author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Edward T. Gladman, Appellant.
    Argued November 18, 1976;
    decided December 22, 1976

      Donald J. Werner, Massapequa Park, for appellant.

      Denis Dillon, District Attorney (Anthony J. Gírese and William C. Donnino of counsel), Mineola, for respondent.
   Jasen, J.

On this appeal, defendant argues that his shooting of a police officer did not occur, as a matter of law, in immediate flight from a robbery and that, therefore, his conviction for felony murder should be set aside. We hold that, under the circumstances presented, the issue of whether the homicide was committed in immediate flight from the robbery was properly presented to the jury as a question of fact. The order of the Appellate Division, therefore, should be affirmed.

At trial, the People submitted overwhelming evidence, largely the confession of the defendant and the testimony of several eyewitnesses, that on the night of December 29, 1971, the defendant shot and killed Nassau County Police Officer Richard Rose in a bowling alley parking lot. The events of that evening can be briefly recited. At approximately 8:00 p.m., defendant obtained a ride to the County Line Shopping Center in Amityville, New York. Ten minutes later, he entered a delicatessen, produced a gun, and demanded money from the clerk. The clerk turned over about $145 in cash and checks. After the robbery, Gladman left the shopping center and walked through the surrounding neighborhood, eventually arriving at the County Line Bowling Alley. In the meantime, the robbery had been reported to the Nassau County Police Department and an alert was transmitted over the police radio. Two officers arrived at the delicatessen at 8:16 p.m., just minutes after the defendant had left. A description of the robber was obtained and broadcast over the police radio. Normal police procedure required that unassigned patrol cars proceed to the vicinity of the crime area and any nearby major intersections in an effort to seal off potential avenues of escape. As Gladman walked onto the parking lot of the bowling alley, he saw a police car turn and enter the lot. He hid under a parked car. Patrolman Rose, the lone officer in the car, emerged from his vehicle and walked over to defendant’s hiding place. The defendant got up from underneath the car with his gun concealed between his legs. The officer ordered the defendant to put his weapon on the car hood; instead, the defendant turned and fired. Patrolman Rose, mortally wounded, struggled to his police car and attempted to use the radio to summon the assistance of brother officers. He collapsed on the seat. The defendant commandeered the automobile of a bowling alley patron and made good his escape. An off-duty New York City police officer used Rose’s radio to broadcast a signal for help. The report of the shooting went over the police radio at 8:24 p.m. Eyewitnesses fixed the time of the altercation at approximately 8:25 p.m. The bowling alley was located less than one-half mile from the robbed delicatessen.

Defendant was subsequently captured, identified by eyewitnesses and indicted. A motion to suppress his confession was denied, as was a motion to suppress evidence of a pretrial, police station lineup.

After a jury trial, the defendant was convicted of manslaughter in the first degree, felony murder, robbery in the first degree and grand larceny in the third degree. The Appellate Division unanimously affirmed the judgment of conviction, without opinion. The principal issue on this appeal is whether the jury was properly permitted to conclude that the shooting of Officer Rose occurred in the immediate flight from the delicatessen robbery.

A felony murder is committed when a person, acting alone or in concert with others, commits or attempts to commit one of nine predicate felonies, of which robbery is one, and "in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants”. (Penal Law, § 125.25, subd 3.) By operation of law, the intent necessary to sustain a murder conviction is inferred from the intent to commit a specific, serious, felonious act, even though the defendant, in truth, may not have intended to kill. Here, the jury, by its verdict, found that the defendant did not possess a murderous intent. The question is whether the jury could properly find that the killing of Officer Rose was in the immediate area from the robbery, thus triggering the application of the felony murder doctrine. To resolve the issue, it is first necessary to refer to the checkered case law in this State, applying the felony murder concepts to cases, such as this one, where the fatal wounds were inflicted in the course of escape.

Under older statutes which did not specifically address the issue, it was early held that a killing committed during an escape could, under some circumstances, constitute a felony murder. In People v Giro (197 NY 152), burglars aroused a slumbering family, the son struggled with one intruder and when the mother went to the aid of her child, she was shot dead. In affirming subsequent convictions, the court stated that the defendants committed actions in furtherance of their design to rob the house and "escape was as much a part thereof as breaking in with the jimmy or stealing the pocketbook. When they armed themselves to enter upon a felonious undertaking, shooting was the natural and probable result in order to get away if discovered, and if either fired the fatal shot both are responsible.” (197 NY, at pp 157-158.) Giro, however, was a case where the defendants got away with some loot. A different result was reached in People v Hüter (184 NY 237), where the defendant broke into a bake shop and, when discovered, was in the act of removing egg crates from the store and placing them in his wagon. On discovery, defendant and his companion abandoned the wagon and fled on foot. A watchman summoned a police officer, the officer chased the defendant, and was fatally shot. The court held that a felony murder conviction could not be sustained. The hot pursuit of the watchman and the police officer "did not operate to continue the burglary after the defendant had abandoned the property that he undertook to carry away and had escaped from the premises burglarized. In all of the cases to which our attention has been called, in which persons have been convicted of murder in the first degree by reason of the killing of a person while the accused was engaged in the commission of a burglary, the killing took place upon the premises.” (184 NY, at p 241.) Although the defendant had armed himself in preparation of a possible escape, this did not serve to continue an "abandoned” crime. Rather, this was a factor that the jury could consider in finding that the defendant had intended to kill anyone who crossed his criminal path, thereby justifying conviction for an intentional killing. (184 NY, at p 240.) (See, also, People v Marendi, 213 NY 600, 607.) These kinds of analyses soon led to the development of some rather arbitrary rules. (See Corcoran, Felony Murder in New York, 6 Fordham L Rev 43, 60-65.) If the defendant left the premises without the loot, the criminal action was deemed either terminated or abandoned and a subsequent homicide would not be a felony murder. (People v Marwig, 227 NY 382; People v Collins, 234 NY 355.) "The very meaning of flight is desistance or abandonment, unless, indeed, in special circumstances as in cases where a thief is fleeing with his loot.” (People v Moran, 246 NY 100, 103 [Cardozo, Ch. J.].) On the other hand, both presence on the premises and retention of loot were not regarded as conclusive proof of felony continuation, but were merely evidence that the felony was continuing. (People v Lunse, 278 NY 303, 312; People v Walsh, 262 NY 140, 148; People v Smith, 232 NY 239, 242.) The term premises was rather strictly confined to "within the four walls of the building” (People v Walsh, supra, at p 148) and a killing on an immediately adjoining public street would not be a killing on the "premises”. (People v Collins, 234 NY 355, 363 [warehouse burglar was discovered and hid under railway car; when the watchman flushed him out, the watchman was killed by burglar’s accomplices].)

The later New York cases indicate some dissatisfaction with the strict legal rules that had developed and tended to leave the question of escape killings to the jury as a question of fact, under appropriate instructions. The change was to point out "generally that the killing to be felony murder must occur while the actor or one or more of his confederates is engaged in securing the plunder or in doing something immediately connected with the underlying crime (Dolan v. People, 64 N. Y. 485); that escape may, under certain unities of time, manner and place, be a matter so immediately connected with the crime as to be part of its commission (People v. Giro, 197 N Y. 152); but that where there is no reasonable doubt of a complete intervening desistance from the crime, as by the abandonment of the loot and running away, the subsequent homicide is not murder in the first degree without proof of deliberation and intent. (People v. Marwig, 227 N. Y. 382).” (People v Walsh, 262 NY 140, 148, supra; People v Jackson, 20 NY2d 440, 454, cert den 391 US 928.) The question of termination of the underlying felony was then left to the jury as a fact question. (People v Jackson, supra.)

The New York approach was more rigid than that developed in other jurisdictions. The majority of the States tended to follow the "res gestae”theory—i.e., whether the killing was committed in, about and as a part of the underlying transaction. (See Ann., 58 ALR3d 851.) California had adopted the res gestae theory, at least insofar as robbery is concerned, holding that a robbery is not complete if the "conspirators have not won their way even momentarily to a place of temporary safety and the possession of the plunder is nothing more than a scrambling possession. In such a case the continuation of the use of arms which was necessary to aid the felon in reducing the property to possession is necessary to protect him in its possession and in making good his escape * * * The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property. Without revolvers to terrify, or, if occasion requires, to kill any person who attempts to apprehend them at the time of or immediately upon gaining possession of said property, their plan would be childlike.” (People v Boss, 210 Cal 245, 250-251 [1930].) Subsequent case law indicates that, in California, the robbery is ongoing simply if the culprit had failed to reach a place of temporary safety. (People v Salas, 7 Cal 3d 812.) The comparative rigidity of the New York approach has been explained as stemming from the fact that, at the time, New York, with a minority of other States, provided that all felonies would support a conviction for felony murder. (See Byrn, Homicide under the Proposed New York Penal Law, 33 Fordham L Rev 173, 193-195.) Of course, felony murder was also a capital offense and the cases attempted to narrow the scope of liability (cf. People v Wood, 8 NY2d 48, 51), particularly where it was an accomplice that did the actual killing (cf. People v Marwig, 227 NY 382, supra).

The 1967 Penal Law limited the application of the felony murder concept to nine serious and violent predicate felonies. At the same time, it was provided that the doctrine would apply to a killing committed in "immediate flight”. This change was intended to do away with many of the old technical distinctions relating to "abandonment” or "completion”. (See Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 125.25, p 400; Gegan, Criminal Homicide in the Revised New York Penal Law, 12 NYLF 565, 589.)

