author: Meyer, J. Gabrielli, J.

text:
    In the Matter of Lorie C., a Person in Need of Supervision, Appellant. St.. Lawrence County Department of Social Services, Respondent.
    Argued October 18,1979;
    decided January 8, 1980

      POINTS OF COUNSEL

      William F. Roberts, Jr., Law Guardian, for appellant.
    The Family Court order was necessary in order to make the Department of Social Services render co-operation, within the meaning of section 255 of the Family Court Act. (Matter of Edward M, 76 Misc 2d 781; Matter of Gold v Lomenzo, 29 NY2d 468; Martarella v Kelley, 359 F Supp 478; Matter of Kaye, 54 AD2d 907.)

      Terrence J. Whelan and Ethan K. Phillips for respondent.
    I. The placement of Lorie C. in a foster home resolved the single issue properly before the Family Court, and thus the proceedings commenced by the order to show cause were ended for all lawful purposes. By attempting to continue the proceedings and decide a totally different issue, the implementation of its order, the Family Court exceeded its authority under section 255 of the Family Court Act, as a matter of law, and thus its foster care plan was of no legal force and effect. (Matter of Edward M, 76 Misc 2d 781, affd sub nom. Matter of Murcray, 45 AD2d 906; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129; Matter of Concord Realty Co. v City of New York, 30 NY2d 308.) II. Even if the Family Court could lawfully employ the Lorie C. proceedings to review the implementation of the foster home available reserve required under its Edward M decision, the court-ordered plan of November 22, 1977, exceeds any reasonable criteria for the establishment of such a reserve and by detailing procedures and methods to be employed by the Department of Social Services, violates the constitutional mandate of separation of powers. (Matter of Beaudoin v Toia [Jorczak], 45 NY2d 343; Matter of La Guardia v Smith, 288 NY 1; People ex rel. Burby v Howland, 155 NY 270; Matter of Richardson, 247 NY 401; Matter of Dworsky v Farano, 41 NY2d 780; Semple v Miller, 38 AD2d 174; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; James v Board of Educ., 42 NY2d 357; Jones v Beame, 45 NY2d 402.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and Clifford A. Royael of counsel), for New York State Commissioner of Social Services, amicus curiae.

    I. The Family Court exceeded its limited jurisdiction under the New York State Constitution. (Matter of Seitz v Drogheo, 28 AD2d 892, 21 NY2d 181; Usen v Sipprell, 41 AD2d 251; Matter of Currier v Honig, 50 AD2d 632; New York City Housing Auth. v Miller, 89 Misc 2d 141; Matter of Pavone, 88 Misc 2d 675; Semple v Miller, 38 AD2d 174.) II. The Family Court exceeded its authority under section 255 of the Family Court Act. (Matter of Seitz v Drogheo, 28 AD2d 892; Capelli v Capelli, 42 AD2d 905; Matter of Ellery C, 32 NY2d 588; Matter of Jeanette M., 40 AD2d 977; Matter of Currier v Honig, 50 AD2d 632; People ex rel. Thorpe v Clark, 62 AD2d 216; Matter of Murcray, 45 AD2d 906.)
   OPINION OF THE COURT

Meyer, J.

Does section 255 of the Family Court Act authorize a Family Court Judge to put into effect a plan allocating responsibilities between the court’s Probation Department and the local Department of Social Services agency with respect to, and establishing standards and procedures in relation to, placement of juvenile delinquents and persons in need of supervision in foster homes, the training of foster parents, supervision of court-placed juveniles, change of placement or of supervision, termination of placement, and providing that "any governmental employee and law guardian shall report to the Court in writing any violation of the provisions of this plan which shall come to his or their attention”, so that proceedings for enforcement may be had? The Appellate Division held that as a matter of law the order made in the instant proceeding exceeded the authority granted by the section. It reversed on the law and the facts and dismissed the order to show cause dated January 23, 1976 by which was begun that part of the proceeding related to the plan, as distinct from the placement of the infant, Lorie C., in relation to which the proceeding originated. The order of the Appellate Division should be affirmed.

Lorie C. was adjudged a person in need of supervision (PINS) and by order of October 15, 1975 was placed in the custody of the St. Lawrence County Department of Social Services and under the supervision of the St. Lawrence County Probation Department with directions to report to her probation officer and to follow his recommendations for counseling. Some difficulty in obtaining a foster home for Lorie was encountered because the Probation Department insisted upon a home in the Massena School District and Social Services had used up its resources in that district. At an informal hearing on December 10, 1976, the court raised the issue whether the program for reserve home accommodations directed in Matter of Edward M (76 Misc 2d 781, affd sub nom. Matter of Murcray, 45 AD2d 906, on later hearing 84 Misc 2d 363) had been implemented. On January 30, 1976 an order to show cause was served on the Department of Social Services. This order, however, referred only to the earlier order in Lorie’s case and only required it to show why an order should not be entered directing it to obtain a suitable foster home for her.

Social Services answered raising the question of the jurisdiction of the court over it and of the power of the court to award custody to it but place supervision of the child with Probation. The court denied Social Services’ motion to dismiss in a decision indicating its intention to continue both the matter and the appointment of the Law Guardian because of its overriding concern that children be promptly placed in foster care.

Prior to March 1, 1976 Lorie was in fact placed. The proceeding was, nevertheless, continued, hearings being held on April 29, 1976, June 2, 1976 and September 7, 1977, preliminary decisions being filed on October 14, 1976 and July 22, 1977, and a final order being entered on November 22, 1977. The Department of Social Services refused to participate in any part of the proceeding after Lorie was placed, its counsel appearing at the September 7, 1977 hearing only to state the department’s position that the court was without power to order the plan. The November 22, 1977 order approved the plan, which is entitled "Court-Ordered Plan Establishing Responsibilities, Standards and Procedures Relating to Juvenile Delinquents and Persons in Need of Supervision Placed in Family Boarding Homes in St. Lawrence County”, and directed that, effective December 1, 1977, it be implemented and followed in all respects by the Probation Department and the Department of Social Services.

The plan required Social Services to identify and certify foster homes and to maintain a reserve of such homes, to train foster parents and certify to Probation the completion of such training, and to supervise children not on probation. It gave Probation responsibility for planning, placement, and supervision of children who were on probation, and directed Social Services not to interfere. It required also that children, parents, governmental employees and Law Guardians report violations, which, the plan and the decision made clear, would be dealt with by contempt citation. As already noted, on appeal by the Department of Social Services, the order of November 22, 1977 was reversed and the order to show cause of January 23, 1976 was dismissed.

We agree with the Appellate Division that the sincerity of the Family Court Judge in attempting to fix responsibilities between Social Services and Probation is beyond doubt. We agree also, however, that the plan he sought by his order of November 22, 1977 to initiate is invalid both because, as the Appellate Division held, it exceeded the authorization contained in section 255 of the Family Court Act and because it encroached upon powers granted by section 398 of the Social Services Law to the Department of Social Services.

Section 255 of the Family Court Act as it read prior to amendment by chapter 470 of the Laws of 1977, was entitled "Cooperation of officials and organizations” and provided: "It is hereby made the duty of, and the family court or a judge thereof may order, any state, county and municipal officer and employee to render such assistance and cooperation as shall be within his legal authority, as may be required, to further the objects of this act. It is hereby made the duty of and the family court or judge thereof may order, any agency or other institution to render such information, assistance and cooperation as shall be within its legal authority concerning a child who is or shall be under its care, treatment, supervision or custody as may be required to further the objects of this act. The court is authorized to seek the cooperation of, and may use, within its authorized appropriation therefor, the services of all societies or organizations, public or private, having for their object the protection or aid of children or families, including family counseling services, to the end that the court may be assisted in every reasonable way to give the children and families within its jurisdiction such care, protection and assistance as will best enhance their welfare.”

The section derived from section 56 of the Domestic Relations Court Act and section 37 of the Childrens Court Act, both of which were essentially hortatory. In 1972 the first sentence was amended to insert the words "and the family court or a judge thereof may order, any state” in place of the word "every” and to insert the words "legal authority, as may be required” in place of "jurisdictional power”, and the second sentence was rewritten on essentially similar lines. In 1977 the first sentence was again amended by the insertion between the words "municipal” and "officer” of the words "and school district” and by the addition at the end of the first sentence of the following: "provided, however, that with respect to a school district an order made pursuant to this section shall be limited to requiring the performance of the duties imposed upon the school district and board of education or trustees thereof pursuant to sections forty-four hundred two and forty-four hundred four of the education law, to review, evaluate, recommend, and determine the appropriate special services or programs necessary to meet the needs of a handicapped child, but shall not require the provisions of a specific special service or program, and such order shall be made only where it appears to the court or judge that adequate administrative procedure to require the performance of such duties is not available.”

