author: Bellacosa, J.

text:
    [647 NE2d 1332, 623 NYS2d 824]
    In the Matter of William C. Wood, Jr., Respondent, v Roy A. Irving, as Chief of Police of the City of Rochester, et al., Appellants.
    Argued November 29, 1994;
    decided February 23, 1995

      POINTS OF COUNSEL

      Louis N Kash, Corporation Counsel of Rochester (Linda S. Kingsley and Chad R. Hayden of counsel), for appellants.

      Harris Beach & Wilcox, Rochester (Lawrence J. Andolina and Christopher A. DiPasquale of counsel), for respondent.

      G. Oliver Koppell, Attorney-General, Albany (Siobhan S. Crary, Jerry Boone and Peter H. Schiff of counsel), in his statutory capacity under Executive Law § 71. Civil Service Law § 58 (4) (c) is not unconstitutional on its face. (Matter of

      Detective Endowment Assn, v Leary, 36 AD2d 289, 30 NY2d 577; Matter of Hagan v Murphy, 39 Mise 2d 82, 19 AD2d 862, 14 NY2d 701; McGowan v Mayor of City of N. Y, 53 NY2d 86.)

      Donna M. C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

Pursuant to Civil Service Law § 58 (4) (c) (L 1990, ch 29), a police officer, who temporarily served as a detective for more than 18 months, sued and was granted a promotional "appointment” to the rank of detective in the Rochester Police Department. We conclude that the statutory directive on which that judicial ruling rests violates the overriding constitutional prerequisite of article V, § 6, that appointments or promotions within the State civil service system be merit-based and determined, where practicable, by competitive examination. Consequently, we reverse the order of the Appellate Division.

L

Petitioner, a Rochester police officer, was temporarily assigned to investigative duties and performed these duties for approximately 18 months. The department thereafter terminated his assignment. The officer sued, claiming that under Civil Service Law § 58 (4) (c) the 18-month period he had spent performing temporarily assigned investigative duties matured automatically into a permanent detective appointment. The City of Rochester resisted, including on the ground that Civil Service Law § 58 (4) (c) violated the merit and fitness requirement of article V, § 6 of the New York Constitution.

Supreme Court granted the petition and ordered the officer’s appointment as a detective with a retroactive salary award. The Appellate Division affirmed, with two Justices dissenting (199 AD2d 1026). The majority found no constitutional infirmity, asserting that once an officer had served as a detective for 18 months, competitive testing for the position was not practicable and that the capacity and fitness to serve as a detective could “better be assessed by a review of the officer’s extended period of on-the-job performance” (id., at 1027). The two dissenters, however, concluded that the Legislature’s failure to address the practicability of competitive testing for detective positions rendered Civil Service Law §58 (4) (c) facially unconstitutional (id., at 1027). The dissenting Justices would have held that absent a supportable legislative determination of impracticability of testing, promotions or appointments could be made only by competitive examination, and that, therefore, the provision, pursuant to which petitioner was granted the appointment and promotion, transgressed article V, § 6 of the New York Constitution (id., at 1027-1028).

The City and its police department appeal as of right on the two Justices’ dissent (CPLR 5601 [a]) and constitutional (CPLR 5601 [b] [1]) grounds.

II.

Civil Service Law § 58 (4) (c) (L 1990, ch 29) directs that:

“Any person who has received permanent appointment as a police officer and is temporarily assigned to perform the duties of a detective shall, whenever such assignment exceeds eighteen months in duration, be appointed as a detective and receive the compensation ordinarily paid to a detective performing such duties” (emphasis added).

The enactment, by its terms, commands an appointment to the rank of detective, using the potent civil service action word of art. The command takes effect solely by the passage of time, when an officer has performed investigative or detective duties on temporary assignment for the predicate period of time.

Article V, § 6 of the New York Constitution, however, articulates long-standing, well-settled State policy that appointments and promotions within the civil service system must be merit-based and, when "practicable,” determined by competitive examination (NY Const, art V, § 6). The constitutional dictate does not create an absolute bar to civil service appointments and promotions without competitive examinations (Matter of Sloat v Board of Examiners, 274 NY 367, 373; Matter of Sanger v Greene, 269 NY 33, 40). An untested appointment or promotion, however, must rest on (1) a legislative determination that ascertaining fitness by competitive examination is "impracticable” (Matter of Andresen v Rice, 211 NY 271, 279); and (2) a sound, discernible basis supporting the Legislature’s determination of impracticability (id.; see also, Matter of Sanger v Greene, supra, at 40).

Because Civil Service Law §58 (4) (c) mandates both an appointment and promotion within the meaning of article V, §6 of the New York Constitution, and because there is no evidence whatsoever of a legislative consideration or determination of impracticability of testing for the detective rank, the enactment fails its constitutional threshold.

III.

At the outset, we conclude that Civil Service Law § 58 (4) (c) effects a mandate to municipal employers to appoint an officer to the position of detective. This constitutes an actual "appointment” and "promotion” within the meaning of article V, § 6 of the New York Constitution. Indeed, that is precisely what the lower courts ruled in granting the petitioner officer the relief he sought under the statute. When an appointment is meant to be permanent, or when it carries with it an " 'advancement to a higher position, grade, class or rank [or] preferment in honor or dignity’ ” (commonly known and appreciated as a "promotion”), the placement of a worker in that position is an appointment or promotion, requiring merit and fitness constitutional scrutiny, satisfaction or explicit dispensation (NY Const, art V, § 6; see, Civil Service Law § 52 [9]; People ex rel. Campbell v Partridge, 89 App Div 497, 499, affd 179 NY 530; People ex rel. Gilhooly v McAdoo, 108 App Div 1, 4-5, affd 185 NY 537; see also, Hale v Worstell, 185 NY 247, 253).

The plain language of Civil Service Law § 58 (4) (c), the legal operation of the statute, its legislative history and the implementation by the courts below — which are disregarded by the dissent — uniformly support our conclusion that the challenged statute mandates an appointment or promotion governed by article V, §6 of the New York Constitution. The statute’s facially plain wording uses the operative term of art "be appointed” (Civil Service Law § 58 [4] [c]). We are instructed to " 'construe [statutes] so as to give effect to the plain meaning of the words used’ ” (Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 675, quoting Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). This precept is even more compelling when coupled with a supervening constitutional imperative, like the Merit and Fitness Clause.

Even were the term deemed ambiguous — an unsupportable conclusion in our view — an examination of the statute’s legislative history demonstrably discloses that the statutory provision is meant to effect a permanent appointment or a promotion or both. It thus falls within the prohibitive orbit of the constitutional protection by that line of interpretive analysis as well.

The statute’s singular goal was "[t]o insure that police officers who perform the duties of a detective o[n] a temporary basis (exceeding 18 months) be compensated as detectives and permanently appointed as a detective” (Mem in Support, Bill Jacket, L 1990, ch 29 [emphasis added]). The bill was pursued and designed to alleviate perceived morale and inequity problems arising from such temporary assignments, when officers were forced to work for long periods of time side by side with "rank” detectives but without commensurate security, pay, and benefits (see, Mem in Support, op. cit.; Sponsor’s Mem, Bill Jacket, L 1990, ch 29). The legislative history reflects that, if enacted, the bill would effect the permanent appointment or "designation” to the rank of detective of such temporarily assigned officers (see, Mem in Support, op. cit.; Sponsor’s Mem, Bill Jacket, L 1990, ch 29 [distinguishing between "truly temporary assignments” and those mandated by the bill]; Mayor Dinkins Mem in Opposition, Bill Jacket, L 1990, ch 29 [objecting to bill’s "permanent appointment” of temporarily assigned officers]; NYS Conference of Mayors and Other Municipal Officials, Mem in Opposition, Bill Jacket, L 1990, ch 29 [objecting to the bill’s converting an "administrative assignment” into an "appointment”]; Suffolk County Patrolmen’s Benevolent Assn, Mem in Support, Bill Jacket, L 1990, ch 29 [referring to the appointment mandated by the bill as a "designation”]). While a party attacking the facial constitutionality of a statute bears a heavy burden (McGowan v Burstein, 71 NY2d 729, 732-733), courts are not at liberty to save a statute by, in effect, rewriting it in a manner that contravenes its plain wording as well as its unambiguously articulated legislative purpose (Ivey v State of New York, 80 NY2d 474, 480; Morgenthau v Citisource, Inc., 68 NY2d 211, 223; People v Smith, 63 NY2d 41, 79, cert denied 469 US 1227; see also, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 92, 94, 96).

Civil Service Law § 58 (4) (c) ultimately overrode the filed Bill Jacket objections and effected the very result guarded against by civil service merit and fitness principles and protections. A police officer appointed pursuant to the challenged statute stands in the same position as an officer who is appointed or promoted after being subjected to existing competitive testing procedures for the rank of detective. Appointment by the alternative statutory route thus allows temporarily assigned officers to achieve the higher salaried, preferred status of detective without submitting to the competitive examination applicable to everyone else (see, Civil Service Law § 58 [4] [c]). The will of the Legislature, motivated by those who pursued this enactment even for arguably well-intentioned purposes, brings about a displacement of the higher constitutional imperative and an unauthorized preferential appointment or advancement.

IV.

Civil Service Law § 75 (1) (e) cannot rescue section 58 (4) (c). The former provides that one "holding the position of detective” does not obtain rights to a hearing for discharge for cause until the appointee has held the position for three years. On this basis, for example, it has been held that no tenure attaches to the detective position upon appointment or promotion and that, therefore, the position is not a true appointment or promotion within the meaning of article V, § 6 (see, Matter of Suffolk County Patrolmen’s Benevolent Assn. v Guido, Sup Ct, Suffolk County, Feb. 11, 1993, Lama, J., index No. 91-3807). That rationale is distinguishable and, in any event, does not withstand analysis as applied to the statute under review and with respect to the precise appointment issue of this case.