Under the new formulation, the issue of whether the homicide occurred in "immediate flight” from a felony is only rarely to be considered as a question of law for resolution by the court. (People v Carter, 50 AD2d 174, 176.) Only where the record compels the inference that the actor was not in "immediate flight” may a felony murder conviction be set aside on the law. Rather, the question is to be submitted to the jury, under an appropriate charge. The jury should be instructed to give consideration to whether the homicide and the felony occurred at the same location or, if not, to the distance separating the two locations. Weight may also be placed on whether there is an interval of time between the commission of the felony and the commission of the homicide. The jury may properly consider such additional factors as whether the culprits had possession of the fruits of criminal activity, whether the police, watchmen or concerned citizens were in close pursuit, and whether the criminals had reached a place of temporary safety. These factors are not exclusive; others may be appropriate in differing factual settings. If anything, past history demonstrates the fruitlessness of attempting to apply rigid rules to virtually limitless factual variations. No single factor is necessarily controlling; it is the combination of several factors that leads to a justifiable inference.

In this case, the jury could properly find, as a question of fact, that the killing of Officer Rose occurred in immediate flight from the delicatessen robbery. The shooting occurred less than 15 minutes after the robbery and less than a half mile away. The defendant had made off with cash proceeds and was attempting to secure his possession of the loot. The police had reason to believe that the robber was still in the immediate vicinity and had taken steps to seal off avenues of escape. In this regard, the absence of proof as to why Officer Rose turned into the bowling alley parking lot is no deficiency. The standard is not whether the police officer subjectively believed that the defendant was the robber. Indeed, the defendant’s own apprehension may be more valuable. The defendant’s response to the observation of the police car was to seek an immediate hiding place. This indicates that the defendant perceived that the police were on his trail. The record does not indicate that the officer knew or supposed, that defendant committed a crime; it does indicate that the defendant feared that the officer possessed such knowledge. Additionally, the defendant had not reached any place of temporary safety. In short, there is evidence from which the jury could conclude, as it did, that the defendant was in immediate flight from the robbery and that he shot the officer in order to make good his escape with the loot. The jury was properly charged as to the relevant considerations and we see no basis for disturbing its findings.

As to defendant’s contention that he was deprived of a right to counsel at the lineup, People v Blake (35 NY2d 331) establishes that there is no absolute right to counsel at a prearraignment lineup. The other claims, that the lineup was suggestive and that physical evidence was improperly received at the trial, are without merit.

The order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

       The Penal Code defined felony murder as a killing "[wjithout a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise”. (Penal Code, § 183.) The Penal Law of 1909 carried forward this definition in identical language. (Penal Law [1909], § 1044, subd 2.)


source: Caselaw Access Project

author: Cooke, J. Gabrielli, J. (dissenting).

license: Public Domain

text:
    The People of the State of New York, Respondent, v Stephen Wirchansky, Also Known as Steven Wirchansky, Appellant.
    Submitted November 15, 1976;
    decided December 22, 1976

      Morton N. Wekstein, Bronxville, for appellant.

      Carl A. Vergari, District Attorney (Carl F. Lodes of counsel), White Plains, for respondent.
   Cooke, J.

The issue before us is whether there was probable cause for the issuance of a search warrant. The warrant was issued by a Judge of the Court of Special Sessions of the City of Yonkers upon the application and affidavit of a police officer. County Court granted defendant’s motion to suppress evidence of his participation in a gambling operation obtained by way of a search of his person pursuant to the warrant. With two Justices dissenting, the Appellate Division reversed. We hold that there was a lack of probable cause and, accordingly, reverse.

The information from a confidential informant described in the affidavit of the police officer did not satisfy the requirements of Aguilar v Texas (378 US 108). Aguilar established this two-prong standard: the Magistrate issuing the warrant must be informed of (1) some of the underlying circumstances from which the informant concluded that illegal activities were taking place, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or reliable (378 US, at p 114). Although the latter prong was satisfied, the former, sometimes called the "basis of knowledge test” (People v Hanlon, 36 NY2d 549, 556), was not. This was not a situation where the affidavit merely failed to disclose certain details. For example, had the affidavit disclosed the underlying circumstances from which the informant concluded that illegal activities were taking place, but failed to specify dates of his observation, detailed confirmatory observations of the police would be sufficient to verify the trustworthiness of his information (People v Brandon, 38 NY2d 814). Here, the affidavit failed to disclose any of the underlying circumstances from which the informant concluded that defendant was engaged in gambling activities. The purpose of the Aguilar requirement is to allow a "neutral and detached magistrate” to determine independently whether the informant was justified in his conclusion (378 US, at p 115; see Giordenello v United States, 357 US 480, 486). Absent any recitation of the underlying circumstances, it was impossible for the Magistrate to perform this function which this court has suggested is "the primary basis for the Aguilar holding” (People v Brown, 40 NY2d 183, 186; see, also, People v Hendricks, 25 NY2d 129; cf. People v Montague, 19 NY2d 121).

Since the affidavit did not meet the standards established in Aguilar and thus the Judge issuing the warrant could not, within these standards, have determined that there was probable cause based on the "tip” supplied by the informant, it is necessary to consider whether the other information supplied in the affidavit was sufficient to justify a finding of probable cause. This information was: first, that the police were aware that defendant was a known policy runner and had been arrested for gambling activities only 20 days prior to the signing of the warrant and, second, that the police conducted a surveillance of defendant to confirm the informant’s tip.

With respect to the surveillance of defendant, the police officer’s affidavit recites:

"Your deponent states that on Monday May 21, 1973 between the hours of 11:30 A.M. to 12:30 P.M. a surveillance was conducted of 8-10 School St. Yonkers, N.Y. At about 12:10 P.M. Stephen Wirchansky was observed driving a vehicle south on School St. slowing said vehicle down in the area of 8-10 School St. and looking in the area of that said address; then continuing south. A few moments later said vehicle and operator again came into School St. and parked his vehicle approximately 100 feet south of 8-10 School St. on the east side of the street. Said Wirchansky left vehicle walked to and entered the hallway of 8-10 School St. and remaining therein for a few minutes exiting same proceeded to his auto and drove off.

"Your deponent further states that on May 22, 23, 24, 1973 (Tues, Wed. Thurs.) between aforementioned times Stephen Wirchansky was observed continuing the same procedures as mentioned on Monday May 21, 1973.”

The question is whether these observations indicate criminal activities on the part of defendant. A similar description of the movements of an individual engaged in gambling activities was set forth in the affidavit considered in Spinelli v United States (393 US 410). There, the FBI affidavit stated that information had been given by a confidential informant but failed, as in the instant case, to disclose any of the underlying circumstances from which the informant concluded that gambling was taking place. There, as here, the Government sought to corroborate the informant’s tip with its observations of the suspect’s conduct. As to these observations, the court concluded: "Spinelli’s travels to and from the apartment building and his entry into a particular apartment on one occasion could hardly be taken as bespeaking gambling activity” (393 US, at p 414). Nevertheless, although the observations in Spinelli were held insufficient to corroborate the informant’s tip, the instant matter is somewhat different because the police claim that appellant’s movements in fact "bespeak” gambling activities.

The affidavit under review contains this statement regarding the informant’s tip: "Your deponent also states that information [was] received from a confidential informant that gambling paraphernalia commonly associated with a bookmaking and policy scheme, are being left in a common hallway of 8-10 School St. mainly a mailbox, which is picked up by Stephen Wirchansky each day.”

Although this information was quite specific, since the affidavit does not disclose how the informant came to know these facts, the Aguilar test was nonetheless not satisfied. To measure up to Aguilar, the affidavit should have described either that the informant saw defendant make a pickup (see People v Hendricks, 25 NY2d 129, 136, supra) or, if the informer did not see defendant, the sources from which the informer learned of defendant’s activities (People v Sutton, 32 NY2d 923, cert den 415 US 983). In this respect, similar specific information from an informer, i.e., specific telephone numbers from which wagering information was disseminated, was rejected in Spinelli because: "This meager report could easily have been obtained from an offhand remark heard at a neighborhood bar” (393 US, at p 417). In the instant matter, the informer could have overheard that defendant was making a pickup from a mailbox at a specific address—a rumor such as that would not amount to probable cause for a search of defendant.

In Spinelli, the FBI’s affidavit stated that an informant had advised it that "Spinelli is operating a handbook and accepting wagers” (393 US, at p 422). By contrast, the police affidavit here concluded: "It also should be noted that it is your deponent’s opinion based upon numerous gambling investigations in which your deponent has been involved over a period of the last two (2) years that Stephen Wirchansky’s activities are that of a pick-up man in a policy operation. This is based upon observations of Wirchansky’s activities and especially the times in which this activity takes place.” Thus, unlike Spinelli where the observations of daily travels did not indicate any particular activity other than to place the suspect at the location of the gambling operation, the activity described here is, according to an experienced police officer, that of a pick-up man in a policy operation.

