author: Titone, J. Alexander, J. Chief Judge Wachtler

text:
    The People of the State of New York, Respondent, v Patrick Hudy, Appellant.
    Argued October 17, 1988;
    decided December 22, 1988

      POINTS OF COUNSEL

      Thomas A. Saitta for appellant.
    I. The trial court violated the constitutional prohibition against ex post facto laws by retroactively applying the 1984 amendment which repealed the corroboration requirements of sections 130.16 and 260.11 of the Penal Law. (Calder v Bull, 3 Dallas [3 US] 386; Dobbert v Florida, 432 US 282; Beazell v Ohio, 269 US 167; Hopt v Utah, 110 US 574; People v Nival, 33 NY2d 391; People ex rel. Pincus v Adams, 274 NY 447; United States v Henson, 486 F2d 1292; Weaver v Graham, 450 US 24; Thompson v Missouri, 171 US 380; People v Spearman, 128 Misc 2d 112.) II. The trial court erred in permitting the People to present evidence that appellant had improperly touched a child who was not named in the indictment. (People v Allweiss, 48 NY2d 40; People v Hudy, 132 AD2d 134; People v Crandall, 67 NY2d 111; People v McKinney, 24 NY2d 180; People v Ventimiglia, 52 NY2d 350; People v Schwartzman, 24 NY2d 241; People v Bouton, 50 NY2d 130; People v Fuller, 50 NY2d 628; People v Thompson, 212 NY 249; People v James, 98 AD2d 863.) III. The trial court erred in refusing to permit appellant to call Investigator Kintner and Officer Barnard to testify with respect to their questioning of the children named in the indictment. (Chambers v Mississippi, 410 US 284; People v Gilliam, 45 AD2d 744, 37 NY2d 722; People v Murray, 79 AD2d 993; People v Thomas, 46 NY2d 100; People v Roth, 30 NY2d 99; People v Ely, 115 AD2d 171; People v Crandall, 48 AD2d 946; People v Brown, 26 NY2d 88; People v Gilland, 110 AD2d 1078; People v Hudy, 132 AD2d 134.)

      Gerald F. Mollen, District Attorney (Kevin P. Dooley of counsel), for respondent.
    I. The trial court did not violate the constitutional prohibition against ex post facto laws by retroactively applying the 1984 amendment which repealed the corroboration requirement of sections 130.16 and 260.11 of the Penal Law. (People v Johnson, 46 AD2d 55; Calder v Bull, 3 Dallas [3 US] 386; People v Nival, 33 NY2d 391; Hopt v Utah, 110 US 574; Thompson v Missouri, 171 US 380; Murphy v Sowders, 801 F2d 205; People v Linzy, 31 NY2d 99; People v Spearman, 128 Misc 2d 112; Dobbert v Florida, 432 US 282; Beazell v Ohio, 269 US 167.) II. The court properly admitted the testimony of a child not named in the indictment concerning incidents of sexual abuse by defendant. (People v Crandall, 67 NY2d 111.) III. The court was correct in limiting questioning of the investigating police officers by defendant to prior inconsistent statements of the victims. (People v Thomas, 46 NY2d 100; People v Cwikla, 46 NY2d 434; People v Stridiron, 33 NY2d 287; People v Roth, 30 NY2d 99; People v Brown, 26 NY2d 88; People v Leonard, 58 AD2d 1018; People v Bruno, 77
      AD2d 922; People v McIntyre, 71 AD2d 956; People v Ely, 115 AD2d 171.)
   OPINION OF THE COURT

Titone, J.

In 1984, the Legislature repealed the statutory provisions requiring corroboration of the victim’s testimony in certain sex-crime prosecutions involving underage victims (L 1984, ch 89, amending Penal Law former §§ 130.16, 260.11). We now hold that the Ex Post Facto Clause of the United States Constitution (US Const, art I, § 10; see also, art I, § 9, cl 3) does not preclude the application of this repealing enactment to prosecutions for crimes occurring before its effective date. Accordingly, in this prosecution for various sex-related crimes committed against young children, there was no constitutional impediment to applying the new statute and convicting defendant solely on the basis of the victims’ testimony, even though the charged crimes occurred before the repealing legislation became effective. However, defendant’s convictions must nonetheless be reversed, because two prejudicial trial errors tainted the fairness of his trial.

FACTUAL BACKGROUND

At the time of the alleged criminal incidents, defendant was a remedial math teacher at Glenwood Elementary School in Vestal, New York. Official concern about his classroom conduct was aroused when the younger brother of one of defendant’s former pupils, Matthew L., told his mother that he had heard about a teacher who puts his hands down boys’ pants. When questioned by his mother, Matthew confirmed that he had been fondled by defendant and that defendant had put his hands down other boys’ pants as well.

Understandably upset by this revelation, Mrs. L. sought to confirm the allegation by contacting the mother of another boy, Jason A., who had been in defendant’s class with Matthew. Matthew and Jason apparently discussed the matter on the school bus the next morning, for rumors about defendant’s misconduct had already spread to the school and reached the principal’s ears by the time Mrs. L. contacted him. Within a few weeks, the police became involved and launched a wider investigation into defendant’s conduct. Within a three-week period, the police had obtained inculpatory evidence from eight boys, all of whom were defendant’s students.

As a result, defendant was indicted on 23 counts of first degree sexual abuse and 9 counts of endangering the welfare of a child, all involving children under the age of 11. Seven of the sexual abuse counts were dismissed for either duplicity or lack of specificity. Of the remaining 25 counts, 19 involved incidents occurring between September 1983 and November 1984 and 6 involved incidents occurring between November 1984 and December 1985.

Before the commencement of trial, the trial court denied a CPL 190.65 motion by defendant to dismiss the 19 counts involving pre-November 1984 incidents on the ground that those counts were not supported by legally sufficient Grand Jury evidence. The motion was based on a defense contention that the Ex Post Facto Clause of the United States Constitution (US Const, art I, § 10, cl 1; see also, art I, § 9, cl 3) foreclosed application of the recently enacted statute repealing the corroboration rules that would otherwise have governed the trial on those counts (see, L 1984, ch 89, amending Penal Law former §§ 130.16, 260.10).

At defendant’s trial, which commenced on June 17, 1986, all eight of the children who had been interviewed by the police, as well as a ninth child, testified. With one exception, each boy described, in essentially similar terms, how he had stood behind defendant’s desk and had his penis touched or fondled by defendant while ostensibly receiving help with a math problem. David A., who was not himself abused, stated that, upon approaching defendant’s desk, he had seen defendant with his hand down Matthew L.’s pants.

Defense counsel closely cross-examined each of the prosecution witnesses as to whether he had discussed, or heard other students discuss, the allegations about defendant or had heard anything about the police investigation of defendant’s conduct. Additionally, each witness was questioned about his failure to report the alleged incidents at the time they occurred, as well as whether he liked or disliked defendant and whether he thought or heard that defendant was gay. These lines of questioning were intended to support the defense’s primary theory, first advanced in counsel’s opening statement, that a false accusation had begun when Matthew lied to his younger brother about defendant’s conduct and then felt a need to adhere to his story when questioned to avoid punishment. It was the defense’s position that after Matthew’s story first came to light it had snowballed, quickly spreading throughout the school and inciting other students to make similar — and equally unfounded — accusations.

In response to this defense contention, the People were permitted, over vigorous objection by the defense, to call an additional witness, one Domenick M., who had been in one of defendant’s classes but had moved to another State more than a year before the investigation into the present charges began. This witness testified that, like the others, he had been fondled by defendant while he was supposedly receiving help with a math problem at defendant’s desk. He further testified, in contrast to the others, that he had promptly reported the matter to his grandmother, who, in turn, had reported the matter to his mother. The grandmother also was permitted to testify about Domenick M.’s statements to her, her own statements to the boy’s mother and the letter that the mother had sent to defendant and the school psychologist in which she requested that the improper touching be stopped.

Although the trial court initially had misgivings about admitting this evidence of a prior uncharged crime, it ultimately determined that the testimony was admissible by analogy to the rule governing the use of a witness’s prior consistent statements. In the trial court’s view, Domenick M.’s testimony was admissible because it tended to rebut the defense theory that the current charges were the product of either a rumor or a conspiracy among the children who were in the school at the time Matthew L.’s accusation first surfaced.

After the prosecution rested, the defense called 12 witnesses, including defendant, several character witnesses and several teachers, who testified that they had never witnessed any sexual misconduct on defendant’s part although they often had occasion to be in his classroom. Defendant was not permitted, however, to call the two investigators, Officer Barnard and Investigator Kintner, who had originally interviewed the young victims. Defense counsel unsuccessfully argued that he should be permitted to question the officers about these initial interviews so that he could elicit that the boys’ testimony had been tainted by police suggestion. In support of his position, counsel pointed to the evidence that at least one of the boys, Kevin F., had first denied that any improper touching had occurred and then changed his mind after Investigator Kintner told him that the police had two witnesses who had seen such touching occur. Counsel also represented, based upon the police reports he had seen, that "there may be three or four, or five other such incidents.” Nonetheless, the trial court concluded that the proposed questioning was relevant only to the victims’ credibility and was therefore "collateral.” As a consequence, the court excluded all questioning of the investigating officers, with the exception of a brief series of leading questions concerning Investigator Kintner’s interview with Kevin F.

The jury found defendant guilty of all of the submitted charges. The Appellate Division, in a 3-2 decision, affirmed the judgment of conviction, holding that the present law did not require corroboration of the underage victims’ testimony and that the Ex Post Facto Clause of the Constitution did not foreclose application of the present law to charges involving crimes that had been committed before the law’s enactment. A majority of the court also rejected defendant’s arguments concerning the admission of Domenick M.’s testimony and the restriction of his right to question Officer Barnard and Investigator Kintner. Defendant was granted leave to take a further appeal by one of the dissenters at the Appellate Division.

