author:
Wachtler, J.
      Fuchsberg, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Warren Young, Appellant.
    Argued February 12, 1982;
    decided April 7, 1982

      POINTS OF COUNSEL

      Barry D. Leiwant, William E. Hellerstein and Thomas H. Busch for appellant.
    Admission into evidence, on the issue of appellant’s guilt, of the underlying facts of appellant’s unlawful arrest deprived appellant of his State and Federal constitutional rights to due process and to be free from unreasonable searches and seizures. (United States v Crews, 445 US 463; People v Rogers, 52 NY2d 527; Wong Sun v United States, 371 US 471; United States v Ceccolini, 435 US 268; People v Laverne, 14 NY2d 304; People v Abruzzi, 52 AD2d 499, 42 NY2d 813, 434 US 921; People v Howard, 50 NY2d 583; People v Cantor, 36 NY2d 106; Moore v Illinois, 408 US 786; Manson v Brathwaite, 432 US 98; People v Crimmins, 36 NY2d 230.

      Mario Merola, District Attorney (Philip Foglia and Peter D. Coddington of counsel), for respondent.
    I. Appellant’s guilt was proved beyond a reasonable doubt by overwhelming evidence. II. The underlying facts of appellant’s arrest did not represent “fruits of the poisonous tree” and they were properly admitted into evidence. (United States v Crews, 445 US 463; Gerstein v Pugh, 420 US 103; People v Rogers, 52 NY2d 527; United States v Calandra, 414 US 338; People v McGrath, 46 NY2d 12; Alderman v United States, 394 US 165; McGuire v United States, 273 US 95; United States v Ceccolini, 435 US 268; People v Almestica, 42 NY2d 222; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Wachtler, J.

The question presented for our review on this appeal is whether in a criminal proceeding police officers may properly be allowed to testify to the underlying facts and circumstances surrounding appellant’s unlawful arrest notwithstanding the suppression of both physical evidence seized from appellant at the time of his arrest and testimony regarding an unlawful showup conducted immediately after the arrest. We hold that they may.

On the morning of March 22,1978 Thomas Pimentel was working alone at his cousin’s grocery store in The Bronx. At approximately 10:30 a.m. appellant entered the store, bought chewing gum and left. A few minutes later appellant reentered the store, still occupied only by Mr. Pimentel, produced a knife and announced a robbery. Appellant removed the contents of the cash register, consisting of money and food stamps, and fled.

At approximately 10:50 a.m. on the same morning, Officers Scanlon and Calise who were parked nearby, observed appellant walking quickly and continually looking over his shoulder. They watched him enter a subway station, emerge from it looking up and down the street, reenter into and reemerge from the station, and finally run from the station to catch a bus. As the officers followed the bus they received a radio alarm informing them that the grocery store near where they first observed appellant had been robbed.

Appellant rode the bus for only two blocks, after which the officers observed him walk for three blocks and enter a construction site. At that point the officers approached him, identified themselves and told him to stop. Appellant put his hand in his pocket, but Officer C alise restrained him before he could remove his hand. Appellant was then arrested and searched, and the officers seized a knife, $69.08 in cash and $11 in food stamps. Appellant was taken back to the grocery store, where Mr. Pimentel identified him as the person who committed the robbery. Both Mr. Pimentel and appellant were then removed to the local precinct.

At the pretrial hearing, the court determined that appellant was arrested without probable cause and granted his motion to suppress the knife, the money and the food stamps seized at the time of arrest. In addition, and for the same reason, the hearing court also suppressed the testimony by Mr. Pimentel regarding his identification of appellant at the showup immediately following the arrest. The court ruled, however, that testimony proving that appellant was arrested could be elicited. The court also permitted Mr. Pimentel to identify appellant at trial, finding that his observation of appellant immediately before and at the time of the robbery established a sufficient source independent of the illegal showup.

At trial the officers testified to the facts described above, except that they did not refer to the seizure of the knife, money or food stamps or to the showup identification of appellant by Mr. Pimentel. Mr. Pimentel testified to the circumstances of the robbery and identified appellant as the perpetrator, but similarly did not discuss the postarrest showup identification. After beginning its deliberations the jury asked the court whether it was entitled to know if the knife or the money was found on the defendant at the time of arrest. The court told the jury that this information could not be disclosed.

Appellant was convicted of robbery in the first degree (Penal Law, § 160.15, subd 3) and criminal possession of a weapon in the fourth degree (Penal Law, § 265.01, subd [2]). We agree with the Appellate Division that the judgment of conviction should be affirmed.

Appellant’s primary contention on this appeal is that the officers’ testimony concerning events which occurred after they stopped appellant at the construction site was the direct product of an illegal arrest and should have been suppressed in accordance with the exclusionary doctrines espoused by the Supreme Court in Wong Sun v United States (371 US 471) and its progeny. Appellant does not challenge the admissibility of testimony regarding the officers’ observations up to the point he entered the construction site, nor could he, for it is clear that even though the police lack probable cause, they may unobtrusively observe and follow a suspect as long as the suspect’s freedom of movement is not limited by doing so (People v Howard, 50 NY2d 583, 592). Appellant argues, however, that the officers’ testimony that they drew their guns and stopped appellant, that he reached into his pocket and was immediately arrested, and that he was taken to the scene of the crime and thereafter along with Pimentel to the local precinct, should have been excluded. We do not agree that the exclusionary rule should be applied to this testimony.

It may well be, as is the view of some members of our court, that the testimony of the police officers in this instance was not the product or the exploitive consequence of any search or seizure falling within the proscriptive scope of the Fourth Amendment, but rather that the testimony was of observations made prior and with respect to the arrest (later determined to have been made without probable cause). On this analysis it is said that the proscription of the Fourth Amendment, and thus the constraint of its associated exclusionary rule, were irrelevant and that the hearing court accordingly properly differentiated between testimony as to certain events which occurred (the facts of the police surveillance and the arrest of defendant) — which was admitted — and evidence obtained as a result of that arrest (the knife, the money and the food stamps seized at the time and the identification testimony of Mr. Pimentel elicited as a consequence of the arrest) — which was suppressed.