The time of vesting of a detective’s rights to a "for-cause” removal hearing is simply not determinative of the nature of the appointment action mandated by Civil Service Law § 58 (4) (c). To be promoted or appointed to the detective position, regular applicants in many parts of the State, including Rochester, are competitively tested — a significant fact devalued by the dissent. Those who succeed and are advanced to the post are then given the rank, benefits, and preferred status of detective. At that juncture, all the indicia of an appointment or promotion take hold. The appointment or promotion springs to life when these indicia of higher, preferred status attach, notwithstanding the fact that rights to a removal hearing remain inchoate for three more years. Since the appointment made under Civil Service Law § 58 (4) (c) provides officers with the identical, equivalent detective status, the appointment or promotion for constitutional purposes occurs when the employee’s status rises from that of an ordinary officer to that of detective. The attributes and consequences of the permanent appointment mandated by Civil Service Law § 58 (4) (c) — enhanced pay, benefits, and dignity of position — are thus pertinent to and dispositive of the question at hand. Consequently, we hold that the appointment mandated by Civil Service Law § 58 (4) (c) falls within article V, § 6 of the New York Constitution.

Civil Service Law § 75 (1) (e), itself, demonstrates the weakness in relying on vested hearing rights as a determinative factor in assessing the nature of the appointment mandated by Civil Service Law § 58 (4) (c). Civil Service Law § 75 (1) (e) provides that even where a detective has served for at least three years, no dismissal hearing is required when "reduction in rank from said position is based solely on reasons of the economy, consolidation or abolition of functions, curtailment of activities or otherwise.” Accepting the rationale of those courts that equate hearing rights with permanency of appointment would logically lead to the conclusion that the appointment or promotion to the detective rank could hardly ever be considered permanent, because discretionary type factors (i.e., "curtailment of activities”, "consolidation of functions”) could always lead to a reduction in rank without a hearing. Under such a "hearing rights” rationale, no appointments to detective rank could ever be considered truly permanent and, hence, such elevations in rank would never be deemed promotions or appointments for purposes of the Merit and Fitness Clause of the Constitution (NY Const, art V, § 6). Since this cannot be so, we reject the "hearing rights” rationale in the instant case. It is an unsupportable prop designed to save the statute by ignoring the reality of the automatic appointment which is triggered by Civil Service Law § 58 (4) (c).

V.

Our conclusion in this regard is also supported by our reasoning and holdings from earlier cases involving the “designation” — permanent appointment — of police officers to the status or rank of detective. In People ex rel. Campbell v Partridge (179 NY 530, supra), we affirmed the ruling of the Appellate Division which invalidated as unconstitutional the designation of a patrol officer to the position of telegraph operator where that position “carried with it the rights and privileges * * * including * * * rank and pay of a sergeant” (89 App Div 497, 498). Finding the appointment to this position to be a promotion, the Appellate Division stated:

’’The designation of the relator, a patrolman, as telegraph operator, was intended to be permanent, and was, therefore, a promotion, for it carried with it advancement in rank and class, together with an advancement in the salary to be received by him” (id., at 499).

The Court noted that, without examination, patrol officers were not eligible for appointments of this status and that, consequently, the permanent appointment, which bypassed the examination requirement, violated the constitutional competitive testing mandate (People ex rel. Campbell v Partridge, supra, at 498-499; see also, People ex rel. Gilhooly v McAdoo, 108 App Div 1, 3-5, affd 185 NY 537, supra).

The case at bar contains markedly similar features: (1) competitive testing is currently administered annually in most parts of the State for the higher-ranked detective position; and (2) the challenged statute irrefutably bears the legislative intent that the appointment be permanent in lieu of any examination and with no finding of impracticability of testing —an understandably difficult hurdle, since testing is otherwise imposed for the identical rank and function in many parts of the State, including Rochester (see, Mem in Support, Bill Jacket, L 1990, ch 29).

VI.

The Legislature’s failure to assess the practicability of competitive testing for the detective rank renders unconstitutional the automatic appointment directive of Civil Service Law § 58 (4) (c) (see, NY Const, art V, §6). To be sure, a legislative enactment enjoys a strong presumption of constitutionality (Birkeland v State of New York, 98 AD2d 395, 398 [citing Borden's Co. v Baldwin, 293 US 194, 209, 210], affd 64 NY2d 663, 665). On the other hand, the specific constitutional requirement for competitive examination, where practicable, "may not be blinked [away] or avoided” (Matter of Board of Educ. v Nyguist, 31 NY2d 468, 472; compare, Flushing Natl. Bank v Municipal Assistance Corp., 40 NY2d 731, 739-740). In the instant case, the Legislature failed to address or articulate any impracticability of testing in the statute, and no such implied legislative finding can be gleaned from its legislative history.

We recognize that a legislative determination of "impracticability” need not be stated in the law itself. A statute may survive a constitutional challenge in this respect, however, only if (1) such a determination, at least, may be " 'assumed’ ” from " '[some] state of facts’ ” concerning the enactment of the legislation (see, Birkeland v State of New York, 98 AD2d 395, 398 [quoting United States v Carolene Prods. Co., 304 US 144, 154], affd 64 NY2d 663, supra); and (2) the ultimate explicit or implied finding of impracticability of testing is supportable (Matter of Sanger v Greene, 269 NY 33, 40, supra). Neither circumstance is satisfied in the case at bar, and thus petitioner’s claim fails. Indeed, the opposite conclusion is plain. Testing for detective is common and, no doubt, was a fact known to the Legislature in the constellation of factors promoting this legislation.

Moreover, a legislative determination of impracticability of testing cannot be gleaned either explicitly or impliedly from the "state of facts” of this case (see, Birkeland v State of New York, 98 AD2d 395, 398, affd 64 NY2d 663, supra). The legislative history of the bill demonstrates the opposite conclusion, as we noted earlier.

Were it possible to garner enough evidence from the record to support the conclusion that the Legislature did determine such testing to be impracticable, that legislative determination would not pass scrutiny in the instant case. "Practicability” denotes the ability to objectively test the applicant’s capacity and fitness to serve in the position sought and requires an assessment of the character of the required duties of the particular position (Matter of Fink v Finegan, 270 NY 356, 361-362; see also, McGowan v Burstein, 71 NY2d 729, 734-735, supra; People ex rel. Sweet v Lyman, 157 NY 368, 382; Matter of Condell v Jorling, 151 AD2d 88, 93). While the character of the position may constitutionally allow for dispensing with the examination requirement, either in whole or in part, noncompetitive appointments are the exception, not the rule (Matter of Andresen v Rice, 277 NY 271, 276, supra).

The practicability of competitive testing for the rank of detective is manifest in the instant case. Competitive examinations have been held generally practicable for State and local law enforcement personnel (id., at 281), with few exceptions, including New York City (compare, Matter of Scotto v Dinkins, 85 NY2d 209 [involving a different statute and decided today on nonconstitutional grounds]). The existence of annual competitive testing for the detective rank belies any assertion that an officer’s fitness for the position cannot be assessed, at least to some degree, by competitive examination. Because the qualifications for the position of detective are measurable, to some extent, by competitive examination, the Legislature would be hard put to declare impracticability by simple fiat (McGowan v Burstein, 71 NY2d 729, 734-735, supra; Matter of Fink v Finegan, 270 NY 356, 362-363, supra).

Finally, we disagree with the Appellate Division’s rationale dispensing with competitive testing on the basis that on-the-job performance was a better indicator of merit and fitness. While in some exceptional, appropriate circumstances on-the-job performance may be used to assess merit and fitness, the constitutional requirement to competitively test where practicable “may not be blinked [away] * * * simply upon the basis of * * * satisfactory performance during temporary or 'out-of-title’ service in [a] higher position” (Matter of Board of Educ. v Nyquist, 31 NY2d 468, 472, supra). Notwithstanding a public employee’s satisfactory on-the-job performance, when qualifications are subject, even in part, to objective assessment, those objectively testable qualities must be evaluated by competitive examination (see, McGowan v Burstein, 71 NY2d 729, 734-735, supra; Matter of Board of Educ. v Nyquist, supra, at 471, 474). While untestable attributes may be considered and included as components of a complete evaluation of merit and fitness (McGowan v Burstein, supra, at 735), and while alternative noncompetitive measures of fitness may be employed to assess those more subjective attributes (Matter of Sloat v Board of Examiners, 274 NY 367, 372-373, supra), the constitutional requirement to test competitively for objectively ascertainable qualities may not be summarily evaded by the Legislature or by the courts (see, McGowan v Burstein, supra, at 734-735).

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

Levine, J. (dissenting). We respectfully dissent. In this case, the Court has before it a purely facial challenge to the constitutionality of only one provision of the Civil Service Law, section 58 (4) (c), under the Merit and Fitness Clause of the State Constitution (NY Const, art V, § 6). A party making such a facial challenge bears an exceptionally heavy burden.

"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid” (United States v Salerno, 481 US 739, 745).

This Court in McGowan v Burstein (71 NY2d 729) imposed that same arduous responsibility with respect to a facial attack grounded upon article V, § 6 of the State Constitution, holding that "[t]o sustain their challenge * * * plaintiifs must demonstrate that zone scoring [of competitive civil service examinations] in any degree and in every conceivable application would be unconstitutional” (id., at 733).

