author: Simons, J. Titone, J.

text:
    The People of the State of New York, Respondent, v Melvin Johnson, Appellant.
    Argued October 14, 1985;
    decided November 26, 1985

      POINTS OF COUNSEL

      Faith O’Neal and William E. Hellerstein for appellant.
    Appellant was arrested without probable cause and thus in violation of his Federal and State constitutional rights where the only evidence leading to his arrest was the statement of an individual with no history of giving reliable information and who exculpated himself from a homicide charge by implicating appellant in the crime. (People v Malinsky, 19 NY2d 262; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Rodriguez, 52 NY2d 483; People v Comforto, 62 NY2d 725; People v Wheatman, 29 NY2d 337;
      People v Elwell, 50 NY2d 231; Illinois v Gates, 462 US 213; People v Landy, 59 NY2d 369; People v Belton, 55 NY2d 49.)

      Mario Merola, District Attorney (Anastasios Sarikas and Jeremy Gutman of counsel), for respondent.
    I. Appellant’s guilt for the crime of murder in the second degree was proven beyond a reasonable doubt by compelling evidence. (People v Valletutti, 297 NY 226.) II. Appellant’s arrest was based on probable cause. Thus, his subsequent confession was properly introduced at trial. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; Illinois v Gates, 462 US 213; People v Fernandez, 58 NY2d 791; People v Harrison, 57 NY2d 470; People v Patterson, 53 NY2d 829; People v Rodriguez, 52 NY2d 483; People v McRay, 51 NY2d 594; People v Clements, 37 NY2d 675; People v Comforto, 62 NY2d 725.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted by a jury of felony murder and related crimes arising from the slaying of a storeowner during a robbery. The evidence against defendant included two inculpating postarrest statements he made which he contends were improperly received in evidence because he was arrested without probable cause and the statements were products of that unlawful arrest. The arrest was unlawful, defendant contends, because the police acted solely upon hearsay information given them by a suspect named Bolivar Abreu whose information did not satisfy the reliability requirement of the Aguilar-Spinelli rule (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410). The People assert the information was reliable because it contained admissions by Abreu against his penal interest, it was corroborated by independent investigation by the police and, failing these, because the hearsay supplied probable cause under the "totality of the circumstances” standards of Illinois v Gates (462 US 213; see also, Massachusetts v Upton, 466 US 727). We find no basis for reliability under the Aguilar-Spinelli rules and we decline to apply Illinois v Gates to warrantless arrests. Inasmuch as there was no attenuation of the unlawful police conduct, the judgment must be reversed and defendant’s statements suppressed.

On March 3, 1982, Raymundo Alcantara was shot and killed during the attempted robbery of his grocery store in The Bronx. Shortly thereafter, Joseph Di Prospro told officers questioning him on an unrelated charge that Bolivar Abreu was the shooter in the Alcantara homicide. This information was passed along to Detective Ernest Wieting who questioned Abreu. At first Abreu denied any knowledge of the Alcantara homicide but he subsequently implicated Di Prospro and defendant by describing a conversation he witnessed between them during which they discussed the crime. Abreu also stated that he and others traded a rifle for a .38 caliber revolver (presumably the revolver used in the crime) two months earlier and he identified other robberies committed by defendant and Di Prospro. After obtaining this statement, Detective Wieting arrested defendant and Di Prospro. At the time of the arrest, defendant had not been identified through a photo array or a lineup, and no other individuals had implicated him. The arrest was based solely on Abreu’s statement.

After defendant was read his Miranda rights, he. agreed to talk to the police, at first giving them various exculpating versions of his activities, but eventually confessing to the crime. He stated that during the robbery Di Prospro had pulled out a gun, that a struggle resulted when the proprietor grabbed for it and that during the struggle Di Prospro fired the gun at the proprietor. He repeated the confession in a later video tape statement.

Defendant moved to suppress his statements but the suppression court found probable cause for defendant’s arrest and denied his motion. The Appellate Division affirmed, without opinion. The legal issue before us is the minimum factual showing necessary to support a finding of probable cause (see, People v Bigelow, 66 NY2d 417 [decided herewith]; People v McRay, 51 NY2d 594, 601; cf. People v Wharton, 46 NY2d 924, 925, cert denied 444 US 880).

A police officer may arrest a person without a warrant when he has probable cause to believe that such person has committed a crime. Probable cause may be supplied, in whole or part, through hearsay information (see, People v Landy, 59 NY2d 369, 375; People v Rodriguez, 52 NY2d 483, 488-489; People v Hanlon, 36 NY2d 549, 556), but before probable cause based on hearsay is found it must appear, in the language of the Aguilar-Spinelli rules, that the informant has some basis of knowledge for the information he transmitted to the police and that the information is reliable (People v Landy, supra, at p 375; People v Rodriguez, supra, at pp 488-489; People v Hanlon, supra, at p 558; cf. Illinois v Gates, 462 US 213, supra). The basis of the informant’s knowledge must be demonstrated because the information related by an informant, even a reliable one, is of little probative value if he does not have knowledge of the events he describes (People v Rodriguez, supra, at p 491). Conversely, no matter how solid his basis of knowledge, the information will not support a finding of probable cause unless it is reliable. Since police officers may not arrest a person on mere suspicion or rumor, they likewise may not arrest a suspect on the basis of an informant’s tip, perhaps born of suspicion or rumor or intentional fabrication. Abreu’s statement was based upon personal knowledge and thus on this appeal we are concerned solely with his reliability.

When the courts talk about the informant’s reliability, they are usually talking about his "track record”, his past performance as a supplier of information (see, People v Rodriguez, 52 NY2d 483, supra). But other obvious forms of verification would be an oath (see, People v Wheatman, 29 NY2d 337, 345-346, cert denied sub nom. Marcus v New York, 409 US 1027, reh denied 409 US 1119) or an admission against penal interest which serves the function of an oath (see, People v Comforto, 62 NY2d 725; United States v Harris, 403 US 573). The informant’s veracity may also be established by other means showing the reliability of the information itself (see, People v Comforto, supra, at p 727; see generally, Roe, Illinois v Gates: Restructuring Hearsay Analysis in Probable Cause Determinations, 35 Syracuse L Rev 1067, 1078-1086 [1984]). In the present case, the record does not contain anything to substantiate Abreu’s past performance as an informant and his statement was not given under oath. The People urge, however, that reliability was established either by the admissions against penal interest found in his statement (see, People v Comforto, supra; People v Wheatman, supra), or by police investigation which corroborated the details of his statement (see, People v Elwell, 50 NY2d 231, 237; People v Alaimo, 34 NY2d 187).

Statements against penal interest are admissible at trial as exceptions to the hearsay rule because the declarant’s interest against being criminally implicated gives reasonable assurance of the reliability of his statement (see, People v Maerling, 46 NY2d 289, 295-298; People v Brown, 26 NY2d 88; People v Egan, 78 AD2d 34, 36-37). This general assurance of reliability also has been deemed sufficient when assessing hearsay information necessary to support probable cause determinations (see, People v Comforto, supra; United States v Harris, 403 US 573, supra; see generally, 1 LaFave, Search and Seizure § 3.3 [c]). Such admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability. Nevertheless, admissions against penal interest have been held sufficient to support a finding of probable cause even though the informant has little to lose and much to gain by supplying information to the police in which he incriminates himself (see, People v Comforto, supra; People v Rodriguez, 52 NY2d 483, 490, supra), or though his admissions incriminate him of criminal conduct less serious than the crime under investigation (see, People v Comforto, supra; United States v Harris, supra). They are accepted because the informant’s identity is known to the police and they may use his statement admitting criminal conduct against him if his information is false (see, 1 LaFave, Search and Seizure § 3.3 [c], at 525-534). The inculpating admissions thus serve the same purpose as a false statement under oath by placing the informant in jeopardy if he attempts to deceive or mislead the police.

In this case the People contend that Abreu’s statement contains admissions of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]) and criminal facilitation in the fourth degree (Penal Law § 115.00 [1]). Manifestly, Abreu did not admit possession of the revolver in his statement and, to support their position, the People claim that trial evidence of possession incriminated him. That is not sufficient, however, because the trial evidence was not known to Detective Wieting at the time of defendant’s arrest and thus it could not provide him with any assurance at that time that Abreu was telling the truth. Nor do the People fare any better with their claim of facilitation. A person is guilty of criminal facilitation when, believing it probable that he is rendering aid to a person intending to commit a crime, he "engages in conduct which provides such person with means or opportunity” to commit the crime and which in fact "aids such person to commit a felony” (Penal Law § 115.00 [1]). Facilitation requires assistance to a person who intends to commit the crime at the time aid is given and who subsequently commits it (People v Gordon, 32 NY2d 62, 64-65). To establish facilitation, the People rely on Abreu’s conduct in assisting others to trade a rifle for the revolver used to kill Alcantara. That conduct occurred two months before the present crime was planned or occurred. Neither it, nor the other crimes mentioned in the statement, could support a charge of facilitation because nothing indicates that at the time Abreu and the others procured the revolver defendant and Di Prospro intended to rob Alcantara’s store or the other businesses mentioned in Abreu’s statement, or that Abreu knew they intended to use the revolver for those robberies.

Nor was the information corroborated by independent police investigation. In his statement Abreu had asserted that Di Prospro told him that Di Prospro had been picked up by the police earlier but they had released him because "they didn’t have anything on him.” That was true, to the knowledge of the police, but it hardly constituted corroboration sufficient to establish the reliability of the rest of Abreu’s statement as the People contend (see, People v Wirchansky, 41 NY2d 130; and compare, People v Alaimo, 34 NY2d 187, supra).

Thus, if probable cause is to be found in this case it must be based upon the test recently announced by the Supreme Court in Illinois v Gates (462 US 213, supra).