But those members of the court who believe that the testimony of Officers Scanlon and C alise falls within the broad ambit of Fourth Amendment proscription, nevertheless hold the view that the concomitant exclusionary rule should not be invoked in this instance to preclude admission of their testimony. Their position may be expressed as follows. The exclusionary rule was originated to effectuate the Fourth Amendment’s guarantee that all citizens “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. The rule prohibits the use of evidence obtained in violation of an accused’s Fourth Amendment rights in a criminal proceeding against him (Mapp v Ohio, 367 US 643) and this prohibition applies to any tainted fruits, whether tangible or verbal, of illegally seized evidence (Wong Sun v United States, 371 US 471, supra).

The underlying purpose of the exclusionary rule is not to redress the injury to the accused’s privacy for that privacy once invaded, may never be restored. Rather, the rule’s primary objective is to deter future unlawful police conduct and thereby effectuate the Fourth Amendment’s proscription against unreasonable searches and seizures (Linkletter v Walker, 381 US 618; Elkins v United States, 364 US 206). “In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generated through its deterrent effect, rather than a personal constitutional right of the party aggrieved” (United States v Calandra, 414 US 338, 348).

The Supreme Court, however, has readily acknowledged that the exclusionary rule has never been interpreted to preclude the “use of illegally seized evidence in all proceedings or against all persons” (United States v Calandra, supra, at p 348; see, also, United States v Ceccolini, 435 US 268, 275; Stone v Powell, 428 US 465, 486). Noting that in some cases the societal costs of applying the exclusionary rule are too substantial when compared to limited benefits derived from it, both this court and the Supreme Court have held that the application of the rule must be restricted to those areas where its remedial objectives are most “efficaciously served” and not merely “tenuously demonstrable” (United States v Calandra, supra, at p 348; People v McGrath, 46 NY2d 12, 21). It is clear that the exclusionary rule has never been considered a fundamental right of constitutional dimensions requiring automatic application whenever the Fourth Amendment has been violated. Rather, it has always been incumbent upon the courts to balance the societal cost of losing reliable and competent evidence against the probable effectuation and enhancement of Fourth Amendment principles, for as our court unanimously found, the application of the exclusionary rule is dependent “upon a balancing of its probable deterrent effect against its detrimental impact upon the truth-finding process” (People v McGrath, supra, at p 21).

The members of the court who consider the officers’ testimony regarding the underlying facts of the unlawful arrest to be within the proscription of the Fourth Amendment would also conclude that the testimony was properly received in evidence. The suppression of the knife, money, food stamps and postarrest showup identification transformed an arguably strong case into a weak one in which only the in-court identification by Pimentel could link appellant to the crime. The police were thus sufficiently penalized for conducting the unlawful arrest through the dissipation of an otherwise solid case against the defendant.

Analysis of the probative impact of the officers’ testimony from the jury’s point of view clearly demonstrates the limited deterrent value of any additional suppression. The mere fact that appellant was arrested is in no way indicative of guilt, and that revelation to the jury would not suggest that incriminating, evidence was seized from him or that he was identified by the victim shortly thereafter. Certainly it would only be logical for a jury to assume that a criminal defendant would not be on trial had he not been arrested.

An illegal arrest, without more, has never been envisioned as a bar to prosecution or as a defense to a valid conviction (United States v Crews, 445 US 463, 474). The defendant, for instance, cannot suppress his presence at trial for the reason that his arrest was illegal. Similarly, in the view of these members of the court, the circumstances surrounding an illegal arrest should not be considered as suppressible fruit.

Whichever analysis be adopted — that the testimony of the police officers does not come within the scope of the Fourth Amendment, or that in any event the exclusionary rule should not be applied in the circumstances of this case — we conclude that the testimony of Officers Scanlon and Calise was properly received in evidence.

Contrary to the assertion of the dissenters and the contention of appellant it is far from clear that the officers’ testimony required the jury to infer that appellant had been searched and that the search produced the knife and money described by Pimentel in his testimony. Appellant claims that the testimony that he was arrested near the crime scene shortly after the robbery occurred necessarily implied that if he were the robber he had no opportunity to dispose of the money or knife, and, concomitantly, that it would be unlikely that appellant would have been arrested at that point unless the police seized incriminating evidence from him.

These assertions constitute nothing more than utter speculation, for it would appear to us that the opposite inference could just as easily be drawn from the testimony: the People’s failure to introduce any damning physical evidence at trial, despite appellant’s arrest in close temporal and spacial proximity to the crime and crime scene, could have carried the implication that since appellant had no opportunity to dispose of either the weapon or the money he therefore could not possibly have been the perpetrator. Moreover, the jury’s question whether appellant had possession of the knife and money at the time of arrest is not indicative of what inference was actually drawn by the jury, for the identical question could have arisen in their minds whether or not evidence of the arrest had been presented. As noted above, it is logical enough to assume appellant was arrested from the mere fact that he was in court being criminally prosecuted.

Finally, appellant’s claim that the testimony that he was taken immediately to the grocery store and, along with Pimentel, to the precinct suggested an identification by the victim immediately after the incident is similarly too speculative to warrant serious consideration. An equally plausible inference would be that since no postarrest identification testimony was. presented no positive identification occurred, requiring further opportunity for consideration at the precinct.

Had defendant been concerned as to possible inferences which the jury might draw from the officers’ testimony his remedy was to request appropriate countermanding instructions. If, in a particular case, the available inferences were so compelling as to foreclose the possibility of their eradication by any such instructions the testimony should then have been excluded. We conclude, however, the available inferences in this instance were not of such character.

For the reasons stated, the order of the Appellate Division should be affirmed.

Fuchsberg, J.

(concurring). I too would uphold the defendant’s conviction for all the fruits of the unlawful arrest — the knife, the money, the food stamps and the postarrest showup identification — were suppressed (People v Mendez, 28 NY2d 94, cert den 404 US 911; People v Graham, 39 NY2d 775; cf. United States v Crews, 445 US 463, 474).

But I cannot subscribe to such vague and overgeneralized declarations as, for instance, the one that, in applying the exclusionary rule, courts are to weigh “the societal cost of losing reliable and competent evidence” against “the probable effectuation and enhancement of Fourth Amendment principles” (p 425). Nor do I subscribe to the court’s related discussion of this subject. Effective enforcement of our Constitutions, Federal and State, would soon be undermined if subjected to the vagaries of such a case-by-case balancing act.