There have been instances where certain conduct which, although innocent-seeming to the untrained eye, may indicate illegal conduct to a trained police officer (People v Valentine, 17 NY2d 128, 132; see People v Castro, 29 NY2d 324, 327). Those instances are, however, unusual because the expertise of the police officer is generally not enough to justify a search of one engaged in seemingly innocent conduct (see People v Corrado, 22 NY2d 308; cf. People v Davis, 36 NY2d 280; People v Brown, 32 NY2d 172, 174). The principle is aptly expressed as follows: "The logical and practical problem is that even accepting ungrudgingly, as one should, the police officer’s expertness in detecting a pattern of conduct characteristic of a particular criminal activity, the detected pattern, being only the superficial part of a sequence, does not provide probable cause for arrest if the same sketchy pattern occurs just as frequently or even more frequently in innocent transactions. The point is that the pattern is equivocal and is neither uniquely nor generally associated with criminal conduct, and unless it is there is no probable cause.” (People v Brown, 24 NY2d 421, 424.)

Even paying great respect to the specialized knowledge of the police officer in this situation, we cannot say that the conduct described in the affidavit was susceptible of only one interpretation—criminal activity. Although defendant’s conduct was suspicious, he may have been entering the apartment building for innocent purposes totally unrelated to the gambling operation, and thus his conduct would not sustain a finding of probable cause. In so concluding, we distinguish those cases cited by the People where the conduct observed by the police was not consistent with innocent conduct (see People v Valentine, 17 NY2d 128, supra; cf. People v Meyers, 38 AD2d 484).

The only other information provided by the police in its affidavit was that defendant was known to the police and had been arrested for gambling activities. Although criminal reputation is relevant when supported by other information (see United States v Harris, 403 US 573, 582-583), it is not enough alone to save the warrant in this case. The holding in Harris did not nullify the principle expressed in Spinelli that a suspect’s reputation may not be used "to give additional weight to allegations that would otherwise be' insufficient” (Spinelli v United States, 393 US 410, 418-419, supra).

In holding that this warrant was not issued upon probable cause, we distinguish diverse patterns. If a policeman relies on an informant to show probable cause for a search, the affidavit, to satisfy the Aguilar standards, must disclose the underlying facts from which the informant concluded that illegal activity is taking place (People v Hendricks, 25 NY2d 129, supra; accord People v Brown, 40 NY2d 183, 186, supra). In many instances where the underlying circumstances disclosed suffer from a lack of detail, the facts may be bolstered by police observations (see, e.g., People v Brandon, 38 NY2d 814, supra; People v Slaughter, 37 NY2d 596, 599; People v Hanlon, 36 NY2d 549, supra). Where, however, the informant’s tip does not disclose any of the circumstances of the criminal activity, the police are relying on the informant only to alert them to the person who is engaged in the activity, after which the police act on their own observations (see People v Castro, 29 NY2d 324, 327, supra; People v Meyers, 38 AD2d 484, supra [both involving warrantless searches]). In these instances, which include the matter before us, the police observations must do more than merely bolster the informant’s tip, since the police themselves must provide the underlying circumstances from which the Magistrate can determine whether they are justified in concluding that illegal activity is taking place.

Testing this affidavit in this fashion, we are presented these facts: a tip from a reliable informer; police observations of conduct which is as consistent with innocent as it is with criminal activity; and defendant’s criminal reputation with respect to the particular crime of which he is suspected. Surely, if merely one of these three items was present there would not be probable cause. Yet, in a given case the totality of circumstances might support a finding of probable cause (see United States v Harris, supra). Here, however, the crucial element is the police observations. Since the observed activities are susceptible of an interpretation of innocent activity, the informant’s tip and the defendant’s reputation should not be allowed to elevate these activities to the level of probable cause. To do so would be to declare that every time the police receive an informant’s tip that a ’’known criminal” is going to a particular location for criminal purposes, police observations of "suspicious conduct” of the suspect at that location give rise to probable cause for a search.

The dissent urges that a Magistrate examining the affidavit in a "commonsense” and "realistic fashion” could determine that there was probable cause for the search in this case (dissent, at p 137). Yet, the very suggestion that a commonsense approach be used manifests the inability to satisfy the appropriate legal criteria—as firmly established by a long line of decisions both of this court and of the Supreme Court of the United States. In this connection, it is salutory that the principle of stare decisis be followed and that there be stability to the law.

If the conduct of defendant were as suggestive of criminal activity (compare People v Seney, 34 NY2d 817) as the dissent implies, it would be unnecessary for us to consider whether the informant’s tip and the defendant’s reputation, considered in connection with police observations, give rise to probable cause. All we have here is "highly suspicious” conduct and such suspicions do not amount to probable cause. That the police went before a Magistrate and requested a warrant, rather than conducting a warrantless search, should not alter our conclusions. There is no question of the "bona ñdes of the police” (see dissent, at p 139). We are not unmindful of the preference for search warrants and we do not mean to suggest by our holding any lack of confidence in the Magistrate in fulfilling his duty to scrutinize and weigh the information presented to him. We simply hold that when the police rely on an informant who has failed to disclose any of the circumstances from which he concluded that criminal activities are taking place, more is necessary than the defendant’s reputation and the police observations in this case to support a finding of probable cause.

Accordingly, the order of the Appellate Division should be reversed, and the motion to suppress should be granted.

Gabrielli, J. (dissenting).

I dissent and vote to affirm the Appellate Division’s reversal of the order of the County Court granting the motion to suppress.

The facts of the case and the contents of the affidavit supporting the issuance of the search warrant are correctly stated by the majority, but I would conclude that a "neutral and detached” Magistrate examining the affidavit in a commonsense and realistic fashion could reasonably determine that probable cause existed for the issuance of the warrant within the guidelines articulated in People v Hanlon (36 NY2d 549) and Aguilar v Texas (378 US 108) and its progeny.

Indisputably, the first prong of the Aguilar test, the reliability of the informant, has been satisfied in that the affidavit stated that the informant had previously supplied information leading to the arrest of a named individual and the seizure of gambling paraphernalia (see People v Slaughter, 37 NY2d 596, 599; People v Hanlon (supra, p 554). Thus, the narrow issue presented in this case' is whether the affidavit recited "the facts and circumstances relied on by the informer in reaching his conclusions” (People v Hanlon, supra, p 556; see Aguilar v Texas, supra, p 114; People v Montague, 19 NY2d 121, 122-123). While, as recognized by the majority, the informant provided rather detailed information concerning the daily gambling activity of the defendant (see People v Jordan, 28 NY2d 902; People v Montague, supra, p 123), he admittedly failed to specify the source or basis of his information. This infirmity, however, may be remedied by the independent observations of the affiant (or other police officers) who may provide the underlying circumstances to establish the reliability of the information provided by the informant (see People v Brandon, 38 NY2d 814; People v Slaughter, supra, p 599; People v Hanlon, supra, p 558; People v Hendricks, 25 NY2d 129, 134; People v Cerrato, 24 NY2d 1, 5; Spinelli v United States, 393 US 410, 417-418; Jones v United States, 362 US 257, 271). In the instant case, two additional factors provided by the affiant combine to supply the missing ingredient necessary to establish probable cause. These are the affiant’s independent observations of the defendant’s highly suspicious behavior which conformed to the informant’s description of the former’s gambling activities (see People v Brandon, supra; People v Jordan, supra, p 902) and, secondly, the reputation of the defendant as a known gambler who had been arrested just several weeks earlier for a gambling offense (see United States v Harris, 403 US 573, 582-583). As the majority properly notes (p 134), this case is distinguishable from Spinelli v United States (supra). The activities of the defendant in Spinelli were totally consistent with innocence but the behavior of the defendant in the instant case was highly suspicious and suggestive of criminal activity considering the great degree of caution he exercised before entering the premises where the gambling paraphernalia was alleged by the informant to be located. For four consecutive days, he drove past the subject premises and reconnoitered the immediate area before returning moments later to park his car and enter the hallway specified by the informant, where he remained for only a few minutes before leaving. These observations are far more suggestive of criminality than those of the police in Spinelli who merely stated that the defendant had parked his car in the same apartment house parking lot for four days and had entered a particular apartment in the building once. Observations of conduct indicating a strong probability of criminal activity, especially to the eye of an investigator trained in a particular field of investigation (such as gambling or narcotics), may provide a valid basis for probable cause (see People v Seney, 34 NY2d 817; People v Valentine, 17 NY2d 128). And, in determining whether independent police verification of an informant’s story is qualitatively sufficient to render that story probable and worthy of belief, we are mindful of the court’s admonition in Brinegar v United States (338 US 160, 175) that, "[i]n dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (See, also, People v Hanlon, 36 NY2d 549, 559, supra, People v Schnitzler, 18 NY2d 457, 460.)

In addition, the reputation of the defendant as a known gambler, while certainly not in itself dispositive, may properly be considered as a supporting factor by the Magistrate in determining the existence of probable cause (see United States v Harris, supra; Jones v United States, supra; Brinegar v United States, supra). As the court pointedly indicated in United States v Harris (supra, p 583) "We cannot conclude that a policeman’s knowledge of a suspect’s reputation * * * is not a 'practical consideration of everyday life’ upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer’s knowledge of a suspect’s reputation.”