DISCUSSION

I. Ex Post Facto

At the time defendant allegedly committed the crimes for which he was tried, Penal Law § 130.16 provided:

"A person shall not be convicted of consensual sodomy, or an attempt to commit same, or of any offense defined in [article 130] of which lack of consent is an element but results solely from incapacity to consent because of the alleged victim’s age, mental defect, or mental incapacity * * * solely on the testimony of the alleged victim, unsupported by other evidence tending to:

"(a) Establish that an attempt was made to engage the alleged victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the alleged occurrence; and

"(b) Connect the defendant with the commission of the offense or attempted offense.”

Penal Law former § 260.11 (amended L 1984, ch 89) applied the same corroboration requirement to the crime of endangering the welfare of a minor.

Effective November 1, 1984, the Legislature amended both statutes so that corroboration was no longer required in cases where the incapacity to consent resulted solely from the victim’s age. In defendant’s case, which involved 19 counts charging repeated sexual misconduct toward children occurring before November 1, 1984, most of the charges were supported only by the testimony of the underage victims. Thus, defendant could not properly have been convicted on those 19 counts under the former statutes, and we are squarely confronted with the question whether the amended versions of Penal Law §§ 130.16 and 260.11 may be applied to his case without running afoul of the constitutional prohibition against ex post facto laws.

The modern formulation of the ex post facto rule may be found in the three leading Supreme Court cases, Weaver v Graham (450 US 24), Dobbert v Florida (432 US 282) and Beazell v Ohio (269 US 167). One purpose of the rule is to assure that citizens have fair warning of what conduct will be punished so that they may rely on the explicit laws and tailor their conduct accordingly (Weaver v Graham, supra, at 28-29; Dobbert v Florida, supra, at 297). The ban on ex post facto laws also serves to restrain "arbitrary and potentially vindictive legislation” (Weaver v Graham, supra, at 29; accord, Malloy v South Carolina, 237 US 180, 183; Kring v Missouri, 107 US 221, 229).

The critical elements necessary to establishing that a criminal or penal law is ex post facto are its retrospectivity and its detrimental effect on the accused (Weaver v Graham, supra, at 29; Dobbert v Florida, supra, at 297; Lindsey v Washington, 301 US 397, 401). However, not every retrospective application of a new enactment that impairs a criminal defendant’s rights is violative of the Ex Post Facto Clause. The constitutional prohibition extends to "any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed” (Beazell v Ohio, supra, at 169). Further, "the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation * * * and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance” (Beazell v Ohio, supra, at 171). Thus, "[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto” (Dobbert v Florida, supra, at 293 [emphasis supplied]).

If this distinction between procedural and substantive changes in the law were mechanically applied, there would be no doubt that the repeal of corroboration laws would not be encompassed within the Ex Post Facto Clause, since such laws do not add to the legislatively defined crimes, do not alter the elements of existing crimes, do not elevate the punishment for existing crimes and are generally treated as "procedural” rules of evidence (see, People v Linzy, 31 NY2d 99, 102-103; People v Blank, 283 NY 526, 528). However, the seemingly simple distinction between matters of mere procedure and matters of substantive penal significance has not been so easy to apply in practice. As was recognized in Thompson v Utah (170 US 343, 354-355), labels are not particularly helpful in this area of constitutional analysis, since changes affecting the penalty for or the substance of a crime may easily be disguised as procedural enactments (see, e.g., Miller v Florida, 482 US 423; Weaver v Graham, supra; see also, Gibson v Mississippi, 162 US 565,590). Further, some procedural changes may have such a profound detrimental impact on the defense that they cannot fairly be disregarded (see, e.g., Kring v Missouri, supra). Consequently, the courts have struggled to define the types of changes in the law that, although labeled "procedural,” will nonetheless be treated as ex post facto laws if given retrospective effect (see, Beazell v Ohio, supra, at 171).

In this regard, there have been two discernible lines of analysis. The first of these considers so-called "procedural” changes to be ex post facto if they impair a "substantial right” of the defendant (see, Weaver v Graham, supra, at 29, n 12; see generally, Tribe, American Constitutional Law § 10-3). The Supreme Court has used this approach to invalidate retroactive application of new procedural rules on only two occasions (Kring v Missouri, supra [invalidating retroactive use of former rule absolutely prohibiting retrial on higher count after conviction of lesser included offense] [described as a "substantial right” case in Hopt v Utah, 110 US 574, 589; and Thompson v Missouri, 171 US 380, 384-385]; Thompson v Utah, supra [invalidating reduction in number of jurors necessary for felony trial, as applied to crime committed before change in law occurred]). However, the court has twice rejected ex post facto challenges based on the "substantial right” theory to changes in evidentiary rules governing the admissibility of certain classes of evidence (see, Hopt v Utah, 110 US 574, 590, supra [felons’ testimony]; Thompson v Missouri, supra, at 386-388 [handwriting authentication]; see generally, Note, Ex Post Facto Limitations on Changes in Evidentiary Law: Repeal of Accomplice Corroboration Requirements, 55 Fordham L Rev 1191). A fortiori, the theory, whose scope is generally somewhat elusive, has no application in this case, which concerns a change in a rule requiring corroborative proof for what is otherwise competent and admissible testimonial evidence.

The second available approach has its origins in Justice Chase’s seminal opinion in Calder v Bull (3 Dallas [3 US] 386, 390 [emphasis supplied]), in which he stated that the concept of an ex post facto law includes "[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” In Hopt v Utah (supra, at 590 [emphasis supplied]), the Supreme Court reiterated, in dictum, this concern about retroactive reductions in the quantum of evidence required: "Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed, might, in respect of that offence, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt, but — leaving untouched the nature of the crime and the amount or degree of proof essential to conviction * * * relate to modes of procedure only * * *. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offence charged.”

While the Supreme Court has often cited this dictum, and the discussion in Calder (supra) on which it was based (see, e.g., Dobbert v Florida, supra, at 294; Thompson v Missouri, supra, at 385-386), the court has never actually applied it to invalidate a retrospective change in an evidentiary rule (see, Note, Ex Post Facto Limitations on Changes in Evidentiary Law, op. cit.). Nonetheless, the Hopt-Calder dictum has been relied upon by other courts as a basis for invalidating retrospective application of modern statutes abolishing outdated corroboration rules (Government of Virgin Is. v Civil, 591 F2d 255; Bowyer v United States, 422 A2d 973 [DC Ct App]; State v Schreuder, 726 P2d 1215 [Utah]; State v Byers, 102 Idaho 159, 627 P2d 788; but see, Murphy v Sowders, 801 F2d 205; Commonwealth v Phillips, 655 SW2d 6 [Ky]; Murphy v Commonwealth, 652 SW2d 69 [Ky]; see also, Murphy v Kentucky, 465 US 1072 [White, J., dissenting from denial of certiorari in Commonwealth v Phillips, supra; and Murphy v Commonwealth, supra]). We conclude, however, that this reliance is misplaced and that, to the extent that the Calder-Hopt reference to the quantum of proof is still viable, it has no application to the repealing legislation at issue here.

Plainly, Hopt’s reference to procedural changes reducing the "degree” of required proof meant changes in the standard that the fact finder must use to evaluate whether guilt has been established (see, e.g., De Woody v Superior Ct., 8 Cal App 3d 52, 87 Cal Rptr 210; cf., State v Moyer, 387 A2d 194 [Del]; see also, Cummings v Missouri, 4 Wall [71 US] 277). In other words, the references in those early writings to reductions in the quantum of evidence principally concerned retrospective reductions in the People’s burden of proof (see, Murphy v Sowders, supra). The legislation abolishing the corroboration requirement in this case plainly does not alter the People’s burden of convincing the fact finder beyond a reasonable doubt of defendant’s guilt. Hence, it is not the type of procedural change that was contemplated in Hopt and Calder.

It is often argued that when the Hopt court referred to reductions in the "amount or degree” of proof (110 US, at 589, 590, supra [emphasis supplied]), it had two distinct concepts in mind and that, consequently, the term "amount” of proof must mean something different than merely the standard by which guilt must be proven. In this connection, reliance is often placed upon Justice Chase’s inclusion in the evils to which the Ex Post Facto Clause was addressed of legislative measures that "violated the rules of evidence * * * by admitting one witness when the existing law required two” (Calder v Bull, 3 Dallas [3 US], at 389, supra). Despite its superficial appeal in cases involving corroboration rules, however, this dictum is unhelpful to defendant’s position because it actually refers to an unrelated legal phenomenon that is unknown in modern American law: the "rule of number,” which was directly related to the prosecuting authority’s substantive burden of proof.

It seems doubtful that the Supreme Court would extend this aspect of the Calder-Hopt dictum, which concerns a particular oppressive historic practice that is long since forgotten, and use it as a basis for invalidating modern laws eliminating corroboration requirements. These corroboration rules are not the natural descendants of the rigid "rule of numbers.” They have no equivalent in early common law, are principally creatures of statute and were intended simply to ensure the reliability of convictions based upon otherwise competent and legally sufficient evidence (see, People v Fuller, 50 NY2d 628, 635; People v Gibson, 301 NY 244, 245; Younger, The Requirement of Corroboration in Prosecutions for Sex Offenses in New York, 40 Fordham L Rev 263, 264, n 5). Moreover, extension of the seldom-invoked "procedural” aspect of the ex post facto ban to laws abrogating corroboration rules would not serve the fundamental purposes of the constitutional prohibition, as expressed in the recent Supreme Court opinions.