We have considered the section only twice since its 1972 amendment, once in Matter of Antonio P. (40 NY2d 960) in affirming a holding that it did not authorize an order requiring expungement of police records, and once in Matter of Ellery C. (32 NY2d 588, 591) in a passing reference to the third sentence of the section as supporting the conclusion that confinement of a PINS child in a training school is not permissible. It has, however, been considered a number of times by both Appellate Division and Trial Judges, with varying results. The order sought or made was held not authorized by the section in People ex rel. Thorpe v Clark (62 AD2d 216, 227 [since the section does not expand the court’s legal authority, commitment of a retarded delinquent can only be decreed under the procedures established by the Mental Hygiene Law]); New York City Housing Auth. v Miller (60 AD2d 823, affg on opn below 89 Misc 2d 141 [section does not authorize an order requiring the housing authority, an independent public corporation, to provide immediate housing, since such an order is not one for "information, assistance or cooperation”]); Matter of Currier v Honig (50 AD2d 632 [section does not authorize an ex parte order requiring the county to appoint an additional Assistant County Attorney, which can only be done when authorized by the county legislature]); Matter of Carpenter (94 Misc 2d 908 [section does not authorize order requiring Social Services to pay support for period antedating application]); Matter of Dennis M. (82 Misc 2d 802 [section does not authorize order requiring Commissioner of Social Services to reorganize unit responsible for placement of disturbed children]). On the other hand, the section has been held to authorize an order requiring the State Commissioner of Education to supersede his regulation with respect to contracting with an unregistered school for handicapped children (Matter of Kaye, 54 AD2d 907); to direct the Department of Social Services to file with the court a plan for placement of juveniles in foster care (Matter of Murcray, 45 AD2d 906, supra); to obtain a foster cafe home for two children (Usen v Sipprell, 41 AD2d 251); to obtain a foster home for a PINS child who had been sent to a training school (Matter of Jeanette M., 40 AD2d 977); to require a school district, with the assistance of the Commissioners of Education and Mental Hygiene to locate or develop an educational program for a brain-damaged child (Matter of Loift, 86 Misc 2d 431). The Kaye and Loift holdings have, however, been severely limited by the 1977 amendment of the section and by its decision in the instant case the Appellate Division has indicated that its Murcray holding is limited to orders "directing assistance and co-operation in the exercise of the court’s power and duty in entering dispositional orders” (63 AD2d 1073, 1074).

With that background in the construction of the section to date, we turn to its language and its legislative history. Of importance in reviewing its language is the fact that its three sentences deal with three separate and distinct situations and that, therefore, each must be considered discretely. Thus, the concluding clause of the third sentence, though phrased in sweeping language, applies only to the situation of the third sentence ("seek the cooperation of * * * all societies or organizations, public or private”) and not to that of the first and second sentences. Those two sentences, which since 1972 have authorized the court to make an order, differ in that the second deals with an agency or institution which has or will have a child under its care, treatment, supervision or custody and permits the Judge to order that "information” as well as "assistance and cooperation” be provided, while the first concerns State, county, municipal and school district officers and employees, permits an order only as to assistance and co-operation and is not expressly limited to relationship to a particular child. Neither, however, spells out the procedure for making such an order, though both limit the order made to (a) one within the legal authority of the person or institution to which it is addressed and (b) one which is required to further the objects of the Family Court Act. The fact that the second sentence is framed in relation to a particular child while the first is not cannot be given much significance in the construction of the section however. This is because the reference to a child in the second sentence is part of the description of the agency or institution. Furthermore, it cannot be supposed, in light of the seven specific categories of actions spelled out in article VI (§ 13, subd b) of the State Constitution and the fact that the Family Court is a court of limited jurisdiction (Matter of Mouscardy v Mouscardy, 63 AD2d 973, 975; Clune v Clune, 57 AD2d 256, 257) that the Legislature intended to vest in the court authority to make general orders of the type involved in this case.

Nothing specific in the legislative history of either the 1972 or the 1977 amendment to the section is helpful in determining the intent behind those amendments. As noted in Matter of Edward M (76 Misc 2d, at p 783, supra), the bill which became chapter 1016 of the Laws of 1972 was introduced by the Speaker after receipt of the report of the Assembly Select Committee on Child Abuse, but that report, while noting in various places the fragmentation of services, made no specific mention of the amendment to section 255. Footnote 12 to the Matter of Edward M decision (76 Misc 2d, at p 785) quotes a letter from the executive director of the Select Committee, which is also reprinted as part of McKinney’s Practice Commentary to the section (McKinney’s Cons Laws of NY, Book 29A, Part 1, p 189), but such a letter, written more than a year after passage of the 1972 amendment and constituting, therefore, no part of the legislative process, is not entitled to consideration as legislative history (Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60, 67). The Governor’s Bill Jacket contains a memorandum from the Department of Social Services which states that section 255 "is amended to require state officers to provide assistance and cooperation to the Court on order of the Court” and questions whether a request would not be more appropriate, together with a statutory requirement that State officials comply with such requests, but nonetheless recommends approval.

The 1977 legislative history is equally sparse. There is only a news memorandum from the Governor concerning the amendments made by chapter 470 to the Education Law, the Family Court Act and chapter 853 of the Laws of 1976 concerning education of handicapped children. That memorandum includes the following concerning section 255 (1977 McKinney’s Session Laws of NY, p 2510): "[T]he Family Court Act is amended to permit the Court to order a school district to perform the review, evaluation and placement obligations imposed upon [sic] by Article 89 of the Education Law where it appears to the Court that a child before it is or may be handicapped. The Court may not, however, require the district to provide a specific service or program and no such order may be made by the Court unless it appears that no adequate administrative procedure is available to obtain evaluation or placement recommendation by the school district.” Since section 4404 of the Education Law requires a school district to furnish suitable educational facilities for handicapped children by special classes, either directly or by contracting with others, the 1977 amendment did no more than exclude from the area of "legal authority” in which an order could be made the making of an order that otherwise would be within it. It was, moreover, consistent with the revisions made by chapter 853 of the Laws of 1976, which had drastically limited Family Court jurisdiction in matters of education of the handicapped in favor of the local school district and the State (see Matter of Pavone, 88 Misc 2d 675).

It follows that, the constitutional limitation imposed by section 13 of article VI aside, the 1977 amendment cannot, therefore, be viewed as a later legislative interpretation enlarging the meaning of the section (cf. McKinney’s Cons Laws of NY, Book 1, Statutes, § 75, p 161). Nor, for several other reasons, can the absence from the first sentence of procedural provisions or of any express limitation to a particular child be interpreted as authorizing an order of the breadth of that made in the instant case.

The first reason is, as the United States Supreme Court recently put it, albeit in a somewhat different context, in Bell v Wolfish (441 US 520, 562), "[Ujnder the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan.” Section 398 (subd 6, par [h]) of the Social Services Law provides that as to destitute, neglected, abused, abandoned, delinquent, and physically handicapped children and children born out of wedlock, the Commissioners of Public Welfare shall supervise those cared for away from their families until such children become 21 years old or are discharged or adopted. The plan here in question, to the contrary, vests supervision of children on probation in the Probation Department and directs that the Department of Social Services not interfere. Though the first sentence of section 255 authorizes an order requiring the doing of an act within the legal authority of the official to whom the order is directed the power to order "assistance and cooperation” cannot be read as permitting an order which denigrates from that officer’s statutory authority, any more than it can be read as expanding such an official’s authority into areas not granted by statute (Matter of Antonio P., 40 NY2d 960, supra; Matter of Currier v Honig, 50 AD2d 632, supra).