In the Gates case, the police conducted an authorized search of defendant’s home and car which produced evidence supporting convictions on drug charges. The papers submitted to the magistrate to support the warrant application relied on a detailed anonymous letter alleging defendants were engaged in drug trafficking. That information was subsequently corroborated in part by the investigation of the police. Although the letter failed to demonstrate the informant’s basis of knowledge, the Supreme Court upheld the magistrate’s determinations of probable cause. In doing so, the court abandoned the Aguilar-Spinelli test in favor of a new "totality of the circumstances” analysis for reviewing probable cause determinations. Under the Gates rule, the familiar two-prong test no longer need be satisfied. Basis of knowledge and reliability are not essential findings in a probable cause determination but, rather, only relevant considerations. It is sufficient that the issuing magistrate makes a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity’ and 'basis of knowledge’ of persons supplying hearsay information, there is a fair probability” that the evidence sought will be located in the place in which the warrant authorizes the search. The duty of an appellate court, reviewing a magistrate’s determination, is to do no more than insure that there was a substantial basis for the magistrate’s conclusion that probable cause existed (Illinois v Gates, 462 US 213, 238, supra). Thus, under the Gates formulation, not only is the legal conclusion of probable cause to be made in a "practical, common-sense” way but also a subjective standard of trustworthiness is to be used, free of fixed rules, to determine the factual predicate on which the magistrate’s legal conclusion rests.

Gates involved a search warrant and the court’s reasoning relies heavily on the fact that the determination of probable cause was made by a detached and neutral magistrate. Thus, a large part of the court’s justification for adopting the new rule rests upon its view that, in assessing probable cause, the appellate courts prefer determinations made by a magistrate issuing a warrant over those based upon the "hurried judgment” of law enforcement officers engaged in investigating crime (Illinois v Gates, 462 US 213, 235-236, supra), a preference this court has also expressed (see, People v Elwell, 50 NY2d 231, 241-242, supra; People v Hanlon, 36 NY2d 549, 558-559, supra). The importance of that consideration was emphasized by the language of' the Supreme Court opinion which reaffirmed prior decisions stating that the use of warrants should be encouraged, by several statements that reviewing courts should accord great deference to the magistrate’s determination of probable cause (462 US 213, 230-232, 239, supra), and by references to the protections afforded by limitations on a magistrate’s power to approve a warrant (id., at p 239). Noting that warrant applications are commonly drafted by nonlawyers who should not be hobbled by technical rules (id., at p 236), the court stated that applications are to be interpreted in a commonsense, not a hypertechnical manner. Finally, the court noted that warrants were to be encouraged because the use of search warrants greatly reduces the perception of unlawful or intrusive police conduct by insuring the person whose property is being searched or seized of the lawful authority of the executing officer and the limits of his power (id., at p 236).

These several arguments suggest that the Supreme Court may not apply the rule to situations involving warrant-less arrests and searches and, as a matter of State constitutional law, we decline to so apply it. In so holding, we note that this court has repeatedly stated that the proscription against unlawful searches and seizures contained in NY Constitution, article I, § 12 conforms with that found in the 4th Amendment, and that this identity of language supports a policy of uniformity between State and Federal courts. Thus, in the past, we have chosen to fashion our rules to promote consistency in the interpretation we have given to the two clauses (see, e.g., People v Gonzalez, 62 NY2d 386, 389-390;

People v Ponder, 54 NY2d 160, 165; People v Roman, 53 NY2d 39, 41-42). The practical considerations upon which uniformity rests must yield, however, to a predictable, structured analysis of the quality of evidence necessary to support intrusive searches and seizures. Certainly, when the Supreme Court has not addressed a specific issue or provided guidance for such an analysis in its 4th Amendment rulings, we may, as we have in the past, choose to judge the lawfulness of the police conduct by the standards of our State Constitution (see, e.g., People v Gokey, 60 NY2d 309; People v Elwell, supra; People v Belton, 55 NY2d 49). This appeal presents one of those situations in which we believe that the aims of predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens are best promoted by applying State constitutional standards. In doing so we also provide "bright line” guidance to police personnel in performing their duties (see, People v Belton, 55 NY2d 49, 55, supra).

As a result of defendant’s illegal arrest, the prosecution obtained two statements from him which were introduced at trial; the first, a written statement made about an hour and a half after his arrest and the second, a video taped statement made four and a half hours after arrest. The burden rested upon the People to demonstrate that the statements were not acquired by exploitation of the arrest but by means sufficiently distinguishable from it to be purged of illegality (see generally, People v Martinez, 37 NY2d 662). The relevant considerations for determining that were whether some intervening event broke the causal connection between defendant’s arrest and the making of the statements, specifically "[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances * * * and, particularly, the purpose and flagrancy of the official misconduct” (Brown v Illinois, 422 US 590, 603-604; see also, Dunaway v New York, 442 US 200; Taylor v Alabama, 457 US 687).

This case is virtually identical to Dunaway and Taylor. In Dunaway, the defendant made a statement within an hour of his arrival at the police station and in Taylor, defendant made a statement six hours after his arrest. There were no intervening events in either case to break the causal connection between the arrests and the statements. In this case, the elapsed time was one and one-half and four and one-half hours between arrest and statement. The People do not contend that anything happened to attenuate the taint of the illegal arrest; rather, they base their entire case on the claim that the arrest was legal. We hold otherwise.

Accordingly, the order should be reversed, motion to suppress granted and the case remitted to Supreme Court, Bronx County, for further proceedings on the indictment.

Titone, J.

(concurring). I agree with the majority that there should be a reversal, but cannot join its opinion which establishes an exclusionary rule under our State Constitution, thus amending the Constitution in a fashion explicitly rejected by the delegates to the 1938 Constitutional Convention, and overruling three decisions sub silentio (People v Richter’s Jewelers, 291 NY 161 [Lehman, Ch. J.]; People v Defore, 242 NY 13 [Cardozo, Ch. J.], cert denied 270 US 657; People v Adams, 176 NY 351, affd 192 US 585). As shall be demonstrated, exclusion of evidence is not a command of NY Constitution, article I, § 12. Rather, it is a judicially declared rule of evidence which the Legislature is free to abrogate.

The question of whether evidence obtained in a lawless fashion should be inadmissible was first addressed by us in People v Adams (supra). In accordance with the then settled common-law rule, we held that "the manner in which the witnesses for the People became possessed of the documentary evidence is a matter of no importance” (People v Adams, supra, at p 359).

Following the Supreme Court’s adoption of an exclusionary rule in Federal prosecutions (Weeks v United States, 232 US 383), then Chief Judge Cardozo reexamined the subject in People v Defore (242 NY 13, supra), the seminal opinion in the Nation (see, 8 Wigmore, Evidence §§ 2183, 2184a [McNaughton rev 1961]). In his ever eloquent style, Cardozo explained why the common-law rule adopted in Adams remained sound, and that the "Legislature * * * has acquiesced in the ruling of this court that the prohibition of the search did not anathematize the evidence yielded through the search * * * We must hold it to be the law until those organs of government by which a change of public policy is normally effected, shall give notice to the courts that the change has come to pass” (People v Defore, supra, at pp 23, 25).

In subsequent years, none of the "organs of government” acted favorably on any proposal to depart from Defore (see, Sackler v Sackler, 15 NY2d 40, 42). More important, the Revised Record of the New York State Constitutional Convention of 1938, at which NY Constitution, article I, § 12 prohibiting unreasonable searches and seizures was adopted, contains unequivocal authority for the proposition that the exclusionary rule does not exist as a constitutional remedy.

Two major proposals were considered relating to unreasonable searches and seizures at the 1938 Constitutional Convention. The first, introduced by Senator Dunnigan, contained a prohibition against the use of evidence unlawfully obtained. The second proposal, introduced by the Bill of Rights Committee, contained no such prohibitory clause and reflected Civil Rights Law § 8. The merit of each proposal was debated at great length (1 Revised Record of New York State Constitutional Convention of 1938, at 406-594). The Dunnigan proposal, which would have established a constitutional bar against unreasonable searches and seizures, coupled with an exclusionary rule, was sharply criticized by a number of the delegates.

Chief Judge Cardozo’s view that adoption of an exclusionary rule was a task for the political branches of government was reiterated by Delegate H. E. Lewis, who aptly stated: "It is interesting to note that although in the Defore case Judge Cardozo said if there is to be any change making the use of evidence illegally obtained inadmissible, it should be by legis-. lative fiat, and even though that decision is twelve years old no Legislature — and during that time Senator Dunnigan has been there all those years, I think he said — no legislature has ever dared suggest the prohibition of the use of evidence where it involves incriminating acts.” (1 Revised Record, at 426.)

In addition, the relative permanence of the constitutional change contemplated by the Dunnigan proposal was not overlooked. As noted by Delegate Reigelman: "Mr. President, this is not a statute we are considering. A statute can be quickly repealed if we make a mistake. It is the Constitution, a basic and presumably permanent document, and one that cannot be readily changed. We are asked to write into that document the principle not merely that certain rights shall not be invaded, not only that the law-enforcement officer who invades those rights may be subject to punishment, but that the victim of the invasion, however vicious, however brutal, however dangerous to society he may be, and however atrocious his offense, might have the additional compensation and benefit of going free. To do otherwise, we are told, is to place the State in the indefensible position of taking advantage of its own wrong. I think that that is a sheer sophistry. It is based, in my opinion, upon an obvious confusion of thought.” (1 Revised Record, at 416.)

Subsequent to the lengthy debate, and after citation to Cardozo, Holmes and Wigmore, the proposal of the Bill of Rights Committee, which lacked the prohibitory clause, was advanced by the Committee of the Whole. By a vote of 90 (aye) to 69 (no), the delegates approved the proposal of the Bill of Rights Committee, and it was subsequently fully indorsed. Thus, the Convention rejected the Dunnigan proposal, which contained a provision mandating the exclusion of evidence, incorporated Civil Rights Law § 8 into the State Constitution, and retained the Defore rationale.

Nonetheless, in 1943 argument was made to this court that the mere inclusion of a bar against unreasonable searches and seizures in the State Constitution compelled the adoption of an exclusionary rule (People v Richter’s Jewelers, 291 NY 161, supra). Chief Judge Lehman explained that the Defore rule remained unchanged and that it was beyond the power of this court to adopt the rule by decisional law. His cogent analysis cannot be improved upon and states my position precisely and concisely (id., at pp 168-169):

"Since that decision [People v Defore, supra], no 'organ of government’ has given notice to the courts that the change has come to pass. True, the immunity from unreasonable search and seizure is no longer a creature of statute, for in 1938 the statute was incorporated in the Constitution. The language remains the same as the language of the Civil Rights Law when this court defined its scope in People v. Defore (supra) and is the same as the language of the Federal Constitution. Doubtless if the effect of that language had not been previously determined authoritatively by this court and if the Legislature had not for almost forty years acquiesced in that ruling, argument might be made that ordinarily the same language in the Constitution of the State of New York and in the Constitution of the United States should be given the same effect and that a sound public policy dictates the conclusion that the constitutional right of immunity of the individual from unreasonable search and seizure should be implemented by rejection of evidence obtained by public officers in violation of the rights of the individual. Even now the Legislature may, if it chooses, give heed to such arguments. This court cannot properly do so.