A more overriding consideration is the rule’s role in vindicating the integrity of our government in general and of the judicial process in particular. It is long recognized that, lacking this “imperative of judicial integrity” (Elkins v United States, 364 US 206, 222), “ ‘[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself’ ” (Mapp v Ohio, 367 US 643, 659, quoting Justice Brandéis’ fundamental declaration in Olmstead v United States, 277 US 438, 485).

That these observations are not only conceptual but pragmatic is borne out by the fact that empirical studies thus far have failed to support the hypothesis that the detection or prosecution of crime will be advanced in any meaningful degree by emasculating the exclusionary rule (see Geller, Enforcing the Fourth Amendment: The Exclusionary Rule and Its Alternatives, 1975 Washington U LQ 621; Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v Calandra, 69 NW U L Rev 740; also cited in Geller, Is the Evidence in on the Exclusionary Rule?, 67 J ABA 1642 [Dec., 1981]). It follows that unnecessary or cavalier disregard of the high principle at stake is hardly in order.

It therefore is of even more than passing significance that two of the five Judges who joined in the court’s opinion, including myself, believe, that “the proscription of the Fourth Amendment, and thus the constraint of its associated exclusionary rule” is a matter entirely “irrelevant” to the decision of this , case (p 424).

Meyer, J.

(dissenting). The issue in this case is not whether “underlying facts and circumstances” surrounding an unlawful arrest may be received in evidence at trial. The issue is whether a prosecutor may be permitted to defeat a pretrial ruling in which a knife, the proceeds of a robbery and a showup identification have been suppressed by adducing testimony that could have served no other purpose and raised no other reasonable inference than that the defendant possessed a weapon when apprehended and, shortly after his apprehension, was positively identified by the victim of the crime.

Turning first to the suppression of physical evidence, I have no doubt that Officers Scanlon and Calise were barred by the suppression court’s ruling from testifying that a knife was found in defendant’s pants pocket. Yet the majority sanctions testimony from each officer that defendant reached into his pants pocket immediately after the plainclothes officers identified themselves as police and that, in response to defendant’s motion, each drew his gun. On direct examination, the officers testified as follows:

“[Scanlon]: We drove into the construction site, stopped the car behind [defendant] to his right as he was walking along, then we told him to hold up a second.

“Q. What did you do when you got out of your car?

“A. As I stopped the car and I told that to him, I noticed that he had his hand in his right pocket.

“Q. What did you do?

“A. I drew my revolver.

“Q. What did you do then?

“A. When he turned, he had his hand in his pocket.

* * *

“[Calise]: I drew my gun as we exited the car, had our shield out, identified ourselves as being police, at which time the defendant put his hand in his pocket and I grabbed his arm.

“Q. Was he placed under arrest?

“A. Yes, he was.”

The above-quoted testimony suggested to the jury that defendant possessed a weapon when apprehended by the police officers just as clearly as if the knife actually seized from defendant had been introduced into evidence, as the jury’s question all too pointedly establishes.

Similarly, the testimony of Officer Calise totally emasculated the court’s pretrial ruling suppressing Mr. Pimentel’s showup identification of defendant. Officer Calise testified:

“Q. Did there come a time that after you placed [defendant] under arrest that you went back to 213 East Kings Bridge Road, the bodega?

“A. Yes.

“Q. Did you meet Mr. Pimentel? Did you eventually meet Mr. Pimentel?

“A. Yes.

“Q. Did you see him at the bodega either inside or out front?

“A. Yes.

“Q. About what time was it when you got over to the bodega and met Mr. Pimentel?

“A. Approximately about five minutes after eleven.

“Q. So it took you about five minutes to get back to the bodega?

“A. That’s correct.

“Q. From [the] construction site?

“A. Yes.

“Q. And then did there come a time that you went to the precinct right after you were at the bodega?

“A. Yes.

“Q. And was the defendant brought to the precinct?

“A. Yes, he was.

“Q. Was Mr. Pimentel at the precinct?

“A. Yes, he was.”

The majority’s suggestion that it is “speculative” to conclude from Officer Calise’s testimony that defendant had been identified by Mr. Pimentel is, to say the least, farfetched. What other reasonable inference could be drawn in this uncomplicated robbery case? Only the victim witnessed the crime. Only 10 minutes later two police officers apprehended the suspect at a nearby location. Within five minutes thereafter they returned the suspect to the bodega. When the victim was confronted with that suspect, either the right man or the wrong man had been apprehended. The jurors, who cannot be presumed, absent Officer Calise’s testimony, to have the sophistication the majority attributes to them concerning pretrial identifications, could draw only one inference from that scenario. If the wrong man, why would he not be released? If the right man, why would he not be taken to the precinct and booked?

In short, there can be no serious issue concerning the reach of the exclusionary rule to the facts of this case. The majority’s contrary ruling brings to mind Judge Cardozo’s statement, made in another context in Beatty v Guggenheim Exploration Co. (225 NY 380, 388): “What is excluded by one act, is restored by another. You may put it out by the door; it is back through the window.” To permit evidence put out through the exclusionary rule’s door to come back in through the window of the Trial Judge’s erroneous rulings is to make a mockery of the Fourth Amendment. Effectuation of its mandate requires deterrence riot only of improper police conduct but of improper, even if not malicious, prosecutorial tactics as well.

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

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

Order affirmed.

      . This part of the court’s ruling is not challenged on this appeal.

      . In Crews the court states: “Insofar as respondent challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest * * * The exclusionary principle of Wong Sun and Silverthorne Lumber Co. delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. Respondent is not himself a suppressible ‘fruit’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.”