A related but more important reason is the principle several times declared by us in recent years that courts do not normally have overview of the lawful acts of appointive and elective officials involving questions of judgment, discretion, allocation of resources and priorities (Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992; accord: Jones v Beame, 45 NY2d 402, 408; Saxton v Carey, 44 NY2d 545, 549; James v Board of Educ., 42 NY2d 357, 368). While, as the Law Guardian argues, that does not necessarily mean that the Legislature may never give such supervisory power to a court, it is familiar law that a statute should be construed so as to avoid doubts concerning its constitutionality (Matter of New York Post Corp. v Leibowitz, 2 NY2d 677, 687; see McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, p 324). Moreover, it is a fundamental of the doctrine of distribution of powers "’that each department should be free from interference, in the discharge of its peculiar duties, by either of the others’” (Saxton v Carey, supra, at p 549, quoting from People ex rel. Burby v Howland, 155 NY 270, 282). To construe the first sentence of section 255 to authorize the Family Court to mandate a plan of administration as sweeping as that here in question would violate that principle.

Finally, we note that the concepts of a court "order” on the one hand and rendering "assistance and cooperation” on the other are to some degree antithetical. We do not find it necessary for purposes of the present case to define exactly what "assistance and cooperation” means in the context of the section. It is sufficient for present purposes to note that a plan requiring conformaiice under penalty of contempt with the responsibilities, standards and procedures it outlines is outside the scope of either the "assistance” or the "cooperation” for which the section provides.

In sum, the court-ordered plan is beyond the authority of the Family Court because it establishes general overview of functions of the Department of Social Services, because it denigrates from the functions allocated by the Legislature to the Department of Social Services, and because in both respects to hold otherwise would raise serious question concerning the constitutionality of the section. This is not, on the present record, to rule out the possibility that, in the proper circumstances, section 255 might empower the Family Court to fashion a remedy that extends beyond the immediate needs of a particular child.

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

Gabrielli, J.

(concurring). I concur in the majority’s conclusion that the order of the Appellate Division should be affirmed. However, since I find that the order can be affirmed on a narrower ground, I do not deem it necessary to consider the scope of the Family Court’s power to take remedial action pursuant to section 255 of the Family Court Act.

The order to show cause which was served upon the Department of Social Services initially requested only limited relief in the form of a directive requiring the agency to find a suitable foster home for Lorie C. Once that goal was accomplished, the power of the court to act upon the motion was terminated and could not be revived through the simple expedient of an "amendment” to the original order to show cause. Thus, the ex parte proceedings which were conducted after the execution of the amendment were without legal effect.

Moreover, since the Family Court in this case completely ignored the boundary that separates judicial authority from legislative and administrative prerogative (see, e.g., Jones v Beame, 45 NY2d 402), its order is plainly not entitled to enforcement. On these grounds alone, I would agree that the Appellate Division reached the correct result in reversing the order of the Family Court in this case. Nonetheless, I would not on this record rule out the possibility that, under the proper circumstances, section 255 might empower the Family Court to fashion a remedy that extends beyond the immediate needs of a particular child.

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

Order affirmed, without costs.

      . Cf. Family Court Act (§ 119, subd [a]) as to what that term encompasses.

      . Memoranda in the Governor’s Bill Jacket from the Office of Court Administration and the Division of the Budget advised the Governor that the amendment was not a departure from the policy of chapter 853, which largely removed the Family Court from educational matters.


source: Caselaw Access Project

author: Gabrielli, J. Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Thomas Conyers, Respondent.
    Argued November 9, 1979;
    decided January 8, 1980

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Meredith Anne Feinman of counsel), for appellant.
    I. Since defendant had been given no Miranda warnings, his privilege against self incrimination was not violated when the prosecutor questioned him about his failure to tell the police that he was the victim of a crime, a failure which was patently inconsistent with his trial testimony. (Doyle v Ohio, 426 US 610; People v Rutigliano, 261 NY 103; Griffin v California, 380 US 609; Harris v New York, 401 US 222; Johnson v United States, 318 US 189; United States v Hale, 422 US 171; New Jersey v Portash, 440 US 450; McGautha v California, 402 US 183; Williams v Florida, 399 US 78; Brady v United States, 397 US 742; Miranda v Arizona, 384 US 436.) II. Defendant’s testimony contradicted that of only one victim, and the second victim’s testimony was overwhelmingly corroborated by two disinterested witnesses. Hence, there is no reasonable possibility that the cross-examination and summation references to defendant’s postarrest silence contributed to defendant’s conviction. (Doyle v Ohio, 426 US 610.)

      Philip L. Weinstein and William E. Hellerstein for respondent.
    The unanimous court below correctly held that the prosecutor violated respondent’s rights under both the Federal and State Constitutions when she cross-examined him on his failure to make a postarrest statément to the police and commented in summation on that failure. (Grunewald v United States, 353 US 391; Griffin v California, 380 US 609; Miranda v Arizona, 384 US 436; Harris v New York, 401 US 222; United States v Hale, 422 US 171; Doyle v Ohio, 426 US 610; Bradley v Jago, 594 F2d 1100; Leon v Kuhlmann, 443 F Supp 50; People v Rutigliano, 261 NY 103; People v Rothschild, 35 NY2d 355; People v Petersen, 4 NY2d 992.)
   OPINION OF THE COURT

Gabrielli, J.

Thomas Conyers was convicted in Supreme Court, New York County, of several crimes allegedly committed during and immediately following the armed robbery of Marion Dantzler and Grace Johnson. During his trial, Conyers testified on his own behalf that in fact there had been no robbery and gave a description of the events leading to his arrest which differed significantly from that provided by Dantzler and Johnson. The prosecutor was allowed to cross-examine Conyers, over a timely defense objection, concerning his failure to inform the police of his version of the incident at the time of his arrest. Conyers’ silence was also the object of comment by the prosecutor during summation. Upon defendant’s appeal to the Appellate Division, that court concluded that Conyers was deprived of a fair trial because of the inquiry into his assertion of his right to remain silent. Accordingly, the Appellate Division reversed the judgment of conviction and ordered a new trial. The People now appeal to this court. For the reasons discussed below, we conclude that there must be an affirmance.

At issue on this appeal is the propriety of prosecutorial use, for impeachment purposes only, of a defendant’s silence at the time of arrest. We note that it has long been and remains the law in this State that a defendant’s silence cannot be used by the People as a part of their direct case (People v Rutigliano, 261 NY 103). Thus, our inquiry today is limited to the use of a defendant’s silence for impeachment purposes when that defendant testifies at his trial. We are persuaded that a defendant’s silence at the time of his arrest may not be used against him even for impeachment purposes, since such use would violate due process and would improperly penalize a defendant for the assertion of a basic constitutional right.

The course of events which culminated in defendant’s arrest was the subject of considerable dispute at his trial. Dantzler and Grace testified that Conyers and a codefendant, Arthur Saunders, had accosted them on a New York City street and forced them at gunpoint into the hallway of a nearby apartment building, where Dantzler and Grace were robbed and bound. Dantzler managed to escape his bonds, and gave chase to Conyers and Saunders. In the course of that pursuit, one of the defendants fired a shot at Dantzler. The chase ended with the arrival of the police, who immediately arrested Conyers and Saunders. There were no other witnesses to the alleged robbery itself, although several witnesses did support parts of Dantzler’s description of the chase.

Both Saunders and Conyers testified at their joint trial. Their version of the incidents preceding their arrest was somewhat different from the tale told by Dantzler and Johnson. According to the defendants, they had visited Dantzler in his apartment in order to collect Conyers’ winnings on a bet placed with Dantzler the previous day. An argument developed over whether Conyers was entitled to the money, and eventually Dantzler pointed to a pouch on a table and told Conyers to take the money in the pouch. As Conyers reached for the pouch, Dantzler drew a gun, which Conyers then kicked out of his hands. Conyers and Saunders bound Dantzler and left the building with the pouch and the gun. They soon noticed Dantzler chasing them, and began to run until they were stopped by the police.

The prosecutor sought to discredit the defendants’ explanation of their encounter with Dantzler as being a recent fabrication. To this end, Conyers was cross-examined about his failure to explain the situation to the police when he was arrested. A defense objection to this line of questioning was overruled, and the prosecutor subsequently referred to Conyers’ silence during summation. Defendant contends that his assertion of the right to remain silent at the time of his arrest should not have been used against him even for impeachment purposes. We agree.