In our view, respondents have failed to meet that exacting standard. The majority’s conclusion that every conceivable application of Civil Service Law § 58 (4) (c) would violate the Merit and Fitness Clause is based upon two premises. The first of these is that section 58 (4) (c) mandates a permanent appointment to the position of detective. The statute does not expressly require that an appointment as a detective shall be permanent. While the majority relies heavily on the legislative use of the word "appoint” as a civil service term of art connoting permanency (majority opn, at 244), and thereby invoking the constitutional imperatives of the Merit and Fitness Clause, under the Civil Service Law, permanency is not a necessarily implied concomitant to an appointment. Thus, initial appointments to positions in the competitive class are not permanent, but probationary (Civil Service Law § 63 [1]). Moreover, State and municipal civil service commissions can and do provide by rule that appointments to positions in the exempt, noncompetitive or labor classes are not initially permanent (id..).

The majority also recognizes that, despite the use of identical "appointment” language in the parallel New York City Police Department legislation (L 1990, ch 755; Administrative Code of City of NY § 14-103 [b] [2]; see, Matter of Scotto v Dinkins, 85 NY2d 209 [decided today]), a police officer in that department who has performed the duties of a detective for 18 months achieves the status of detective not by appointment but by "designation” (majority opn, at —). Furthermore, until three years have elapsed following that designation (thereby giving rise to statutory tenure rights under Civil Service Law § 75 [1] [e]), "[t]he [police] commissioner may at his or her pleasure revoke any designation” (Administrative Code § 14-103 [e]).

Similarly, assignments to the Detective Division of the New York City Transit Authority Police Department are not by appointment, but exclusively by detail, which may also be revoked (Public Authorities Law § 1204 [16]).

Moreover, just as in the case of the New York City Police Department and the New York City Transit Authority, it is apparently common that no permanent, classified civil service position of detective (or, as in the case of the City of Rochester, investigator), has been set up by legislation or the civil service commission having jurisdiction (see, Matter of Barresi v Mahoney, 192 AD2d 649, lv denied 82 NY2d 656; Matter of Greensmith v Incorporated Vil. of Centre Is., 109 AD2d 742). In such instances of assignment, detail or designation rather than appointment to a classified civil service detective position, there is no service of an initial probationary period.

As the foregoing demonstrates, Civil Service Law §.58 (4) (c) does not by itself mandate tenure for detective "appointments”. It does not require the creation of a permanent, classified position of detective in every jurisdiction. Nor does the section set up a framework whereby eligible officers serve a probationary term ripening in time into a permanent position of detective. Therefore, irrespective of what its legislative sponsors may have intended, in no meaningful civil service sense does section 58 (4) (c) require a permanent appointment to the rank of detective in every jurisdiction. Accordingly, permanency is not, in our view, a valid ratio decidendi for declaring the section facially invalid.

The majority’s alternative rationale for finding no conceivable set of circumstances in which section 58 (4) (c) could be constitutionally applied is that it necessarily entails a " 'promotion’ * * * [i.e.,] an ' "advancement to a higher position, grade, class or rank [or] preferment in honor or dignity” ’ ” (majority opn, at 243). Undoubtedly, detective duty is a coveted assignment and may carry with it additional compensation. The majority apparently holds that these factors automatically in all cases trigger a constitutionally required separate, classified position of detective, to be tested for by competitive examination in the absence of demonstrated impracticability. In deciding whether this is so, it is well to follow Judge Fuchsberg’s admonition in McGowan v Mayor of City of N Y. (53 NY2d 86, 94), a case also involving assignments to detective duties, "[t]o paraphrase Justice Holmes, this case is one in which a page of history may be worth even more than a volume of logic”.

Historically, the New York courts have especially deferred to the judgment and expertise of the Legislature or appropriate civil service body in determining how to classify for civil service purposes the performance of the criminal investigative role of law enforcement officer. That deference has continued to modern times. Thus, in Matter of Dillon v Nassau County Civ. Serv. Commn. (43 NY2d 574, 582) we held:

"[I]t is not decisive that in some other counties, because of the possible or likely variation in local circumstances, all criminal investigators are classified exempt. There is a measure of flexibility allowed a civil service commission, beyond judicial review, in deciding whether to classify investigators 'exempt’, and how many to so classify. While in some counties all investigators are classified exempt, in others all are classified competitive, and in still others * * * there is a combination of classifications. The difference in treatment, taken alone, does not establish that any one classification or that the State-wide pattern is arbitrary. Instead, a petitioner must show that the determination by which he feels aggrieved cannot stand on any reasonable basis. Or a petitioner must show at least that the State-wide pattern is not based legitimately on local variations in conditions, office organization, availability and use of coexistent police resources, and the like”.

More specifically for purposes of the instant case, this Court has repeatedly sanctioned legislative or civil service commission treatment of the transfer of police personnel to detective duties, whether or not carrying increases in compensation, not as formal promotions to new positions, but as assignments within the general duties of a police officer. Thus, in Matter of Sugden v Partridge (174 NY 87) and Matter of Fay v Partridge (174 NY 526) this Court dealt with constitutional challenges to a statute amending the New York City Charter regarding the "central office bureau of detectives” in the City of New York and directing the Police Commissioner to " 'select and appoint to perform detective duty therein from the patrolmen and roundsmen * * * to draw and be paid the same pay as other sergeants of police’ ” (174 NY, at 92, supra [emphasis supplied]). In Matter of Fay v Partridge the Court stated that the legislation did "not, in any proper sense, create a distinct office or provide for filling it. There may be in the police force patrolmen, roundsmen and detectives, but they are all policemen and nothing else in the eye of the law * * *. What the statute in question did was to provide for the organization of a bureau to be known as a detective bureau; that is to say, it provided for the assignment of a certain designated class of policemen to certain designated duties. The class so selected was called detectives, and as a body they constituted the detective bureau, but they were policemen all the time and nothing else” (supra, at 527-528).

In Matter of Sugden v Partridge, the Court rejected the claim that appointment of detective sergeants under the act violated the Merit and Fitness Clause of the Constitution, because the act did not create a new office and the petitioner was designated as a detective sergeant before the municipal civil service commission determined that it was a separate office to be filled by competitive examination (174 NY, at 96-97, supra).

Consistently with the rationale of Matter of Fay v Partridge and Matter of Sugden v Partridge, on every occasion when the issue has been before us, we have rejected claims that detailing uniformed officers to detective responsibilities for indefinite periods without formal promotion and a commensurate salary increase, necessarily violated article V, §6 of the Constitution or unlawfully required the assigned officers to perform out-of-title duties (see, Matter of Hagan v Murphy, 14 NY2d 701, affg 19 AD2d 862, affg 39 Misc 2d 82; Matter of Detective Endowment Assn. v Leary, 30 NY2d 577, affg 36 AD2d 289; see also, McGowan v Mayor of City of N. Y, 53 NY2d 86, supra). The basic reasoning of these decisions has been that the Legislature or the appropriate civil service authority may lawfully choose to treat detective investigative duties as part of the general function of a police officer and within the job description of that position.

"Assignment of a patrolmen to the Detective Division does not involve the transfer to a position requiring an examination or involving tests or qualifications different from or higher than those required for the position of patrolman” (Matter of Detective Endowment Assn, v Leary, 36 AD2d, at 290-291, supra).

In reliance on these precedents, municipal civil service commissions have approved the organization of police agencies in which investigative or detective delegations of responsibility are not defined as separate, classified permanent civil service positions but as assignments or details within a classified uniformed position; and on that basis the courts have upheld discretionary appointments to or removals from those assignments without civil service tests or required hearings (see, Matter of Barresi v Mahoney, 192 AD2d 649, supra; Matter of Greensmith v Incorporated Vil. of Centre Is., 109 AD2d 742, supra). It follows from the foregoing that certainly as to those police agencies where assignment to a detective unit does not entail the performance of the duties of a separately classified civil service investigative position created by legislation or commission determination, the application of Civil Service Law § 58 (4) (c) does not violate the Merit and Fitness Clause of our Constitution. It would merely require the formalization of the assignment as an "appointment”, but within the general functions of a police officer’s position, with commensurate compensation, not unlike the legislation upheld in Matter of Sugden v Partridge (supra) and Matter of Fay v Partridge (supra). This was precisely the position taken by the State Civil Service Commission in approving the bill enacting section 58 (4) (c):

"We understand that the intent of this bill is to ensure that those serving as detectives receive the wages normally associated with such an assignment. However, the bill also provides that after eighteen months assignment as a detective, a police officer must be 'appointed’ to that title.
"We suspect that the drafters of this measure intended it to apply where service as a detective is an assignment. In situations where 'detective’ is a distinct title, tested for on a competitive basis, no individual can be appointed permanently unless he or she passes the required tests and becomes reachable on an eligible list, as required by Article V, Section 6 of the State Constitution” (Letter from Dept of Civil Service, Bill Jacket, L 1990, ch 29, at 22 [emphasis supplied]).

Thus, unless the majority intends to overrule sub silentio an entire line of cases approving detective assignments within the general civil service classification of police officer, there are not only conceivable, but actually existing situations where Civil Service Law § 58 (4) (c) can be validly applied and, therefore, the statute should withstand this facial challenge.

As we have already noted, however, section 58 (4) (c) does not mandate a permanent appointment to the rank of detective upon service in that capacity for 18 months. Consequently, although petitioner was entitled to be appointed an investigator on September 23, 1990, the effective date of the statute (by reason of his prior continuous years of performing investigative duties), and to an investigator’s compensation from that date, the section did not prevent respondents from reassigning him to a uniformed platoon on January 28, 1991. Therefore, we would modify the judgment by declaring that respondents have not established the facial invalidity of Civil Service Law § 58 (4) (c), by deleting therefrom the directive to respondents to appoint petitioner to the position of investigator and by limiting the directive to respondents to pay petitioner such amounts as to equalize his compensation with that of an investigator for the period from September 23, 1990 to January 28, 1991.

Chief Judge Kaye and Judges Simons and Titone concur with Judge Bellacosa; Judge Levine dissents in a separate opinion in which Judges Smith and Ciparick concur.

