author: Kaye, J. Smith, J.

text:
    Barnet L. Liberman, Appellant, v Leonard Gelstein, Respondent.
    Argued October 22,1992;
    decided November 24, 1992

      POINTS OF COUNSEL

      Dechert Price & Rhoads, New York City (Robert A. Cohen and Owen D. Kalt of counsel), for appellant.
    I. The Court below ruled improperly that, although Gelstein admits he had no personal knowledge as to whether his defamatory statement was true and merely makes the unsupported claim that he relied on informants, there is no issue of fact as to whether Gelstein spoke with reckless disregard as to truth or falsity. (Loughry v Lincoln First Bank, 67 NY2d 369; McManus v McCarthy, 586 F Supp 302; St. Amant v Thompson, 390 US 727; 600 W. 115th St. Corp. v Von Gutfeld, 169 AD2d 56.) II. The Court below ruled inaccurately and illogically that Gel-stein’s false accusation that Liberman committed the crime of harassment by threatening to murder Gelstein and his family was merely "rhetorical hyperbole” and not actionable. (People v Dorns, 88 Misc 2d 1064; Rand v New York Times Co., 75 AD2d 417; Held v Pokorny, 583 F Supp 1038; Grass v News Group Publs., 570 F Supp 178; Greenbelt Publ. Assn, v Bresler, 398 US 6.) III. The Court below overlooked the rule that ill will is a form of "malice” which destroys the qualified privilege from liability for defamation, and overlooked significant evidence that Gelstein’s words were motivated by ill will. (Loughry v Lincoln First Bank, 67 NY2d 369; Stillman v Ford, 22 NY2d 48; Arrigoni v Velella, 110 AD2d 601; Rinaldi v Viking Penguin, 52 NY2d 422.)

      Gordon & Silber, P. C., New York City (Peter Pearson Traub, Jr., of counsel), for respondent.
    I. The Court below properly ruled that in order to establish a tenable action, appellant would need to prove that the alleged statements of respondent were slanderous per se. (Matherson v Marchello, 100 AD2d 233; Grinaldo v Meusburger, 34 AD2d 586, 27 NY2d 598; Ideal Publ. Corp. v Creative Features, 59 AD2d 862; Van Lengen v Parr, 136 AD2d 964.) II. The statements in the second cause of action were in fact inquiries not expressing a false fact which could give rise to actionable slander, and, in addition the statements contained in the second cause of action were protected by the qualified privilege. Furthermore, there is no evidence contained in the record on appeal from which the court could reasonably infer that the statements contained in the second cause of action were made with ill will or malice. (Immuno AG. v Moor-Jankowski, 77 NY2d 235; Santavicca v City of Yonkers, 132 AD2d 656; Byam v Collins, 111 NY 143; Kilcoin v Wolansky, 75 AD2d 1, 52 NY2d 995; Shapiro v Health Ins. Plan, 7 NY2d 56; Dunajewski v Bell-more-Merrick Cent. High School Dist., 138 AD2d 557; Matter of Kantor v Pavelchak, 134 AD2d 352; Licitra v Faraldo, 130 AD2d 555; Garson v Hendlin, 141 AD2d 55.) III. The statements contained within the fifth cause of action are not actionable as they are mere rhetorical hyperbole. (Rand v New York Times Co., 75 AD2d 417.)
   OPINION OF THE COURT

Kaye, J.

In this action for slander, we consider whether the plaintiff has stated a viable claim without any showing of special damages, whether the alleged slander is protected by qualified privilege, and whether there is a triable issue of fact as to malice. We conclude that plaintiffs claims were correctly dismissed on summary judgment.

I.

Before us is one of eight actions, consolidated for disposition by the .motion court, centering on a luxury apartment building in Manhattan. Plaintiff, Barnet L. Liberman, is the building’s landlord. Defendant, Leonard Gelstein (a tenant), is on the board of governors of the tenants’ association. Disputes between the landlord and tenants of the building erupted nearly a decade ago, when the tenants organized opposition to the landlord’s application for a rent increase, and they have continued and proliferated through the conversion of the building to cooperative ownership (see, e.g., Matter of 421 Hudson St. Tenants Assn, v Abrams, 140 Misc 2d 166).

This defamation action against Gelstein is one of three suits brought by Liberman against individual members of the tenant association’s board of governors. Gelstein has countersued Liberman and his wife for misconduct arising from a criminal complaint filed by Mrs. Liberman, which apparently resulted in Gelstein’s overnight incarceration.

The present complaint alleged five causes of action sounding in slander. Only two — the second and fifth — are pressed by plaintiff on this appeal. The other causes of action involving, for example, accusations by Gelstein that Liberman charged an illegal $10 monthly dog rent and stole electricity from the building, have over the years been dropped.

In his second cause of action, plaintiff alleged that in July 1986, the following conversation took place between defendant and another tenant of the building, Robert Kohler.

"Gelstein: Can you find out from your friend at the precinct which cop is on the take from Liberman?
"Kohler: What are you talking about?
"Gelstein: There is a cop on the take from Liberman. That’s why none of the building’s cars ever get tickets — they can park anywhere because Liberman’s paid them off.
He gives them a hundred or two hundred a week.”

The fifth cause of action alleged that in May 1986 defendant made the following statement in the presence of employees of the building:

"Liberman threw a punch at me. He screamed at my wife and daughter. He called my daughter a slut and threatened to kill me and my family.”

Plaintiff claimed $5 million damages on each cause of action for injury to his reputation and emotional distress. After discovery, defendant sought summary judgment dismissing the complaint. On the second cause of action, defendant invoked the "common interest” qualified privilege, characterizing his conversation with Kohler, a colleague on the board of governors, as an inquiry designed to uncover wrongdoing by the landlord affecting tenants. At his deposition, defendant testified that several vehicles operated by the building’s management regularly parked in front of the building beyond the legal limit but never received parking summonses. He further testified that he was told by two building employees, whom he identified, that Liberman was bribing the police to avoid parking tickets. Defendant admitted that he did not know whether the allegations were true, but testified that they "sounded truthful” to him. Accordingly, defendant testified that he approached Kohler — whose friend was captain of the local police precinct — in an effort to discover whether the allegations were true.

Plaintiff responded that there was an issue of fact on malice, which if proved at trial, would defeat the qualified privilege. Plaintiff argued that malice of the common-law variety (spite or ill will) could be inferred from defendant’s over-all conduct toward plaintiff, including one occasion in July 1987 when defendant threw a lit firecracker into his car and another in May 1986 when he pounded on the car’s windows and attempted to rip out the windshield wiper. Moreover, plaintiff argued, malice of the constitutional variety (knowledge of falsity or reckless disregard for truth or falsity) could be found in defendant’s concession that he had no actual knowledge of bribery and the lack of trustworthiness of his sources, "disgruntled” building employees.

On the fifth cause of action, defendant argued that the statements were either true, not defamatory or never made.

In dismissing the second cause of action, Supreme Court agreed with defendant that the statements were qualifiedly privileged and plaintiff failed to sustain his burden of raising a triable issue on malice. The court also held that the statements comprising the fifth cause of action could only have been understood by the recipients, who were familiar with the parties’ history of disagreements, as rhetorical hyperbole.

The Appellate Division affirmed, agreeing with Supreme Court’s reasoning. One Justice, who would have reinstated the second cause of action, dissented in part. He was not "entirely persuaded” that the statements were qualifiedly privileged, and thought that in any event defendant’s deposition testimony that he did not know whether the bribery charge was true was itself sufficient to raise a triable issue whether the statements were made with reckless disregard as to their truth or falsity.

The Appellate Division granted leave, and we affirm.

II.

Slander as a rule is not actionable unless the plaintiff suffers special damage (see, Aronson v Wiersma, 65 NY2d 592, 594; Matherson v Marchello, 100 AD2d 233, 236 [Titone, J. P.]; Restatement [Second] of Torts [Restatement] § 575). Special damages contemplate "the loss of something having economic or pecuniary value” (Restatement § 575, comment b; see, Prosser and Keeton, Torts [Prosser] § 112, at 794 [5th ed]). Plaintiff has not alleged special damages, and thus his slander claims are not sustainable unless they fall within one of the exceptions to the rule.

The four established exceptions (collectively “slander per se”) consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman (see, Moore v Francis, 121 NY 199, 203; Privitera v Town of Phelps, 79 AD2d 1, 3 [Simons, J.]; Civil Rights Law § 77; 2 Seelman, Libel and Slander in the State of New York, at 869-907 [1964]; Restatement §§ 570-573; Smolla, Defamation § 7.05). When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven.