Proceeding immediately to the central legal dispute presented by this appeal, initially we recognize that in People v Rothschild (35 NY2d 355) we sustained the larceny conviction of a police officer although the People had been allowed to cross-examine the officer concerning his silence at the time of his arrest in an attempt to impeach his claim at trial that he had been engaged in a police undercover operation and had not actually been seeking to obtain money illegally. While the Rothschild case might at first glance seem to resolve the instant dispute, we note that the circumstances surrounding that case were unusual since the officer was under a duty to inform his superiors of his undercover activities, and thus his continued silence in the face of accusation by his fellow officers was extraordinarily probative. Since our decision in Rothschild, we have expressly stated that ”[t]he fact that a defendant is silent at the time of arrest may not be used to impeach him at trial” (People v Arce, 42 NY2d 179, 187). Moreover, the Supreme Court has recently concluded that the use of silence to impeach the testimony of a defendant who was given the warnings mandated by Miranda v Arizona (384 US 436) is violative of due process (Doyle v Ohio, 426 US 610). Hence, we are impelled to re-examine our decision in Rothschild in light of subsequent refinements in criminal law and practice.

In Doyle v Ohio (426 US 610, supra), the Supreme Court held that where a defendant has been provided with the warnings mandated by Miranda, and thus has been impliedly promised that his silence would not be used against him, it would be fundamentally unfair to then allow that silence to in fact be used to the detriment of the accused even for the limited purpose of impeachment. In the instant case, it would appear that the police failed to provide Conyers with Miranda warnings. The People suggest that this factual distinction justifies a different result. In essence, the prosecution argues that where Miranda warnings have not been given, the accused does not receive any implied promise that his silence will not be used against him, and thus the use of that silence for impeachment purposes does not run afoul of any concept of fundamental fairness and is not violative of due process. We disagree. It would appear rather anomalous to "reward” improper police practices by allowing the existence of such impropriety to serve as the justification for admitting evidence otherwise inadmissible. Although Miranda does not mandate suppression of statements made by an accused who has not been informed of his rights if those statements have not been elicited by police interrogation, it remains good practice to inform an accused of his rights as soon as is possible. More significantly, the implied promise, contained in the Miranda warnings, that one’s silence will not be used against one, is derived not from the words of the Miranda warnings, but from the actual constitutional guarantees which they express. Thus, regardless whether that promise is repeated by the police in the form of Miranda warnings, each and every citizen has already been made just such a promise by the State. That promise is contained in the privilege against self incrimination provided by both the Federal and State Constitutions (US Const, 5th Amdt; NY Const, art I, § 6). The State has promised each of its citizens, by ratification of those constitutional provisions, that he may remain silent in the face of accusation. Having made that promise, the State may not, consistent with any concept of fundamental fairness and due process, subsequently renege on that promise by utilizing a defendant’s silence against him. The implied promise made to a suspect when he is given Miranda warnings merely repeats and reiterates the promise already made by both our Constitutions. Although it is necessary to repeat that promise in order to ensure that the suspect fully understands his constitutional rights, the failure of the police to do so does not serve to prevent a suspect from relying upon that promise. Moreover, it is a matter of common knowledge that a person who is arrested is not required to speak to the police, and that his silence may not be used against him. This is not an arcane legal principle known only to the learned, but rather is familiar to most citizens. For purposes of a due process analysis based on the unfairness of capitalizing upon the accused’s accurate appreciation and exercise of his basic constitutional rights, we deem it irrelevant whether that knowledge was imparted by the police, as is required by law, or was absorbed from our common culture (see, also, Douglas v Cupp, 578 F2d 266, cert den 439 US 1081). In short, we conclude that the use for impeachment purposes of an accused’s silence at the time of his arrest is violative of due process.

There exists, moreover, another reason for precluding use of a defendant’s silence for impeachment purposes. It is basic to our system of criminal justice that an accused may not be compelled to incriminate himself (US Const, 5th Amdt; NY Const, art I, § 6). While proper application of this principle may vary with the context in which it is sought to be utilized, there can be no doubt but that at the most basic level it provides an accused with the right to remain silent in the face of interrogation or accusation. Any attempt to penalize a person for the exercise of this fundamental right must be scrutinized with extreme care. It is for this reason that in New York it has long been the law that evidence of silence at the time of an arrest may not be used as a part of the prosecution’s direct case. As we declared in People v Rutigliano (261 NY 103, 107, supra), "No cautious person, when in custody, accused of crime would care to enter into a discussion of his guilt or innocence with his captors and co-defendants, when what he said might be used against him * * * He is then under no duty to speak and his silence should not be counted as giving assent to what he hears. If he had counsel, he would doubtless be advised not to talk. If he had not, he should not be prejudiced thereby”.

Similarly, in Griffin v California (380 US 609) the Supreme Court forbade comment during trial about a defendant’s decision to exercise his privilege against self incrimination by not taking the stand on his own behalf. The court found such commentary, to be objectionable because ”[i]t is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly” (380 US, at p 614).

These cases, of course, do not resolve the controversy concerning use of a defendant’s silence at the time of arrest to impeach his credibility, for in both Griffin and Rutigliano the defendant’s decision to exercise his privilege was sought to be used as a part of the direct prosecution case, not merely for impeachment purposes. The State’s interest in preventing perjury is a great one, and the use of a defendant’s silence for impeachment purposes imposes less of a toll upon the exercise of the privilege than does the use of that silence as proof of guilt. Thus, a distinction may validly be made between such cases. The considerations underlying both Rutigliano and Griffin, however, remain applicable, although to a different extent, when an attempt is made to utilize a defendant’s silence for purposes of impeachment.

Thus, absent unusual circumstances such as those presented in the Rothschild case, we cannot countenance the use of silence even for impeachment purposes. In the typical case, the probative value of such evidence will be minimal (see United States v Hale, 422 US 171, 176-177), and yet its prejudicial effect may be considerable. Although, as noted above, the State does have an interest in preventing perjury so strong that it may at times outweigh the somewhat attenuated interests of a defendant in preventing the use of his silence for impeachment purposes, this can be so only if the facts of the particular case are such that the defendant’s silence has an unusually high probative value. In most cases, such as this one, silence when arrested is essentially ambiguous. The innocent suspect, as well as the guilty, is free to refrain from discussing the intricacies of his case with an arresting officer. Contrary to the opinion expressed by the dissent, we find no necessary contradiction between innocence and the decision to await a somewhat calmer moment and a more sympathetic audience before speaking. A suspect may well believe that it would be useless to attempt to justify his apparently criminal behavior to the arresting officer. For example, in the instant case, defendant was stopped with gun in hand following a running street battle. The likelihood that any explanation for his behavior could have then prevented an arrest was minimal at best. Hence, to speak may well have appeared futile to defendant. Moreover, it is an unfortunate truth that many people in our society, especially those involved in the life of the street, view the police as antagonists rather than protectors and react to police contact with extreme suspicion, distrust, and lack of cooperation. Such people will often believe, rightly or wrongly, that nothing they might say to the police on their own behalf would be accepted. Conversely, one who has had little or no dealings with the police might wéll be too shaken by the encounter to immediately raise a valid explanation, especially when the surrounding circumstances create the strong appearance of guilt. In short, the possible explanations for silence are many and varied, and a failure to speak, absent unusual circumstances, is as consistent with innocence as guilt. Because of the low probative value which may reasonably be attached to silence, the State’s interest in utilizing that evidence for impeachment purposes is correspondingly weakened and will not justify the imposition of even so attenuated a penalty on the exercise of a defendant’s right to remain silent (see Comment, Impeaching a Defendant’s Trial Testimony by Proof of Post-Arrest Silence, 123 U of Pa L Rev 940, 974).

It is, of course, true that statements made by a defendant who has not been given Miranda warnings at the time of arrest may nonetheless be used by the prosecution for impeachment purposes should the defendant take the stand on his own behalf (see Harris v New York, 401 US 222). While this rule implies the validity for constitutional purposes of distinguishing between the use of evidence as a part of the prosecution’s direct case and the use of evidence for impeachment purposes only, it is certainly not contrary to the principle we enunciate today. This is so for several reasons. First, an inconsistent statement is much more probative than is silence. Moreover, a defendant’s decision to remain silent at the time of arrest is in and of itself an assertion of a basic constitutional privilege. Thus, to allow that silence to be used against a defendant is to place a burden upon the direct exercise of a fundamental right. The Miranda warnings, on the other hand, constitute a prophylactic device designed to prevent constitutional violations and to protect the rights of an accused. In the absence of any actual coercion, a statement made by a defendant who has not been informed of his rights is not inherently suspect, nor does the use of such a statement against a defendant penalize that defendant for the exercise of a constitutionally protected right. Since the use for impeachment purposes of a statement made in the absence of Miranda warnings does not penalize an accused for the assertion of a constitutional right, whereas the use of a defendant’s silence even for impeachment purposes only would burden the exercise of the defendant’s privilege against self incrimination, it is appropriate to allow the use of such statements for impeachment purposes while precluding similar use of a defendant’s silence.