       As to the prejudicial inferences which the dissenter would draw from the testimonial excerpts he quotes, I respectfully venture the view that these reflect the rationalizations of a studied judicial hindsight rather than the realism of the transitory and more literal impression a lay jury would gather. A good gauge is that defendant himself found no need either to object or to seek corrective action.


source: Caselaw Access Project

author: Fuchsberg, J. Jasen, Gabrielli and Jones, JJ.

license: Public Domain

text:
    Clarence W. Arrington, Appellant, v The New York Times Company et al., Respondents.
    Argued February 11, 1982;
    decided April 7, 1982

      POINTS OF COUNSEL

      Herue Gouraige, Donald J. Zoeller, John J. Kirby, Jr., and Douglas M. Parker for appellant.
    I. The complaint states a cause of action under sections 50 and 51 of the Civil Rights Law. (Thompson v Close-Up, Inc., 277 App Div 848; Pierrottie v Dell Pub. Co., 199 F Supp 686; Murray v New York Mag. Co., 27 NY2d 406; Gautier v Pro-Football, Inc., 304 NY 354; Binns v Vitagraph Co. of Amer., 210 NY 51; Dallesandro v Holt & Co., 4 AD2d 470, 7 NY2d 735; Koussevitzky v Allen, Towne & Heath, 188 Misc 479, 272 App Div 759; Lahiri v Daily Mirror, 162 Misc 776; Sutton v Hearst Corp., 277 App Div 155.) II. The complaint states a cause of action for common-law invasion of privacy. (Moore v New York El. R. R. Co., 130 NY 523; Schuyler v Curtis, 40 NY St Rep 289, 64 Hun 594, 54 NY St Rep 936, 147 NY 434; Marks v Jaffa, 6 Misc 290; MacKenzie v Soden Min. Springs Co., 27 Abb NC 402; Kujek v Goldman, 150 NY 176; Wolston v Reader’s Digest Assn., 443 US 157; Hutchinson v Proxmire, 443 US 111; Owen v Partridge, 40 Misc 415; Spahn v Julian Messner, Inc., 43 Misc 2d 219, 23 AD2d 216, 18 NY2d 324, vacated and remanded sub nom. Julian Messner, Inc. v Spahn, 387 US 239, 20 NY2d 752, 21 NY2d 124, 393 US 1046; Geisler v Petrocelli, 616 F2d 636.) III. The complaint states a cause of action for violation of State and Federal constitutional rights to privacy. (Barrows v Jackson, 346 US 249; Shelley v Kraemer, 334 US 1; Galella v Onassis, 353 F Supp 196; Nader v General Motors Corp., 57 Misc 2d 301, 31 AD2d 392, 25 NY2d 560; Marsh v Alabama, 326 US 501; Associated Press v United States, 326 US 1; New York Times Co. v Sullivan, 376 US 254; Whalen v Roe, 429 US 589; Roe v Wade, 410 US 113, 959; Rosenblatt v Baer, 383 US 75.)

      Floyd Abrams, Dean Ringel, Howard G. Sloane, Richard Coll, Katherine P. Darrow and George Freeman for The New York Times Company, respondent.
    I. The courts below correctly ruled that the complaint fails to state a cause of action under sections 50 and 51 of the Civil Rights Law. (Roberson v Rochester Folding Box Co., 171 NY 538; Sidis v F-R Pub. Corp., 34 F Supp 19, 113 F2d 806; Davis v Duryea, 99 Misc 2d 933; Callas v Whisper, Inc., 198 Misc 829, 278 App Div 974, 303 NY 759; Gautier v Pro-Football, Inc., 304 NY 354; Rand v Hearst Corp., 31 AD2d 406, 26 NY2d 806; Murray v New York Mag. Co., 27 NY2d 406; Paulsen v Personality Posters, 59 Misc 2d 444; Pagan v New York Herald Tribune, 32 AD2d 341; Lahiri v Daily Mirror, 162 Misc 776.) II. The court below correctly ruled that no common-law basis exists for plaintiff’s claim. (Cohen v Hallmark Cards, 45 NY2d 493; Wojtowicz v Delacorte Press, 43 NY2d 858; Kiss v County of Putnam, 59 AD2d 773; Eliah v Ucatan Corp., 433 F Supp 309; Gautier v Pro-Football, Inc., 304 NY 354; Cardy v Maxwell, 9 Misc 2d 329; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196.) III. The court below correctly ruled that no constitutional basis exists for plaintiff’s claim. (Paul v Davis, 424 US 693; Reilly v Leonard, 459 F Supp 291; Katz v United States, 389 US 347; New York Times Co. v Sullivan, 376 US 254;
      Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; N.A.A.C.P. v Button, 371 US 415; Rand v Hearst Corp., 31 AD2d 406; Davis v Duryea, 99 Misc 2d 933.)

      Tennyson Schad for Contact Press Images, Inc., and others, respondents.
    The courts below correctly ruled that the complaint fails to state a cause of action against Gorgoni, Contact and Pledge.
   OPINION OF THE COURT

Fuchsberg, J.

This action, for money damages and injunctive relief, arises from the New York Times Magazine’s nonconsensual publication of plaintiff Clarence W. Arrington’s photograph as the most prominent illustration of a feature article entitled “The Black Middle Class: Making It”. The magazine, a part of the Sunday edition of The New York Times, is circulated widely throughout city, State, and Nation, and elsewhere. The picture, apparently taken while Arrington was walking along a street in New York City, was prominently displayed across the cover of the publication. Arrington, whose name was not mentioned in the article, had no prior knowledge that the photograph had been taken, much less that it would be sold or published or that it would be used in connection with this or any other article. These facts are unquestioned.

Defendant The New York Times Company (hereinafter the Times), which published the article, in its brief describes it as a commentary on “the role of the expanding black middle/professional class in today’s society”, in the course of which, among other things, its author concludes that “this group has been growing more removed from its less fortunate brethren.” Arrington, a young financial analyst, who then plied his profession with General Motors and now pursues it with the Ford Foundation, regards the text of the article not only as controversial but as one expressive of views he does not credit or practice. Moreover, as he alleges in this action, he and readers who knew him found it “insulting, degrading, distorting and disparaging” not only of black persons of “middle class” status generally but also of himself, as its supposed exemplar, in particular. This, he goes on, subjected him to public scorn and ridicule, principally either because others quite reasonably took the article’s ideas to be ones he shared or because it was assumed that he at least in part had changed his vocation to that of professional model.