"The framers of the new section of the Constitution were fully informed that in this State the rule was firmly established by old decisions that rejection of evidence obtained by a public officer through unreasonable search and seizure is not the legal consequence of the officer’s trespass. Certainly it cannot be said that' the incorporation of the statutory prohibition into the Constitution without change of language was intended to change the scope and effect of the prohibition in a matter of grave importance about which much controversy had raged and is still raging. The intention to leave the rule unchanged is clear even without resort to the proceedings of the convention, and examination of those proceedings merely confirms that conclusion. There is room for discussion whether the convention acted wisely in rejecting proposals to change the New York rule formulated in People v. Defore. There is hardly room for discussion that the convention decided that no change in the rule should be made by it, leaving the Legislature free, as it had been before, to determine whether and in what circumstances evidence obtained by trespass should be rejected.”

It thus cannot be urged that an exclusionary rule was engrafted upon article I, § 12, by implication or otherwise.

In 1961, the Supreme Court, overruling prior precedent (Wolf v Colorado, 338 US 25), held in Mapp v Ohio (367 US 643), that evidence obtained in violation of the 4th Amendment, made applicable to the States through the due process clause, was inadmissible in a State criminal prosecution. We followed Mapp on constraint, observing that People v Richter’s Jewelers (supra), People v Defore (supra) and People v Adams (supra) otherwise remained authoritative (see, People v Loria, 10 NY2d 368, 370). In Sackler v Sackler (15 NY2d 40, 42, supra), Chief Judge Desmond remarked that the State rule had not otherwise been changed: "Nowhere, as all admit, is there any constitutional, statutory or decisional authority for rejecting otherwise valid evidence on [the] ground [of illegal entry]. Our State’s prohibitions against unreasonable search and seizures (N. Y. Const., art. I, § 12; Civil Rights Law, § 8) do not have that purpose or effect”. (See also, People v Horman, 22 NY2d 378, 381, cert denied 393 US 1057; Richardson, Evidence §§ 558, 560 [10th ed].) Further, as has the Supreme Court (United States v Calandra, 414 US 338, 347), we have rejected the notion that the exclusionary rule operates as some sort of personal constitutional right of the party aggrieved, embracing, instead, the Supreme Court’s concept that the exclusionary rule is a judicially created remedy designed to protect privacy values generally through its deterrent effect (People v Young, 55 NY2d 419, 425; People v Adams, 53 NY2d 1, 9, cert denied 454 US 854; People v McGrath, 46 NY2d 12, 21, cert denied 440 US 972).

Recently, the pendulum has swung: the Supreme Court has tended to read its prior decisions interpreting the 4th Amendment narrowly. This court has generally followed a policy of uniformity so that police officers and lower courts will have the benefit of a clear bright-line rule (e.g., People v Gonzalez, 62 NY2d 386, 389-390; People v Ponder, 54 NY2d 160). As we put it in People v Ponder (supra, at p 165), "section 12 of article I of the New York State Constitution conforms with the Fourth Amendment regarding the proscription against unreasonable searches and seizures, and this identity of language supports a policy of uniformity in both State and Federal courts.”

In a few cases, however, this court has declined to read the 4th Amendment and NY Constitution, article I, § 12 as coextensive and has suppressed evidence on State grounds (see, e.g., People v Gokey, 60 NY2d 309; People v Elwell, 50 NY2d 231). But not one of these cases purports to overrule People v Richter’s Jewelers (291 NY 161, supra), People v Defore (242 NY 13, supra) or People v Adams (176 NY 351, supra) and they are inconsistent with the analysis in People v Gonzalez (62 NY2d 386, 389-390, supra), a subsequent decision. It appears that the question of whether an exclusionary rule is supported by NY Constitution, article I, § 12 was not raised by the parties and in fact it has not been raised here. Whether the exclusionary sanction implicitly adopted is constitutionally based, or a product of a "judicially declared rule of evidence” (People v Cahan, 44 Cal 2d 434, 442, 282 P2d 905, 910 [Traynor, J.]), which the Legislature is free to abrogate, was not discussed.

From a purely stare decisis viewpoint, these are "odd cases” which should now be rejected (People v Hobson, 39 NY2d 479, 487). As former Chief Judge Breitel put it, "Stare decisis, if it is to be more than shibboleth, requires more subtle analysis. Indeed, the true doctrine by its own vitality should not, perversely, give to its violation strength and stability. That would be like the patricide receiving mercy because he is an orphan. The odd cases rode roughshod over stare decisis and now would be accorded stare decisis as their legitimate right, whether or not they express sound, good, or acceptable doctrine” (People v Hobson, supra, at p 487).

In England, where the entire doctrine of stare decisis originated with the birth of the common law, it is basic "that where material cases * * * which show that a court has decided a case wrongly were not brought to its attention the court is not bound by that decision in a subsequent case” (Nicholas v Penny [1950] 2 KB 466, 473; see also, Young v Bristol Aeroplane Co. [1944] KB 718). The same principle has been followed by this court (e.g., Rowland v Mayor, 83 NY 372, 377-378 ["the point now presented (was not a) matter of argument or in any way involved in the (subsequent) decisions”]; cf. People v Hobson, 39 NY2d 479, supra) and other American courts (e.g, Chapman v Dorsey, 230 Minn 279, 41 NW2d 438, 443; State v Mellenberger, 163 Ore 233, 95 P2d 709, 719; see, Comment, Stare Decisis in Courts of Last Resort, 37 Harv L Rev 409).

More important, the doctrine of stare decisis cannot be invoked to sustain a decision which is in conflict with the State Constitution. Our analysis in Board of Educ. v Allen (20 NY2d 109, 117, affd 392 US 236) is squarely on point: "We cannot perpetuate an erroneous interpretation of the State Constitution merely because it is contained in the reports of this court.”

This does not, however, end the matter. Although, as has been shown, our State Constitution does not support an exclusionary rule, decisions like People v Gokey (supra) might well be explained on the ground that the challenged search and seizure was substantively unreasonable, but procedurally exclusion is required as a judge-made common-law rule of evidence (see, Coolidge v New Hampshire, 403 US 443, 493, 498 [Black, J., concurring and dissenting]; People v Cahan, 44 Cal 2d 434, 442, 282 P2d 905, 910, supra), and if the Legislature were to negate that judge-made rule, as it is unquestionably empowered to do, and declare that henceforth courts in this State may not exclude evidence seized in violation of the State Constitution unless exclusion be required by the Federal Constitution, the search would still be illegal and might support a tort action, but we would be compelled to honor the legislative judgment (see, In re Lance W., 37 Cal 3d 873, 888, 694 P2d 744, 752; State v Lavazzoli, 434 So 2d 321, 323 [Fla]). This approach is consistent with that recommended in a leading evidentiary text: "An extensive literature has built up concerning rights under state law that may be enforceable by means of an exclusionary sanction * * * Most of this discussion, however, fails to distinguish between developments of rights under state law, on the one hand, and the development of an exclusionary sanction to remedy violation of those rights, on the other” (McCormick, Evidence § 166, at 449, n 1 [3d ed]).

To be sure, the approach also has its drawbacks. It certainly seems inconsistent with the public policy expressed in People v Richter’s Jewelers (supra) and People v Defore (supra) of deferring to the legislative branch in the first instance. But given what some might perceive to be a change in public policy, arguable legislative acquiescence, and the ability of the Legislature to overturn such a judge-made rule, it seems like the most preferable course (see, Stewart, The Road to Mapp v Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum L Rev 1365, 1396-1399). After all, the common law of evidence is constantly being refashioned to meet the demands of modern societal expectations (cf. Fleury v Edwards, 14 NY2d 334, 341). Certainly, that approach is better than creating a constitutional precedent, which will be a nonprecedent, based as it is on an erroneous interpretation of the State Constitution (see, Board of Educ. v Allen, 20 NY2d 109, 117, supra).

On the merits, I note that the Supreme Court has not yet passed on whether Illinois v Gates (462 US 213) and United States v Leon (468 US 897) will apply to warrantless seizures, though the issue is apparently presented by California v Ciraolo (No. 84-1513, — US —, 105 S Ct 2672, granting cert to 161 Cal App 3d 1081, 208 Cal Rptr 93) (see generally, Kasmisar, Gates, "Probable Cause, ” "Good Faith, ” and Beyond, 69 Iowa L Rev 551, 581-584), and it has been the custom of this court to decide unsettled questions of constitutional law upon Federal grounds, and to accord broader rights to an accused only after the Supreme Court has declined to do so. I would continue to follow that policy.

Our decisions nevertheless do provide ample support for the result reached today. We have emphasized that an assessment of probable cause turns on what was reasonably and objectively in the mind of law enforcement authorities (People v Jennings, 54 NY2d 518, 523; People v Adams, 53 NY2d 1, 9, cert denied 454 US 854, supra). The "good faith” exception to the exclusionary rule is not applicable simply because the officer has a " 'white heart and empty head’ ” (People v Jennings, supra, at p 523), and in this case application of the exclusionary rule would deter "gut hunch” warrantless arrests (cf. People v Adams, supra), though, at least arguably, a different result should obtain if a warrant be obtained in accordance with our preference for warrants (see, e.g., People v Hanlon, 36 NY2d 549).

Here, the only evidence leading to defendant’s arrest was the statement of an individual with no history of giving reliable information to the police and who exculpated himself from a homicide charge by implicating the defendant in the crime. There being no exigency, the police should have applied for a warrant, placing the informant under oath (see, People v Cantre, 65 NY2d 790; People v Hicks, 38 NY2d 90) or, at least, producing him before a magistrate (People v Brown, 40 NY2d 183). Because the officers did not do so, suppression is appropriate under the judicially formulated rule of exclusion.

For these reasons, I concur in the reversal, but not the majority opinion.

Chief Judge Wachtler and Judges Meyer, Kaye and Alexander concur with Judge Simons; Judge Titone concurs in result in a separate opinion in which Judge Jasen concurs.

Order reversed, etc.