Order reversed, etc.

       Tenured detectives are, like other tenured civil servants, still subject to the elimination or reduction of positions due to "economy, consolidation or abolition of functions [etc.]” (see, Civil Service Law § 75 [1] [e]; §§ 80, 80-a).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [648 NE2d 455, 624 NYS2d 79]
    The People of the State of New York, Respondent, v Nathaniel Hill, Appellant.
    Argued January 3, 1995;
    decided February 16, 1995

      POINTS OF COUNSEL

      Edward S. Graves, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Joseph J. Dawson and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Smith, J.

In People v Ryan (82 NY2d 497) we held that in order to find a defendant guilty of Penal Law § 220.18 (5) (criminal possession of a controlled substance in the second degree), the People must prove beyond a reasonable doubt that the defendant had knowledge of both the possession of the substance and its weight. We now hold that, where the issue is fully preserved for our review, the knowledge requirement is applicable to the convictions here for criminal sale of a controlled substance in the second degree (Penal Law § 220.41 [1]).

This case involves three purchases of narcotics by an undercover agent. On May 17 and June 30, 1988 defendant sold heroin to an undercover detective who was accompanied by a confidential informant. On both occasions, defendant contacted a third party who later arrived with the drugs. At the time of the second sale, the undercover attempted to deal directly with defendant’s contact but was told by the contact that deals had to be made with defendant’s participation.

On September 26, 1988, the undercover was involved in a third transaction with defendant at a car radio repair shop in Brooklyn. Defendant directed the parties into the shop and, at first, remained outside. Inside, the seller, Andre Colon, dropped the packages of drugs to the floor. The undercover, while kneeling to pick up the drugs, handed the cash to defendant who had entered the shop. Defendant counted it and then handed it to Colon.

At defendant’s trial, the only direct evidence of the weight of the drugs was that from the People’s witness who used a statistical sampling method to estimate and conclude that there was more than one-half ounce of the drug in both the June 30 and September 26, 1988 sales. At Supreme Court, defendant was convicted of two counts of criminal sale of a controlled substance in the second degree (Penal Law § 220.41 [1]) and two counts of criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]). The Appellate Division affirmed. That Court rejected defendant’s claim that the evidence was insufficient to support his conviction because the People failed to prove, beyond a reasonable doubt, that defendant sold at least one-half ounce of contraband, in accordance with the requirements of Penal Law § 220.41 (1). The Court also rejected defendant’s challenge to the qualifications of the People’s witness to act as an expert because the witness admitted his lack of expertise in statistics.

One Justice dissented, agreeing with defendant that the employment of the statistical sampling method by the People’s witness to estimate the weight of the contraband failed to meet the People’s burden of proving defendant’s culpability for the charged crime beyond a reasonable doubt. Additionally, the dissent concurred with defendant’s characterization of his lack of involvement with the sale on September 26,1988 which resulted in the fifth count of the indictment. The dissenting Justice granted defendant leave to appeal to this Court.

Only the convictions for criminal sale of a controlled substance in the second degree are before us on this appeal. Defendant contends that his convictions for these crimes were obtained in violation of due process because the evidence failed to establish the weight of the contraband and failed to establish that he knew or had reason to know the contraband weighed at least one-half ounce. In addition, he argues that the trial court erred by refusing to instruct the jurors that the People were required to prove his knowledge of the weight of the contraband. Defendant argues that the People did not measure the contents of each of the glossine envelopes and, thus, could not accurately determine whether defendant possessed the amount sufficient to render him culpable under the statute.

The People counter that the proof was legally sufficient to support defendant’s second degree sale convictions. They assert that the weight of the contraband was accurately established by the use of the statistical sampling method. Although the People concede that the trial court’s jury charge was incorrect, they claim that reversal is not required because defendant’s trial was conducted prior to this Court’s decision in People v Ryan. In addition, the People argue that Ryan was a new rule, and a retroactive ruling will have a detrimental impact upon the administration of justice because of the past reliance on the application of the knowledge requirement to possession but not weight.

Initially, we note that the issue was fully preserved for our review by defendant’s dismissal motion, asserting that the People failed to establish both the weight of the drugs and defendant’s knowledge that the drugs weighed more than one-half ounce (see, People v Bynum, 70 NY2d 858).

We conclude that, as to weight, the evidence here was sufficient to sustain defendant’s conviction. First, notwithstanding defendant’s contention, the expert’s evidence here was admissible. We have consistently held that " '[ejxpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror’ ” (People v Taylor, 75 NY2d 277, 288, quoting De Long v County of Erie, 60 NY2d 296, 307; People v Keindl, 68 NY2d 410, 422). Moreover, "[a]s a general rule the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court” (De Long v County of Erie, supra, at 307).

Second, regarding the sufficiency of the evidence itself, in People v Argro (37 NY2d 929, 930), we upheld a toxicologist’s procedure of selecting 10 envelopes at random from 10 batches of heroin to prove that the defendant possessed one eighth of an ounce or more of a substance containing heroin. Although we observed in Argro that the expert’s opinion was received without objection, we also noted that the expert’s procedure was made clear to the jury and that all of the actual envelopes were admitted into evidence and physically presented before the jury (id.). We stated, "Under these circumstances we believe that it was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether his opinion was entitled to be credited” (id.; see also, People v Rodriguez, 190 AD2d 527, lv denied 81 NY2d 1019; People v Nelson, 190 AD2d 823, lv denied 81 NY2d 974). Similarly, here, the jury was entitled to conclude that the statistical testimony of the witness was sufficient evidence of the weight of the controlled substance.

As to knowledge, the People concede that the trial court’s charge was incorrect but argue that it comported with the law at the time and that Ryan is not retroactive. Defendant argues that since the Ryan decision construed the words of a statute for the first time, no new rule was established; that there is a strong presumption in favor of the application of legal principles to all cases pending on direct appeal; and that the Court’s ruling was clearly foreshadowed by other rulings.

Penal Law § 220.41 (1) states, "A person is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells * * * one or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing a narcotic drug.” In People v Ryan this Court held that the term "knowingly” in Penal Law § 220.18 applies not only to the possession of the illicit substance itself, but also to the weight of the substance (see also, People v Scarborough, 49 NY2d 364, 374). Concluding that a "mens rea ” element is associated with the weight of the drug, this Court noted that absent such requirement, the crime would in essence be one of strict liability (People v Ryan, 82 NY2d, at 502-504, supra).

The judgment in this case was rendered on May 23, 1990, well before our decision in People v Ryan. The Appellate Division rendered its decision on December 16, 1993, the same day on which this Court decided Ryan. We hold that, where the issue has been properly preserved, Ryan is retroactive to cases pending on direct appeal at the time of the decision on December 16,1993.

Since Ryan construed the words of a statute, it established no new legal principle. "A judicial decision construing the words of a statute * * * does not constitute the creation of a new legal principle” (Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 192; see also, People v Favor, 82 NY2d 254, 261). The construction of a statute is, rather, the exercise of determining the intent of the Legislature when the act was passed. The Ryan case sought to find the intent of the Legislature and to apply it to the facts there.

Additionally, a finding of guilt of violating a statute even though one of the elements of the crime had not been established in the circumstances would have rendered the proceeding fundamentally unfair and a violation of due process.

In New York, even when a new legal principle is established, whether it is to be held retroactive depends, generally, upon three factors — the purpose of the new rule, the reliance on the old rule, and the effect of the new rule on the administration of justice (People v Pepper, 53 NY2d 213, 220; see also, People v Favor, 82 NY2d 254, 260-262, supra; People v Mitchell, 80 NY2d 519, 527-529).

Application of the Pepper factors would support a retroactive application, of Ryan. In Ryan, this Court followed the dictates of the Legislature that those who illegally possess larger amounts of controlled substances should receive more severe punishment given the threat to society such conduct presents (82 NY2d 497, 505, supra). Thus, the individual must be aware of the level of possession to justify the corresponding level of punishment. The rule expressed in Ryan fulfills that Legislative directive. Moreover, a conclusion that the Ryan case is not retroactive would result in a person’s guilt even though one of the elements of the crime had not been established.

In People v Pepper (53 NY2d, at 220, supra), we stated, "In this formulation [the three-part test], the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself’. The knowledge of the weight requirement is determinative of whether a particular accused has actually committed the crime charged.

An issue remains as to whether a new trial should be held, or the indictment dismissed. As noted in Ryan, the requisite knowledge of the weight of a substance frequently may be deduced from the negotiations during a narcotics transaction, including discussions about price. In addition, we observed that when a defendant is charged under an "aggregate weight” statute, "knowledge of the weight may be inferred from defendant’s handling of the material, because the weight of the entire mixture, including cutting agents, is counted” (People v Ryan, 82 NY2d, at 505, supra).

The evidence established that defendant, on three separate occasions, sold hundreds of glossines, each time involving more than the statutory threshold. The price for each sale ranged from $4,600 to $4,700. During one transaction — involving 500 glossine envelopes — defendant complained that the price was so low it would cut him out of the deal. The price was then raised, and as defendant looked on, 500 envelopes were handed to the undercover. During the next transaction, defendant himself carried 500 glossine envelopes from one car to another and handed the merchandise to the undercover officer. During the last transaction, defendant accepted the buy money from the undercover officer and counted it before turning it over to his superior in the drug ring.

From such proof the jury might have inferred that defendant knew, in each instance, that he was participating in the sale of at least one-half ounce of a substance containing heroin.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, defendant’s conviction of two counts of criminal sale of a controlled substance in the second degree vacated and a new trial ordered as to those counts.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order, insofar as appealed from, reversed, etc.


author: Ciparick, J. Bellacosa, J.

text:
    [648 NE2d 459, 624 NYS2d 83]
    The People of the State of New York, Respondent, v Cecilio Eastman, Appellant.
    Argued January 4, 1995;
    decided February 21, 1995

      POINTS OF COUNSEL

      Toko Serita and Philip L. Weinstein, New York City, for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Shulamit Rosenblum, Roseann B. MacKechnie and Monique Ferrell of counsel), for respondent.
   OPINION OF THE COURT

Ciparick, J.