Plaintiff’s complaint, sounding in tort, was predicated on three theories: violation of sections 50 and 51 of New York’s Civil Rights Law, invasion of common-law right of privacy and a similar imposition on a constitutional right to privacy. Other than the publisher, joined as defendants were Gianfranco Gorgoni, a free-lance photographer who took the picture at the behest of the Times, Contact Press Images, Inc., the photographic agency which allegedly handled the financial arrangements under which Gorgoni did so and Robert Pledge, Contact’s president.^ In due course, all four defendants moved under CPLR 3211 (subd [a], par [7]) to dismiss the complaint for failure to state a cause of action.

Special Term was of the view that sections 50 and 51 will not support a charge of “actionable commercial exploitation where the picture is published in connection with an article of general interest”. On that premise, plus the . additional rationale that in the end it was the Times alone and not its three codefendants who were “responsible for the publication [and placement] of the picture”, it dismissed against all the defendants. Nevertheless, in obeisance to what it sensed was'an emerging “right to be let alone, sometimes referred to as [a] constitutional right of privacy”, it granted plaintiff leave to serve an amended complaint against the Times on grounds other than those spelled out by sections 50 and 51.

On cross appeals by Arrington and the Times, the Appellate Division, finding no decisional support for the existence of a common-law right of privacy and that the circumstances here do not come within the orbit of any constitutional protection, modified on the law by deleting the leave to amend; Justice Kupferman, in a sole partial dissent, relying on Prosser on Torts (4th ed, pp 812-813), thought Arrington had spelled out a cause of action for having been placed in a “false light in the public eye”. On the present appeal, though, contrary to the holdings below, we believe the case should proceed against the individual defendants, we are of the view that the result reached as to the Times was correct.

Our analysis may well begin with sections 50 and 51. Facially, these statutes simply ban the use “for advertising purposes, or for the purposes of trade” of the name, portrait or picture of a living person unless that person’s written consent has first been obtained. Yet, in light of the decisional event which led directly to their adoption, what their seemingly uncomplicated texts affirmatively provide must be said to have been overshadowed by what these do not say.

The statutory scheme was enacted as a direct response to Roberson v Rochester Folding Box Co. (171 NY 538). In this oft-cited case, some 25,000 reproductions of a photograph of the infant plaintiff were distributed throughout the country without her knowledge or consent in order to advertise defendant’s flour. Most significantly, in sustaining a demurrer to so much of the complaint as was framed in terms of a violation of an alleged right to privacy, the court broadly denied the existence of such a cause of action under New York common law. It is noteworthy, therefore, that, while concern engendered by this decision prompted the Legislature to enact sections 50 and 51, these were drafted narrowly to encompass only the commercial use of an individual’s name or likeness and no more. Put another way, the Legislature confined its measured departure from existing case law to circumstances akin to those presented in Roberson. In no other respect did it undertake to roll back the court-pronounced refusal to countenance an action for invasion of privacy.

Nor has the Legislature chosen to enlarge the scope of sections 50 and 51 in the fourscore years since Roberson was handed down. This despite the court’s consistent adherence to its position that, as such, in this State “there exists no so-called common-law right to privacy” (Cohen v Hallmark Cards, 45 NY2d 493, 497, n 2; see, also, Wojtowicz v Delacorte Press, 43 NY2d 858; Gautier v Pro-Football, Inc., 304 NY 354, 358).

Moreover, this narrow reading of the statutory provisions has not been without sensitivity to the potentially competing nature of the values the Legislature, on the one hand, served by protecting against the invasion of privacy for purposes of “advertising” or “trade” and, on the other, the values our State and Federal Constitutions bespeak in the area of free speech and free press. Thus, we not too long ago reiterated that “ ‘[a] picture illustrating an article on a matter of public interest is not considered used for the purposes of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise’ ” (Murray v New York Mag. Co., 27 NY2d 406, 409 [magazine cover photograph illustrating a feature story], quoting from Dallesandro v Holt & Co., 4 AD2d 470, 471, app dsmd 7 NY2d 735). And this holds true though the dissemination of news and views is carried on for a profit or that illustrations are added for the very purpose of encouraging sales of the publications (see Pagan v New York Herald Tribune, 26 NY2d 941, affg 32 AD2d 341, 343; Callas v Whisper, Inc., 198 Misc 829, affd 278 App Div 974, affd 303 NY 759; Oma v Hillman Periodicals, 281 App Div 240, 244; Paulsen v Personality Posters, 59 Misc 2d 444, 447-448 [Frank, J.]; Lahiri v Daily Mirror, 162 Misc 776 [Sheintag, J.]).

Now it can hardly be questioned that the article in this case, dealing as it does with the circumstances and tensions incident to yet another example of the mobility our country prides itself on encouraging within and among our societal groups, relates to a subject of “public interest”, clearly a term to be freely defined (see Lahiri v Daily Mirror, supra, at p 782). Accepting that proposition, plaintiff nevertheless seeks to bring himself within the “no real relationship” exception referred to in our Murray decision. To this end, he does not deny that, by external and objective criteria, such as race, educational background, professional status, personal poise and habit of dress, he may be perceived to be a member of “the black middle class”. Indeed, he does not dispute that the picture used by the Times portrays no more than what one might expect an upper or “middle class” man of good taste and attire, whatever the color of his skin, to look like.

Plaintiff’s emphasis, rather, is on the fact that, as he reads it, the article depicts the “black middle class” as one peopled by “materialistic, status-conscious and frivolous individuals without any sense of moral obligation to those of their race who are economically less fortunate”, a conception of the “class” with which he disclaims any “legitimate connection”. While the concededly innocuous title of the article is superimposed over part of the picture (as is the title of another on Christmas pleasures), nothing of the ideas with which he wishes to disassociate himself appear at this point. And, though the article itself gives the names and quotes the statements and opinions of persons whom the author interviewed, as indicated earlier, the plaintiff is neither mentioned, nor are any of the ideas or opinions it expresses attributed to him. The asserted lack of a “real relationship” boils down then, to his conviction that his views are not consonant with those of the author. But this disagreement cannot extend the compass of sections 50 and 51 for, in such matters, it would be unwise for us to essay the dangerous task of passing on value judgments based on the subjective happenstance of whether there is agreement with views expressed on a social issue.