      . The statement in full was as follows:
      "On Wednesday March 3, 1982, about 2 p.m. I was in my girls’ apartment 1492 Watson 6J. Also in the apartment was Smokey (Melvin Johnson) and Joseph Di Prospro. He (Joseph) asked me if I wanted to go in with him and Smokey in a robbery. At first 1 agreed but at 4:30 to 5 p.m. they left the apartment and locked me in the apartment. Myself and Gina stayed in the apartment.
      "We stayed there and between 6 p.m. to 6:30 both Joseph and Smokey came in. At first Joseph came in smiling he went into the kitchen he had a black 38 cal. larger than a police service revolver. The gun had a bridge it had a brown plastic handle Beige colored tape on it — it was made in Germany on the side it had the initials 'BU’ scratched into it. About 2 months ago we traded a dude a rifle for the gun. He emptied the shells on the floor all the six shells were spent.
      "He said numerous times that he had killed this nigger. I asked him what happened, Smokey then said, they went into a store and Joey had the gun he cocked it back and said this is a stick-up. The man had his hands in his pants pockets. Joey told him to take his hands out of his pockets. Then the man took his hands out of his pockets and grabbed the gun. The man went back and came back at him and Joey fired again and again four times in a row. Joey saw him reaching for something and Joey told Smokey to run. Smokey ran out and the man chased them out of the store. Joey fired once more and then the man started shooting and Joey fired once more. Smokey said he ran to Boynton to Watson and then to Whalen and Watson. Joey started saying that ain’t the first person I shot. It was bothering him he repeated the story like Smokey said. Joey said he ran to Ward to Watson to Whalen. He came straight up to the house. Joey said to me late that night that the cops picked him up but let him go because they didn’t have anything on him. He told me this when he came to my house he said he threw the gun down the sewer.

        "They also hit the bakery on Westchester. A grocery store on Evergreen and Westchester, the Spanish Restaurant. The bakery on 1 and Croes.

      "Smokey threw the empty shells out the kitchen window.” (Emphasis added.)

      . The statute uses the words "reasonable cause” (see, CPL 140.10). There is at least a technical distinction in the necessary quantum of underlying evidence between an arrest made with reasonable cause (which is usually equated with probable cause) to believe that defendant has committed a crime and a search based upon probable cause to believe that contraband will be found in a certain place (see, People v Lombardi, 18 AD2d 177, 180, affd 13 NY2d 1014; and see generally, 1 LaFave, Search and Seizure § 3.1 et seq. [1978]). For purposes of this appeal, however, the inquiry is the same because both deal with probable cause.

      . Insofar as the concurring judges contend that exclusion is a common-law rule rather than a constitutional doctrine under New York law, we would but add that, notwithstanding the history they recite, the court has excluded evidence on State constitutional grounds in the past (see, e.g., People v Class, 63 NY2d 491; People v Gokey, 60 NY2d 309; People v Elwell, 50 NY2d 231). Indeed, one of the concurring judges, contrary to the position he now advances, has previously voted to suppress evidence admissible under the 4th Amendment on State constitutional grounds (see, People v Gokey, supra).

      . The Dunnigan proposal provided, in part, "Evidence obtained in violation of this section shall not be received in any hearing, trial or proceeding.” (1 Revised Record, at 406-407.)

      . Our right to counsel decisions are, of course, not on point. Those decisions rest upon a different section of the State Constitution (NY Const, art I, § 6), with a different historical backdrop "independent of its Federal counterpart” (People v Settles, 46 NY2d 154, 161).

      . I note with interest that the gap in jurisprudential analysis is not limited to New York (compare e.g., State v Alston, 88 NJ 211, 440 A2d 1311; and State v Johnson, 68 NJ 349, 346 A2d 66, with State v Smith, 37 NJ 481, 181 A2d 761; and Eleuteri v Richman, 26 NJ 506, 511, 141 A2d 46, 49).

      . Parenthetically, it is not at all clear that our decision is insulated from United States Supreme Court review. The message emanating from Michigan v Long (463 US 1032) and Chief Justice Burger’s concurring opinion in Florida v Casal (462 US 637) is that the rights of the People may not be defeated on independent State grounds where the voters of the State have explicitly precluded their courts from adopting an exclusionary rule broader than that required by the Federal Constitution (cf. Parrot v City of Tallahasee, 381 US 129; N A. A. C. P. v Alabama, 357 US 449; Staub v City of Baxley, 355 US 313; Hill, The Inadequate State Ground, 65 Colum L Rev 1251), as demonstrated by the grant of certiorari in New York v Class (— US —, 105 S Ct 1863 [63 NY2d 491]), a case the majority states was decided purely on State constitutional grounds. This case is of moment because the court finds a Dunaway v New York (442 US 200) violation and, ironically, the Supreme Court’s reversal made that rule binding on us. We had declined to adopt the Dunaway rule as a matter of Federal or State law (People v Dunaway, 35 NY2d 741, vacated 422 US 1053, on remand 38 NY2d 812, 61 AD2d 299, lv dismissed 44 NY2d 855, rearg denied 44 NY2d 930, revd 442 US 200).


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Richard James Bigelow, Respondent.
    Argued September 6, 1985;
    decided November 26, 1985

      POINTS OF COUNSEL

      Michael F. Griffith, District Attorney (John L. Callaghan of counsel), for appellant.
    I. The search of defendant was lawful under the totality of the circumstances test, which should be adopted in New York for the determination of probable cause. (People v Belton, 55 NY2d 49; Mapp v Ohio, 367 US 643; People v Loria, 10 NY2d 368; People v Fino, 14 NY2d 160; People v Dentine, 21 NY2d 700; Silverthorne Lbr. Co. v United States, 251 US 385; Nardone v United States, 308 US 338; Carroll v United States, 267 US 132; People v Loewel, 41 NY2d 609; People v Hendricks, 25 NY2d 129.) II. The exclusionary rule was not violated by the authorities’ reasonable good-faith reliance upon the search warrant issued by a neutral and detached magistrate. (Illinois v Gates, 462 US 213; People v Adams, 53 NY2d 1, 454 US 854; People v McGrath, 46 NY2d 12.) III. The hearing court properly determined that probable cause existed for the arrest and the issuance of the search warrant. (People v McRay, 51 NY2d 594; People v Elwell, 50 NY2d 231; People v West, 44 NY2d 656; People v Wirchansky, 41 NY2d 130; Michigan v Summers, 452 US 692; People v Nowell, 90 AD2d 735; People v Soler, 92 AD2d 280; People v Bowdoin, 89 AD2d 986; People v Gokey, 60 NY2d 309.)

      Alan S. Hoffman for respondent.
    New York State’s Constitution (art I, § 12), as construed by the Court of Appeals, should remain the law in New York State and the decision of the court below should be affirmed. (People v Landy, 59 NY2d 369;
      People v Elwell, 50 NY2d 231; Draper v United States, 358 US 307; People v Gokey, 60 NY2d 309; People v Smith, 59 NY2d 454; Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643; People v Richter’s Jewelers, 291 NY 161; People v Defore, 242 NY 13; Aguilar v Texas, 378 US 108.)

      Jerrold L. Neugarten, Anthony J. Girese and Norman Barclay for New York State District Attorneys Association, amicus curiae.

    I. This court should adopt the Illinois v Gates test. (People v Landy, 59 NY2d 369; Illinois v Gates, 462 US 213; People v Elwell, 50 NY2d 231; Massachusetts v Upton, 466 US 727; People v Rodriguez, 52 NY2d 483; People v Fernandez, 58 NY2d 791; People v Gonzalez, 39 NY2d 122; People v De Bour, 40 NY2d 210; United States v Kolodziej, 712 F2d 975.) II. This court should adopt the good-faith exception to the exclusionary rule announced in United States v Leon. (People v Young, 55 NY2d 419; People v Adams, 53 NY2d 241; People v McGrath, 46 NY2d 12; People v Kaiser, 21 NY2d 86; United States v Calandra, 414 US 338; Street v Cherba, 662 F2d 1037; Reimer v Short, 578 F2d 621; Galella v Onassis, 487 F2d 986; United States v Peltier, 422 US 531; Aguilar v Texas, 378 US 108.)

      Mark J. Mahoney, Ephraim Marglin, Jonathan E. Gradess and Jean, Corigliano for The National Association of Criminal Defense Lawyers and another, amici curiae.

    I. To overrule People v Hendricks and People v Jennings would be inevitably to lower the threshold for approval of search warrants and conducting of searches relying on informants eroding the protections of NY Constitution, article I, § 12. (People v Cerrato, 24 NY2d 1; People v Hendricks, 25 NY2d 129; People v Jennings, 54 NY2d 518.) II. Clear guidelines for Judges and police should not be abrogated. (People v Fitzpatrick, 32 NY2d 499; People v Elwell, 50 NY2d 231; People v Ponder, 54 NY2d 160; Draper v United States, 358 US 307; Manson v Brathwaite, 432 US 98; People v Adams, 53 NY2d 241; People v Knapp, 52 NY2d 689; People v Payton, 45 NY2d 300.) III. Abandonment of de nova review of search warrants would cause crystalization in the law of search and seizure in New York and retrogression in its application. (Shadwick v City of Tampa, 407 US 345.) IV. "Substantial basis” review or "a reasonable mistake, good faith reliance” exception would create complexities of proof and procedure which do not now exist. V. The exclusion of evidence obtained pursuant to an illegal warrant protects a variety of values. (Silverthorne Lbr.

      Co. v United States, 251 US 385; People v Young, 55 NY2d 419; People v Payton, 51 NY2d 169; Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643.) VI. The cost of adopting the. good-faith exception would far outweigh the "costs” of compliance with the 4th Amendment. (Brinegar v United States, 338 US 160; Draper v United States, 358 US 307; Davis v United States, 328 US 582; United States v Kirschenblatt, 16 F2d 202.)
   OPINION OF THE COURT

Simons, J.

On December 26, 1981 while driving in the Village of Arcade, New York, defendant was arrested without a warrant and his automobile seized. He was subsequently charged and convicted of criminal possession of a controlled substance in the third degree and criminal possession of hypodermic needles. The contraband upon which his conviction rests was not seized by a search incident to the arrest but was discovered by subsequent searches of his person and automobile authorized by a search warrant issued 30 minutes after the arrest.

Before pleading guilty defendant moved to suppress the evidence, but the suppression court found probable cause for the arrest and the search based on evidence known to the police through their investigation and on hearsay information supplied them by an informant. The Appellate Division reversed the judgment, granted the motion to suppress and remitted the matter to County Court for further proceedings on the indictment (see, 105 AD2d 1110). It found probable cause lacking for both the arrest and the search because the police failed to demonstrate the informant’s basis of knowledge under the Aguilar-Spinelli rules applicable to the evaluation of hearsay (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410). The court noted, however, that it would find the warrant application sufficient under the "totality of the circumstances” test enunciated by the United States Supreme Court in Illinois v Gates (462 US 213), if this court adopted that test.

