author: Smith, J. Titone, J.

text:
    [626 NE2d 630, 605 NYS2d 655]
    The People of the State of New York, Respondent, v Patsy Mitchell, Appellant.
    Argued October 6, 1993;
    decided November 18, 1993

      POINTS OF COUNSEL

      Donohue, Sabo, Varley & Armstrong, P. C., Albany (Kenneth G. Varley of counsel), for appellant.
    I. The District Attorney failed to make a fair presentation of the available evidence to the Grand Jury. (People v Pelchat, 62 NY2d 97; People v Monroe, 125 Misc 2d 550; People v Isla, 96 AD2d 789; People v Smalls, 111 AD2d 38; People v Townsend, 127 AD2d 505.) II. The prosecutor’s failure to charge the Grand Jury on the defense of justification rendered the Grand Jury proceeding defective. (People v Valles, 62 NY2d 36; People v Lancaster, 69 NY2d 20.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Zachary Weiss and Patricia Curran of counsel), for respondent.
    I. Defendant’s exculpatory statements did not fall within any established exception to the hearsay rule. Thus, the prosecutor was not obliged to present such statements to the Grand Jury, even if such statements were exculpatory. (People v Calbud, Inc., 49 NY2d 389; People v Lancaster, 69 NY2d 20; People v Sostre, 51 NY2d 958; People v Reynoso, 73 NY2d 816; People v Glenn, 127 AD2d 787, 70 NY2d 704; People v Smalls, 111 AD2d 38, 65 NY2d 987; People v Dean, 167 AD2d 480; People v Valles, 62 NY2d 36; People v Isla, 96 AD2d 789; People v Townsend, 127 AD2d 505.) II. Defendant’s statement that her husband has "tried to beat on her” did not require the prosecutor to instruct the Grand Jury as to the law of justification. (People v McManus, 67 NY2d 541; People v Goetz, 68 NY2d 96; People v Prato, 143 AD2d 205, 72 NY2d 1049; People v Watts, 57 NY2d 299.)
   OPINION OF THE COURT

Smith, J.

The issue in this case is whether a prosecutor is required to present exculpatory statements of a defendant to the Grand Jury in addition to the inculpatory statements which were submitted. Because we hold that the prosecutor was not required to present such statements on the facts presented here, we affirm the order of the Appellate Division.

On November 13, 1990, shortly before 9:30 p.m., police emergency telephone number 911 received a call reporting a stabbing at a Manhattan apartment. Responding to the call, Police Officers Dauphnee and Krinke approached the door to the apartment, and Officer Dauphnee heard "yelling” from inside. When the officers knocked on the door, defendant, Patsy Burgess Mitchell, who appeared to be intoxicated, opened it and allowed the officers, as well as emergency medical technicians, to enter. Once inside, Officer Dauphnee saw defendant’s husband, Sam Mitchell, lying on the floor with stab wounds to his chest. In response to Officer Dauphnee’s inquiry as to what happened, defendant stated, "[I] stabbed him because he was trying to beat on [me,] * * * he was cheating on [me] with a white woman[, and] he was a demon [and] a devil.” When asked where the knife was, defendant pointed to the kitchen table. Defendant was arrested and detained at her apartment for approximately 30 minutes while Officer Dauphnee waited for his supervisor.

Upon arrival at the police station, defendant was unruly, yelling repeatedly that she had stabbed and killed her husband and rendering futile attempts to read Miranda warnings to her. According to Detective Louis Torrellas, defendant was agitated, screamed that she stabbed and killed her husband, and stated, "Sam was no good, Sam had the devil.” She claimed that Sam treated her wrong and that he "fell on the knife.” Given defendant’s agitated state and the officers’ inability to administer Miranda warnings to her, the officers placed defendant in a holding cell until the following morning. Defendant’s husband died during the night.

The next morning, while being transported by Officer White from the holding cell to Central Booking, defendant was "boisterous,” stating that she had stabbed her husband, that she and her husband had gone to the Bronx to have a few drinks, that her husband waited until he got home to "start his s_,” that her husband was evil, and that she was trying to be peaceful. Defendant asked Officer White whether her husband would live. Officer White stated that he did not know. Defendant then stated that she did not stab her husband, that he fell on the knife, and that he did so to get back at her. Officer White asked her, "Why are you lying? You just spent the past couple of minutes telling me that you did stab him.” Defendant then stated, "Yeah, I stabbed that mother f_, he should have stayed with that b_ on 167th Street.”

At Central Booking, defendant was given her Miranda warnings and questioned about the incident. Defendant stated that during the course of a three-hour period, she and Sam walked, drank beer and wine and made various stops before reaching their apartment. At the apartment, they began arguing and fighting when, during the struggle, she noticed a knife in Sam’s hand. A portion of defendant’s transcribed statement reads:

"Sam was holding the * * * knife in his left hand. I grabbed his hand, we were close to each other, and struggling. The knife was pointing toward his side. We both had our hands on the knife. Then I felt the knife go into him. At first he stood there, I yelled 'Sam,’ he didn’t say anything. I pulled the knife back, his hand still on the knife. Sam laid on the floor. I bent down to see if he was bleeding. When he was on the floor I noticed the blood. I ran and called 911. Then I wiped the blood off the knife and put the knife on the sink. Then the police came. I told them what happened, and they took me to the precinct.”

After defendant’s account of the incident was transcribed, it was read back to her, and signed by all the parties present. Defendant also gave a videotaped account of the incident.

At the Grand Jury proceeding, the prosecution did not present any of the arguably exculpatory statements made by defendant before Miranda warnings were given except for the statement of the defendant to the police at the scene that she had stabbed the deceased while he was trying to beat her. Specifically, when Officer Michael Dauphnee was asked whether he had a conversation with defendant when she opened the door, he responded:

"Upon entering the apartment, I observed a male black lying on the floor. And I asked Ms. Mitchell what happened. And she stated that she stabbed him because he was trying to beat on her. When I asked her where the knife was, she pointed out the knife on the kitchen table.”

The statements made by defendant after Miranda warnings were given were also not presented to the Grand Jury. The Grand Jury returned an indictment, charging defendant with manslaughter in the first degree.

Supreme Court dismissed the indictment because the prosecutor did not provide the Grand Jury with defendant’s written or videotaped exculpatory statements, or charge the Grand Jury on the defense of justification. That court granted the People leave to re-present their case to another Grand Jury. The Appellate Division reversed, on the law, reinstated the indictment, and remanded the matter to Supreme Court for further proceedings (183 AD2d 503). Based on its interpretation of CPL 190.30 (1), that the statute would bar defendant’s exculpatory statements at trial as inadmissible hearsay and that the same prohibition should apply in the context of statements before the Grand Jury, the Appellate Division determined that Supreme Court erred in its conclusion that the People were required to present defendant’s exculpatory statements. Defendant appeals pursuant to leave granted by a Judge of this Court.

Defendant argues that the prosecutor failed to make a fair presentation of the available evidence to the Grand Jury and should have presented her exculpatory statements to the Grand Jury. The People assert that trial rules of evidence are applicable in a proceeding before a Grand Jury, and since a defendant’s out-of-court statements constitute hearsay, the People were not required to present them.

CPL 190.30 (1) states, "Except as otherwise provided in this section, the provisions of article sixty governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings.” In addition to this provision, CPL 190.65 (1) requires "legally sufficient,” and "competent and admissible” evidence in Grand Jury proceedings (see also, CPL 70.10 [1]). Other than the specific exceptions to this general principle delineated by CPL 190.30 (2) through (7), deviation from this principle is limited. Thus, the general criminal trial court evidentiary rules normally apply to Grand Jury proceedings. These standards were met in the Grand Jury proceedings here.

Applying these standards to this case, the People were not required to introduce defendant’s statements at issue in the Grand Jury. The exculpatory statements were not a part of a single statement in which inculpatory and exculpatory thoughts were expressed (see, People v Isla, 96 AD2d 789 [prosecutor omitted part of sentence in defendant’s confession where defendant stated that he fired gun in self-defense]). As this Court noted in People v Brewster (63 NY2d 419, 422), "The proper purpose of an indictment is to bring a defendant to trial upon a prima facie case which, if unexplained, would warrant a conviction”.

The dissent’s conclusion that the Grand Jury proceeding was unfair is untenable. This is particularly true since defendont had the absolute right, upon waiving immunity, to testify before the Grand Jury and to present exculpatory versions of the facts (see, CPL 190.50).

Defendant’s reliance on People v Pelchat (62 NY2d 97) is misplaced. Defendant argues that the prosecutor’s function is not that of seeking convictions, but to insure "that justice is done” (id., at 105). In Pelchat, the police officer testifying at the Grand Jury proceeding misperceived the prosecutor’s question and named the defendant as one of the individuals he observed transporting contraband at the stakeout site. The officer was under the impression that the prosecutor had asked for the names of the individuals arrested at the site. This Court held that because the officer informed the prosecutor of his error and the prosecutor, notwithstanding the officer’s revelation, continued to act upon the indictment, dismissal of the indictment was necessary. That decision was appropriate where the Grand Jury was actually indicting the defendant based upon information the prosecutor knew to be false. Here the prosecutor did not seek the Grand Jury’s indictment based upon false information nor was his conduct otherwise unfair.

Defendant’s reliance on People v Valles (62 NY2d 36) and People v Lancaster (69 NY2d 20, cert denied 480 US 922) as requiring a justification charge is also misplaced. In Valles, primarily distinguishing between charge requirements for exculpatory and mitigation defenses, this Court held that in a prosecution for murder, the prosecutor was not obligated to submit the mitigating defense of extreme emotional disturbance to the Grand Jury. We distinguished the obligation of the prosecutor when an exculpatory defense was available and intimated that an exculpatory defense charge should be submitted where such defense is involved. In People v Lancaster, however, we indicated, "Valles does not require that every complete defense suggested by the evidence be charged to the Grand Jury; rather 'whether a particular defense need be charged depends upon its potential for eliminating a needless or unfounded prosecution’ ” (People v Lancaster, 69 NY2d 20, 27, supra, quoting People v Valles, 62 NY2d 36, 38, supra). The Court explained that where a defense of justification was established by the evidence, a charge concerning that potential defense would be required because the defendant’s conduct could no longer be considered criminal (id., at 27-28). The Court indicated, however, that the evidence must establish that defense, requiring more from a defendant than a mere allegation. Here, the evidence before the Grand Jury was not sufficient to require a justification charge.