Defendant had ample notice that the conduct in which he engaged was prohibited and that, if convicted, he could be punished within certain legislatively prescribed guidelines. He had no legitimate right to rely on a procedural rule that affected neither his culpability nor his expected punishment but instead merely made the prosecution’s case against him more difficult to prove. Indeed, as in Thompson v Missouri (supra, at 387), the repeal of the corroboration rule "did nothing more than remove an obstacle arising out of a rule of evidence”. Finally, there is no claim that the legislative decision to repeal the corroboration rule applicable to defendant’s case was arbitrary, vindictive or oppressive or that it was intended to single out defendant for particularly unfavorable treatment. Accordingly, the Ex Post Facto Clause has no application here, and defendant was lawfully convicted of the charged crimes even without proof to corroborate the underage victims’ stories.

II. The Trial Errors

Having concluded that the evidence at defendant’s trial was legally sufficient to support his convictions, we turn now to defendant’s claims regarding the trial court’s evidentiary rulings. Defendant contends that the trial court erred in permitting the prosecutor, over defense counsel’s objection, to elicit evidence that defendant had committed similar acts of sexual abuse with Domenick M., a former pupil who had since moved away from the community. He also contends that the court’s refusal to permit him to question the police investigators about their interviews with the child-witnesses was improper and prejudicial. We agree with defendant’s position on both issues.

A. The Domenick M. Evidence

The evidence concerning defendant’s prior misconduct with Domenick M. had no relevance to any material issue in the case and tended only to demonstrate defendant’s general criminal propensity. Hence, it should have been excluded under People v Molineux (168 NY 264) and the subsequent decisions applying the principles set forth in that case.

It is elementary that evidence of a defendant’s prior criminal or immoral conduct is inadmissible if it cannot logically be linked to some specific material issue in the case (see, e.g., People v Lewis, 69 NY2d 321, 325; People v Ventimiglia, 52 NY2d 350, 359; People v Santarelli, 49 NY2d 241; People v Allweiss, 48 NY2d 40, 46-47). Although such evidence has some minimal probative worth because of its tendency to demonstrate the defendant’s bad character and general criminal propensity, it is excluded as a matter of law when it has no additional relevance to a specific issue, because there is a very real danger that the trier of fact will overestimate its significance (see, People v Allweiss, 48 NY2d 40, 46, supra; 1A Wigmore, Evidence § 58.2, at 1212 [Tillers rev ed]).

Admissibility of evidence under these principles is determined by reference to a two-part inquiry (People v Alvino, 71 NY2d 233, 242; People v Allweiss, supra, at 46-47). The first level of this inquiry requires the proponent of the evidence, as a threshold matter, to identify some issue, other than mere criminal propensity, to which the evidence is relevant (People v Lewis, 69 NY2d 321, 325, supra). Once such a showing is made, the court must go on to weigh the evidence’s probative worth against its potential for mischief to determine whether it should ultimately be placed before the fact finder. This weighing process is discretionary, but the threshold problem of identifying a specific issue, other than propensity, to which the evidence pertains poses a question of law (People v Alvino, supra, at 242).

Whether prior crime evidence is actually being offered to prove propensity alone is often a subtle matter in which semantics sometimes plays an important part. For example, we recently held in People v Lewis (supra) that evidence of prior sexual contact with the same "victim,” traditionally admitted under the rubric of "amorous design,” was really no more than a form of propensity evidence hiding behind an assumed name and should no longer be permitted. A similar analysis applies here.

The Domenick M. testimony was offered at defendant’s trial to show that the children’s charges against defendant were not simply the product of rumor. The prosecution’s theory was that since Domenick M. had made his accusations against defendant long before the Matthew L. story surfaced, his accusations had the ring of truth and lent credibility to the other boys’ charges. However, defendant’s misconduct toward Domenick M. in the past has no legitimate, legally cognizable bearing on the truthfulness of the other children’s allegations. As was stated in People v Katz (209 NY 311, 328), "[s]imple proof showing that A. shot B. at one time and place throws no light upon the charge that A. poisoned C.” Similarly, proof that Domenick came forward and accused defendant of sexual misconduct before any rumors occurred and may therefore have been telling the truth may tend to support the credibility of Domenick M.’s accusation, but it throws no light upon the truthfulness of the other boys who subsequently accused defendant — except, of course, to the extent that defendant’s misconduct toward Domenick M. makes it more likely that he also engaged in similar misconduct with others.

At best, this line of reasoning is a variation on the "amorous design” theme that we rejected in Lewis. In truth, it is simply another, subtler, way of saying "if defendant did it once to Domenick, he would do it again; therefore he probably abused the other children.” Since this line of reasoning is nothing more than a disguised "propensity” argument, it falls within the core of what the Molineux rule prohibits and should therefore have been excluded.

Finally, the Domenick M. evidence was highly prejudicial and therefore not "harmless,” despite the fact that eight other boys recounted essentially the same story. The Domenick M. evidence was qualitatively different from the testimony of the other boys, in that it was not subject to impeachment under the defense’s "rumor” theory. Because of the relative strength of this evidence, particularly as it was bolstered by the grandmother’s corroborative testimony, there is a serious danger that the jury used it to draw the impermissible inference ("he did it before, so he probably did it this time too”) and to resolve any doubts it might otherwise have had about the other boys’ stories in the People’s favor. Again, it is precisely this type of result that the Molineux rule was adopted to prevent.

B. The Investigating Officers’ Testimony

We also conclude that defendant was improperly denied the right to present his case by the trial court’s ruling foreclosing examination of the two investigating officers about the manner in which the child-witnesses were first questioned. It is well established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters (see, e.g., People v Sorge, 301 NY 198). However, extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground (see, Richardson, Evidence § 503 [Prince 10th ed]; cf., People v Thomas, 46 NY2d 100 [proof offered to establish motive to fabricate too remote]). Further, the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers (see, Davis v Alaska, 415 US 308; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; Pointer v Texas, 380 US 400; People v Gissendanner, 48 NY2d 543, 546).

Here, both the constitutional and the evidentiary rules were breached when the trial court precluded defense counsel from questioning the police officers in the manner proposed. Defense counsel had a good-faith basis for the proposed line of questioning, and no one challenges the bona tides of his claim, which was based upon statements in the investigators’ reports (see, People v Gilliam, 37 NY2d 722, revg on dissent below 45 AD2d 744 [Hopkins, J.]). Although the trial court concluded that the proposed line of questioning was "collateral,” its conclusion is obviously flawed, since the questioning concerned more than the credibility of the People’s witnesses in general and went instead to a possible reason for fabrication by these impressionable witnesses, i.e., the investigators’ suggestive comments.

For that reason, the fact that defendant had a limited opportunity to explore the matter during his cross-examination of the child-witnesses does not cure the error in the court’s evidentiary ruling. Indeed, the evidentiary error lies precisely in the trial court’s refusal to permit extrinsic proof of a matter that went beyond a mere attack on the witnesses’ general credibility.

Further, contrary to the suggestion of the dissent, the information defense counsel sought to elicit from the investigating officers was not duplicative of the admissions he elicited from some of the child-witnesses that they had changed their stories after police questioning. Both the two children who had made such admissions and the other children who had given a detailed story for the first time after police questioning were potentially subject to impeachment on the theory that their stories had been influenced by what they had heard from the investigators. Although defense counsel attempted to explore the possibility of suggestive police comments during his cross-examination of the child-witnesses, his efforts were met with flat denials. These denials might well have been materially impeached if defense counsel had been permitted to question Investigator Kintner and Officer Barnard about their comments to these impressionable young boys.

Finally, there is no theory under which the error can be considered harmless. The issue of the manner in which the police had interviewed all of the young victims and the possibility that there had been a degree of suggestiveness in their approach went to the heart of defendant’s case. The limited questioning which the court permitted concerning the manner in which one of the witnesses, Kevin F., had been interviewed was no substitute for the broader inquiry that was improperly precluded. Further, because defendant was precluded from questioning the police officers about the manner in which the boys had been interviewed, his ability to develop the defense theory was seriously curtailed and the prosecutor was placed in a position to argue on summation that any defense contention concerning the victims’ motive to falsify was purely speculative.

The combination of the trial court’s decision to exclude the officers’ testimony as collateral and its decision to permit an extended excursion into defendant’s prior sexual misconduct with Domenick M. resulted in a trial that was decidedly skewed in the People’s favor. On the one hand, the prosecution was permitted to introduce highly prejudicial evidence of defendant’s past crime on the theory that it somehow bolstered the other child-witnesses’ credibility. On the other hand, when the defense sought to introduce proof that might have had a direct impeaching impact on the same witnesses’ credibility, its efforts were rebuffed.

Contrary to the dissenters’ suggestion, the resulting imbalance cannot be justified on the theory that the People should be given "leeway * * * to overcome the difficulties of proof inherent in prosecutions of this nature” (dissenting opn, at 73). There will always be cases that are difficult to prove because of their peculiar facts. However, the particular difficulties of proof that inhered in this category of cases were diminished when the special corroboration requirements were repealed. Further relaxation of the rules of evidence is not warranted.

CONCLUSION

The Ex Post Facto Clause of the United States Constitution does not require that a defendant be tried under the corroboration rules that existed at the time his alleged crimes were committed. Accordingly, the amended versions of Penal Law §§ 130.16 and 260.11 were properly applied at defendant’s trial, and the evidence was legally sufficient to support the jury’s verdicts, notwithstanding that most of the charges were not supported by corroborative proof. We nonetheless hold that because the trial court’s erroneous evidentiary rulings were highly prejudicial, the conviction that was based on those verdicts cannot be permitted to stand.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Alexander, J.

(concurring). I agree that County Court erred in admitting the testimony of Domenick M. and in denying the defense an opportunity to call the two investigators who initially interviewed the child victims. Accordingly, I concur in the majority decision to reverse defendant’s convictions on those grounds. I write separately, however, to express my disagreement with the majority’s conclusion that defendant’s conviction was not obtained in violation of the Ex Post Facto Clause. Amended Penal Law §§ 130.16 and 260.11 did more than remove a testimonial disability to the competency of the child witnesses; by eliminating the corroboration requirement, the amended statute reduced the amount of evidence necessary to establish defendant’s guilt beyond a reasonable doubt. As such, retroactive application of the amended statutes deprived the defendant of a substantial right and violated the Ex Post Facto Clause.

