text:
    [628 NE2d 1330, 607 NYS2d 620]
    In the Matter of Federal Deposit Insurance Corporation, as Receiver of Goldome, Successor to Goldome Capital Investments, Inc., Appellant, v Commissioner of Taxation and Finance et al., Respondents.
    Argued November 16, 1993;
    decided December 21, 1993

      POINTS OF COUNSEL

      Saperston & Day, P. C., Buffalo (Charles C. Swanekamp of counsel), and Christopher J. Bellotto, of the District of Columbia Bar, admitted pro hac vice, for appellant.
    I. The determination of the Court below that the merger of United National Corporation and a wholly owned subsidiary of petitioner is not exempt from gains tax is legally incorrect and unsupported by the record. (Matter of Bredero Vast Goed v Tax Comma., 138 Misc 2d 27, 146 AD2d 155; Matter of Dworetz v State Tax Comma., 128 AD2d 946; Matter of Yanowicz & Charaey v Departmeat of Taxatioa & Fin., 140 AD2d 866; Browa Bros. Elec. Coatrs. v Beam Coastr. Corp., 41 NY2d 397; Phillip v Gallant, 62 NY 256; Reprosystem, B. V. v SCM Corp., 522 F Supp 1257, 727 F2d 257, 469 US 828; Matter of Estate of Lever v New York State Tax Comma., 144 AD2d 751; Merritt Hill Vineyards v Windy Hgts. Viaeyard, 61 NY2d 106; Mid-Coatinent Tel. Corp. v Home Tel. Co., 319 F Supp 1176.) II. If the merger is subject to gains tax, petitioner, as transferee, is not liable for the transferor’s tax. (People ex rel. Mutual Trust Co. v Miller•, 177 NY 51; Matter of Broom v Murphy, 14 AD2d 639.) III. Respondent’s interpretation of Tax Law § 1443 (6) impairs obligations of contract in violation of the United States Constitution. (Murray v Charleston, 96 US 432; Carder Realty Corp. v State of New York, 260 App Div 459, 285 NY 803; Matter of Diamond v Temporary State Hous. Rent Commn., 24 Misc 2d 160; Trump v Chu, 65 NY2d 20, 474 US 915; Matter of Bredero Vast Goed v Tax Commn., 138 Misc 2d 27, 146 AD2d 155.)

      Robert Abrams, Attorney-General, Albany (Julie S. Mereson, Jerry Boone and Peter H. Schiff of counsel), for Commissioner of Taxation and Finance, respondent.
    The merger of United National Corporation and petitioner is not exempt from real property gains tax under the grandfather clause of Tax Law § 1443 (6) because the contract for the transfer of the interest in real property was not "entered into” until May 13, 1983 when the United National Corporation shareholders approved and adopted the agreement and plan of merger executed by officers of United National Corporation and Goldome on January 21, 1983. (Matter of American Express Co. v Tax Appeals Tribunal, 190 AD2d 104; Matter of Estate of Lever v New York State Tax Commn., 144 AD2d 751; Matter of Bredero Vast Goed v Tax Commn., 146 AD2d 155, 74 NY2d 791; Carder Realty Corp. v State of New York, 260 App Div 459, 285 NY 803; Justice v Lang, 42 NY 493; Matter of Grace v New York State Tax Commn., 37 NY2d 193; Matter of Golub Serv. Sta. v Tax Appeals Tribunal, 181 AD2d 261; Matter of Luther Forest Corp. v McGuiness, 164 AD2d 629.)
   OPINION OF THE COURT

Smith, J.

The issue in this case is whether the Tax Appeals Tribunal erred when it determined that a proposed merger agreement, requiring shareholder approval, failed to become a binding and enforceable contract for the purposes of a real property gains tax exemption pursuant to Tax Law § 1443 (6). We agree with the Appellate Division that the Tax Appeals Tribunal’s decision was rational and supported by evidence in the record.

United National Corporation (UNC) was a publicly held corporation formed in Delaware, with headquarters in New York City. Essentially a real estate holding corporation, UNC owned substantial real property in 11 States. In September 1982, the trustees of the Buffalo Savings Bank (later "Goldome Bank for Savings”, referred to herein as "petitioner”) decided to take "any and all actions necessary” to acquire UNO’s business and executed an instrument entitled "Agreement and Plan of Merger” on January 21, 1983, amended on February 18, 1983, proposing that UNC merge with a wholly owned subsidiary of petitioner Goldome. Article VI of the agreement, entitled "Shareholder Approval, Registration of New Preferred Shares, and Listing Thereof,” provides:

"(a) The parties hereto acknowledge and understand that as a condition precedent to the Merger and under the General Corporation Law of the State of Delaware, the approval of shareholders of UNC must be obtained and UNC shall, as expeditiously as possible, call a meeting of its shareholders for such purpose and solicit proxies to vote in favor of such Merger” (§ 6.1 [a]).

Article VIII of the agreement sets forth "Conditions” of the "Closing and Merger.” Section 8.1 (a) of article VIII states "[t]he satisfaction of * * * the following * * * shall be conditions precedent to the obligation of each of the parties hereto to consummate the Merger: (a) the requisite consent or approval of the shareholders of UNC shall have been obtained.” Delaware law, moreover, requires that any agreement to merge "shall be submitted to the stockholders of each constituent corporation at an annual or special meeting for the purpose of acting on the agreement” (Del Code Annot, tit 8, § 251 [c]).

The critical New York statute applicable here is Tax Law § 1443 (6), effective March 28, 1983, which provides, in part:

"A total or partial exemption shall be allowed in the following cases:
"Where a transfer of real property occurring after the effective date of this article is pursuant to a written contract entered into on or before the effective date of this article, provided that the date of execution of such contract is confirmed by independent evidence, such as recording of the contract, payment of a deposit or other facts and circumstances as determined by the tax commission.”

This statute provides an exemption from real property transfer gains taxes imposed under Tax Law § 1441 for "gains derived from the transfer of real property within the state.” Petitioner, construing the "Agreement and Plan of Merger” executed on January 21, 1983 as a "contract” entered into "on or before the effective date” of section 1443 (6), sought exemption from the section 1441 gains tax, notwithstanding the shareholders’ approval of the agreement on May 13, 1983, approximately six weeks after the effective date of the statute. Because petitioner did not receive the exemption, it filed exceptions to the tax department’s determination.

The Administrative Law Judge (ALJ) agreed with petitioner, granting it the tax exemption on the grounds that the parties had entered into a binding and enforceable contract prior to the effective date of Tax Law § 1443 (6) notwithstanding the lack of shareholder consent.

Respondent Commissioner filed exceptions to the ALJ’s determination and the Tax Appeals Tribunal reversed the determination of the ALJ. That Tribunal held that petitioner failed to demonstrate clear entitlement to the Tax Law § 1443 (6) exemption noting that transfer of UNC’s property "was expressly conditioned upon and subject to shareholder approval.”

Pursuant to Tax Law § 2016 (delineating judicial review procedures for determinations of the Tax Appeals Tribunal), petitioner then commenced this CPLR article 78 proceeding at the Appellate Division, seeking to review the Tribunal’s determination. The Appellate Division confirmed that determination, agreeing that shareholder approval was required before a contract could exist. That Court held that the Tribunal’s determination was rational and noted that absent a contract, "there could be no exemption from the gains tax” (189 AD2d 39, 42). Two Appellate Division Justices dissented on a question of law. Petitioner appealed, as of right, to this Court pursuant to CPLR 5601 (a).

Petitioner contends that the written contract was "entered into” on or before March 28, 1983, thus entitling it to the exemption from the property gains tax. Respondent argues that the exemption under Tax Law § 1443 (6) does not apply to petitioner because the contract for the transfer of the interest in real property was not "entered into” until May 13, 1983, when the UNC shareholders approved the transaction.

Initially, our review in this case is limited to whether the Tax Appeals Tribunal’s determination is "clearly erroneous” or "irrational” (see, Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166, 173; Matter of Grace v New York State Tax Commn., 37 NY2d 193, 195-196). "If there are any facts or reasonable inferences from the facts to sustain it, the court must confirm the Tax Commission’s determination” (id., at 195; see also, Hawkins, Delafield & Wood v Michael, 67 NY2d 873, 875). The Tribunal’s determination that no binding contract existed between UNC and petitioner prior to the effective date of Tax Law § 1443 is supported by article VI, § 6.1 (a) and article VIII, § 8.1 (a) of the agreement both conditioning the merger proposal upon approval by UNC shareholders. The Tribunal’s conclusion that the parties would not be bound by the agreement without the shareholders’ approval is therefore rational. Based upon the parties’ agreement, we cannot hold, as a matter of law, that the Tribunal’s determination was arbitrary or capricious.

Additionally, petitioner bears the burden of establishing entitlement to the exemption. Statutes creating tax exemptions "must be construed against the taxpayer” (Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166, 172-173, supra). The taxpayer must show "that its interpretation of the statute is * * * the only reasonable construction” (id., at 173). Although petitioner here puts forth an alternative interpretation of the statute, its interpretation is by no means the "only reasonable construction.”

Consistent with the Tribunal’s determination, Tax Law § 1443 (6) requires "that the date of execution” of the contract be "confirmed by independent evidence, such as recording of the contract [or] payment of a deposit or other facts and circumstances as determined by the tax commission.” The application of the section 1443 (6) exemption is explained in 20 NYCRR 590.20. That regulation, while indicating that the State Tax Commission’s discretion in determining what constitutes "independent evidence” is to be guided by the two examples specified in the statute, nonetheless recognizes that the Commission itself decides what types of independent evidence are acceptable. Here, the Tribunal appropriately assessed the evidence and determined, based on the express intent of the parties, that the proposal would not become a binding contract until shareholder approval was procured.

