author: Fuchsberg, J. Gabrielli, J.

text:
    The People of the State of New York, Appellant, v Theodore Pepper, Respondent. The People of the State of New York, Appellant, v Wayne Claude Utter, Respondent. The People of the State of New York, Respondent, v Gumersindo Torres, Also Known as Jose Torres, Appellant.
    Argued May 7, 1981;
    decided June 16, 1981

      POINTS OF COUNSEL

      Sol Greenberg, District Attorney (George H. Barber of counsel), for appellant in the first above-entitled action.
    I. Under decisions of this court and the United States Supreme Court People v Samuels should not be retroactive. (Simmons v United States, 390 US 377; People v Burd, 18 NY2d 447; People v Droz, 39 NY2d 457; People v Samuels, 49 NY2d 218; Michigan v Tucker, 417 US 433; Gosa v Mayden, 413 US 665; Johnson v New Jersey, 384 US 719; Stovall v Denno, 388 US 293; People v Kaiser, 21 NY2d 86; Linkletter v Walker, 381 US 618.) II. This court has the power under the United States Constitution and the laws of New York to give prospective application only to People v Samuels. (Wainwright v Stone, 414 US 21; Great Northern Ry. v Sunburst Co., 287 US 358; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154.) III. People v Samuels is in contravention of the United States Constitution as interpreted by the United States Supreme Court in Faretta v California and should be overruled. (Faretta v California, 422 US 806; Gannett Co. v De Pasquale, 443 US 368.) IV. People v Samuels violates the Ninth, Tenth and Fourteenth Amendments to the United States Constitution and the inherent right of the People to personal safety and should be overruled. (Voigt v Webb, 47 F Supp 743; United States v Lynch, 94 F Supp 1011, 189 F2d 476, 342 US 831; United States v Grimes, 229 F Supp 289.)

      Peter R. Porco and Paul E. Cheeseman for respondent in the first above-entitled action.
    I. The decision of the court below which applied Peaple v Samuels retroactively to the instant case should be affirmed. (People v Settles, 46 NY2d 154; People v Skinner, 52 NY2d 24; People v Samuels, 49 NY2d 218; People v Cunningham, 49 NY2d 203; People v Blake, 35 NY2d 331; People v Di Biasi, 7 NY2d 544; People v Miller, 76 AD2d 576; Linkletter v Walker, 381 US 618; Great Northern Ry. v Sunburst Co., 287 US 358; People v Simone, 48 AD2d 497.)

      Colin E. Ingham, District Attorney, for appellant in the second above-entitled action.
    I. To determine whether defendant’s statement, admission or confession is admissible against him at his trial, the totality of the circumstances under which he made the statement, admission or confession must be examined to determine whether he knowingly, intelligently and voluntarily waived his right to counsel, the application of any inflexible per se rule in such circumstances being unconstitutional. (People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154; People v Coleman, 43 NY2d 222; People v Huntley, 15 NY2d 72; Faretta v California, 422 US 806; People v Bodie, 16 NY2d 275; North Carolina v Butler, 441 US 369; Johnson v Zerbst, 304 US 458; Fare v Michael C., 442 US 707.) II. The rule enunciated in People v Samuels should not be retroactively applied to any criminal cases commenced prior to the decision dated February 15, 1980. (Stovall v Denno, 388 US 293; De Stef ano v Woods, 392 US 631; Johnson v New Jersey, 384 US 719; People v McQueen, 18 NY2d 337; Escobedo v Illinois, 378 US 478; Miranda v Arizona, 384 US 436; People v Samuels, 49 NY2d 218; People v Arthur, 22 NY2d 325; People v Seaman, 77 AD2d 672; People v Pepper, 76 AD2d 1006; People v Gordon, 77 AD2d 659; People v Parker, 78 AD2d 580.)

      James L. Dowsey, III, for respondent in the second above-entitled action.
    I. This court has established a per se rule of criminal procedure pursuant to People v Samuels, the totality of circumstances test is inapplicable to custodial interrogation in the absence of counsel. (People v Arthur, 22 NY2d 325; Oregon v Hass, 420 US 714.) II. The decision in People v Samuels should be given retroactive effect. (People v Ermo, 47 NY2d 863; People v Cullen, 50 NY2d 168; People v Bell, 50 NY2d 869; People v Parker, 78 AD2d 580.)

      Edwin Ira Schulman for appellant in the third above-entitled action.
    The confessions obtained after a felony complaint was filed accusing appellant of homicide and his arrest for said charge should be suppressed because they were obtained in a pending criminal action in the absence of counsel and without counsel’s consent. (People v Samuels, 49 NY2d 218.)

      Eugene Gold, District Attorney (Beth S. Lasky of counsel), for respondent in the third above-entitled action.
    The court’s decision in People v Samuels should not be applied retroactively to the instant case, in which the normal appellate process had been completed long before the Samuels decision. (People v Samuels, 49 NY2d 218; People v Muller, 11 NY2d 154, 371 US 850; Mapp v Ohio, 367 US 643; People v Huntley, 15 NY2d 72; Jackson v Denno, 378 US 368; People v Stockford, 24 NY2d 146; People v Malloy, 22 NY2d 559; People v Bodie, 16 NY2d 275; People v Arthur, 22 NY2d 325.)
   OPINION OF THE COURT

Fuchsberg, J.

Crucial to these three appeals, each emanating from a conviction of a felony unrelated to the others, is a common question. It calls upon us to determine what retrospective effect, if any, is to be accorded our decision in People v Samuels (49 NY2d 218), where in essence we held that once an accusatory instrument has been filed a defendant cannot waive his constitutional right to counsel save in the presence of counsel.

The Samuels rationale rested on a fundamental and uncomplicated principle, that once an accusatory instrument is filed, viewed realistically, the defendant is no longer a suspect but an accused, and the People’s role may then be said to have shifted from the more neutral theater of investigation to the far more aggressive one of prosecution. In this posture, unless our adversary system of criminal justice is to flounder on the happenstance of whether, for example, a particular defendant is ignorant or sophisticated, “any discussions relating thereto should be conducted by counsel [for] at that point the parties are in no position to safeguard their rights” (People v Settles, 46 NY2d 154, 164 [criminal proceeding initiated by indictment]).

The relevancy of the retroactivity of this holding to the cases at hand appear in the.following contexts:

In People v Pepper and People v Utter, statements were elicited from the defendants after felony complaints had been filed and arrest warrants had issued. In Pepper, the executing officers took the defendant to the police barracks; in Utter, it was to a police substation. At each location, it is established that, though the custodial warnings commanded by Miranda v Arizona (384 US 436) were given, the defendant voluntarily submitted to the uncounseled interrogation. In both cases, the implicated questioning occurred well before we decided Samuels. When the defendant in each case moved, inter alia, to suppress his statement, the respective County Courts heard and denied the motions. However, on each defendant’s appeal from his ultimate judgment of conviction, the Appellate Division, now acting post-Samuels, reversed the judgment, granted the motion to suppress and remanded the case to the County Court for further proceedings. The People now appeal from the orders of reversal, each by leave of a Judge of this court (CPL 460.20).

In People v Torres, two statements, one an oral confession made to a police detective and the other a stenographically recorded statement made to an Assistant District Attorney, were obtained from the defendant under circumstances sufficiently similar for the People to concede that Samuels is factually apposite. But, for present purposes, this case is distinguished from Pepper and Utter in the important respect that, after the trial court, here the Supreme Court sitting in Kings County, had denied suppression, the Appellate Division, before whom the appeal arrived before rather than after we ruled in Samuels, affirmed. To be precise, though sentence had been pronounced on Torres on March 3, 1976 and the Appellate Division affirmed his conviction on June 26, 1978, it was not until more than a year and a half later, January 15, 1980, that we decided Samuels. Long before then, on August 15, 1978, a Judge of this court had denied Torres’ application for leave to appeal (45 NY2d 831). The ultimate grant that presently brings up the defendant’s appeal was on an application for reconsideration presented post-Samuels (50 NY2d 1064).

The position of each party on the pivotal prospective versus retrospective issue is pointed. In all three cases, emphasizing, among a miscellany of considerations, that “Samuels established wholly new law in New York”, that it does not relate to the integrity of the fact-finding process, that law enforcement authorities have placed justifiable reliance on the “pre-Samuels” rule and that the impact of retrospective application on the administration of justice would be both adverse and “monumental”, the People ask that it be applied prospectively only to those cases tried after Samuels. However, against the contingency that we find Samuels applicable to cases still in the appellate process at the time we announced that decision, they urge, in the alternative, that in Torres’ case we treat the date when his initial application for leave to appeal to this court was denied as the end of his appellate road. As to the defendants, not surprisingly, Torres insists that his case is still not finally determined, and all three seek full retroactivity. For the reasons which follow, we believe the Appellate Division’s decision was correct in two of the cases and we do not reach the third because it was no longer in the appellate process.

None of the arguments submitted to aid us in fixing the most appropriate date for putting the overruling in question into effect is new. All have figured in the extensive attention the subject has received from jurists and commentators who in the last half century have searched for ways in which principled mitigation of the hardships that at times may accompany abrupt changes in decisional law can be achieved (see Overruling Decision — Application, Ann., 10 ALR3d 1371; Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only, 51 Marq L Rev 254; Cardozo, Address Before the New York State Bar Association, 1932 NYSBA Report 263, 296-298).