I

Effective November 1, 1984, the Legislature amended Penal Law §§ 130.16 and 260.11 to eliminate the corroboration requirement for the testimony of a victim of a sex offense for which lack of consent is based upon the victim’s age (L 1984, ch 89). Prior to this amendment, Penal Law § 130.16 provided:

"A person shall not be convicted of consensual sodomy, or an attempt to commit the same, or of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the alleged victim’s age, mental defect, or mental incapacity, or an attempt to commit the same solely on the testimony of the alleged victim, unsupported by other evidence tending to:

"(a) Establish that an attempt was made to engage the alleged victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the alleged occurrence; and

“(b) Connect the defendant with the commission of the offense or attempted offense.”

Former section 260.11 of the Penal Law applied this corroboration requirement to charges of endangering the welfare of a child. These amendments were considered “vital for the effective prosecution of sex crimes against children” (L 1984, ch 89, Legislative Mem, 1984 McKinney’s Session Laws of NY, at 3129) and were intended to “correctQ [a] deficiency in the law” which prevented prosecutors from obtaining sufficient evidence for conviction (L 1984, ch 89, Executive Dept Mem, 1984 McKinney’s Session Laws of NY, at 3580).

Defendant was indicted and tried, after the effective date of the amendments to these statutes, on 16 counts of sexual abuse in the first degree and 9 counts of endangering the welfare of a child, which involved alleged incidents with eight boys. The boys, between the ages of 10 and 12, testified that defendant had touched their private parts on one or more occasions in defendant’s classroom. The testimony of seven of the boys was uncorroborated, while the testimony of Matthew L. was corroborated to the extent that David A. testified that on one occasion he saw defendant touching Matthew while Matthew was at defendant’s desk.

The incidents forming the basis of 19 of the 25 counts occurred before the effective date of the amendments to former sections 130.16 and 260.11 of the Penal Law. Defendant argued, first in a pretrial motion under CPL 190.65 to dismiss the indictment for insufficient evidence, and later in a motion to dismiss for failure to establish a prima facie case, that retroactive application of amended Penal Law §§ 130.16 and 260.11 to his trial on these counts was ex post facto. County Court denied both motions and applied the amended statutes. Defendant was subsequently convicted on all the charged counts.

II

Article I of the United States Constitution provides that neither Congress nor any State shall pass any "ex post facto law” (US Const, art I, § 9, cl 3; § 10, cl 1). As the Supreme Court recently noted (see, Miller v Florida, 482 US 423, 429-431), our understanding of the clause is derived from Justice Chase’s opinion in Calder v Bull (3 Dallas [3 US] 386, 390 [1798]) which described four types of laws as ex post facto: "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Justice Chase further noted (at 391): “But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or increase the punishment, or change the rules of evidence, for the purpose of conviction”.

Calder and subsequent cases identified several policies served by the prohibition of ex post facto legislation. First, the clause was intended to curb arbitrary and oppressive abuses of legislative power (Calder v Bull, 3 Dallas [3 US], at 390, supra; Miller v Florida, 482 US, at 429-431, supra; Weaver v Graham, 450 US 24, 29; Dobbert v Florida, 432 US 282, 293; Beazell v Ohio, 269 US 167, 171; Malloy v South Carolina, 237 US 180, 183), and particularly “ 'to secure substantial personal rights against arbitrary and oppressive legislation’ ” (Dobbert v Florida, 432 US, at 293, supra; Beazell v Ohio, 269 US, at 171, supra; Malloy v South Carolina, 237 US, at 183, supra). Second, the clause serves the policy of ensuring that legislative enactments " 'give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed’ ”, thus giving the populace notice of what conduct is criminal (Miller v Florida, 482 US, at 430, supra [quoting Weaver v Graham, 450 US 24, 28-29, supra]). Third, the clause "upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal law” (Weaver v Graham, 450 US, at 29, n 10, supra).

Miller v Florida (482 US, at 430, supra [quoting Weaver v Graham, 450 US 24, 29, supra]) articulated the current test for determining when a law is ex post facto: the law must be " 'retrospective’ ” and " 'it must disadvantage the offender affected by it.’ ” Merely procedural changes, however, which “ 'do not affect matters of substance’ ” (Dobbert v Florida, 432 US, at 293, supra), are not ex post facto even if they disadvantage the offender. Nevertheless, a change in the law which deprives the accused of a substantial right is ex post facto because it is "not merely procedural, even if [it] takes a seemingly procedural form” (Weaver v Graham, 450 US, at 29, n 12, supra; see also, Miller v Florida, 482 US, at 430, supra; Kring v Missouri, 107 US 221, 232).

Here, there is no question that amended Penal Law §§ 130.16 and 260.11 were applied retroactively to disadvantage the defendant. The former Penal Law provided that no person could be convicted of an offense defined in Penal Law article 130, of which lack of consent was an element, based solely on the testimony of the alleged victim (Penal Law former §§ 130.16, 260.11). Instead, such testimony was not sufficient to support a conviction unless it was corroborated by other evidence establishing the offense and connecting the defendant with its commission (Penal Law former § 130.16). The amended Penal Law eliminated this corroboration requirement, and its application to defendant’s case resulted in his conviction on 18 of the 19 affected counts absent any corroboration of the victim’s testimony. The issue, then, is whether the amended Penal Law’s repeal of the corroboration requirement was, as the People contend, merely a change in procedure, or a change that deprived the defendant of a substantial right and therefore ex post facto.

The majority, however, refuses to address this issue, concluding that the substantial rights analysis "has no application in this case” because the corroboration requirement is a rule of evidence (majority opn, at 50). They base this sweeping conclusion merely on the assertion that the Supreme Court has twice rejected ex post facto challenges to changes in rules of evidence. This reasoning misconstrues the Supreme Court case law which has always employed the substantial rights analysis in considering ex post facto challenges to changes in evidentiary rules. Kring v Missouri (107 US 221, supra) held that a change in an evidentiary rule which eliminates a complete defense to a criminal charge deprives the defendant of a substantial right and is ex post facto if retroactively applied. There, the court struck down the retroactive abrogation of an evidentiary rule treating a defendant’s conviction of a lesser included offense as conclusive evidence of innocence on the greater offense (id., at 228-229). Hopt v Utah (110 US 574) and Thompson v Missouri (171 US 380), relied on by the majority, also employed the substantial rights analysis, but determined that the evidentiary changes at issue there were not ex post facto because they did not deprive the defense of any substantial rights. The majority offers no justification for its departure from this established case law; indeed, they cannot explain why retroactive changes in evidentiary rules should be subject to a different constitutional analysis than any other seemingly procedural changes. Moreover, application of the proper constitutional analysis here leaves no doubt that the retroactive repeal of the corroboration requirement deprived the defendant of a substantial right.

While the difference between substance and procedure may sometimes be "elusive” (Miller v Florida, 482 US, at 433, supra), changes in evidentiary rules such as the corroboration requirement of Penal Law former §§ 130.16 and 260.11 must be considered in light of the explicit language of Calder v Bull (3 Dallas [3 US], at 390, supra) which recognizes as ex post facto: "Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Hopt (110 US, at 590, supra), holding that the retroactive application of a statute permitting the admission of previously barred testimony did not deprive the defense of a substantial right, distinguished the situation described in Calder. Hopt specifically noted that a change increasing the class of persons competent to testify did not authorize a conviction upon less evidence, explaining: "Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed, might, in respect of that offence, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not * * * change the ingredients of the offence or the ultimate facts necessary to establish guilt, but — leaving untouched * * * the amount or degree of proof essential to conviction — only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only * * * and which the State, upon grounds of public policy, may regulate at pleasure” (110 US, at 590, supra [emphasis added]). The import of Hopt, then, is that those changes in the legal rules of evidence which allow conviction upon a lesser amount or degree of proof deprives the defense of a substantial right and are ex post facto. Contrary to the majority’s assertion, this rule does not require that all retroactive changes in the rules of evidence be treated as ex post facto. Thompson v Missouri (supra) explained that an evidentiary change deeming a previously inadmissible type of evidence admissible did not deprive the accused of a substantial right when the change did not authorize conviction upon less proof and was applied equally to the defense and the prosecution (171 US, at 387-388, supra). Further, in People v Nival (33 NY2d 391, 396), we followed this rule, upholding the retroactive application of a statute permitting the admission of a trial witness’ previously inadmissible identification testimony. We concluded that the statute was not ex post facto because it did not "change the rules of evidence so as to require a lesser amount of evidence or evidence of different facts in order to convict” (id.).

Here, the corroboration requirement eliminated by the amended Penal Law is among the types of retroactive evidentiary changes prohibited by Calder. The former Penal Law provided that no conviction could be obtained absent the requisite corroborating evidence (see, Penal Law former §§ 130.16, 260.11). The amendments, therefore, changed the rule of evidence to reduce the amount of evidence necessary for conviction and thus to satisfy the reasonable doubt standard. Under the plain meaning of Calder therefore, they are ex post facto. In changing the amount of evidence required to satisfy the reasonable doubt standard, they impaired defendant’s right to require the People to prove his guilt beyond a reasonable doubt, a right which is unquestionably substantial (see, In re Winship, 397 US 358 [due process requires proof of criminal charge beyond a reasonable doubt]). Further, unlike Hopt and Thompson v Missouri (supra), this change did not apply equally to the prosecution and the defense; it was intended to and did benefit only the prosecution by making it easier to convict accused sex offenders (see, L 1984, ch 89, Executive Dept Mem, 1984 McKinney’s Session Laws of NY, at 3580). Most jurisdictions considering the issue conclude, and I agree, that a retroactive abrogation of a corroboration requirement deprives a criminal defendant of a substantial right and is ex post facto (see, Government of Virgin Is. v Civil, 591 F2d 255 [3d Cir]; Bowyer v United States, 422 AD2d 973 [DC Ct App]; State v Schreuder, 726 P2d 1215 [Utah]; State v Byers, 102 Idaho 159, 627 P2d 788).