In short, unless the introduction of evidence pertaining to a defendant’s silence for impeachment purposes would materially advance the search for truth, it cannot be deemed to serve a sufficiently substantial State interest to justify the imposition of a penalty for the exercise of a constitutional right. In the typical case, as here, silence at the time of arrest will simply be too ambiguous to provide such a basis (see United States v Hale, 422 US 171, supra; cf. Raffel v United States, 271 US 494). Hence, we conclude that the use of defendant’s silence for impeachment constituted an impermissible penalty for the exercise of his privilege.

Finally, we must reject the People’s argument that the use of defendant’s silence for impeachment purposes constituted harmless error at worst. Although there existed other evidence which might sustain a finding of guilt by the jury, it is evident that the nature and extent of the encounter between the defendants and their alleged victims was basic to the determination of guilt or innocence. The jury was presented with a pointed issue of credibility and was required to believe either the defendants or the prosecution witnesses. In this context, any evidence tending to impeach Conyers’ credibility was extremely significant and may well have had a considerable influence upon the jury. Hence, even were we to find harmless error analysis to be appropriate in a case of this nature, in the absence of curative instructions we must conclude that in this case there is a reasonable possibility that this constitutional error contributed to defendant’s conviction (see People v Crimmins, 36 NY2d 230, 240-241).

Accordingly, the order directing a new trial should be affirmed.

Meyer, J.

(dissenting). Because the majority departs from the precedent established in People v Rothschild (35 NY2d 355) and does so on the wholly untenable basis that defendant’s silence when arrested was too ambiguous to "materially advance the search for truth” (p 183; see, also, p 181), I respectfully dissent.

By its decision today the majority leaves the status of Rothschild unclear, for though it appears to have ruled that impeachment by silence remains permissible in the circumstances of Rothschild (p 181) it also speaks of re-examining Rothschild in the light of later Supreme Court cases (p 179), and its holding, if it does not establish a per se rule, necessarily limits Rothschild to sui generis status as a precedent. In my view neither the due process clause nor the privilege against self incrimination requires the result reached. The right to impeach a defendant by his silence at the time of arrest should turn, as does the right to impeach him by prior criminal convictions, on a balancing of the prejudice to defendant on the one hand and the probativeness of his silence as a measure of his credibility on the other. Here we deal not with silence in the face of an accusation or inquiry at the time of arrest or the failure then to mention an alibi, but with defendant’s failure to call the arresting officer’s attention to the fact that he was not the perpetrator but rather the victim of crime, followed by defendant’s testimony at trial, in direct contradiction of prosecution witnesses, that that was, indeed, the fact. To refuse to permit the jury to consider defendant’s silence at arrest under those circumstances is to fly in the face of human experience and of the public interest in truthful testimony embodied in the impeachment rule. It is, to put it bluntly, to provide defendants with a license to lie, not required by Constitution, statute or precedent.

I

The majority’s due process analysis overextends the scope of the holding in Doyle v Ohio (426 US 610) and misapprehends the facts of the instant case. What Doyle held to be a due process violation was "the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings” (426 US, at p 619). It explained the essence of the unfairness on which its due process reasoning was bottomed in a footnote (426 US, at p 619, n 10) as follows: "After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right.” But as Mr. Justice Stevens, dissenting, observed (426 US, at pp 625-626): "if no warning had been given * * * nothing in the Court’s opinion suggests that there would be any unfairness in using petitioners’ prior inconsistent silence for impeachment purposes.”

That there is no unfairness when no Miranda warning has been given results from the absence of misleading conduct on the part of the State; there simply is no "state action” upon which to predicate a due process claim. The novel suggestion by the majority that the constitutional provision against self incrimination is a promise by the State not to use one’s silence against him (p 179) will not withstand analysis. The provisions speak of compulsion to be a witness against oneself and as history shows are addressed to the compulsion and coercion of the Star Chamber (see Michigan v Tucker, 417 US 433, 440; People v Thomas, 46 NY2d 100, 107). That means that, as People v Rutigliano (261 NY 103) teaches, silence cannot be used as evidence in chief; it does not mean that silence cannot be used to impeach when defendant becomes a witness on behalf of himself (People v Rothschild, 35 NY2d 355, supra), any more than a defendant who pleads insanity may refuse to answer questions put to him by court-appointed psychiatrists during a mental examination (Matter of Lee v County Ct. of Erie County, 27 NY2d 432). In short, the suggested implied promise unduly expands the constitutional provisions and ignores the part that waiver plays in the determination of their meaning (see, also, infra, pp 188-189).

Nor can a substitute "state action” basis be found, as the majority opinion tries to do, either in the anomaly of rewarding improper failure to warn by permitting it to justify admission of the evidence or in the accused’s possible "accurate appreciation and exercise of his basic constitutional rights” (p 180). As to the first, it assumes that any failure to warn is an improper police practice and that that failure is the sole justification for admission of the evidence. But what we deal with in the instant case is a claim at trial which, if true, would have been made at or before arrest, spontaneously upon the appearance of the police, and as to which, therefore, the custody which triggers the Miranda warning obligation simply had not begun (cf. Bradley v Jago, 594 F2d 1100, 1103). There was, in any event, no improper practice in the present case because though defendant was taken into custody the police made no attempt to question him and he, therefore, never became entitled to Miranda warnings from them.

To speak of the failure to warn as justifying admission of evidence of silence misconceives the rationale of the impeachment rule and the purpose of cross-examination, moreover. The justification for admission of such evidence is the truth-seeking function of the trial and the relationship between credibility of trial testimony and defendant’s prior inconsistent conduct in remaining silent under circumstances in which he would have, were his trial testimony true, felt compelled to say so at the time of his arrest (see Doyle v Ohio, 426 US 610, supra; People v Wise, 46 NY2d 321). Human experience teaches that an important factor in evaluating a present exculpatory statement is its consistency with any prior statement on the one hand, and the failure, on the other, to make a prior consistent statement at a time when the motivation to do so was strong. The failure to warn does not "justify” admission of the evidence, therefore. It simply removes the obstacle, in the nature of estoppel, that blocks use of the evidence: the unfairness of telling defendant he may remain silent and then using the fact that he did so to his detriment.

Permitting impeachment by silence involves no anomaly, therefore. But there is a very real anomaly involved in the majority’s due process argument that it is common knowledge "absorbed from our common culture” that an arrested person is not required to speak to the police,- for the predicate of Miranda is that it cannot be presumed that a defendant knows his rights upon arrest and that he must, thereforé, have spelled out for him the precise guarantees the Constitution affords him.

Absent a showing that by giving Miranda warnings or by other representation- to the person arrested the police have misled him into remaining silent, there is no basis upon which any due process violation can be found. There has been no such showing in this case.

II

No more does the privilege against self incrimination support reversal of Conyers’ conviction. What the majority has done in reaching its conclusion is to apply the exception as though it were the rule.

The rule as the Supreme Court has made clear in many different ways is that a defendant who testifies in his own defense subjects himself to the same obligation to speak the truth and the same searching cross-examination to determine whether he has as does any other witness. The exception is that the State may not cross-examine in areas in which by its own affirmative action or representation it can be said to have coerced or misled the defendant, or which are so tenuously probative as not to justify the resulting prejudice to defendant.

The underpinnings of the rule were well stated by Mr. Justice Frankfurter in Brown v United States (356 US 148, 154-156):

"If [a defendant in a criminal case] takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. '[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.’ Fitzpatrick v. United States, 178 U.S. 304, 315; and see Reagan v. United States, 157 U.S. 301, 304-305. The reasoning of these cases applies to a witness in any proceeding who voluntarily takes the stand and offers testimony in his own behalf.

* * *

"[WJhen a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a human safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.”

On similar reasoning the Supreme Court has upheld the use for purposes of attacking the credibility of defendant’s trial testimony of a statement inadmissible on the prosecution’s case in chief because of the lack of Miranda warnings (Harris v New York, 401 US 222, affg 25 NY2d 175, supra) or because obtained in contravention of defendant’s right to counsel (Michigan v Tucker, 417 US 433, supra; Oregon v Haas, 420 US 714). We, likewise, have held that "[o]nce a particular statement is found appropriate for impeachment purposes, any Miranda infirmity becomes irrelevant” (People v Wise, 46 NY2d 321, 329, supra).