As we indicated in Lancaster (supra) the People maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused (id,., at 25-26). Defendant failed to exercise her right to bring exculpatory evidence to the Grand Jury’s attention by her own testimony or that of others testifying on her behalf (see, People v Lancaster, 69 NY2d 20, 26, supra; CPL 190.50 [5], [6]). In addition, defendant submitted at least three different accounts of the events surrounding her husband’s death. The People were not obligated to present every version to the Grand Jury.

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

Titone, J.

(dissenting). Following defendant’s arrest, she gave a detailed statement to police in which she indicated that the victim had been stabbed during the course of a struggle that was initiated when the victim brandished a knife. The majority holds that the prosecutor who presented the People’s case to the Grand Jury had no obligation either to present this exculpatory evidence or to advise the Grand Jury on the justification defense. This holding is objectionable because its underlying rationale is obscure and it utterly ignores the prosecutorial duty of fairness that this Court has previously recognized. Because I conclude that that duty was breached in this case in a manner that both significantly prejudiced the accused and impaired the Grand Jury’s ability to perform its essential function, I dissent from the majority’s holding.

Initially, the Appellate Division’s conclusion that the prosecutor was not required to introduce defendant’s statements because they were inadmissible hearsay was fallacious. Whether or not the rule against hearsay is strictly applicable to Grand Jury proceedings, that rule did not prohibit the People’s use of defendant’s statement here. It is well established that "the admissions of a party-opponent may be introduced without satisfying any of the requirements for declarations against interest” (2 McCormick, Evidence § 316, at 336 [Practitioner’s 4th ed]). Further, "while frequently admissions are against interest when made, they need not be and may, in fact, have been self-serving” (id.). Indeed, the contrary rule would unnecessarily burden the People because it would even preclude the use of a suspect’s false exculpatory statements as part of the People’s evidence-in-chief at a criminal trial.

As applied to this case, these elementary principles mean that the People were entitled to introduce all of the statements made by defendant as part of their Grand Jury case against her. Since they were made by the prosecution’s "party opponent” — the target of the Grand Jury presentment — they were admissible under the hearsay exception for party admissions and there was no bar to their introduction by the People in the Grand Jury.

Similarly unpersuasive is the majority’s somewhat cryptic analysis based on the evidentiary rules governing Grand Jury proceedings. The majority cites and describes the "standards” established by the provisions of CPL 70.10 (1), 190.30 (1) and 190.65 (1) and asserts that "the general criminal trial court evidentiary rules normally apply to Grand Jury proceedings” (majority opn, at 513). However, the majority never explains how those standards and rules preclude the introduction of defendant’s otherwise admissible statement or excuse the prosecutor’s failure to introduce them here. In the absence of a valid articulable evidentiary justification for the prosecutor’s actions, the focus of the inquiry must be on whether the obligation of prosecutorial fairness imposed a duty to introduce defendant’s exculpatory statements under the circumstances of this case. Citing People v Isla (96 AD2d 789), the majority has answered that question in the negative on the ground that the statements "were not a part of a single statement in which inculpatory and exculpatory thoughts were expressed” (majority opn, at 513). However, the prosecutor’s duty of fair dealing is certainly not limited to avoiding the indiscretion for which the prosecutor in Isla was chastised. Nor is it confined to the precise obligation identified in People v Pelchat (62 NY2d 97, 105) — to refrain from using false information to obtain an indictment — as the majority suggests. Those specific prosecutorial peccadillos were merely the factual backdrop that prompted the Pelchat Court and the Isla Court to articulate the general principle that prosecutors conducting Grand Jury proceedings have an obligation to proceed with at least a measure of candor and fairness. The obligation itself was never meant to be defined strictly in terms of the factual settings in which it was first considered (see, People v Lancaster, 69 NY2d 20, 26). The law governing the ethics of public officers is neither so trivial nor so arbitrary.

As was acknowledged in People v Pelchat (62 NY2d 97, 105, supra), the prosecutor’s duty of fairness is premised on the "familiar doctrine that a prosecutor serves a dual role as advocate and public officer [and is] charged with the duty not only to seek convictions but also to see that justice is done.” Critical to an understanding of this duty is the relationship that exists between the important function served by the Grand Jury in our system and the prosecutor’s unique role in the Grand Jury’s execution of that function. The Grand Jury exists to protect citizens from needless and unfounded prosecutions as well as to investigate crimes (see, e.g., People v Lancaster, supra, at 25; People v Ford, 62 NY2d 275, 282; People v Iannone, 45 NY2d 589, 594). For the most part, the Grand Jury fulfills this responsibility passively, by sifting and evaluating the evidence presented to it by the prosecutor. Thus, as a practical matter, the Grand Jury ordinarily relies on the prosecutor to apprise it of all of the facts it needs to determine whether an indictment should issue. In this regard, the prosecutor’s office operates as a filter through which the material that the Grand Jury will use to make its determination must pass.

It is clear that the People have broad discretion in presenting their case to the Grand Jury and that they are not obligated either to search for evidence favorable to the defense or to present all of the evidence in their possession that might be favorable to the accused (People v Lancaster, supra, at 25-26). However, there are some circumstances in which the exculpatory evidence is so essential to a complete understanding of the case that the prosecution’s failure to disclose it can actually prevent the Grand Jury from functioning as an intelligent and informed decision-making body. In such cases, withholding the evidence precludes the Grand Jury from performing its essential role as a bulwark against prosecutorial excess (see, People v Lancaster, supra, at 25). Those are the cases in which the duty of fair dealing is operative.

Manifestly, this case presents a prime example of when the duty of fair dealing requires the People to make full disclosure to the grand jurors of the exculpatory evidence they possess. Defendant’s transcribed account of the incident (quoted at majority opn, at 512), which represents the only account by an eyewitness, suggests either that the victim was killed accidentally or that the accused acted in self-defense after the victim came at her with a knife. The suggestion that the justification defense was implicated is particularly significant because "whenever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime” (People v McManus, 67 NY2d 541, 546-547). Further, justification is a defense, not an affirmative defense, and, as such, specifically permits the use of force under certain statutorily defined circumstances. Thus, if the use of physical force is shown to have been justified, the conduct is not criminal at all. "[S]uch conduct [is] entirely lawful” (id., at 546). As we noted in People v Lancaster (supra, at 27-28), this is one of those cases in which prosecution may be "needless” and a fully informed Grand Jury is essential so that the merits of the People’s case can be intelligently evaluated.

Moreover, when combined with the way in which the other evidence was presented, the prosecutor’s failure to disclose defendant’s exculpatory statements so distorted the case against her as to make a fair Grand Jury assessment all but impossible. The prosecutor elicited from the arresting officer that defendant had made jealous remarks indicating a motive to harm the victim. Additionally, he elicited that defendant had shown no signs of injury at the time of her arrest, thereby suggesting that there had been no real struggle and that defendant had been the aggressor from the outset.

Even more significantly, as a result of the testimony of two police officers, the Grand Jury was exposed to evidence that defendant had made one inculpatory statement and one statement that had ambiguous implications. The arresting officer testified that when he first arrived at the scene of the incident, defendant stated: "I stabbed him because he tried to beat on me.” Another officer testified that he heard defendant screaming at the precinct that she had stabbed and killed her husband. Viewed in the light of defendant’s detailed statements about how she had attempted to grab the victim’s knife and how the knife had entered his side as the couple struggled, these earlier fragmented declarations may have seemed to the grand jurors to be the relatively innocuous ravings of a hysterical woman fresh from a shocking and horrifying event. However, viewed in isolation and without benefit of the subsequent statements, they could only have been seen as damning admissions of defendant’s own guilt.

Finally, the distortion of the process arising from the prosecutor’s omission of defendant’s exculpatory statements is made evident even by the majority’s own rationale for affirmance. No one disputes that a justification charge would have been required under the rationale in People v Lancaster (supra) if defendant’s exculpatory statements had been placed before the Grand Jury. The majority’s sole reason for concluding that such a charge was not required in this case is that there was insufficient evidence before the Grand Jury to warrant the charge. Although that conclusion could fairly be disputed on its merits, its legal accuracy is less important than is its value as an eloquent demonstration of how important defendant’s statements were to a fair evaluation of the events underlying the charges — and of how damaging the omission of those statements was to the integrity of the Grand Jury’s deliberative process.

In sum, whether the stabbing was a deliberate and criminally culpable act or was instead an accidental or justifiable one was the question that lay at the heart of this prosecution which arose out of a violent domestic melee. Yet, by picking and choosing among defendant’s own statements and presenting a highly selective version of the evidence, the prosecutor managed to effectively eliminate that question from the grand jurors’ consideration. As a consequence, the Grand Jury process was hopelessly skewed and the resulting indictment was fatally defective. Accordingly, I would reverse the order of the Appellate Division and reinstate the Supreme Court order dismissing the indictment.

Judges Simons, Bellacosa and Levine concur with Judge Smith; Judge Titone dissents and votes to reverse in a separate opinion in which Chief Judge Kaye and Judge Hancock, Jr., concur.

Order affirmed.