Plaintiff claims that both sets of statements were slanderous per se inasmuch as they charged him with criminal conduct. Not every imputation of unlawful behavior, however, is slanderous per se. “With the extension of criminal punishment to many minor offenses, it was obviously necessary to make some distinction as to the character of the crime, since a charge of a traffic violation, for example, would not exclude a person from society, and today would do little, if any, harm to his [or her] reputation at all” (Prosser § 112, at 789). Thus, the law distinguishes between serious and relatively minor offenses, and only statements regarding the former are actionable without proof of damage (see, Restatement § 571, comment g [list of crimes actionable as per se slander includes murder, burglary, larceny, arson, rape, kidnapping]).

We agree with plaintiff that defendant’s alleged statement that ”[t]here is a cop on the take from Liberman” charges a serious crime — bribery (see, Penal Law § 200.00; People v Tran, 80 NY2d 170). Accordingly, the statements constituting the second cause of action are actionable without the need to establish special harm, and absent any privilege would be sufficient to go to a jury.

We disagree, however, with plaintiff’s contention that the statement "Liberman * * * threatened to kill me and my family” was slanderous per se. Plaintiff claims these words falsely attributed to him the commission of the crime of harassment (see, Penal Law § 240.25; People v Dorns, 88 Mise 2d 1064 [threats to kill]). Harassment is a relatively minor offense in the New York Penal Law — not even a misdemeanor —and thus the harm to the reputation of a person falsely accused of committing harassment would be correspondingly insubstantial. Hence, even if we agreed with plaintiff that the statement would not have been construed by the listeners as rhetorical hyperbole, the cause of action must nevertheless be dismissed because it is not slanderous per se to claim that someone committed harassment.

Plaintiff alternatively argues that the statements in the fifth cause of action tended to harm him in his business as a property owner, and thus are actionable under the "trade, business or profession” exception. That exception, however, is "limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself. The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff’s character or qualities” (Prosser § 112, at 791). Thus, "charges against a clergyman of drunkenness and other moral misconduct affect his fitness for the performance of the duties of his profession, although the same charges against a business man or tradesman do not so affect him” (Restatement § 573, comment c). The statements at issue are unrelated to plaintiff’s status as a landlord, and therefore do not fall into the "trade, business or profession” exception (see, Aronson v Wiersma, 65 NY2d, at 594, supra).

In sum, the second cause of action is on its face sustainable without special damages because it involves charges of serious crime, and the fifth cause of action was correctly dismissed.

III.

We next consider whether the courts below properly concluded that defendant’s conversation with Kohler was conditionally privileged and that plaintiff failed to raise an issue of fact on malice.

Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether (see, Bingham v Gaynor, 203 NY 27, 31). When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only conditionally privileged (see, 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 135-136; Park Knoll Assocs. v Schmidt, 59 NY2d 205, 208-209; Toker v Pollak, 44 NY2d 211, 218-220).

One such conditional, or qualified, privilege extends to a "communication made by one person to another upon a subject in which both have an interest” (Stillman v Ford, 22 NY2d 48, 53). This "common interest” privilege (see, Restatement § 596) has been applied, for example, to employees of an organization (see, Loughry v Lincoln First Bank, 67 NY2d 369, 376), members of a faculty tenure committee (Stukuls v State of New York, 42 NY2d 272) and constituent physicians of a health insurance plan (Shapiro v Health Ins. Plan, 7 NY2d 56, 60-61). The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded.

We thus agree with the motion court and Appellate Division that defendant’s conversation with Kohler was conditionally privileged (see, Restatement § 596, comment d ["Tenants in common * * * are included within the rule stated in this Section as being conditionally privileged to communicate among themselves matter defamatory of others which concerns their common interests”]). Gelstein and Kohler were members of the governing body of an association formed to protect the tenants’ interests. If Liberman was in fact bribing the police so that his cars could occupy spaces in front of the building, that would be inimical to those interests. Thus, Gelstein had a qualified right to communicate his suspicions— though defamatory of Liberman — to Kohler.

The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with "malice” (see, Park Knoll Assocs. v Schmidt, 59 NY2d, at 211, supra). Under common law, malice meant spite or ill will (see, Stillman v Ford, 22 NY2d, at 53, supra; Shapiro v Health Ins. Plan, 7 NY2d, at 61, supra). In New York Times Co. v Sullivan (376 US 254), however, the Supreme Court established an "actual malice” standard for certain cases governed by the First Amendment: "knowledge that [the statement] was false or * * * reckless disregard of whether it was false or not” (376 US, at 279-280). Consequently, the term "malice” has become somewhat confused (see, Mahoney v Adirondack Publ. Co., 71 NY2d 31, 36, n 1; see also, Greenbelt Publ. Assn, v Bresler, 398 US 6, 10 [trial court erred in First Amendment case by charging jury under common-law malice standard]). Indeed, as the Supreme Court itself recently acknowledged (Masson v New Yorker Mag., 501 US —, —, 111 S Ct 2419, 2429-2430):

"Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will * * * We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one.”

Nevertheless, malice has now assumed a dual meaning, and we have recognized that the constitutional as well as the common-law standard will suffice to defeat a conditional privilege (see, Loughry v Lincoln First Bank, 67 NY2d, at 376, supra; O’Rorke v Carpenter, 55 NY2d 798, 799; Stillman v Ford, 22 NY2d, at 53, supra; see also, Restatement §§ 600, 603, comment a).

Under the Times malice standard, the plaintiff must demonstrate that the "statements [were] made with [a] high degree of awareness of their probable falsity” (Garrison v Louisiana, 379 US 64, 74). In other words, there "must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication” (St. Amant v Thompson, 390 US 727, 731; see also, Restatement § 600, comment b).

Applying these principles, we conclude that there is no triable malice issue under the Times standard. Although the dissenter below suggested that Gelstein’s admission that he did not know whether the bribery charge was true raised a triable issue on malice, there is a critical difference between not knowing whether something is true and being highly aware that it is probably false. Only the latter establishes reckless disregard in a defamation action. Moreover, as the motion court correctly observed, plaintiff’s mere characterizatian of Gelstein’s informants as "disgruntled” is insufficient to raise a triable issue. Although plaintiff criticizes defendant for not producing affidavits from the informants — arguing that "it has never been factually established that Gelstein had any source” — it was plaintiff’s burden to raise a factual issue on malice, and he did not seek to depose the employees either. In sum, this record is insufficient to raise a triable issue of fact under the Times standard of malice.

Similarly, there is insufficient evidence of malice under the common-law definition. A jury could undoubtedly find that, at the time Gelstein discussed his bribery suspicions with Kohler, Gelstein harbored ill will toward Liberman. In this context, however, spite or ill will refers not to defendant’s general feelings about plaintiff, but to the speaker’s motivation for making the defamatory statements (see, Restatement § 603, and comment a; Stukuls v State of New York, 42 NY2d, at 281-282, supra; Stillman v Ford, 22 NY2d, at 53, supra). If the defendant’s statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that "malice was the one and only cause for the publication” (Stukuls v State of New York, 42 NY2d, at 282, supra).

Plaintiff has not sustained that burden. Significantly, Gel-stein did not make a public announcement of his suspicions— from which an inference could be drawn that his motive was to defame Liberman — but relayed them to a colleague who was in a position to investigate. As noted, the conversation was within the common interest of Gelstein and Kohler, and there is nothing in this record from which a reasonable jury could find that Gelstein was not seeking to advance that common interest.

Thus, the courts below properly concluded that defendant’s conversation with Kohler was qualifiedly privileged, and plaintiff failed to raise a fact issue on malice.

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

Smith, J.

(dissenting in part). Because there is an issue of fact as to whether defendant’s statements accusing the plaintiff of bribery- either resulted from a reckless disregard for the truth or falsity of the statements or were motivated solely by malice, the order of the Appellate Division should be modified by denying so much of defendant’s motion for summary judgment as sought to dismiss the second cause of action and reinstating that cause of action. Therefore, I dissent with respect to the second cause of action.

In this defamation action, the plaintiff landlord and defendant tenant, a board member of the tenants’ association, have been involved in continuous disputes over the last 10 years concerning rent increases and the conversion of the property to cooperative ownership. Numerous civil and criminal actions involving these parties and/or others have resulted therefrom.