As a result, over the years, in some instances the historic common-law rule, that all cases on direct appeal must be decided in accordance with any newly declared but conceptually always existent principle, has been tempered where there was significant reliance on a now overruled and, therefore, in theory, erroneously stated precedent (see People v Morales, 37 NY2d 262, 267-268, and authorities cited thereat; Snyder, Retroactive Operation of Overruling Decisions, 35 Ill L Rev 121; Schaefer, Control of “Sunbursts”: Techniques of Prospective Overruling, 42 NYU L Rev 631). However, notwithstanding such departures and the underlying tensions they display, overall much of the vitality of the traditional rule has survived the debate. This steadfastness is consonant with the fact that in any event most decisional law acts on past events. The retro-activity principle is also symbolic of the credo that our government is one of laws and not of men, a concept which depends heavily on a sense of continuity. (See Montague v Vinzant, 643 F2d 657, 659-660; Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv L Rev 56, 62-67.)

The conflict between these opposing forces has not left the area of criminal procedure untouched. In a series of opinions, both this court and the United States Supreme Court have addressed the subject, both in cases pending on direct appeal and, if the appellate process has been exhausted, where relief is sought in collateral proceedings (see, e.g., United States v Peltier, 422 US 531; People v Morales, 37 NY2d 262, 268-269, supra, and cases cited thereat).

This is not to say that definitive standards have evolved. But neither is the field untracked. As we noted in Morales (37 NY2d 262, 269, supra), useful, if general, guideline, are available. In judging whether it is more appropriate to adhere to rather than deviate from the common-law convention, be it to grant full retroactive application (permitting a collateral attack on a conviction no longer in normal appellate channels) or to limit relief to prospective police conduct or trials, in Desist v United States (394 US 244, 249), the Supreme Court stressed, and in Morales we had occasion to weigh, three factors: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards”. In this formulation, the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself (Desist v United States, supra, p 249).

Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial (Stovall v Denno, 388 US 293, 297 [right to counsel decisions “at stages of the prosecution where denial of the right must almost invariably deny a fair trial”] ; Holloway v McElroy, 632 F2d 605 [appellate review of sufficiency of evidence]). So too, at the other end of the spectrum, decisions which are only collateral to or relatively far removed from the fact-finding process at trial have been applied prospectively (e.g., United States v Peltier, 422 US 531, supra [exclusionary rule in search and seizure cases, the intended deterrent effect of the ruling having no necessary relationship to the reliability of the admitted proof]).

In contrast to the extremes described in these Federal cases, as our own decisions have made clear, a defendant’s right to counsel in pretrial encounters falls within a middle ground. So, while we have found retroactivity in order in such cases, its application has been limited to those still on direct review at the time the change in law occurred (e.g., People v Albro, 52 NY2d 619, 624; People v Bell, 50 NY2d 869; People v Singer, 44 NY2d 241, 251; People v Macedonio, 42 NY2d 944). In counterpoint, we have denied retroactive application where that process has been exhausted (People v Wooden, 46 NY2d 938; People v Robles, 42 NY2d 1051; People v Rivera, 16 NY2d 879).

We see no reason to depart from that course here. While we cannot say that uncounseled station house interrogations necessarily go to the ultimate issue of guilt or innocence, they are not insignificant events. Aside from the avoidance of incriminating statements, the benefits of introduction of counsel at that stage, with its concomitant advantages of early advice and investigation, are not to be ignored.

In addition, in balancing the importance of the right Samuels guarantees against its effect on other pending cases, we cannot lose sight of the fact that the relatively early terminal point of retroactivity limited to cases young enough to still be on direct appeal militates against the likelihood of prejudicial mildewing of witnesses’ memories.

The People’s reliance argument is even less impressive. For one thing, our decision need not have taken the People by surprise. Given the broad philosophical language of People v Hobson (39 NY2d 479, 484), which, in turn, had been more than foreshadowed by People v Arthur (22 NY2d 325) and the still earlier cases cited therein, it was hardly unanticipated. Indeed, since, as Justice Jackson put it realistically, “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances” (Watts v Indiana, 338 US 49, 59), it is difficult to perceive how they could have ended up in a different position from the one in which suppression leaves them, i.e., without the statement.

Appellant Torres, however, is not entitled to benefit from the change in law. The normal appellate process came to an end for him upon the original unconditional denial of his application for leave to appeal to this court (People v Muller, 11 NY2d 154, 156, cert den 371 US 850). Thereafter, only complete retroactivity could make Samuels applicable. And that, impermissibly, would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become its beneficiary. Absent “manifest injustice”, no exception was available to Torres (People v Robles, 42 NY2d 1051, supra).

Accordingly, each of the orders appealed from should be affirmed.

Gabrielli, J.

(concurring). I concur in the results reached by the majority in these appeals, but would base my conclusion on somewhat narrower grounds.

The question presented by these appeals is whether the rule enunciated in People v Samuels (49 NY2d 218) should be applied retroactively to cases on appeal at the time the decision was announced. In Samuels, we held that the “indelible” right to counsel attaches upon the filing of a felony complaint. Once a felony complaint is filed, the criminal action is formally commenced and the accused cannot thereafter validly waive his constitutional rights in the absence of counsel.

Our holding in Samuels was based upon People v Hobson (39 NY2d 479), which was routinely applied to cases that were in the appellate process at the time that decision was handed down (see, e.g., People v Macedonio, 42 NY2d 944). Indeed, each time there has been a new development in the line of cases based upon Hobson, the new rule has been applied in a similar retroactive manner (see, e.g., People v Albro, 52 NY2d 619; and People v Bell, 50 NY2d 869 [applying People v Rogers (48 NY2d 167) retroactively] ; People v Lucas, 53 NY2d 678; People v Prince, 50 NY2d 883 [applying People v Cunningham (49 NY2d 203) retroactively]). There is simply no logical justification for treating the Samuels rule differently.

In fact, the arguments in favor of according Samuels retroactive effect are particularly compelling, since the holding in that case was foreshadowed and even perhaps mandated by prior case law. In People v Settles (46 NY2d 154) we held that once an indictment is filed the “indelible” right to counsel attaches and the accused can no longer effect a valid waiver of his rights unless his attorney is present (see People v Hobson, supra [overruling People v Lopez (28 NY2d 23, cert den 404 US 840)]; 51 St John’s L Rev 216, 220-222; see, also, People v Blake, 35 NY2d 331). Although Settles involved an indicted defendant, the holding in that case was predicated upon the broader notion that a suspect is entitled to the full panoply of protections inherent in the State constitutional right to counsel when “the character of the police function shifts from investigative to accustory” (46 NY2d, at p 163). Settles thus made it perfectly clear that the formal commencement of a criminal action is sufficient to trigger the Hobson right to counsel. From Settles it required but a simple mechanical application of logic to conclude that the right to counsel would also attach upon the filing of a felony complaint, which, like the filing of an indictment, represents the formal commencement of a criminal action (CPL 1.20, subds 1, 8,17). Hence, far from representing an unexpected departure from precedent, Samuels was actually no more than a predictable elaboration of a well-settled and widely understood principle of law.

In light of the history of the Samuels rule, it is evident that the decisions of the Appellate Division in the Pepper and Utter cases should be affirmed. In each case, the Appellate Division, relying upon Samuels, reversed the conviction and ordered the inculpatory statement in question suppressed. Since the rights of both defendants were indisputably violated under our holding in Samuels and since Samuels is clearly applicable to cases such as these, which were in the appellate process at the time that decision was announced, there is no legal basis for upsetting the rulings made below.

A different analysis must be applied, however, in the case of defendant Torres, whose application for leave to appeal to this court was denied some 17 months before Samuels was handed down. Unlike defendants Pepper and Utter, the defendant in the Torres case had already exhausted his appellate remedies by the time Samuels was decided (see People v Muller, 11 NY2d 154, cert den 371 US 850), and, as our prior decisions indicate, he is therefore not entitled to have his conviction reopened on the basis of the Samuels rule (see People v Wooden, 46 NY2d 938; People v Robles, 42 NY2d 1051).

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

In each case: Order affirmed.

        . As required by People v Welcome (37 NY2d 811), the application for reconsideration was made to the Judge who initially denied leave to appeal. (See, also, 22 NYCRR 500.8 [b].)

      . We note that, while a Judge of this court has discretion to reconsider a prior denial of an application for leave to appeal, that discretion is exercised rarely (see People v Welcome, 37 NY2d 811, supra). All the more is this so in light of the availability of a proceeding to vacate a judgment pursuant to GPL article 440 in circumstances in which a decisional law must be given complete retroactivity (see People v Pohl, 23 NY2d 290).