Those jurisdictions holding otherwise (see, Murphy v Sowders, 801 F2d 205 [6th Cir]; Murphy v Commonwealth, 652 SW2d 69 [Ky]; see also, People v Spearman, 128 Misc 2d 112), reason that the abrogation of a corroboration requirement simply enlarges the class of persons competent to testify and under Hopt is not ex post facto. Thus, Spearman (128 Misc 2d, at 115, supra), held that the Ex Post Facto Clause did not prohibit the retroactive abrogation of the corroboration requirement at issue here, reasoning that, as in Hopt, the corroboration requirement was merely a testimonial disability of the child victims. In Hopt (110 US 574, supra), however, the permissible retroactive change authorized the admission of the testimony of convicted felons, who, at common law were not competent to testify (see, Richardson, Evidence §§ 386, 393 [Prince 10th ed]). Unlike a witness’ status as convicted felon, the corroboration requirement does not relate to the competency of the witness to testify; rather, it relates to the amount of proof necessary to satisfy the reasonable doubt standard. Penal Law former § 130.16 provides simply that "[a] person shall not be convicted * * * solely on the testimony of the alleged victim, unsupported by other evidence tending to” establish the offense and identify the defendant with its commission. That statute imposed a "testimonial disability” only in the sense that the victim’s testimony, alone, was not legally sufficient evidence to sustain a conviction (see, People v Linzy, 31 NY2d 99). This clearly is not the testimonial disability contemplated by Hopt; thus, the repeal of the corroboration requirement does not fall squarely within the rule of Hopt because it does not simply enlarge the class of persons competent to testify.

The majority argues that the Hopt prohibition of conviction upon "less proof, in amount or degree” (110 US, at 590, supra [emphasis added]) refers only to retroactive reductions in the People’s burden of proof and therefore is inapplicable here. This argument is flawed in several respects. First, this interpretation of Hopt ignores its plain language which indicates that the concepts of "amount of proof’ and "degree of proof’ are distinct and that the Ex Post Facto Clause bars retroactive reductions in either. Second, nothing in either Hopt or Calder supports the majority’s attempt to dismiss the plain reference to "amount * * * of proof’ as relating merely to an outdated English common-law concept of the "rule of number” (see, majority opn, at 52, 53). While Calder’s description of the abuses of the British Parliament referred to the admission of "one witness, when the existing law required two” (Calder v Bull, 3 Dallas [3 US], at 389, supra), there is no indication that in interpreting the United States Constitution to bar the retroactive application of laws which "change the rules of evidence, for the purpose of conviction” (id., at 391), the court referred only to the rule of number. Similarly, there is no indication that Hopt’s prohibition of retroactive reductions in the "amount of proof’ refers to the English "rule of number”. Third, the majority cannot fairly avoid the rule of Hopt by urging that the concepts of "amount of proof’ and "degree of proof’ are the same. While the concepts are plainly distinct, they are, as discussed above, related. Here, the repeal in the corroboration requirement resulted in less evidence both in amount and degree because the repeal changed the definition of evidence legally sufficient to satisfy the reasonable doubt standard of proof.

Finally, the retroactive application of amended Penal Law §§ 130.16 and 260.11 to defendant’s trial does not satisfy the Constitution simply because defendant had ample notice that his conduct was criminal and could be punished within legislatively prescribed guidelines. Although the clause was intended to give fair warning of the effects of criminal statutes, it was also intended to secure substantial personal rights against arbitrary and oppressive legislation, even when that legislation takes a seemingly procedural form. (Dobbert v Florida, 432 US, at 293, supra; Beazell v Ohio, 269 US, at 171, supra; Malloy v South Carolina, 237 US, at 183, supra.) Furthermore, the Supreme Court has twice held that seemingly procedural changes, which did not change the elements of the crime or the prescribed punishment, deprived the defense of substantial rights and were ex post facto (see, Thompson v Utah, 170 US 343, supra [retroactive change in number of jurors is ex post facto]; Kring v Missouri, 107 US 221, supra [retroactive change in evidentiary presumption is ex post facto]).

Here, the retroactive application of amended Penal Law §§ 130.16 and 260.11 was a change in the rules of evidence authorizing a conviction upon less evidence. This change impaired the defendant’s substantial right to require the People to prove his guilt beyond a reasonable doubt by changing the definition of the amount of evidence that satisfies that standard. Accordingly, I conclude that defendant’s conviction was unconstitutionally obtained because the retroactive abrogation of the corroboration requirement, as applied to defendant, was ex post facto.

Chief Judge Wachtler

(dissenting). I dissent and vote to affirm because, in my view, there was no legal error in the trial court’s evidentiary rulings requiring a new trial.

I agree with the majority that application of the 1984 amendment to Penal Law § 130.16 to this case does not violate the constitutional prohibition of ex post facto laws (US Const, art I, § 10). An ex post facto law is one "which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed” (Beazell v Ohio, 269 US 167, 169). Simply put, repeal of the corroboration requirement formerly contained in Penal Law § 130.16 accomplished none of these forbidden objectives (see, People v Spearman, 128 Misc 2d 112). Thus, the evidence was sufficient to sustain the conviction, even though corroboration was lacking with respect to many of the charges.

The majority nonetheless reverses the conviction, holding that the Trial Judge erred in two respects: (1) allowing the People to elicit testimony that defendant had committed similar uncharged acts of sexual abuse with Domenick M. and (2) precluding defendant from examining the two investigating officers about the manner in which the child-witnesses were first questioned. In my view, both of these rulings involved exercises of the trial court’s discretion with which this court cannot and should not interfere.

Turning first to the proposed testimony by the investigating officers, I agree that, because the evidence concerned the child-witnesses’ reason to fabricate, it was not collateral. That does not mean, however, that its exclusion was error.

A trial court may not exclude all such evidence, but it may, in its discretion, limit its quantity (see, People v McDowell, 9 NY2d 12, 15). Here, the witnesses that defendant sought to impeach with the proffered evidence admitted on cross-examination that they had at first told the investigating officers that defendant had not touched them but changed their stories after further questioning. This was the very evidence that defendant sought to elicit from the investigating officers.

Where the facts underlying a witness’s reason to fabricate are admitted by the witness, extrinsic proof of those facts may properly be excluded, in the court’s discretion, on the ground that it would be cumulative (People v Brooks, 131 NY 321, 326-327; McCormick, Evidence § 40, at 88-89 [3d ed]). Thus, the trial court acted within the bounds of its discretion in excluding the officers’ testimony and that ruling provides no basis for upsetting the conviction.

Neither was the admission of Domenick M.’s testimony reversible error. Of course, evidence of uncharged crimes must be examined carefully to ensure that it bears sufficient relevance to a material issue in the case and is not offered simply to demonstrate the defendant’s bad character. The rule of People v Molineux (168 NY 264) calls for such care. It does not call for a phobic reaction to all evidence of uncharged crimes. It is such a reaction, it appears to me, that blinds the majority to the obvious relevance of Domenick’s testimony in rebuttal to the defendant’s rumor theory.

We usually begin our analysis of such matters, appropriately, with the general rule that all evidence is admissible if it is relevant — that is, if it has any tendency in reason to prove any material fact (People v Lewis, 69 NY2d 321, 325). It is also elementary that, though relevant, evidence may nonetheless be excluded if its probative value is outweighed by other considerations, such as undue prejudice, delay, or needless presentation of cumulative evidence (see generally, McCormick, Evidence § 185, at 544-545 [3d ed]).

The Molineux rule is concerned with evidence that the defendant committed crimes for which he is not on trial. It is generally recognized that such evidence is not without probative value. In human reason, such evidence has a tendency to prove that the defendant is guilty of the crime charged, because one who has a record of bad acts is, according to human experience, more likely to commit another than is a person who has led a blameless life (1A Wigmore, Evidence § 58.1, at 1211, n 2 [Tillers rev ed]).

When offered for the sole purpose of demonstrating the defendant’s bad character or his propensity towards crime, however, evidence of uncharged crimes is per se inadmissible. That is the thrust of the Molineux rule. It is a rule of policy, not logic (People v Allweiss, 48 NY2d 40, 46). As Wigmore notes (op. cit., § 58.2, at 1212): "It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much. The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused’s guilt of the present charge.” Thus, the Molineux rule is a policy-based exception to the general rule that relevant evidence is admissible. It is, in effect, a ready-made balancing of prejudice versus probative value. If the only relevance of the evidence is to show defendant’s propensity, no further inquiry is necessary — the unfair prejudice is too great.

None of this is new, of course. We have stated these principles repeatedly in recent years (see, e.g., People v Alvino, 71 NY2d 233, 241-242; People v Lewis, supra; People v Beam, 57 NY2d 241, 250-251; People v Ventimiglia, 52 NY2d 350, 359; People v Allweiss, 48 NY2d 40, 46-47, supra). But it is important to remember that the exclusionary rule of Molineux is itself an exception to the general rule. Thus, the so-called "exceptions” that Molineux recognized (intent, motive, identity, etc.) are not really exceptions at all. They simply illustrate instances in which proof of other crimes may be probative of something other than propensity and where, accordingly, the ready-made balance does not apply and the general rules of admissibility should prevail.

It may seem that this distinction is a matter of mere semantics, but it is deeper than that. It affects how the question is approached — whether the Molineux exclusionary rule is regarded as the starting point, presuming inadmissibility until the evidence can be pigeon-holed into one of the recognized "exceptions” or whether, instead, the analysis begins by asking whether the exclusionary rule applies at all. I believe that the latter approach is preferable, because it asks at the outset whether the evidence is relevant only to propensity. This, I think, more accurately reflects the policy considerations which gave rise to the Molineux rule. The policy judgment underlying the rule is not that all evidence of uncharged crimes is bad (if so, there would be no "exceptions”), but rather that a conviction based on the defendant’s propensity to commit crime must be avoided.