The second cause of action is based upon the following conversation between the defendant and a fellow board member:

"Gelstein: Can you find out from your friend at the precinct which cop is on the take from Liberman? "Kohler: What are you talking about?
"Gelstein: There is a cop on the take from Liberman. That’s why none of the building’s cars ever get tickets — they can park anywhere because Liberman’s paid them off. He gives them a hundred or two hundred a week.”

There is no dispute that these statements were made. However, defendant contends that these were not statements, but rather his effort on behalf of the tenants’ association to investigate what he had supposedly learned from named plaintiff’s employees. He had no knowledge of the truth or falsity of this bribery accusation. Accordingly, defendant assorted that, if defamatory, the statements were within the ambit of the common interest qualified privilege and that he had acted "without malice or negligence.”

Two issues are raised here concerning the second cause of action. The first is whether or not there was a qualified privilege to make the statement. The second is, assuming there was a qualified privilege, whether there has been raised a sufficient factual showing of malice, knowledge of the falsity of the statement, or reckless disregard of its truth or falsity to defeat the motion for summary judgment (Loughry v Lincoln First Bank, 67 NY2d 369, 376).

The majority has properly concluded that there is a qualified privilege here. Moreover, the plaintiff does not challenge the assertion that the statement was qualifiedly privileged.

Given this qualified privilege, the burden shifts to the plaintiff to show that the statement is nevertheless actionable because it is false and motivated by malice (Taker v Poliak, 44 NY2d 211, 219; Park Knoll Assocs. v Schmidt, 59 NY2d 205, 209; Restatement [Second] of Torts § 613). As the law has developed in this area, "malice” has been assigned different meanings based upon the context. At common law, malice has been based upon a determination that the statement is false, that the defendant knew it to be false when published and, therefore, the defendant acted in bad faith (Lovell Co. v Houghton, 116 NY 520). In other words, actual malice at common law meant " 'personal spite or ill will, or culpable recklessness or negligence’ ” (Hoeppner v Dunkirk Print. Co., 254 NY 95, 106; see also, Shapiro v Health Ins. Plan, 7 NY2d 56, 61). For malice to be found, the fact that the statement was false had to be augmented by defendant’s desire to injure the plaintiff (id.). For purposes of a constitutional analysis, actual malice has been defined as "with knowledge that [the statement] was false or with reckless disregard of whether it was false or not” (New York Times Co. v Sullivan, 376 US 254, 280; Trails W. v Wolff, 32 NY2d 207, 219). The standard articulated in New York Times Co. v Sullivan (supra) was expanded to consider whether there was a "high degree of awareness” of the statement’s probable falsity (Garrison v Louisiana, 379 US 64, 74) or that the defendant "in fact” entertained "serious doubts” as to its truth (St. Amant v Thompson, 390 US 727, 731), as we acknowledged in Pauling v National Review (22 NY2d 818, 819). These expansions of the constitutional standard evoke the common-law concept of bad faith. Indeed, this Court has recognized that consideration of malice in the constitutional and the common-law sense is proper in determining whether a qualified privilege is to be given effect (Loughry v Lincoln First Bank, 67 NY2d 369, 376, supra [conditional privilege may be negated by "statements published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity”]). This dual analysis is reflected in the New York Pattern Jury Instructions on qualified privilege (see, PJI 3:32 [1991 Supp]).

In light of the foregoing, the issue of malice in the case at bar should be reviewed under both standards. Under the constitutional standard, there is an issue of fact as to whether there was a reckless disregard for the truth or falsity of the bribery accusation or whether defendant, in good faith, was attempting to ascertain the truth or falsity of the accusation. The record is presently lacking any evidence to support the conclusion that defendant knew that the accusation was false, that there was a high degree of awareness of probable falsity, or that he entertained serious doubts as to its truthfulness. Defendant denies any knowledge as to its truth or falsity but maintains that he believed the accusation to be true because the source was two of plaintiff’s employees, whom he identified. (These persons have not yet been deposed.) However, as to whether the defendant may have shown a reckless disregard for the truth, it is significant that the defendant and Kohler, the person to whom the statement was first made, dispute whether the accusation was stated as a matter of fact or as part of an inquiry. In Kohler’s version of the conversation, the inquiry contained therein pertained to the identification of the bribed police officer, not the truth of the accusation. Clearly, there is an issue of fact here that may be resolved by further discovery or that may require determination by a trier of fact.

Turning to a common-law analysis, there is sufficient evidence in this record to create an issue of fact as to whether defendant’s statements were motivated solely by spite or ill will. The parties’ acrimonious relationship is accentuated by, inter alla, lawsuits, defendant tossing a possibly lit firecracker into plaintiff's vehicle, and an incident where defendant pounded on plaintiff’s vehicle while occupied by plaintiff, his wife, and their children. And, as discussed above, if it is found that defendant stated the accusation as fact, spite or ill will may have been the sole motivation.

Therefore, if plaintiff proves that the accusation is false, the foregoing considerations suffice to create issues of fact as to malice under both standards.

The conclusion that there is no triable issue of fact here because a jury could not reasonably conclude that malice alone was the motivation for the statement is not supported by the record. Plaintiff indeed has the burden of proving that malice alone was the cause for the publication (Stukuls v State of New York, 42 NY2d 272, 281-282). However, having presented a basis for that conclusion, plaintiff should be afforded an opportunity to present such evidence to a trier of fact that the actions of the defendant were duplicitous and motivated solely by malice (see, Stukuls v State of New York, supra, at 282 [the claim, affidavits, and the need for additional discovery precluded finding that plaintiff could not raise an issue of fact]). In this case, plaintiff has alleged that defendant filed the motion for summary judgment before depositions of the employees who supposedly told defendant of the bribery scheme could be taken. Accordingly, the second cause of action should be reinstated.

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

Order affirmed, with costs.

      . The presumed-damages rule has been found unconstitutional in certain First Amendment cases (Gertz v Robert Welch, Inc., 418 US 323, 349) and criticized for use in defamation cases generally (see, e.g., Anderson, Reputation, Compensation, and Proof, 25 Wm & Mary L Rev 747 [1984]; Uniform Defamation Act [Feb. 6,1992 draft] § 9, and comment thereto). Our disposition makes it unnecessary to consider the issue here.

      . On this appeal, this is the only portion of the fifth cause of action raised by plaintiff.

      . Plaintiffs appellate argument that he needs further discovery (see, dissenting opn, at 442) is unavailing. Almost three years elapsed between defendant’s assertion of the common-interest privilege in his verified answer and the motion for summary judgment. Indeed, plaintiff never claimed a need for discovery in opposition to the motion (see, CPLR 3212 [f]).

      . The dissent’s contrary conclusion is puzzling in light of its acknowledgment that the "record is presently lacking any evidence to support the conclusion that defendant knew that the [bribery] accusation was false, that there was a high degree of probable falsity, or that he entertained serious doubts as to its truthfulness.” (Dissenting opn, at 442.) Moreover, the purported factual issue whether the bribery "accusation was stated as a matter of fact or as part of an inquiry” (dissenting opn, at 442) goes not to malice, but to whether there is an actionable statement in the first instance. Insofar as the dissent concludes that the parties’ "acrimonious relationship” is sufficient to raise a triable issue under the common-law standard (dissenting opn, at 442), we have observed that the "existence of earlier disputes between the parties is not evidence of malice” (Shapiro v Health Ins. Plan, 7 NY2d, at 64, supra).

      . In response to the divergent meanings attributed to the term "malice” in the defamation area, the Restatement (Second) of Torts has abandoned its use for the more comprehensive "abuse of privilege” terminology.

      . It should be noted that in Loughry the jury found, inter alla, that the defendants acted "solely from malice intended] to injure plaintiff” (supra, at 376).


source: Caselaw Access Project

author: Acting Chief Judge Simons.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Steven Martinez, Appellant.
    Argued October 16,1992;
    decided December 16, 1992

      POINTS OF COUNSEL

      Marcy Chynsky, Yorktown Heights, for appellant.
    I. In the absence of evidence of criminal activity, the court below erred as a matter of law in holding that defendant’s flight, in conjunction with other factors, provided a lawful basis for the pursuit and seizure of this defendant. (People v Hollman, 79 NY2d 181; People v Howard, 50 NY2d 583, 449 US 1023; People v Leung, 68 NY2d 734; People v Grimsley, 156 AD2d 714; People v McRay, 51 NY2d 594; People v Kosciusko, 149 AD2d 620.) II. The Court below erred as a matter of law in holding that defendant had abandoned the tangible evidence and did not have standing to challenge the admissibility of the evidence. (People v Boodle, 47 NY2d 398; People v Grimsley, 156 AD2d 714; People v Wesley, 73 NY2d 351; People v Mosley, 68 NY2d 881; People v Kosciusko, 149 AD2d 620.)