      . Neither CPL 70.10 (1) nor CPL 190.65 establish that the rule against hearsay is to be strictly applied in Grand Jury proceedings. Read together, those statutes merely provide that the evidence necessary to sustain an indictment must include as a minimum competent and admissible proof to support every element of the offense charged as well as to establish reasonable cause to believe that the accused is the person who committed that offense. CPL 190.30 (1), on which the Appellate Division relied, provides that, with certain enumerated exceptions, the provisions of CPL article 60, including CPL 60.10 (invoking the civil rules of evidence), apply to Grand Jury proceedings. However, as the Practice Commentary observes, it is "an oversimplification * * * to conclude that New York grand jury rules of evidence are identical to those at trial save for the [enumerated exceptions]” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.30, at 242). Accordingly, the Appellate Division’s blanket assumption that the rule against hearsay should be rigidly applied in Grand Jury proceedings is questionable.

      . Contrary to the majority’s assertion (majority opn, at 515), defendant’s collective statements did not contain "at least three different accounts of the events surrounding her husband’s death.” Although defendant alternatively told the police that the victim had fallen on the knife to get back at her and that she had stabbed him, neither of these statements are fundamentally inconsistent either with each other or with the more detailed account of events defendant later gave, particularly when viewed in light of the distraught and confused state in which defendant made the statements and the emotional complexity of the circumstances leading up to the stabbing.

      . Arguably, defendant’s statement that she had stabbed the victim because he "beat on” her was sufficient to warrant a justification charge.


source: Caselaw Access Project

author: Titone, J. Bellacosa, J.

license: Public Domain

text:
    [626 NE2d 636, 605 NYS2d 661]
    In the Matter of Robert H. Codey, on Behalf of the State of New Jersey, Appellant. Capital Cities, American Broadcasting Corp., Inc., Respondent.
    Argued August 31, 1993;
    submitted on reargument October 12, 1993;
    decided November 22, 1993

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Morrie I. Kleinbart, Patrick J. Hynes and Paul Harnisch of counsel), for appellant.
    The Court below erred in holding that the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings requires an asylum State to find that evidence is admissible under the requesting State’s law before ordering that it be produced in a requesting State. (People v Dietze, 75 NY2d 47; People v Graham, 55 NY2d 144; Regan v Heimbach, 91 AD2d 71, 58 NY2d 610; People v Foster, 73 NY2d 596; Matter of Superior Ct. of State of N. J. v Farber, 94 Misc 2d 886; People v McCartney, 38 NY2d 618; New York v O’Neill, 359 US 1; California v Superior Ct. of Cal., 482 US 400; Michigan v Doran, 439 US 282; People ex rel. Strachan v Colon, 77 NY2d 499.)

      Patterson, Belknap, Webb & Tyler, New York City (Gregory L. Diskant and Paul W. Laisure of counsel), for respondent.
    I. The Supreme Court was required to consider American Broadcasting Corporation’s claim of testimonial privilege. (People v McCartney, 38 NY2d 618; State of New Jersey v Bardoff, 92 AD2d 890; New York v O’Neill, 359 US 1; People ex rel. Strachan v Colon, 77 NY2d 499.) II. The evidence sought from American Broadcasting Corporation is absolutely privileged.
   OPINION OF THE COURT

Titone, J.

Petitioner, appearing on behalf of the State of New Jersey, commenced this proceeding under CPL 640.10 for a subpoena dirr, ting respondent to attend and produce documents and other evidence for a Grand Jury investigation that was pending in Mercer County, New Jersey. Having been denied the requested relief in the Court below, petitioner asks this Court to resolve the narrow question of whether the potentially privileged status of the evidence sought is a proper consideration for a CPL 640.10 (2) determination. Contrary to the Court below, we conclude that the privileged status of the evidence is not a proper factor for consideration under CPL 640.10 (2) and that, accordingly, there should be a reversal.

In February and March of 1990, respondent’s news division broadcast three stories regarding an alleged point-shaving scheme by certain members of the 1987-1988 North Carolina State University men’s basketball team. The stories were based, in part, on information gleaned from confidential sources. In addition, the broadcast included brief excerpts of an interview with an unidentified player, who was shown in silhouette and had his voice disguised so as to preserve his anonymity.

The unidentified player subsequently agreed to come forward and to cooperate with a Mercer County, New Jersey, Grand Jury that was investigating certain alleged illegal gambling activities. The player acknowledged to New Jersey law enforcement authorities that he had been interviewed by respondent’s reporter. However, he stated that he was unable to recall all of the information that he had related during the 30-minute videotaped exchange.

Wishing to obtain the unpublished information, the Mercer County Grand Jury sought to obtain the videotaped out-takes and reporter’s interview notes by invoking the procedures for interstate subpoenas as prescribed in the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings (codified at CPL 640.10; NJ Stat Annot §§ 2A:81-18 to 2A:81-23). The first step in that process was an application to a New Jersey Superior Court Judge, who certified that the videotapes and notes in question were material and necessary to a Grand Jury investigation within the State and requested that they be produced by respondent, their custodian. A Deputy Attorney General of the State of New Jersey then presented the certificate to the Supreme Court, New York County, the jurisdiction in which the evidence’s custodian was located, and applied for a subpoena requiring respondent to appear with the evidence before the Mercer County Grand Jury (see, CPL 640.10).

The Supreme Court granted the requested relief after concluding that the videotape and notes were material to the criminal investigation in New Jersey and that there was no hardship involved in requiring respondent to travel "right across the river” to a neighboring State. The court specifically declined to consider respondent’s argument that the subpoena should not be issued because the material in question was privileged under New Jersey’s Shield Law, which, according to respondent, establishes a right to refuse to divulge otherwise relevant evidence in these circumstances (see, NJ Stat Annot § 2A:84A-21; see also, NY Civil Rights Law § 79-h). In the Supreme Court’s view, the question of privilege was one for resolution by the courts of New Jersey, the demanding State, rather than the courts of New York, the sending State.

On respondent’s appeal, the Appellate Division reversed and denied the application for a subpoena. The Court did not dispute that the evidence sought in this case would be substantively relevant and material in the context of the pending Grand Jury investigation. Nonetheless, relying on some language in People v McCartney (38 NY2d 618, 622) and on two out-of-State decisions (Matter of McAuley, 63 Ohio App 2d 5, 408 NE2d 697; People v Marcy, 91 Mich App 399, 283 NW2d 754), the Court reasoned that the evidence could not realistically be considered "material” or "necessary” if it was inadmissible as a result of an applicable privilege. Since, according to the Appellate Division, the videotape and reporter’s notes were privileged under both New York and New Jersey law and respondent had standing to assert the privilege in the New Jersey criminal proceeding, the Court held that a subpoena requiring production of the evidence should not be issued (183 AD2d 126, 130-135). In reaching this conclusion, the Court was influenced by this Court’s general observation that the process of compelling the presence of an out-of-State witness "has been termed 'drastic’ because it represents an incursion upon the liberty of a prospective witness, who, although accused of no crime or wrongdoing, is required to attend a criminal proceeding in another State” (People v McCartney, supra, at 622). The Appellate Division then granted petitioner leave to appeal to this Court, certifying the following question of law: "Was the decision and order of this Court, which reversed the order of the Supreme Court, properly made?”

The Uniform Act to Secure the Attendance of Witnesses From Without a State (Uniform Act) is a reciprocal statute that has been adopted in all 50 States, as well as in Puerto Rico, the Virgin Islands and the District of Columbia. The Uniform Act provides detailed and constitutionally valid procedures whereby a party to a criminal proceeding in one State can either obtain the presence of a witness residing in another State or can compel the production of evidence located in another State (see, New York v O’Neill, 359 US 1).

The first step under these procedures is for the party seeking to compel a New York witness’s attendance in another State to obtain a certificate from a court of record in that State verifying that "there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence,” that the individual in question "is a material witness in such prosecution, or grand jury investigation” and that "[the witness’s] presence will be required for a specific number of days” (CPL 640.10 [2]). The certificate must then be presented to a Justice of the Supreme Court or a Judge of the County Court in the county in which the potential witness is located (id.). Upon presentation of the certificate, the Justice or Judge must fix a date and place for a hearing.

Following the hearing, the court must issue a subpoena commanding the witness to appear in the demanding State if, after considering the evidence, it determines "that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify * * * in the other state, and that the laws of the state in which prosecution is pending * * * will give [the witness] protection from arrest and the service of civil and criminal process” (CPL 640.10 [2]). The certificate issued by a Judge of the demanding State is "prima facie evidence of all the facts stated therein” for purposes of the sending State’s CPL 640.10 (2) hearing (id.). Absent a showing of good cause, disobedience of a subpoena issued pursuant to this procedure is punishable in the same manner as is disobedience of a subpoena issued by a New York State court of record for a proceeding pending in New York (id.).

Since it involves a judicial determination of the validity and force of another State’s demand for a witness’s appearance, an application conducted pursuant to CPL 640.10 (2) is analytically analogous to a motion to quash a subpoena, which is ordinarily deemed civil in nature (see, Matter of Abrams [John Anonymous], 62 NY2d 183, 192; Matter of Cunningham v Nadjari, 39 NY2d 314, 317; Matter of Boikess v Aspland, 24 NY2d 136). Furthermore, under the terms of the statute, such a proceeding may be entertained only by a Justice of the Supreme Court or a Judge of the County Court, both of which have civil, as well as criminal, jurisdiction (CPL 640.10 [2]; see, Matter of Cunningham v Nadjari, supra). Accordingly, although authorized by a provision of the Criminal Procedure Law, a CPL 640.10 application should be deemed civil. Moreover, as the application is the only contest in court between the parties in New York, it is appropriate in this context to treat it as a special proceeding and, as such, resulting in an order that is appealable under the provisions of the CPLR (see, e.g., Matter of Abrams, supra; cf., Matter of Santangello v People, 38 NY2d 536, 538). In this case, the order of the Appellate Division resolves all of the issues between the parties to this special proceeding and is therefore final. Accordingly, the Appellate Division had the authority to grant petitioner permission to appeal pursuant to CPLR 5602 (a) (1) (i), and the certified question is unnecessary.