Petitioner contends that even if the merger was subject to the gains tax, it should not be liable for the tax. At the time petitioner entered the agreement, Tax Law § 1447 (3) (a) stated, in part, "For failure to comply with the provisions of this subdivision, the transferee * * * shall be personally liable for the payment to the state of any such taxes stated in such tentative assessment to be due to the state from the transferor.” The "tentative assessment” is generally issued by respondent pursuant to its "pre-transfer audit procedure” under Tax Law § 1447 (2). That audit procedure is set in motion by petitioner’s submission of "affidavits and any other information necessary to determine [the] tentative assessment” required to be filed at least 20 days prior to the transfer (id.). Here, the "other information” consists of the questionnaires petitioner submitted in 1985 concerning the merger. Petitioner’s position, that because no pretransfer "questionnaires” had been filed, no assessment can be made under section 1447 (2), is supported to some extent by the Legislative Proposal Letter (dated Dec. 1, 1983) from the Department of Taxation and Finance. The letter indicates that where questionnaires have not been filed, "no provision for transferee liability” existed.

Respondent recognized this and convinced the Legislature to amend section 1447 (3) (a) to hold the transferee liable for the taxes due where the transferee fails to file the required questionnaire or supplies "willfully false or fraudulent information.” Petitioner, who failed to timely file the questionnaires in 1983, may not, however, use its own dilatoriness to avoid the reach of the statute. Moreover, petitioner’s liability under the questionnaires it filed in 1985, and the tentative assessment generated in response to them, is unaltered by the amendment (see, Tax Law § 1447 [3] [a]).

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

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bellacosa, J. Titone, J.

license: Public Domain

text:
    [629 NE2d 371, 607 NYS2d 899]
    The People of the State of New York, Respondent, v Yusef Salaam, Appellant.
    Argued November 9, 1993;
    decided December 16,1993

      POINTS OF COUNSEL

      William M. Kunstler, New York City, and Ronald L. Kuby for appellant.
    I. In order to obtain the confession, the police and prosecutor deliberately isolated a 15-year-old defendant from family members and other supportive adults who desperately tried to reach him. (People v Townsend, 33 NY3d 37; People v Bevilacqua, 45 NY2d 508; People v Evans, 70 AD2d 886; People v Rivera, 72 AD2d 780, 78 AD2d 556; People v Pughe, 163 AD2d 334; People v Cavagnaro, 88 AD2d 938; People v Murphy, 97 AD2d 873; People v Pica, 159 AD2d 524; People v Hall, 125 AD2d 698; People v Crimmins, 64 NY2d 1072.) II. The police and prosecutor violated Salaam’s rights under the Family Court Act and CPL when he was subjected to custodial interrogation without his mother being notified and being given an opportunity to be present. (People v Rivera, 106 AD2d 278; People v Coker, 103 Misc 2d 703; Matter of Hector C, 95 Misc 2d 255.) III. Salaam was entitled to an evidentiary hearing to determine whether trial jurors violated the court’s instructions and received information outside the record, and if so, whether defendant was prejudiced. (People v Brown, 48 NY2d 388; People v Friedgood, 58 NY2d 467; People v Morales, 58 NY2d 1008.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone and Mark Dwyer of counsel), for respondent.
    I. The court correctly admitted defendant’s statement to Detective McKenna. (People v Vargas, 169 AD2d 746, 77 NY2d 1001; People v Bonaparte, 130 AD2d 673, 70 NY2d 703; People v Waymer, 53 NY2d 1053; People v Yukl, 25 NY2d 585, 26 NY2d 845, 400 US 851; People v Bailey, 140 AD2d 356; People v Winchell, 98 AD2d 838, 64 NY2d 826; People v Coker, 103 Misc 2d 703; People v Jacquin, 71 NY2d 825; People v Tutt, 38 NY2d 1011; People v Hicks, 68 NY2d 234.) II. The court correctly denied without a hearing defendant’s motions to vacate the judgment. (People v Friedgood, 58 NY2d 467; People v Brown, 56 NY2d 242, 57 NY2d 673; People v Morales, 58 NY2d 1008; People v Smith, 187 AD2d 365; People v Campos, 171 AD2d 521, 78 NY2d 954; People v Bellamy, 158 AD2d 525, 76 NY2d 731; People v Edgerton, 115 AD2d 257; People v Simon, 178 AD2d 447; People v Rukaj, 123 AD2d 277; People v Lynch, 23 NY2d 262.)
   OPINION OF THE COURT

Bellacosa, J.

A large group of youths participated in a series of violent felony assaults on the night of April 19, 1989 in Central Park. Defendant was prosecuted and convicted after a jury trial for rape and robbery in the first degree, and other crimes, in connection with the most serious crimes which were inflicted on a victim, identified only as "the Central Park jogger”. He was sentenced as a juvenile offender. The Appellate Division affirmed his conviction (187 AD2d 363). Defendant appeals by leave of a Judge of this Court, and we affirm the order upholding the conviction.

Defendant asserts that his inculpatory statements concerning his participation, made to investigating police officers at the Manhattan precinct house the night following the crime spree, should have been suppressed. Defendant’s argument rests principally on alleged police misconduct in isolating him, during the questioning, from his mother and other "supportive adults” — an aunt and his "Big Brother” — who attempted to see him at the station house.

Defendant was 15 years of age when he committed the crimes at issue and when he was questioned. Evidence in the record supports the findings of the trial court at the suppression stage, which were explicitly analyzed and accepted by the Appellate Division in its unanimous affirmance of the conviction. Defendant deceived the police by asserting that he was 16 years of age and using false identification to buttress that assertion. There is no evidence that the police employed deception or trickery of the kind found objectionable by this Court, because of a design to unlawfully isolate a defendant during questioning (see, People v Townsend, 33 NY2d 37). The officers here made known to defendant’s family precisely where they were taking defendant, a fact unassailably confirmed by the appearance of family members at that designated precinct. Nor did defendant, after being advised of his rights, or anyone on his behalf request assistance of counsel (see, People v Bevilacqua, 45 NY2d 508). Notably, all police questioning ceased when the fact of defendant’s true age, 15, finally emerged from his mother and was verified.

L

On the evening of April 19, 1989, a group of approximately 30 youths assaulted nine persons in Central Park. The most vicious crimes were committed against a 30-year-old woman, "the Central Park jogger”. As she was jogging in the northern part of Central Park, she was grabbed by one of the youths and knocked to the ground. The evidentiary descriptions of the attack and the findings by the trial court are graphic and sufficiently well known as to require no recounting here. Only the prosecution of defendant for the crimes he committed against "the Central Park jogger” is at issue on this appeal.

On the night of the criminal incidents, the police captured several youths who implicated defendant and described him as being 16 or 17 years old. The next night, April 20, at about 10:30 p.m., the police went to defendant’s apartment to follow up their investigation. In response to an officer’s question, the defendant also stated that he was 16 years of age and produced a school transit pass that presented him as 16. This assertion was not contradicted by his sister, brother or friends, all of whom were present at the time.

The officers informed defendant’s sister of the number and location of their precinct and requested that defendant accompany them there. He complied. At the station house, after again producing his transit pass which stated he was 16, defendant was given complete Miranda warnings. Defendant invoked none of the recited protections and chose instead to give a detailed statement implicating himself in two of the attacks under investigation, including specifically the attack on "the Central Park jogger”. While defendant was being questioned, his aunt and "Big Brother”, an Assistant United States Attorney, arrived at the precinct. Their requests to see defendant were denied on the grounds that neither was a "parent or guardian” and the "Big Brother,” by his own account, was not present in any professional representative capacity.

Defendant’s mother arrived at the station house some time after midnight. She, too, was initially denied access to her son. However, when she informed the detectives that defendant was actually only 15 years of age, the officers went to the interview room, rechecked defendant’s transit pass and asked him how old he was. For the first time, defendant corrected his earlier misrepresentations and said he was 15. From that point, as the Appellate Division stated, the police "scrupulously honored the request of his mother that questioning cease” (187 AD2d 363, 364, supra). Defendant then was permitted to meet with his mother.

IL

Defendant’s argument for suppression of his inculpatory statements made prior to his being allowed to meet with his mother, on the ground that he was unlawfully isolated from those "supportive adults” who attempted to see him, finds no support in the record evidence under any cognizable legal theory that would afford him that relief. A showing that the isolation resulted from official deception or trickery is required before suppression becomes available under this theory (People v Townsend, 33 NY2d 37, supra). In Townsend, this Court stated, "it is impermissible for the police to use a confession, even if it be otherwise voluntary, obtained from a 17-year-old defendant when, in the course of extracting such confession, they have sealed off the most likely avenue by which the assistance of counsel may reach him by means of deception and trickery” (id., at 41 [emphasis added]).

Similarly, in People v Bevilacqua (45 NY2d 508, supra), the police ignored or rejected the 18-year-old defendant’s request to telephone his mother and concealed the location of defen dant’s whereabouts from his attorney, ignoring his instructions not to question the defendant. This Court held that the misconduct of the police, which was "seemingly planned and deliberate,” mandated suppression of the defendant’s written and oral confessions despite the fact that defendant was not a legal minor (id., at 514). The particular reliance on this case by the dissent overlooks these many critical distinctions (dissenting opn, at 61).