      Carl A. Vergari, District Attorney of Westchester County, White Plains (Maryanne Luciano and Mary E. Costello of counsel), for respondent.
    The Court below upon affirmed findings of fact of the nisi prius court, properly held that appellant’s act of handing and abandoning the Hide-a-Key box to Palmer was an intentional relinquishment of the property in response to lawful police conduct; no other issue was preserved for appellate review; defendant’s motion to suppress the Hide-a-Key box and its contents was properly denied. (People v Hollman, 79 NY2d 181; People v De Bour, 40 NY2d 210; People v Jones, 69 NY2d 853; People v Leung, 68 NY2d 734; People v Harrison, 57 NY2d 470; People v Prochilo, 41 NY2d 759; People v Salaman, 71 NY2d 869; People v Charles J., 51 NY2d 594; Matter of James R., 76 NY2d 825; People v Bronston, 68 NY2d 880.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

This appeal addresses (1) the factual basis necessary to justify police officers’ pursuit and detention of a fleeing individual, and (2) whether, under the circumstances presented, police officers properly pursued defendant into a nearby grocery store, recovered drugs he had discarded and arrested him for unlawful possession of those drugs.

On April 7, 1989, at about 10:50 p.m., Mount Vernon City Police Officer Radzinsky was patrolling in a high-crime area with his partner in a marked police car when he saw defendant reach up and remove a metal Hide-a-Key box from the steel grate of a store window. Officer Radzinsky was aware that the area was known for its drug activity; he personally had made approximately 50 drug-related arrests in the vicinity. He also knew, from his experience and training, that Hide-a-Key boxes are sometimes used by drug dealers to "stash” drugs.

After observing defendant, the officers stopped and got out of their car. They were dressed in plain clothes, but Officer Radzinsky had Ms identifying badge prominently displayed and defendant knew him to be a police officer because defendant had been present when Officer Radzinsky previously arrested a friend of Ms. At the officers’ approach, defendant turned and ran a few steps into a nearby grocery store. The officers chased defendant into the store, saw Mm pass off the box to codefendant Palmer, and saw Palmer go to the rear of the store and throw the box to the floor. Officer Radzinsky retrieved the box and found it contained 17 vials of what later proved to be crack cocaine.

Defendant contends that the police had no justifiable basis to pursue him into the grocery store, that he abandoned the box as a direct result of illegal police conduct, and that, consequently, the recovered crack should have been suppressed at trial.

The parties have urged two different standards for determining the legality of the police pursuit (compare, People v Leung, 68 NY2d 734, 736; People v Be Bour, 40 NY2d 210, 223 [reasonable suspicion needed to justify seizure or pursuit], with People v Howard, 50 NY2d 583, 596 [suggesting that probable cause is needed to justify seizure or pursuit]). The controlling rule is stated in People v Leung (supra): the police may pursue a fleeing defendant if they have a reasonable suspicion that defendant has committed or is about to commit a crime.

Police-citizen encounters take a variety of forms, ranging from a request for information to an arrest. The greater the level of police interference, the greater the quantum of information necessary to justify it. Thus, we have held that the police need have only some objective credible reason to approach a citizen for information, but they must have probable cause to believe that a crime is or has been committed to support an arrest (see, People v De Bour, 40 NY2d, at 223, supra). There is a broad range of legitimate police activity between these two extremes, however, encounters which involve more than an informational stop and less than an arrest. Included among them are forcible stops and seizures which take place whenever an individual’s freedom of movement is significantly impeded (see, People v Be Bour, 40 NY2d, at 216, supra). Illustrative is police action which restricts an individual’s freedom of movement by pursuing one who, for whatever reason, is fleeing to avoid police contact. Because the resulting infringement on freedom of movement is similar, both forcible stops and pursuits require the same degree of information to justify them.

Forcibly detaining someone, or pursuing them for the purpose of detaining them, results in a lesser interference with freedom than does an arrest. Consequently, we have held that the police may forcibly stop or pursue an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed (see, People v Leung, 68 NY2d 734, 736, supra; People v Be Bour, 40 NY2d 210, 223, supra; cf., People v May, 81 NY2d 725 [decided today]).

The. courts have applied this rule somewhat unevenly, however, because of language found in People v Howard (50 NY2d 583, supra). In Howard, we discussed the two extremes of police-citizen encounters, informational stops and arrests. The discussion of probable cause required for arrest lead some to read the decision as standing for the proposition that probable cause is required to justify police pursuit. The holding of the Court, insofar as relevant to the issue before us, was that flight alone would not justify a stop or pursuit. The Court’s conclusions are stated on page 588:

"While we hold that there was a sufficient basis to permit inquiry, we agree that defendant had the right not to answer, that his running did not, absent any indication that any crime had been or was about to be committed, permit detention; that there was no probable cause for defendant’s arrest”.

The Court did not explicitly concern itself with the requirements for an intermediate level of intrusion (People v Howard, supra, at 592).

Though some have interpreted People v Howard otherwise, the rule is, and was before the Howard decision, that the objective evidence necessary to support a stop and seizure short of an arrest is reasonable suspicion (People v De Bour, supra; People v Leung, supra).

Reasonable suspicion represents that "quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (see, People v Cantor, 36 NY2d 106, 112-113). Because the determination that reasonable suspicion existed involves mixed questions of law and fact, we are bound by the findings of the courts below if there is evidence in the record to support them (see, People v Jones, 69 NY2d 853, 855).

In the case before us, there is support in the record for the finding below that the police officers had a reasonable suspicion of criminal activity to justify their pursuit of defendant. There was evidence that defendant was seen standing at night in an area known for an excessive amount of drug activity, he was removing a device known to the officers to be used for hiding drug stashes, and he fled immediately upon observing the approaching police. Defendant had a right to refuse to respond to a police inquiry and his flight when the officers approached could not, in and of itself, create a reasonable suspicion of criminal activity (see, People v May, 81 NY2d 725, supra [decided today]). However, defendant’s flight may be considered in conjunction with other attendant circumstances, namely, the time, the location, and the fact that defendant was seen removing an instrument known to the police to be used in concealing drugs. "When coupled with defendant’s immediate flight upon the officer’s approach, the [removal of the Hide-a-Key box] in this narcotics-prone neighborhood establishes the necessary reasonable suspicion * * * such that pursuit by the officers was justified” (see, People v Leung, 68 NY2d, at 736, supra).

Inasmuch as the pursuit of defendant was justified, his abandonment of the Hide-a-Key box was not precipitated by any illegal police conduct (see, People v Leung, 68 NY2d, at 736-737, supra; cf., People v Boodle, 47 NY2d 398, 402, cert denied 444 US 969). Once defendant abandoned the box, he lost his right to object to the opening of the box and the drugs discovered upon opening the box provided the police with probable cause to arrest him. Thus, defendant’s motion to suppress evidence was properly denied.

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

Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed.


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Edwin Morales, Appellant.
    Argued November 19,1992;
    decided December 17, 1992

      POINTS OF COUNSEL

      Arthur H. Hopkirk, New York City, and Philip L. Weinstein for appellant.
    Appellant was denied his right to be present at all material stages of trial when he was excluded from his stepdaughter’s competency hearing, held pursuant to CPL 60.20. (Kentucky v Stincer, 482 US 730; Snyder v Massachusetts, 291 US 97; People v Sloan, 79 NY2d 386; People v Morales, 176 AD2d 825; People v Turaine, 78 NY2d 871; People v Anderson, 16 NY2d 282; Immuno AG. v Moor-Jankowski, 77 NY2d 235; O’Neill v Oakgrove Constr., 71 NY2d 521; People v Stith, 69 NY2d 313; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jodi L. Mandel and Roseann B. Mackechnie of counsel), for respondent.
    Defendant’s absence during the trial court’s voir dire to determine the swearability of nine-year-old R.H. deprived him neither of his constitutional or statutory right to be present at all material stages of trial nor his right to confrontation. (Kentucky v Stincer, 482 US 730; Snyder v Massachusetts, 291 US 97; People v Velasco, 77 NY2d 469; People v Darby, 75 NY2d 449; People v Mullen, 44 NY2d 1; People v Anderson, 16 NY2d 282; People v Parks, 41 NY2d 36; People v Johnson, 66 NY2d 398; People v Scott, 79 NY2d 474; People v Harris, 77 NY2d 434.)
   OPINION OF THE COURT

Kaye, J.