While the foregoing resolves one fundamental threshold question, it still remains for us to determine whether petitioner’s appeal may be entertained in light of a recent development that occurred after the parties’ briefs were filed in this Court. Specifically, because the term of the New Jersey Grand Jury investigating the alleged point-shaving conspiracy expired on August 2, 1993 and was not renewed, the reporter’s notes and out-takes are no longer required. Accordingly, the petitioner’s request for relief has become moot and a fair question may be raised as to whether the present appeal ought to be dismissed on that ground.

Applying the three-element analysis mandated by Matter of Hearst Corp. v Clyne (50 NY2d 707, 714-715), however, we conclude that the appeal should be retained. First, the appeal unquestionably presents a novel and substantial legal issue, namely, the permissible scope of the sending State’s judicial inquiry under CPL 640.10 (2). Second, there exists a likelihood that that specific legal issue will recur, particularly in view of the ever-increasing tendency of criminal enterprises to cross State lines and the mobility of potential witnesses. Indeed, during the oral argument of this appeal, respondent’s counsel stated that respondent and its employees have often been subjected to CPL 640.10 (2) subpoenas and, in many of those instances, have sought to have the question of their journalist’s privilege resolved in the context of sending State’s statutory hearing. Finally, because of the length of time required to resolve an appeal and the relatively short period during which Grand Juries are typically permitted to operate, the issue is one that is likely repeatedly to evade review. We have already recognized that, as a general proposition, Grand Jury terms are of relatively short duration and that, consequently, questions concerning the subpoenas they issue may, in a proper case, fall into the Matter of Hearst Corp. v Clyne category of questions that typically evade review (Matter of Grattan v People, 65 NY2d 243, 245, n 1). The fortuitous facts that this particular New Jersey Grand Jury’s term was extended for over two years and that these parties may not have sought accelerated consideration (see, dissenting opn, at 532-533) do not diminish the force of that legal proposition. Thus, we hold that the exception to the mootness doctrine should be invoked in these circumstances so that the appeal can be retained and the issue definitively decided.

Turning finally to the merits of this dispute, we conclude that the Appellate Division’s decision to consider the privileged nature of the evidence sought in the New Jersey proceeding was error. The Appellate Division relied, in part, on a statement in People v McCartney (supra, at 622) to the effect that in a CPL 640.10 proceeding the party seeking relief must demonstrate that the evidence in question is "relevant, admissible and of significance to [that party’s] case” (emphasis supplied). McCartney, however, is inapposite, because it concerned a proceeding in which New York was the demanding State. Its analysis was thus limited to the question of what must be proven in order to obtain a certificate under CPL 640.1 (3). McCartney does not illuminate the entirely separate question presented here: what issues should be considered when another State comes to New York with a certificate of materiality issued by one of its own courts and, under CPL 640.10 (2), seeks a subpoena compelling the appearance of a witness located in New York in an out-of-State criminal proceeding.

In those circumstances, CPL 640.10 (2) provides that the New York courts should make a determination as to whether the requested witness or evidentiary matter is "material and necessary.” "Materiality” is a term of art that is used to denote "the relation between the propositions for which the evidence is offered and the issues in the case” (McCormick, Evidence § 185, at 541 [Cleary 3d ed]; accord, Fisch, New York Evidence § 3, at 3-5 [2d ed]). Similarly, "necessary” evidence is evidence that is useful, legally significant and noncumulative. Neither term subsumes the entirely separate concept of "privilege,” which pertains to the disclosability and admissibility of otherwise probative and useful evidence (see generally, McCormick, op. cit., § 72; Fisch, op. cit., § 517). Thus, the question of whether evidence is "material” within the meaning of CPL 640.10 (2) may be resolved solely by reference to the subject matter of the investigation and the logical relationship of the evidence to that subject matter. Indeed, even the dissent points to nothing in the language of CPL 640.10 (2) that would justify an inquiry into whether the evidence sought might be subject to some identifiable privilege.

To be sure, the same might have been said in McCartney, where this Court gave broad scope to the inquiry, and specifically included the question of admissibility, when the demanding State is asked to determine, pursuant to CPL 640.10 (3) (or its local equivalent), whether the evidence or witness sought is "material.” However, there were specific policy considerations in McCartney that led the Court to augment the burden of the party seeking relief in the demanding State’s courts (see, 38 NY2d, at 622; see also, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 640.10, at 306). Where, as here, the issue concerns the proper scope of the inquiry in the sending State, however, there are markedly different policy considerations, including the interests of comity and respect for a sister State’s investigative processes.

It would be inefficient and inconsistent with the over-all purpose and design of this reciprocal statutory scheme to permit the sending State’s courts to resolve questions of privilege on a CPL 640.10 (2) application. The purpose of the Uniform Act was to establish a simple and consistent method for compelling the attendance of out-of-State witnesses (see generally, Practice Commentary, op. cit., at 306). This goal would be frustrated if the CPL 640.10 (2) hearings conducted by the sending State were to become forums for the litigation of questions of admissibility and evidentiary privilege, most of which will inevitably have to be litigated again anyway during the course of the demanding State’s criminal proceeding.

Further, evidentiary questions such as privilege are best resolved in the State — and in the proceeding — in which the evidence is to be used. Whether a particular communication or document is entitled to the cloak of privilege is a complex question that requires a balancing of values and policy choices (see, McCormick, op. cit., § 72, at 171). Indeed, despite the dissent’s contention that the material in issue is "facially protected as privileged” (dissenting opn, at 535), there remains much to be settled under the law of New Jersey, which holds that the journalist’s privilege on which respondent here relies is subject to "countervailing constitutional right[s]” (Maressa v New Jersey Monthly, 89 NJ 176, 187, 445 A2d 376, 382, cert denied 459 US 907) and waiver by conduct (In re Schuman, 114 NJ 14, 552 A2d 602, 608) and, in fact, may be accorded less weight in the Grand Jury setting than in cases involving trial subpoenas (114 NJ, at 31-32, 552 A2d, at 611, supra).

In view of the sensitivity of privilege issues to local policy concerns and particularized legal rules, it would make little sense to construe CPL 640.10 (2) as authorizing the courts of this State to determine questions of privilege that arise out of the law of another jurisdiction and which relate to specific criminal proceedings pending in that other jurisdiction. In these circumstances, the courts of the demanding jurisdiction are better qualified, both because of their superior familiarity with local law and because of their direct access to the parties or the facts in the underlying controversy (see generally, Restatement [Second] of Conflict of Laws § 139 [generally, questions of inadmissibility due to privilege are determined by law of forum State]).

Finally, to the extent that there exists a legitimate concern about the need to protect New York residents from unjustified "incursions” upon their liberty arising from forced participation in another State’s criminal proceedings (see, People v McCartney, supra, at 622; but cf., New York v O’Neill, 359 US 1, 11, supra ["(a) citizen cannot shirk his duty, no matter how inconvenienced thereby, to testify in criminal proceedings and grand jury investigations * * * even though he must travel to another State to do so”]), that concern may be adequately, and more appropriately, addressed through the statutory provision for consideration of whether a subpoena would cause "undue hardship” for the particular witness (CPL 640.10 [2]). Manifestly, if there is no "undue hardship” within the meaning of the statute, there can be no serious objection to requiring a witness to appear in the demanding jurisdiction and either give the requested evidence or litigate a claim of privilege in that forum. Here, of course, no such claim of "undue hardship” has been — or could be — made, since the witness in question is a highly mobile news organization and the criminal proceeding for which the evidence is sought is being conducted in a jurisdiction that borders on the witness’s home State. Of course, the "hardship” balance might be different in a case involving a transcontinental, "border-to-border” or "multiple-forum” proceeding (see, dissenting opn, at 534).

Inasmuch as the Appellate Division erred in denying the requested subpoena solely on the ground that the information sought was, in its view, privileged, the proper remedy would ordinarily be a reversal with a direction to reinstate the Supreme Court’s order directing respondent’s appearance in the New Jersey proceeding. Here, however, such a remedy would be pointless, since the Grand Jury investigation in which the evidence is sought has been terminated and the evidence is no longer needed.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with this opinion; the certified question is not necessary and should not be answered.

Bellacosa, J.

(dissenting). I respectfully dissent and vote to dismiss. This matter is moot because the New Jersey Grand Jury, which sought evidence from the American Broadcasting System, ended its work earlier this year. While the Court has the discretion to speak in a moot case, it is required to follow settled rubrics to invoke that exception. In my view, the required protocols have not been satisfied in this matter, which is layered with additional discretionary and dictum-like impediments that also ought to prudentially forestall the Court’s threshold leap. Inasmuch as the Court nevertheless steps out to the merits, I am forced to vote there, too, and would affirm the inanimate order of the Appellate Division.

The Court is unanimous, by concession of the parties, that our adjudication has no legal impact on the parties before the Court. The term of the Grand Jury in New Jersey expired without renewal more than two years after it sought from a New York television broadcaster "[a]ny and all notes * * * and all video and audio tapes of interviews” used in connection with the broadcaster’s news program on point-shaving in college basketball games. The end of the Grand Jury in New Jersey is of no consequence to this Court in ending this "case” in New York, even though the judgment is a legal cipher. Because this matter did not survive as a case or controversy, the Court’s propoundment is reduced to an advisory evidentiary exegesis. The pertinacity to expound this academic perspective is evident in the Court’s rejection of well-settled jurisprudential policies and principles that have long guided courts away from the shoals of essentially idle exercises, especially those that are uncontested in the sense that the parties have no real stake in the outcome.

The particular lapse that compels my separate expression in this case is the core element of this Court’s mootness override rubric — "a phenomenon typically evading review” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 715 [emphasis added]; see also, Matter of Anonymous [Billie Boggs] v New York City Health & Hosps. Corp., 70 NY2d 972, 974; contrast, Matter of Grattan v People, 65 NY2d 243, 245, n 1). Rather than that prerequisite being satisfied, it is rationalized away to serve the Court’s insistence on wresting a merits discussion out of the subject matter.