No more persuasive is plaintiff’s perfectly understandable preference that his photograph not have been employed in this manner and in this connection. However, other than in the purely commercial setting covered by sections 50 and 51, an inability to vindicate a personal predelection for greater privacy may be part of the price every person must be prepared to pay for a society in which information and opinion flow freely.

For related reasons, plaintiff’s “false light” formulation cannot save his complaint. There has been serious concern that, by sidestepping the safeguards which restrain the reach of traditional public defamation litigation, a false light approach could compromise the constitutional guarantee of freedom of the press (see Prosser, Torts [4th ed], p 813; Restatement, Torts 2d, § 652E, Comment d, particularly p 399; Wade, Defamation and the Right of Privacy, 15 Vand L Rev 1093, 1121). Responsively, the Restatement, which in 1933 suggested that to impose liability under the false light rubric a publication need but be “offensive to persons of ordinary sensibilities” (Restatement, Torts, § 867, Comment d), by 1976 had raised the threshold to a “highly” offensive level (Restatement, Torts 2d, § 652E, Comment c). Suffice it here.that, even assuming, but not now deciding, that such an action is cognizable in this State, by no means does this case measure up to this kind of criterion.

However, while plaintiff’s complaint therefore was properly dismissed as a matter of law insofar as it purported to proceed against the Times, at this stage it cannot be said that plaintiff has no claim under these statutes against defendants Gorgoni, Pledge or Contact.

In this connection, it must be remembered that the motion to dismiss, one made under CPLR 3211 (subd [a], par 7), was never converted by notice to one for summary judgment as permitted by CPLR 3211 (subd [c]). In this procedural posture, the allegations of a complaint, supplemented by a plaintiff’s additional submissions, if any, must be given their most favorable intendment (see Rovello v Orofino Realty Co., 40 NY2d 633). The complaint here, aside from reciting facts as to the publication of the photograph and plaintiff’s ensuing damages, in substance alleges that Gorgoni took the picture; that Contact, in the business of buying and selling reproduction rights of photographs, had then been commissioned by Gorgoni to sell his pictures; that Pledge was the Contact officer and employee through whom Contact, acting for Gorgoni, sold the Times the picture, the proceeds being divided between Contact and Gorgoni.

True, the affidavits and exhibits these defendants submitted in support of the motion denied important aspects of the roles plaintiff ascribed to Contact and Pledge, but this did no more than create issues of fact. After all, unlike the position of the Times, none of the other three defendants played the part of publisher of the article which plaintiff’s photograph accompanied. Were the plaintiff to establish the truth of his allegations, the acts in which one or more of these defendants will have been proved to have engaged will, plainly and simply, have included that of a nonconsensual selling of the photograph. Thus, operating independently from the publisher, each at that point would have “commercialized the photograph” in “furtherance of [his] trade” (Holmes v Underwood & Underwood, 225 App Div 360, 362). That the sale was to a publisher of news and articles on matters of public interest would not, in and by itself, have clothed these defendants with the publisher’s immunity from the reach of sections 50 and 51. Consequently, the motion to dismiss the complaint to the extent that it pleads a violation of sections 50 and 51 on the part of each of these three defendants should have been denied.

The statutory claims behind us, and the unavailability of those sounding in common-law privacy apparent, we now turn to the plaintiff’s attempt to advance still another cause of action, posited this time on alleged abridgment of a constitutional right to privacy. To that end, no more need here be said than that, since no State action is involved, plaintiff’s constitutional claim must fail.

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff against defendants Contact Press Images, Inc., Robert Pledge and Gianfranco Gorgoni, in accordance with this opinion, and, as so modifled, it should be affirmed, with costs to defendant The New York Times Company against plaintiff.

Jasen, Gabrielli and Jones, JJ.

(concurring). We concur in result in this case but cannot accept what appears to us to be the overbreadth of Judge Fuchsberg’s opinion, addressing as it does plaintiff’s false light formulation which is not necessary for the resolution of this appeal.

Chief Judge Cooke and Judge Meyer concur with Judge Fuchsberg; Judges Jasen, Gabrielli and Jones concur in result in a concurring memorandum; Judge Wachtler taking no part.

Order modified, with costs to plaintiff against defendants Contact Press Images, Inc., Pledge and Gorgoni, in accordance with the opinion herein and, as so modified, affirmed, with costs to defendant The New York Times Company against plaintiff.

      . Section 50 reads as follows: “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor”.
      Section 51, as amended last in 1921 (L 1921, ch 501) makes a violation of section 50 actionable in a civil suit. It specifically provides, as relevant to this case, that “Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages.”

      . Without in any way detracting from the reasonableness of the impression gathered by the plaintiff from his evaluation of the article as a whole, we note that its aúthor, William Brashler, also expressed the opinion that “some of the ‘haves’ in the new black middle class are keeping up the fight, trying to find jobs for black kids, keep them out of trouble, deal with drugs, teach some skills, make black life for poor blacks bearable, offset the lure of the hustle. Every city in the country has its private and public agencies * ** * full of sharp, dedicated, mostly middle-class black staffers and volunteers”.

      . (1 Street, Foundations of Legal Liability, p 319; Prosser, Privacy, 48 Cal L Rev 383, 398, 400; Wigmore, Right Against False Attribution of Belief or Utterance, 4 Ky LJ [No. 8] 3; Wade, Defamation and The Right of Privacy, 15 Vand L Rev 1093,1094,1120; McKenna, False Light: Invasion of Privacy, 15 Tulsa LJ 113, 114.)