Out of these cases has developed the concept that a defendant who takes the stand waives his privilege against self incrimination not only as it protects against prior official action, short of coercion or affirmatively misleading conduct, in improperly obtaining statements from him, but also as he has previously affirmatively taken refuge in its protection. Thus, testimony given before a Grand Jury under a grant of immunity is compelled and cannot constitutionally be used to impeach (New Jersey v Portash, 440 US 450) and because silence after Miranda warnings has probably been induced by the giving of the warnings, it cannot constitutionally be used to impeach (Doyle v Ohio, 426 US 610, supra; cf. Johnson v United States, 318 US 189), but defendant’s failure at his first trial to take the stand to deny testimony as to an incriminating admission can be used on cross-examination at his second trial, where he did take the stand, to impeach his testimony denying the same admission (Raffel v United States, 271 US 494).

Raffel assumed a significant inconsistency between defendant’s testimony at the second trial and his silence at the first which later decisions of the Supreme Court in the exercise of its supervisory function relating to Federal trials have called into question (see United States v Hale, 422 US 171, 175; Stewart v United States, 366 US 1, 6; Grunewald v United States, 353 US 391, 420), but that does not diminish the force of its holding that when a defendant in a criminal case takes the stand he waives his privilege against self incrimination and like any other witness may be impeached by his prior silence, provided only that there is a significant inconsistency between his trial testimony and his prior silence. Nor can it be said that when there is a sufficiently significant inconsistency between prior silence and trial testimony the fact that its use burdens the exercise by defendant of a constitutional right proscribes doing so. The Supreme Court has recognized a number of times (as the majority apparently agrees) that not every burden upon the exercise of a constitutional right is impermissible (Chaffin v Stynchcombe, 412 US 17, 29; McGautha v California, 402 US 183). Indeed, McGautha expressly held that "It does no violence to the privilege that a person’s choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case” (402 US, at p 213) and that it is not impermissible to require that a defendant in determining whether to take the stand in his own behalf "take into account the matters which may be brought out on cross-examination” (402 US, at p 215).

The balance to be struck is between defendant’s decision whether to testify at trial and the strong policy against countenancing perjury. While there may be, as the majority suggests, possible prejudice to a defendant in the use of his pretrial silence in that the prosecutor, and ultimately the jury, may give it more emphasis than it deserves, defendant of course has the right to offer any explanation he sees fit, to object if the summation distorts the situation and to request appropriate instructions for the guidance of the jury, whereas the State’s interest in truthful testimony as embodied in the impeachment rule is wholly defeated if the use of pretrial silence is proscribed.

The ultimate measure of admissibility, therefore, is the extent to which the pretrial silence can be said to be inconsistent with the testimony given at trial, or, to put it another way, the reliability or probative value of the pretrial silence. Grünewald v United States (353 US 391, supra), Stewart v United States (366 US 1, supra), United States v Hale (422 US 171, supra), and our own decision in People v Wise (46 NY2d 321, supra) suggest the bases for determination of this question. Grunewald held that there was no inconsistency between defendant Halperin’s claim of privilege before the Grand Jury and his trial testimony because had he answered the questions put to him before the Grand Jury in the same way he subsequently answered them at trial, he nevertheless would have provided the Government with incriminating evidence; for example, since answering the Grand Jury question whether he knew Grunewald, one of the conspirators, would have tended to incriminate him by linking him to the conspiracy his claim of privilege was not inconsistent with his trial testimony that his acquaintance with Grünewald was free of any criminal element. The court noted also that Halperin repeatedly insisted before the Grand Jury that he was innocent and claimed privilege only because his attorney so advised, that Grand Jury proceedings are not adversary or protected by presence of counsel, and that Halperin was when called before the Grand Jury a potential defendant. Stewart found no inconsistency because the defendant, whose defense was insanity, testified only in gibberish, so the jury had nothing to evaluate but his demeanor. Hale found no inconsistency in defendant’s silence after arrest with respect to his exculpatory trial explanation that the money found in his possession and about which he was questioned at the police station had come from his wife, because he had just been given Miranda warnings, knew he was a potential defendant because he had been the subject of an eyewitness identification, did assert his innocence and was in a "secretive” as distinct from an adversarial setting. Those facts plus Hale’s prior contacts with the police and his participation in a narcotics rehabilitation program led the court to conclude that, on the facts of the case, there was no inconsistency since Hale "had no reason to think that any explanation he might make would hasten his release” and "had substantial indication that nothing he said would influence the police decision to retain him in custody” (422 US, supra, at p 179). Our decision in Wise concerned defendant’s denial at trial that he had, without Miranda warnings, made a prior inconsistent statement that linked him to the murder weapon, and is of value for purposes of the present discussion only for its definition of inconsistency (46 NY2d, supra, at pp 327, 328): "Simply put, where a defendant’s trial testimony offers one version of the events in question, and his prior remark to a police officer suggests a contrary view of these events, the jury is entitled to hear the previous statement so that it may fully assess the witness’ credibility.”

The majority states without analysis that defendant’s silence when arrested was "essentially ambiguous” (p 181) and "too ambiguous” to "materially advance the search for truth” (p 183). Measured by the above criteria or on any other reasonable basis for evaluation that assessment is untenable, for there was simply no reason for defendant to acquiesce in his arrest without stating the version of the facts he testified to at trial if that version was the truth. When apprehended defendant, gun in hand, was being chased by one of the complaining witnesses, Dantzler. Ordered by the police, who had been alerted to the situation by a third party, to halt, defendant complied and dropped the weapon. On searching him, the officers found a black vinyl purse and some cash. Defendant was arrested and told at the time that he was being arrested for robbery, possession of a weapon, assault and attempted murder. Though he offered no such explanation when arrested, defendant testified at the trial that he had placed a numbers bet with Dantzler and when his number hit went to Dantzler’s apartment to collect. Dantzler argued with him at first, but then told him, pointing to a pouch on a table, to go get the money. When he reached for the pouch, however, Dantzler drew a gun. Defendant knocked the gun from Dantzler’s hand, picked it up and placed it and the pouch in his pocket, and then, to prevent Dantzler from following them the codefendant, Saunders, who had driven defendant to Dantzler’s apartment, tied Dantzler up with rope. As defendant and Saunders were walking toward Saunders’ car Dantzler emerged from the building screaming that he wanted his gun back. Some police officers appeared, Dantzler yelled at them that he had been robbed and defendant was arrested. Defendant denied ever having seen Grace Johnson until he was in custody.

The prosecution testimony which defendant sought to refute was that Dantzler and Grace Johnson were standing outside an apartment building talking when they were ordered by two young men, at gunpoint, to step inside, that once inside they were bound, money was removed from Dantzler’s pockets and Grace Johnson’s black bag containing money was taken, that Dantzler untied himself and as he emerged from the building saw defendant and Saunders turning the corner, was given a lift in that direction by a tow truck operator to whom he stated he had been robbed, but jumped off and proceeded on foot because the tow truck could not follow defendant and Saunders who were running against traffic, that Dantzler continued the chase on foot while the tow truck operator searched for police, that the tow truck operator was talking to police when he again spotted defendant gun in hand, that Johnson during all this time remained bound in the apartment building until released by a woman who entered the building.

It is not necessary to recount all of the many discrepancies in defendant’s trial version, including the total failure to explain why Grace Johnson would have tied herself up or what motive she and the tow truck operator and the woman who untied Ms. Johnson would have had for framing defendant. Such discrepancies are for the jury to consider in making the ultimate determination, and play a negative part in determining the permissibility of impeachment by silence in that the issue disappears if there are no such discrepancies, but are essentially hindsight. The inconsistency by which is determined whether silence has probative value to impeach is, however, to be measured at the time of the silence rather than at trial.