Did defendant have a right to be present when the trial court preliminarily examined a child-witness to determine whether she understood the nature of an oath? We conclude that defendant did not have that right, and accordingly sustain his conviction.

I.

In March 1988, defendant was indicted for rape, sodomy and other crimes against R.H. and E.T., children with whom he lived for several years in the role of stepfather. Both children testified at trial; E.T. was at that time 13 years old and R.H. nine. As R.H. was less than 12, the trial court was required to find that she understood "the nature of an oath” before she could give sworn testimony (CPL 60.20 [2]).

The court conducted a competency inquiry after trial had commenced, but outside the jury’s presence. Informing defense counsel that the proceeding was "not something that your client has a right to be present at,” the Judge excluded defendant from the hearing so the child would not be "distracted by anyone at all.” The court permitted defense counsel and the prosecutor to attend but not directly examine the witness, asking instead for submission of any additional questions the attorneys might wish to have posed.

After several general questions about school, the Judge asked R.H. if she knew why she was in court, to which she answered: "Because Edwin, the father of my brothers, he did fresh things to me.” The court then ascertained whether the child knew the difference between telling the truth and a lie, and her understanding of the consequences of lying. The court also assured itself that the child would testify only from personal knowledge, and would respond "I don’t know” or "I forgot” as necessary. Finally, at defense counsel’s request, the court asked R.H. if she understood the roles of the Judge, prosecutor and defense counsel.

At the conclusion of the inquiry, the court found that R.H. was capable of giving sworn testimony. Upon cross-examinatian after R.H.’s direct testimony at trial, counsel asked her if she knew that it was wrong to tell a lie and that she would be punished if she did so. R.H responded affirmatively to both questions.

The jury convicted defendant of rape and sodomy. Defendant appealed, arguing that his constitutional and statutory rights to be present at trial were violated when he was barred from the competency hearing. The Appellate Division unanimously rejected defendant’s claims, and we affirm.

n.

Analysis begins with the nature of the proceeding from which defendant was excluded.

CPL 60.20 (2) establishes a rebuttable presumption that a child less than 12 is incapable of giving sworn testimony in a criminal proceeding (see, People v Hetrick, 80 NY2d 344, 349; People v Nisoff, 36 NY2d 560, 565-566). The presumption is overcome, however, if the court is satisfied that the child "understands the nature of an oath” (CPL 60.20 [2]). Before making that determination, the court is required to conduct a preliminary examination of the prospective witness, which typically involves several interrelated inquiries: "does the child know the difference between a lie and the truth; does the child know the meaning of an oath; does the child understand what can happen if she tells a lie; and does the child have ability to recall and relate prior events.” (Bamberger and Allman, Some Special Concerns in the Trial of Child Sexual Abuse Cases, 64 NY St BJ 18, 20 [May/June 1992]; see also, Kentucky v Stincer, 482 US 730, 741.)

Even if the court finds that the child cannot appreciate an oath, it may permit unsworn testimony if satisfied that "the witness possesses sufficient intelligence and capacity to justify the reception thereof’ (CPL 60.20 [2]; see, People v Pustolka, 149 NY 570, 570 [decided under predecessor statute]). A defendant may not, however, be convicted of an offense based solely on unsworn testimony (CPL 60.20 [3]).

As the only purpose of a CPL 60.20 hearing is to determine a witness’ testimonial capacity, it is plain that the proceeding is unrelated to the basic issues at trial (see, Kentucky v Stincer, 482 US, at 741, supra). No evidentiary testimony is taken — that is the function of trial; rather, the sole issue under consideration is the mental capacity of a prospective witness. Consequently, although the hearing may take place in the midst of trial, it can also be conducted pretrial. Indeed, pretrial inquiry may lead to a finding that a child lacks capacity to testify, and thus to dismissal of all or part of the case (compare, Kentucky v Stincer, 482 US, at 732, n 1, supra). Alternatively, a finding that a child could provide only unsworn testimony would alert the parties to the need for corroboration.

III.

Against this backdrop, we first consider whether defendant’s Federal due process right to be present at trial was violated when the CPL 60.20 hearing was conducted in his absence.

In Snyder v Massachusetts (291 US 97 [Cardozo, J.]) the Supreme Court held that a defendant’s presence was required as a matter of due process "to the extent that a fair and just hearing would be thwarted by his [or her] absence, and to that extent only.” (291 US, at 107-108.) In other words, the constitutional right to be present arises "whenever [defendant’s] presence has a relation, reasonably substantial, to the fulness of [the] opportunity to defend against the charge.” (297 US, at 105-106.) Conversely, there is no right when "presence would be useless, or the benefit but a shadow.” (297 US, at 106-107.) More than half a century later, Justice Cardozo’s formulation retains vitality (see, Kentucky v Stincer, 482 US, at 745).

Stincer is dispositive of defendant’s Federal claims. In that case, the Kentucky Supreme Court overturned defendant’s sodomy convictions because defendant was excluded from an in-chambers hearing to determine the testimonial capacity of two children. The United States Supreme Court reversed, holding that defendant’s Confrontation Clause rights were not violated because the witnesses were subject to cross-examinatian at trial, after which defendant could have sought reconsideration of the competency ruling (482 US, at 744). More pertinent to the present case, the Supreme Court also rejected defendant’s constitutional right-to-be-present claim, holding that the hearing was not related to the witnesses’ substantive testimony and defendant had made no showing that his presence would have been useful in ensuring a more reliable determination of competency (482 US, at 745-747).

Defendant would distinguish Stincer on two grounds: first, that the hearing in his case involved substantive testimony and second, that his relationship with R.H. could have rendered his presence at the hearing useful.

Although the Supreme Court in Stincer noted that "a competency hearing in which a witness is asked to discuss upcoming substantive testimony might bear a substantial relationship to a defendant’s opportunity better to defend * * * at trial” (482 US, at 746), we conclude that the CPL 60.20 proceeding here does not implicate that concern. In support of his argument, defendant relies on R.H.’s statement that she was in court "[b]ecause Edwin, the father of my brothers, he did fresh things to me.” We fail to see how this brief statement — which was not in response to a question designed to elicit substantive testimony — could have borne a "substantial relationship” to the opportunity to defend at trial (Kentucky v Stincer, 482 US, at 746). To the contrary, the transcript confirms that the hearing was confined to issues relating to competency.

Defendant’s alternative basis for distinguishing Stincer is similarly without merit because we conclude (as did the Supreme Court in Stincer) that defendant "has presented no evidence that his relationship with the child[], or his knowledge of facts regarding [her] background” could have resulted in a more assured determination of competency (482 US, at 747). Although on this appeal defendant suggests a number of ways he "might” or "could” have affected the court’s competency ruling, he never presented those arguments to the hearing court for evaluation and thus his claims necessarily remain speculative.

Moreover, if in fact defendant had knowledge of peculiar traits that bore on R.H.’s competency, he could have told counsel, who undoubtedly would have raised the issue at the hearing. Upon R.H.’s cross-examination at trial, defense counsel had the opportunity to — and briefly did — revisit the issue of competency, in defendant’s presence, and there is no suggestion that the court’s competency determination was erroneous (compare, Kentucky v Stincer, 482 US, at 740).

We conclude, therefore, that defendant’s presence at the competency hearing would have been "useless, or the benefit but a shadow” (Snyder v Massachusetts, 291 US, at 106-107, supra), and thus there was no Federal due process violation.

IV.

We next consider whether defendant was deprived of the right to be present under our independent body of State law.

The Criminal Procedure Law mandates that a "defendant must be personally present during the trial of an indictment” (CPL 260.20). This statute serves a dual purpose: "to prevent the ancient evil of secret trials” and to "guarantee the defendant’s right to be present at all important stages” of trial (People ex rel. Lupo v Fay, 13 NY2d 253, 256; see also, People v Anderson, 16 NY2d 282, 287).