As we have noted before, probable cause determinations that involve questions of fact, or mixed questions of law and fact, are generally beyond the jurisdiction of this court (see, People v McRay, 51 NY2d 594, 601; People v Wharton, 46 NY2d 924, 925, cert denied 444 US 880). When the issue is the minimum showing necessary to establish probable cause, however, a question of law is presented for our review (see, People v Johnson, 66 NY2d 398 [decided herewith]; People v McRay, supra). This appeal raises such a question.

The police first became suspicious of defendant during an investigation of drug trafficking in the western New York area when they acquired information which led them to suspect that defendant was involved in narcotics transactions. Specifically, the police learned that defendant had telegraphed almost $25,000 to a Florida resident over a four-month period and that the address to which the money was sent was near an area of Florida known for drug activity; that he had rented a post-office box in Caneadea, New York, where he had received two packages from Florida, one in August 1981 and the other in September of 1981; that defendant had rented a post-office box in Arcade, New York, and that he had received mail there in December 1981. Finally, the police knew that defendant frequented the apartment of Kenneth Sutz, a known drug user and sometime drug dealer.

On December 24, 1981 the police observed defendant go to the Arcade Post Office, apparently to pick up a package from Florida addressed to him. He was unable to do so because the post office was closed. The police returned to the post office on December 26, 1981 and saw defendant pick up a package and then drive to the Sutz apartment. While some officers maintained the surveillance of the Sutz apartment, two others returned to the Arcade Police Department and contacted an informant who had previously indicated he had some knowledge about defendant and Sutz. The informant came to the station and was interviewed by a police officer for approximately 15 minutes. He told the officers that the defendant was a "drugger” who had arrived in the Arcade area from Florida during the summer of 1981, that he had no job but plenty of money, that he was dealing in cocaine shipped from Florida and that he had a close relative in Florida. The informant told the police that the defendant had conducted drug transactions as recently as "Christmas week of 1981.” (The suppression court found, however, that the informant had not seen defendant sell drugs or in possession of them at any time.)

After the interview with the informant had concluded, one of the officers telephoned a local County Judge and requested him to come to the police department to issue a search warrant based upon an application being prepared. Before the application could be completed or the warrant signed, however, the officer received word that the defendant had left the Sutz apartment, put a suitcase in his car, and driven away. The officers left the station, joined the surveillance team and helped intercept defendant’s automobile. Defendant was asked to get out, frisked, read his Miranda rights and then taken to the police station where he was held and his automobile impounded until the search warrant was executed. Defendant was seized within the meaning of the 4th Amendment proscriptions at that time and unless the police had probable cause to hold him, his arrest was unlawful (see, Dunaway v New York, 442 US 200, 207).

The County Judge arrived at the station after defendant had been taken into custody. After reading the warrant application and taking in camera testimony from the officer (the Judge did not interview the informant), he approved a search warrant authorizing police to search defendant’s person and vehicle for cocaine. When the police executed the warrant, they discovered a quantity of amphetamines, hypodermic needles and over $4,500 in cash, but no cocaine. Defendant was formally arrested and, after his motion to suppress the evidence was denied, he pleaded guilty.

The People contend that the arrest was lawful, but that even if it was not, the conviction should be upheld because the search warrant was supported by probable cause under the Aguilar-Spinelli test and the contraband seized pursuant to it supplied the necessary evidence of guilt. Alternatively, they claim the evidence supporting the warrant established probable cause when judged by the "totality of the circumstances” test recently adopted by the Supreme Court in Illinois v Gates (462 US 213, supra). Finally, they claim that even if probable cause was not demonstrated, the police acted in objective good faith in executing the warrant and, therefore, under United States v Leon (468 US 897, 104 S Ct 3405, 82 L ed 2d 677, reh denied 82 L ed 2d 942), the exclusionary rule does not require suppression of the evidence. The People did not urge below that exigent circumstances justified the police action and consequently the courts did not rule on that issue.

There should be an affirmance. The evidence in the record does not support a finding of probable cause for the arrest or the search when measured by either the AguilarSpinelli rule or the Gates rule and exclusion cannot be avoided because, as a matter of State constitutional law, we decline to apply the Leon good-faith standard. Our analysis traces traditional lines of authority, compares the rule in Illinois v Gates and its effect on these facts and then considers the People’s contention that the "good faith” exception stated in United States v Leon (supra) warrants admission of the evidence seized pursuant to the warrant. Our discussion of the Gates holding addresses the People’s contentions. It is not intended as approval or adoption of that decision as a matter of State constitutional law.

Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place (People v McRay, 51 NY2d 594, 602, supra; see also, Brinegar v United States, 338 US 160, 175, reh denied 338 US 839). The legal conclusion is to be made after considering all of the facts and circumstances together. Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found (see generally, Illinois v Gates, 462 US 213, 231-235, supra; United States v Davis, 458 F2d 819, 821; 1 LaFave, Search and Seizure § 3.2 et seq.).

Probable cause may be supplied, in whole or part, through hearsay information (see, People v Landy, 59 NY2d 369, 375; People v Rodriguez, 52 NY2d 483, 488-489; People v Hanlon, 36 NY2d 549, 556). New York’s present law applies the Aguilar-Spinelli rule for evaluating secondhand information and holds that if probable cause is based on hearsay statements, the police must establish that the informant had some basis for the knowledge he transmitted to them and that he was reliable (People v Landy, supra, p 375; People v Rodriguez, supra, pp 488-489, citing Aguilar v Texas, 378 US 108, 114, supra; People v Hanlon, supra, p 558; cf. Illinois v Gates, 462 US 213, supra).

There are two ways to verify whether an informant knows what he is talking about (People v Elwell, 50 NY2d 231; cf. People v Hendricks, 25 NY2d 129, 134). The most reliable is through his own description of underlying circumstances personally observed (see, People v Johnson, 66 NY2d 398 [decided herewith], supra; People v Rodriguez, supra; People v Wheatman, 29 NY2d 337, cert denied sub nom. Marcus v New York, 409 US 1027, reh denied 409 US 1119). Failing this, however, an informant’s basis of knowledge may be verified by police investigation that corroborates the defendant’s actions or that develops information consistent with detailed predictions by the informant (People v Rodriguez, supra). Thus, we have credited hearsay information to uphold a warrantless search or arrest where the police observe conduct suggestive of, or indirectly involving, criminal activity about which an informant provided minutely detailed information to the police (compare, People v Rodriguez, supra, p 493; and People v Elwell, supra, p 241).

The People failed to satisfy the "basis of knowledge” requirement in this case. The informant’s statement contained no allegations indicating that the information was based upon personal observation (the suppression court found that it was not) and the informant’s statements did not describe defendant’s activities with sufficient particularity to warrant an inference of personal knowledge. The one specific was that defendant dealt in cocaine but no cocaine was recovered in the search and, from all that appears, the hearsay was based on nothing more than rumor and might well have been fabricated. At best, the behavior of the defendant, as observed by police, and the facts they discovered through investigation were capable of innocent interpretation and were never more than equivocal (see, People v McRay, 51 NY2d 594, 602, supra; People v West, 44 NY2d 656, 658). The informant’s evidence added nothing to this but evidence of reputation. The police relied upon precisely the same information in arresting defendant and in obtaining the search warrant and it did not supply probable cause for either action under the AguilarSpinelli rules.

The People urge that probable cause may be found under the "totality of the circumstances” rule adopted by the Supreme Court in Illinois v Gates (462 US 213, supra). We have not previously had occasion to consider application of the Gates test to warrant situations but we have held, as a matter of State constitutional law, that the rule does not apply to warrantless arrests (see, People v Johnson, 66 NY2d 398 [decided herewith], supra). There is no reason for us to adopt it in testing this search warrant because the People’s evidence would not meet minimum standards of probable cause even if Gates was applied.

In Gates, the Supreme Court abandoned the two-pronged veracity and basis of knowledge test of Aguilar-Spinelli and adopted in its place a totality of the circumstances analysis giving greater deference to the magistrate’s determination: "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity’ and 'basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for * * * concluding]’ that probable cause existed” (Illinois v Gates, supra, pp 238-239, quoting Jones v United States, 362 US 257, 271).

Under the Gates rule, reliability and basis of knowledge are not two separate, compartmentalized inquiries both of which must be satisfied before a determination of probable cause may be made but, rather, constitute only relevant considerations. Thus, a deficiency in one may be compensated by a strong showing in the other, or by other information available to the police (Illinois v Gates, 462 US 213, 232-235, supra; see also, Massachusetts v Upton, 466 US 727). A conclusory statement from an officer or an informant cannot serve as the basis for a finding of probable cause, but no per se rule precludes the issuance of a warrant if the application contains more.

In Gates, the police received an anonymous letter that provided detailed information concerning the activities, movements and plans of the Gates and of their modus operandi for acquiring drugs in Florida and transporting them to Illinois. The letter contained specific dates concerning when defendants would go to Florida to pick up drugs, where they would go and when they would return. Upon receiving the letter, the police conducted an extensive investigation in Illinois and Florida that corroborated the hearsay information in several important details and that established that the informant’s predictions of defendant’s activities were generally accurate. Although the hearsay information was explicit, the letter did not reveal any apparent basis for the informant’s knowledge. The Supreme Court balanced that omission against the reliability of the information as corroborated by the police investigation confirming the hearsay predictions and found that the evidence strongly suggested defendants were involved in a criminal scheme. Accordingly, the court sustained the magistrate’s finding of probable cause, holding that when the information possessed by the police was viewed as a whole the deficiency in establishing the informant’s basis of knowledge was compensated for by the remaining evidence.