To be sure, extrinsic offense evidence carries "propensity” baggage with it, even when it is relevant to some material issue in the case, and it therefore harbors the potential for undue prejudice. But that problem is accounted for in the second step of the Molineux analysis — the discretionary balancing which weighs "the probative value and the need for the evidence against the potential for delay, surprise, and prejudice” (People v Alvino, supra, at 242). Actually, this second step is no different than the test by which all relevant evidence is measured (see, McCormick, op. cit., at 545; Fed Rules Evid, rule 403). That underscores the point that Molineux supplies an exception to the general rule. If the exception does not apply, the general rule governs, requiring the Trial Judge to balance probative value against prejudice, etc. The only difference in the Molineux situation is that the Judge will approach the normal balancing process with a heightened awareness of the unique kind of prejudice that extrinsic offense evidence can produce.

Thus, Molineux analysis should proceed in two steps. The first step is to determine whether the extrinsic offense evidence is relevant to something in the case other than the defendant’s propensity to commit the crime charged. If not, then the evidence is per se inadmissible. If the evidence is relevant to something else, however, then the inquiry proceeds to the second step or, more accurately, reverts to the general rule. The initial inquiry presents a pure question of law, fully reviewable by this court. The second step, however, is classic discretionary balancing.

At this stage, the Trial Judge must assess the proffered evidence in the context of the case as it has developed up to that point and as it is expected to develop, given the information gleaned from pretrial motions, conferences, opening statements and similar sources. With all this information in mind, the Trial Judge must determine, among other things, how probative of the point urged the evidence is, how necessary it is, to what extent the point is really disputed, whether the proof will cause delay, confusion or will unfairly surprise the defendant, and finally, to what degree the proof will result in undue prejudice of any kind, including the danger of a "propensity” conviction.

Having made these assessments and many others, the Judge must then weigh them all and reach a conclusion as to whether the evidence should be allowed in. This decision, like all matters of discretion, is entitled to our deference: "[A]l-though there may be room for a difference of opinion * * * the wide latitude and the broad discretion that must be vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of 'plain abuse and injustice’ [citation omitted], from substituting its judgment for his and from making that difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal” (People v Sorge, 301 NY 198, 202).

This two-step approach, one legal and one discretionary, is consistent with our recent decision in Alvino. We stated there that the question whether prior crimes evidence may be admitted, i.e., whether it is automatically barred under the Molineux rule, is a question of law. But, "[i]f the evidence of prior crimes is probative of a legally relevant and material issue before the court, and for that reason not automatically barred * * * admissibility turns on the discretionary balancing of the probative value and the need for the evidence against the potential for delay, surprise and prejudice” (People v Alvino, supra, at 242). Significantly, we upheld the conviction in Alvino because we found that the prior crimes evidence was probative of the defendant’s guilty knowledge. We refused to second-guess the Trial Judge’s ruling, once that legal determination was made, stating, "[although the courts below could have found the evidence * * * prejudicial and of questionable probative value * * * we find no abuse of discretion in the court’s reception of the evidence” (id., at 247).

Accordingly, the legal question before us is simply whether the evidence had some relevance to the case other than to show that the defendant was inclined to sexually abuse small children. I believe that it did. As the majority notes, defendant’s theory was that the accusations had started in October 1985 when Matthew L. was asked by his mother to defend a story he had told his little brother. Matt perpetuated the story rather than admit that he had lied to his brother; his mother spread the story by calling her neighbor; the neighbor’s son carried the story to the rest of the school; and ultimately a number of children got caught in the momentum.

Faced with this theory, the prosecutor sought to call one additional witness after the eight children named in the indictment had testified. This witness, Domenick M., had been in defendant’s class as a fourth-grader during the 1983-1984 school year. He testified that defendant had fondled him several times during that school year. He further testified that he had told his grandmother, with whom he lived, about the touching. His mother found out and wrote a letter to defendant and the school psychologist asking that the touching stop. Domenick testified that the defendant did not touch him any more after the letter was delivered.

This testimony, of course, is the evidence that gives rise to the supposed Molineux problem.

Assuming for a moment that Domenick’s testimony was probative only of defendant’s propensity to commit this kind of crime, I would have a difficult time believing that, in the context of this case, defendant’s conviction was the product of prejudice resulting from that evidence. All eight victims had already testified to dozens of incidents; if propensity figured in the jury’s deliberations it was because of the completely proper evidence of charged crimes, not because of some marginal prejudice contributed by Domenick’s testimony. Thus, even assuming that it was error to admit the testimony, I would have to conclude that the error was harmless.

I am not trying to downplay the effect of this evidence. I concede that it damaged defendant’s case and was, in that sense, prejudicial. The point is that the damage resulted from something other than its tendency to prove propensity. That suggests that the evidence must have been relevant to something else, as indeed it was.

Domenick’s testimony was offered to rebut the defendant’s theory that all of these claims were the product of rumors circulating through the school in October 1985. All of the other witnesses attended the school during that time and were, therefore, tainted, according to defendant’s theory. But Domenick had moved away in November 1984. He had no contact with the school or any of the students during the time when the rumors were circulating. He was, therefore, an untainted witness who had been subjected to the defendant’s sexual abuse and had reported it to his family long before the "snowball” began rolling. If this evidence was damaging, it was because it had the intended effect — it undermined the defendant’s theory.

The majority admits as much under the guise of harmless error analysis. The court states that "the Domenick M. evidence was highly prejudicial” because it was "qualitatively different from the testimony of the other boys, in that it was not subject to impeachment under the defense’s 'rumor’ theory.” (Majority opn, at 56.) This "qualitative difference”, however, is precisely what made the evidence relevant to something other than propensity and, therefore, admissible.

Molineux prohibits the following kind of reasoning: Defendant abused Domenick before; if he did it once, he will do it again; therefore he probably abused the other children (or deserves punishment anyway, whether he did or not). But the logic at work here is different and, I think, permissible under these circumstances: Several children claim that defendant abused them; one of them, Domenick, makes these allegations free of the influence that may taint the others; therefore, it is more likely that the others’ claims are not the product of such influence. In short, the evidence tended to show that the children’s charges were not simply the product of a rumor.

It was precisely on this basis that the Trial Judge allowed the evidence in. It should be noted that the Judge was not insensitive to the Molineux problem. He rejected other rationales offered by the People during the course of an extensive colloquy. And once he recognized that the evidence was relevant to rebut the defendant’s rumor theory, he properly moved to the second step of the analysis by weighing the probative value against the potential for unfair prejudice.

In sum, because the evidence was relevant to something other than propensity, the Molineux rule did not automatically require its exclusion. Therefore, the question of admissibility was a discretionary ruling. The Trial Judge exercised that discretion and did so very carefully, noting that very little prejudice of an impermissible sort would result, inasmuch as the jury had already properly heard of dozens of similar incidents. Thus, there was no abuse of discretion in admitting the disputed testimony.

Finally, the record indicates to me that the trial court did a commendable job the first time around in protecting the defendant’s right to a fair trial while at the same time allowing the People leeway, within proper bounds, to overcome the difficulties of proof inherent in prosecutions of this nature (see, People v Yonko, 34 NY2d 825, 827; People v Henson, 33 NY2d 63, 72-74).

Accordingly, because I perceive no legal error in the trial court’s evidentiary rulings, I vote to affirm.

Judges Kaye, Alexander and Hancock, Jr., concur with Judge Titone; Judge Alexander concurs in a separate opinion; Chief Judge Wachtler dissents and votes to affirm in another opinion in which Judges Simons and Bellacosa concur.

Order reversed, etc.

      . Defense counsel’s request to have these police reports tagged as exhibits and made part of the record on appeal was denied by the trial court.

      . The jury could have found that Matthew L.’s accusations were corroborated by David A.’s testimony.

      . The ex post facto prohibition also reinforces the separation of powers between the legislative and judicial branches of government (Weaver v Graham, 450 US 24, 29, n 10; Calder v Bull, 3 Dallas [3 US] 386, 389 [Chase, J.]).

      . In Thompson v Utah (170 US 343, 352), the Supreme Court suggested that "substantial rights” were those that were regarded as important at the time the Constitution was adopted. However, that analysis has not been used in the subsequent case law, and no further guidance on the "substantial right” question has been provided (see, Note, Ex Post Facto Limitations on Changes in Evidentiary Law: Repeal of Accomplice Corroboration Requirements, 55 Fordham L Rev 1191).

      . In Weaver v Graham. (450 US 24, 29, n 12) and Miller v Florida (482 US 423, 429-434), the most recent cases on the relationship between the Ex Post Facto Clause and changes in procedural law, the Supreme Court quoted from Calder and Hopt, but carefully avoided reiterating their dicta that alterations in the quantum of required evidence fall within the clause’s reach. Instead, the court in Miller and Weaver stressed the "substantial right” approach to the question of what procedural changes are covered by the ex post facto ban. This subtle shift in emphasis suggests that the court may be moving toward a reformulation of the ex post facto rule.

      . The concurrence elides the "substantial right” cases with the HoptCalder dictum and concludes that a "substantial right” is involved any time there is a change in the law which disadvantages a defendant by reducing the quantity or quality of necessary proof. Even apart from the absence of concrete support in the case law, the concurrer’s argument is flawed because it provides no basis for distinguishing between changes in evidentiary law that aifect "substantial rights” and those that do not. Thus, under the concurrer’s analysis, such clearly procedural matters as a statute permitting hearsay evidence of certain facts (see, e.g., CPL 60.25, 60.30 [prior identifications], 60.60 [prior judgments and fingerprint evidence]) would fall within the ambit of the Ex Post Facto Clause. Further, although the concurring opinion identifies the three goals that the Ex Post Facto Clause was intended to serve, it leaves unclear how any of those goals would be advanced by invalidating the present legislation. Surely, a change in the law that simply eliminates an artificial hurdle and leaves the credibility assessment to the jury’s wisdom cannot be considered "arbitrary” or "oppressive.”