       Indeed, we have already applied the holding in Samuels to cases which arose before that decision was announced (People v Lucas, 53 NY2d 678; People v Cullen, 50 NY2d 168, 174). In my view, these cases alone are sufficient to dispose of the issues presented in the Pepper and Utter appeals.


source: Caselaw Access Project

author: Jones, J. Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Peter Bartolomeo, Appellant.
    Argued April 27, 1981;
    decided June 16, 1981

      POINTS OF COUNSEL

      Richard A. Greenberg for appellant.
    I. Appellant’s uncounseled station house interrogation by Detective Rafferty nine days after appellant’s right to counsel had attached on pending felony charges in the same county violated his right to counsel under the authority of People v Rogers (48 NY2d 167) and the Sixth and Fourteenth Amendments to the United States Constitution. (People v Wander, 47 NY2d 724; People v Garofolo, 46 NY2d 592; People v Maerling, 46 NY2d 289; People v Pinzon, 44 NY2d 458; People v Macedonio, 42 NY2d 944; People v Hobson, 39 NY2d 479; People v Vella, 21 NY2d 249; People v Miller, 76 AD2d 576; People v Settles, 46 NY2d 154; People v Ramos, 40 NY2d 610.) II. The prosecutor’s knowing and uncorrected use at trial of his witness’ perjured testimony concerning the existence of a promise on a pending charge violated due process and appellant’s right to a fair trial guaranteed by the New York and United States Constitutions. (Du Bose v LeFevre, 619 F2d 973; People v Savvides, 1 NY2d 554; Giglio v United States, 405 US 150; Napue v Illinois, 360 US 264; Taylor v Lombard, 606 F2d 371.) III. The prosecutor’s introduction of evidence at trial, over objection, that others had attempted to suppress evidence or otherwise obstruct justice, without any showing that appellant knew of and authorized such conduct, deprived appellant of his due process right to a fair trial in violation of the New York and United States Constitutions. (People v Shilitano, 218 NY 161; People v Pignataro, 263 NY 229; People v Plummer, 36 NY2d 161; People v Buzzi, 238 NY 390.) IV. Appellant’s right of confrontation guaranteed by New York’s Civil Rights Law and the Sixth and Fourteenth Amendments to the United States Constitution, as well as his due process right to a fair trial guaranteed by the New York Constitution and the Fourteenth Amendment, were violated when the prosecution’s principal witness was permitted to invoke repeatedly his Fifth Amendment privilege on cross-examination without his direct testimony being stricken upon appellant’s timely motion. (People v Schneider, 44 AD2d 845, 36 NY2d 708; Pointer v Texas, 380 US 400; United States v Cardillo, 316 F2d 606, 375 US 822; People v Kelly, 48 AD2d 802; People v Baker, 39 NY2d 923, 429 US 868; People v Daniels, 37 NY2d 624.) V. The probable cause and due process standards of the New York Constitution and the Fourth and Fourteenth Amendments to the United States Constitution were violated by the issuance of a search warrant upon the hearsay confession of an alleged accomplice whose reliability (a) was not corroborated by any facts and (b) was known to be questionable by the submitting officer who nonetheless falsely swore otherwise in his own accompanying affidavit. (People v Elwell, 50 NY2d 231; People v Hanlon, 36 NY2d 549; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Wheatman, 29 NY2d 337; People v Sawicki, 60 AD2d 739; People v Everett, 60 AD2d 693; People v Wolzer, 41 AD2d 679; People v Johns, 41 AD2d 342; United States v Harris, 403 US 573.)

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
    I. Appellant’s admissions to the police were not obtained in violation of his right to counsel. (People v Rogers, 48 NY2d 167; People v Coleman, 43 NY2d 222; People v Garofolo, 46 NY2d 592; People v

      Marrero, 51 NY2d 56; People v Lynes, 49 NY2d 286; People v Miller, 76 AD2d 576; People v Samuels, 49 NY2d 218; People v Benitez, 76 AD2d 196; People v Brathwaite, 76 AD2d 931; People v Bacote, 76 AD2d 866; People v Whitaker, 75 AD2d 111; People v Bolden, 75 AD2d 622; People v Couch, 74 AD2d 582.) II. The witness Giordano testified truthfully at all times, and the prosecutor did not permit perjured testimony. III. Appellant was not deprived of a fair trial by the evidence of threats and intimidation. IV. Caprisecca’s invocation of his Fifth Amendment privilege on cross-examination and the court’s refusal to strike his direct testimony were appropriate. (United States v Cardillo, 316 F2d 606, 375 US 822; Dunbar v Harris, 612 F2d 690; People v Baker, 48 AD2d 662; People v Brown, 40 NY2d 381; People v Schneider, 44 AD2d 845, 36 NY2d 708; People v Jackson, 94 Misc 2d 33, 102 Misc 2d 443.) V. The application for the search warrant authorizing the seizure of defendant’s Volkswagen was sufficient. (People v Everett, 60 AD2d 693; People v Sawicki, 60 AD2d 739; People v Johns, 41 AD2d 342.)
   OPINION OF THE COURT

Jones, J.

Where to the knowledge of the interrogating officer a suspect being questioned had been arrested by the same law enforcement agency nine days previously on an unrelated charge, statements obtained in consequence of the interrogation must be suppressed if in fact the suspect is represented by an attorney with respect to the unrelated charge even though the fact of such representation is unknown to the officer. In such circumstances defendant cannot effectively waive his right to counsel unless the attorney is present. There need not be suppression, however, of evidence seized pursuant to a search warrant issued on the basis of a sworn statement by one who has personal knowledge of, and participated in, events which provide probable cause for the issuance of the warrant.

On this appeal from an order affirming a judgment convicting defendant of the crime of murder in the second degree after a jury trial defendant contends that numerous errors before and during trial, require reversal of his conviction. Because error was committed in the denial of his pretrial motion to suppress incriminating statements obtained from him while in custody in the absence of, and in violation of his right to, counsel, we reverse and remit for further proceedings without consideration of other alleged trial errors.

Findings of fact made by the Judge who presided at the suppression hearing, which have been affirmed by the Appellate Division, establish the following sequence of events. On May 27, 1978 defendant was arrested by the Suffolk County Police Department and arraigned on a charge of arson. At that arraignment defendant was represented by counsel, attorney Joseph Stabile.

Thereafter, on June 5, 1978, defendant was apprehended by officers of the same law enforcement agency and taken to its homicide headquarters in connection with an investigation then being conducted of the death of one John McLaughlin which had occurred the preceding April. At no time did defendant or his father, who was with him when he was taken into custody, refer to the fact that he had an attorney on the arson charge.

At the police station two homicide squad detectives, Rafferty and Donohue, both of whom knew of defendant’s arson arrest a few days earlier but neither of whom knew that he was represented by counsel in that matter, advised defendant of his constitutional preinterrogation rights. In response to questions from the detectives and without mention of the fact that he already had an attorney on the arson charge, defendant stated that he did not want an attorney and would answer the detectives’ questions without one. Detective Rafferty then informed him that he was under arrest for the McLaughlin homicide and, by relating details of a statement implicating defendant given by an accomplice Caprisecca (who was already in custody in connection with the crime), extracted from defendant the incriminating statements sought to be suppressed. Approximately three-quarters of an hour after defendant’s arrival at the police station, an attorney, who had been consulted by attorney Stabile concerning the arson charge, called the station and informed Detective Rafferty that he was representing defendant and wanted all questioning to cease. Thereupon the interrogation promptly came to an end.

In denying suppression of Detective Rafferty’s and Detective Donohue’s testimony as to the statements made to them by defendant while he was in custody on June 5, the Judge presiding at the suppression hearing concluded that there had been no violation of the defendants constitutional right of access to counsel at the time he waived his right to counsel, no attorney having entered the homicide proceeding at that time. “The defendant’s happenstance representation by an attorney in the unrelated arson proceedings, such fact being unknown to the homicide squad detectives, is insufficient to invoke the Hobson rule.” The Appellate Division affirmed, without opinion.

We reach a different conclusion and accordingly reverse the judgment of conviction. Knowledge that one in custody is represented by counsel, albeit on a separate, unrelated charge, precludes interrogation in the absence of counsel and renders ineffective any purported waiver of the assistance of counsel when such waiver occurs out of the presence of the attorney (People v Miller, 54 NY2d 616; People v Rogers, 48 NY2d 167). The same consequence flows from knowledge, such as that possessed by Detectives Rafferty and Donohue here, that the defendant has been arrested only seven days earlier by members of the game police department on an arson charge, if in fact the defendant has counsel on the earlier charge. This follows naturally on the awareness on the part of law enforcement personnel of judicial concern for, and protection of, a criminal defendant’s right to the aid of counsel at every critical stage of proceedings against him. Hence, the interrogating detectives here, with actual knowledge of the outstanding arson charge against defendant, were under an obligation to inquire whether defendant was represented by an attorney on that charge. Having failed to make such inquiry, the officers were chargeable with what such an inquiry would have disclosed — namely, that defendant did have an attorney acting on his behalf. With such knowledge they were foreclosed either from questioning defendant or from accepting his waiver of counsel’s assistance unless his attorney was then present. It was therefore error to deny suppression of testimony as to the statements made by defendant at the Suffolk County police station on June 5, 1978. For this reason, defendant’s conviction must be vacated.

We reject however defendant’s contention that it was error to deny suppression of his 1966 Volkswagen which had been seized pursuant to a search warrant issued by Suffolk County Court. (At the trial photographs of the vehicle taken by the police after its seizure were received in evidence, as was testimony by a resident of the neighborhood in which the homicide occurred, who had been shown the Volkswagen by the police, that it looked like a vehicle that he had seen there on the night of the homicide.)