On this appeal, defendant collaterally attacks his conviction contending that it was obtained in violation of his Sixth Amendment right of confrontation as delineated in Cruz v New York (481 US 186) issued by the Supreme Court after his conviction became final. In Cruz, the Supreme Court held that the Confrontation Clause bars the introduction of a confession of a nontestifying codefendant, not directly admissible against the defendant, that inculpates the defendant. The issues before us are whether Cruz should be accorded retroactive effect and, if so, whether the admission of the codefendant’s redacted confession was harmless error. We now decide that Cruz should be applied retroactively, and, as applied to this case, the introduction of the nontestifying codefendant’s confession is not harmless error.

I.

Between midnight and 12:30 a.m. on April 1, 1981, Wilfred Barrett, a Con Edison security guard, was fatally shot in an attempted robbery. During the scuffle, Barrett fired his gun. When a police officer arrived at the crime scene, Barrett, who was lying on the ground, told the police officer that he may have shot one of his three or four assailants. When the police officer removed the revolver from Barrett’s hand, he observed that one shell was missing from the chamber. Before Barrett was transported to a nearby hospital, he identified a suspect the police brought to the scene, who later proved not to be involved in the incident. Barrett subsequently died of his wounds at the hospital.

When the detective assigned to this case arrived at the hospital, he was informed by a fellow officer that Barrett had already been taken to the operating room, and that a Mr. Eastman was in the emergency room with a gunshot wound which he claimed he sustained at the same location where Barrett was fatally shot. When the detective questioned Eastman about where he was shot, Eastman identified the same location where Barrett was found. Eastman was subsequently removed for surgery, during which a bullet was recovered. This bullet was later identified as the bullet discharged from Barrett’s gun.

Thereafter, the detective observed Carlos Croney, Carlos Richards and Rubin Charles waiting near the emergency room, individuals whom the detective believed had information about the shooting incident. The detective consequently directed his fellow officers to transport these individuals to the precinct for questioning.

The detective learned that at least two of these individuals, Croney and Richards, were in the car that fled the crime scene with the wounded defendant, and that the gun used to shoot Barrett was dropped off at Charles’s apartment, where the detective later recovered it. The detective then proceeded to question Croney after he waived his rights. During the course of questioning, Croney gave a statement that provides, as relevant:

"[Eastman] told me to stop the car * * * and wait. [Eastman] got out the car with [Richards]. * * * I heard more than one shot. [Richards] and [Eastman] came running back. [Eastman] told me he was shot. When they got out of the car, they had told me stop we see something. Either [Richards] or [Eastman] said we going to take the man off. When they came back [Richards] said the man shot [Eastman]. I took them to the hospital and drove off. The black gun was on the front seat of the car.”

Later that day, the detective returned to the hospital to speak with Eastman. After obtaining permission from hospital administrators to speak with Eastman, the detective advised him of his rights, which he waived. The detective then proceeded to question him about the Barrett shooting and his gunshot wound. In his trial testimony, the detective indicated that Eastman was in the recovery room during this questioning, that he was speaking in a low voice, and that he was laced with IV tubes. Eastman recounted that earlier that day he was in the car with Croney, who was driving, that Croney dropped him off, he heard a shot and that he sustained a gunshot wound. Eastman claimed three unknown individuals came to his aid and transported him to the hospital. The questioning then concluded.

Several hours later, Eastman told the police officer guarding him in the hospital that he wanted to speak with the detective again. Subsequently, the detective, accompanied by an Assistant District Attorney and a stenographer, returned to the hospital, where they requested and received permission to speak to Eastman. Eastman was still encumbered by numerous IV tubes. The Assistant District Attorney advised Eastman of his rights, which he again waived, and a question and answer session ensued, which was recorded by the stenographer.

During this questioning, Eastman indicated that he was in a car with Croney and Richards, and that at about 12:15 A.M., Richards said "Let’s go check out that old man over there.” Eastman related that Richards wanted to take the envelope the man was holding. Thereafter, he and Richards got out of the car, Richards ran up to the man and Eastman observed Richards try to grab the envelope from the man. Eastman claimed that as he was approaching this scuffle, he heard a shot, and turned around to run away. While he was running, he "started feeling beat” and realized he had been shot. Eastman stated that Richards said he got hit, that Richards "shot once,” and then he and Richards returned to the car where Croney was waiting. Eastman told Croney that he had been shot and asked Croney to take him to the hospital. In response to the Assistant District Attorney’s questions, defendant denied that he had a gun, that he asked anyone to "do a job with him and Croney,” or that he saw Croney with a gun. At the conclusion of the questioning, the Assistant District Attorney authorized Eastman’s arrest.

By an indictment dated April 10, 1981, Eastman and Croney were jointly charged with murder in the second degree and criminal possession of a weapon in the second degree under the theory that they were "aiding the other and acting in concert with another person” in an attempt to commit a robbery, and in furtherance of such crime fatally shot Wilfred Barrett.

Prior to trial, defendant moved, inter alla, to sever his case from codefendant Croney’s on the ground that his Sixth Amendment right of confrontation would be violated by the introduction of Croney’s inculpatory statement against him at trial. Defendant argued that severance was required under Bruton v United States (391 US 123) since the codefendant would not testify and his statement and the codefendant’s were antagonistic. Defendant asserted that his statement was consistent with his defense that Richards committed the crime while he merely exited the car to see what was happening with Richards. Defendant maintained that he was not acting in concert with anyone. The trial court denied severance but ordered redaction of the codefendant’s statement. The trial court directed deletion of the specific reference indicating who ordered the car to stop before the shooting, and ruled that the codefendant’s statement that he saw defendant carry the gun back to the codefendant’s car after the shooting incident and place it on the front seat be omitted.

At trial, the People presented as witnesses, inter alla, the investigating police officers, the detective who questioned the defendants, the Assistant District Attorney who authorized defendant’s arrest, and two doctors and a nurse who were involved in the operation to remove the bullet from defendant’s abdomen.

The detective testified that the codefendant related that "somebody” in the vehicle directed him to stop the car because "they wanted to take off the old man.” The detective also testified that the codefendant reported that Richards and Eastman exited the vehicle together and came running back together after Eastman was shot. Finally, the detective stated that the codefendant claimed he drove Eastman and Richards to the hospital, dropped them off there, and then took the gun they left in the car to Charles’s apartment. At defense counsel’s request, the trial court issued a limiting instruction, which was again repeated as part of the charge to the jury, advising that this "statement is only admitted as evidence to be considered [in] the case against the defendant Croney.”

With respect to defendant, the detective testified about the substance of the conversations he held with defendant at the hospital. Similar testimony regarding the question and answer session at the hospital was also provided by the Assistant District Attorney.

On his direct examination, defendant disavowed any involvement in the attempt to rob Barrett. Defendant expressly denied that he planned or assisted in a plan to rob Barrett, denied that he directed anyone to rob Barrett, denied that he intended to share in the fruits of a robbery of Barrett and that he or anyone else in the car that night had a gun. Defendant claimed that he did not recall having any conversation with the detective or an Assistant District Attorney, with a stenographer present, after his operation to remove the bullet. Defendant testified that Richards directed the codefendant to stop the car, that Richards got out of the car by himself, and that he only proceeded after Richards when the codefendant told him to see what Richards was doing. Defendant claimed that after he exited the car, he turned the corner, heard a shot and immediately ran back to the car. Defendant stated he then felt a burning sensation in his stomach. When he reached the car, he told the codefendant he had been shot. Defendant related that Richards was not in the car at this time, and did not accompany them to the hospital.

Included in the Trial Judge’s jury charge was an instruction on the acting in concert theory charged in the indictment. The Trial Judge explained that if the jury finds

"that the People have proven by evidence beyond a reasonable doubt that the defendants Croney and Eastman were accomplices in the commission of the attempted robbery, then, under the law, they are criminally liable for all the acts and conduct of all the participants during the robbery as though they fired the shot which resulted in the death of Wilfred Barrett.”

The jury found defendant and the codefendant guilty as charged by the indictment, and the trial court entered a judgment convicting them of murder in the second degree and criminal possession of a weapon in the second degree. Defendant appealed, arguing that the trial court improperly denied the motion to sever his case from that of his codefendant on Bruton grounds, as well as his motion to suppress certain statements following the Huntley hearing. The Appellate Division affirmed the judgment (see, People v Eastman, 114 AD2d 509), and this Court denied defendant’s application for leave (see, People v Eastman, 67 NY2d 651).

Thereafter, defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction on the ground that it constituted a violation of Federal constitutional law under the Supreme Court’s recent decision in Cruz v New York (481 US 186, supra [1987]). Defendant maintained that Cruz should be applied retroactively, and, when applied to this case, mandates reversal because the introduction of the redacted confession of the nontestifying codefendant against him at trial abridged the Sixth Amendment’s Confrontation Clause. Supreme Court denied the motion by order entered February 7, 1991. The Appellate Division affirmed, declining to address the retroactivity of Cruz in light of their finding that the admission of the codefendant’s statement was harmless error (see, People v Eastman, 195 AD2d 572). The Appellate Division held that the codefendant’s statement was not admitted as evidence against defendant, the defendant’s own inculpatory statement was comprehensive and satisfactorily explained his part in the crimes charged; and, defendant did not affirmatively repudiate his inculpatory statements (see, id., at 573). Therefore, the Appellate Division concluded that there was no reasonable possibility that the admission of the codefendant’s statement affected the verdict against defendant (see, id., at 573). A Judge of this Court granted leave, and we reverse.