Moreover, where there has been "[n]o attempt * * * by the police to conceal the presence of the defendant or to deceive the family,” we have held that "a refusal by the police to allow a parent to see [a] child [does] not * * * render any subsequently obtained confession per se inadmissible” (People v Townsend, 33 NY2d 37, 42, supra; see also, People v Taylor, 16 NY2d 1038; People v Hocking, 15 NY2d 973).

Defendant acknowledges that the police did not engage in deception or trickery to isolate him from his mother or the other adults who attempted to see him. Defendant’s sister was told his whereabouts, and his mother was prevented from seeing him when she first arrived at the station house only because the police reasonably believed that they were dealing with an adult and, therefore, were lawfully questioning him alone. We conclude that appellant’s argument in this regard provides no basis for disturbing the lower courts’ denial of suppression on the legal theory or on the undisturbed supportable evidentiary record (see, People v Winchell, 64 NY2d 826, 827).

Defendant unpersuasively also urges that his statements should be suppressed because the police violated CPL 140.20 (6). After a warrantless arrest of a juvenile offender, the police are required to "immediately notify the parent or other person legally responsible for [the juvenile’s] care or the person with whom [the juvenile] is domiciled, that the juvenile offender has been arrested, and the location of the facility where [the juvenile] is being detained” (CPL 140.20 [6]). For the crimes at issue here, a perpetrator is designated a juvenile offender up to the age of 16 (CPL 1.20 [42]). It was ultimately confirmed that defendant was 15 at the time of the crimes and questioning and could, therefore, be prosecuted as a juvenile offender.

This Court has held that failure to strictly comply with the analogous notification requirement of the Family Court Act (Family Ct Act § 305.2 [3] [dealing with the different and lower level of responsibility of juvenile delinquents]) does not necessarily require suppression where a good-faith effort at compliance has been made. In Matter of Emilio M. (37 NY2d 173), the juvenile was arrested, identified by the victim and taken to the station house before his mother was notified. He was then questioned before she arrived at the station house. After her arrival, the juvenile was re-Mirandized and requestioned in her presence and his statement was reduced to writing. This Court held that the procedure employed "did not constitute such noncompliance as to require suppression of [the juvenile’s] signed statement” (id., at 176). "[W]hile it [was] true that no call was put through to respondent’s mother until arrival at the station house, the call was made without undue delay and there was reasonable justification for such delay as did occur” (id., at 176 [emphasis added]). Thus, we held that "[i]n these circumstances * * * there was compliance with [the] statutory mandate” (id., at 176). Here, there was initially no arrest; rather, defendant voluntarily accompanied the police to the precinct. Defendant provided them with "reasonable justification” to believe he was legally an adult. Moreover, even if during the questioning the defendant’s subjective state of mind or sense of freedom to leave changed because of his own inculpating statements, suppression is not even available under the analogous Family Court Act provision construed in Emilio M. We said there:

"[S]ince there [was] no evidence of willful or negligent disregard of the statutory requirements in this case and no evidence of inattention to such requirements as a pattern or practice, no sufficiently useful prophylactic purpose would be served in penalizing the police for failure to conform to the terms of the statute taken literally” (id., at 177).

In an equally cogent application of that rationale to this criminal juvenile offender situation, the police here repeatedly sought to ascertain defendant’s correct age. Defendant’s own repeated affirmative deceptions, which led the police to believe that he was a legal adult, supplied a lawful basis to question him without parental or guardian notification or presence so long as adult protections, like Miranda warnings, were attended to, which they were. There is ample evidence and findings by the courts below, with appropriate fact-reviewing powers, that the police diligently attempted to comply with all statutory and constitutional responsibilities, and actually did so, when lawfully required within the framework of the fast-developing investigation. In contradistinction, the dissent makes significant inferences and fact-like assertions concerning seriously improper motivations of the investigating law enforcement officials (dissenting opn, at 63, 64), despite this Court’s lack of power to engage in such analysis (NY Const, art VI, § 3 [a]; see also, People v Centono, 76 NY2d 837, 838).

Notably, as to other persons being dealt with during this intense investigation, when the police were aware that an individual they had detained was under 16, they waited. In at least one case, they waited several hours until the juvenile’s parents were present before conducting any questioning. Appellant’s questioning, without additional youth protective protocols, was driven by his deception of the police at the outset that he was of adult age. On this record, we cannot say that he was deprived of any rights he was entitled to or claimed.

Defendant’s other arguments have been reviewed. They are without merit and do not affect the substantive or procedural regularity or correctness of the lower courts’ decisions upholding this juvenile offender’s conviction.

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

Titone, J.

(dissenting). This case concerns a horrible and brutal crime that captured and held the public’s attention for more than a year. It also involves the conduct of police officers and an Assistant District Attorney who obtained a confession from a 15-year-old boy by keeping him in isolation from the three concerned adults who came to the police station to help him. Because the officers’ actions represented a deliberate effort to keep him away from all responsible individuals who might have offered counsel or assistance, I would reject the holdings of the courts below and hold instead that the resulting confession must be suppressed.

Although the majority briefly sketches the circumstances surrounding defendant’s detention and interrogation, they are sufficiently important to bear further elucidation. At a little after 10:30 p.m. on the day after the highly publicized crime occurred, Detective Taglioni and three other detectives went to defendant’s home and "asked” him and his two companions to come to the police station for questioning. Defendant "voluntarily” accompanied the detectives, while his sister called an aunt who lived near the police station, Marilyn Hatcher, and asked her to go to defendant’s aid. Hatcher left for the police station with her fiancé almost immediately, arriving at approximately 11:10 p.m. By that time, defendant had arrived at the police station and had been taken to the Sex Crimes Office for questioning.

A Detective McKenna read defendant the Miranda warnings and obtained a waiver of his rights just as Hatcher reached the police station and told an officer that she wanted to see her nephew. After being asked to wait for a few minutes, Hatcher was told by Detective Taglioni that defendant was currently being questioned, that she would not be permitted to see him because she was neither a parent nor a guardian and, finally, that defendant would not even be given the information that "some of his family was there.”

Approximately 15 minutes later, David Nocenti, a United States Attorney who happened to be defendant’s "Big Brother”, arrived. Having learned from Hatcher that she had been prevented from seeing defendant, Nocenti approached the desk officer and informed him that he was a friend of defendant’s family as well as an attorney. Nocenti was asked to wait while Assistant District Attorney Fairstein, the head of the Sex Crimes Prosecution Unit, was informed of his presence. Fairstein conferred with one of the detectives who was involved in defendant’s questioning and ascertained that defendant had already made a number of inculpatory statements. Fairstein did not suggest that the questioning should be suspended because of Nocenti’s presence. Instead, she approached Nocenti, told him that he had no right to be at the precinct and questioned his ethics as an attorney. Significantly, Nocenti had made it clear that he was there not in his capacity as an attorney, but rather was there as a friend of the family who wanted to aid defendant. At 11:40 p.m., Fair-stein told Nocenti that he could not see defendant and that he would have to leave the premises because he was neither an immediate family member nor an attorney representing the suspect. As in the case of Marilyn Hatcher, defendant was not informed that Nocenti had come to the precinct to see him.

Within minutes, defendant’s mother arrived and encountered Hatcher and Nocenti, who were waiting outside the precinct. The entire group then reentered the precinct and informed the desk officer that defendant’s mother was now there. After waiting for a few minutes, Fairstein and another Assistant District Attorney spoke with defendant’s mother and told her that she would be permitted to see him after the questioning had been completed.

After conferring with Nocenti outside, defendant’s mother went back inside, this time demanding that she be permitted to see her son immediately. It was then that she revealed for the first time that defendant was 15, not 16 as the authorities had previously been led to believe. Apparently caught off guard, Fairstein bickered with defendant’s mother and Detective Taglioni for a few minutes before deciding to call a halt to the interrogation. Even then, the questioning did not immediately stop. Instead, it merely shifted to the subject of defendant’s age and how it had been misrepresented on his identification card.

In all, defendant was questioned for an hour and a half before the interrogation was terminated. During that entire period, unbeknownst to him, there were related and/or concerned adults who were present and could have provided him with helpful counsel had they not been denied all access to him. What emerges from these facts is a picture of law enforcement officers who were so anxious to extract a full and complete confession that they did everything within their power to keep this youthful suspect isolated and away from any adults who might interfere with their exploitation of "the awesome law enforcement machinery possessed by the State” (People v Cunningham, 49 NY2d 203, 207).

The majority finds no legal authorities that would forbid such conduct in the absence of some form of additional trickery or deception. I disagree. In an early line of cases, this Court held that a "denial of access to the defendant’s family [i]s germane, but in no wise controlling on the question of voluntariness” (People v Burd, 18 NY2d 832, 833; accord, People v Hocking, 15 NY2d 973; People v Taylor, 16 NY2d 1038). However, the categorical position represented by the line of cases on which the majority relies (see, majority opn, at 56) was long ago modified by important intervening precedent.

In People v Townsend (33 NY2d 37), the Court ordered suppression of a statement where the police had deliberately lied to a 17-year-old suspect’s mother to prevent her from knowing that he was even in police custody. Townsend is, admittedly, not directly supportive of defendant’s position here, since its holding rested on the Court’s conclusion that "it is impermissible for the police to use a confession * * * when, in the course of extracting [it], they have sealed off the most likely avenue by which the assistance of counsel may reach [the suspect] by means of deception and trickery” (id., at 41 [emphasis supplied]) — a condition not present here. However, the subsequent decision in People v Bevilacqua (45 NY2d 508) clarified the Court’s position and, in the process, adopted a view that is directly relevant to the issue presented here.