In the present case, police investigation developed evidence that defendant had transmitted money to Florida, that he maintained two post-office boxes in the area and that he had received two packages from Florida over a period of months, plus a third package before the Christmas holidays. All these activities were conducted by defendant in his own name without any effort at concealment and, as County Court conceded, were susceptible of innocent explanation. Although the hearsay information corroborated the activities observed by the police, it added nothing to them other than the informant’s conclusory assertion that defendant was a "drugger” and it does not appear from the record that that conclusion was based on anything but rumor or fabrication. Moreover, this failure to demonstrate the informant’s basis of knowledge was not compensated for by his reliability, for the only relevant facts in the record stated that he had given information to the police leading to an arrest three years earlier but that the charges had resulted in an acquittal. Thus, neither facts known independently to the police nor the informant’s reliability balanced off or compensated for the absence of the informant’s basis of knowledge and when viewed in its entirety, the information known to the police did not provide a substantial basis to conclude that probable cause existed under the standards of Illinois v Gates (462 US 213, supra).

Finally, the People urge that even if the warrant was issued without probable cause, the evidence should not be suppressed because the police were acting in good faith (see, United States v Leon, 468 US 897, supra; Massachusetts v Shepard, 468 US 981; cf. People v Adams, 53 NY2d 1, 9-10, cert denied 454 US 854). They note that the search of defendant and his automobile was conducted pursuant to a warrant authorized by the County Judge and that the police conducted the search believing that the warrant was valid.

The Supreme Court based the Leon decision on the premise that the exclusionary rule is intended to deter police misconduct. Because the court found in that case that no deterrent purpose would be served by excluding the evidence the police had seized in objective good-faith reliance on a warrant mistakenly issued by the magistrate, the court refused to suppress it. Whether or not the police acted in good faith here, however, the Leon rule does not help the People’s position. That is so because if the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future (see, 3 LaFave, op. cit. § 11.4, at 645, 1985 Pocket Part, at 319-320). We therefore decline, on State constitutional grounds, to apply the good-faith exception the Supreme Court stated in United States v Leon (supra).

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

Chief Judge Wachtler and Judges Meyer, Kaye and Alexander concur with Judge Simons; Judges Jasen and Titone concur in result for reasons stated in Judge Titone’s concurring opinion in People v Johnson (66 NY2d 398, 408 [decided herewith]).

Order affirmed.

       Courts generally exercise a higher level of scrutiny when reviewing probable cause determinations made by police acting without a warrant than when reviewing determinations made by a detached and neutral magistrate. Indeed, it is frequently said that a lower quantum of evidence of probable cause is sufficient to sustain a search or arrest authorized by a warrant (see, People v Elwell, 50 NY2d 231, 241-242; People v Hanlon, 36 NY2d 549, 558-559; Illinois v Gates, 462 US 213; Massachusetts v Upton, 466 US 727; see, United States v Ventresca, 380 US 102, 109-112; Johnson v United States, 333 US 10, 13-14; see generally, 1 LaFave, Search and Seizure § 3.1 [c], at 171-173). Arguably, then, the arrest in this case might be found unlawful and, because of the courts’ preference for warrants, the conduct of the police when acting upon the search warrant supported by precisely the same quantum of evidence of probable cause could be sustained. We find a failure of evidence supporting probable cause, however, even under the more relaxed standard of proof sometimes suggested for warrant cases.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Derwyn Ford, Appellant. The People of the State of New York, Respondent, v Philip Ladson, Appellant.
    Argued October 10, 1985;
    decided November 26, 1985

      POINTS OF COUNSEL

      Karen Goldstein and William E. Hellerstein for appellant in the first above-entitled action.
    I. Appellant was deprived of his due process right to a fair trial by the court’s submission, as a lesser included offense, over defense objection, of manslaughter in the second degree and criminal possession of a weapon in the third degree, where there was no reasonable view of the evidence to support those charges. (People v Shuman, 37 NY2d 302; People v Musenden, 308 NY 558; People v Scarborough, 49 NY2d 364; People v Discala, 45 NY2d 38; People v Lee, 35 NY2d 826; People v Green, 56 NY2d 427; People v Licitra, 47 NY2d 554; People v Ford, 62 NY2d 275.) II. The trial court’s refusal to adequately explain the standard of proof in a wholly circumstantial evidence case deprived appellant of due process of law and a fair trial. (People v Sanchez, 61 NY2d 1022; People v Way, 59 NY2d 361; People v Kennedy, 47 NY2d 196; People v Cleague, 22 NY2d 363; People v Gonzalez, 54 NY2d 729; People v Morris, 36 NY2d 877; People v Benzinger, 36 NY2d 29; People v May, 290 NY 369; People v Razezicz, 206 NY 249; People v Barnes, 50 NY2d 375.) III. The wholly circumstantial evidence presented was insufficient when the People’s case relied upon a single witness whose testimony merely placed appellant at the scene of the shooting, struggling with the deceased over appellant’s radio. (People v Benzinger, 36 NY2d 29; People v Williams, 41 AD2d 711, 35 NY2d 783; People v Wachowicz, 22 NY2d 369; Jackson v Virginia, 443 US 307; People v Montanez, 41 NY2d 53; People v Suffern, 267 NY 115; People v Castillo, 47 NY2d 270; People v Cleague, 22 NY2d 363; People v Kennedy, 47 NY2d 196; People v Ligouri, 284 NY 309.)

      Elizabeth Holtzman, District Attorney (Debra W. Petrover and Barbara D. Underwood of counsel), for respondent in the first above-entitled action.
    I. The court properly exercised its discretion to submit the lesser included offenses to the jury, because there was a reasonable view of the evidence to support the findings that defendant committed the lesser offenses but not the greater. In any event, defendant has not preserved this claim for review by this court. (People v Butler, 57 NY2d 664; People v Green, 56 NY2d 427; People v West, 56 NY2d 662; People v Vidal, 26 NY2d 249; People v Boyd, 58 NY2d 1016; People v Dawson, 50 NY2d 311; People v Levan, 62 NY2d 139; People v Ford, 62 NY2d 275; People v Battle, 22 NY2d 323; People v Licitra, 47 NY2d 554.) II. The court’s charge adequately guided the jury. (People v Gonzalez, 54 NY2d 729; People v Barnes, 50 NY2d 375; People v Morris, 36 NY2d 877; People v Canty, 60 NY2d 830; People v Way, 59 NY2d 361; People v Contes, 60 NY2d 620; People v Holzer, 52 NY2d 947; People v Sanchez, 61 NY2d 1022; People v Coonan, 48 NY2d 772; People v Koziuk, 57 NY2d 784.) III. Defendant’s guilt was proved beyond a reasonable doubt. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Lewis, 64 NY2d 1111; People v Way, 59 NY2d 361; People v Barnes, 50 NY2d 375; People v Kennedy, 47 NY2d 196; People v Malizia, 62 NY2d 755; People v Benzinger, 36 NY2d 29; People v Wachowicz, 22 NY2d 369; People v Atlas, 183 App Div 595, 230 NY 629.)

      William J. Comiskey for appellant in the second above-entitled action.
    I. As a matter of law the circumstantial evidence introduced against appellant, which was consistent with appellant’s innocence, was insufficient to prove his guilt beyond a reasonable doubt. (People v Benzinger, 36 NY2d 29; People v Way, 59 NY2d 361; People v Cleague, 22 NY2d 363; People v Piazza, 48 NY2d 151.) II. The court’s rulings permitting the introduction, over objection, of hearsay testimony implicating appellant in the shooting, and refusing to admit exculpatory evidence establishing that another had the motive and disposition to commit this crime, were erroneous and denied appellant his right to a fair trial. (People v Caviness, 38 NY2d 227; People v Egan, 78 AD2d 34; People v Tufano, 69 AD2d 826; People v Clegg, 18 AD2d 694; People v Languetot, 104 Misc 2d 179; People v Mobley, 56 NY2d 584; People v Trowbridge, 305 NY 471; People v Fitzpatrick, 40 NY2d 44; Brady v Maryland, 373 US 83.) III. The trial court’s refusal to instruct the jury on the proper standard of proof to be applied in a circumstantial evidence case deprived appellant of due process of law and a fair trial. (People v Sanchez, 61 NY2d 1022; People v Gonzalez, 54 NY2d 729; People v Morris, 36 NY2d 877; People v Barnes, 50 NY2d 375; People v May, 290 NY 369; People v Razezicz, 206 NY 249; In re Winship, 397 US 358.) IV. The court’s failure to instruct the jury that it could consider the absence of a motive to shoot Buchanan in evaluating the evidence was reversible error. (People v Luciano, 46 NY2d 767; People v Seppi, 221 NY 62; People v Cotto, 28 AD2d 1116; People v Rodriguez, 32 AD2d 545; People v Miller, 247 App Div 489; People v Crimmins, 36 NY2d 230.) V. Appellant was denied a fair trial by the submission over objection, of the lesser included offense of manslaughter in the first degree, where there was no reasonable view of the evidence to support that charge. (People v Scarborough, 49 NY2d 364; People v Butler, 57 NY2d 664; People v Discala, 45 NY2d 38; People v Dugarm, 49 AD2d 674.)

      Elizabeth Holtzman, District Attorney (Debra W. Petrover and Barbara D. Underwood of counsel), for respondent in the second above-entitled action.
    I. Defendant’s guilt was proven beyond a reasonable doubt. (People v Malizia, 62 NY2d 755; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Lewis, 64 NY2d 1111; People v Way, 59 NY2d 361; People v Barnes, 50 NY2d 375; People v Kennedy, 47 NY2d 196; People v Benzinger, 36 NY2d 29; People v Gruttola, 43 NY2d 116.) II. The court’s evidentiary rulings were correct. (People v Santiago, 52 NY2d 865; People v Berg, 59 NY2d 294; People v Davis, 58 NY2d 1102; People v Boyd, 58 NY2d 1017; People v Dawson, 50 NY2d 311; People v Medina, 53 NY2d 951; People v Johnson, 57 NY2d 969; People v Mobley, 56 NY2d 584; People v Crimmins, 36 NY2d 230; People v Santarelli, 49 NY2d 241.) III. Defendant has not preserved for review before this court his claim of error in the court’s circumstantial evidence charge. Furthermore, the charge was adequate to guide the jury. (People v Gonzalez, 54 NY2d 729; People v

      Barnes, 50 NY2d 375; People v Morris, 36 NY2d 877; People v Canty, 60 NY2d 830; People v Contes, 60 NY2d 620; People v Thomas, 50 NY2d 466; People v Cona, 49 NY2d 26; People v Teeter, 47 NY2d 1002; People v Foster, 100 AD2d 200, 64 NY2d 1144; People v Malizia, 62 NY2d 755.) IV. The court’s refusal to charge on the question of motive was not an abuse of discretion. (People v Rios, 60 NY2d 764; Pointer v United States, 151 US 396; People v Seppi, 221 NY 62; People v Luciano, 46 NY2d 767; People v Sangamino, 258 NY 85; People v Crimmins, 36 NY2d 230.) V. The court properly exercised its discretion to submit the lesser included offenses to the jury because there was a reasonable view of the evidence to support the finding that defendant committed the lesser offenses but not the greater. (People v Butler, 57 NY2d 664; People v Green, 56 NY2d 427; People v Battle, 22 NY2d 323; People v Licitra, 47 NY2d 554; People v Green, 56 NY2d 427; People v Henderson, 41 NY2d 233; People v Shuman, 37 NY2d 302; People v Discala, 45 NY2d 38; People v Ortiz, 54 NY2d 288; People v Pollack, 50 NY2d 547.)
   OPINION OF THE COURT

Meyer, J.