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Israel Melendez, Appellant.
    Argued February 11, 1982;
    decided April 7, 1982

      POINTS OF COUNSEL

      Barry E. Schulman and David S. Jacobs for appellant.
    I. The case presented against appellant, entirely circumstantial, was insufficient as a matter of law to prove appellant’s guilt of felony murder beyond a reasonable doubt. (People v Cleague, 22 NY2d 363; People v Montanez, 41 NY2d 53; People v Mitchell, 64 AD2d 119; People v Vitalis, 67 AD2d 498.) II. Hearsay testimony admitted by the court was so prejudicial and improper as to deny appellant a fair trial and due process of law. (People v Tufano, 69 AD2d 826; People v Shack, 58 AD2d 757.) III. Improper comments in the prosecutor’s summation together with irrelevant and prejudicial responses by the People’s witnesses deprived appellant of his right to a fair trial. (People v Tufano, 69 AD2d 826; People v Shack, 58 AD2d 757; Williams v Brooklyn El. R. R. Co., 126 NY 96; People v Carborano, 301 NY 39; People v Tassiello, 300 NY 425; People v Fielding, 158 NY 542; People v Esposito, 224 NY 370; People v Dixon, 231 NY 111; People v Jackson, 7 NY2d 142; People v Van Aken, 217 NY 532.)

      Mario Merola, District Attorney (Allen H. Saperstein and Steven R. Kartagener of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. (People v Licitra, 47 NY2d 554; People v Rumble, 45 NY2d 879; People v Bracey, 41 NY2d 296; People v De Tore, 34 NY2d 199; People v Cerullo, 18 NY2d 839.) II. The court’s ruling on the admissibility of evidence was proper. (People v Gonzalez, 54 NY2d 729; People v Salko, 47 NY2d 230; People v Al-Kanani, 33 NY2d 260, 417 US 916; People v Regina, 19 NY2d 65; People v Fay, 270 App Div 261, 296 NY 510, affd sub nom. Fay v New York, 332 US 261; People v Hines, 284 NY 93; Ferrara v Galuchio, 5 NY2d 16; People v Kelly, 12 NY2d 248.) III. The prosecutor’s conduct both during the trial and in summation was fair and proper. (People v Graham, 39 NY2d 775; People v Marks, 6 NY2d 67; People v Dawson, 50 NY2d 311.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are asked to decide whether reversible error occurred when the prosecutor was permitted, over objection, to elicit on redirect examination hearsay testimony implicating the defendant in the crimes charged. In order to resolve this question, we must examine the scope of permissible redirect examination in instances where a defendant has “opened the door” to new matters on cross-examination.

Early in the afternoon of January 10, 1978, Mario “Cuba” Hernandez was shot in the chest while standing in the hallway of a public housing project located in The Bronx. Hernandez died a short while later. Although the incident was overheard by several tenants, there were no witnesses to the shooting, and no one could identify any of the perpetrators who fled from the scene.

In the months that followed, the investigation focused on defendant Israel “Paleta” Melendez and codefendant Robert “Piro” Mendez. As a result of information provided by Jesus Marrero, who was also a suspect in the shooting, defendant Melendez and codefendant Mendez were arrested in early July, 1978 by the officer conducting the Hernandez investigation, Detective Benjamin Alexis. The defendants were thereafter indicted for, inter alia, murder in the second degree (Penal Law, § 125.25, subd 3) and criminal possession of a weapon in the second degree (Penal Law, § 265.03).

At trial, the evidence most damaging to the defendants came from the testimony of Jesus Marrero and Hector Camacho. Marrero, who knew both defendants for a number of years, testified that on January 12,1978, while on a 24-hour pass from a methadone treatment program, he happened to meet codefendant Mendez on the street and asked him for the $25 previously lent to him for bail in connection with a prior arrest. According to Marrero’s testimony, codefendant Mendez said that “the homicide squad was looking for him for something Paleta [defendant Melendez] had done”; that he, Paleta and an unidentified third person named “Chino” had “took off a guy in the project”; that defendant Melendez had shot him; and that all three escaped in Chino’s car. Marrero further testified that he was with defendant Melendez, codefendant Mendez and some other individuals the following day on a rooftop. At that time, Marrero testified that he overheard defendant Melendez say to codefendant Mendez that “if he would have held him right, he wouldn’t have had to shoot him” and that codefendant Mendez replied that “it was his fault for not searching him right.” Marrero also testified that he heard the deceased’s nickname, “Cuba”, mentioned in the course of this conversation.

Marrero’s story was corroborated to a certain extent by the testimony of Hector Camacho. Camacho testified that on an unspecified date in January, 1978, he had finished “getting high” on the rooftop of a building and was walking down the stairs when he heard codefendant Mendez ask defendant Melendez “what he shot him for.”

The arresting officer, Detective Alexis, was also called as a witness for the prosecution. On cross-examination by counsel for defendant Melendez, the following colloquy took place:

“Q. Det. Alexis, when Marrero was brought down to the precinct, he was a suspect, wasn’t he?

“A. Yes, he was.

. “Q. And you advised him of his rights, is that what you testified before, of his constitutional rights?

“A. Yes, I did.

“Q. And you began asking him about the homicide that occurred in January, is that right?

“A. That’s correct.

“Q. Did you advise him that he was a suspect, in those words?

“A. No, I did not.

* * *

“Q. You were asking him about the homicide, is that right?

“A. That’s correct.

“Q. Now, Detective, you were involved in filling out an arrest report, I take it, is that right?

“A. Yes, I was.

“Q. And at that time, isn’t it a fact that you indicated that Mr. Melendez had committed a crime in concert with two others, is that right?

* * *

“Q. And when you arrested Mr. Mendez, you indicated on there that the crime had occurred — three people involved, is that right?

“A. Yes, I did.”

On redirect, the prosecutor asked Detective Alexis for the basis upon which he considered Marrero a suspect. Counsel for defendant Melendez immediately objected to this question on the ground that the prosecutor intended to “bring out hearsay testimony regarding the police officer’s investigation.” The Trial Judge overruled this objection, stating that counsel for defendant Melendez had “opened the door” by raising the question whether Marrero was a suspect on cross-examination. Counsel excepted to the court’s ruling. Detective Alexis then proceeded to tell the jury that a “concerned citizen” had informed him shortly after the Hernandez shooting that the two individuals responsible were named “Paleta” and “Piro”; and that this informant identified “Paleta” as defendant Melendez and “Piro” as Jesus Marrero. The detective also testified that he had learned from others that Marrero was known as both “Pete” and “Piro”, but that Marrero later told him that he was “Pete” and codefendant Mendez was known as “Piro”, and that they were often mistaken for one another because they looked alike. Finally, Detective Alexis, over objection by counsel for defendant Melendez, was permitted to read from his notebook the detailed physical descriptions of both defendant Melendez and the individual named “Piro” provided by the “concerned citizen” informant two days after the shooting.