In Bevilacqua, the police first obtained an oral confession despite the defendant’s repeated requests to speak to his mother. They then extracted a written confession after misleading the defendant’s attorney about his whereabouts. On the defendant’s appeal, this Court directed the suppression of both statements, including the oral one that had been obtained before the suspect’s attorney "entered the proceeding.” In so ruling, the Court noted that the defendant’s attorney might have "entered the proceeding” at an earlier point if the defendant’s request to see his mother had been honored (id., at 514). In words that are particularly instructive in this case, the Court specifically identified as "[c]rucial” "the continuing effort by the police to prevent defendant from establishing contact with anyone who might be able to provide him with assistance or advice” (id., at 514).

It is evident from both the result and the rationale in Bevilacqua that the holding was not limited to a situation in which the police use deliberate trickery and deceit, as the majority suggests (majority opn, at 56). Indeed, if a narrow rule based on the use of chicanery had been intended, there would have been no reason for the Court to suppress the defendant’s oral statement, which was made before the deceived attorney had even arrived. The narrow construction that the majority now gives to the Bevilacqua decision is also belied by the opinion in People v Casassa (49 NY2d 668, 681-682), in which the Court rejected a mentally ill defendant’s Bevilacqua claim but suggested that the outcome might well have been different if "the record supported the inference that the police intentionally deprived the defendant of access to his family in an effort to obtain a confession.” Once again, the Court’s focus was on the denial of access, not the use of trickery and falsehoods.

Two subsequent developments in the case law are also pertinent. People v Fuschino (59 NY2d 91, 100) established the principle that relief is unavailable if the police do not deprive a 19-year-old suspect of access to family members "in an effort to bar his exercise of his right to counsel and to obtain a confession” (accord, People v Winchell, 64 NY2d 826, cited in majority opn, at 56). And, People v Crimmins (64 NY2d 1072) held, that the voluntariness of the confession of a "competent adult” who has not asked for an opportunity to speak with family members is not affected by the fact that the police have denied such family members access. Neither of these cases, however, addresses a problem such as the one presented here, where the detained suspect was a minor.

In this regard, the majority’s suggestion that the police "reasonably believed that they were dealing with an adult” (majority opn, at 56) is fallacious. Even assuming, as the police justifiably did, that defendant was 16 at the time he was questioned, it cannot be said that he was actually an adult in any realistic sense of that term. To be sure, our statutes would permit him to be tried as if he were an adult for the serious crimes of which he had been accused (see, CPL 1.20 [42] [2]). Furthermore, under CPL 140.20 (6) and Family Court Act § 305.2, he could be arrested without immediate notice to his parent or guardian. None of these statutory provisions, however, negate the elemental fact that defendant was, at most, 16 years old and, under our State’s law, an infant for most purposes (see, e.g., CPLR 105 [j]; Civil Rights Law § 1-a; Correction Law § 2 [13]; Domestic Relations Law § 2; EPTL 1-2.9-a; Judiciary Law § 1-a; General Obligations Law § 1-202). As such, unlike the detainees in Crimmins and Fuschino, defendant had neither the maturity nor the experience to protect his own rights in the inherently coercive, police-dominated atmosphere in which he found himself. Thus, as was recognized in Bevilacqua, he should have been permitted to establish "contact” with the adults who were waiting outside to see him and "who might be able to provide him with assistance or advice” regarding the seriousness of the situation and the need for consultation with counsel before making statements that would irrevocably prejudice his legal position (see, People v Bevilacqua, supra, at 514).

Furthermore, there can have been no other reason for the decisions of Detective Taglioni and Assistant District Attorney Fairstein to prevent defendant’s aunt, "Big Brother” and mother from speaking to him other than to capitalize on his youth and isolation and to assure that he did not receive aid and advice from the supportive adults who were in a position to retain counsel for him. Indeed, it is apparent that the authorities’ purpose was to obtain the evidence they wanted before permitting defendant to speak with an adult who might interfere with the investigators’ absolute control over his person and environment (see, People v Bevilacqua, supra, at 514). In other words, "the police intentionally deprived the defendant of access to his family in an effort to obtain a confession” (People v Casassa, supra, at 681-682).

Contrary to the majority’s assertion, the foregoing conclusion requires no impermissible inference drawing. Assistant District Attorney Fairstein made the authorities’ motives in this regard explicit when she told defendant’s mother that she would not be permitted to see her son until after the detectives were finished with their questioning. This declaration that defendant would continue to be isolated despite the presence of his mother at the police station belies the suggestions made earlier to Hatcher and Nocenti that the only reason they were being denied access was that neither was a parent or a person who had come to provide legal representation.

Finally, defendant’s need for an adult perspective in this situation is highlighted by the cynical manner in which the detectives manipulated the information they gave him in order to induce a confession. The detectives told defendant that he had been implicated in the crime by others but that it was possible that he could still be released "depending on what [he] ha[d] to tell [them].” When defendant balked, the officers told him, falsely, that they were able to lift fingerprints from the victim’s jogging pants. At that point, defendant, perceiving no alternative, acceded to the police pressure and began giving the inculpatory statements that had subsequently convicted him.

Manifestly, an experienced adult could have disabused defendant of the naive notion that there was anything he could say to police that would result in his release at this stage in the investigation. Certainly, a knowledgeable adult — or an attorney retained by such an adult — could have alerted him that he could not extricate himself from the most serious charges merely by denying having directly participated in the rape. In any event, defendant’s aunt, "Big Brother” or mother could have helped this 15-year-old suspect to appreciate the value of waiting until after he had spoken to an attorney before committing himself to the inculpatory statements he was in the process of making.

In sum, other than an undisguised intention to exploit this defendant’s youthful vulnerability, there was no justification for the authorities’ actions in preventing defendant from gaining access to the helpful counsel of the supportive adults who had gathered at the police station to assist him. Accordingly, I would hold that the statements the police obtained as a result of their overreaching ought to have been suppressed. Such a holding is necessary, in my view, both to deter the abuse of police authority and to protect the right to counsel of those who are too young and naive to appreciate its importance. Because the analysis and holdings of the courts below, and of the majority here, fail to give adequate weight to the rights of this unrepresented juvenile, I dissent from the decision to uphold his conviction.

Chief Judge Kaye and Judges Simons, Hancock, Jr., and Levine concur with Judge Bellacosa; Judge Titone dissents in a separate opinion; Judge Smith taking no part.

Order affirmed.

       I do not dispute the majority’s conclusion that the police cannot be faulted for failing to accord the statutory protections of CPL 140.20 (6) or Family Court Act § 305.2 when the suspect has misrepresented his age and there is no objective basis for doubting the suspect’s false claim.


author: Bellacosa, J. Levine, J.

text:
    [629 NE2d 378, 607 NYS2d 906]
    In the Matter of Steven D. Rose, as Commissioner of the Oswego County Department of Social Services, on Behalf of Edith L. Clancy, Appellant, v Kimberly L. Moody, Respondent. Attorney-General of the State of New York, Intervenor-Appellant.
    Argued November 18, 1993;
    decided December 20, 1993

      POINTS OF COUNSEL

      The Seiter Law Firm, Mexico (Kevin C. Caraccioli of counsel), for appellant.
    Family Court Act § 413 (1) (g) does not conflict with 42 USC § 667 (b) (2). Rather it is consistent with the legislative intent in establishing guidelines for child support obligations, and, therefore, should not be disturbed by the courts. (People v Broady, 5 NY2d 500; In re Burrus, 136 US 586; People v County Transp. Co., 303 NY 391.)

      Robert Abrams, Attorney-General, Albany (John McConnell, Jerry Boone and Peter H. Schiff of counsel), for intervenorappellant.
    I. The Court below erroneously addressed the constitutionality of section 413 (1) (g) in its review of this matter. (Knapp v Fasbender, 1 NY2d 212; Johnson v City of New York, 274 NY 411; Matter of Seitz v Drogheo, 21 NY2d 181; Schwartz v Texas, 344 US 199; King v Smith, 392 US 309; Dandridge v Williams, 397 US 471; New York Dept. of Social Servs. v Dublino, 413 US 405; Consumer Credit Corp. v Lewis, 63 Misc 2d 928.) II. The Court below’s holding that the State law was preempted on its face was erroneous under the clear terms of the statutes at issue and the manifest purpose of the Federal statute.

      Heidi Siegfried, Oswego, and Frederick M. Stanczak, Syracuse, for respondent.
    I. The Court below correctly found that the provisions of 42 USC § 667 prohibiting irrebuttable guidelines preempt the minimum order of New York State’s Family Court Act § 413 (1) (g). (McCulloch v Maryland, 4 Wheat [17 US] 316; Maryland v Louisiana, 451 US 725; Matter of Marino v Town of Ramapo, 68 Misc 2d 44; Baltimore Shippers & Receivers Assn. v Public Util. Commn., 265 F Supp 836, 389 US 583; Chevron U. S. A. v Natural Resources Defense Council, 467 US 837; Rosado v Wyman, 397 US 397; Wright v Roanoke Redevelopment & Hous. Auth., 479 US 418.) II. The Court below correctly concluded that the record in this case fully supports the decision of the Family Court.

      Wayne G. Hawley, New York City, Beth L. Andersen, Michelle D. Schreiber, John F. Castellano, Katharine A. Clemens, Gerald B. Liu and Thomas Maligno, Islandia, and Jane C.