Thus, observations of highly suspicious conduct on four consecutive days, the known criminal reputation of the defendant, including an arrest just a short time before the issuance of the warrant, the informant’s description of the defendant’s activities, later verified by the affiant, and the intervention of a neutral Magistrate to evaluate all of the proffered information are sufficient to sustain the search warrant in this case. While each individual factum of information is in itself insufficient to establish probable cause, the affidavit as a whole demonstrates that the information provided by the informant was not the sort which "could easily have been obtained from an offhand remark heard at a neighborhood bar” (Spinelli v United States, 393 US 410, 417, supra). As aptly observed in Smith v United States (358 F2d 833, 837 [Burger, J.], cert den 386 US 1008), "probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the 'laminated’ total.”

I would note, finally, our oft-reiterated preference for search warrants to the point, indeed, where we have recognized that in marginal or doubtful cases, a search will be sustained if based on a warrant: "[w]here a search warrant has been secured, the bona ñdes of the police will be presumed and the subsequent search upheld in a marginal or doubtful case” (People v Hanlon, supra, p 558; see, also, United States v Ventresca, 380 US 102, 106-107). This policy is based on well-founded confidence that the issuing Magistrate will discharge his duty in scrutinizing and weighing the sufficiency of the information presented by the applicant. This should allay the majority’s fear that the police will have unbridled power to conduct a search whenever a "known criminal” is observed to engage in "suspicious conduct” (p 136; see People v Hanlon, supra, p560).

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

Order reversed, etc.

       The cases relied upon by the majority (p 134) involve warrantless searches based solely upon a police officer’s observation of behavior less suggestive of criminality than that in this case (see People v Davis, 36 NY2d 280; People v Brown, 32 NY2d 172, 174; People v Brown, 24 NY2d 421, 424; People v Corrado, 22 NY2d 308; compare People v Valentine, supra).


author: Cooke, J.

text:
    In the Matter of the Claim of Frank Husted, Respondent, v Seneca Steel Service, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued November 24, 1976;
    decided December 22, 1976

      Edward L. Robinson and Solon J. Stone, Buffalo, for appellants.

      Louis J. Lefkowitz, Attorney-General (Henriette Frieder, Ruth Kessler Toch and Daniel Polansky of counsel), New York City, for Workmen’s Compensation Board, respondent.
   Cooke, J.

This is an appeal from an order of the Appellate Division, Third Department, which affirmed, two Justices dissenting, a decision of the Workmen’s Compensation Board allowing an award to claimant for injuries sustained in an automobile accident found to have arisen out of and in the course of employment.

The salient facts are not in dispute. Claimant, a resident of Buffalo, worked as a laborer for the Seneca Steel Service, Inc., a manufacturer with a plant at 1050 Military Road, Kenmore, New York. The employer maintained on plant property a parking lot for its employees, the entrance to which was from Kenmore Avenue, a four-lane highway running generally in an east-west direction. On July 11, 1972, claimant was assigned to the shift commencing at four in the afternoon. On that day at about 3:55 p.m., after proceeding easterly in his car in the lane adjacent to the center of Kenmore Avenue and after reaching the area of the parking lot, claimant turned left across Kenmore Avenue to enter the parking lot driveway when his car was struck on its right side by a westbound vehicle. At the time of impact claimant’s car was not "more than a foot, maybe even closer” to the driveway or apron of the lot. This collision propelled claimant’s car up the apron, over the sidewalk and into the parking lot where it hit another automobile parked "right along” the sidewalk. The second collision caused claimant’s car to overturn and roll upon his hand, resulting in serious fractures of the wrist and elbow, with attendant permanency and prolonged disability. There was no traffic light or other control at the entrance to the plant.

The Workmen’s Compensation Board found that claimant was entitled to safe ingress and egress to and from the employer’s premises and that claimant sustained an accidental injury arising out of and in the course of the employment. Although concurring in the board’s finding as to the course of employment, the Appellate Division majority, in affirming, held that vehicles parked on the employer’s premises constituted a natural hazard arising out of the employment and that the second collision at that location was the cause of the injuries sustained. It reasoned that the fact that this second collision had a causal relation with events originating off the premises did not preclude a board finding that the accident occurred in the course of employment. The dissenters took the position that the accident originated on a public highway, before claimant attached himself to his employment, and that it did not later become compensable merely because it was concluded on the employer’s premises.

The general rule that employees do not enter into the course of employment until they reach the premises or the entrance to the premises of their employer has been, of necessity, subject to certain well-recognized exceptions (Matter of Bennett v Marine Works, 273 NY 429, 431; Matter of Shafran v Board of Educ., 25 AD2d 336, 337). The commonest ground of extension is said to involve those situations where the off-premises point at which the injury occurs lies on the only route, or at least the normal route, which employees must traverse to reach the plant and that, therefore, the special hazards of that route become the hazards of the employment (1 Larson, Workmen’s Compensation Law, § 15.13, p 4-7). Professor Larson states that this exception to the premises rule contains two components: the first being the presence of a special hazard at the particular off-premises point and the second, the close association of the access route with the premises, so far as going and coming are concerned (p 4-11).

In Matter of Leatham v Thurston & Braidich (264 App Div 449, affd 289 NY 804), claimant was walking on a sidewalk on his way to work in a building in front of which was an entrance doorway and a loading platform. When the premises were reached, he found a large truck extending across the sidewalk and against the loading platform. In order to reach the entrance doorway on the other side of the truck and in attempting to climb between the cab and body of the truck, claimant fell and sustained injuries. In affirming an award to claimant, the Appellate Division stated that usually a plant worker’s employment begins only when he reaches the plant and ends when he leaves but that (p 450) "about the plant, there is a penumbra within which falls the shadow of the employment.” At page 451, it was held: "It is sufficient if the accident arises logically out of the employment and the hazards of the way in and out are part of the employment. When the accident happens from the dangers of the premises and the limits of the business there conducted, it is as though it happened upon the premises themselves. A relationship which brings the accident within the range of the employment is all that is required. In the instant case the claimant had reached the employer’s premises but had not yet entered. His usual route to the door was blocked by the truck which was backed up to the loading platform. The business compelled a choice of risks. He could go around the front of the truck out into the heavily traveled street or he could follow the shorter route to the door by climbing over the truck. Whether the choice he made was reasonable or not was immaterial. Perhaps one who did not desire to enter the building would have gone out into the street around the truck. That he intended to enter the building surely was a consideration in his determination to go by the shorter route directly to the door. The presence of both the truck and the claimant was due to the employment and we cannot say that the accident was entirely disassociated from the employment. To hold that merely because claimant had not actually set foot within the building, there was no relation between the employment and the accident, would be splitting hairs too finely.” In Matter of Cohn v Morningstar Nicol (265 App Div 579), claimant testified she was on her way to work, had reached the sidewalk in front of her employer’s premises, had turned to go up the steps extending onto the sidewalk and leading into the building, and was poised to get on "the” step when her foot slipped and she fell. The decision of the State Industrial Board disallowing her claim was reversed and the matter remitted. In Matter of Rosenwasser v Lanes Lake Success (9 AD2d 1001), claimant was employed at a store which was a part of a shopping center. The employees’ entrance to the store was at the rear, separated from a large parking lot by a sidewalk. Testimony indicated that the sidewalk was under the store’s jurisdiction, that the parking lot was not, and that employees who came to work by bus were required by the employer to cross some part of the lot before reaching the sidewalk and employees’ entrance. Claimant’s fall, allegedly in the parking lot and near the sidewalk, was found to be compensable and an award therefor was upheld. In Matter of Berry v B. Gertz, Inc. (21 AD2d 708) the award was sustained where claimant, a clerk at a mercantile establishment also in a shopping center, fell on her way to work in a parking area used by the buying public and employees at the shopping center but operated by the center owners and as to which claimant’s employer had no ownership or control whatever.

More recently, in Matter of Podhoretz v Rubinstein (35 AD2d 1042), a decision that the accident arose out of and in the course of employment was affirmed. There claimant, while walking to the butcher shop where he worked, held onto the shop window to get to the entrance door since the sidewalk was slippery and, taking out a key to open the door, fell within two feet from the door and broke his hip. A similar finding was arrived at in Matter of Starace v International Term. Operating Co. (39 AD2d 613) where a checker fell on his way to work upon a sidewalk very close to the entrance used by claimant in entering and exiting from the place of work, a nexus being that the gate at said entrance swung across the sidewalk and spot where claimant received his injuries.

While the general rule is that accidents occurring on the public highway, away from the place of employment and outside regular working hours, do not arise out of and in the course of employment, it is equally true that, as the employee comes in closer proximity with his employment situs, there develops "a gray area” where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation (Matter of Patti v Republic Aviation Corp., 20 AD2d 939, mot for lv to app den 14 NY2d 488; Matter of Brienza v Le Chase Constr. Corp., 17 AD2d 83, 85, 86; see Bountiful Brick Co. v Giles, 276 US 154, 158). When the employee advances to the point where he is engaging in an act or series of acts which are part and parcel of the entrance into the employment premises, the test of compensability is whether there is such a relationship existing between the accident and the employment as to bring the former within the range of the latter (Matter of Leatham v Thurston & Braidich, 264 App Div 449, 451, affd 289 NY 804, supra) or, stated differently, whether the accident happened as an incident and risk of employment (Matter of Evans v J. W. Mays, Inc., 25 AD2d 597, mot for lv to app den 17 NY2d 423).