II.

In Cruz, the Supreme Court rejected the limited exception recognized in the wake of Bruton v United States (391 US 123, supra) that when both the defendant and codefendant confessed to the crime charged and the confessions were factually consistent or "interlocked”, no violation of defendant’s right of confrontation resulted from the introduction of the interlocking confession because the codefendant’s statement purportedly would not have a "devastating effect” on a defendant who already confessed to essentially the same facts (see, e.g., People v Cruz, 66 NY2d 61, 69-72, revd 481 US 186, supra). In Cruz, the Supreme Court identified that what the "interlocking” nature of the codefendant’s confession pertains to is "not its harmfulness but rather its reliability” (Cruz v New York, 481 US, at 192, supra [emphasis in original]). The Supreme Court distinguished the prejudice that inures to a defendant from a codefendant’s inculpatory confession from the reliability of the codefendant’s statement as evidence. "Its reliability * * * may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant * * * but cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury’s failure to obey is likely to be inconsequential” (Cruz v New York, 481 US, at 192-193, supra [emphasis in original]). The Supreme Court concluded that "the law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted” (id.).

Because a codefendant’s credibility is inevitably suspect based on the recognized motivation to shift blame to an accomplice, the unreliability of a codefendant’s confession is intolerably compounded when, as here, the alleged accomplice does not testify and cannot be tested by cross-examination (Bruton v United States, 391 US, at 136, supra). This is precisely the type of threat to the accuracy and fairness of a fair trial that the Confrontation Clause was designed to prevent (see, id.).

As the fundamental right embodied in the Confrontation Clause is the right to cross-examine one’s adverse witness, it is nothing short of a denial of due process to rely on a jury’s presumed ability to disregard a codefendant’s confession implicating another defendant when the jury is determining the latter defendant’s guilt or innocence (see, Cruz v New York, 481 US, at 192-193, supra; Bruton v United States, 391 US, at 136, supra; see also, Jackson v Denno, 378 US 368). In this regard, the Supreme Court’s holding in Cruz marks a break from both Federal and State law precedents. Because Cruz fundamentally alters the Federal constitutional landscape, the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition of this case.

The threshold issue in determining whether to apply a constitutional rule retroactively is characterization of the rule as "new” or "old.” It is settled that when a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an "old” rule, and is always retroactive (see, Yates v Aiken, 484 US 211, 216; Graham v Hoke, 946 F2d 982, 991, cert denied 502 US 1039, mot to vacate conviction denied 140 Misc 2d 417, affd 158 AD2d 714, lv denied 76 NY2d 735). This retrospective application reflects the development and refinement of constitutional principles over time. Concern for finality in criminal proceedings, however, dictates that "new” rules generally not be applied retroactively to cases on appeal (see, Mackey v United States, 401 US 667, 681-683 [Harlan, J., concurring in part, dissenting in part]; accord, People v Pepper, 53 NY2d 213, 219-221, cert denied 454 US 967). In Teague v Lane (489 US 288, 310, reh denied 490 US 1031), the Supreme Court reaffirmed this precept, and embraced Justice Harlan’s approach to retroactivity for cases on collateral review, which recognizes that "[u]nies§ they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced” (see also, Mackey v United States, 401 US, at 675, supra [Harlan, J., concurring in part, dissenting in part]; Desist v United States, 394 US 244, 256-257 [Harlan, J., dissenting]).

Pursuant to Teague, new rules of constitutional criminal procedure are applied retrospectively in one of two situations: (1) where the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe” or (2) where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial (see, Teague v Lane, 489 US, at 311-312, supra, citing Mackey v United States, 401 US, at 692, supra; cf., People v Pepper, 53 NY2d, at 220-221, supra). "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government; [or,] [t]o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final” (Teague v Lane, 489 US, at 301, supra). Cruz unquestionably departs from established precedent, and implicates a bedrock procedural element — the Sixth Amendment right of confrontation (see, e.g., People v McNeil, 24 NY2d 550; People v Galloway, 24 NY2d 935; People v Cruz, 66 NY2d 61, supra; Parker v Randolph, 442 US 62; Bruton v United States, 391 US 123, supra).

Cruz declares that when the incriminating confession of a nontestifying codefendant is admitted against the defendant, the procedural apparatus of trial never assured the defendant a fair determination of guilt or innocence, regardless of whether the Trial Judge issued a limiting instruction that the confession not be considered against the defendant, or the defendant’s own confession was admitted as evidence against him (Cruz v New York, 481 US, at 193-194, supra; see also, Griffith v Kentucky, 479 US 314). As the rule announced in Cruz is central to an accurate determination of guilt or innocence, the Supreme Court determined that the admission of the codefendant’s inculpatory confession against the defendant undermined the fundamental fairness of the trial, where, as here, there was no opportunity for cross-examination to test the reliability of the codefendant’s confession (see, Graham v Hoke, 946 F2d, at 993, supra). Therefore, we conclude that retroactive application of Cruz is constitutionally commanded on collateral review of a conviction.

III.

Having determined that Cruz must be applied retroactively to this case, we now consider whether the admission of codefendant Croney’s statement constituted harmless error in this case.

An alleged violation of the Confrontation Clause is subject to a harmless error analysis (see, Cruz v New York, 481 US, at 194, supra). Constitutional error is harmless only if it is harmless beyond a reasonable doubt (Schneble v Florida, 405 US 427, 431; Chapman v California, 386 US 18, 24; People v Hamlin, 71 NY2d 750, 756; People v Almestica, 42 NY2d 222, 226). The court’s review of a constitutional error is based on the entire record, and involves a determination of the "probable impact of the codefendant’s admission[ ] on the 'minds of an average jury’ ” (People v Hamlin, 71 NY2d, at 758, supra, citing Harrington v California, 395 US 250, 254; see also, People v Crimmins, 36 NY2d 230, 237). The court must ascertain whether the confession so prejudiced the defendant that reversal of the conviction and a new trial is mandated (see, People v Hamlin, 71 NY2d, at 758, supra). Relevant considerations in this review include the comprehensiveness of defendant’s statement and the extent to which it explains defendant’s participation in the crime without reference to the codefendant’s statement; whether the statement is corroborated or contradicted by objective evidence; and, whether defendant has repeated or repudiated the substance of the statement on subsequent occasions (see, Schneble v Florida, 405 US, at 431, supra; Cruz v New York, 481 US, at 191-192, supra; People v Hamlin, 71 NY2d, at 758, supra).

Particularly significant in our review of the nature of the error in the instant case is the impact of the codefendant’s inculpatory statement on defendant’s repudiation of his previous statements. At trial, defendant denied any involvement in criminal activity on the night of April 1, 1981, and stated that he did not remember any conversations with the detective or Assistant District Attorney at the hospital. Notwithstanding the finding of the suppression court that the statements were voluntary, defendant asserts that he repudiated his inculpatory statements at trial on the ground that they were neither voluntary nor reliable since they were obtained when his physical and mental capabilities were severely impaired after a seven-hour operation. In this regard, the probable impact of the codefendant’s inculpatory statement on the mind of the average juror was extreme prejudice to defendant, eliminating any possibility that the jury would accept the defense theory.

It is the codefendant’s inculpatory statement that supports defendant’s conviction under a theory that each defendant was "aiding the other and acting in concert with another” because only the codefendant’s statement links defendant to the crime and ascribes intent to him. Neither defendant’s statements to the detective at the hospital nor his trial testimony do anything other than place defendant in the vicinity of the crime scene. His statements do not explain his presence at the scene nor reveal a plan or motive to commit a crime. It is the comprehensive nature of the codefendant’s statement that provides the only support for defendant’s conviction.

Likewise, while Barrett’s hearsay statement that he may have shot one of his assailants accounts for the bullet recovered from defendant’s abdomen, absent codefendant Croney’s statement, it too does nothing other than place defendant at the scene, a fact not changed by the ballistics evidence as suggested by the dissent. Moreover, the accuracy of Barrett’s statement is itself hardly free from doubt given that the dying Barrett identified an alleged suspect who was not even at the scene.

We, therefore, conclude that defendant’s conviction could have resulted only because his Sixth Amendment right of confrontation was abridged by the admission of the codefendant’s inculpatory confession. As this error was harmful, defendant is entitled to a new trial.

Accordingly, the order of the Appellate Division should be reversed, defendant’s CPL 440.10 motion granted, defendant’s conviction of murder in the second degree and criminal possession of a weapon in the second degree vacated, and a new trial ordered.

Bellacosa, J.

(dissenting). In my view, the order of the Appellate Division rejecting CPL 440.10 collateral review relief and unanimously upholding the 1982 judgment of conviction after a jury verdict finding defendant guilty of murder should be affirmed. The harmless error doctrine is applicable and our approved, standard analysis — employed by the Appellate Division in this case — is cogently supportable on the record (195 AD2d 572; People v Hamlin, 71 NY2d 750, 758).

To begin with, appellant-defendant’s own detailed, voluntary confession was admitted as direct evidence in this case. It brought before the jury his admission that before exiting the vehicle with one Carlos Richards, the shooter, defendant knew that Richards had a gun and that Richards intended to rob Barrett. Defendant also testified at trial that he was driving in the car with Richards before the shooting and that he himself was shot at the location where the robbery occurred.

To be sure, defendant tried to retreat at trial somewhat from his confession to mitigate his participation and knowledge in the crime and, thus, to exculpate himself from guilt. In no way, however, should defendant’s testimony in this harmless error setting be characterized, as the majority does, as a "reversal of his previous position” (majority opn, at 272, n 3), singularly displacing the dispositive focus of this case, namely, the totality of the evidence and the impact of the erroneously admitted codefendant’s confession. Defendant’s self-serving, incomplete retraction becomes particularly significant in this harmless error context, quite to the opposite effect from the crucial weight the majority gives it. The reason I advance for that conclusion is that the jury also properly heard compelling testimony from a police officer who arrived at the crime scene seconds after the shooting and spoke with the victim of the robbery, as he lay dying in the street.