      Reinhardt for MFY Legal Services, Inc., and another, amici curiae. I.
    The Court below properly reached the constitutional issues in this case. (Matter of Beach v Shanley, 62 NY2d 241; People v Felix, 58 NY2d 156, 464 US 802; Matter of Sarah K., 66 NY2d 223, cert denied sub nom. Kosher v Stamatis, 475 US 1108.) II. New York’s mandatory-minimum-child-support law is unconstitutional under the Due Process Clauses of the Federal and State Constitutions. (Stanley v Illinois, 405 US 645; Mathews v Eldridge, 424 US 319; Goldberg v Kelly, 397 US 254; Almenares v Wyman, 453 F2d 1075, 405 US 944; U. S. Dept. of Agric. v Murry, 413 US 508.) III. New York’s mandatory-minimum-child-support law violates the affirmative duty of the State under New York’s Constitution to aid the needy. (Tucker v Toia, 89 Misc 2d 116, 43 NY2d 1; Prior v Cunningham, 33 AD2d 853, 27 NY2d 502; Ellender v Schweiker, 575 F Supp 590, 781 F2d 314.) IV. Section 413 does not serve the legislative purposes for which it was enacted.
   OPINION OF THE COURT

Bellacosa, J.

Respondent mother has custody of two of her children and subsists on Social Services financial aid. Family Court rejected petitioner Oswego County Social Services Commissioner’s objections to the Hearing Examiner’s findings and determination that the respondent mother’s child support obligation for her third, noncustodial child was $0. The Commissioner and intervenor Attorney-General of the State of New York appeal as of right on constitutional grounds from the Appellate Division’s order affirming Family Court. They argue that New York’s Family Court Act § 413 (1) (g), which conclusively fixes a minimum $25 per month floor in all cases, is not preemptively nullified by any conflict with Federal law 42 USC § 667, which mandates a rebuttable presumption in all such instances. We disagree and affirm the determination of both lower courts in favor of the respondent indigent mother.

Where a Federal statute facially clashes with a State statute, the Federal statute must triumph. New York State’s Family Court Act § 413 (1) (g) creates an irrebuttable presumption imposing, in cases like this one, a $25 per month floor on all child support obligations up to an accumulated debt of $500. Thus, it flatly contradicts the enabling legislation, 42 USC § 667, that commands an opportunity in all cases to rebut and drop the support award floor to $0, when impoverished circumstances so dictate.

I.

Respondent has three children. At the commencement of this proceeding, her two-year-old twins lived with her; her first born, Robert, age 4, lived with his grandmother. He is, thus, a noncustodial child for purposes of section 413 (1) (g) of the Family Court Act. The mother and her children are entirely dependent upon the Department of Social Services for financial living assistance.

In January 1991, the Oswego County Department of Social Services filed a petition for support against the mother on behalf of the grandmother and the noncustodial child, Robert. The Family Court Hearing Examiner found against the Commissioner and directed an award of $0 per month in child support against the mother for Robert. The mother’s income, pursuant to Family Court Act § 413 (1) (b) (5), was determined to be $0 annually. Her basic child support obligation under the formula of the Child Support Standards Act (L 1989, ch 567, amending Family Ct Act art 4 ["Support Proceedings”]) was 17% of $0, which, of course, equals $0. He further determined that even though $0 is less than the poverty level, application of the New York State guidelines nevertheless would mandate a minimum child support obligation against her in the sum of $25 per month (Family Ct Act § 413 [1] [g]). The Hearing Examiner concluded that application of the mandatory minimum monthly award would be unjust and inappropriate, since the mother and her two custodial children were themselves recipients of public assistance.

Family Court upheld the findings of fact and the determination of the Hearing Examiner. The Appellate Division unanimously concluded that the Federal Child Support Enforcement Act prohibits a State from creating a "conclusive presumption that $25 is the correct amount of child support to be awarded, regardless of the parent’s means and circumstances” (Matter of Rose [Haney] v Haney, 188 AD2d 999, 1000). While it agreed with Family Court that the imposition of an uncollectible support figure would be unjust and inappropriate, it added that the conclusively mandated minimum award was also preempted by Federal law.

IL

The County and intervenor assert a constitutional basis to support the appeal as of right. They argue that Family Court Act § 413 (1) (g) avoids the constitutional preemption conflict of an irrebuttable mandatory minimum of $25 per month as an obligation of child support against any noncustodial parent, because the figure is a justifiable, albeit pro forma, public policy message, not a true collectible obligation. 42 USC § 667 (b) (2) provides that the amount of an award under State child support guidelines shall be presumed correct, subject to rebut-table criteria established by the State which allow noncustodial parents to show inability to pay. By establishing an irrebuttable minimum of $25, even though concededly uncollectible and solely "to send a uniform public policy message,” the State treads on the Federal mandate which gives a noncustodial parent the right to rebut any presumed support amount, all the way down to zero, by showing inability to pay. Thus, while a substantial constitutional question is directly involved in this appeal, we resolve the issue against the appellants.

New York participates in the Federally funded reimbursement program designed to foster child support payments from noncustodial parents. The program promulgates national standards and guidelines. Pursuant to Federal statute, each participating State is required to adopt State-wide guidelines in connection with child support awards as a condition for the State’s receipt of Federal funds under 42 USC §§ 654 and 655. New York has, thus, subjected itself to full compliance with the national regime by accepting Federal funds, a factor the dissent does not take cognizance of or credit.

Section 103 (a) of the United States Family Support Act of 1988 (amending 42 USC § 667 [entitled "State guidelines for child support awards”]) states in pertinent part:

"(2) There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case” (42 USC § 667 M).

The New York State Legislature in 1989 enacted the Child Support Standards Act (L 1989, ch 567, amending Family Ct Act art 4 et seq.) pursuant to the enabling United States Family Support Act. The New York implementation opens with a provision that parents with sufficient means or ability to acquire such means shall be required to pay child support pursuant to the established guidelines (Family Ct Act § 413 [1] [a]).

Section 413 (1) (c) of the Family Court Act provides for application of guidelines based on a pro rata share of a certain percentage of the combined parental income. "Income”, defined at section 413 (1) (b) (5), does not include public assistance. The respondent mother’s circumstances are such that her entire income is derived from public assistance. Thus, for purposes of the Family Court Act, she has $0 income. Family Court Act § 413 (1) (f) prescribes factors for deciding whether a guideline award is "unjust or inappropriate,” and details the criteria or factors that should provide a basis to rebut the presumptive guidelines. For example, the financial resources of the custodial and noncustodial parent and those of the child are pertinent (Family Ct Act § 413 [1] [f| [1]). Also relevant are the financial needs of any children of the noncustodial parent not subject to the particular support proceeding. A comparative resources analysis of the respective support needs of the custodial children and the noncustodial child who is the subject of the proceeding is also appropriate (Family Ct Act §413 [1] [¶] [8]).

In this case, the mother has satisfied one unassailable criterion to overcome the presumption that would require her to be obligated for support of her noncustodial son (see, Family Ct Act § 413 [1] [f]). She is indigent and needs Social Services financial assistance for herself and her twin custodial children. Since she has nothing, she can pay nothing. For a judicial decree to declare that she, nevertheless, owes what she cannot realistically or legally pay is not only unjust and inappropriate, it is a legal pretense. The Family Court Act paradigm erects a facial, not implied, contradiction because the proviso in section 413 (1) (g), that even where a guideline award is rebutted as unjust or inappropriate it must still result in a minimum award of no less than $25 per month. The prescribed national norms expressly provide for a substantively different mechanism.

Family Court Act § 413 (1) (g) states in pertinent part:

"Where the court finds that the non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party’s pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation * * * In no instance shall the court order child support below twenty-five dollars per month. Where the non-custodial parent’s income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue” (emphasis added).

Family Court observed that "[t]o require her to pay $25.00 per month in support towards her noncustodial child lowers her current monthly [public assistance] cash allotment from $126.00 to $101.00, a substantial percentage decrease, and, arguably a penalty per se for being a public charge.” Since New York otherwise immunizes public assistance recipients from levy and execution of judgments against them, including judgments for child support (see, Social Services Law § 137; Consumer Credit Corp. v Lewis, 63 Misc 2d 928), the appellants’ sought-after decree of a support obligation would be a mere showpiece.

Appellants also advocate that the interoperative effect of Family Court Act § 413 (1) (g) with Social Services Law § 137 clearly and manifestly excuses a chargeable parent without income, such as the respondent mother here, from any real payment obligation to any child. This position highlights the insurmountable problems of their argument that Family Court Act § 413 (1) (g) may be de facto harmonized with its Federal source statute, while de jure contradicting it on its face and in its inevitable application.

The Appellate Division affirmed in this case, stating because 42 USC § 667 (b) (2) "directly prohibits a State from enacting child support guidelines which permit no rebuttal of the amount awarded, we conclude that the provision in Family Court Act § 413 (1) (g) mandating a $25 minimum award is preempted under the Supremacy Clause” (Matter of Rose [Haney] v Haney, 188 AD2d 999, 1000). We agree with that Court that this is "directly prohibit[ed],” and that a perfunctory, legally noncollectible judicial order of support is not authorized and would send wrong messages. It would degrade the value and integrity of the judicial decree, and it would unjustly and unaccountably brand the respondent parent a deadbeat.

Appellants’ argument that Family Court abused its discretion is unavailing. So, too, is their claim that despite the fact that any percent of zero will inevitably equal zero, Family Court Act § 413 (1) (g) somehow constitutionally survives. The New York scheme cannot support a de jure irrebuttable presumption for the mandatory imposition of a minimum $25 per month statement of obligation against an indigent noncustodial parent.

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

Levine, J.