The driveway to the employer’s parking lot is referred to in the record as "the driveway” and "the entrance to the plant” and there is no proof of any other way through which admission might be gained. After claimant made his left turn to go from the public highway into that driveway, the first impact took place. This turn was made to effect an entry upon employer’s premises for work purposes and was thus an incident of the employment. "The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there” (Cudahy Co. v Parramore, 263 US 418, 426). The risk of employment, the special hazard, could be found in the necessity of making the left turn across traffic in a public street in order to enter the plant. There was a causal relation, a distinct "arising out of’, between the employment and the accident and, in making the left turn at this point, claimant was exposed to a particular risk not shared by the public generally, since the general public would not be making a turn at this junction (see 1 Larson, Workmen’s Compensation Law, § 15.15, p 4-25). This was the reasoning applied by the Supreme Court of California in Greydanus v Industrial Acc. Comm. (63 Cal 2d 490, 491) where an award of compensation was upheld upon an almost identical fact pattern—where the employee "proceeded in his automobile to turn left off the [two-lane] highway to drive to the barn” and, at the time of impact, the "wheels were a few feet short of touching the apron of the driveway”. (See Pacific Ind. Co. v Industrial Acc. Comm., (28 Cal 2d 329; contra Wilkinson v Industrial Comm., 23 Utah 2d 428; Templet v Intercoastal Truck Line, 255 La 193.)

There has been reluctance to extend compensability beyond the premises either because of a supposed lack of a proper standard or the fear that each extension will inevitably and progressively spawn still others (see 1 Larson, Workmen’s Compensation Law, § 15.12). Here, claimant had negotiated a change in direction. The distance in feet or inches between claimant’s vehicle and the driveway or the fact that the wheels were or were not upon the apron at the moment of contact should not be determinative. Rather, the significant factor should be that a turn was necessary to gain entrance. In this delineation, there is not only a sharply defined standard but a workable one as well. Furthermore, to regard such an accident as compensable is in keeping with the fundamental concept that the Workmen’s Compensation Law, being remedial in character, is to be construed liberally to accomplish the economic and humanitarian objects of the act (see Matter of Waters v Taylor Co., 218 NY 248, 251-252).

In light of this analysis, based on this record the Workmen’s Compensation Board could find that the accident arose out of and in the course of the employment and the order of the Appellate Division should be affirmed, with costs.

Judges Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Cooke; Chief Judge Breitel and Judge Jasen dissent and vote to reverse on the dissenting opinion by Mr. Justice John L. Larkin at the Appellate Division (50 AD2d 76, 79-80).

Order affirmed.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Travis Jackson, Appellant.
    Argued November 15, 1976;
    decided December 22, 1976

      Matthew Muraskin, James J. McDonough and Eugene Murphy, Mineola, for appellant.

      Denis Dillon, District Attorney (Charles A. Singer; William C. Donnino and Anthony J. Girese of counsel), Mineola, for respondent.
   Wachtler, J.

After a nonjury trial, the defendant, Travis Jackson, was found guilty of robbery in the third degree (Penal Law, § 160.05), grand larceny in the third degree (Penal Law, § 155.30) and petit larceny (Penal Law, § 155.25). On this appeal he challenges, inter alia, the denial of his pretrial motions to suppress certain real evidence seized from his room and various inculpatory statements made after he had requested counsel.

At approximately 3:35 p.m. on December 20, 1973, the owner of a pharmacy in Freeport, Long Island, telephoned the police and reported that his store had just been held up at gunpoint by a Black male wearing a tannish-brown full length overcoat and gold rimmed glasses. The owner also reported that the robber had fled in a gold Cadillac with a black top bearing New York license plate number 53 NJW. A few moments later, after hearing the bulletin on their radio, Police Officers Steinberg and Kilbride spotted a vehicle fitting that description with two Black male occupants. They followed the car until it pulled into a driveway in front of 75 West Clinton Street, where they observed a single Black male entering the house through the front door. After reporting their position to headquarters and asking for assistance, the officers approached the house and Officer Steinberg knocked at the front door. Mrs. Davis, the owner of the house, answered and in response to the officer’s inquiries informed him that her son, Larry Davis, had just arrived at home and that he had been driving the vehicle.

The officers then took young Davis into custody and brought him to the First Precinct for questioning, arriving at approximately 4:00 p.m. During the course of the ensuing interrogation Davis informed the officers that he had been with the defendant and that it was the defendant who had gone into the drug store. He also informed them that the defendant and one Margaret Price lived in a rented room in the Davis house.

Subsequently, Mrs. Davis arrived at the station house and informed the police that she wished to help her son and that in order to do so she would assist them in any way possible. According to Officer Steinberg’s testimony at the suppression hearing, they then obtained her consent to a search of her entire house in the hope that they would locate Jackson there. They asked her the specific location of the room rented by the defendant, and Officer Steinberg and Detective O’Connor then returned to the house, gained admission and proceeded toward the defendant’s room. As Steinberg approached the room he observed that the door was open and from the hallway directly outside the room he observed an armoire, or portable closet. The doors to this chest were slightly ajar and protruding from it was a brownish-tan overcoat fitting the description of the one worn by the robber. Steinberg cautiously entered the room and, realizing that Jackson was not there, he then removed the coat from the closet and, in doing so, a pair of gold rimmed glasses, a brown paper bag containing approximately $93, and a cap gun resembling a revolver, were revealed. The officers seized all of these items.

Later that same evening, the defendant Travis Jackson voluntarily appeared at the First Precinct in the company of his mother and brother. Jackson was informed that he was a suspect in the robbery and that the police were also questioning Larry Davis and Margaret Price. Once at the station house, Jackson was taken to a second-floor office for interrogation while his relatives were asked to wait in another room. The police advised him of his constitutional rights, including the right to be represented by counsel. At this point he told the interrogating officers that he did not wish to speak with them until he had consulted with an attorney, and he requested that they telephone a certain Muslim Mosque in New York City which he said would provide him with a lawyer. The officers made two or three attempts to place the telephone call but they were unable to do so. At one point they permitted Jackson himself to try to reach the number, but he too met with no success.

The defendant then requested permission to speak with his parents and was permitted to do so. Although we do not have the benefit of findings of fact by the hearing judge in connection with the suppression hearing (in contravention of the explicit statutory mandate requiring that these findings be made and stated on the record [CPL 710.60]), a review of the minutes of that hearing reveals testimony from the defendant, his mother, brother and father, who had arrived at the station house by this time, that the defendant claimed to have been physically assaulted by the police while in the other room and that he repeatedly asked his family to get him a lawyer. The police officers, on the other hand, denied that they heard these requests. Following a brief confrontation between the police and the defendant’s family, the police asked them to leave the station house, informing them that the defendant was being arrested in connection with the robbery.

Jackson was then returned to the office where he had previously been held and the interrogating officer, according to his own testimony, "informed him [Jackson] that Larry Davis was still being considered a co-defendant in this case. We gave him the facts as to what took place that day in the robbery.” At this point the defendant was confronted by Mrs. Davis who, in a tearful manner, asked him why he had gotten her son into trouble and pleaded with him to tell the police the truth. Jackson then stated that he did not want to see Larry Davis get in trouble. He admitted that Davis had not known anything about the robbery and that he had used the Davis boy because Davis had a car.

The police then advised Jackson of his constitutional rights for the second time and he signed a waiver. During the course of the ensuing interrogation, Jackson made other incriminating statements. Subsequently the police prepared and Jackson signed a written confession.

We turn first to whether the evidence seized from his room should have been suppressed as the fruit of an illegal search. The prosecution claims that the coat and the other items were in "plain view” and the seizure of them was not unlawful. In the alternative, the People contend that the search of defendant’s room was permissible since Mrs. Davis had consented to a search of the entire house. The defendant, on the other hand, argues that Mrs. Davis was without authority to consent to a search of the room which he rented, and that even if the evidence was in plain view, the police were not justified in engaging in a warrantless search.

The hearing judge was correct in refusing to suppress this evidence. It cannot be denied that the officers were properly in the hallway outside the defendant’s room since they had been given permission to search the house by the owner (Schneckloth v Bustamonte, 412 US 218, 219; Zap v United States, 328 US 624, 630; Davis v United States, 328 US 582, 593-594). From that lawfully obtained vantage point, the record clearly demonstrates that the officers were able to peer through the open doorway into the defendant’s room and before ever entering the room, they spied in plain view an article of clothing matching that described by the victim of the crime as the one being worn by the criminal. On these facts the officers were justified in seizing the coat and the other items revealed during the course of that seizure (see People v Brosnan, 32 NY2d 254; People v Mullgravv, 23 AD2d 855, 856).

In reaching that conclusion we are mindful that "plain view alone is never enough to justify the warrantless seizure of evidence” (Coolidge v New Hampshire, 403 US 443, 468; emphasis in original), and that the discovery of the object must have been inadvertent and not planned or anticipated by the authorities (Coolidge v New Hampshire, supra, at p 466). We have noted that where there is "ample time for the law enforcement officials to secure a warrant” the warrantless seizure of evidence, even if it is in plain view, is forbidden (People v Spinelli, 35 NY2d 77, 81). The present case does not violate the caveat of Coolidge and avoids the infirmity found to exist in Spinelli.