A jury charge which, despite defendant’s request, fails to include as part of its instructions concerning circumstantial evidence that the circumstantial facts proved must exclude every hypothesis but guilt constitutes reversible error. In People v Ford, there should, therefore, be a reversal and a new trial ordered. In People v Ladson, however, there should be an affirmance, the errors argued having either not been preserved or being within the Trial Judge’s discretion and unreviewable.

I

Perry Dillard testified that in the early morning hours of July 31, 1980, from his second floor apartment, he overheard several male voices coming from outside and below a window in his kitchen, which faced Bergen Street: "I heard somebody say 'Give me your box’. Then I heard somebody say, 'Why you want to take my box?’ Then I heard somebody say, 'If you don’t give up the box, shoot him.’ ” Initially Dillard was not concerned but, upon hearing a shot, he looked outside and saw three males, one of whom, the victim, Brian Buchanan, he knew. Buchanan was standing on Bergen Street near the corner of Kingston Avenue and between the two others, holding a radio. He was struggling over it with one of the men, who was dressed in green (later identified as defendant Ford). The third individual (later identified as defendant Philip Ladson), was holding a plastic shopping bag with his right hand in the bag and his left holding the handle. The victim, still holding the radio, and Ford then ran together down Kingston Avenue. Ladson took a different path. By the time Dillard had moved from his kitchen to his bedroom to be able to see Kingston Avenue (which took about half a minute), Buchanan was lying on the sidewalk and Ford, carrying the radio, had run past where Buchanan lay, returned and was standing over him. Eventually Ladson also returned, swinging the plastic bag as he walked. Autopsy showed that Buchanan had been shot in the back and that the bullet, which passed through his heart and lung, could have been fired from a distance ranging from 18 inches to 100 feet.

Officer Freeman, the first policeman on the scene, testified that Ford, who was standing on a nearby corner when he arrived, told the officer that Buchanan was his friend. He was upset and crying and later accompanied another officer to the home of the victim to inform the family. He also testified that one of the men was carrying a radio.

Neither Ford nor Ladson took the stand but both had been questioned by Detective Skala, who testified as to the statements they made. Ford’s statement was that while the three were knocking on the door of a friend, who lived on Revere Place, he saw a light-skinned male and heard someone shout, "Now I’ve got you.” They turned, ran down Revere to Bergen Street and when they had run about half to three quarters of the way down Bergen toward Kingston Avenue, a shot rang out. He and Buchanan continued to run and turned onto Kingston Avenue where Buchanan fell to the ground.

Ford’s theory at trial was that Mark McKurdy had shot Buchanan. McKurdy, a light-skinned black, was a former police officer who had been convicted for a handgun assault and discharged from the force but on July 31, 1980 was on release pending appeal. Buchanan, four months before his death, had told police that he had witnessed McKurdy commit a bow and arrow shooting of a witness to the handgun assault. Buchanan had made a taped statement regarding the alleged incident. Ford’s counsel tried to show at trial, through the testimony of a police officer, that McKurdy, therefore, had a motive to kill Buchanan. Buchanan’s taped statements, however, had been discredited by the police and he had never testified at McKurdy’s trial for assault. Pursuant to stipulation, the jury was informed that Buchanan had not testified at McKurdy’s trial. Ladson’s attorney asked for a further stipulation that the person shot with the bow and arrow had been a witness to the prior handgun assault by McKurdy and had been unable to testify at McKurdy’s trial because of his injury, but the Trial Judge ruled that out as too remote and not sustained by the record of the McKurdy trial.

Ladson’s statement to Skala made no mention of anyone shouting, "Now I’ve got you” while they were on Revere Place, and indicated that the three boys had not started running until, as they walked up Revere toward Bergen and neared the corner, they heard a shot. No gun was ever found nor did anyone other than Dillard testify concerning Ladson’s having a plastic bag, but Skala testified to a statement by Dillard made in his presence to an Assistant District Attorney in which Dillard stated that "he heard a shot and observed an expression of shock on Mr. Buchanan’s face. He stated that the third male was standing behind Mr. Buchanan with his arm out stretched [sic] with a plastic bag over the hand and it simulated positioning the gun in Mr. Buchanan’s back.”

Although defendant and Ladson were charged with two counts of murder in the second degree (intentional murder and felony murder; Penal Law § 125.25 [1], [3]) and criminal possession of a weapon in the second degree (Penal Law § 265.03), the Trial Judge submitted to the jury as lesser included offenses manslaughter in the first degree, manslaughter in the second degree and criminal possession in the third degree.

The court charged the jury, as part of its instructions on how to consider evidence, that it was entitled to draw reasonable inferences from the testimony and exhibits and that: "The defendants are entitled to every inference in their favor, which can reasonably be drawn from the evidence. And where two inferences may be drawn from the evidence, one consistent with guilt and the other consistent with innocence, each defendant is entitled to the inference consistent with innocence.” It followed that statement with instructions concerning weighing evidence and determining credibility and then charged, with respect to circumstantial evidence, as set forth in the margin.

Then, after instructions on expert witnesses and the presumption of innocence, the Trial Judge charged, as part of his instruction on reasonable doubt, that: "The doctrine of reasonable doubt must be applied by you to every element or ingredient necessary to constitute the crimes charged. A defendant cannot be convicted upon suspicion or even strong probabilities. If the evidence against a defendant is equally consistent with innocence and guilt, the jury must find the defendant innocent. The guilt of the defendant has not been proven beyond a reasonable doubt.”

Ford’s attorney had earlier submitted a two-page request on circumstantial evidence, which included the statement that, "The direct evidence must exclude to a moral certainty, every other reasonable hypothesis; in other words the facts which are directly proved must be inconsistent with his innocence.” After the court’s charge he excepted, referring to his earlier request and noting that the court should have charged that "the evidence with respect to circumstantial evidence must be [sic] exclude every other hypothesis of guilt, where it is based on circumstantial evidence.” Ladson’s counsel submitted no similar request nor did he except to the charge as given. Both had, however, moved for trial orders of dismissal and both excepted to the lesser included charges on manslaughter first, manslaughter second and criminal possession of a weapon third, noting that they were "not requested by the defense and we had discussed this at the other [earlier] trial.”

The jury found Ford guilty of manslaughter in the second degree and criminal possession of a weapon in the third degree. Ladson, who had allegedly fired the shot, was convicted of manslaughter first and second degree possession. The Appellate Division affirmed defendants’ conviction without opinion.

Before us both defendants argue that the evidence was insufficient to present a jury question, that it was error to submit lesser included offenses, and that the charge on circumstantial evidence was prejudicially insufficient. Defendant Ladson also contends that reversible error was committed in some of the Trial Judge’s evidentiary rulings.

II

Viewing the evidence, as we must, in a manner most favorable to the prosecution and indulging in all reasonable inferences in the People’s favor (People v Malizia, 62 NY2d 755; People v Benzinger, 36 NY2d 29), we conclude that there is adequate evidence to support the jury’s verdicts. The possibility that someone other than Ford or Ladson may have committed the crime does not preclude a guilty verdict — the jury is free to assess the evidence and to reject that which it finds to be nonpersuasive. "[A] jury faced with conflicting evidence may accept some and reject other items of evidence * * * regardless of whether that evidence is circumstantial or direct” (People v Kennedy, 47 NY2d 196, 201).

A

Defendant Ford argues that the fact that a fight occurred during which an unidentified person ordered the victim shot if he did not give up the "box” is not enough to compel the conclusion that he recklessly caused Buchanan’s death. This is particularly so, he argues, because Buchanan was his friend and because defendant was dazed, tearful, did not flee the scene and affirmatively aided the police in their investigation.

The jury could conclude from the positions of the three individuals and the position of Ladson’s hand in the plastic bag that it was Ford who had directed that if Buchanan did not "give up the box, shoot him” and Ladson who carried out that direction. Ford admitted his presence at the scene to an investigating officer and Dillard, who had heard the direction given, saw Ford struggling with Buchanan over the radio after the shot was fired, saw no one other than Buchanan, Ford and Ladson at that time, and saw Ford return with the radio in his hand after Buchanan fell. Though Ford’s statement to Detective Skala placed the shooting on Bergen Street closer to the Kingston Avenue intersection than to Revere Place, Detective Skala’s testimony was that he observed droplets of blood at the corner of Bergen and Revere which continued down Bergen and onto Kingston to the place where Buchanan had fallen.

The jury could conclude from the discrepancies between Ladson’s version and Ford’s version of what was supposed to have transpired on Revere, and from the discrepancy between Ford’s version of where the shot rang out and Skala’s description of where the blood trail began, that there was no other assailant. They could also conclude from the past relationship between Ford and Buchanan that the direction to shoot was made recklessly but without intention that Buchanan be caused serious physical injury, and that conclusion would be consistent with Ford being upset over Buchanan’s death and returning to assist him rather than running away.

B

Ladson emphasizes that his statement to Detective Skala placed the three boys when the shot was heard at the corner of Revere Place and Bergen Street, which is consistent with the location of the blood drops on Bergen Street and with the testimony of the witness Frederick, who was the first to arrive at the scene, that he and a police officer and Ford walked around the corner of Bergen and Revere Place to pick up Ford’s sneaker (which he had lost while running) and a radio, and inconsistent with Ford’s statement to Skala that he had thrown the radio into a doorway on Kingston when he heard someone shout "get down.” He also points to discrepancies in Dillard’s statement as to the time lapse between the argument and the shot (which Dillard estimated as 10 or 15 to 20 minutes) and as to whether he ever saw the boys standing as distinct from running on Bergen Street.