(dissenting). I respectfully dissent. In my view, respondent has not satisfied her heavy burden of establishing the facial invalidity of the provision in New York’s Child Support Standards Act (L 1989, ch 567) mandating a minimum court-ordered child support obligation of a noncustodial parent of $25 a month (Family Ct Act § 413 [1] [g]), regardless of whether the application of the statutory child support guidelines would result in a lower amount, or whether a court might find that the statutory minimum support award was unjust or inappropriate in a given case. Contrary to the conclusion of the Appellate Division and the majority here, section 103 of the Federal Family Support Act of 1988 (42 USC § 667 [b] [2]) does not expressly prohibit a State from imposing a statutory minimum child support obligation.

The Federal statute requires the States to establish support guidelines (42 USC § 667 [a]). It provides that, in any judicial or administrative child support proceeding "[t]here shall be a rebuttable presumption * * * that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded” (42 USC § 667 [b] [2]). The Federal statute further provides that the presumption may be rebutted in a given case by a finding "that the application of the guidelines would be unjust or inappropriate”, under criteria established by the State (id. [emphasis supplied]; see, Family Ct Act § 413 [1] [f]). As the quoted portion of the Federal statute shows, the rebuttable presumption of section 667 (b) (2) does not deal directly with a State’s minimum child support level imposed irrespective of "the application of the guidelines” (id.). The majority infers, however, that because section 667 stipulates that the presumption of the correctness of an award pursuant to the State guidelines is rebuttable, Congress must have intended to bar any irrebuttable statutory minimum award. Thus, it is only by implication that the Federal statutory rebuttable presumption of a parental ability to pay a support award under the guidelines may be found to conflict with the mandatory $25 a month minimum child support award provision of the New York statute.

An individual attempting to establish the facial invalidity of a State statute under the Supremacy Clause (US Const art VI) by reason of an implied conflict with a Federal statute faces serious hurdles. First, as in any facial challenge to the constitutionality of a statute (except perhaps on First Amendment grounds) it must be demonstrated "that no set of circumstances exists under which the Act would be valid” (United States v Salerno, 481 US 739, 745; see also, Schall v Martin, 467 US 253, 268-269, n 18).

When the invalidity of a State statute is asserted because of a conflict with Federal law, it must be established that " 'it is impossible to comply with both state and federal law, * * * or [that] the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress’ ” (California Coastal Commn. v Granite Rock Co., 480 US 572, 581). Moreover, "[t]his inquiry requires [a court] to consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written” (Jones v Rath Packing Co., 430 US 519, 526 [emphasis supplied]).

Finally, and most importantly, the constitutional standard for preemption applicable here is especially severe, under long-established principles, because New York’s Child Support Standards Act deals with " 'the domestic relations of husband and wife, parent and child, [a subject which] belongs to the laws of the States and not to the laws of the United States’ ” (Rose v Rose, 481 US 619, 625 [quoting In re Burrus, 136 US 586, 593-594]). The Supreme Court has mandated exceptional deference to the States in matters regarding child support (481 US, at 628). "On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has 'positively required by direct enactment’ that state law be pre-empted” (Hisquierdo v Hisquierdo, 439 US 572, 581 [quoting Wetmore v Markoe, 196 US 68, 77]). "A mere conflict in words is not sufficient. State family * * * law must do emajor damage’ to 'clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.” (439 US, at 581, quoting United States v Yazell, 382 US 341, 352 [emphasis supplied].)

The purported conflict between Family Court Act § 413 (1) (g) and 42 USC § 667 (b) (2) simply does not meet those exacting standards for preemption. Taken literally, 42 USC § 667 (b) (2) merely insures that either the noncustodial or the custodial parent has the opportunity to demonstrate that strict application of a State’s child support guidelines is unjust or inappropriate, by showing that the resultant award is too onerous or insufficient to meet the child’s needs, according to the State criteria. As already demonstrated, 42 USC § 667 (b) (2) does not directly address a State’s imposition of a minimum child support obligation independent of any application of its guidelines. Thus, it has not even been conclusively shown here that there is a "conflict in words” between the Federal and State enactments at issue.

Nor does providing for a statutory minimum obligation of child support impair in any significant way the "clear and substantial” Federal interests and policies underlying the Family Support Act of 1988. Those policies and interests were "to restructure the basic program of public assistance for families in ways that emphasize parental responsibility through the enforcement of child support” (S Rep No. 100-377, 100th Cong, 2d Sess, reprinted in 1988 US Code Cong & Admin News 2776, 2778 [emphasis supplied]). The section mandating the presumptively binding effect of State child support guidelines is referred to collectively with other sections as "designed to strengthen the child support enforcement program” (id., at 2779 [emphasis supplied]). Providing for a statutory minimum child support award of $25 a month surely does not do "major damage” to these primary congressional policies and Federal interests reflected in the Family Support Act of 1988. The absence here of any significant deviation from congressional policies and Federal interests is further demonstrated by the approval by the Secretary of Health and Human Services of the New York child support enforcement program through its Child Support Standards Act. Congress charged the Secretary with the responsibility of reviewing, approving and auditing State child support enforcement programs to insure their conformity with the Federal Family Support Act (42 USC § 652).

Finally, any purported conflict with section 667 (b) (2) of the Federal statute is even more remote when one considers the interpretation and application of Family Court Act § 413 (1) (g) in conjunction with other State statutory provisions. Thus, by reason of statutory exemptions contained in Social Services Law §§ 137 and 137-a, respondent, whose exclusive source of income is receipt of public assistance, is not subject to present enforcement of the $25 a month minimum court-ordered child support obligation for her child living outside of her home. Moreover, Family Court Act § 413 (1) (g) further provides, in the case of a noncustodial parent whose income "is less than or equal to the poverty income guidelines amount for a single person”, the accrual of arrears on respondent’s child support obligation is statutorily limited to an aggregate of $500. Thus, the net effect of the minimum child support award mandated under this State’s Child Support Standards Act is an accumulation of arrears of $25 a month to a maximum of $500, payment of which is unenforceable until respondent has attained some financial ability to pay child support. The conflict between this deferred obligation to pay child support arrears not exceeding $500 and the rebuttable presumption of 42 USC § 667 (b) (2) is thus so remote as to become, at worst, de minimis.

For all the foregoing reasons, I would reverse the order of the Appellate Division and remit this proceeding to the Family Court of Oswego County for the fixing of an appropriate award of support pursuant to the provisions of Family Court Act § 413.

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

Order affirmed, with costs.


author: Levine, J. Titone, J.

text:
    [629 NE2d 384, 607 NYS2d 912]
    The People of the State of New York, Respondent, v Angel Claudio, Appellant.
    Argued October 7, 1993;
    decided December 21, 1993

      POINTS OF COUNSEL

      Proskauer Rose Goetz & Mendelsohn, New York City (William E. Hellerstein of counsel), for appellant.
    Once an individual’s right to counsel under article I, § 6 of the New York Constitution has indelibly attached, the right is violated when the representation afforded him or her by counsel in dealings with law enforcement authorities is grossly incompetent. (People v West, 81 NY2d 370; People v Harris, 77 NY2d 434; People v Settles, 46 NY2d 154; People v Skinner, 52 NY2d 24; People v Cunningham, 49 NY2d 203; People v Brown, 45 NY2d 852; People v Jenkins, 68 NY2d 896; People v Baldi, 76 AD2d 259, 54 NY2d 137; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (John M. Castellano, Barry A. Schwartz and Steven J. Chananie of counsel), for respondent.
    I. Because the hearing court’s order of suppression did not rely on the ground that defendant’s State constitutional right to counsel had been violated, that issue is not a proper subject of review on this appeal. (People v Goodfriend, 64 NY2d 695; People v Santorelli, 80 NY2d 875; People v Karp, 76 NY2d 1006; People v Cade, 74 NY2d 410; People v Harris, 77 NY2d 434; People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479; People v Claudio, 59 NY2d 556; People v Colon, 65 NY2d 888.) II. Law enforcement authorities afforded full respect to defendant’s right to interpose counsel between himself and the State, and this Court should decline to adopt defendant’s proposed rule requiring the exclusion of statements whenever counsel enters an investigation and, through no fault of the police, gives less than adequate advice. (People v Beam, 57 NY2d 241; People v Settles, 46 NY2d 154; People v Hawkins, 55 NY2d 474, 459 US 846; People v Clark, 41 NY2d 612; People v Robles, 72 NY2d 689; People v Kazmarick, 52 NY2d 322; People v Bing, 76 NY2d 331; People v Hobson, 39 NY2d 479; People v LaClere, 76 NY2d 670; People v Skinner, 52 NY2d 24.)
   OPINION OF THE COURT

Levine, J.

In the spring of 1980, defendant was indicted for the murder of a 16-year-old high school student. The indictment was based principally on defendant’s own inculpatory statements, which had been made to the District Attorney’s representative upon the advice of defendant’s retained attorney. In 1983, this Court affirmed the denial of defendant’s motion to suppress these inculpatory statements after rejecting appellate counsel’s contention that they were the result of a violation of defendant’s Sixth Amendment right to the effective assistance of counsel (People v Claudio, 59 NY2d 556 [Claudio I]). Defendant appears before us once again following a ruling by the United States Court of Appeals for the Second Circuit that a writ of habeas corpus should be granted and defendant released from State custody "unless the state affords [defendant] an opportunity to present [his] Article 1, § 6 state law claim to the New York Court of Appeals” (Claudio v Scully, 982 F2d 798, 806). We now hold, as we did in Claudio I, that the ineffectiveness of defendant’s first retained counsel affords no basis for reversal of his conviction.