Interpreting the statute, we have held that the word "trial” includes "impaneling the jury, the introduction of evidence, the summing up of counsel, and the charge of the court to the jury, receiving and recording the verdict.” (Maurer v People, 43 NY 1, 3; see also, People v Mullen, 44 NY2d 1, 4.) To the extent there is a concern about secret trials, defendant’s presence serves a symbolic function, and thus the right does not rest exclusively on defendant’s potential contribution to the proceedings. Indeed, a defendant’s appearance at rendition of the verdict could serve little practical function (see, Goldin, Presence of the Defendant at Rendition of the Verdict in Felony Cases, 16 Colum L Rev 18, 24 [1916]), yet defendant has a right to be present (see, Maurer v People, 43 NY, at 3, supra). Trial in absentia is impermissible except in limited circumstances (see, CPL 260.20 [disorderly and disruptive defendant may be removed from courtroom]).

Apart from the core segments of trial, prosecutions entail myriad ancillary proceedings, some conducted pretrial, others during trial (see, e.g., People v Dokes, 79 NY2d 656 [Sandoval hearing]; People v Sloan, 79 NY2d 386 [voir dire of prospective jurors]; People v Turaine, 78 NY2d 871 [hearing on admissibility of alleged threats]; People v Mullen, 44 NY2d 1, supra [hearing on disqualification of seated juror]; People v Anderson, 16 NY2d 282 [pretrial motion to suppress]). In these cases, we have found the principles enunciated in Snyder v Massachusetts to be a "sound, fair guide for decision” (People ex rel. Lupo v Fay, 13 NY2d, at 256, supra [legal argument for discharge of jury]).

That is not to say that our statutory provision is coextensive with Federal due process — some of our decisions give greater protections than appear to be constitutionally required (see, e.g., People v Antommarchi, 80 NY2d 247; People v Dokes, supra; see also, People v Mitchell, 80 NY2d 519, 528 [decided today]). Rather, based on our own body of State law, we look to the effect that defendant’s absence might have on the opportunity to defend.

Accordingly, we found no abrogation of the defendant’s rights when he was absent from a precharge conference (People v Velasco, 77 NY2d 469, 472) or a colloquy regarding sufficiency of a readback (People v Rodriguez, 76 NY2d 918, 921), but have held that where defendant has something valuable to contribute, presence is generally required (see, e.g., People v Dokes, 79 NY2d, at 661, supra [at Sandoval hearing, defendant in best position to point out errors in rap sheet and provide details about charged and uncharged bad acts]; People v Anderson, 16 NY2d, at 288, supra [at pretrial suppression hearing, only defendant can inform attorney about inconsistencies, errors or falsities in witness’ testimony]).

Although the Supreme Court in Stincer did not think it helpful to distinguish between trial and pretrial proceedings for a Confrontation Clause analysis (482 US, at 739-740), the distinction between core segments of trial and ancillary proceedings is important for a State law analysis because a defendant usually has an unfettered right to attend trial— regardless of his or her potential contribution — but only a qualified right to attend ancillary proceedings. As discussed earlier, a CPL 60.20 hearing is not a core part of the trial and indeed could have been conducted pretrial. Therefore, we must evaluate the extent to which defendant’s exclusion affected his ability to defend.

Taking Snyder v Massachusetts as our guide, the Supreme Court’s decision in Stincer — applying Snyder to the same sort of proceeding involved here — is persuasive authority. Moreover, the result in Stincer is consistent with our own precedents. The hearing did not involve evidentiary testimony (compare, People v Anderson, 16 NY2d 282, supra; People v Turaine, 78 NY2d 871, supra) or issues about which defendant has shown he had special knowledge (compare, People v Dokes, 79 NY2d 656, supra). Instead, the proceeding related to a witness’ testimonial capacity, a legal determination unrelated to trial issues. In that regard, the case is analogous to People v Mullen (supra) and People v Torres (80 NY2d 944), where we found no error when defendant was absent from a hearing to determine whether a seated juror should be disqualified. Similarly, in People v Velasco (77 NY2d, at 473, supra) we observed that the determination of a prospective juror’s qualifications to serve was a matter solely for the court, and defendant did not have a right to be present at the the conference. In these circumstances, moreover, we perceive no greater right to be present under our State Constitution than already provided by statute.

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

Acting Chief Judge Simons and Judges Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed.

      . This provision is derived from, and materially similar to, its predecessor, former Code of Criminal Procedure § 356 (1881), which in turn was derived from Revised Statutes of New York (part IV, ch II, tit V, § 13 [1829]).

      . Of course, a de minimis violation of the absolute right to be present at trial would not necessarily result in reversal (see, e.g., People u Bragle, 88 NY 585).


author: Titone, J.

text:
    In the Matter of Edward B., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued October 15,1992;
    decided December 16, 1992

      POINTS OF COUNSEL

      Timothy J. Bennett, New York City, and Lenore Gittis for appellant.
    I. Because the Family Court Act establishes a presumption of incapacity as to children under the age of 12, the juvenile delinquency petition is jurisdictionally defective as there was no determination prior to the 10-year-old complainant signing her supporting deposition that she was capable of understanding the nature of an oath. (Matter of David T., 75 NY2d 927; Matter of Detrece H., 78 NY2d 107; Matter of Steven S., 176 AD2d 101; People v Potwora, 44 AD2d 207; People v Alejandro, 70 NY2d 133; People v Pelchat, 62 NY2d 97; People v Phillipe, 142 Misc 2d 574; People v Harvin, 126 Misc 2d 775; People v Nisoff, 36 NY2d 560; People v Groff, 71 NY2d 101.) II. The Family Court erred in refusing to dismiss the delinquency petition as legally insufficient after the complainant’s trial testimony revealed that she did not read her supporting deposition before signing it. (People v Whetson, 135 Misc 2d 1; People v Alejandro, 70 NY2d 133; Matter of David T., 75 NY2d 927; People v Jeffries, 19 NY2d 564; People v Gambella, 56 Misc 2d 928; People v Laspina, 135 Misc 2d 422; Matter of Detrece H., 78 NY2d 107; People v Crisofulli, 91 Misc 2d 424; People v Phillipe, 142 Misc 2d 574.)

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Helen P. Brown and Larry A. Sonnenshein of counsel), for respondent. The juvenile delinquency petition supported by complainant’s deposition sworn in accordance with CPLR requirements was legally sufficient.
    The Family Court Act does not require a preliminary in-court determination that a child under 12 is capable of understanding the nature of an oath before she signs a supporting deposition. The Criminal Procedure Law verification alternatives should not be substituted for the provisions of the Family Court Act. Moreover, that the complainant did not read the deposition is not dispositive since she understood what was in it, the facts were based on her own personal knowledge, and the deposition was properly notarized. (Matter of Henry M., 151 Misc 2d 219; Matter of David C, 143 Misc 2d 203; Matter of Robert T., 123 Misc 2d 550; Matter of Parks, 78 Misc 2d 281; Matter of Rodney J., 108 AD2d 307; Matter of David T., 75 NY2d 927; People v Alejandro, 70 NY2d 133; People v Groff, 71 NY2d 101; Matter of Anthony J., 143 AD2d 668.)
   OPINION OF THE COURT

Titone, J.

In Matter of David T. (75 NY2d 927), we held that a juvenile delinquency petition that is supported in relevant part only by hearsay is jurisdictionally defective and must be dismissed because it does not meet the requirements of Family Court Act § 311.2 (3). The issue presented here is whether a similar defect in a juvenile delinquency petition constitutes a basis for dismissal when the hearsay character of the facts alleged in the supporting deposition is not facially apparent but is discovered at some point in the course of the proceeding. Under such circumstances, we conclude that dismissal is not required.

Respondent Edward B. was charged with committing acts which, if committed by an adult, would constitute first degree robbery (Penal Law § 160.15 [2]) and several related offenses. The charges all arose out of an incident in which the 10-year-old complainant, Xiomara F., was accosted at knifepoint and forced to surrender a gold chain. The charges were embodied in a juvenile delinquency petition, accompanied by a supporting deposition which the complainant had signed under oath.

During the fact-finding hearing on this petition, the complainant testified that she had not written the deposition herself, but had instead merely related her story to the Assistant Corporation Counsel who had interviewed her. Following this testimony, a colloquy ensued regarding the preparation of the supporting deposition. The Assistant Corporation Counsel acknowledged that the complainant’s story had not been recorded verbatim, but rather had been supplemented with "sufficiently legal language to support the deposition.” Further, the complainant had not read or been read the deposition before signing it. Instead, the Assistant had merely "explained” its contents to her.