The warrant which directed seizure of the vehicle, reciting that probable cause had been shown that the Volkswagen constituted evidence of a crime and tended to show that a particular person had committed a crime, was issued on presentation to a Suffolk County Court Judge of a sworn, written statement given by the accomplice Caprisecca which accompanied an affidavit by Detective Rafferty. The first of these documents contained a detailed eyewitness recital of events surrounding the McLaughlin homicide, including a description of Caprisecca’s and defendant’s midnight journey in defendant’s Volkswagen to the place of residence of the victim armed with a gun for the purpose of getting money, of their entry into the house after ringing the bell with no response, of defendant’s shooting the victim who was surprised on the premises, of their hurried departure in the Volkswagen, and of the subsequent disposal of the weapon by throwing it in a bay. Detective Rafferty’s affidavit stated that he had received information through a conversation with Caprisecca that (1) the described Volkswagen had been used during the commission of the identified April homicide and (2) that Caprisecca and defendant had committed the homicide, which information he characterized as reliable. In denying the request for suppression of defendant’s vehicle which had been seized pursuant to the warrant, the Judge before whom the suppression hearing was held found that reasonable and sufficient cause for the warrant had been demonstrated to the issuing Judge.

In that conclusion we find no error, an ample showing of probable cause (the sine qua non for issuance of a search warrant) having been made in the two documents — and, in particular, in the sworn statement by the accomplice Caprisecca — on which the request for the warrant was predicated.

Defendant’s insistence that the sufficiency of the documents submitted to the issuing Judge must be measured by the two-pronged test set out in Aguilar v Texas (378 US 108) is misplaced. The requirements of Aguilar must be met when a warrant is sought on the basis of an affidavit made by a law enforcement officer reciting information relayed to him by another person — often, as in Aguilar, an unidentified informant. In such a case, where the affidavit “ ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein’ ” (378 US, p 113), it must be shown both that the source from which the officer obtained his knowledge was reliable and that the information obtained from that source was itself entitled to be credited. Subsequent application of the Aguilar requirements, by both the Supreme Court of the United States and the courts of this State, have been in cases in which the material necessary to provide reasonable cause for the issuance of a warrant has been included in the affidavit of the officer applying for the warrant and has consisted of communications to the officer by a third person, unsupported by a sworn statement or affirmation of such third person (e.g., United States v Harris, 403 US 573; Spinelli v United States, 393 US 410; United States v Ventresca, 380 US 102; People v Wirchansky, 41 NY2d 130; People v Hanlon, 36 NY2d 549). In such a context there is need for disclosure to the issuing Magistrate of sufficient factual data to enable him to determine whether he may properly rely on the hearsay source of the officer’s information as well as whether he may credit the information itself.

The Aguilar standard is inapplicable, however, when there is presented to the issuing Magistrate a sworn statement of the factual information sufficient to establish probable cause for the warrant’s issuance, made by one— like Caprisecca in this case — as to whom the data is firsthand information by reason of his personal observations and participation in the events described. In such an instance there is no lack of personal knowledge on the part of the affiant — the factor significant in the Aguilar-type cases; rather the Magistrate has before him “facts or circumstances presented to him under oath or affirmation” (Nathanson v United States, 290 US 41, 47). A sufficient predicate for a finding of probable cause has been tendered; if the Magistrate entertains doubt as to the veracity of the maker of the sworn statement he may require that the affiant appear before him for examination before determining whether to issue the warrant. In the present case the County Court Judge was justified in concluding on the basis of the documents laid before him, including in particular Caprisecca’s detailed eyewitness narrative of the events surrounding the homicide, that there was reasonable cause for the seizure of defendant’s automobile. We perceive no error of law in that result (cf. People v Hicks, 38 NY2d 90; see People v Brown, 40 NY2d 183).

Defendant’s attempt to impeach the affidavit of Detective Rafferty by reason of what he contends amount to admissions by that officer that he knowingly, falsely characterized the information received from Caprisecca as “reliable” when in fact he believed it to be untrue at least in part, and thereby to bring this case within the proposition announced in Franks v Delaware (438 US 154) is unavailing. The cited case, holding that a defendant is not in every instance foreclosed from challenging the veracity of factual statements in an officer’s affidavit submitted to procure a search warrant, declared that if the defendant establishes that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit and that such false statement is necessary to the finding of probable cause, the search warrant must be voided. In the present case the doubt expressed by Detective Rafferty with respect to Caprisecca’s truthfulness had no relation to the abbreviated information obtained from the accomplice which was set out in the detective’s affidavit and described by him as “reliable”; that doubt concerned only details contained in Caprisecca’s oral conversation with the officers, none of which were included in either of the documents presented when the warrant was sought. Additionally, even if Rafferty’s affidavit were to be disregarded in its entirety, the sworn statement of Caprisecca alone was sufficient to provide probable cause for the issuance of the warrant (cf. People v Seidita, 49 NY2d 755). The principle of the Franks case is inapplicable.

Finally, there is no merit to defendant’s argument that the rule that a defendant may not be convicted on the testimony of an accomplice unsupported by corroborative evidence (GPL 60.22) should be applied as well to the establishment of probable cause for the issuance of a search warrant. No authority is cited or has been found to support such a proposition, and nothing in principle recommends its adoption. The statute prescribing the rule is itself expressly applicable only to convictions. Moreover, the significant difference in kind between the determination of guilt beyond a reasonable doubt as the predicate for the imposition of criminal sanctions, on the one hand, and the demonstration of probable cause sufficient to satisfy the constitutional requirements for search and seizure as the warrant for police investigation, on the other, justifies a differentiation (Brinegar v United States, 338 US 160).

Because of the error in the failure to suppress defendant’s statements made to Detectives Rafferty and Donohue in the absence of counsel, the order of the Appellate Division should be reversed, the judgment of conviction vacated, testimony as to such statements suppressed, and the case remitted for further proceedings on the indictment.

Wachtler, J.

(dissenting). A defendant who commits a crime while out on bail should not be immune from questioning by police with respect to his latest criminal acts. Such a rule would be a benefit to the repeat offender and an obstacle to law enforcement.

More specifically, the issue on this appeal is whether this court should extend the rule of People v Rogers (48 NY2d 167) to the facts of the present case. The majority holds that because the defendant had been represented by counsel on prior charges at the time of the interrogation the incriminating statements the defendant gave in the absence of counsel must be suppressed. The majority fails to accord significance to the fact that the police knew only that defendant had been previously arrested and did not know defendant had counsel on those earlier charges, or to the fact that defendant never indicated in any manner that he desired the aid of an attorney.

The defendant was convicted after a jury trial of felony murder in connection with a burglary in Deer Park, New York. Defendant, with an accomplice, entered the apartment of an acquaintance late at night apparently believing that no one was home. However, one of the occupants, the victim of the shooting, was alone at the time in a locked upstairs bedroom, unaware of the intruders. Upon discovering the locked door, defendant began to kick it open. When the victim appeared at the door the defendant drew his pistol and fired four to five shots, three of which struck the victim, inflicting the fatal wounds. Defendant and his companion immediately fled.

The defendant had parked his Volkswagen automobile, which was recognizable because of discolored paint and an inoperable left rear light, not far from the crime scene. When a canvass of the neighborhood disclosed that neighbors had seen the vehicle at or near the time of the crime, the police issued an alert which later resulted in a sighting of the vehicle near the defendant’s apartment. The homicide detectives were notified.

While the investigation continued, defendant and the same accomplice were arrested in connection with another burglary, this one in connection with an arson. However, for reasons which do not appear in the record, defendant was released from custody on that charge. Thus, at the time defendant was brought into custody for questioning on the murder charge, it was known by the police that defendant had been arrested and released about nine days before. There is no indication in the record that the interrogating officers knew whether defendant had been arraigned on the other charges, but the findings of fact by the suppression court clearly note that none of the police officers involved in the interrogation knew whether or to what extent the defendant had been represented by counsel. Though defendant never mentioned it to the police, it appears that he did in fact have counsel on the prior charges.

Once in custody the defendant was given his Miranda warnings, which he stated he understood, and after which the defendant indicated he would speak to the officers without an attorney. He was then confronted with a statement which had been given by his accomplice, and this prompted the inculpatory admissions which the defendant later moved to suppress. Both the suppression court and the Appellate Division agreed that the motion should be denied. I would affirm.

In doing so I would not suggest that in situations where a defendant by a request for counsel expresses a personal inability to deal with the power of the State the right to that counsel can ever be disregarded (see People v Marrero, 51 NY2d 56; People v Rogers, 48 NY2d 167, supra; People v Hobson, 39 NY2d 479). Nor would I advocate a retrenchment from the principle that a defendant is entitled to counsel at all critical stages of a criminal prosecution (People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154). What I do urge, however, is that neither of these principles requires the conclusion that a person who has once been arrested on a charge, however minor, upon which counsel has either entered the picture actually or constructively, must be insulated from uncounseled police interrogation (see People v Kazmarick, 52 NY2d 323). Such a conclusion, in addition to not being analytically required, serves to extend prior cases beyond their intended scope, create injustice, and benefit those who are frequently arrested.

It has never been held, nor does basic fairness require, that all police interrogations will always, and in all circumstances, take place in the presence of counsel. Implicit in this is a recognition that a defendant in most instances is capable of deciding for his own reasons whether he is in need of or desires such assistance. Also implicit is that there is no need for the paternalistic view that the police should assure the assertion of a defendant’s right to counsel, despite his own expressed wishes to the contrary.