So measured, the obligation imposed by the human instinct for self-preservation to avoid arrest by explaining that the gun belonged to Dantzler and that defendant’s running away from Dantzler, though Dantzler was unarmed, had an innocent explanation was at least as great as that imposed by his official duties upon the policeman involved in People v Rothschild (supra). It is, moreover, an instinct which the law has recognized in other ways: in permitting testimony of the complaining witness in a rape trial that immediately after the crime she made complaint to a third person (People v Deitsch, 237 NY 300; Richardson, Evidence [10th ed — Prince], §§ 292, 519); in permitting testimony by a defendant who claims that his confession was coerced, that he complained of the mistreatment at the first suitable opportunity (People v Alex, 260 NY 425; Richardson, op. cit., § 519). The basis for the rule and the significance of the absence of complaint was well stated in Alex (260 NY, at pp 428-429): "When that issue [coercion of a confession] is involved, the question of whether a defendant made complaint of mistreatment at the first opportunity or within a reasonable time is material and relevant. It is of great assistance to the jury in determining whether a defendant’s claim that a confession was induced by threats and fear is the truth or an afterthought, a concocted story to escape the effect of the confession. If complaint is not timely made, when it is made suspicion is aroused that it is a subterfuge.”

While those cases deal with admission of evidence concerning the making of a statement as corroborating evidence whereas we are concerned with the absence of a statement as impeaching evidence, they are important to a determination of the proper rule relating to impeachment by silence because they proceed from a common human trait: it is natural to expect that one who has been outraged in person or property will make prompt disclosure or explanation, the more so when his or her failure to do so will result in his or her own arrest. Nor is the drawing of an adverse inference from the silence of a criminal defendant unknown to the law; for example, the inference of guilt from recent and unexplained possession of the fruits of crime (Penal Law, § 165.55; People v Moro, 23 NY2d 496). Clearly, therefore, defendant’s silence at arrest can "materially advance the search for truth” and is, therefore, admissible, unless there were also present countervailing considerations of the Grunewald-Stewart-Hale genre to weaken its probative value and require its exclusion in this particular case.

No countervailing considerations were present here. To state that Dantzler had pulled a gun on him and he had taken it away from Dantzler would not have incriminated defendant. He made no statement of innocence or guilt and at the moment of his arrest had not so far as he knew been identified by anyone as the perpetrator of a crime, nor had he received Miranda warnings. The most that can be said in favor of excluding the evidence of his silence, therefore, is that since he was carrying a gun he knew he was a potential defendant, that the "proceedings” were not adversarial (though they can hardly be deemed "secretive”) and that (as the majority assumes) he was in fact aware of the Fifth Amendment. The first furnishes no basis for exclusion because the explanation of possession of the gun offered at trial would have obtained his release and Dantzler’s incarceration. The second has little or no bearing on the natural instinct to explain in the situation in which defendant found himself at the time of arrest. As to the third, it is sufficient in the truth-seeking process of a trial to provide defendant with the opportunity to put before the jury the motivation for his silence. To give it the exclusionary effect that the majority does, however, is to emasculate the rule.

In final analysis, the only advantage of the majority’s rule, if it is a per se rule, is ease of application, but its adoption on that basis alone would be procrustean. If on the other hand, the rule it adopts is intended to allow impeachment of a defendant by silence in "unusual circumstances”, as appears to be the case, the failure to categorize the instant case as one such or to furnish guidelines concerning what may be so categorized can only result in confusion for the trial Bench and Bar.

III

It is necessary to note additionally only that nothing in statute, or with two clearly distinguishable exceptions, in case law of our court requires the result the majority reaches. The only statute which touches the subject is CPL 60.15 (subd 2) which is, however, concerned only with the impermissibility of drawing any inference from defendant’s failure to testify in his own behalf at trial.

Of the cases relied upon by the majority or in defendant’s brief many are inapposite because they concern use of silence as part of the prosecution’s direct case, a wholly different proposition from that here under discussion, or are general statements, broader than necessary for the case in which said and made without reference to a situation such as that of the instant case, so far as appears from the decision. In the first category fall People v Rutigliano (261 NY 103, supra); People v Travato (309 NY 382); People v Bianculli (9 NY2d 468); People v Christman (23 NY2d 429), which are also distinguishable on the grounds that they involve failure to respond to accusations or to assert an alibi (see n 3 above) and that their reasoning relates to a failure to respond to statements made to them, rather than failure to speak spontaneously as the supposed situation would require (e.g., People v Rutigliano, 261 NY, supra, at p 107, "his silence should not be counted as giving assent to what he hears”). In the second, fall People v Arce (42 NY2d 179, 187) and People v Thomas (46 NY2d 100, 109, supra).

Of the four cases in which we have considered the use on cross-examination of prior silence as a means of impeachment two (People v Rothschild, 35 NY2d 355, supra; and People v Fiore, 34 NY2d 81) have permitted such use, and two (People v Petersen, 4 NY2d 992; and People v Hyman, 308 NY 794, affg without opn 284 App Div 347) have not. Hyman appears from the Appellate Division decision to have concerned cross-examination of defendant-doctors, who at trial testified that the alleged abortion was therapeutic, concerning whether they had refused while in custody to admit knowing the person upon whom the abortion had been performed, and we are told by the dissent in the Appellate Division (5 AD2d 698) that Petersen concerned cross-examination of a defendant charged with driving while intoxicated, who testified at trial that someone other than he had been driving the car, whether he had made any such assertion on the occasion of his arrest and while in custody. Petersen is closer to the spontaneous impulse that would have operated in the instant case had Conyers’ trial testimony been true than is Hyman, but both are distinguishable because as indicated by the authorities upon which they relied (cases such as Rutigliano, excluding use as direct evidence of prior silence) they gave no apparent consideration to the distinction between use on direct and use for impeachment purposes on cross.

Fiore and Rothschild on the other hand, allowed impeachment of defendant. Fiore may be distinguished from the instant case because it was defendant, seeking on redirect examination to bolster the exculpatory version testified to by him, who testified that he had not been asked before indictment to make any statement, whereas he had been called before the Grand Jury but was not permitted to testify because he refused to waive immunity. We held that it was permissible to impeach defendant by showing the latter fact even though it could not have been revealed as evidence in chief. The value of Fiore to the present discussion is limited to its distinction between evidence in chief and impeachment and its conclusion that not every burden upon the right to remain silent is impermissible.

Rothschild is more closely in point for it permitted cross-examination of a police officer defendant, who had testified on direct that he had received money only to set the giver up for a bribery charge, to show that he had not revealed the scheme to his superiors, or to his fellow officers at the time of arrest. In so holding we relied (35 NY2d, supra, at p 360) upon the patent inconsistency between silence and the defense asserted and defendant’s patent obligation to speak and noted with interest similar holdings in United States ex rel. Burt v State of New Jersey (475 F2d 234) and Agnellino v State of New Jersey (493 F2d 714).

It would unduly extend this already too long opinion to discuss in detail Burt and Agnellino, and in any event, our noting of those cases "with interest” is not the same as noting them with approval. Nonetheless, it is worthwhile pointing out that though neither involved the "patent obligation to speak” to which we referred in Rothschild, each found the inconsistency involved to be as "highly probative” as did we the inconsistency in Rothschild (35 NY2d, supra, at p 360). In sum, the obligation to speak imposed by duty in Rothschild was no more compelling than that imposed by Conyers’ own self-interest were his trial testimony true and, therefore, furnishes no basis for distinguishing Rothschild from the instant case. Just as in Rothschild defendant’s testimony was "diametrically inconsistent with that produced by the prosecution”, and his silence upon arrest was "patently inconsistent with the defense asserted” (35 NY2d, supra, at p 360), so in the present case is Conyers. Having distinguished between direct and impeachment use of silence in that case to reach a sound and proper result, we now effectively reverse that result.

For the foregoing reasons, I would reverse the order of the Appellate Division insofar as it is appealed from, and would remit to the Appellate Division for further proceedings.

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

Order affirmed.

      . Saunders was also convicted, but his conviction was affirmed by the Appellate Division and leave to appeal to this court was denied (People v Saunders, 63 AD2d 868, mot for lv to app den 44 NY2d 956). We note that the issues presented on this appeal were not raised by Saunders on his appeal.

      . It should be emphasized that this is an alternative basis for our decision in this case, since the due process considerations discussed previously would in all cases prevent the use of silence for impeachment purposes.

      . While the majority cites both Federal and State due process and self incrimination provisions, I do not understand its decision on either point to be based on the State Constitution, independent of the Federal, nor does there appear to be reason, the language of the two Constitutions being virtually identical in both respects, for interpreting them differently under the circumstances of this case.

      . The rule suggested is limited to time of arrest because the silence sought to be used in this case was at that time. No opinion is expressed concerning similar use of postarrest silence, but cf. Judge Stevens dissenting in Doyle v Ohio (426 US 610, 632-633).