The essential words of that key ingredient illuminate the contradiction of the rationalization. The New Jersey Grand Jury was in existence for over two years, during which time, by the casual pace of the interested parties, this lawsuit likewise lackadaisically wound its way through the three tiers of New York courts. This is, on its face and the record, not the type of inherently urgent or exceedingly rapid "phenomenon” contemplated by the Court’s settled rules, that allow only the most exceptional override of the interdiction against rendering advisory opinions. That some Grand Juries may generally be of short duration (majority opn, at 527-528) does not transform the mootness override admonition into a general access route for judicial advice on all Grand Jury matters, despite mootness. Indeed, there is no showing in the course of this meandering litigation of preference requests in any courts or lack of opportunity to seek and receive accelerated consideration during the long term of this New Jersey Grand Jury — an investigatory-type, by the way, which does not "typically evade review” and is rather of the kind that is typically of very extended duration.

The Court discounts the high jurisprudential obstacle because of a perceived exigency to comment on aspects of this field of law. It would do well and better to wait to adjudicate a narrow, live legal dispute. By succumbing to the temptation instead to advise, the Court weakens an important procedural muscle and self-imposed discipline; to exercise the appropriate restraint in future moot scenarios will undoubtedly prove more difficult (see, Cardozo, The Nature of the Judicial Process, reprinted in Selected Writings of Benjamin Nathan Cardozo, at 164 [Margaret E. Hall ed 1947] [A Judge "is not a knight-errant, roaming at will in pursuit of his (or her) own ideal of beauty or of goodness.”]).

Going even farther in order to reach its merits goal, the Court finds it necessary also to overrule a long-standing, statutory, precedential, jurisdictional delineation (Matter of State of Washington v Harvey, 8 NY2d 865; and Matter of Ryan [Hogan], 306 NY 11 [declared "no longer good law”, majority opn, at 527, n 1]). Next, it wipes from the books, with unpersuasive distinctions, relevant guidance expressed in an opinion of this Court in a real case decided in the crucible of a real controversy with real litigants fighting over real consequences with respect to the same statute (People v McCartney, 38 NY2d 618, 622). That "case” speaks of the important New York policy considerations at work there, which are equally if not more importantly at risk in this "matter”. Seemingly contradictorily, the Court sweeps aside the New York policy concerns by suggesting that New Jersey and other States are "better qualified” (majority opn, at 530) to weigh their concerns against those of New York citizens on freedom of the press privileges. All these features taken together should reinforce forbearance in this case. Unfortunately, they do not and are given little or no weight.

After leaping over all the hurdles, the Court arrives at its determined destination — an expansive statutory construction and a restatement of evidentiary principles, exerted in a vacuum, of an interstate compact. The traditional, incremental, common-law development process is surely compromised by this exercise, which will affect applications of the new "rules” in a myriad of unknown factual controversies in the future. At bottom, this academic exercise represents an unfortunate drop down, well below dictum.

Since the merits are reached, I must go the distance, too, and am compelled to express my academic view, which I would rather leave to commentators or save, as a Judge, for a real dispute. The inanimate order of the Appellate Division should be affirmed essentially for the reasons expressed in Justice Ellerin’s thoroughly analyzed opinion. This Court’s hortatory pronouncement regarding this interstate evidence-gathering tool creates the potential for considerable inappropriate manipulation of judicial process. After all, evidentiary expeditions are not unknown when the quarries are rich media resource materials.

The particular facts give some life to this dead case and offer some relevant insights on why lack of prudential forbearance should be a real concern. The appellant is a Deputy Attorney General of the State of New Jersey, appearing in New York courts through the offices of the New York County District Attorney against the Capital Cities-American Broadcasting Corporation. In April 1991, the Deputy Attorney General secured a certificate from a New Jersey Superior Court Judge to present to a court in New York, under the interstate compact, to compel the production in New Jersey of witnesses in the employ of the American Broadcasting Corporation with '[a]ny and all notes * * * and all video and audio tapes of interviews [by respondent’s reporter] concerning point shaving” in 1987-1988 college basketball games (emphasis added).

The majority seems to accord significant weight to the fact that the respondent New York media evidentiary source need travel only "across the river” to the neighboring State of New Jersey and, thus, would suffer minimal inconvenience in transporting its employees and its privileged evidence there. The propoundment of the Court’s would-be rule does not, however, stop at the bank across the river, despite the majority’s disarming disclaimer (majority opn, at 531). The disclaimer is patently unpersuasive because the principle emanating from this decision cuts across the continent, border-to-border, with multiple-forums consequences in the real litigated world of such matters. Otherwise, to state the obvious again, why not wait for a contested, live controversy and why speak to the moot point now and here? My experience and judgment suggest that this far-reaching "precedent” will serve to haul any New York citizen into many other jurisdictions under an unnecessarily interpreted statute. New York State’s citizens may have to cart themselves, their employees and their records wherever a New York court’s potent writ commands them to go, whenever automatically invoked by any requesting State.

That dubious fallout is accomplished despite the fact that the requested information is facially protected as privileged press materials and is generally immune from governmental interference, chilling activities and inquisitive scrutiny in the requesting State with respect to the particular matter. Most other States for that matter, including New York with its strong public policy in this area, provide similar sanctuaries on statutory and constitutional grounds (O’Neill v Oakgrove Constr., 71 NY2d 521, 533 [concurring opn, Bellacosa, J.] ["Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process”]; compare the New York public policy at issue in People v McCartney, 38 NY2d 618, supra).

Finally, uneven applications and conflicting interpretations of this "precedent” with unbalanced impact on New York citizens, a media capital of the country and world, are the predictable consequences of this unnecessary excursion. One can only imagine what will occur when, in the future, real controversies with real litigation combatants file into New York courts under the interstate compact as evidentiary anglers from other States troll in New York’s reservoir of media records and resources.

Preferably, the matter should be dismissed for mootness, but since the Court insists on advising on the merits, I would affirm.

Chief Judge Kaye and Judges Simons, Hancock, Jr., Smith and Levine concur with Judge Titone; Judge Bellacosa dissents and votes to dismiss in a separate opinion.

Order reversed, without costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein, and certified question not answered upon the ground that the Appellate Division order is final and the certification of a question was thus unnecessary.

      . [2] To the extent that our holdings in Matter of State of Washington v Harvey (8 NY2d 865) and Matter of Ryan (Hogan) (306 NY 11) are to the contrary, they are no longer good law and are not to be followed.

      . We do not here consider whether the phrase "material and necessary” as used in CPL 640.10 (2) is intended to be applied as broadly and flexibly as the same phrase is now used in connection with civil discovery pursuant to CPLR 3101 (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403; Siegel, NY Prac § 344 [discussing legislative and judicial history of the "material and necessary” standard in civil discovery]). Indeed, in view of the substantially different policy considerations underlying CPL 640.10 subpoenas (see generally, People v McCartney, 38 NY2d 618, supra), we conclude that the question is best left for a case in which it is squarely presented. Our opinion here should not be construed as adopting any view of what constitutes "material and necessary” evidence, since the materiality and necessity for the evidence is not contested.

      . Our holding should not be construed as foreclosing the possibility that in some future case a strong public policy of this State, even one embodied in an evidentiary privilege, might justify the refusal of relief under CPL 640.10 even if the “material and necessary” test set forth in the statute is satisfied. We need not decide that question now.


author: Hancock, Jr., J.

text:
    [626 NE2d 646, 605 NYS2d 671]
    The People of the State of New York, Respondent, v Joan Fiumefreddo, Appellant.
    Argued November 10, 1993;
    decided December 16, 1993

      POINTS OF COUNSEL

      Mary-Carroll Rothwell, New York City, and Philip L. Weinstein for appellant.
    The trial court erred in refusing to permit appellant to withdraw her guilty plea where, under the totality of circumstances, the plea was involuntary as a result of the People’s refusal to offer her aged, ailing codefendant father a favorable plea agreement unless she herself pleaded guilty to the highest count against her, murder in the second degree. (Brady v United States, 397 US 742; Boykin v Alabama, 395 US 238; Bordenkircher v Hayes, 434 US 357; People v Harris, 61 NY2d 9; People v Selikoff, 35 NY2d 227, 419 US 1122; People v Schompert, 19 NY2d 300; People v Anderson, 42 NY2d 35; People v Nixon, 21 NY2d 338; People v Lewis, 46 NY2d 825; People v McKennion, 27 NY2d 671.)

      William L. Murphy, District Attorney of Richmond County, Staten Island (Yolanda L. Rudich, Karen F. McGee and Jonathan J. Silbermann of counsel), for respondent.
    Defendant’s knowing and voluntary guilty plea should not be set aside on the ground that it was part of a "package deal” and that if she went to trial, her codefendant father would be tried as well. (People v Modica, 64 NY2d 828; Boykin v Alabama, 395 US 238; People v Moissett, 76 NY2d 909; People v Lopez, 71 NY2d 662; People v Harris, 61 NY2d 9; People v Nixon, 21 NY2d 338; People v Lewis, 46 NY2d 825; People v Green, 75 NY2d 902; People v Sparaco, 14 NY2d 786; People v Frederick, 45 NY2d 520.)

      Kevin Dillon, District Attorney of Erie County, Buffalo, and James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Steven A. Hovani of counsel), for New York State District Attorneys Association, amicus curiae.