To be sure, once asserted in a custodial setting the right to counsel would be of impaired value if it could be thereafter waived as a result of the often subtle persuasion against which the defendant originally sought protection (see People v Cunningham, 49 NY2d 203). For the same reason, the police will not be permitted to undo a request for counsel by shifting the focus of the interrogation to crimes unrelated to those on which the custody is based (see People v Rogers, 48 NY2d 167, supra). But a significantly different situation arises where the defendant has in no way, despite an expressed opportunity to do so, sought the advice of counsel in connection with a particular custodial event or on a particular charge (cf. People v Skinner, 52 NY2d 24). In that instance there is simply no indication of a defendant’s inability to deal with the police, and if he chooses to do so there is no inherent evil in permitting the defendant to proceed in the absence of an attorney.

To be distinguished, of course, are those cases where despite a defendant’s consent to an uncounseled interrogation, the right to an attorney nonetheless applies because the context has formally shifted from the investigatory to the critical accusatory state (see, e.g., People v Settles, 46 NY2d 154, supra). Because at that point a defendant is, as a matter of law, no longer capable of assessing without counsel the significance of his actions, any waiver of that right must be done in the presence of counsel or in open court. But logic does not support the assumption that because a defendant has a right to counsel in the critical stages of one proceeding, an equally critical phase has been reached in all other unrelated investigations. For this reason, it is not material that the police in this case knew of a prior arrest of the defendant on which his right to counsel might have attached.

It also does not necessarily follow that the knowledge of the police of defendant’s arrest is the equivalent of knowledge that he actually was represented by counsel. Beyond this, there certainly is no reason to assume on these facts that if there was counsel, that counsel would have become involved in a subsequent unrelated investigation, particularly in view of defendant’s assertion that he wishes to proceed without the assistance of counsel (cf. People v Arthur, 22 NY2d 325).

Nevertheless, the majority contends that the police were bound to make affirmative inquiries into the possibility that defendant might in some manner have been represented by counsel. However, neither the Federal courts, nor this court on any previous occasion has ever suggested the constitutional necessity for what must be recognized as a new addition to the litany of Miranda warnings. It is already the law that a suspect must be clearly told that he may refuse to say anything in the absence of his attorney. To say that the police must do more than this carries the right to counsel to unheard of extremes.

It is the common criminal, not the one-time offender, who nearly always will manage to have at least one serious charge pending, so that the attorney in the picture can provide him with virtual immunity from questioning in subsequent investigations. I had thought it clear that although our courts are sometimes required to let the guilty go free, this is not because the Constitution serves only the miscreant, but rather because our constitutional protections must apply evenly to us all. By its analysis I believe the majority has turned this basic principle completely around by providing what is in effect a dispensation for the persistent offender.

Accordingly, for the reasons stated above, I dissent and vote to affirm the judgment of conviction.

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

Order reversed, judgment of conviction vacated, statements made to Detectives Rafferty and Donohue suppressed and case remitted to Supreme Court, Suffolk County, for further proceedings on the indictment.

      . We intimate no views as to what might be the consequence in another case in which the defendant’s prior arrest is remote in time or place or is made by officers of another law enforcement agency (cf. People v Kazmarick, 52 NY2d 323, 328, 329).

      . The rule referred to was stated in People v Hobson (39 NY2d 479) at page 481: “Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer.”

      . Nothing found in the vehicle was introduced in evidence. Following the hearing on the motion to suppress, the court granted suppression of a .22 caliber cartridge found under the floor mat as not having been described in the search warrant.


author: Wachtler, J. Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Robert Adams, Appellant.
    Argued May 6, 1981;
    decided June 16, 1981

      POINTS OF COUNSEL

      Marilyn A. Kneeland and William E. Hellerstein for appellant.
    I. The prosecutor’s arbitrary refusal to grant immunity, at no cost to the People, to Louis Gaston so that he might freely testify that appellant was not his accomplice in the robbery deprived appellant of his right to compulsory process and his due process right to present exculpatory testimony. (Roviaro v United States, 353 US 53; People v Goggins, 34 NY2d 163; Brady v Maryland, 373 US 83; Wardius v Oregon, 412 US 470; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; Webb v Texas, 409 US 95; Bray v Peyton, 429 F2d 500; Gideon v Wainwright, 372 US 335; Bruton v United States, 391 US 123.) II. Appellant’s right to the due process of law was violated by admission of pretrial and in-court identifications of appellant, where such identifications resulted from a precinct showup in which the witnesses were warned that they would view the robbery suspects and then jointly be shown appellant and two other men, seated with their hands behind their backs and restrained by police officers. (Manson v Brathwaite, 432 US 98; Neil v Biggers, 409 US 188; Stovall v Denno, 388 US 293; People v Ballott, 20 NY2d 600; People v Mercado, 63 AD2d 720; People v Leite, 52 AD2d 895; United States v Johnson, 461 F2d 1165; People v Fuller, 71 AD2d 589; People v Gonzalez, 61 AD2d 666, 46 NY2d 1011; People v Logan, 25 NY2d 184.) III. The court’s charge concerning intent, that “the law says a person is presumed to intend that which he actually does,” deprived appellant of due process of law. (Sandstrom v Montana, 442 US 510; Mullaney v Wilbur, 421 US 684; People v Newman, 46 NY2d 126; People v Thomas, 71 AD2d 280; Brotherhood of Carpenters v United States, 330 US 395; Bollenbach v United States, 326 US 607; United States v Howard, 506 F2d 1131; Morissette v United States, 342 US 246.)

      Mario Merola, District Attorney (Steven R. Kartagener and Charles L. Bach, Jr., of counsel), for respondent.
    I. Appellant was proven guilty beyond a reasonable doubt by overwhelming evidence. II. The trial court properly exercised its discretion in refusing to confer judicial immunity upon a prospective defense witness after the prosecutor had refused to recommend that transactional immunity be conferred upon that witness. (People v Sapia, 41 NY2d 160; United States v Turkish, 623 F2d 769; United States v Lenz, 616 F2d 960; United States v Klauber, 611 F2d 512; United States v Graham, 548 F2d 1302; United States v Smith, 542 F2d 711; United States v Bautista, 509 F2d 675, cert den sub nom. Monsivais v United States, 421 US 976; United States v Morrison, 535 F2d 223; People v Arroyo, 46 NY2d 928.) III. The showup identifications of appellant were not unduly suggestive and in any event, the identifications were reliable and based upon an independent source; hence the courts below properly ruled that both the pretrial and in-court identifications at trial were admissible. (People v Dickerson, 50 NY2d 937; People v Bryant, 50 NY2d 949; People v Harris, 48 NY2d 208; People v Whisby, 48 NY2d 834; People v Logan, 25 NY2d 184; People v Smith, 40 AD2d 1068; People v Rutherford, 21 NY2d 889, writ den sub nom. United States ex rel. Rutherford v Deegan, 406 F2d 217, cert den sub nom. Rutherford

      v Deegan, Warden, 395 US 983; Manson v Brathwaite, 432 US 98; Simmons v United States, 390 US 377; People v Gonzalez, 27 NY2d 53.)
   OPINION OF THE COURT

Wachtler, J.

Defendant appeals from an order of the Appellate Division affirming his conviction for robbery. The novel issue on the appeal is whether testimony of a station house showup should have been excluded as a matter of State constitutional law. Defendant also contends that he was denied his right to present witnesses on his behalf when the prosecutor refused to grant immunity to one of the defendant’s prospective witnesses. The conviction should be affirmed.

At 4:30 on the afternoon of August 29, 1975, three men entered a Bronx stationery store owned by Sabet Mangoubi and his wife. At the time Mangoubi was behind the cash register, his wife was on the other side of the counter and their nephew, Abraham Darwish, was working in the front of the store. One of the three men, later identified as the defendant, held a gun to Mrs. Mangoubi’s head and either announced a holdup or demanded money. One of the other robbers then took $42 from the cash register. After the men had been in the store for five or ten minutes Mr. Mangoubi screamed and the men ran out with Darwish and his uncle in pursuit.

As they ran from the store the robbers were observed by Luis Rodriguez, a private security guard on his way to work, and Officer Harrison who was on patrol in a police car across the street from the store. Officer Harrison made a U turn and started after the robbers while Rodriguez, Mangoubi, Darwish and several others chased them on foot. When the robbers reversed direction one of them, identified as Orlando Sanabria, was apprehended by Rodriguez. The other two men successfully fled the scene. A bag taken from Sanabria contained approximately $42. The police also recovered an imitation pistol discarded by the defendant as he ran from the store.

As a result of information obtained from Sanabria, defendant and Louis Gaston were arrested at a Bronx apartment later that afternoon. Defendant was found hiding in a closet and Gaston was hiding behind a bathroom shower curtain.

At 6:30 or 7 o’clock that evening the Mangoubis and their nephew identified the defendant and the other two men at the station house. Before viewing the men a police officer informed the victims that he thought they had the robbers. The victims were then brought into a room where they saw the defendant and the two others standing with their hands behind their backs, near the small of the back, with a police officer behind each one holding him. The Mangoubis shouted that those were the robbers and apparently attempted to assault them. Darwish agreed that those were the men who had robbed the store.