      . Accusation or inquiry may be differentiated from the situation of the instant case because it so much more readily lends itself to police abuse (see McCormick, Evidence [2d Cleary ed], §§ 161, 270). Alibi requires recall which may require more time and thought than is available at the time and under the circumstances of arrest.

      . It is highly improbable that an officer will deliberately omit warnings in the hope that the person he arrests will remain silent so that his silence can later be used to impeach his trial testimony. Improper police practices when engaged in are intended to produce not silence but statements. But even were that not so, as the Supreme Court stated in Ham's v New York (401 US 222), affirming our decision in 25 NY2d 175, "the benefits of this process [impeachment] should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby * * * sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief’ (401 US, at p 225).

      . Compare Grünewald v United States (353 US 391, 420). Note that despite a dissent by Mr. Justice Black, joined by the Chief Justice and Justices Douglas and Brennan, urging that Raffel should be overruled, the court in Grünewald failed to do so, holding simply that Raffel was not controlling because there was no true inconsistency.

      . That part of what may be brought out on cross-examination is silence at the time of arrest does not compel the difference in result suggested by the majority in distinguishing Harris v New York from the instant situation (pp 182-183). True Harris concerns deterrence from constitutional violation whereas we are concerned with defendant’s silence in a situation in which silence is unnatural, which could be in the intentional exercise of a constitutional right, but the only compulsion involved in the latter is far from an impermissible one. All that is required is that defendant include in the considerations by which his decision to remain silent at arrest is arrived at the possibility that doing so may be used for impeachment when there is sufficiently great discrepancy between trial testimony and arrest silence to make the latter probative. In short, such burden as there is does not have the proportion attributed to it by the majority.

      . See, e.g., Regina v Cripps (3 Cr Rep NS 367, 371), in which the British Columbia Court of Appeals quoted approvingly the following passage from an earlier case: "it is wrong to say to a jury 'Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt’; it is quite a different matter to say 'This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation’.”

      . The short answer to the majority’s suggestion that silence in the instant case is essentially ambiguous is that we deal here not with one claiming simply innocence but with a person who claims to have been the victim of crime. The probability that such a person will withhold stating so to await a calmer moment, because he believed an explanation useless, or because he feels animosity toward the police is not so great that use of his silence to impeach him should be proscribed, though, of course, he may put such explanations before the jury for their use in evaluating his credibility. By taking the stand the defendant has waived his privilege against self incrimination to the extent necessary to evaluate his testimony.

      . As Mr. Justice Stevens, dissenting in Doyle, suggests (426 US, at p 626) exclusion is not warranted because the risk that a truthful defendant will be deceived by his understanding of the Fifth Amendment and also will be unable to explain his honest misunderstanding is so much less than the risk that exclusion of the evidence will merely provide a shield for perjury.

      . For example, the majority’s direct burden rationale, discussed in footnote 6 above, would outlaw Rothschild’s use of silence to impeach even though defendant jn that case had a duty-imposed obligation to speak.


author: Meyer, J. Chief Judge Cooke

text:
    In the Matter of Philip A., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued December 11,1979;
    decided January 8, 1980

      POINTS OF COUNSEL

      John F. McGlynn, William E. Hellerstein and Charles Schinitsky for appellant.
    The finding of assault in the third degree was insufficient, as a matter of law, where the injury to complainant consisted merely of a little redness on his face and a sensation of pain. (People v McDowell, 28 NY2d 373; Matter of Derrick M., 63 AD2d 932; Matter of Phillip A., 63 AD2d 924; Matter of Gregory W., 19 NY2d 55; Matter of Gault, 387 US 1.)

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan of counsel), for respondent, precluded.
   OPINION OF THE COURT

Meyer, J.

When is pain "substantial” within the meaning of subdivision 9 of section 10.00 of the Penal Law? The question arises in a juvenile delinquency proceeding in which respondent was proven to have twice hit the complainant in the face, causing him to cry, his face to feel like bumps were coming on it though none did, causing red marks on his face, and causing him pain. The Family Court Judge found that complainant "experienced substantial pain, according to his own feelings, at the time he was struck” by respondent, "was crying * * * and exhibited a red mark”. The Appellate Division affirmed, two Justices dissenting (63 AD2d 924). The order should be reversed.

Pain is, of course, a subjective matter. Thus, touching the skin of a person who has suffered third degree burns will cause exquisite pain, while the forceful striking of a gymnast in the solar plexus may cause him no discomfort at all. Yet it is clear from the inclusion of the word "substantial” in the Penal Law definition that the Legislature did not intend a wholly subjective criterion to govern. This is so both because it abjured the Model Penal Code’s definition (section 210.0, subd [2], "physical pain, illness or any impairment of physical condition”), and because the Revisors’ notes state that "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives” are not within the definition (Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330).

Thus, while the question whether the "substantial pain” necessary to establish assault in the third degree has been proved is generally a question for the trier of fact (cf. Montgomery v Daniels, 38 NY2d 41, 59, n 13), who in reaching his or its conclusion can consider, among other factors, the subjective reaction of the person claimed to have been assaulted, there is an objective level, suggested by the Revisors’ notes, below which the question is one of law, and the charge should be dismissed (People v McDowell, 28 NY2d 373 [incidental reference to a blackened eye without any development of its appearance, seriousness, accompanying swelling or suggestion of pain insufficient]).

Here we have nothing more than evidence that complainant was hit, that it caused him pain, the degree of which was not spelled out, caused him to cry and caused a red mark. All of that is consistent with "petty slaps” and, therefore, was insufficient to establish "substantial pain” beyond a reasonable doubt.

Accordingly, the order of the Appellate Division should be reversed and the petition dismissed.

Chief Judge Cooke

(dissenting). I would affirm the order of the Appellate Division and therefore respectfully dissent.

On this record, it cannot be said that the trier of fact erred in concluding that proof of the elements of an assault in the third degree (Penal Law, § 120.00) was sufficient to justify adjudicating respondent a juvenile delinquent beyond a reasonable doubt. Complainant testified that he and another youth had some disagreement, resulting in a threat by this youth to get someone smaller to fight complainant. Subsequently, complainant, visiting at a friend’s apartment, was pulled into the stairway where respondent proceeded to hit him not once, but twice, in the face and not with an open hand, but with his fist. Another youth, acting with respondent, also struck complainant. In pain and crying, complainant ran to his own apartment. In attempting to describe the pain he had experienced, complainant testified that his face hurt and felt as if "bumps was coming”. Although no swelling resulted from the attack, red marks did appear about complainant’s face.

The majority holds that this evidence was insufficient as a matter of law to establish the statutory element of "physical injury” — "impairment of physical condition or substantial pain” (Penal Law, § 10.00, subd 9). With this, there is disagreement.

While the requirement of physical injury excludes from the ambit of the assault statute “petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives” (Temporary State Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330; see, also, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, art 120, p 330), no mere technical battery was involved here. The unprovoked attack could have been found to cause substantial pain to the victim. People v McDowell (28 NY2d 373), involving a conviction for second degree assault, does not mandate the conclusion reached by the majority, for the court there determined that the mere incidental reference to a blackened eye without supporting testimony about its condition or any suggestion of pain simply was insufficient to establish "physical injury” under the statute.

Even more troublesome is the failure by the majority to articulate exactly what would be required to establish "substantial pain” or what degree of pain felt by the victim of an attack is to be considered substantial. It is submitted that when the evidence indicates that the victim suffered more than mere discomfort or slight pain, that evidence is sufficient to establish the physical injury contemplated by the statute. Pain is, by definition, a subjective concept and cannot be quantified or expressed with precision. Knowledge of the circumstances and the description of the sensation accompanying the use of force, however, provide a ready basis for measuring, within one’s own experience, the degree of pain felt by another. Absent proof of these matters, a charge of assault could not be sustained. Here, there was evidence that complainant was hit twice with a fist, a red mark appeared, there was a sensation of bumps and defendant felt pain and cried. The Family Court Judge, sensitive to juvenile difficulties, heard the testimony, observed the witness and, as trier of fact, could have found that complainant suffered substantial pain. I cannot agree that the evidence showed no more than that complainant received a "petty slap” and thus was insufficient as a matter of law to establish an assault beyond a reasonable doubt.

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

Order reversed, without costs, and the petition dismissed.