    Defendant’s plea herein was knowing and voluntary when assessed in light of the totality of relevant circumstances. (People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067; People v Harris, 61 NY2d 9; People v Glenn, 127 AD2d 787, 70 NY2d 704; People v Pelaccio, 141 AD2d 772; People v McDonald, 120 AD2d 681; People v Ruiz, 107 AD2d 770; People v Lopez, 71 NY2d 662; Brady v United States, 397 US 742; Bordenkircher v Hayes, 434 US 357, 435 US 918; Boykin v Alabama, 395 US 238.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was indicted together with her father and other accomplices for second degree murder and other crimes in connection with the death of her husband. She pleaded guilty to the murder count and was sentenced in accordance with a negotiated plea to 18 years to life. At the time set for sentencing she moved unsuccessfully to withdraw her plea, claiming that it was coerced because the favorable plea bargain offered at the same time to her father was conditioned upon her acceptance of the plea offer. The Appellate Division unanimously affirmed.

Defendant contends before our Court that her guilty plea was involuntarily given and that the trial court erred in failing to conduct a hearing or other detailed inquiry to establish the voluntariness of the plea before denying her motion to withdraw it. For reasons to be explained, we agree with the Appellate Division that the inquiry conducted by the court at the time of the withdrawal motion was sufficient and that the record demonstrates that defendant "intelligently, knowingly, and voluntarily entered her plea of guilty” (People v Fiumefreddo, 188 AD2d 546, 547). Accordingly, there should be an affirmance.

I

The Crime

The following evidence regarding the crime appears in the record in defendant’s presentence report, the guilty plea allocutions of defendant and her father, codefendant Salvatore Capriccioso, and in the confessions and guilty plea allocutions of Christopher Munroe, Joseph Gurrieri, and Frank Rich, the accomplices and coconspirators in the murder of Philip Fiumefreddo, defendant’s 73-year-old husband.

There is evidence that defendant worked as a waitress at a diner in Staten Island, where she met Philip Fiumefreddo. After a two-month courtship, defendant and Fiumefreddo were married in February 1984; she was then 39 and he was 68. Throughout 4 Vi years of marriage to Fiumefreddo, defendant often complained to acquaintances about him, stating that she wished him dead. In the early fall of 1988, she told acquaintances that her husband, who was making plans to divorce her, would be dead by Thanksgiving and indicated that she was arranging for someone to kill him.

Sometime in early September, defendant’s father Salvatore Capriccioso withdrew $3,200 from the bank and gave it to defendant for the purpose of hiring someone to do the act. Defendant gave the $3,200 to a coemployee, but he decided he could not do it and gave the money back. She returned the funds to her father, who in early October gave the $3,200 to Frank Rich another of defendant’s coemployees. Rich, in turn, transferred the money to Joseph Gurrieri, also a coemployee, with the understanding that Gurrieri would arrange for the murder. Defendant discussed the "deal” she had made with Gurrieri with several other coemployees at the restaurant where she worked.

Gurrieri, however, instead of arranging for the killing, spent the $3,200 on himself. Defendant kept pressing Gurrieri to perform the contract and threatened that he himself would be killed by an underworld figure if he did not follow through. Alarmed by her threat, Gurrieri, at the end of November, arranged to have Christopher Munroe kill Philip Fiumefreddo for $1,000. Munroe was to go to the Fiumefreddo residence on the morning of November 29 at 6:00 a.m. Defendant would let him in and then leave for work, thereby establishing her alibi. The initial attempt to carry out the plan on November 29 was aborted when Munroe somehow went to the wrong house but early in the morning on December 1 he arrived at the Fiumefreddo residence. Defendant let him in. After offering to fix breakfast for him, she told Munroe to make the house look burglarized, gave him a pillow, and instructed him to use it to kill her husband, who was still sleeping. She then left for work. Munroe suffocated Philip Fiumefreddo with the pillow as he slept.

Gurrieri, who was to pay Munroe $1,000, could give him only $20 for the job. Becoming increasingly distressed about the murder, Gurrieri went to the police and confessed. On December 4, defendant, Munroe and Gurrieri were arrested. Two months later Rich and Capriccioso were arrested.

The Negotiations and Guilty Pleas

On February 6, 1989, defendant and her father were indicted for second degree murder, second degree conspiracy and second degree solicitation. On the same day Munroe, Gurrieri and Rich were indicted for various crimes in connection with the killing. These indictments and all matters including plea negotiations were handled by the same Supreme Court Justice in Richmond County. On February 10, Gurrieri pleaded guilty to conspiracy in the second degree. Munroe pleaded guilty to murder in the second degree on February 17 and during the plea allocution identified defendant, who was present in court, as the person who let him in the house on December 1, 1988 for the purpose of killing her husband. Rich pleaded guilty to criminal solicitation in the second degree on July 18 and, in defendant’s presence, stated that he had transferred the $3,200 to Gurrieri who was "supposed to find somebody to murder Joan Fiumefreddo’s husband”.

Plea negotiations between defendant and the District Attorney were conducted over a period of several months during which defendant Fiumefreddo was represented first by attorney Diamond and then by attorney Collins. On March 6, 1990, the day jury selection was scheduled to begin, defendant and her attorney John Collins met for over an hour with the court, her father, his attorney Joseph Lamattina and the prosecutor. Immediately following this discussion, Collins told the court:

"me. collins: * * * I’ve had extensive discussions with [defendant], with the Court, with the District Attorney, co-counsel and also with her father, who is here today as a co-defendant.
"It is with respect to all the conversations we’ve had that my client is now prepared to plead with only one promise having been made by me. That promise is with her pleading to this top count that the Court would sentence her to 18 years to life” (emphasis added).

Lamattina stated that defendant’s father was prepared to plead guilty to second degree conspiracy in exchange for a sentence promise of one to three years.

In the ensuing plea allocution, which fills 18 pages of transcript, the court carefully established that defendant and codefendant Capriccioso voluntarily and with full knowledge of their rights and of the consequences of their pleas waived their rights to a jury trial, to remain silent, to confront witnesses, and to require the People to prove their guilt beyond a reasonable doubt. In the following colloquy with the court, defendant admitted doing the acts which are the basis for the indictment:

"the court: Mrs. Fiumefreddo, I can’t take your plea unless you admit your guilt. Are you saying to me under count one of the indictment that on Staten Island on December 1, 1988, early in the morning you opened up your house door on Penn Avenue and let somebody into that house because you had arranged and you knew that that person was going to go upstairs and kill your husband while you were at work? Is that correct? Is that what you’re saying to me?
"defendant fiumefreddo: Yes, Your Honor.
"the court: And Mr. Capriccioso, are you saying to me that before December 1, 1988 you had gone to Citibank, taken out money for the express purpose of paying somebody to go to your daughter’s house on Penn Avenue and kill your daughter’s husband? Is that what you’re saying to me?
"defendant capriccioso: Yes.
"the court: Satisfactory to the People?
"mr. roller: Your Honor, just one further question that perhaps the Court may wish to direct to Mrs. Fiumefreddo. That is the monies taken out of the bank by her father, Mr. Capriccioso, that it was Mrs. Fiumefreddo who arranged to have those monies paid to a [sic] individual to effectuate the homicide of Mr. Fiumefreddo on the morning of December 1.
"the court: That’s correct. You arranged to have your father take money out of the bank so you could arrange to have somebody come to your house to kill your husband; correct?
"defendant fiumefreddo: Yes” (emphasis added).

The court set the sentencing hearing for March 27, 1990.

Defendant’s Withdrawal Motion

On March 15, nine days after the plea colloquy, defendant made a motion pro se to withdraw her guilty plea. In the accompanying affidavit she stated that "while I acknowledge that the Court advised me that I had certain rights, I nevertheless did not then, nor do I now realize the full consequences of my plea of guilty. I am not guilty of the offenses to which I pleaded guilty * * * I continue to be confused about this matter because my attorney did not explain to me the ramifications of this guilty plea and I was unjustly rushed into pleading in this manner”. She further stated that she pleaded guilty "with the promise that I would be sentenced to 18 to life and codefendant which [sic] is the father of defendant whom [sic] is 78, that his sentence would be lighter if the defendant pleas [sic] guilty to” second degree murder.

At the sentencing hearing on March 27, 1990, the court asked defendant why she had not brought up her confusion and feeling of coercion during the extensive questioning at the time of her guilty plea and allocution. She did not answer the question, but only repeated that she had been confused when she pleaded guilty. Although defendant maintained that she was "not guilty” in general terms, she at no time retracted any of her admissions or denied committing the specific acts with which she had been charged. The court denied the motion to withdraw her plea, ruling that she had failed to raise sufficient facts or grounds that would require a hearing. It sentenced defendant, and subsequently her father, to the agreed-upon terms of imprisonment.

On appeal, defendant claimed that her plea bargain had been linked to that of her father and that she had been coerced into pleading guilty to secure the lighter sentence of one to three years for him. The Appellate Division affirmed the conviction, holding that "a guilty plea will not be held per se coercive, just because the defendant’s plea was conditioned upon a codefendant’s plea” and stating that "defendant’s plea allocution reveals that she intelligently, knowingly, and voluntarily entered her plea of guilty” (People v Fiumefreddo, supra, at 547).

II

The established rule is that a guilty plea will be upheld as valid if it was entered voluntarily, knowingly and intelligently (see, People v Moissett, 76 NY2d 909, 910-911; People v Lopez, 71 NY2d 662, 666). There must be an affirmative showing on the record that the defendant waived her constitutional privilege against self-incrimination and her rights to a jury trial and to be confronted by witnesses (see, Boykin v Alabama, 395 US 238, 243, and n 5). This Court has consistently rejected a formalistic approach to guilty pleas, preferring instead to leave the ascertainment of whether the defendant has entered the plea voluntarily, knowingly and intelligently to the trial court’s "sound discretion exercised in cases on an individual basis” (People v Nixon, 21 NY2d 338, 355). Thus, we have said repeatedly that there "is no requirement for a 'uniform mandatory catechism of pleading defendants’ ” (People v Harris, 61 NY2d 9, 16 [quoting People v Nixon, supra, at 353]). On motions to withdraw guilty pleas, the "defendant should be afforded reasonable opportunity to present his contentions and the court should be enabled to make an informed determination in accordance with the principles laid down in People v. Nixon (21 N Y 2d 338) and associated cases” (People v Tinsley, 35 NY2d 926, 927). But we have pointed out that the nature and extent of the fact-finding procedures on such motions rest largely in the discretion of the court and that "often a limited interrogation by the court will suffice” (id., at 927).