      . It has been argued that this interpretation of the Hopt dictum is unpersuasive because reductions in the People’s burden of proving guilt beyond a reasonable doubt are already forbidden by the Constitution’s Due Process Clauses (Murphy v Sowders, 801 F2d 205, 216 [Brown, J., dissenting]; see, US Const 5th, 14th Amends; Jackson v Virginia, 443 US 307; In re Winship, 397 US 358). However, this argument overlooks that the question whether the reasonable doubt standard is constitutionally required was not settled until In re Winship was decided in 1970, 86 years after Hopt and 172 years after Calder were decided. Further, reductions in the reasonable doubt standard are not the only means of reducing the prosecution’s burden of proof (see, e.g., De Woody v Superior Ct., 8 Cal App 3d 52, 87 Cal Rptr 210; State v Moyer, 387 A2d 194 [Del]).

      . Under the "rule of number,” which has its origins in a medieval ecclesiastical notion that the taking of an oath itself has probative value, the sworn testimony of a specified number of witnesses was necessary to establish the accused’s guilt of particular crimes (see, 9 Holdsworth, History of English Law, at 203-211 [3d ed]; Wigmore, Required Numbers of Witnesses: A Brief History of the Numerical System in England, 15 Harv L Rev 83; Younger, The Requirement of Corroboration in Prosecutions for Sex Offenses in New York, 40 Fordham L Rev 263, 263-264). The example Justice Chase gave in Colder referred specifically to the case of Sir John Fenwick, who was accused of treason (3 Dallas [3 US] 386, 389, n). Because the crown had only one witness, rather than the required two, Parliament enacted a bill convicting Fenwick without a jury trial (see, Chafee, Three Human Rights in the Constitution, at 133-135; 4 Macauley, History of England, at 740-768). It has been observed that Parliament’s action in Fenwick’s case more nearly resembles a bill of attainder than an ex post facto law (Note, Ex Post Facto Limitations on Changes in Evidentiary Law: Repeal of Accomplice Corroboration Requirements, 55 Fordham L Rev 1191).

      . Indeed, as early as its decision in Thompson v Missouri (171 US 380, 386), the Supreme Court cautioned that "undue weight” should not necessarily be attached to "general expressions” in the former cases "that go beyond the questions necessary to be determined.”

      . It has been observed that some of the modern corroboration requirements were created to fill a perceived gap that arose when Judges were no longer permitted to give the jury their own views on the quality of the evidence. The motivating factor behind these rules was a concern that, without the Judge’s guidance, juries would not have the sophistication necessary to evaluate the testimony for themselves (7 Wigmore, Evidence § 2056 [Chadbourn rev ed 1978]).


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    New England Mutual Life Insurance Company, Appellant, v Ralph A. Caruso, Respondent.
    Argued January 11, 1989;
    decided February 14, 1989

      POINTS OF COUNSEL

      William. S. Brandt, Domenick L. Gabrielli and Jeffrey R. Clark for appellant.
    I. Any insurance policy which permits speculation on life is void at its inception. (Harmon v Peats Co., 216 App Div 368; Ruse v Mutual Benefit Life Ins. Co., 23 NY 516; Connecticut Mut. Life Ins. Co. v Schaefer, 94 US 457; Warnock v Davis, 104 US 775; Hart v City Theatres Co., 251 NY 322; Peabody & Co. v Travelers Ins. Co., 240 NY 511; Citizens Sav. & Loan Assn. v Proprietors Ins. Co., 78 AD2d 377.) II. Insurance Law § 3203 (a) (3) was never intended to override Insurance Law § 3205 (b) (2) and does not apply to the facts before this court. III. The cases upon which the court below based its decision do not erode the strong public policy voiding insurance contracts lacking an insurable interest. (Wright v Mutual Benefit Life Assn., 118 NY 237; Columbian Natl. Life Ins. Co. v Hirsch, 267 NY 605.)

      Edwin Robert Schulman for respondent.
    I. By virtue of the running of the contractual and statutory period of contestability, this action by appellant is barred as a matter of law. The cause, if any, is now reposed in another as a matter of law. The court below properly reversed the Supreme Court and granted respondent’s motion. (Wright v Mutual Benefit Life Assn., 118 NY 237; Columbian Natl. Life Ins. Co. v Hirsch, 267 NY 605; Holmes v Nationwide Mut. Ins. Co., 40 Misc 2d 894; Ruse v Mutual Benefit Life Ins. Co., 23 NY 516; Rawls v American Mut. Life Ins. Co., 27 NY 282; Steinback v Diepenbrock, 1 App Div 417, 158 NY 24; Reed v Provident Sav. Life Assur. Socy., 36 App Div 250, 112 App Div 922, 190 NY 111; Chinery v Metropolitan Life Ins. Co., 112 Misc 107; Teeter v United Life Ins. Assn., 159 NY 411.) II. The Legislature determined that the passing of a contestability period bars an insurance carrier from avoiding a policy based on lack of insurable interest. If that determination is to be changed, it should be changed by the Legislature.

      William J. Toppeta, David J. Larkin, Jr., Peter J. Flanagan
      and Raymond A. D’Amico for Life Insurance Council of New York, amicus curiae.

    The court below wrongly protected the interests of the policyholder over the interests of the insured; in order to harmonize the insurable interest statute with the requirement that insurance policies contain an incontestable clause, a policy procured on the life of an insured in which the policyholder has no insurable interest must be declared void ab initio, leaving the incontestable clause without effect. (Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807; Matter of Astman v Kelly, 2 NY2d 567; People v Eulo, 63 NY2d 341; Matter of Fisher v New York State Employees’ Retirement Sys., 279 App Div 315, 304 NY 899; People v Kaye, 212 NY 407; Matter of Blatnicky v Ciancimino, 1 AD2d 383; Metropolitan Life Ins. Co. v Durkin, 301 NY 376; People v Ortega, 127 Misc 2d 717, 118 AD2d 523, 69 NY2d 763; Sanders v Winship, 57 NY2d 391; Matter of Anderson v Board of Educ., 46 AD2d 360, 38 NY2d 897.)
   OPINION OF THE COURT

Simons, J.

Plaintiff insurer instituted this action against its policyholder, seeking a declaration that it is not obligated to pay $1.1 million in life insurance benefits because defendant had no insurable interest in the life of the decedent (see, Insurance Law § 3205 [b] [2]). Defendant contends that plaintiff is barred from asserting the invalidity of the policy because the statutory incontestability period expired before the insured died (see, Insurance Law § 3203 [a] [3]). The issue presented is whether the provisions of the incontestability clause may operate to bar plaintiff’s claim that the policy is unenforceable for lack of an insurable interest in the owner and beneficiary.

Plaintiffs argument follows traditional reasoning: life insurance policies issued to persons lacking an insurable interest in the life of the insured are void from inception because of statutory prohibitions and because they violate public policy concerns against wagering contracts. Since no contract exists, the expiration of the contestability period cannot operate to create one. To be distinguished are policies voidable because they constitute private wrongs against an individual insurance company — for example, policies issued upon fraudulent misrepresentations. In such cases, if the insurer fails to challenge the misrepresentation before expiration of the incontestability period, the obligation becomes absolute at maturity. This case, plaintiff notes, involves a public injury; thus, no agreement of the parties may validate it and no court may enforce it. Plaintiff contends that the majority of jurisdictions accept this reasoning and, notwithstanding the expiration of the incontestability period, refuse to enforce life insurance contracts in which the policyholder has no insurable interest in the insured (see, 1A Appleman, Insurance Law and Practice § 337, at 416).

New York’s rule is otherwise, however. As generally interpreted, earlier decisions of this court hold that passage of the incontestability period bars the insurer from thereafter asserting the policyholder’s lack of an insurable interest (see, Columbian Natl. Life Ins. Co. v Hirsch, 267 NY 605; Wright v Mutual Benefit Life Assn., 118 NY 237). For the reasons that follow, we adhere to that rule.

I

In August 1984 Dean Salerno and defendant, who was not related to Salerno but was associated with him in the restaurant business, obtained an insurance policy on Salerno’s life. The policy named defendant as the owner and sole beneficiary. The two men required $850,000 to finance their restaurant operations and anticipated securing the loan with defendant’s assets. The policy on Salerno’s life was acquired to protect defendant in case of default. In December 1986 Salerno’s body was found in his automobile at the bottom of the State Barge Canal near Pittsford, New York. Five days later defendant claimed the proceeds of the policy.

Plaintiff instituted this action to establish the invalidity of the policy and defendant subsequently moved to dismiss the complaint urging that plaintiff’s claim was barred by the incontestability clause in the policy. The trial court denied defendant’s motion but on appeal the Appellate Division reversed and, without determining whether defendant had an insurable interest, granted him summary judgment declaring that plaintiff’s claim was barred after expiration of the incontestability period. We granted leave to appeal and now affirm the order of the Appellate Division.

II

Insurance contracts, by their nature, create rights and duties dependent on chance. When one insures his or her own life, the wagering aspect is overridden by the recognized social utility of the contract as an investment to benefit others. When a third party insures another’s life, however, the contract does not have the same manifest utility and assumes more speculative characteristics which may subject it to the same general condemnation as wagers (see generally, NY Const, art I, § 9 [1]; General Obligations Law §§ 5-401, 5-411). Under those circumstances, the law requires the person procuring the insurance to have an interest in the insured’s continued life which is sufficient to negative the idea of speculation. Thus, our statute (Insurance Law § 3205 [b] [2]), and judicial decisions long before it (see, e.g., Ruse v Mutual Benefit Life Ins. Co., 23 NY 516; Rawls v American Mut. Life Ins. Co., 27 NY 282; see also, Reed v Provident Sav. Life Assur. Socy., 36 App Div 250, affd after trial 112 App Div 922, mod on other grounds 190 NY 111), provide that no one shall procure a policy upon the life of another unless the benefits are payable to the person insured, a representative or one having an insurable interest in the person insured.