That officer testified that victim Barrett was able to inform the police that he was robbed by three men and that he, the victim, "might have shot one of them.” The ironclad link connecting the direct and circumstantial evidentiary components to defendant is soldered with an unbreakable lock of documentary, medical, scientific evidence — the expert ballistics evidence tying the defendant’s wound to the victim’s gun as its undeniable source and cause. Nothing could have impressed the jury more than the proof that the bullet removed from this appellant-defendant’s abdomen was fired from victim Barrett’s .38 caliber Smith & Wesson revolver. Defendant’s wound from the dying victim’s gun thus binds this defendant-appellant to this crime by way of the dying victim’s statement that he shot one of his three assailants. In the vernacular, this ballistics evidence goes one better than even a "smoking gun,” beyond peradventure of doubt.

People v Hamlin (71 NY2d 750, 758, supra) teaches:

"In making [the harmless error] assessment, we consider a number of factors, including how comprehensive defendant’s statement is and whether it satisfactorily explains his or her part in the crime without reference to the codefendant’s statement, whether it is corroborated or contradicted by other objective evidence, and whether defendant has reiterated it on one or more subsequent occasions (see, Schneble v Florida, 405 US 427, 431, supra). If the defendant has repudiated the confession, a similar, detailed statement by a codefendant may be particularly prejudicial to the minds of a jury instructed to decide whether defendant’s statement was voluntary (see, Cruz v New York, 481 US, at [191-192], 107 S Ct, at 1718, supra; People v Pitts, 71 NY2d 923; cf., Schneble v Florida, supra).(Emphasis added.)

Applying these criteria to this case, I emphasize the corroboration by objective scientific evidence in this case and I note the distinguishing feature of defendant’s trial testimony, which was not a "repudiation” but a newly spun, minimized version of his involvement in the crime. The majority, thus, mischaracterizes, overemphasizes and misapplies the latter component of the test.

Defendant’s confession and his trial testimony acknowledgement of presence and other activity at the crime scene — he did not retract those central features in his trial testimony but, rather, confirmed them — and the dying victim’s "testimony” through the officer propel this defendant’s guilt beyond the sphere of reasonable doubt into the realm beyond a moral certainty. My examination of this record discloses no reasonable possibility (see, People v Crimmins, 36 NY2d 230, 237) that the jury’s assessment of appellant-defendant Eastman’s guilt was in any cognizable way affected by the confession of the other codefendant (People v Hamlin, 71 NY2d 750, 758, supra), whose confession under the retroactive application of Cruz v New York (481 US 186) should not have been admitted at defendant’s trial.

Defendant was proved guilty beyond a reasonable doubt, and I am satisfied, as were the lower courts, that the belated collateral review of the Cruz error bears no reasonable possibility of having affected the jury’s well-considered verdict of guilt based on the overwhelming proof, beyond a reasonable doubt, proffered against defendant.

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

Order reversed, etc.

      . The two counts of criminal use of a firearm in the second degree originally charged in the indictment were dismissed.

      . In Bruton v United States (391 US 123) the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when his codefendant’s incriminating confession is introduced at their joint trial, even if the jury is specifically instructed to consider the confession only against the codefendant.

      . Contrary to the view expressed by the dissent, defendant’s retreat from his prior statements is significant in assessing the harmful effect of his codefendant’s statement because it represents a reversal of his previous position.

      . Confessions are interlocking if their content is substantially similar (see, People v Smalls, 55 NY2d 407, 415).


text:
    [648 NE2d 468, 624 NYS2d 92]
    Davidson Pipe Supply Co., Inc., Appellant, v Wyoming County Industrial Development Agency et al., Respondents.
    Argued January 11, 1995;
    decided February 21, 1995

      POINTS OF COUNSEL

      Jones Hirsch Connors & Bull, New York City (William S. Sterns, III, and Gloria L. Bisogno of counsel), for appellant.

      Dadd and Nelson, P. C., Attica (Eric T. Dadd of counsel), for Wyoming County Industrial Development Agency and others, respondents.

      Saperston & Day, P. C., Buffalo (Robert W. Michalak and James P. Domagalski of counsel), for Indeck Energy Resources of Silver Springs, Inc., respondent.
   OPINION OF THE COURT

Smith, J.

The issue here is whether a construction project developed with the assistance of an industrial development agency is properly considered a "public improvement” under State Finance Law § 137 requiring alternative bonds to insure that suppliers of goods and services will receive payment. Because we hold that the subject project is not a "public improvement” within the meaning of the statute, we affirm the order of the Appellate Division.

In 1988 defendant Indeck Energy Resources of Silver Springs, Inc., a privately owned company, entered into an installment sale agreement with defendant Wyoming County Industrial Development Agency (WCIDA) to secure tax and other benefits in conjunction with its development of an energy cogeneration plant for the production of steam and electric energy for sale to private companies. The agreement contained sale and leaseback provisions which essentially resulted in WCIDA’s status as a temporary owner for tax purposes. These parties also executed a credit agreement with the Bank of New England, N. A., with Indeck as the borrower. Under the installment sale agreement and the credit agreement, all risks and benefits associated with the project were to be borne by Indeck.

Indeck enlisted National Energy Production Corp. (NEPCO) as its general contractor. NEPCO hired Fels Co., Inc. (Fels) for steel-related work. Fels contracted with plaintiff Davidson, who delivered steel pipe and related materials to Fels at an agreed price of $136,639.32, which has not yet been paid to Davidson. Davidson subsequently commenced this action against WCIDA, its members and Indeck seeking the balance due on its debt from Fels. The complaint alleged that the project was a public improvement under State Finance Law § 137 (1) and that defendants were responsible for the failure to obtain a bond to secure payment of moneys owed for materials.

Supreme Court granted plaintiff’s motion for partial summary judgment, holding defendants liable for their failure to require an additional payment bond on the project, and denied defendant’s cross motion to dismiss the complaint (156 Misc 2d 989). According to that court, the project properly constituted a "public improvement.” Defendants appealed and the Appellate Division unanimously reversed Supreme Court’s judgment, granted defendants’ cross motion and dismissed the complaint as against all defendants. The Appellate Division disagreed with Supreme Court’s characterization of the project as a "public improvement.” This Court granted plaintiff’s motion for leave to appeal.

Plaintiff contends that the underlying project is a "public improvement” for the purposes of State Finance Law § 137 (1) based on the remedial purpose of the statute and its legislative history. Defendants disagree, claiming that the project is not a "public improvement” under the statute.

New York’s Lien Law permits suppliers of materials to obtain mechanics’ liens upon an owner’s real property and improvements to guarantee payment for services and materials provided and restricts a party’s recovery to the agreed price "of the labor and materials remaining unpaid” (see, Lien Law §4 [1]). The State Finance Law provides alternative protection for projects determined to be "public improvements” by requiring the posting of a bond to guarantee payment (see, State Finance Law § 137 [1]). By the enactment of the additional bond scheme, the Legislature sought to remedy the lack of protection given by the Lien Law to those who furnish materials in connection with State contracts (see, Chittenden Lbr. Co. v Silberblatt & Lasker, 288 NY 396, 402; see also, L 1985, ch 137, § 1 [1985 amendment to State Finance Law evidenced Legislature’s further effort to safeguard rights of workers of the State]). It is in the State’s interest to encourage the alternative bonding of construction contracts for "public improvements” to avoid the reputation of permitting or otherwise failing to deter default on obligations for such projects.

We disagree with plaintiff that the alternative bond scheme under the State Finance Law is applicable here. While WCIDA is a public benefit corporation under the General Municipal Law (see, General Municipal Law § 856 [2]; §§ 858, 901-b) and a public corporation under Lien Law § 2 (6), that is not the controlling factor here. Its ownership of the property was only temporary under the agreement. Indeck, an admittedly private entity engaged in the cogeneration business for profit, is the ultimate beneficiary of the cogeneration plant. Indeck is the entity which will carry on the business, and the profits and losses will belong to it.

This Court addressed a similar issue of the nature of an industrial development agency in Matter of Erie County Indus. Dev. Agency v Roberts (94 AD2d 532, affd on opn below 63 NY2d 810) and emphasized the private character of its business. What we said there is equally applicable here:

"The conveyance of legal title to the agency with simultaneous lease back to the company is structured merely as a mechanism to facilitate financing and is not a genuine allocation of ownership in the agency. The economic benefits and burdens of ownership are reserved to the company and the agency serves only as a conduit for the tax benefits provided by such an arrangement * * *. The agency’s role is strictly that of an intermediary to insure that private parties qualify for tax exemptions; it assumes no risk of loss and has no opportunity to gain” (id., at 539-540).

In other contexts, the Legislature has defined the term "public improvement.” The over-all theme of the definition is that of construction of public facilities. General City Law § 20-e (2) (b) and County Law § 850 (2) (b), using essentially the same language, define the term as follows:

"The term 'public improvement’ or 'public improvements’ is defined to include but not limited to a courthouse, an archives and records center, a museum, a laboratory, a park, a garden, a recreation area, restaurants, shops, the installation of trees, shrubs and other landscaping, a monument, fountain, sculpture, a plaza, a substructure and parts thereof, mechanical, pedestrian or vehicular accessways, a parking garage, a parking lot, a pedestrian walkway or overpass or underpass, an arterial highway or connection, a crossroad or access road, a transportation terminal or shelter, a meeting hall, a civil defense shelter against radioactive fallout or blast, and other public structures and facilities intended for the use of state or municipal employees and the public at large” (General City Law § 20-e [2] [b]).