We accept the premise, which was shared by every court that has considered this case, that retained counsel’s conduct in advising defendant to confess to the police — at a time when there was no concrete evidence against him and no possibility of a plea offer — represented gross professional incompetence (see, Claudio I, supra, at 560; 85 AD2d 245, 251; Claudio v Scully, 982 F2d 798, 802, supra). The dispositive issue, therefore, is whether our holdings that the State constitutional right to counsel indelibly attaches when a criminal suspect invokes that right by obtaining an attorney (see, People v Skinner, 52 NY2d 24; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325) imply a constitutional State guarantee of effective assistance of counsel when an attorney enters a case on a suspect’s behalf. We conclude that, except in most unusual circumstances not present here, the State is not charged with the responsibility of guaranteeing effective legal representation upon the entry of counsel at the preaccusatory, investigatory stage of a criminal matter, i.e., before the commencement of formal adversarial judicial criminal proceedings.

Defendant acknowledges that all our relevant precedents have involved some law enforcement official’s disregard of or interference with the attorney-client relationship by interrogation of the defendant in the absence of retained or assigned counsel. However, as we held in Claudio I, in the instant case, the prosecutor and the police scrupulously honored defendant’s relationship with his retained attorney. Furthermore, defendant has not cited any case declaring a State constitutional right to effective assistance of counsel at the preaccusatory stage of a criminal investigation. However, defendant argues that logically, once his State right to counsel indelibly attaches, the panoply of constitutional guarantees associated with the right to counsel spring into being. Defendant supports this deduction largely with the statement in People v Skinner (supra) that the bar to an effective waiver of the right to counsel in the absence of a suspect’s attorney "simply recognizes the right and need of an individual to have a competent advocate at his or her side in dealing with the State” (52 NY2d, at 29 [emphasis supplied]).

In our view, Skinner and its predecessors (supra) are inapposite to this case. Our holdings that the right to counsel indelibly attaches upon the entry of counsel at the preaccusatory stage involve different constitutional concerns and interests from the guarantee of effective legal representation. Moreover, any implication that the language employed in Skinner to which defendant cites was intended broadly to extend the right to effective legal assistance to the preaccusatory stage, is dispelled by the more specific effective representation cases decided by this Court subsequent to Skinner.

To be sure, we have developed a somewhat different test for ineffective assistance of counsel under article I, § 6 of the New York Constitution from that employed by the Supreme Court in applying the Sixth Amendment (compare, People v Baldi, 54 NY2d 137, 147, supra, with Strickland v Washington, 466 US 668, 687). Nonetheless, the basic purposes and constitutional interests at stake under both constitutional guarantees of an adequate legal defense in a criminal case are the same: (1) the preservation of our unique adversarial system of criminal justice, the underlying presupposition of which " 'is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free’ ” (United States v Cronic, 466 US 648, 655 [quoting Herring v New York, 422 US 853, 862]); and (2) the correlative necessity to provide a defendant with an advocate sufficiently competent to insure "fairness in the adversary criminal process” (United States v Morrison, 449 US 361, 364 [emphasis supplied]). "[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial” (United States v Cronic, supra, at 658). These concerns are subsumed in our adoption of the standard of meaningful representation for the fulfillment of the State’s own constitutional responsibility to insure effective assistance of counsel to the criminally accused (People v Baldi, supra, at 147). Moreover, the guarantee exists independent of any prosecutorial or judicial misconduct interfering with defense counsel’s effectiveness (Strickland v Washington, 466 US, at 686, supra).

The foregoing intrinsic premise and purposes of the constitutional right to effective representation — as the bulwark of our adversary system of criminal justice and an absolute necessity to achieve fairness to the accused within that adversary system — imply that the guarantee of effective assistance of counsel is not triggered until adversarial judicial criminal proceedings have been instituted against a defendant, and the Federal cases so hold. Thus, in Kirby v Illinois (406 US 682) the Supreme Court held that no rights under the Sixth Amendment accrue until the commencement of the criminal action.

"The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable” (id., at 689-690).

The language of our State Constitution also suggests that the guarantee of effective assistance of counsel does not arise until the commencement of adversarial judicial proceedings: "In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions” (NY Const, art I, § 6 [emphasis supplied]). Thus, it has been held that, generally, it is only at arraignment immediately after the start of judicial criminal proceedings that an indigent defendant first becomes entitled to the assignment of counsel (see, Strickland v Washington, 466 US, at 685, supra; see also, People v Samuels, 49 NY2d 218, 223).

Our cases holding that a suspect’s preaccusatory right to counsel indelibly attaches when retained or assigned counsel assumes representational responsibility do not implicate the same purposes and concerns as underlie the constitutional guarantee of effective assistance of counsel. Our rationale in those cases for applying an indelible right to counsel at the preaccusatory stage is essentially prophylactic, to prevent official overreaching and to insure that any waiver of the right to counsel is untainted. Thus, we have explained that a criminal suspect, by invoking the right to counsel, expresses a lack of competence to deal with law enforcement authorities without legal advice and, hence, needs the same protection before waiving the right to counsel (People v Cunningham, 49 NY2d 203, 209). And, in People v Hobson (39 NY2d 479, supra), we emphasized that "the presence of counsel is a more effective safeguard against an involuntary waiver of counsel than a mere written or oral warning in the absence of counsel” (id., at 484 [emphasis supplied]), and that procurement of a waiver of counsel in the absence of the suspect’s attorney violates ethical precepts barring interference with the attorney-client relationship (id.). We also said in People v Bell (73 NY2d 153): "[o]ur ruling [in People v Skinner, supra] was designed to prevent the police from rendering the right to counsel ineffective by questioning the defendant about matters relating to the subject of the representation in the absence of counsel retained on the matter” (73 NY2d, at 160 [emphasis supplied]).

Because People v Skinner and its predecessors (supra) deal not with the role of defense counsel in preserving our adversary system of criminal justice, but rather " '[preserving the integrity of an accused’s choice to communicate with police only through counsel’ ” (Minnick v Mississippi, 498 US 146, 153 [quoting Patterson v Illinois, 487 US 285, 291]), they have no precedential value for extending the State’s guarantee of effective assistance of counsel to a suspect, such as defendant, at the preaccusatory stage. More to the point are our holdings in Claudio I and in People v Beam (57 NY2d 241).

In Claudio I, we ruled that defendant’s Sixth Amendment right to effective assistance of counsel had not yet become operative and, hence, was not violated by his attorney’s incompetent advice to confess to the police at the preaccusatory stage of the criminal proceedings in which he was involved. Our reasons for so holding are equally applicable to defendant’s claim here. In Claudio 1', we noted that, because defendant’s confession occurred before the accusatory stage had begun, he would not have been entitled to assigned counsel when he was interrogated by the police had he then requested rather than retained a lawyer (see, People v Samuels, supra; Strickland v Washington, supra). We then reasoned that "[inasmuch as defendant would have had no right to insist that a lawyer be provided for him when he talked to the authorities, he should not be rewarded by a suppression order merely because he chose to bring a lawyer who proved valueless” (Claudio I, 59 NY2d 556, 561, supra). A second ground we expressed in Claudio I for refusing to impose at the preaccusatory stage an obligation under the Sixth Amendment to provide effective representation was that, prior to the beginning of formal adversary judicial proceedings, the courts have neither the ability to detect nor the means to remedy incompetent or disloyal conduct of defense counsel (id., at 562). The same is true with respect to the State right to effective representation. Indeed, any intervention by State agents to remedy any suspected incompetent advice of defendant’s attorney would have been barred by our holdings in People v Skinner and People v Hobson and by the ethical precepts invoked in those cases.

In People v Beam (supra), we flatly rejected the claim that the preaccusatory right to counsel of Skinner created a corresponding State obligation to provide effective assistance of counsel at the same stage. We said in People v Beam:

"When a person has had the benefit of counsel and then chooses to waive one of his rights, the police are not required to question the validity of that decision as long as they are assured that the decision was made in consultation with the suspect’s attorney. * * * As long as the police honored the defendant’s right to counsel, and determined that he was speaking with them on advice of counsel, the defendant was afforded all the protections encompassed by the constitutional right to counsel” (id., at 254-255).

Thus, although in People v Beam we discussed the possibility that the retained attorney’s improvident advice was not attributable to incompetence but rather to the incomplete information the defendant gave his attorney, the central holding of Beam is that the right to counsel that had indelibly attached by the entry of a retained attorney at the preaccusatory stage was simply the right not to have the attorney-client relationship interfered with or disregarded by law enforcement authorities. This right to counsel at that stage does not guarantee the efficacy of the attorney’s representation; it only requires law enforcement agencies to honor fully " 'the integrity of an accused’s choice to communicate with police only through counsel’ ” (Minnick v Mississippi, 498 US 146, 153, supra).

Because the law enforcement authorities in this case did fully honor the right to counsel of defendant which attached when he retained and then consulted with his attorney, he has not established any violation of article I, § 6 of our New York Constitution arising out of his attorney’s incompetent advice.

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

Titone, J.

(concurring). Utilizing principles that were developed largely in the Sixth Amendment context, a majority of this Court has concluded that the indelible State constitutional right to counsel that was formulated in such cases as People v Arthur (22 NY2d 325), People v Hobson (39 NY2d 479), People v Rogers (48 NY2d 167), People v Cunningham (49 NY2d 203) and People v Skinner (52 NY2d 24) does not encompass the right to legal assistance that is competent and meaningful. Because the majority’s analysis reduces what was previously regarded as an important substantive guarantee to a mere technical device for regulating police conduct, I cannot concur in its opinion. Although I agree that the State Constitution does not afford defendant a basis for relief under the circumstance of this case, my reasons are so different from those of my colleagues that a separate exposition is necessary.