When the police officers returned to Mrs. Davis’ home, the defendant, a prime suspect, was still at large. It cannot be gainsaid that the police were actively seeking to locate him in order to question him in connection with this crime. They had been informed that he lived in the house and their uncontroverted testimony clearly established that, quite naturally, they went to the house to seek him out. The coat itself, and the other evidence subsequently revealed, were easily concealable and could just as easily have been spirited away. Since there was no time to obtain a valid warrant and still insure that this material evidence would be preserved, the seizure was justified (see Chambers v Maroney, 399 US 42, 51-52).

We deal next with the denial of the defendant’s motion to suppress his written confession and the incriminating statements made by him after he had indicated his desire to speak with a lawyer. He contends that his constitutional rights were infringed in that the police continued to interrogate him after he had asserted his privilege to remain silent until he had consulted with a lawyer. The People’s position is that the defendant’s original statement, after his confrontation with Mrs. Davis, was not the product of police interrogation, but was volunteered and therefore was properly not suppressed. Further, it is claimed that once this statement had been made, the police were justified in once again advising Jackson of his rights and obtaining a waiver of them. Hence, it is argued that the inculpatory statements, including the written confession, obtained after the defendant had waived his rights were also properly deemed admissible.

We find that the defendant’s original statement was not voluntary and the People were not justified in attempting to secure, and eventually securing, a waiver of the defendant’s constitutional rights after he had asked to speak with counsel. Therefore, all of the statements made by the defendant after his request for counsel, including the written confession, should have been suppressed.

It is fundamental and a well-established constitutional principle that if a defendant expresses a desire to speak with a lawyer, the police are prohibited from any further interrogation of him until he has been given that opportunity (Miranda v Arizona, 384 US 436, 474; see People v Gary, 31 NY2d 68). It is equally well settled however that "[a]ny statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence. * * * There is no requirement that police stop a person who * * * states that he wishes to confess to a crime * * * Volunteered statements of any kind are not barred by the Fifth Amendment” (Miranda v Arizona, supra, at p 478; see People v Kaye, 25 NY2d 139; People v McKie, 25 NY2d 19).

In the instant case it cannot be said that Jackson’s initial inculpatory statement, made shortly following his encounter with Mrs. Davis, was voluntary. A brief re-creation of the scene makes this conclusion manifest. After arriving at the police station the defendant was informed that he was a suspect in a robbery. He was separated from his family and taken to a room occupied by several police officers. He was then advised of his rights and, according to the testimony of the police officer in charge of the investigation, Jackson specifically stated "I will not speak to you unless I speak to an attorney first.” He then asked the officers to place a telephone call for him, and they made two or three attempts to do so. After a brief conference with his family in which he made repeated requests that a lawyer be provided, his parents were asked to leave and he and his family were informed that he was being arrested for the robbery. In spite of this assertion of his constitutional right, the officers did not refrain from any further molestation of Jackson, but rather, by their own testimony, they "informed him that Larry Davis was still being considered a co-defendant in this case. We gave him the facts as to what took place that day in the robbery.” Then, somewhat inexplicably, the crying mother of the other youth confronted Jackson and implored him to clear her son, at which point the defendant made his initial damaging statement.

These factors, taken together, preclude a finding of voluntariness. Rather, they evince the very type of behavior by law enforcement officials which is constitutionally impermissible and Jackson’s "statement * * * cannot be [regarded as] other than the product of compulsion, subtle or otherwise” (Miranda v Arizona, supra, at p 474; see Michigan v Mosley, 423 US 96, 110, n 2 [White, J., concurring]). To hold voluntary a statement obtained only after the defendant has been subjected to a prolonged and almost unbroken series of events which brought to bear enormous, psychological pressure to confess, flies in the face of established constitutional principles (see People v Chapple, 38 NY2d 112, 115; cf. United States ex rel. B. v Shelly, 430 F2d 215, 218). Jackson had clearly requested to speak with a lawyer. The police, in utter disregard of this request and of the defendant’s constitutional rights, continued to subject him to tactics which they must have known might induce the defendant to capitulate and submit to their authority (see People v Watts, 35 AD2d 802, affd 29 NY2d 571; compare People v Carbonaro, 21 NY2d 271). To condone the type of gamesmanship practiced here would enable law enforcement authorities to all too easily circumvent constitutionally mandated procedures.

Finally, we confront the question of the admissibility of the defendant’s statements, including the written confession, after he had been reread the preinterrogation warnings and had signed the waiver. It is true that the assertion of a defendant’s right to remain silent, or to be free from questioning until his lawyer is present, does not bar any subsequent questioning after he has once again been advised of his rights (Michigan v Mosley, 423 US 96, supra; People v Gary, 31 NY2d 68, supra). However, once the défendant has asserted his right, the People must respect it and a subsequent waiver of that right is ineffective where, as here, it is obtained only after continued and unbroken harassment of the defendant (see People v Watts, 35 AD2d 802, affd 29 NY2d 571, supra; cf. Westover v United States, 384 US 436; People v Chapple, 38 NY2d 112, supra).

In the instant case, Jackson was advised of his rights for the second time and the waiver obtained on the heels of an ongoing interrogation. There was no significant hiatus in this continuum of confrontation. The defendant was not allowed to return to the point where he was no longer under the influence of the prior impermissible interrogation (see People v Chapple, supra, at p 115) and therefore it cannot be said that the People have met their burden in establishing a knowing, willing and voluntary waiver of his rights (see Miranda v Arizona, 384 US 436, 475, supra; People v Ramos, 40 NY2d 610, 618).

Accordingly, the order of the Appellate Division should be reversed, and all of the defendant’s statements should be suppressed.

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

Order reversed, defendant’s statements suppressed and a new trial ordered.


author: Fuchsberg, J.

text:
    Ralph G. Caso, as County Executive of Nassau County, Appellant, v John Coffey et al., Constituting the Nassau County Public Employment Relations Board, et al., Respondents. In the Matter of the Arbitration between Albany Permanent Professional Firefighters Association, Local 2007, I.A.F.F., AFL-CIO, Respondent, and Erastus Corning, II, as Mayor of the City of Albany, et al., Appellants, and Public Employment Relations Board, Respondent.
    Argued November 15, 1976;
    decided December 22, 1976

      James M. Catterson, Jr., County Attorney (Natale C. Tedone of counsel), Mineola, for appellant in the first above-entitled proceeding.

      Bruno Baratta, Mineola, for John Coffey and others, respondents in the first above-entitled proceeding.

      Richard Hartman and Anthony W. Cornachio, Mineola, for Daniel Greenwald and another, respondents in the first above-entitled proceeding.

      John E. Roe, Corporation Counsel (Francis Bergan and Vincent J. McArdle, Jr., of counsel), Albany, for City of Albany, appellant in the second above-entitled proceeding.

      Richard P. Walsh, Jr., and James Paul Clough, Schenectady, for Albany Permanent Professional Firefighters Association, respondent in the second above-entitled proceeding.

      Martin L. Barr and Robert J. Miller, Albany, for Public Employment Relations Board, respondent in the second aboveentitled proceeding.
   Fuchsberg, J.

In these two cases we confront directly the question of the manner and scope of judicial review of awards made by public arbitration panels acting pursuant to subdivision 4 of section 209 of the Civil Service Law in their determination of disputes arising from failures of local governments and their employees to reach collective bargaining agreements.

The County of Nassau and its police and the City of Albany and its firefighters, after exhausting all intermediate steps in negotiating new contracts, submitted their controversies to binding, compulsory arbitration pursuant to the mandate of the Taylor Law (Civil Service Law, § 209, subd 4). Each arbitration panel reached a determination and made an award which reflected in part the requests of the government and in part those of the employees.

In the first case, the Appellate Division dismissed an article 78 proceeding (with a request for relief in the alternative under article 75) brought by Ralph Caso, the County Executive of Nassau County, against the Nassau County Public Relations Board to review and annul a panel’s award of a wage increase to the police and granted the cross motion of the board to confirm the award, holding that article 78 is the proper procedural vehicle for its review and that on such review the appropriate standard is whether the award is supported by substantial evidence (CPLR 7803, subd 4). The county had joined the collective bargaining agent for the police, Nassau County Patrolmen’s Benevolent Association, as a respondent.

In the second case, a proceeding pursuant to CPLR article 75 (CPLR 7510) brought by the Albany Permanent Professional Firefighters Association to confirm a panel’s award was consolidated by the Appellate Division with an article 78 proceeding brought by the city against both the Albany Public Employment Relations Board (PERB) and the members of the arbitration panel to annul that award. The firefighters were intervenors in the latter proceeding. The Appellate Division unanimously affirmed judgments of the Supreme Court which confirmed the award in the firefighters’ proceeding and dismissed the city’s article 78 proceeding, holding that article 75 was the proper procedural vehicle, but "broadened in scope” by our decision in Mount St. Mary’s Hosp. v Catherwood (26 NY2d 493) to make applicable on review the test as to whether the determination "was arbitrary or capricious”. (51 AD2d 386, 390.)

Preliminarily, we note that subdivision 4 of section 209 of the Taylor Law, applicable when local governments and their police or firefighters cannot reach agreement on a new contract, does not specify either the procedure or the standard by which the arbitrations it mandates are to be tested. Indeed, it does not expressly provide for any review. But such legislative silence does not mean that the actions of the arbitrators are therefore unreviewable (see Matter of Guardian Life Ins. Co. v Bohlinger, 308 NY 174, 183). At least since our decision in Mount St. Mary’s Hosp. v Catherwood (supra), a case that arose under a different statute, it has been clear that, in New York, when arbitration has been made compulsory rather than consensual, availability of review sufficient to meet due process standards is required (Mount St. Mary’s Hosp. v Catherwood, supra, pp 501, 508).

