts are pleaded which allege that the creation of the Trust was a product of actionable conduct”.

The trial court granted the motion and dismissed the first cause of action on the ground that it was barred by the Statute of Limitations. The court held that the cause of action accrued in 1969 when the trust was created. Applying the six-year Statute of Limitations governing equitable causes of action, the court concluded that the suit commenced in 1977 was untimely.

The Appellate Division reversed and reinstated the first cause of action (80 AD2d 55). The court held that the plaintiff’s right of action did not accrue until she became aware of the alleged breach of the fiduciary relationship and terminated the trust. The court found (p 58) that in “many respects the situation parallels that which gave rise to the doctrine of ‘continuous treatment’ in medical and legal malpractice cases”. The court also found (p 59) that although the plaintiff’s “allegations are general * * * they are sufficient to spell out a cause of action”.

An attorney is not prohibited from entering into a contract with a client. He must do so, of course, with respect to his retainer for legal services (see, e.g., Whitehead v Kennedy, 69 NY 462). And, although it is not advisable, an attorney may also contract with a client with respect to matters not involving legal services, or in addition to legal services (Howard v Murray, 38 NY2d 695, 43 NY2d 417). Thus a contract between an attorney and his client is not voidable at the will of the client.

However, the relationship between an attorney and his client is a fiduciary one and the attorney cannot take advantage of his superior knowledge and position. The basic rule, as stated in an early case (Whitehead v Kennedy, supra, p 466), is that “an attorney who seeks to avail himself of a contract made with his client, is bound to establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and was in every respect free from fraud on his part, or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him”. Under this rule it is not necessary for the client to show that the agreement was obtained by fraud or undue influence on the part of the attorney (Matter of Howell, 215 NY 466) although, of course, that would make the agreement unenforceable if it were proven. Even in the absence of such misconduct the agreement may be invalid if it appears that the attorney “got the better of the bargain”, unless he can show that the client was fully aware of the consequences and that there was no exploitation of the client’s confidence in the attorney (Howard v Murray, 38 NY2d 695, 699, 43 NY2d 417, supra).

In the case now before us the plaintiff alleges, in her complaint and motion papers, that the defendants took unfair advantage of the. attorney-client relationship by purporting to create a trust for her, which in fact granted them powers greater than they would be entitled to have as fiduciaries and relieved them of normal fiduciary liability. She has stated under oath that she did not understand the terms or the effect of the agreement. If proven these allegations should be sufficient to entitle the plaintiff to rescission of the agreement unless the defendants can convincingly show that she was fully and fairly informed of the consequences of the agreement and the special advantages it gave to them. In short, although the complaint alone may be insufficient, on the record as a whole, it appears the plaintiff has a cause of action for rescission (Guggenheimer v Ginzburg, 43 NY2d 268, 274-275).

The Appellate Division also correctly held that the cause of action is not barred by the Statute of Limitations. Initially we note that all parties agree that the six-year Statute of Limitations applies to this action for rescission (CPLR 213, subd 1; Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 63 AD2d 244). The only dispute concerns the point at which the cause of action accrued.

The defendants contend that the statute began to run when they allegedly “induced” the plaintiff to enter the trust agreement. They urge that in this case there is no basis for departing from the general rule that a cause of action accrues when the act complained of occurs. In this connection they have provided an extensive discussion of the differing rules applicable to constructive as opposed to actual fraud (see, e.g., CPLR 213, subd 8; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48), on the theory that plaintiff’s reference to inducement “suggests * * * undue influence or constructive .fraud”. However, as noted, the plaintiff’s action for rescission is based on the special rule applicable to contracts between an attorney and his client, which does not rest on a theory of fraud or undue influence.

The defendants also contend that the Appellate Division erred in holding that the cause of action did not accrue until 1977 when the plaintiff terminated her relationship with the defendants. They urge that in reaching this conclusion the Appellate Division improperly applied the continuous treatment doctrine.

The defendants correctly observe that this doctrine was first recognized in personal injury cases involving medical malpractice (Borgia v City of New York, 12 NY2d 151). It was prompted by the practical concern that the plaintiff’s cause of action for malpractice might expire “while he was still a patient receiving care and treatment related to the conditions produced by the earlier wrongful acts and omissions” (Borgia v City of New York, supra, p 156). In a broader sense the rule recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered (Siegel v Kranis, 29 AD2d 477). On this basis the continuous treatment rule has been held applicable to other types of professionals, including lawyers (Siegel v Kranis, supra; Gilbert Props. v Millstein, 33 NY2d 857; When Statute of Limitations Begins To Run Upon Action Against Attorney For Malpractice, Ann., 18 ALR3d 978, 1,000, and Supp).