On the basis of this newly disclosed information, respondent’s counsel moved for dismissal, arguing that the petition was legally insufficient because the complainant who signed it did not have actual knowledge of its contents. The hearing court denied the motion on the grounds that the Assistant Corporation Counsel had "explained” the deposition to the complainant and that the complainant’s hearing testimony had "verified]” the deposition’s contents.

Respondent was subsequently found guilty of the charged misconduct and adjudicated a juvenile delinquent. On appeal from the dispositional order, the Appellate Division affirmed. With regard to the sufficiency of the supporting deposition, the Court stated that "[t]he fact that the statement of the infant deponent was transcribed by the presentment agency, in legal form, does not convert the factual allegations contained in the supporting deposition into hearsay” (177 AD2d 319). Further, the Court ruled, "the failure of the presentment agency to reread the contents of the supporting deposition to the infant deponent [did not] invalidate the verification of the deposition” (supra, at 319-320, citing Matter of Robert T., 123 Misc 2d 550; see also, Matter of Parks, 78 Misc 2d 281, 287). The Appellate Division also addressed respondent’s argument, raised for the first time on appeal, that the capacity of the 10-year-old complainant to sign the supporting deposition under oath had not been properly established through a voir dire conducted before her signature was affixed. In response to defendant’s contention that this infirmity rendered the petition jurisdictionally deficient, the Court held that the absence of a contemporaneous inquiry was not fatal because the hearing court had subsequently determined that the young complainant had understood the nature of the oath when she had sworn to her deposition (compare, Matter of David C., 143 Misc 2d 203; Matter of Robert T., supra; and Matter of Parks, supra, with People v Page, 150 Misc 2d 627; People v Phillipe, 142 Misc 2d 574; People v Pierre, 140 Misc 2d 623; People v Cortez, 140 Misc 2d 267; see, Family Ct Act § 343.1 [2]; see also, CPL 60.20 [2]; 100.30 [2]).

Initially, we do not consider the propriety of the Appellate Division’s conclusion on the latter issue concerning the complainant’s capacity to execute a sworn deposition. Inasmuch as the claimed defect was not apparent from the face of the accusatory instrument, it was not the kind of nonwaivable "jurisdictional” flaw that this Court may consider even in the absence of a timely objection (cf., Matter of David T., supra; People v Alejandro, 70 NY2d 133). Accordingly, since the issue was not timely raised before the hearing court, the merits of this aspect of respondent’s claim cannot be reviewed in this Court.

A different problem is presented by respondent’s alternative claim that the supporting deposition was legally inadequate because the complainant was not made aware of its precise contents before she signed it. Although this contention too concerns a latent rather than a facial defect in the petition, review of its merits is not barred because, unlike respondent’s other appellate claim, this claim was, in fact, the subject of a motion to dismiss. Thus, this aspect of respondent’s argument has not been waived, and it is properly before the Court.

At the outset, we reject the Appellate Division’s assumption that the Assistant Corporation Counsel’s actions in editing and revising the complainant’s version of events before transcribing it did not render the statements in the deposition hearsay. The statement contained in the deposition was not the complainant’s, but rather was the Assistant’s interpretation of what the complainant had told her. Thus, as in Matter of David T. (supra), the deposition here was in truth nothing more than a statement written by a law enforcement officer reporting what he or she has been told by an eyewitness — in other words, hearsay. The fact that, unlike in David T., the witness in this case actually signed the document does not alter the equation, since, as noted above, she had never read— nor been read — its contents, and thus she never learned what the document actually said.

Nonetheless, a serious question exists as to whether dismissal of the accusatory instrument is required in this situation. The question arises because, unlike the defect in Matter of David T. (supra), the claimed flaw in the petition here is not apparent from the face of the instrument itself. While that circumstance does not affect the question’s reviewability here, it does raise a substantive problem regarding the extent to which a latent deficiency in a juvenile delinquency petition constitutes an error requiring the petition’s dismissal even after the fact-finding phase of the proceeding has commenced.

Family Court Act §311.2 (3) provides that a juvenile delinquency petition, or a count thereof, "is sufficient on its face when * * * non-hearsay allegations of the factual part * * * or of any supporting depositions establish, if true, every element of each crime charged and the respondent’s commission thereof’ (emphasis supplied). By its express terms, this statute focuses on the facial validity of the petition. Further, Family Court Act § 315.1 (1) (a), which governs motions to dismiss the petition on procedural grounds, defines "defective petition[s]” to include those that do not "substantially conform to the requirements stated in [section] 311.2.” Thus, the relevant statutes support the conclusion that the Legislature intended to incorporate Family Court Act § 311.2’s standard of facial validity into its test for mandatory dismissal.

Another indication that only facial defects were intended to be considered in determining dismissal motions under Family Court Act § 315.1 (1) (a) may be found through an examination of the other provisions of that statute. Each of the other grounds for dismissal set forth in section 315.1 (1) involve defects and legal flaws that may be discerned from the face of the accusatory instrument (subd [1] [b] ["allegations demonstrate that the court does not have jurisdiction of the crime charged”]; subd [1] [c] ["statute defining the crime charged is unconstitutional or otherwise invalid”]). A fair inference can be drawn that a facial analysis was also all that was contemplated when subdivision (1) (a) was drafted.

To the extent that the provisions of the Family Court Act leave any room for doubt, the statute’s reference to "facial” sufficiency may be elucidated by examining its Criminal Procedure Law counterpart, CPL 100.40, on which Family Court Act § 311.2 was based (see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 311.2, at 340; see also, Matter of Gloria F., 127 Misc 2d 653; Matter of Rodney J., 122 Misc 2d 836). CPL 100.40 concerns the "facial sufficiency” of local criminal court accusatory instruments and contains requirements analogous to those prescribed by Family Court Act § 311.2. The Practice Commentary to this section notes that its "purpose * * * is to establish the legal concept of facial sufficiency for use in ensuing CPL provisions that make various types of procedural action[s] hinge upon whether a particular accusatory instrument is 'sufficient on its face’ ” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 100.40, at 255). The examples given include the issuance of a summons or arrest warrant (Preiser, op. cit., at 255; see, CPL 120.20, 130.30) and the dismissal of an information or a prosecutor’s information on grounds of defectiveness (see, CPL 170.35). In other words, CPL 100.40’s standards and its express reference to "facial” sufficiency were designed to enable the trial court to evaluate the adequacy of the accusation during the preliminary phases of the criminal action so that certain important pretrial decisions about the status of the defendant and the charges can be made.

By analogy to CPL 100.40, Family Court Act § 311.2 (3), may be seen as a legislative enactment whose purposes and effect are limited to the pretrial stages of the proceeding. The purpose of requiring nonhearsay allegations establishing every element of the charged crimes is to assure that there exists a sound and supportable basis for subjecting the accused to a trial (see, Matter of David T., 75 NY2d 927, 929, supra; see also, People v Alejandro, 70 NY2d 133, 137-138, supra). The need for such assurance is particularly acute at the outset of a juvenile delinquency proceeding, where there is no independent Grand Jury-like body to review the evidence and the petition is often the sole "instrument upon which the [accused] is prosecuted” (see, People v Alejandro, supra, at 137). On the other hand, once the pretrial stages of the proceeding have passed and the fact-finding stage has begun, there is no longer a pressing need for an accusatory instrument that complies with Family Court Act § 311.2 (3)’s requirements, since the accused has already been brought before the court and the witnesses are available to describe the case against the accused, in person and under oath. It follows that the need for — and the operative effect of — Family Court Act § 311.2 (3) are, at that point, dissipated. And, as the Legislature has foreseen, the limited, albeit important, purpose of the statute is amply served by facial compliance.

For all of these reasons, we hold that latent deficiencies in the accusatory instrument that are revealed during the trial or hearing do not provide a ground for mandatory dismissal under Family Court Act § 315.1 (1) (a). Neither the statutes establishing the criteria for accusatory instruments in juvenile delinquency proceedings nor the policies underlying those statutes suggest that an inquiry beyond the facial validity of the petition is necessary or even appropriate. Since the petition in respondent’s case was sufficient on its face under the standards set forth in Family Court Act §§ 311.1 and 311.2, respondent’s midhearing motion to dismiss the petition was properly denied.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Acting Chief Judge Simons and Judges Kaye, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, without costs.