We therefore focus first on the proper procedural path for review of compulsory Taylor Law arbitrations, a question which, though it has previously invited judicial concern (see City of Amsterdam v Helsby, 37 NY2d 19, 38-41; Matter of Buffalo Police Benevolent Assn. v City of Buffalo, 81 Misc 2d 172), is met head on by us for the first time today. We now decide that the appropriate vehicle for review is article 75.

A number of considerations dictate that view. Section 209, in denominating "arbitration” as the final step in resolving these disputes, makes unqualified use of that word; article 75 is our only statutory vehicle for the enforcement of arbitration. It is structured to provide the procedural and practical guidance most useful to both courts and parties in obtaining review in an orderly fashion (see, e.g., CPLR 7511). Perhaps most importantly, it is not the PERB or the arbitration panel but the local governments and their employees who are the real parties in interest; it is under article 75 procedure, and not under that provided by article 78, that both parties in interest will be brought face to face with one another as advocates of their respective positions. In contrast, the PERB, which itself possesses no power to review the arbitration award, after having completed its role in facilitating the mediational and negotiational steps the statute requires of the parties preceding arbitration (Civil Service Law, § 209, subd 4, pars [a], [b]), and after setting up the arbitration itself (§ 209, subd 4, par [c], els [i], [ii]), plays no part in the actual conduct or decision-making of the arbitration panel and, as a consequence, will not be possessed of the knowledge relevant to facilitate review. There is no logical reason to call upon the PERB to defend a decision which, for all that appears, may be different from the one it would itself have reached.

For its part, the arbitration panel, as pointed out in the Albany case by Mr. Justice Larkin at the Appellate Division, Third Department, is an ad hoc body composed of three citizens (§ 209, subd 4, par [c], cl [ii]); by the time of review, it will already have made its views available to the court in its decision and on the record in the case. It is called into existence only to decide the dispute before it. It represents neither of the parties. Moreover, a requirement that those who serve on such panels be prepared to defend their awards in court, perhaps even at their own expense, could only work to discourage qualified and competent persons from serving as arbitrators and, perhaps, even to frustrate the flexible design of the arbitral process itself.

We turn next to the question of whether the arbitration awards made under subdivision 4 of section 209 are to be treated as quasi-judicial or as quasi-legislative for purposes of review.

In that connection, we note first that, though the statute itself pointedly directs the attention of the panel to such vital factors as the comparability of the benefits received by the employees before it with those of similar employees in public and private employment in comparable communities, the financial ability of the public employer to pay, and the public interest (§ 209, subd 4, par [c], cl [v], subcls a-d), it mandates that they be taken into "consideration” only "so far as it deems them applicable” (§ 209, subd 4, par [c], cl [v]). Similarly, the precatory language that the "panel shall make a just and reasonable determination of the matters in dispute”, an injunction expressly intended for the panel and not reviewing courts, bespeaks a like elasticity. (§ 209, subd 4, par [c], cl [v].) The latitude with which these phrases are to be applied is suggested also by the fact that the essential function of these compulsory arbitration panels is to "write collective bargaining agreements for the parties” (Mount St. Mary’s Hosp. v Catherwood’ 26 NY2d 493, 503, supra). It follows that such awards, on judicial review, are to be measured according to whether they are rational or arbitrary and capricious in accordance with the principles articulated in Mount St. Mary’s Hosp. v Catherwood (supra) (see CPLR 7803, subd 3, for parallel language).

Of course, the presence of evidence pertaining to any or all of the specific criteria which are to be "considered” is a factor to be taken into account when determining whether the award itself is founded on a rational basis (see Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Graziani v Rohan, 10 AD2d 154, affd 8 NY2d 967). An award may be found on review to be rational if any basis for such a conclusion is apparent to the court (Matter of Pell v Board of Educ., supra; see Matter of Campo Corp. v Feinberg, 279 App Div 302, affd 303 NY 995). And it need only appear from the decision of the arbitrators that the criteria specified in the statute were "considered” in good faith and that the resulting award has a "plausible basis” (Matter of Caruci v Dulan, 41 Misc 2d 859, 862, revd on other grounds 24 AD2d 529). Though the presence of evidence which could have met a substantial evidence test may serve to meet the test of rationality, the substantial evidence test as such is not the criterion here (Mount St. Mary’s Hosp. v Catherwood, supra, p 508).

In point of fact, in each of the cases before us, the records and the opinions of the arbitrators indicate that the panels gave careful consideration to the criteria enumerated by subdivision 4 of section 209 and were alert to the ravages which rising inflation and economic stress are now visiting on local governments and their employees alike. In the Albany case, voluminous and detailed exhibits and its Mayor’s vigorous amplification of the city’s written and detailed presentation of its tax resource limitations and over-all costs were presented; in juxtaposition the firefighters’ presented their own economic and comparative scale proof in great detail. The panel there, obviously selective in its award, while allowing a wage increase equal to that earlier recommended by the impartial fact finder, rejected the firefighters’ economic benefit demands relating, among other things, to pension, longevity, vacation, overtime, personal leave and release time. In the Caso case, Mr. Justice Hopkins, writing for the Appellate Division, Second Department, went so far as to describe the extended evidence presented there as "monumental” and specifically found that "serious and close attention was devoted to all of the matters mandated for consideration by the statute”. (53 AD2d 373, 379.)

Nevertheless, we comment on two subsidiary issues raised by the parties. First is the county’s contention, in the Caso case, that the burden of proof to show that it has the ability to pay the award should be placed upon the employees under a kind of presumption that the county’s best offer during bargaining prior to arbitration represented its good faith statement of the most it could afford. But our statutes and case law indicate plainly that the burden to show invalidity of any arbitral award is upon the party who brings a proceeding to set it aside (see Korein v Rabin, 29 AD2d 351; Matter of Brill [Muller Bros], 40 Misc 2d 683, revd on other grounds 17 AD2d 804, affd 13 NY2d 776, cert den 376 US 927; see, generally, 16 Williston, Contracts [3d ed], § 1923A, p 650) and, for that matter, in a proceeding brought to review a quasi-legislative determination made by an agency, the burden again is on the party who challenges to show that the determination lacks rational basis (see Matter of Pell v Board of Educ., 34 NY2d 222, supra; Matter of Mallen v Morton, 199 Misc 805; 1 NY Jur, Administrative Law, § 182, and cases cited therein).

The second subsidiary issue was raised by the City of Albany. It contends that, as no "record” of the, proceedings before the arbitration panel was made, proper review cannot be had here. It is undisputed that neither party in the Albany case made advance written request for a reporter for the purpose of making a verbatim transcript (see PERB’s rules, 4 NYCRR 205.7 [d]), not even when the chairman of the panel made particular inquiry of both sides at the outset of the hearings.

Finally, the fact that the Caso proceeding was brought solely under article 78 and was adjudicated on review by the Appellate Division under the substantial evidence test is no bar to our upholding that court’s confirmation of the arbitral award in this instance. Although in a proceeding brought in form under article 78 the governmental or administrative agency rather than the employees or their collective bargaining agent would be expected to be the respondent, here the collective bargaining agent was joined and has submitted a brief on this appeal in which it is made clear that confirmation is exactly what the employees seek; thus, they are not prejudiced by an affirmance. Moreover, the opinion in the Appellate Division, in detailing its reasons for confirming the award, more than adequately shows that the panel had a rational basis for the result it reached.

Accordingly, the determination of the Appellate Division in each case should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Cooke taking no part.

In Caso v Coffey: Judgment affirmed, with costs.

In Matter of Albany Permanent Professional Firefighters Assn. (Corning): Order affirmed, with costs.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Joseph Sapia, Appellant.
    Argued November 15, 1976;
    decided December 28, 1976

      Irving Anolik, New York City, for appellant.

      Robert M. Morgenthau, District Attorney (David I. Pincus and Peter L. Zimroth of counsel), New York City, for respondent.
   Jones, J.

With respect to the principal issue tendered on this appeal we hold that in the circumstances of this case the prosecution had no obligation, after identifying and producing an informer, to grant him immunity when, in the exercise of his privilege against self incrimination, the informer refused to give what, assumedly, would have been exculpatory testimony.

Earl Fodderell was one of several persons arrested and indicted on Federal charges arising out of an extensive, cooperative drug investigation conducted by local and Federal law enforcement officers. After Fodderell, reputedly a large narcotics distributor in New York City, had pleaded to the Federal charges, he indicated his willingness to co-operate with the New York City police in further investigations and was registered as a confidential informer. In consequence of disclosures by Fodderell, police attention was focused on defendant and plans were made for his apprehension. Fodderell participated in the formulation of plans for a purchase from defendant. He introduced the undercover officer to one Gardner, a friend of defendant destined to be the intermediary, and assisted in arranging a first appointment which was never kept by defendant. Fodderell again was active in setting up a second meeting between the undercover officer and defendant on June 27, 1973 at which both Fodderell and Gardner were present. The purchase money, together with a payment for Gardner’s services, was handed to Gardner and the details of a transfer from defendant were worked out. Fodderell apparently was an eyewitness to the sale at that time by defendant to the undercover officer of four ounces of heroin. Defendant made another sale to the same undercover officer on July 6, 1973, this time of one kilo of heroin. While this sale, too, could be attributed to Fodderell’s earlier co-operation, it does not appear that he had any direct part in arranging it, nor was he a witness to its execution.