The defendant made a pretrial motion to suppress the station house identification and to preclude the victims from identifying him at trial. After a hearing the court found that Mrs. Mangoubi’s recollection of the station house identification was confused with what occurred in another case. The motion to suppress was granted with respect to her pretrial identification of the defendant but was otherwise denied. The court found that the station house identification was not unduly suggestive and that, in any event, each of the victim’s observations during the robbery provided an independent source for any in-court identification.

At the trial the defendant was identified by the three victims as well as by Officer Harrison and Luis Rodriguez. The defendant offered an alibi defense supported by his own testimony and the testimony of others. He also called Sanabria who had previously pleaded guilty and had completely served a six-month sentence for the robbery. Sanabria admitted committing the robbery with Louis Gaston and other. Although he had previously told the police and the prosecutor that the defendant was the third man, he claimed at trial that the third robber was a “Dominican dude” named Victor. The defendant also sought to call Gaston. However, out of the presence of the jury Gaston informed the court that he would refuse to answer questions unless granted immunity, and the prosecutor refused to confer immunity upon him. Thus, over defendant’s objection, Gaston was excused without testifying.

The jury found the defendant guilty of two counts of robbery. The Appellate Division affirmed, without opinion, one Justice concurring in a memorandum.

The defendant first contends that he was deprived of his constitutional right to call witnesses on his behalf when the court refused to direct the prosecutor to grant immunity to Louis Gaston. Because this issue has been recently discussed at length in several of our decisions (see People v Sapia, 41 NY2d 160; People v Shapiro, 50 NY2d 747), the basic principles will be only briefly summarized.

By statute the prosecutor has discretion to confer full transactional immunity on witnesses for the prosecution or the defense (CPL 50.30). Although this discretion is reviewable for abuse if, for instance, the prosecutor builds his case with immunized witnesses but denies the defendant a similar opportunity or affirmatively threatens the defendant’s witnesses with prosecution for perjury if they give evidence favorable to the defense (see, e.g., People v Shapiro, supra), there was no such abuse in this case. The defendant only contends that the prosecutor had no legitimate reason to deny the request for immunity because there were no charges pending against Gaston at the time of trial. It appears that after his arrest the charges against Gaston were dismissed when Mrs. Mangoubi was unable to identify him at a preliminary hearing at which she was the only victim called to testify.

Of course, if Gaston had been indicted the prosecutor could not be said to have abused his powers under the immunity statute if he refused to grant him immunity from future prosecution even though the witness may have been willing to exculpate the defendant in exchange for his own release from criminal liability. Neither, in our view, can the prosecutor be said to have acted in bad faith whenever he refuses to grant absolution to a participant in the crime who has thus far eluded prosecution. Indeed to permit a defendant to override the prosecutor’s discretion under those circumstances could itself lead to abuses of the immunity statute. In addition, the prosecutor’s decision in this case did not deprive the defendant of all witnesses for the defense. As indicated, the defendant and others testified regarding the alibi defense. The defendant also had the benefit of the testimony of Sanabria, an admitted and convicted participant in the robbery who testified, as Gaston presumably would have, that the defendant was not involved in the robbery. At most the defendant would have been entitled to a neutral instruction that Gaston was not available to testify in this case and that no unfavorable inference should be drawn from the failure to produce him (People v Thomas, 51 NY2d 466). However the defendant did not request such limited relief.

The defendant also contends that the station house showup was so suggestive as to deprive him of due process under the Federal and State Constitutions. He urges that the trial court should have suppressed the pretrial identification of all three victims, and not just Mrs. Mangoubi’s. He also claims that the showup tainted the in-court identifications of the three victims and that they too should have been suppressed.

The trial court’s determination that there was an independent source for the in-court identification by the victims is supported by sufficient evidence and is therefore beyond our review (People v Zabrocky, 26 NY2d 530, 536; People v Freeland, 36 NY2d 518, 524; People v Ramos, 42 NY2d 834). However, under no view of the evidence could it be said that the station house identification was not suggestive (see, e.g., People v Brown, 20 NY2d 238, 244; People v Ballott, 20 NY2d 600, 606-607; People v Logan, 25 NY2d 184, 191).

There was of course no lineup. The victims were shown only the suspects in custody after apparently being informed that they were the suspected robbers. The suggestion was reinforced when each of the suspects was literally held by a police officer during the confrontation. Showing the suspects together also enhanced the possibility that if one of them were recognized the others would be identified as well. It was particularly unfair in this case because the defendant, who was not apprehended at the scene, was shown together with Sanabria who was arrested immediately outride the store and was undoubtedly more familiar to the victims who could hardly have any doubt of his guilt. Finally, permitting the victims as a group to view the suspects, increased the likelihood that if one of them made an identification the others would concur.

The record does not indicate any apparent need for such a flawed procedure. The showup did not occur at the scene of the crime soon after the robbery. It was held at the station house several hours after the crime had been committed. There is no indication that it would have been unduly burdensome at that particular place and time to form some kind of lineup or at least to place others in the room besides the suspects and their obvious custodians. Certainly there was no justification for permitting the witnesses to make a collective identification. In the interests of prompt identification procedures that are less than ideal may be anticipated and tolerable (see, e.g., People v Logan 25 NY2d 184, 195, supra; see, also, People v Rivera, 22 NY2d 453). In this case however there was no effort to make the least provision for a reliable identification and the combined result of the procedures employed was the ideal of suggestibility. In sum, the station house identification could hardly have been more suggestive and there is no conceivable excuse for employing those procedures.

Nevertheless the prosecutor urges that the ability of these two victims to make an in-court identification, completely independent of the station house showup, should also serve as a basis for admitting proof of the suggestive showup itself. He notes that in a recent case the Supreme Court held that the admissibility of a suggestive pretrial identification, like the admissibility of an in-court identification after such a showup, depends upon a consideration of whether under the totality of the circumstances there is a risk of irreparable misidentification (Manson v Brathwaite, 432 US 98). The court refused to adopt, as a necessary component of Federal due process, a “per se rule” excluding evidence of a pretrial identification whenever it was made under inherently suggestive circumstances (Manson v Brathwaite, supra, pp 110-114). The prosecutor now urges that the accused can claim no greater due process right under the State Constitution (NY Const, art I, § 6).

In the past Federal constitutional guarantees, as interpreted by the Supreme Court, generally satisfied and often exceeded the requirements of comparable provisions of the State Constitution. But there would be no need for an independent State Bill of Rights if that were always the case. In recent years particularly the Supreme Court has emphasized and encouraged this and related aspects of Federalism by exercising special restraint in prescribing constitutional rules of procedure which would displace or foreclose development of State rules specifically tailored to local problems and experiences (see, e.g., Patterson v New York, 432 US 197; PruneYard Shopping Center v Robins, 447 US 74, 81; Barker v Wingo, 407 US 514, 523). Accepting that lead this court has frequently found that the State Constitution affords additional protections above the bare minimum mandated by Federal law (see, e.g., Cooper v Morin, 49 NY2d 69, 79; Sharrock v Dell Buick-Cadillac, 45 NY2d 152,159-161; People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154; People v Singer, 44 NY2d 241, 253; People v Isaacson, 44 NY2d 511, 519-520).

Long before the Supreme Court entered the field this court expressed concern for, and devised evidentiary rules to minimize the risk of misidentification (People v Trow-bridge, 305 NY 471, 477). After the Supreme Court condemned the practice of police arranged showups and established minimum standards for pretrial identifications this court found that additional protections were needed under the State Constitution (People v Blake, 35 NY2d 331; People v Settles, supra).

The rule excluding improper showups and evidence derived therefrom is different in both purpose and effect from the exclusionary rule applicable to confessions and the fruits of searches and seizures. In the latter cases generally reliable evidence of guilt is suppressed because it was obtained illegally. Although this serves to deter future violations, it is collateral and essentially at variance with the truth-finding process (see, e.g., People v McGrath, 46 NY2d 12). But the rule excluding improper pretrial identifications bears directly on guilt or innocence. It is designed to reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by the police.

A reliable determination of guilt or innocence is the essence of a criminal trial. A defendant’s right to due process would be only theoretical if it did not encompass the need to establish rules to accomplish that end. Permitting the prosecutor to introduce evidence of a suggestive pretrial identification can only increase the risks of convicting the innocent in cases where it has the desired effect of contributing to a conviction. In most instances, where the witness is able to make an untainted identification in court, proof of the suggestive showup only serves to bolster the People’s case. However, if the jury finds the in-court identification not entirely convincing it should not be permitted to resolve its doubts by relying on the fact that the witness had identified the defendant on a prior occasion if that identification was made under inherently suggestive circumstances. Similarly, if the witness is unable to identify the defendant at trial the defendant’s conviction should not rest solely upon evidence of a pretrial identification made under circumstances which were likely to produce an unreliable result.

Excluding evidence of a suggestive showup does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source. And properly conducted pretrial viewings can still be proven at trial and, would be encouraged by the rule prohibiting use of suggestive ones. Neither does such a rule require a change in existing law. We have never held that it is proper to admit evidence of a suggestive pretrial identification. Indeed it seems to have been understood by courts and prosecutors that a pretrial identification would not be admissible if the procedures were unnecessarily suggestive (see, e.g., People v Cobenais, 39 NY2d 968; see, also, People v Ballott, supra; People v Logan, supra; People v Carter, 30 NY2d 279, 283).