Contrary to the defendants’ assertions the application of the rule has not been limited to medical malpractice actions by the recent enactment of CPLR 214-a (L 1975, ch 109) codifying the continuous treatment doctrine in medical malpractice cases but making no reference to other types of malpractice actions. The history of the statute shows that the Legislature’s sole concern was to create a special, and more restrictive statute in medical malpractice cases (see, e.g., Simcuski v Saeli, 44 NY2d 442). It was not designed as an over-all recodification or abrogation of judicial principles relating to the timeliness of all types of malpractice actions. Thus in medical malpractice cases the continuous treatment doctrine is now controlled by statute; but with respect to other types of professional dereliction, judicial authority has been left intact.

Nor do we agree with the defendant’s suggestion that the rule should be confined to negligence cases where it originated. The operative principle may also be applicable in other situations, including claims for equitable relief (cf. Grago v Robertson, 49 AD2d 645). A client who entrusts his assets to an attorney for professional assistance often faces the same dilemma as the client who entrusts his case to an attorney for possible litigation. In neither instance can the client be expected, in the normal course, to oversee or supervise the attorney’s handling of the matter, and thus in neither case is it realistic to say that the client’s right of action accrued before he terminated the relationship with the attorney.

The defendants also urge that there has been no continuous representation in this case because, in their view, the creation of the trust and its management are discrete acts. They contend that if the attorney improperly induced the plaintiff to make the trust, his act was complete at that time. His subsequent acts in administering the trust, also alleged to be wrongful, did not serve as a continuing inducement or as an attempt to correct any impropriety that may have occurred in its creation.

It appears to be conceded that the defendants performed legal services on the plaintiff’s behalf by creating the trust and continued to act as her attorney in all legal matters relating to its administration. In addition the plaintiff alleges that this was an integrated plan proposed by the defendants as a solution to her concern over the proper investment of her funds. If these allegations are credited, the defendants’ various activities on plaintiff’s behalf can be seen as part of a course of continuous representation concerning the same or a related problem (cf. Borgia v City of New York, 12 NY2d 151, 157, supra).

In conclusion we note, of course, that we do not mean to suggest that we credit the plaintiff’s allegations or that she is entitled to rescission. We simply hold that she has alleged enough to state a cause of action which on this record is not barred by the Statute of Limitations.

Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

Fuchsberg, J.

(concurring). I have no difficulty with the court’s broadened conceptualization of the “continuous treatment” doctrine. But I write to express my misgivings at the extraordinary burdens we would place on the defendants against whom the plaintiff’s conclusorily alleged rescission cause of action has been lodged.

The trust agreement, which is part of the record, clearly sets out a capital enhancement goal. Concomitantly, it expressly contemplates the making of some high risk investments and, to that end, unambiguously places considerable discretion in the hands of trustee Greene. Safeguards for trustees under such circumstances are common. Nor is it to be assumed that the fee schedule, in part contingent, was out of line for such services. Also in the record is 10 years of copious correspondence between Greene and the cestui, that of the latter often in spontaneous holographic letters which portray the plaintiff, whatever may have been her earlier emotional state, as an intelligent, alert and interested trustee-beneficiary. At this point at least, there is no demonstration that the agreement was breached or that the defendant was imposed upon.

Though I agree that, nevertheless, prevailing liberal pleading policy justifies survival of the case at this stage of the litigation, it also seems to me that we rely far too heavily on the thrust of such cases as Whitehead v Kennedy (69 NY 462), Matter of Howell (215 NY 466) and Howard v Murray (38 NY2d 695, 699, 43 NY2d 417). In Whitehead and in Howell, an attorney sought a recovery for legal services under a retainer agreement. The posture of the lawyers in those cases as suitors, in contrast to the situation here, where suit is brought against the attorneys, should not be without influence on the quantitative and qualitative burden of the parties. Significantly, the propositions for which Whitehead and Howell are cited were uttered in the context of developed factual records. Notably, in Howard we refused to apply the Whitehead formulation until “underlying imbalance of [the] agreement” had been established (compare 38 NY2d 695, 699, with 43 NY2d 417, 422).

Taken literally and without at least some preliminary factual showing, a lawyer’s founded fear that any client on any whim could subject him or her to a well-nigh undismissable suit, may very well chill the undertaking of many proper and desirable relationships between an attorney and a client. This consequence is to be avoided. Even Shakespeare could not have been all that serious when he said, “The first thing we do, let’s kill all the lawyers” (King Henry VI, act IV, scene 1, line 86).

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

Order affirmed, with costs, and question certified answered in the affirmative.

       On an earlier appeal the firm which drafted the complaint was disqualified from further representing the plaintiff because two of its members had previously been associated with the defendant firm (47 NY2d 447).