Defendant contends that her guilty plea should be assessed using different rules because the prosecution insisted that defendant and her codefendant father either both plead guilty or proceed to trial. We reject her first argument that such connected pleas are inherently coercive and, thus, cannot be upheld as valid. The Supreme Court, it should be noted, has specifically reserved judgment on "the constitutional implications of a prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused” (Bordenkircher v Hayes, 434 US 357, 364, n 8 [emphasis in original]). The 11 Federal Courts of Appeals which have considered the matter, however, have upheld such pleas as valid (see, United State v Marquez, 909 F2d 738, 741-742 [2d Cir 1990] [listing decisions in eight circuits in addition to the Second]; United States v Seligsohn, 981 F2d 1418, 1426 [3d Cir 1992]; United States v Pollard, 959 F2d 1011, 1020-1021 [DC Cir 1992]).

While our Court has never passed on the issue, connected or wired pleas have been held to be legal in several Appellate Division decisions (see, People v Antonio, 176 AD2d 528, 529; People v Cornielle, 176 AD2d 190, 191; People v Bermudez, 157 AD2d 533, 534; People v Keehner, 28 AD2d 695; People v Henzey, 24 AD2d 764). We see no reason for departing from the general rule expressed in the foregoing and other decisions: i.e., that so long as the plea agreement is voluntarily, knowingly and intelligently made, the fact that it is linked to the prosecutor’s acceptance of a plea bargain favorable to a third person does not, by itself, make defendant’s plea illegal.

Defendant contends, nevertheless, that even though connected pleas may not be invalid per se, the trial court erred in failing to give defendant’s guilty plea the heightened scrutiny that it required at the time of allocution and in denying her motion to withdraw her plea without a hearing or other detailed inquiry. She points to Federal cases recognizing that "guilty pleas made in consideration of lenient treatment as against third persons pose a greater danger of coercion than purely bilateral plea bargaining, and that, accordingly, 'special care must be taken to ascertain the voluntariness of guilty pleas entered in such circumstances” (United States v Nuckols, 606 F2d 566, 569 [5th Cir 1979]; see also, United States v Tursi, 576 F2d 396, 398 [1st Cir 1978]; Crow v United States, 397 F2d 284, 285 [10th Cir 1968]; but see, Marquez, supra, at 742; Pollard, supra, at 1020-1021). Defendant also relies on decisions of the California and Arizona Supreme Courts which require "an inquiry into the totality of the circumstances whenever a plea is taken pursuant to a 'package-deal’ bargain” (In re Ibarra, 34 Cal 3d 277, 288, 666 P2d 980, 986, supra) and mandate that the court consider five enumerated factors including whether the prosecutor acted in good faith, whether there was a factual basis for the plea and whether the promise of leniency to the third person was a significant factor in defendant’s decision to plead guilty (see, State v Solano, 150 Ariz 398, 724 P2d 17, supra).

We recognize that connected pleas can present concerns which require special care, particularly where leniency in a promised sentence for a loved one is part of the bargain. While the specific inquiries required by the California and Arizona courts may be relevant considerations in particular cases, we decline to adopt them or any other formalized procedure for determining the ultimate issue of whether a defendant’s connected guilty plea was voluntary. We believe that what seems to be the consensus view of the Federal courts is the proper approach: i.e., while a connected plea entailing benefit to a third person can place pressure on a defendant, the "inclusion of a third-party benefit in a plea bargain is simply one factor for a [trial] court to weigh in making the overall determination whether the plea is voluntarily entered” (Marquez, supra, at 742; see, Politte v United States, 852 F2d 924, 930-931 [7th Cir 1988] [recognizing that connected pleas may require special care, but holding that the court should consider the totality of circumstances in determining the ultimate issue of voluntariness]). This rejection of any mandated procedure or ritualistic form in favor of a careful exercise of the court’s discretion on an individual basis is consistent with the policy that we have long followed in New York (see, People v Nixon, supra, at 355). Indeed, there is New York precedent for assessing the validity of connected pleas by viewing the tied-in nature of the plea as one factor to be carefully weighed with the totality of the circumstances in the determination of whether the plea was voluntary (see, People v Rodriguez, 79 Misc 2d 1002 [Sup Ct, Bronx County, Sullivan, J.]).

Ill

We turn to the question of defendant’s plea. Recognizing that defendant’s connected plea presented a matter requiring special concern, we nonetheless conclude on our review of this record that it was knowingly, voluntarily and intelligently entered and that the trial court — given the voluminous evidence before it of defendant’s leading role in the crime— conducted a sufficient inquiry to deny the withdrawal motion without a formal hearing (see, People v Moissett, supra, at 910-911; People v Harris, supra, at 16; People v Tinsley, supra, at 927).

Defendant’s plea had been the subject of negotiation for several months before it was accepted so that she had "sufficient opportunity to weigh 'the relative merits of the plea offered against the hazards of a trial’ ” (People v Esajerre, 35 NY2d 463, 469). During the plea allocution, defendant unequivocally denied that any promises had been made to her other than that she would receive a sentence of 18 years to life in return for a plea of guilty to the top count. The lengthy and detailed colloquy with the court shows that she had no hesitancy about the plea she was entering (see, e.g., Pollard, supra, at 1022 [extensiveness of plea colloquy and defendant’s manifest willingness to plead during extensive colloquy considered significant factors in determination of voluntariness]; see also, People v Esajerre, supra, at 466). During the allocution, defendant admitted to the court, forthrightly and with no suggestion of reluctance, that she had prevailed on her father to withdraw money from the bank for the purpose of hiring someone to have her husband killed. Not only did the court have the evidence of her admission to the precise facts charged in the indictment but these facts were corroborated by the contemporaneous admissions of her father made on the record in his plea allocution. Also, several months before the court had already taken the guilty pleas of Munroe, Rich and Gurrieri and was aware of their admissions and statements which left no doubt that it was defendant who conceived of the murderous scheme and who was the driving force in having it carried out. Thus, there can be no question that the court had an ample factual basis for accepting defendant’s plea (see, Ibarra, 34 Cal 3d, at 289, 666 P2d, at 987, supra [presence of an adequate factual basis for a guilty plea a significant factor in assessing its voluntariness]; see also, Politte, supra, at 930-931).

The troubling aspect of the case, of course, is defendant’s relationship to her elderly and apparently ailing father and the concern that she would naturally be expected to have for his welfare (see, Marquez, supra, at 741-742; Politte, supra, at 930). But, we find no evidence that the prosecution acted in bad faith or improperly used the plea bargain with defendant’s father as a lever to put undue pressure on her to accept the offer of 18 years to life (see, Politte, supra, at 930; Ibarra, 34 Cal 3d, at 289, 666 P2d, at 987, supra). Indeed, considering that defendant had originated and carried through with a plan for the cold-blooded execution of her husband, it appears that a sentence of 18 years to life would have been entirely appropriate and fair had the plea bargain been completely independent of her father’s plea. Defendant’s sentence was only three years more than the lowest permissible minimum sentence and seven years less than the highest minimum she could have received. Defendant’s suggestion, therefore, that she was strongly influenced to accept the plea out of compassion for her father has a hollow ring for there is little reason to think that her sentence would have been any less even if unrelated to her father’s plea (see, Ibarra, 34 Cal 3d, at 289-290, 666 P2d, at 987, supra ["a plea is not coerced if the promise of leniency to a third party was an insignificant consideration by a defendant in [her] choice to plead guilty” (emphasis added)]).

Finally, we conclude that defendant’s claims of innocence and coercion did not necessitate a hearing and that the inquiry into these claims at the time of sentencing was adequate. We note, as did the sentencing court, that her contention of "not guilty” was little more than a perfunctory statement typed into a blank space on a form and that when given a chance at sentencing to expand on her moving affidavit by detailing this claim and her sense of coercion, she stated only "like I said, I requested I could have my plea back of guilty * * * the plea was under duress and that I wish that I reflect my feelings”. Here, it would have been better if the court had inquired further as to the basis for defendant’s withdrawal motion. Moreover, defendant’s withdrawal motion might have been obviated completely if the court, during the plea allocution, had elicited from defendant a statement that she was entering the plea solely because she deemed it to be in her own best interest and without any feeling of pressure or influence because of the plea bargain offered to her father. Nonetheless, at the sentencing hearing the record shows that the defendant was given a full opportunity to retract her specific admissions to the acts charged and to elaborate on her reasons for moving to withdraw her plea and her contention that she felt coerced. Under all of the circumstances, we cannot conclude that the sentencing court abused its discretion in failing to conduct a more detailed inquiry (see, Tinsley, supra, at 927).

We agree with the Appellate Division that there is no basis for defendant’s claim that she was not provided meaningful representation by either of her counsel (see, People v Fiumefreddo, supra, at 547).

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

Judges Simons, Titone, Bellacosa, Smith and Levine concur; Chief Judge Kaye taking no part.

Order affirmed.

      . See, e.g., State v Solano, 150 Ariz 398, 724 P2d 17; In re Ibarra, 34 Cal 3d 277, 666 P2d 980; People v Duran, 179 Colo 129, 498 P2d 937; Wade v State, 419 SE2d 781 (SC 1992); Seybold v State, 61 Wis 2d 227, 212 NW2d 146.

        . In Solano, the court upheld a connected plea applying the five Ibarra factors which it listed as follows: "(1) whether the inducement to plead was proper, in that the prosecutor acted in good faith and had a reasonable case against any third party to whom leniency is promised [citation omitted]; (2) whether there is a factual basis for the plea in terms of supportable evidence and proportionality of sentence; (3) whether the nature and degree of coercion and psychological pressure upon the defendant indicate the plea is involuntary; (4) whether the promise of leniency to another was a significant or insignificant concern to the defendant in his choice to plead guilty; and (5) whether any other relevant factor impermissibly influenced defendant’s plea” (Solano, 150 Ariz, at 402, 724 P2d, at 21, supra).