An insurable interest may arise by reason of blood or legal relationship or a lawful and substantial economic interest in the continued life or health of the insured (Insurance Law § 3205 [a] [1] [A], [B]). It is distinguished from an interest which arises or is enhanced in value by the insured’s death or disablement. Plaintiff contends that in this case the loan was never consummated and thus defendant had no insurable interest in Salerno’s life.

Our statute requires, however, that all life insurance policies contain incontestability clauses providing that after a specified period of time the insurer’s conditional promise to pay benefits shall become absolute (Insurance Law § 3203 [a] [3]). The requirement rests on the legislative conviction that a policyholder should not indefinitely pay premiums to an insurer, under the belief that benefits are available, only to have it judicially determined after the death of the insured that the policy is void because of some defect existing at the time the policy was issued. The incontestability clause fixes the insurer’s promise to pay benefits upon maturity if the policy is in force for a period of two years during the life of the insured and the premiums have been paid. Defendant maintains that because more than two years elapsed after the policy was issued, without challenge to his rights, plaintiff is required to pay the proceeds to him and may not now attempt to prove he lacked an insurable interest in Salerno’s life.

Ill

Plaintiff contends first that enforcement of this contract of insurance, notwithstanding the passage of the incontestability period, is contrary to the express provisions of the Insurance Law and public policy.

A

The provisions of the Insurance Law do not make life insurance contracts void if the policyholder lacks an insurable interest in the insured’s life. Section 3205 says that such contracts shall not be "procured” unless the benefits are payable to one having an insurable interest and are issued with the consent of the insured. The meaning of those words is best understood by looking at the statutory language which preceded them and by comparing it with the language of similar statutes.

The insurable interest statute which preceded section 3205 provided that no such contract should be "issued” (L 1892, ch 690, § 55; see generally, McKinney’s Cons Laws of NY, Book 27, Insurance Law §§ 3203, 3205, Historical Notes, at 19, 80). The wording of that earlier provision, clearly connoting voidness, was changed to its present language during the general recodification of the Insurance Law in 1939. It is clear from discussions in the Joint Legislative Committee considering recodification that the statutory change was intended to maintain the rule recognized by this court in Wright v Mutual Benefit Life Assn. (118 NY 237, supra). The minutes establish that the committee members were familiar with the Wright case, and the criticisms of it, and decided against legislative action to override it by removing a provision that would have done so.

Moreover, a comparison of the incontestability provision with other Insurance Law sections indicates that the language of section 3203 (a) (3) was not intended to make such policies void for want of an insurable interest in the policyholder. Thus, other sections provide that policies on the life of minors shall not be "issued” except in certain amounts (Insurance Law § 3207 [excess limits or additional policies are void, see, Flynn v Prudential Ins. Co., 207 NY 315]) and that policies on property are not "enforceable” except for the benefit of one having an insurable interest (Insurance Law § 3401). Such terms are traditionally used when policies are void at inception and enforcement is contrary to public policy (see, Restatement [Second] of Contracts, ch 8, topic 1, at 5). They differ substantially from the prohibition against "procurement” found in section 3205. Indeed, the Legislature has provided expressly that an incontestability clause does not bar a claim of lack of insurable interest with respect to certain accidental death policies (Insurance Law § 3216 [d] [1] [B] [i]), and if it had intended the same result for life insurance policies it could have stated so.

Finally, it should be noted that when the statute was recodified in 1939 a new provision was added enabling the person insured or his representative to recover proceeds paid to a policyholder without an insurable interest (see, Insurance Law § 3205 [b] [3]). Manifestly the relief granted by the provision contemplates that such policies, although improper, may be issued and enforced.

Thus, the legislative history, considered with the language of similar statutory provisions, leads us to conclude that nothing in the statutory scheme makes void ab initio policies acquired by one lacking an insurable interest or forecloses the application of an incontestable clause to bar an insurer’s disclaimer of liability.

B

Nor do we find anything in the public policy of this State which militates against enforcement of the incontestability clause in these circumstances. Generally, parties may contract as they wish and the courts will enforce their agreements without passing on the substance of them. Their promises are unenforceable only when statute or public policy dictates that the interest in freedom to contract is outweighed by an overriding interest of society. Courts refuse to enforce contracts in such cases because they wish to discourage undesirable conduct by the parties or others and to avoid use of the judicial process to give effect to an unsavory transaction. Freedom of contract itself is deeply rooted in public policy, however, and therefore a decision to refrain from enforcing a particular agreement depends upon a balancing of the policy considerations against enforcement and those favoring the encouragement of transactions freely entered into by the parties.

The policy at issue in this case is the general public interest in preventing gambling and, in the case of life insurance contracts, of compromising public safety by furnishing a temptation to bring about the event upon which payment is conditioned to those who insure the lives of others.

The policy determination depends upon a balancing of society’s interest in enforcement of a particular provision in a contract, the incontestability clause in this case, against its interest in preventing gambling. In doing so, the court must consider the parties’ justified expectations, the forfeiture resulting from denial of enforcement and the public interest in enforcement of the particular provision. These considerations are weighed against the strength of the public policy, as manifested by statute and judicial decision, and the likelihood that denial of enforcement will further that policy (see generally, Restatement [Second] of Contracts § 178; Farnsworth, Contracts § 5.5). By “public policy” is meant the law of the State, whether found in the Constitution, statutes or decisions of the courts (see, Matter of Walker, 64 NY2d 354, 359).

In the case before us it is difficult to conclude that enforcement of the claim is contrary to public policy when the policy is not void ab initio under the statute, as we construe it, and is enforceable against the insurance company under our prior decisions. Indeed, one of those decisions, the Wright case, has been the law of this State for almost 100 years without adverse consequences and, that being so, there would appear to be no need to reexamine the policy implications of the rule in depth. Moreover, the policy concerns at issue are also protected by the penal statutes of this State, decisions which prevent an individual from profiting from his or her own wrong (see, e.g., Riggs v Palmer, 115 NY 506) and section 3205 (b) (3) which permits the insured or a representative of the insured to recover proceeds paid to a policyholder without an insurable interest. In view of these general restraints the need for further deterrents in this area to advance public safety would appear marginal. Balanced against that need, such as it is, is our conclusion that a change in the rule would result in a forfeiture to defendant and an unnecessary advantage to plaintiff.

Under existing law, defendant could justifiably believe that if he paid the premiums and the two-year incontestability period elapsed without challenge to the policyholder’s insurable interest, the policy would be enforced. That was accepted law in New York at the time the policy was issued (see, Columbian Natl. Life Ins. Co. v Hirsch, 267 NY 605, supra; Wright v Mutual Benefit Life Assn., 118 NY 237, supra). Although plaintiff disputes the soundness of those decisions, and concededly they can be distinguished from the case at hand, that was the interpretation consistently applied to them. That being so, defendant should not be compelled to come forward now and prove his interest after the policy has been in effect for over two years and after decedent has died and is unable to help confirm the arrangement between the two men. The statute requires that the policyholder have an insurable interest in the life of decedent only at the time the contract was made (Insurance Law § 3205 [b] [2]; cf., § 3401 [insurable interest in property at time of loss required]) and to require evidence of insurable interest at this late date could not only impose an undue burden on the policyholder but also run counter to the policy considerations underlying incontestability requirements. Decedent consented to the policy’s issuance and plaintiff accepted the application on the strength of the representations contained in it. If it doubted defendant’s interest, the burden rested on it to investigate in a timely manner or ignore the matter at its peril. A failure to enforce the incontestability rule now would result in a forfeiture to defendant (or to the deceased’s estate if the policyholder had no insurable interest [see, Insurance Law § 3205 (b) (3)]) after decedent’s death and an unnecessary advantage to plaintiff by enabling it to avoid a claim it previously accepted. This inequity may be avoided, and the public purpose underlying the insurable interest requirement implemented, by a rule which encourages the insurer to investigate the insurable interest of its policyholders promptly within the two-year period. Such investigations would not only eliminate "wagering” contracts but would do so promptly, thereby furthering the policy behind the provisions to the statute.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

       "mr. patterson: * * * But I would like to ask, are you in favor of the first part of it which says that the incontestable clause does not bar a defense of lack of insurability.
      "mr. cook: We don’t care one way or another, because the cases are very few and far between where the company has asserted lack of insurable interest as a defense to a claim.
      "mr. patterson: I do not regard this as a very serious provision.
      "the chairman: I am not at all sure that I like that provision.
      "mr. patterson: Well, I had some doubt but on account of the weight of authority in other states and because it was in accordance with the rules here laid down, — and I might say incidentally I got the suggestion from a professor in one of the law schools in this state and he felt very strongly that this should be the rule and that we should correct the dictum in that rule which was laid down in the case of Wright against the Mutual Benefit Life Association about 50 years ago, and that we should make a law of New York in conformity with what has been held in other states, namely, that an illegal contract is always contestable, and some people in the Insurance Department felt that they ought not to be allowed to raise the question of lack of insurable interest after the payment of premiums for two years.

      "the chairman: I am inclined to agree with that.
      "mr. patterson: Well, I feel that it is not an important provision, and we can delete it.
      "mr. cook: We would be perfectly satisfied to have it eliminated.
      "the chairman: All right, Mr. Shepard.” (New York Legislature Joint Committee for Recodification of Insurance Law — meeting Nov. 16, 1938, at 405-406 [emphasis added]).