The central issue raised by this reargued appeal is whether a suspect is deprived of a right conferred by article I, § 6 of the State Constitution when the attorney he or she has retained has provided incompetent and affirmatively damaging advice. The majority does not dispute that the "indelible” right to counsel attached in these circumstances under People v Skinner (52 NY2d 24, supra), in which it was held that a represented suspect has the right to the advice and assistance of his retained counsel when confronted by the police — even in a noncustodial setting. Thus, the only question that divides us is whether we should ascribe any concrete legal significance to Skinner Court’s statement that the right it was recognizing there was that "of an individual to have a competent advocate at his or her side in dealing with the State” (id,., at 29 [emphasis supplied]).

The majority suggests that the quoted language in Skinner may never have been "intended broadly to extend the right to effective legal assistance to the preaccusatory stage” (majority opn, at 79). However, Skinner involved the Arthur-HobsonCunningham branch of the right to counsel (see, People v Bing, 76 NY2d 331, 339; People v Skinner, supra, at 28-29), which only comes into play when a represented suspect has not yet been formally charged. Thus, the Court’s recognition of a right to a "competent” advocate could only have been intended to refer to "the preaccusatory stage.”

The majority also asserts that subsequent "more specific” cases make clear that the Skinner preaccusatory right does not include the right to effective counsel. But, three of the four cited cases (United States v Cronic, 466 US 648; United States v Morrison, 449 US 361; Strickland v Washington, 466 US 668) were decided under the Federal Constitution’s Sixth Amendment, which does not contemplate a preaccusatory attachment of the right to counsel at all (see, Kirby v Illinois, 406 US 682). Further, all four of the cited cases involved the specific question of defense counsel’s trial performance. It is thus not remarkable that each of the cited cases discusses the right to "meaningful representation” in terms of its relationship to " 'fair trial[s],’ ” the "adversarial system” and the " 'adversary criminal process’ ” (majority opn, at 79, 80). In light of their contexts, the judicial statements on which the majority relies have little bearing on the entirely separate and novel question presented here: the scope and effect of New York’s pretrial right to counsel.

Similarly, since the New York State right to counsel has always been deemed to be broader than its Federal counterpart, it does not aid analysis to invoke, as the majority has (majority opn, at 80), the Kirby v Illinois holding that no rights under the Sixth Amendment accrue until the commencement of the criminal action (supra, at 689-690). Once again, that circumstance is irrelevant in a jurisdiction such as ours, which has long recognized the existence of substantial preaccusation rights under the State constitutional right-to-counsel guarantee.

Even more fundamentally, the majority’s core rationale— that the previously recognized preaccusatory right to counsel "do[es] not implicate the same purposes and concerns as underlie the constitutional guarantee of effective assistance of counsel” (majority opn, at 81) — does not withstand close scrutiny. As the majority itself acknowledges, the purposes of the Arthur-Hobson-Cunningham branch of the right to counsel are to equalize the imbalance in the relative positions of official interrogators and their subjects and to protect the integrity of any waiver the suspect might make in the face of the State’s powerful law enforcement machinery (People v Bing, 76 NY2d 331, supra; see, People v Cunningham, supra, at 207). These aims cannot be achieved if the right to counsel can be satisfied by the presence of an attorney whose performance does not meet even minimal standards of competence. An attorney who, as here, provides such "woefully inadequate” counsel (see, People v Claudio, 59 NY2d 556, 560) as to prompt his client to make an "uninformed waiver” (People v Claudio, 85 AD2d 245, 252) certainly cannot be said to have fulfilled the goal of " '[breathing] life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary’ ” (People v Bing, supra, at 339, quoting People v Hobson, supra, at 484).

In the final analysis, the majority cites no case which holds or even suggests that the right to the assistance of counsel at preaccusatory phases requires the presence of a licensed but not necessarily competent attorney. Indeed, no prior decision has attempted to separate the notion of a right to counsel from the notion of a right to effective representation. This dearth of authority is not surprising, since the proposition that the right to counsel can exist separate and apart from the right to competent counsel is inconsistent with the " long * * * recognized’ ” maxim " 'that the right to counsel is the right to the effective assistance of counsel’ ” (United States v Cronic, supra, at 654, quoting McMann v Richardson, 397 US 759, 771, n 14). "To hold otherwise 'could convert the [right to] counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel’ ” (United States v Cronic, supra, at 654, quoting Avery v Alabama, 308 US 444, 446).

Finally, contrary to the majority’s statements, the fact that law enforcement authorities are generally not in a position to monitor the quality of a suspect’s representation does not provide a sound rationale for accepting incompetent and even worthless legal counsel in fulfillment of a suspect’s ArthurHobson-Cunningham right. The right to counsel is a freestanding constitutional guarantee that exists separate from, and independent of, any of the constitutional proscriptions against official misconduct (see also, Strickland v Washington, supra, at 686 [noting that a defendant may be deprived of the Sixth Amendment right to effective assistance either by the actions of government or by counsel’s own actions]). Thus, the fact that there has been no police impropriety in cases such as this does not in itself vitiate the theoretical merits of a claim based on the ineffectiveness of a suspect’s counsel during the preaccusatory proceedings.

Nonetheless, the absence of unlawful conduct by law enforcement authorities does have critical legal significance when considered in the context of the specific suppression remedy that this defendant seeks. As this Court has recently observed, the primary rationale for the suppression of otherwise trustworthy evidence is the value that that remedy has for deterring official misconduct (Matter of Boyd v Constantine, 81 NY2d 189, 195; see, People v Drain, 73 NY2d 107, 110; People v Harris, 72 NY2d 614, 621-622; People v Boodle, 47 NY2d 398, 404; People v McGrath, 46 NY2d 12, 21). Further, the suppression remedy is to be avoided when the deterrent benefit to be derived therefrom would be minimal (see, e.g., Matter of Boyd v Constantine, supra; People v Drain, supra; People v McGrath, supra; People v Arnau, 58 NY2d 27).

Here, the constitutional "wrong” was perpetrated not by a servant of the State, but rather by a private attorney acting in his capacity as the suspect’s legal adviser. The law enforcement authorities who dealt with defendant after he surrendered himself were not in any way responsible for the woefully incompetent and injurious advice defendant’s attorney gave and had no duty to ensure that defendant’s right to the competent advice by counsel was honored (see, People v Beam, 57 NY2d 241). Indeed, the State agents who questioned defendant were not even in a position to intervene had they wished to do so, since any such intervention would have undermined the sanctity of the attorney-client relationship (see generally, People v Skinner, supra, at 29-30, citing New York State Bar Assn Code of Professional Responsibility DR 7-104 [A] [1]; ABA Code of Professional Responsibility DR 7-104 [A] [1]; People v Hobson, supra, at 484-485). Thus, there was no official impropriety and no deterrent benefit whatsoever to be gained in these circumstances. Consequently, no sound legal purpose would be served by the exclusion of the statements obtained as a result of defendant’s attorney’s substandard performance.

I recognize that it may seem somewhat anomalous to some to argue for recognition of a constitutional right on the one hand while concluding on the other that the violation of that right has no remedy in these circumstances. Despite the potential incongruity inherent in that position, I prefer it to the position the majority has adopted, which radically diminishes the preaccusation right to counsel and dilutes this Court’s traditionally steadfast commitment to "safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him” (People v Cunningham, 49 NY2d 203, 207, supra). I continue to believe that the presence of a trained and competent attorney is "the most effective means we have of minimizing the disadvantage at which an accused is placed when * * * directly confronted with the awesome law enforcement machinery possessed by the State” (id., at 207; see, People v Settles, 46 NY2d 154, 161). My conclusion that suppression is unwarranted in these circumstances merely reflects my additional belief that the extraordinary price of excluding trustworthy and probative evidence ought not to be exacted when there is no countervailing societal benefit to be gained (cf., People v Bing, 76 NY2d 331, 348, supra).

Accordingly, I concur in the Court’s decision on reargument to affirm.

Judges Simons, Hancock, Jr., Bellacosa and Smith concur with Judge Levine; Judge Titone concurs in result in a separate opinion; Chief Judge Kaye taking no part.

On reargument, order affirmed.

       It is also dispelled by the fact that, virtually contemporaneously with Skinner, this Court declined to adopt a "competency” standard for the right to eifective assistance of counsel (see, People v Baldi, 54 NY2d 137, 146-147).

      . For this reason, the majority’s reason for invoking the language of article I, § 6 of the State Constitution is obscure. While it is true that the constitutional provision, literally read, creates a right to counsel only for "any trial in any court,” it cannot seriously be disputed that the provision’s guarantee, as construed by the judiciary, extends to pretrial and even preaccusatory investigative proceedings.

        . Indeed, when an appellate court reverses a conviction on the ground of ineffective assistance of trial counsel, its decision is based not on any error or wrong committed by the trial court but rather on the impairment of the adversary system that occurs when the accused is not represented in accordance with at least minimal standards of professional competence (see, Strickland v Washington, supra, at 684-686).

      . The Court’s opinion leaves open the possibility of an exception to its holding in the event of "most unusual circumstances” different from those present here (majority opn, at 78). However, the Court’s rationale does not suggest any analytical basis for such an exception. Additionally given the unquestionably egregious performance of defendant’s first attorney, it is difficult to imagine what "unusual circumstances” the majority would recognize as a basis for affording a preaccusatory right to representation that is "effective.”