In this case, however, where the defendant was properly identified at trial by five eyewitnesses to the crime, the error does not require reversal. As noted, two of the witnesses, Rodriguez and Officer Harrison, did not attend the showup. There was also an affirmed finding, supported by sufficient evidence, that there was an independent basis for the identification of the defendant in court by the three victims. Thus on the record the error must be deemed harmless (People v Gonzalez, 27 NY2d 53, 57).

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

Chief Judge Cooke

(concurring). I concur in the result reached, and in that portion of the majority opinion which addresses the immunity issue. On the identification question, however, I do not understand why the majority purports to create a State constitutional standard barring admission of suggestive out-of-court identifications and then laregly negates that standard by applying harmless error analysis.

For me, the Supreme Court decision in Manson v Brathwaite (432 US 98) decides the issue. That case holds that a suggestive out-of-court identification is admissible so long as it "is not unreliable — i.e., if there was an independent source for the out-of-court identification, it is not constitutionally infirm. The majority now seems to adopt a per se rule excluding all suggestive out-of-court identifications. It then goes on to find admission of such suggestive identifications harmless, apparently because there was an independent source for the in-court identifications. As I read the court’s opinion, it has created a separate State constitutional rule, only to nullify it by harmless error analysis. Such a position fails to come to grips with the issue and lacks legal, logical and analytical validity. Far preferable is the straightforward rule of Manson, which allows admission of reliable out-of-court identifications.

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

Order affirmed.

      . There was another employee, somewhere in the store, who apparently saw little of the robbery and was unable to describe the robbers or to identify defendant at the trial.

      . This, of course, would not preclude the defendant, if so advised, from eliciting proof of the suggestive showup in order to demonstrate the potential impact on a subsequent or in-court identification.


author: Chief Judge Cooke. Wachtler, J.

text:
    In the Matter of the Village Board of the Village of Fayetteville, Respondent, v Richard Jarrold et al., Constituting the Zoning Board of Appeals of the Village of Fayetteville, Appellants, et al., Respondents.
    Argued May 5, 1981;
    decided June 16, 1981

      POINTS OF COUNSEL

      John C. Setright for appellants.
    I. The requirement that “substantial evidence” be presented to permit a decision granting a variance does not mandate massing a preponderance of it. (Matter of Lemir Realty Cory, v Larkin, 11 NY2d 20; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309.) II. The evidence before the Zoning Board of Appeals preponderated in favor of the applicant assuming (without conceding it) that he had that burden of proof. (Matter of Crossroads Recreation v Broz, 4 NY2d 39; Hewitt v State of New York, 18 AD2d 1128.)

      James F. Dwyer for Village Board of Village of Fayetteville, respondent.
    I. It was error for the court to find that the relief requested and granted by the Zoning Board of Appeals was not an action pursuant to the requirements of the State Environmental Quality Review Act (SEQRA). (Kleppe v Sierra Club, 427 US 390; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222.) II. The record does not substantiate the lower courts determination that the board’s findings were supported by substantial evidence of economic hardship. (Matter of Crossroads Recreation v Broz, 4 NY2d 39; Matter of Otto v Steinhilber, 282 NY 71; Matter of Gerling v Board of Zoning Appeals of Town of Clay, 6 AD2d 247; Matter of Driscoll v Culbert
      son, 8 AD2d 934; Matter of Beebe v Zoning Bd. of Appeals of Town of New Castle, 65 AD2d 794.) III. The notice of hearing was defective because it failed to reasonably apprise the public of the relief granted after hearing by the board. IV. The claimed hardship of the corporate owners was self-created. (Telaro v Telaro, 25 NY2d 433; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86; Ames v Palma, 52 AD2d 1077.)
   OPINION OF THE COURT

Chief Judge Cooke.

Dispositive on this appeal is the well-established rule that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses. Without such evidence, a grant of a use variance by a zoning board is not justified.

Respondent, Ronald Cosser, applied to the Zoning Board of Appeals of the Village of Fayetteville for permission to conduct commercial activity on his residentially zoned land. In support of the application respondent produced the testimony of an architect who indicated that residential construction on the parcel would entail certain special costs and was therefore not competitively feasible. The architect did not specify the amount of added expenses, the total cost of construction, or for that matter render an opinion as to market value in the area. A real estate broker testified that the additional construction costs would make a house on the subject parcel competitively unsaleable. Again, the witness offered no concrete estimate of construction costs and no evidence of competitive value of other residences. Finally, another witness for respondent voiced his opinion that it would be inadvisable to use the land for residential development. No evidence was introduced as to the purchase price of the land or its current value. Based on this record, the zoning board found that it would be “economically unfeasible to build and attempt to sell a residential dwelling on the lot in question” and granted a use variance.

Petitioner commenced this proceeding to invalidate the board’s action. Special Term upheld the determination, but a unanimous Appellate. Division reversed. The order of the Appellate Division should be affirmed.

It should be noted, at the outset, that respondent sought a variance for a prohibited use and not merely exemption from an area restriction. An applicant for a use variance bears a heavier burden of proof than one who desires relaxation of an area limitation (e.g., Matter of Consolidated Edison Co. of N. Y. v Hoffman, 43 NY2d 598, 606-607) and our discussion here relates only to that more stringent standard.

Boards of zoning appeals have traditionally been empowered to grant variances from strict application of zoning ordinances. Although the board possesses discretion to grant or withhold a variance, this court, in early zoning cases, established the minimum showing necessary before that discretion could be exercised. In Matter of Otto v Steinhilber (282 NY 71, 76), the court articulated the classic “unnecessary hardship” test governing grant of use variances: “Before the Board may exercise its discretion and grant a variance upon the ground of unnecssary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variannce will not alter the essential character of the locality.” Because the landowner in Otto failed to demonstrate his inability to realize a reasonable return on the property as zoned, the board’s grant of a use variance was annulled.

It is obvious that, “before a claim that a property is yielding less than a reasonable return may properly be interposed, the reasonable return for the property must first be known or at least be ascertainable” (Matter of Crossroads Recreation v Broz, 4 NY2d 39, 45). Thus, we have required proof, in dollars and cents form, of all matters bearing upon the return available under existing zoning (e.g., id., at pp 44-46; see Matter of Young Women’s Hebrew Assn. v Board of Stds. & Appeals of City of N. Y., 266 NY 270, 275; 2 Anderson, New York Zoning Law and Practice, § 18.12; 3 Rathkopf, Zoning and Planning, § 38.03). And, the dollars and cents evidence must show that no permissible use will yield a reasonable return (e.g., Matter of Forrest v Evershed, 7 NY2d 256, 263; Matter of Young Women’s Hebrew Assn. v Board of Stds. & Appeals of City of N. Y., 266 NY 270, 275, supra; 3 Rathkopf, Zoning and Planning, § 38.03).

The dollars and cents rule is a familiar one, regularly applied in cases where a zoning ordinance is alleged to be unconstitutionally confiscatory (e.g., Spears v Berle, 48 NY2d 254; Matter of National Merritt v Weist, 41 NY2d 438, 445-446). Indeed, it has been said that the hardship needed to show entitlement to a use variance and the proof needed to demonstrate an ordinance is confiscatory are much the same (e.g., Williams v Town of Oyster Bay, 32 NY2d 78, 81; 3 Rathkopf, Zoning and Planning, § 38.03, at p 38-26). What is little known, however, is that the rule evolved, not out of the confiscation cases, but rather from the decisions involving variances. Thus, in Williams v Town of Oyster Bay (32 NY2d 78, 81, supra) the court expressly applied by analogy the variance rule to claims of alleged confiscation.

The similarity of the two rules has created confusion, leading some to contend that dollars and cents proof of hardship is required only where a zoning board denies a variance. Under this view, the two standards would be commingled and denial of a variance would be annulled where the landowner showed that he could not receive a reasonable return under any permissible use — i.e. that because of the unique nature of the particular parcel, the current zoning is confiscatory. By contrast, the zoning board would be permitted to grant a variance on some lesser showing.

Our decisions, however, evince a fundamental desire to limit “the power of the board of zoning appeals to grant variances” (2 Anderson, New York Zoning Law and Practice, § 18.06, p 12). As early as 1927, Cardozo warned, in the course of an opinion annulling the grant of a variance, that “[t]here has been confided to the Board a delicate jurisdiction and one easily abused * * * judicial review would be reduced to an empty form if the requirement were relaxed that in the return of the proceedings the hardship and its occasion must be exhibited fully and at large” (People ex rel. Fordham Manor Reformed Church v Walsh, 244 NY 280, 290).

From the earliest days this court has annulled grants of use variances where the record failed to disclose concrete proof that the landowner could not realize a reasonable return without the exemption (e.g., Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, 90; Matter of Otto v Steinhilber, 282 NY 71, supra; Matter of Levy v Board of Stds. & Appeals of City of N. Y., 267 NY 347; Matter of Young Women’s Hebrew Assn. v Board of Stds. & Appeals of City of N. Y., 266 NY 270,, supra; People ex rel. Fordham Manor Reformed Church v Walsh, 244 NY 280, supra). And, this court has consistently rejected as insufficient to justify a grant of a use variance the bare conclusory testimony of witnesses that the property could not yield a reasonable return (e.g., Matter of Forrest v Evershed, 7 NY2d 256, 261-262, supra [testimony of real estate broker that property was unsaleable] ; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, 90, supra [testimony of real estate broker that property could not produce a reasonable return as zoned]; cf. Spears v Berle, 48 NY2d 254, 263-264, supra [bare conclusory testimony does not establish lack of reasonable return to support allegation of confiscation]). In short, the court has established general rules governing the granting of variances to ensure that actions of zoning officials do not impair or subvert the public interest. Compliance with these rules is necessary for the granting of a variance to withstand judicial review.