      . Penal Law § 60.05 (2) and § 70.00 provide that under an indeterminate sentence murder in the second degree as a class A-I felony (see, Penal Law § 125.25) carries a minimum term of imprisonment of not less than 15 nor more than 25 years and a maximum term of life imprisonment.


author: Bellacosa, J.

text:
    [626 NE2d 653, 605 NYS2d 678]
    Darlene Trombetta, Appellant, v Fred J. Conkling et al., Respondents.
    Argued November 16, 1993;
    decided December 20, 1993

      POINTS OF COUNSEL

      Anthony A. Murad, Utica, and Louis T. Brindisi for appellant.
    I. The Court below erred as a matter of law in determining that plaintiff could not maintain an action under the New York zone of danger theory. (Bovsun v Sanperi, 61 NY2d 219.) II. The Court below erred as a matter of law in determining that plaintiff should not be considered an "immediate family member” for the purpose of the "zone of danger” theory. (Braschi v Stahl Assocs. Co., 74 NY2d 210.)

      Petrone & Petrone, P. C, Utica (James P. Godemann of counsel), for respondents.
    I. Public policy, common usage and precedent indicate that an aunt and niece are not "immediate family” for purposes of New York’s zone of danger rule. (Cosale v Unipunch, Inc., 177 AD2d 1029; Kennedy v McKesson Co., 58 NY2d 500; Bovsun v Sanperi, 61 NY2d 219; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Briggs v Butterfield Mem. Hosp., 104 AD2d 626; D’Amico v Christie, 71 NY2d 76; Sheehy v Big Flats Community Day, 137 AD2d 160, 73 NY2d 629.) II. The Court of Appeals decision in Braschi v Stahl Assocs. Co. (74 NY2d 201) does not apply here. (Alison D. v Virginia M., 77 NY2d 651; Bovsun v Sanperi, 61 NY2d 219.)
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff-appellant’s case poses a significant tort duty question for this Court. We must now decide whether plaintiff, the niece of a woman who was killed in an accident in plaintiff’s presence and with whom plaintiff shared a long and strong emotional bond, may qualify to bring suit as a bystander for the negligent infliction of emotional injuries under the Bovsun v Sanperi (61 NY2d 219) "zone of danger” rule. If we were to conclude, as Supreme Court did, that plaintiff can be deemed a member of the victim’s "immediate family”, her cause of action lies. We agree with the Appellate Division’s reversal of Supreme Court and the dismissal of the complaint and, accordingly, we affirm the Appellate Division order.

L

On November 10, 1989, plaintiff Darlene Trombetta and her aunt, Phyllis Fisher, were crossing Wurz Avenue in Utica, New York. Plaintiff noticed a tractor-trailer bearing down on them. Realizing that the truck was not going to stop, plaintiff grabbed her aunt’s hand in an attempt to pull her out of the truck’s path. The effort failed. Plaintiff, who was not physically touched or injured, watched as the wheels of the truck ran over her aunt, killing her instantly.

Plaintiff commenced this action against defendants Fred J. Conkling and Universal Waste, Inc., the driver and the owner of the vehicle, respectively, asserting only a claim for negligent infliction of emotional distress. At an examination before trial, plaintiff testified that she and her aunt shared a close relationship. Allegedly, plaintiff’s mother had died when plaintiff was 11, and her aunt became the maternal figure in her life. They always lived close by and enjoyed many activities together on a daily basis. At the time of the accident, plaintiff was 37 and her aunt was 59.

After discovery, defendants moved to dismiss the complaint and for summary judgment. Noting that Bovsun v Sanperi explicitly left open the issue of "where lie the outer limits of 'the immediate family’ ” (61 NY2d 219, 233, n 13, supra), Supreme Court denied defendants’ motion and held that the intimate familial relationship in this case was sufficient to state a cause of action (154 Misc 2d 844).

The Appellate Division reversed and dismissed the complaint, confining the class of potential plaintiffs who may assert a claim of negligent infliction of emotional distress to the "immediate family” (187 AD2d 213). The Court declined to impose liability on defendants upon a showing that a "strong bond” existed between plaintiff and the deceased, citing the "difficult proof problems and the danger of fictitious claims” (id., at 215). This Court granted plaintiff leave to appeal (81 NY2d 711). Because we share the Appellate Division’s concerns, we now affirm and answer explicitly the question the Court left open in Bovsun. Recovery of damages by bystanders for the negligent infliction of emotional distress should be limited only to the immediate family (Bovsun v Sanperi, 61 NY2d 219, 233, n 13, supra).

IL

Historically, New York hesitated for a long time before recognizing a very circumscribed right of recovery for bystanders based on the negligent infliction of emotional distress. In Tobin v Grossman (24 NY2d 609), a mother sought recovery for emotional trauma caused by her witnessing from afar an automobile negligently operated by the defendant striking her two-year-old child. We determined that the mother did not state a cause of action and refused to adopt the California "foreseeability” standard in this area (see, Dillon v Legg, 68 Cal 2d 728, 441 P2d 912). The Court stated that, absent the establishment of arbitrary distinctions, there was no "reasonable circumscription, within tolerable limits required by public policy, of [such] a rule creating liability” (id., at 617; see also, Lafferty v Manhasset Med. Ctr. Hosp., 54 NY2d 277). Thereafter, we also denied entitlement to recovery for emotional damages when a defendant’s negligent act simultaneously breached a duty owed to the plaintiff bystander (see, Vaccaro v Squibb Corp., 52 NY2d 809; Howard v Lecher, 42 NY2d 109), although the plaintiff could recover pecuniary losses resulting from the defendant’s conduct (see, Kennedy v McKesson Co., 58 NY2d 500; Becker v Schwartz, 46 NY2d 401).

In Bovsun v Sanperi (61 NY2d 219, supra), our closely divided Court opened a narrow avenue to bystander recovery, adopting a "zone of danger” theory. Bovsun marked a significant deviation from the long-standing absolute bar on bystander claims. We reasoned that because the defendant had breached a duty owed to the plaintiff by exposing the plaintiff to an unreasonable and negligent risk of bodily injury or death, a plaintiff should be able to recover all damages sustained as a result of a defendant’s breach, including mental and physical injuries resulting from witnessing death or serious bodily injury to a member of the immediate family (id., at 229-231). Under the fact pattern and ratio decidendi of that case, only the immediate family members of the victims were entitled to claim damages for emotional trauma. The Court saw no necessity to define the boundaries of "the immediate family”, expressing its forbearance in a footnote (id., at 233, n 13).

Supreme Court in this case inferred from the forbearance that since this Court had not confined the immediate family definition, the nisi prius court was not foreclosed from extending the zone of danger rule to aunts, uncles and other persons sharing a strong emotional bond with the victim — "immediate family” members. We agree with the Appellate Division that Supreme Court’s step beyond the footnote concerning the breadth of the rule is not warranted. Although plaintiff suffered a personal tragic loss, that cannot justify the significant extension of defendants’ obligation to be answerable in damages for her emotional trauma. On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond.

Despite Bovsun v Sanperi (61 NY2d 219, supra), we have been precise and prudent in resolving tort duties, because the significant expansion of a duty "must be exercised with extreme care, for legal duty imposes legal liability” (Pulka v Edelman, 40 NY2d 781, 786, rearg denied 41 NY2d 901). It remains part of this Court’s important common-law tradition and responsibility to define the orbits of duty. Sound policy and strong precedents justify our confinement and circumscription of the zone of danger rule to only the immediate family as surveyed in Bovsun (see, Strauss v Belle Realty Co., 65 NY2d 399, 402-403; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055). Otherwise, the narrow avenue will ironically become a broad concourse, impeding reasonable or practicable limitations.

In Dillon v Legg (68 Cal 2d 728, 441 P2d 912, supra), the California Supreme Court suggested guidelines for determining the degree to which a defendant owes a duty to a plaintiff bystander (see, id., 68 Cal 2d, at 740-741, 441 P2d, at 920-921; Prosser and Keeton, Torts § 54, at 366 [5th ed]; but see, Elden v Sheldon, 46 Cal 3d 267, 758 P2d 582). The reviewing court would determine whether a particular plaintiff bystander’s emotional injury was foreseeable on a case-by-case basis, after balancing certain factors (Dillon v Legg, 68 Cal 2d, at 740-741, 441 P2d, at 920-921, supra). We have twice declined to adopt the Dillon approach because we were troubled by the potential sweeping liability and the unwarranted complication imposed on the judicial role, which the adoption of indefinite and open-ended analysis would entail (see, Bovsun v Sanperi, 61 NY2d 219, 230, supra; Tobin v Grossman, 24 NY2d 609, 618, supra).

As a policy matter, we continue to balance the competing interests at stake by limiting the availability of recovery for the negligent infliction of emotional distress to a strictly and objectively defined class of bystanders. In addition to the prevention of an unmanageable proliferation of such claims— with their own proof problems and potentiality for inappropriate claims — the restriction of this cause of action to a discrete readily determinable class also takes cognizance of the complex responsibility that would be imposed on the courts in this area to assess an enormous range and array of emotional ties of, at times, an attenuated or easily embroidered nature. We have said before and it has special application here:

"Beyond practical difficulties there is a limit to attaining essential justice in this area. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree” (Tobin v Grossman, 24 NY2d 609, 619, supra).

Thus, while plaintiff was, without doubt, within the zone of danger when defendants’ truck killed her aunt, the claim for the negligent suffering of emotional distress was properly dismissed because plaintiff is not within the deceased’s "immediate family” as defined and limited by Bovsun.

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

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Smith and Levine concur.

Order affirmed, with costs.