This is not a case in which all of the evidence of guilt comes from a single prosecution witness who gives testimony pointing to both guilt and innocence (see, People v Jackson, 65 NY2d 265, 272) for Dillard’s version of the events finds support in Ford’s statement. There are, it is true, discrepancies concerning the time sequence, where the boys were when the shot was fired, and where the radio was after Buchanan fell, but they result from "two or more witnesses giv[ing] conflicting testimony [which] simply creates a credibility question for the jury to be determined by them in the context of the entire body of evidence before them” (id.).

Ill

Defendants were indicted for murder in the second degree (intentional murder and felony murder) and criminal possession of a weapon in the second degree (with intent to use same unlawfully, Penal Law § 265.03). The Trial Judge submitted to the jury, over objection, the lesser offenses of manslaughter in the first degree (with intent to cause serious injury, causes death, Penal Law § 125.20), manslaughter in the second degree (recklessly causes death, Penal Law § 125.15) and criminal possession of a weapon in the third degree (possession of a loaded firearm, Penal Law § 265.02). As already noted, Ford was found guilty of manslaughter second and criminal possession third and Ladson was convicted of manslaughter first and criminal possession second.

CPL 300.50 (2) requires the court, when requested by either party to do so, to give a lesser included charge for which there is a reasonable view of the evidence that would support a finding that defendant committed such an offense, but absent such a request subdivision 1 of that section commits to the discretion of the Trial Judge whether to give such a charge. Defendants concede that the impossibility test of People v Glover (57 NY2d 61) was met, as indeed they must, the only difference between the charges on the indictment and the lesser charges submitted being one of intent (People v Green, 56 NY2d 427). The only question, then, is whether the "reasonable view of the evidence” prong was met. "In that analysis the court’s evaluation of the persuasiveness of the evidence of guilt of the greater crime is irrelevant and the jury’s right to accept some part of the evidence presented by either side and reject other parts of that proof must be respected” (People v Green, 56 NY2d, at p 434).

A

Under Penal Law § 15.05 (3), "A person acts recklessly with respect to a result * * * when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur”. Here there was a reasonable view of the evidence that Ford acted recklessly within that definition. There was evidence that Ford knew that Ladson possessed a gun because during the argument, which Dillard testified lasted 10 to 20 minutes, Dillard heard either Ford or Ladson tell Buchanan to give up the "box” or he would be shot. Dillard testified that even after the shot was fired, Ford continued to struggle over the radio. Thus, the jury could have concluded that defendant knew if he continued to argue and to struggle with Buchanan that Ladson might shoot. This is enough evidence for the jury to find that defendant recklessly caused Buchanan’s death (see, People v Licitra, 47 NY2d 554; People v Garcia, 64 AD2d 555).

Similarly, there was no abuse of discretion in submitting the offense of criminal possession of a weapon in the third degree. Possession third requires only that defendant’s possession be knowing (People v Cohen, 57 AD2d 790), and there is evidence in the record to indicate that Ford knew that Ladson possessed the weapon but did not intend, himself, that Buchanan be shot. As noted before, the prior warning to Buchanan that he would be shot, whether made by Ladson or Ford, establishes knowledge on Ford’s part. His emotional turmoil after the crime was committed and the fact that the victim was his friend were a sufficient basis upon which the jury could have found he, nevertheless, did not intend that Buchanan be harmed.

B

Ladson argues only that there was no reasonable view of the evidence warranting submission of manslaughter first because there was no evidence to show that he shot Buchanan intending only to hurt him, but not to kill him. The argument turns on the fact that the bullet pierced Buchanan’s lungs and heart. There was, however, also evidence that Buchanan and Ford were struggling over the radio at the time, from which the jury could have concluded that the gun was fired with intent to cause serious injury but not death and caused death only because Buchanan’s movements during the struggle resulted in the bullet piercing his heart.

IV

Defendants argue that the circumstantial evidence charge was so inadequate as to constitute reversible error. While we agree that the charge was erroneous and, on that basis, reverse defendant Ford’s conviction, the error is as to defendant Ladson beyond our jurisdiction, his attorney having failed to object to the charge on this ground (People v Teeter, 47 NY2d 1002, 1003; see, People v Foster, 64 NY2d 1144, 1146; People v Cona, 49 NY2d 26, 33-34).

In People v Sanchez (61 NY2d 1022, 1024), we held that it was not necessary that a circumstantial evidence charge use the words "moral certainty” but emphasized that "the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.” The reason behind these requirements is articulated in People v Kennedy (47 NY2d 196, supra); People v Benzinger (36 NY2d 29, supra) and People v Cleague (22 NY2d 363). In Cleague, we noted that "circumstantial evidence is as nothing unless the inferences to be drawn from the circumstances are logically compelling. The danger, therefore, with the use of circumstantial evidence is that of logical gaps — that is, subjective inferential links based on probabilities of low grade or insufficient degree — which, if undetected, elevate coincidence and, therefore, suspicion into permissible inference” (22 NY2d, at p 367). Benzinger is probably the clearest statement of the reason for the "exclusion of every reasonable hypothesis of innocence” language. That opinion states (36 NY2d, at p 32): "The oft-stated rule with respect to convictions based exclusively upon circumstantial evidence is that for guilt to be proven beyond a reasonable doubt the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them; and the facts proved must exclude 'to a moral certainty’ every reasonable hypothesis of innocence. (E.g., People v. Borrero, 26 N Y 2d 430, 434-435; People v. Cleague, 22 N Y 2d 363, 365-366.) The reason for the current application of this rule is not that circumstantial evidence is thought to be weaker than direct evidence, since the reverse is frequently true. Rather, the rule draws attention to the fact that proof by circumstantial evidence may require careful reasoning by the trier of facts. By highlighting this aspect, the rule hopefully forecloses a danger legitimately associated with circumstantial evidence — that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree (see People v. Cleague, supra, at p. 367). In the end, the application of the test becomes 'a question whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts.’ (People v. Borrero, supra, at p. 435; People v. Wachowicz, 22 N Y 2d 369, 372.)” People v Kennedy echoes the reasoning of the two earlier cases (see, 47 NY2d, at pp 201-202, 204).

People v Morris (36 NY2d 877) is not to the contrary. There we upheld a charge which did not state "that the facts proved must exclude * * * every reasonable hypothesis of innocence,” but the charge as given in that case (see, 36 NY2d, at p 879, n) was that "it must appear that the inference drawn is the only one that can fairly and reasonably be drawn from the facts [and] that any other explanation is fairly and reasonably excluded” (emphasis supplied). Thus, the charge clearly conveyed the exclusion concept, as does the pattern charge contained in New York Criminal Jury Instructions, in spelling out for the jury the reasoning process to be followed in assessing circumstantial evidence (1 CJI [NY] 9.05, at 475-476; see also, 1 CJI [NY] 9.10, at 482).

Here although the charge informed the jury that as between two permissible inferences defendants were entitled to the one consistent with innocence and that the People must prove every element of a crime beyond a reasonable doubt, the former was part of the general introductory portion of the charge concerning inferences and the latter was given in a discussion of weighing proof. Neither was directly related, as it should have been, to the "complex and problematical reasoning process necessarily undertaken in cases of purely circumstantial evidence” (People v Barnes, 50 NY2d 375, 381; accord, People v Benzinger, loc. cit., supra).

Not only was the charge erroneous in failing to advise the jury as part of the charge on circumstantial evidence that the facts proved must exclude every reasonable inference of innocence, but also it incorrectly advised the jury that "if you are satisfied beyond a reasonable doubt of the defendant’s guilt, it would be your duty to say so even though some of the facts alleged have been proved with a lower degree of certainty”, for that would permit "subjective inferential links based on probabilities of low grade or insufficient degree” (People v Cleague, 22 NY2d, at p 367, supra).

V

Ladson’s evidentiary points relate to Frederick’s testimony concerning his questioning of bystanders, Skala’s testimony concerning Dillard’s use of the word "altercation” with respect to the persons he viewed at the lineup and concerning Dillard’s statement at that time to the Assistant District Attorney in Skala’s presence, and to the refusal to allow introduction of evidence concerning the inability of the injured witness to testify at McKurdy’s trial.

As to Frederick’s testimony, he never testified to what had been said by the bystanders and his statement that he told the police when they arrived that defendants were directly or indirectly involved came in on Ford’s attorney’s cross-examination without objection.

The alleged Dillard errors were not preserved and the Trial Judge was well within his discretion in ruling that the additional stipulation concerning McKurdy sought by Ladson’s attorney was not based on the record of the McKurdy trial and, in any event, was too remote. Those rulings are, therefore, not reviewable by us.

For the foregoing reasons, the order of the Appellate Division in People v Ford should be reversed and a new trial ordered and its order in People v Ladson should be affirmed.

Chief Judge Wachtler and Judges Jasen, Kaye, Alexander and Titone concur; Judge Simons taking no part.

People v Ford: Order reversed and a new trial ordered.

People v Ladson: Order affirmed.

       The charge on circumstantial evidence was as follows:
      "Now, members of the jury, any fact in issue in a criminal case may be proven either by direct evidence or by circumstantial evidence. Direct evidence means what the word implies. It is given by persons as to what they actually saw or heard or smelled or touched or felt, tending to prove the act taking place.
      "In other words, unless you have actually photographs or moving pictures of the act taking place or an eyewitness of necessity you must rely on other things or other evidence.
      "Circumstantial evidence consists of a chain of circumstances which leads from the proof of things seen and known down to the establishment of the unknown or the unseen. That is some ultimate fact that may be in issue. Witnesses who provide circumstantial evidence do not testify that they saw the defendants commit the crime. Instead, the witnesses testify to a variety of facts which may permit the inference or conclusion that the defendants committed the crime.
      "Circumstantial evidence relates to collateral facts from which experience has taught us that we may logically and clearly conclude that some main fact does or does not exist * * * [here several examples were given and then the charge continued].
      "So, in the presentation of facts and circumstances in a criminal case, some of them may be proved with more and some with less assurance of certainty. That is inevitable in the presentation of evidence during a criminal trial. Some facts are proved more satisfactorily than others. You should give to each fact the just and true weight that you in the exercise of your judgment decide it ought to have. Thus, if you are satisfied beyond a reasonable doubt of the defendant’s guilt, it would be your duty to say so even though some of the facts alleged may have been proved with a lesser degree of certainty than others.
      "The law makes no distinction between direct and circumstantial evidence. Any fact in issue in a criminal case may be proved by circumstantial evidence.”