Absent a uniform and rigorous standard, it is apparent that even a well-intentioned zoning board “by piecemeal exemption which ultimately changes the character of the neighborhood * * * [may create] far greater hardships than that which a variance may alleviate” (Matter of Otto v Steinhilber, 282 NY 71, 77-78, supra). Unjustified variances likewise may destroy or diminish the value of nearby property and adversely affect those who obtained “residences in reliance upon the design of thé zoning ordinance” (id., at p 78). These evils, not unlike those associated with the universally condemned practice of spot zoning, have been zealously guarded against by this court.

On the present record, therefore, it must be concluded that the facts adduced at the hearing did not justify the grant of a use variance. The conclusory testimony of the witnesses, unsupported and unsupplemented by underlying concrete facts in dollars and cents form, provides no basis for the board or the courts to evaluate whether the property at issue is being subjected to unnecessary hardship. Indeed, even the dissenting opinion points to no fact on the record that demonstrates the inability of the landowner to realize a reasonable return. While the dissenting opinion notes that the parcel is sloped and will require special preparation for residential development, it does not and cannot specify the extra cost of the preparation, the potential value of a house on the site, the cost of the property and other such information. Without this proof, it is simply impossible to say, other than by pure speculation, whether residential development will or will not yield a reasonable return. Thus, the dissent’s inability to adduce facts on the record in support of its ultimate conclusion illustrates the wisdom and logical iiecessity of the dollars and cents rule in these circumstances.

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

Wachtler, J.

(dissenting). The majority, by insisting on a particular kind of evidence without regard to the substantiality of the evidence presented or what it tends to prove, departs from the settled rule that once it appears that a zoning board decision is supported by substantial evidence, the court’s function is at an end. Zoning board members are not expected to be theoreticians or doctrinaire specialists, but rather are representative citizens acting in the community interest through commonsense accommodations of conflicting community pressures (see Matter of Lemir Realty Cory, v Larkin, 11 NY2d 20; Matter of Von Kohorn v Morrell, 9 NY2d 27). For this reason, where a landowner seeking a variance attempts to show to the municipal body that without it he cannot obtain a reasonable return on his property, there is no need to impose rigid and technical constraints on the type of acceptable proof. To do so denigrates the local municipal body’s expertness and familiarity with local conditions.

It has never been the law that there must invariably be a submission of “dollars and cents proof” to support the grant of a variance, and the facts of this case clearly demonstrate that without it evidence of a different character can meet the traditional standard of reasonableness sufficient to require affirmance of the board’s determination. In essence it is for the municipal body, within bounds of rationality, to determine the form and type of evidence on which it may properly base its determination. Although it was not obliged to do so, in this instance the Board of Zoning Appeals found the proof submitted sufficiently reliable and creditworthy to provide a premise for its determination.

The respondent sought to obtain a use variance permitting the operation of a small furniture refinishing and upholstering business in a residentially zoned area. The application was made before the Zoning Board of Appeals for the Village of Fayetteville which, after a hearing, concluded that a variance was appropriate under the circumstances.

Respondent proposed to render the parcel in question suitable for this limited “cottage industry” use by renovating a deteriorating century-old barn existing on the land. The board, after considering extensive testimony on the matter, expressly found that: “The barn is of historical significance as it pertains to the agricultural and trade [route] origins of the Village. Preservation of the bam is consistent with the public interest. The barn is presently in poor repair and in need of extensive rehabilitation.”

Respondent proposed to repair the barn in accordance with an architect’s model submitted to the board, with a view towards maintaining the exterior character of the structure and without altering its exterior dimensions.

The board additionally found that: “Strict application of the zoning requirements of the Fayetteville Code would result in unnecessary hardship. Under the applicable zoning restrictions and other requirements of law, no reasonable use may be made of this parcel. It is economically unfeasible to renovate and remodel the barn to put it in compliance with the law for a permitted residential use. Demolition of the barn should not be required and is undesirable; even if that were done, it would be economically unfeasible to develop the parcel for a permitted residential use and would not produce a saleable property”.

The conclusions of the board were based on expert testimony, which the board credited, indicating that the slope of the parcel is “exceptionally steep” and that much of the parcel is burdened with a high water table. A stream ran along the rear property line which, due to the topography, created a danger of overflow several times yearly. Additionally, respondent produced uncontradicted testimony that to alleviate this problem tremendous amounts of fill, which would be prohibitively expensive, would be required and that the necessary additional construction costs would make the property competitively unsaleable. Despite this evidence, and the clearly permissible inferences to be drawn from it, the village board of trustees, respondent before us, would nullify the action of the Board of Zoning Appeals by exalting the “dollars and cents” language of Matter of Crossroads Recreation v Broz (4 NY2d 39), torturing it out of context and applying it in a manner which was never intended.

The classic articulation of the unnecessary hardship test governing the grant of use variances was set forth in Matter of Otto v Steinhilber (282 NY 71) where the court required that the record show that (1) the land in question cannot yield a reasonable return as zoned; (2) that the plight of the owner is due to the unique circumstances of the land; and (3) that the use under a variance would not alter the essential character of the locality.

On all three of these points, the proof was more than sufficient. However, it is the proof of the ability of the landowner to obtain a reasonable return which the majority would find legally deficient through a rigid insistence on submission of numerical financial data. In doing so it unwisely limits the character of permissible evidence and fails to focus on what is required to be proved and that which the evidence which was introduced in fact served to prove.

It is apparent from the record before the board that this vacant barn on otherwise vacant land was not yielding a reasonable return as residential property. It is equally apparent that the board could reasonably conclude that the cost of huge amounts of fill required to transform this lot into suitable residential property would be prohibitively high. Of course, for purposes of our review, the proof need only supply substantial evidence and a rational basis for the decision to grant the variance.

In Matter of Crossroads Recreation v Broz (4 NY2d 39, supra) both the procedural posture and the facts were entirely different; we held that in the absence of explicit countervailing financial proof there was no warrant for judicial disturbance of the board’s determination. The owner of a service station who sought a variance to permit an increase in his nonconforming use attempted to support his position by conclusory allegations that the still operating station could not longer “face the competition”. But no economic data was offered to show the required return on the property or to demonstrate that without the variance the ongoing business was a losing proposition. The denial of a variance by the board was there sustained because in that specific economic context — certainly not in all foreseeable contexts — the failure to provide dollars and cents proof rendered the record “entirely devoid” of any basis for measuring a reasonable return (Matter of Crossroads Recreation v Broz, supra, at p 45). There is no indication or justification to be derived from that opinion that the dollars and cents requirement was, as the majority now supposes, intended to be enshrined as “a uniform and rigorous standard”".

In this area of diverse fact situations and local expertness it must be recognized that workable rigorous standards are rare. Indeed, even those standards imposed by statute (see Village Law, § 7-712, subd 2, par [c]) are intended to permit the board a maximum of discretion (2 Anderson, New York Zoning Law and Practice, § 18.06). That discretion should be no less applicable of constrained where a board detefmines that a considerable quantity of nonconclusive proof may fairly prove a point (cf. Matter of Forrest v Evershed, 7 NY2d 256; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86). The inability of an owner to obtain a reasonable return on his property can logically be shown in more than one way, and if the manner of proof is reliable and acceptable to the local body, the courts should not automatically intrude to insist on an even higher standard of evidence.

Finally, it should be noted that the majority has equated the failure to abide by its novel technical requirement with an attempted piecemeal destruction of the rural character of the community. In fact, as the record clearly demonstrates, the board was seeking to do the opposite by providing a dispensation permitting a use tailored to a valuable existing structure. This is precisely within the function of a variance; this court should not interfere.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the determination of the Zoning Board of Appeals reinstated.

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

Order affirmed.

      . Where permissible uses include public ones, the applicant is generally not required to show the property unsuitable for such uses (Matter of Grimpel Assoc. v. Cohalan, 41 NY2d 431, 433-434).

      . One commentator has noted that, even where zoning legislation confers broad power to permit variances, the courts have “moved quickly to find strict limitations” (2 Anderson, New York Zoning Law and Practice, § 18.07, p 13). That same authority examined 200 decisions involving judicial review in variance cases and found that “65 percent of the variances granted by boards were reversed by the courts [while] [o]nly 25 percent of the board denials were reversed” (id., § 18.06, p 12).

       It is to be noted that the “dollar and cents” formulation (on which text writers have subsequently fastened) was used by our court in a case in which the hoard had determined that the proof submitted was not sufficient to justify granting the variance and in which we wrote to sustain the board’s determination ; we were not there addressing a situation in which, as here, the board had found the evidence submitted acceptable for its purposes. We similarly upheld a zoning board’s denial of an application for a variance in Matter of National Merritt v Weist (41 NY2d 438, 446).