The jury found both defendants guilty of murder in the second degree and criminal possession of a weapon in the second degree. Defendant Melendez was sentenced to concurrent terms of 25 years to life on the murder conviction and 5 to 15 years on the conviction for possession of a weapon.

On appeal, a divided Appellate Division affirmed. A majority of the court could “find no error with any portion of [the] redirect testimony since defendant’s counsel consciously initiated this line of questioning and thus opened the door.” According to the court below, defense counsel was attempting to impugn the credibility of Marrero by asking Detective Alexis whether Marrero was considered a suspect. As a result, the Appellate Division was of the opinion that the prosecutor could “clarify the grounds upon which the detective based his suspicions” and “show that there was no collaboration between his office and [Marrero] for the purpose of convicting an innocent man.”

The dissenters at the Appellate Division were of the opinion that it was error to utilize the cross-examination of Detective Alexis under the “opening the door” theory as a vehicle for the needless introduction of incriminating hearsay evidence to the effect that defendant Melendez had been identified by a neighborhood source as one of the participants in the Hernandez shooting two days after the incident occurred. We agree.

The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court. (People v Zigouras, 163 NY 250, 255-256; People v Buchanan, 145 NY 1, 24; People v Fay, 270 App Div 261, affd 296 NY 510, affd sub nom. Fay v New York, 332 US 261; see 6 Wigmore, Evidence [Chadbourn rev ed], § 1896, p 737.) Where, however, the opposing party “opens the door” on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect “to explain, clarify and fully elicit [the] question only partially examined” on cross-examination. (People v Regina, 19 NY2d 65, 78; see, also, Feblot v New York Times Co., 32 NY2d 486, 497-498.)

The “opening the door” theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness’ statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances. (People v Buchalter, 289 NY 181, 202-203; Collins v Kelly, 226 NY 180, 183-184; 3A Wigmore, Evidence [Chadbourn rev ed], § 1044, p 1062.) Similarly, where cross-examination raises the inference that the witness’ testimony was the product of a recent fabrication, a party on redirect can refute this allegation either by introducing consistent statements made by the witness at a time when there was no motive to lie or by having the witness explain why the information was not disclosed earlier. (People v Davis, 44 NY2d 269, 277-278; Crawford v Nilan, 289 NY 444, 450-451; Ferris v Sterling, 214 NY 249, 254; People v Buchanan, 145 NY 1, 24-25, supra.) In addition, in situations where only a part of a statement has been brought out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying the statement. (People v Torre, 42 NY2d 1036, 1037; People v Schlessel, 196 NY 476, 480-481; 7 Wigmore, Evidence [Chadbourn rev ed], § 2113; see, generally, Richardson, Evidence [10th ed], § 523; Fisch, New York Evidence [2d ed], § 344.)

The “opening the door” theory must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. (See McCormick, Evidence [2d ed], § 57.) Nonetheless, it does have its limitations. By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect. Rather, the trial court must limit the inquiry on redirect to the “subject-matter of the cross-examination [which] bear[s] upon the question at issue.” (People v Buchanan, 145 NY 1, 24, supra.) Moreover, the court should only allow so much additional evidence to be introduced on redirect as is necessary to “meet what has been brought out in the meantime upon the cross-examination.” (6 Wigmore, Evidence [Chadbourn rev ed], § 1896, p 737; accord People v Schlessel, 196 NY 476, 481, supra; People v Lewis, 18 AD2d 277, 279-280.) The “opening the door” theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination. The principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally “exclude all evidence which has not been made necessary by the opponent’s case in reply.” (6 Wigmore, § 1873, p 672 [emphasis in original].)

In this case, it was error to permit the prosecutor to elicit from Detective Alexis the hearsay testimony that a “concerned citizen” had informed him two days after the shooting that defendant Melendez was one of the participants in the crime. Defense counsel merely cross-examined the detective as to whether he considered Marrero a suspect. True, this line of questioning afforded the prosecutor an opportunity to amplify on redirect the basis for the detective’s suspicions as to Marrero. This cross-examination did not, however, clear the way for the prosecutor to explore the entire ambit of the officer’s investigation, including all information connecting the defendant with the homicide. In short, although defense counsel may have partially “opened the door” by asking whether Marrero was a suspect, the passageway thus created was not so wide as to admit the hearsay testimony directly implicating the defendant in the crimes charged. The door was opened only as to whether the witness considered Marrero a suspect. Thus, it was error to broaden the scope of inquiry to include all the hearsay information the detective had learned frtim other people as part of his investigation of this case.

The evidence of defendant’s guilt, although legally sufficient, was far from overwhelming. The only proof linking the defendant to the shooting was provided by Marrero and Camacho, and the credibility of these witnesses was questionable. Both were confessed drug addicts and both admitted that they were using drugs when they overheard the conversations in question. Camacho had been arrested on at least four previous occasions. Marrero had ah extensive criminal record and, in fact, was a suspect in the Hernandez murder at the time he incriminated the two defendants. Under the circumstances, we cannot say that the erroneous admission of hearsay testimony to the effect that a “concerned citizen” identified the defendant two days after the homicide as the one who shot Hernandez was harmless.

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

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

      . Codefendant Mendez’ convictions were subsequently affirmed by the Appellate Division (74 AD2d 1006). The propriety of that affirmance is not before us on this appeal.

      . The Appellate Division also expressed the view that the hearsay testimony of Detective Alexis on redirect was admissible because it was only introduced to show how the detective formed his belief that Marrero was a suspect and not to establish defendant’s guilt. (See Richardson, Evidence [10th ed], § 205, p 182.) Yet, that reasoning does not justify the admission of that part of Alexis’ redirect testimony which related solely to defendant Melendez. The portion of the testimony inculpating defendant Melendez in no sense demonstrated how Detective Alexis arrived at the conclusion that Marrero was a suspect and could only have been considered by the jury as evidence of defendant’s guilt. As such, this part of the redirect testimony clearly was inadmissible hearsay.