At his trial defendant sought to interpose the defense of entrapment. During the course of lengthy arguments incident to adverse rulings as to the admissibility of evidence offered by defendant in support of such defense, the trial court suggested that defendant call Fodderell to give testimony concerning his claim. After initially opposing this suggestion, and particularly because of the court’s exclusion of other evidence, the defense decided to interview Fodderell who was then serving a 12-year sentence on the Federal drug charges. After an initial interview, defense counsel requested that Fodderell be brought to court. The prospective witness appeared with his attorney who stated that Fodderell would invoke his privilege against self incrimination and refuse to testify unless granted immunity.

After an in camera discussion with Fodderell’s attorney out of the presence both of defense counsel and of the prosecutor and without disclosing the nature or particulars of Fodderell’s prospective testimony, the Trial Judge concluded that, if believed, the testimony would be exculpatory and constituted material evidence which the jury should hear. The prosecution declined the trial court’s repeated suggestion that the witness be granted immunity (CPL 50.30). Fodderell’s attorney thereupon reported that his client refused to be interviewed further by the defense.

The Trial Judge apparently was not satisfied with the representations of Fodderell’s attorney in this regard, and accordingly, Fodderell was himself called to the witness stand out of the presence of the jury. Following discussion of the situation with the court, Fodderell agreed to confer further with defense counsel. After such conference defense counsel became less than enthusiastic to call the witness, conceding some weaknesses in the prospective testimony.

The following day the dilemma was resolved. On advice of his counsel Fodderell informed the court that he had reconsidered his predicament and would invoke his privilege against self incrimination. The prosecution restated his opposition to any grant of immunity. The defense requested permission to call Fodderell to the stand, to ask questions and to require the witness to exercise his constitutional privilege in the presence of the jury. This request was denied, but the court did instruct the jury that Fodderell had been called as a defense witness and in its absence had invoked his privilege against self incrimination. The jury was advised not to speculate about the reasons for Fodderell’s exercise of his constitutional rights, and the Fodderell chapter was closed.

Defendant now advances several grounds for reversal of his conviction by the jury. Principally his contentions revolve around Fodderell. First, it is asserted that defendant was prejudiced by the People’s failure to call Fodderell, so frequently and importantly referred to in the People’s proof, as a prosecution witness, which effectively denied defendant his constitutional right of confrontation. We know of no instance, however, in which a court has dictated to a prosecutor whom he shall call to the witness stand. (Clearly to be distinguished are both the extent of the obligation, if any, of the prosecutor to make potential witnesses available to the defense, and the entitlement of the defendant to an instruction as to inferences which may be drawn from the failure of the prosecution to call a witness; but neither of such issues has any place in this case.)

Additionally, defendant contends that it was prejudicial error to deny defense counsel’s request to call Fodderell to the witness stand and to put him to his claim of privilege against self incrimination in the presence of the jury. We have no hesitancy to state our conclusion that there was no abuse of discretion by the Trial Judge in this regard. (United States v Martin, 526 F2d 485, 487.)

More troublesome is the question identified and addressed in the opinions at the Appellate Division and adverted to by the People—whether in the circumstances of this case the failure of the prosecution to confer immunity, and thereby to make Fodderell’s testimony available to the defendant, warrants reversal (cf. People v Tyler, 40 NY2d 1065).

There can be no serious doubt as to Fodderell’s right to assert his constitutional privilege in this case. Even if the content of his prospective testimony were to be deemed insulated by his conviction on the Federal charges—a proposition which is not entirely clear—there is substance to the argument that his proposed testimony would have been so inconsistent with prior statements he had made to Federal authorities as to expose him to conviction for perjury. No serious contention is now advanced that the privilege was not warranted; the focus is rather on the prosecution’s failure to respond to the court’s urgings that the witness be granted immunity.

In our analysis, if it be assumed both that the witness properly exercised his right to refuse to testify and that the testimony he would have given would have been materially exculpatory (as appears to have been the conclusion of the trial court), the failure of the prosecution to grant immunity did not deny defendant due process or deprive him of his right to a fair trial in the circumstances of this case.

Preliminarily we observe that the right guaranteed a defendant under the Sixth Amendment to our Federal Constitution, "to have compulsory process for obtaining witnesses in his favor”, like so many other rights, whether of constitutional sanction or of lesser stature, is not absolute. The right exists only to the extent that witnesses may otherwise be compelled to attend and to testify; the Constitution mandates no more. Thus, there is manifestly no constitutional right to obtain the attendance of a witness who has died or disappeared or is otherwise unavailable. Similarly there is no right to compel testimony over a claim of recognized privilege such as that of client-attorney or of penitent-priest. Nor may testimony be extracted from a witness who appears but persistently refuses to testify despite the sanction of punishment for contempt. Furthermore, in none of such instances do our courts accord a broader meaning to the Sixth Amendment guarantee by holding that where the desired testimony may not be compelled, such circumstance requires that the conviction of the defendant be set aside. So, too, it must be where the testimony is unavailable because the witness takes refuge in his constitutional privilege against self incrimination. "The Government cannot be penalized, either under the Compulsory Process Clause of the Sixth Amendment or the law of entrapment, because [Fodderell] chose to exercise his Fifth Amendment rights, thus making himself as unavailable for purposes of testimony as the deceased informant in United States v. Soto [504 F2d 557].” (United States v Gomez-Rojas, 507 F2d 1213, 1220, cert den 423 US 826.)

The issue in the present case must be approached, therefore, not in the perspective of defendant’s rights under the Sixth Amendment, but rather in the perspective of defendant’s right to due process. "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution” (Brady v Maryland, 373 US 83, 87). The critical issue, of course, is when may it be said that the prosecution is "suppressing” such testimony? In its norrtial context suppression is thought to connote a willful, or, in rare instances, an unintentional, withholding of evidence. There was no such suppression here, however, inasmuch as defendant was apprised of the identity of the informer and afforded an opportunity to interview him. Fodderell was later produced at the courthouse. In these circumstances, no issue can be raised as to any violation of defendant’s right to disclosure of the identity of the informer (cf. People v Goggins, 34 NY2d 163), or as to any failure of the prosecution to produce the informer. The question here is whether more may be required of the prosecution; was this defendant’s constitutional right to a fair trial denied because the prosecution did not take substantial affirmative steps and by granting effective immunity make the critical testimony available to the defense?

We agree, arguendo, that there might be substance to a contention that if an informer has also been an active participant in the criminal transaction—as an agent of the law enforcement authorities—the prosecution may not block a defendant’s access to the testimony of such a witness by refusing to grant immunity. In those circumstances it could be argued that the People had placed themselves on the horns of a dilemma and must either grant effective immunity (thus making the testimony available to the defendant so far as it lies within the power of the prosecution to do so), or, alternatively, accept a dismissal of the prosecution (Rovario v United States, 353 US 53, 61). The delineation of the obligations of the prosecution and of the rights of the defendant in such a situation, however, must await another day. That is not the case now before us.

In the present instance, at most Fodderell was a facilitator and an observer. He was the source of the information which led to investigation of defendant and he participated in the preparations for the sales. He may have been an eyewitness to one of them. In short, his was the now familiar role of the informer; he was not an actor in the criminal transactions. The limited extent of Fodderell’s involvement is determinative. The prosecution here was not obliged to grant immunity and its failure to do so does not entitle this defendant to a reversal of his conviction (United States v Bautista, 509 F2d 675, 677, cert den sub nom. Monsivais v United States, 421 US 976; Earl v United States, 361 F2d 531, cert den 388 US 921).

We have examined the other assertions of error advanced by defendant and find them to be without merit. In particular, it was not error to deny defense counsel access to a tape recording of a postindictment interview between defendant and the police. The trial court listened to the entire recording and concluded that it was of an interview in which the police sought defendant’s co-operation in wholly unrelated matters, and that there was nothing therein having any relevance to the case on trial. The assertion that there might be material on the tape which could be used on cross-examination of defendant and that that possibility chilled defendant’s readiness to take the witness stand in his own behalf, to the extent that it is not met by the trial court’s evaluation of the recording, is the product only of sheer, unsupported speculation.

Nor was it error to deny defense counsel’s request to play to the jury another tape recording of a conversation between defendant and his counsel, assertedly prepared ante litem motam, designed to substantiate the claimed defense of entrapment. This would have been self-serving hearsay of the most evident nature (cf. Richardson, Evidence [10th ed], § 356).

Finally, we find no error in the trial court’s instructions to the jury with respect to the tape recordings made of the criminal transactions which constituted the basis for the charges against defendant or in its refusal to give the circumstantial evidence charge requested by defense counsel.

The order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

       We do not consider it significant that the nature and particulars of the proposed testimony were never revealed to the prosecution or that defense counsel never made a formal tender of proof. It suffices that the Trial Judge satisfied himself as to the content of the testimony and evaluated it as exculpatory if believed. We think this provides a sufficient basis for the rights to which defendant is said to be entitled.