This is consistent with this Court’s characterization of section 137 of the State Finance Law as focused upon State-sponsored work (see, Chittenden Lbr. Co. v Silberblatt & Lasker, 288 NY 396, 402, supra).

Plaintiff claims that the definition of “public improvement” contained in Lien Law § 2 (7) is more indicative of the Legislature’s intent here. That statute defines “public improvement” as “an improvement of any real property belonging to the state or a public corporation”. This Court’s decision in Roberts (supra) is flatly contrary to this interpretation, however. Additionally, the 1992 amendment to that Lien Law statute also confirms the nonpublic nature of the underlying enterprise here. In 1992, Lien Law §2 (7) was amended to “[exclude] certain real property owned by an industrial development agency from the definition of public improvement” (L 1992, ch 662). The amendment states, in part:

”[I]f the beneficial interest of an improvement is in an entity other than the state or a public corporation notwithstanding legal title being vested in an industrial development agency created under article [18J-A of the general municipal law, then such improvement shall be considered an improvement of real property subject to mechanics’ liens on real property as provided in section three of this chapter. Nothing contained in this section shall create or be deemed to create any liability upon any industrial development agency for the payment of the cost of any improvement, or otherwise” (id. [emphasis added]).

This amendment thus permits private liens to be filed against projects involving industrial development agencies as owners. The result is that the Legislature has made it clear that much more is required of an entity, at least more than temporary ownership by an industrial development agency as here, to show that a project is properly denominated a "public improvement” for the purposes of State Finance Law § 137.

Plaintiff contends that the 1985 amendment to State Finance Law § 137 (1) evinces the legislative intent that the statute apply to IDA projects. The amendment added "public benefit corporation^]” as one of the public entities that must require the posting of bonds (see, L 1985, ch 137, § 10). Industrial development agencies are defined as public benefit corporations (see, General Municipal Law § 856 [2]), but the mere inclusion of the IDA in State Finance Law § 137 (1) does not mandate compliance with the statute on all IDA projects. The statute’s application remains limited to "public improvements” prosecuted by the public benefit corporation. Because the cogeneration plant at issue is not a public improvement within the meaning of the statute, defendants were not obligated to require the posting of a bond. Therefore, because the project here was not of the class contemplated by the Legislature to be entitled to the alternative bond protection of State Finance Law § 137, the Appellate Division properly dismissed plaintiff’s complaint.

Our decision here renders it unnecessary to reach the issue regarding plaintiff’s private cause of action.

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

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

Order affirmed, with costs.

       "Bond to secure payment of certain claims arising from a public improvement; enforcement.
      "1. In addition to other bond or bonds, if any, required by law for the completion of a work specified in a contract for the prosecution of a public improvement for the state of New York a municipal corporation, a public benefit corporation or a commission appointed pursuant to law, or in the absence of any such requirement, the comptroller may or the other appropriate official, respectively, shall nevertheless require prior to the approval of any such contract a bond guaranteeing prompt payment of moneys due to all persons furnishing labor or materials to the contractor or his subcontractors in the prosecution of the work provided for in such contract.”


author: Simons, J.

text:
    [648 NE2d 471, 624 NYS2d 95]
    The People of the State of New York, Respondent, v Rafael Rodney, Appellant.
    Argued February 14, 1995;
    decided March 23, 1995

      POINTS OF COUNSEL

      Elizabeth B. Emmons and Philip L. Weinstein, New York City, for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Steven J. Chananie of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of criminal sale of a controlled substance and criminal possession of a controlled substance, both in the third degree. The charges arose from the sale of cocaine to an undercover police officer. Defendant maintains that the judgment must be reversed because the People failed to give notice of their intention to offer as evidence a statement he made to police when responding to an officer’s question during booking.

At trial, the arresting officer testified that while completing an on-line booking arrest report, he asked defendant his name, address, Social Security number, the date and place of his birth, and whether he worked. When defendant was asked what he did for a living, the officer said, he "kind of smiled * * * and said I’m in sales.”

Defense counsel moved for a mistrial, contending that defendant had not received notice of the People’s intention to use this incriminating statement at trial pursuant to CPL 710.30 (1) (a). The trial court agreed with the Assistant District Attorney that the People were not required to give defendant notice of "pedigree” information and denied defendant’s motion. Its ruling presents two questions for our consideration: whether "pedigree” information is excepted from the notice requirement of CPL 710.30 and, if so, whether the question about defendant’s employment is a pedigree question within the exception.

Analysis starts by recognizing that the purpose of CPL 710.30 is to inform a defendant that the People intend to offer evidence of a statement to a public officer at trial so that a timely motion to suppress the evidence may be made (People v Lopez, 84 NY2d 425; People v O’Doherty, 70 NY2d 479; People v Greer, 42 NY2d 170). The defendant may challenge the statement upon three grounds: that it was (1) elicited by threat of physical force or other improper conduct or undue pressure; (2) induced by a promise or statement made to defendant which created a substantial risk of false self-incrimination; or (3) obtained in violation of defendant’s constitutional rights (see, CPL 60.45 [2]). Defendant does not contend— nor does the record reflect — that the first two grounds are pertinent here, and thus we evaluate the notice requirement primarily in light of defendant’s implicit assertion that the questions posed during the booking process violated his constitutional right against self-incrimination and that he was therefore entitled to pretrial notice so that he could seek suppression.

In Miranda v Arizona (384 US 436), the Supreme Court held that the prosecution is prohibited from using a statement made by the defendant during a custodial interrogation unless it can demonstrate "the use of procedural safeguards effective to secure the privilege against self-incrimination” (Miranda v Arizona, 384 US, at 444, supra). In the absence of proof that defendant was given the so-called Miranda warnings and knowingly and intelligently waived them, "no evidence obtained as a result of interrogation can be used against him” (id., at 479).

The Supreme Court has recognized that "routine booking questions” constitute custodial interrogation. Nevertheless, it has held that answers given in response to such questions fall outside the protection of Miranda if they are "reasonably related to the police’s administrative concerns” (Pennsylvania v Muniz, 496 US 582, 601-602; see also, United States v McLaughlin, 777 F2d 388, 391-392; United States v Sims, 719 F2d 375, 378, cert denied 465 US 1034). The exception derives from the essential purpose of Miranda — to protect defendants from self-incrimination in response to questions posed as part of the investigation of a crime, as distinguished from noninvestigative inquiries (see, United States ex rel. Hines v LaVallee, 521 F2d 1109, 1113, cert denied sub nom. Hines v Bombard, 423 US 1090; see also, United States v Menichino, 497 F2d 935, 939-942). We have also acknowledged the exception (see, People v Rodriquez, 39 NY2d 976, 978; People v Rivera, 26 NY2d 304, 309; see also, People v Rogers, 48 NY2d 167, 173).

Because responses to routine booking questions — pedigree questions, as we have referred to them — are not suppressible even when obtained in violation of Miranda, defendant lacks a constitutional basis upon which to challenge the voluntariness of his statement and where there is no question of voluntariness, the People are not required to serve defendant with notice (see, People v Greer, 42 NY2d, at 178, supra; cf., People v Collins, 60 NY2d 214, 218-219 [if there is no identification within the meaning of CPL 710.30, no notice is required]; People v Gissendanner, 48 NY2d 543, 552 [same]). Because routine administrative questioning by the police presumptively avoids any grounds for challenging the voluntariness of statements given in response to those questions, notice of such statements is not required (see, People v Berkowitz, 50 NY2d 333, 338, n 1).

The question remains, however, whether the question about defendant’s employment was "reasonably related to * * * administrative concerns” (Pennsylvania v Muniz, supra, at 601-602) and therefore falls within the scope of the pedigree exception to the notice requirement of CPL 710.30. Statements made in response to questions which are not directed solely to administrative concerns are subject to the requirements of CPL 710.30. Similarly, the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case (see, Pennsylvania v Muniz, 496 US, at 602, n 14, supra; Rhode Is. v Innis, 446 US 291, 301; People v Rivera, 26 NY2d, at 309, supra). Such questions fall outside the pedigree exceptions (see, e.g., United States v Parra, 2 F3d 1058 [questions regarding suspect’s true name posed to elicit information relevant to suspect’s immigration status, which was an essential element of the crime charged]; United States v Doe, 878 F2d 1546 [questions regarding citizenship required Miranda warnings when nationality was an element of the crime charged]). Thus, the mere claim by the People that an admission was made in response to a question posed solely as an administrative concern does not automatically qualify that admission for the pedigree exception to Miranda or exempt the People from the necessity of supplying a CPL 710.30 notice (see, e.g., People v Antonio, 86 AD2d 614 [questions about ownership of car were investigatory and thus subject to Miranda]; United States v Sims, supra [questions regarding ownership of airplane keys were investigatory, not administrative]).

In this case, the inquiry about defendant’s employment status comes within the exception. The arresting officer’s question was part of a routine booking form and was reasonably related to such administrative concerns as assignment of counsel, setting of bail, and the arraigning court’s determination whether to release defendant on his own recognizance (accord, United States v McLaughlin, supra). Accordingly, we find no error in the People’s failure to give notice of their intent to offer evidence of defendant’s statement that he was "in sales.” Although the question about defendant’s occupation is arguably related to the conduct for which defendant had been arrested, it was not a disguised attempt at investigatory interrogation, and was not reasonably likely to elicit an incriminating response from defendant. Indeed, the incriminating nature of defendant’s response arose from his apparent attempt to be humorous, and though the answer was incriminating, preclusion of the evidence is not required because the pedigree exception excuses the absence of CPL 710.30 notice.

We have reviewed defendant’s remaining contentions and find them without merit.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.