      . In certain limited circumstances, the Family Court may hold a probable cause hearing to determine whether there is sufficient evidence to hold a respondent in custody pending disposition of the charges (Family Ct Act § 325.1).

      . We note, however, that practices such as occurred here, where the young complainant was permitted to sign a supporting deposition under oath despite the fact that she had never read or been read its exact contents, are not to be endorsed or condoned.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v John J. McLaughlin, Appellant.
    Argued October 22,1992;
    decided December 16, 1992

      POINTS OF COUNSEL

      Milbank, Tweed, Hadley & McCloy, New York City (Thomas P. Puccio, Joann Crispi, Andrew Citron and Peter A. Bellacosa of counsel), for appellant.
    I. McLaughlin’s convictions on counts 5 and 6 must be reversed due to the trial court’s failure to deliver a missing witness charge. (People v Kitching, 78 NY2d 532; People v Gonzalez, 68 NY2d 424; People v Erts, 73 NY2d 872; People v Ricchiuti, 93 AD2d 842; People v Leisner, 73 NY2d 140; People v Cobos, 57 NY2d 798; People v Le Mieux, 51 NY2d 981; Taylor v Kentucky, 436 US 478; Safdie v City of New York, 138 AD2d 361; People v Jackson, 122 AD2d 566, 68 NY2d 915.) II. The evidence was insufficient to support conviction on both counts 5 and 6. (United States v Bethea, 483 F2d 1024; United States v Rubin, 559 F2d 975; People v Zinke, 76 NY2d 8; United States v Garcia, 907 F2d 380; People v Barnes, 158 App Div 712, 210 NY 612.) III. Counts 5, 6 and 7 must be reversed due to the trial court’s failure to charge that the People must establish jurisdiction beyond a reasonable doubt. (People v Mitchell, 99 AD2d 609; People v Winley, 105 Misc 2d 474.) IV. Counts 6 and 7 must be dismissed due to insufficient evidence of venue and jurisdiction. (People v Schlatter, 55 AD2d 922; People v Calandra, 117 Misc 2d 972, 164 AD2d 638; People v Tellerman, 103 AD2d 786; People v Crean, 115 Misc 2d 996; Harris v Balk, 198 US 215; Shaffer v Heitner, 433 US 186; People v Burgess, 107 AD2d 703; People v Chaitin, 94 AD2d 705, 61 NY2d 683; People v Seifert, 113 AD2d 80, 67 NY2d 889.) V. Counts 5, 6 and 7 must be reversed due to inadequate and confusing venue instructions and failure to respond meaningfully to jury inquiries. (United States v Anderton, 629 F2d 1044; People v Summer, 64 AD2d 658; People v Mabry, 58 AD2d 897; People v Blacknall, 63 NY2d 912; People v Miller, 6 NY2d 152; People v Gonzalez, 293 NY 259; People v Lupo, 305 NY 448; Bollenbach v United States, 326 US 607; People v Gezzo, 307 NY 385; People v Conigliaro, 20 AD2d 930.) VI. McLaughlin’s conviction on count 7 must be reversed and dismissed due to failure to prove a forgery. (People v Levitan, 49 NY2d 87; People v Piening, 99 AD2d 583; People v Cannarozzo, 62 AD2d 503, 48 NY2d 687; People v Babits, 122 Misc 2d 6, 116 AD2d 1047;
      United. States v Sonnenberg, 158 F2d 911; United States v Mulheren, 938 F2d 364.) VII. McLaughlin’s conviction on count 12 should be reversed and dismissed because the evidence is legally insufficient to support a conviction. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Altman, 83 Misc 2d 771; Szerdahelyi v Harris, 67 NY2d 42; Walker v Phinney, 120 Misc 2d 513; People ex rel. Mathews v Woodruff, 75 App Div 90; Matter of De Stuers, 199 Misc 777; Harris v Shorall, 230 NY 343.) VIII. McLaughlin’s conviction on count 12 should be reversed and remitted due to the Court below’s failure to discharge its exclusive review powers pursuant to CPL 470.15 (2) (B) and (5). (People v Bleakley, 69 NY2d 490; People v Cullen, 50 NY2d 168.) IX. The errors below were not harmless. (People v Crimmins, 36 NY2d 230.) X. McLaughlin’s convictions on all four counts violate the Federal and New York State Constitutions.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donald J. Siewert and Mark Dwyer of counsel), for respondent.
    I. McLaughlin’s guilt was established beyond a reasonable doubt. (People v Jennings, 69 NY2d 103; United States v Lavergne, 805 F2d 517; United States v Rubin, 559 F2d 975; People v Mehta, 140 AD2d 987, 73 NY2d 788; People v Neff, 191 NY 210; People v Kennedy, 47 NY2d 196; People v Chaitin, 94 AD2d 705, 61 NY2d 683; People v Omrami, 155 AD2d 369, 75 NY2d 522; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Chester, 50 NY2d 203.) II. McLaughlin’s claim that he was improperly convicted of two counts of grand larceny has not been preserved for review. In any event, McLaughlin was properly convicted of both counts. (People v Gallagher, 69 NY2d 525; People v Tucker, 55 NY2d 1.) III. McLaughlin has failed to preserve his claim that he was entitled to a "missing witness” charge. In any event, McLaughlin was not entitled to the charge. (People v Williams, 62 NY2d 765; People v Chin, 67 NY2d 22; People v Mosley, 67 NY2d 985; People v Hoke, 62 NY2d 1022; People v Allen 69 NY2d 915; People v Karabinas, 63 NY2d 871, 470 US 1087; People v Gonzalez, 68 NY2d 424; People v Stridiron, 33 NY2d 287; People v Ricchiuti, 93 AD2d 842; People v Chaitin, 94 AD2d 705, 61 NY2d 683.) IV. Justice Rubin properly refused to charge that the People were required to establish jurisdiction beyond a reasonable doubt. (In re Winship, 397 US 358; People v Newman, 46 NY2d 126; People v Ribowsky, 77 NY2d 284; People v Moore, 46 NY2d 1; Matter of Steingut v

      Gold, 42 NY2d 311; Green Point Sav. Bank v Taylor, 92 AD2d 910; Hoffritz for Cutlery v Amajac, Ltd., 763 F2d 55; Matter of Wiley v Altman, 52 NY2d 410; Heath v Alabama, 474 US 82; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Hancock, Jr., J.

After a jury trial on a 16-count indictment, defendant was convicted of forgery and larceny for misconduct as the trustee of two trusts, and of filing false statements in a questionnaire submitted to the New York City Department of Investigation. In this opinion, we discuss one of his contentions on appeal which raises a significant question of first impression for our Court: i.e., when a defendant disputes the State’s territorial jurisdiction over the alleged offense, what burden of proof must the People meet to establish that conduct occurred within the State to satisfy the jurisdictional requirements of CPL 20.20? Is it proof beyond a reasonable doubt, as defendant argues; or, as the People would have it, the lesser burden of preponderance of the evidence required to establish venue in the proper county under CPL 20.40? We hold that when jurisdiction under CPL 20.20 is put in issue, the People must prove it beyond a reasonable doubt. Accordingly, as will be explained, there should be a new trial on three of the four counts before us on appeal.

I

The larceny and forgery counts (counts 5, 6 and 7) on which defendant was convicted stemmed from his actions as co-trustee of two trusts established by Ann L. Maytag, granddaughter of the founder of the Maytag appliance manufacturer — one for her benefit (the Maytag trust) and one for the benefit for her son, John C. Poulos (the Poulos trust). Among the acts giving rise to these convictions were the double-billing of travel expenses for reimbursement from both trusts for the same expenses (counts 5 and 6) and the alteration of the fare on an American Airlines passenger coupon (count 7). The jury also convicted defendant for offering a false instrument for filing in the first degree (count 11) and in the second degree (count 12) for misrepresentations concerning his income, property and debts on a financial disclosure filing with the City of New York. The jury acquitted defendant of all other counts.

On appeal, the Appellate Division found that the evidence was insufficient to support a conviction on count 11, offering a false instrument for filing in the first degree and dismissed that count (People v McLaughlin, 174 AD2d 418, 419-420). It affirmed the remaining convictions (counts 5, 6, 7 and 12) "[u]pan [its] examination of the record” (id., at 420), finding that there was sufficient evidence to establish that "venue was properly placed in New York County” (id., at 420). The Appellate Division rejected defendant’s contention that the trial court should not have submitted both counts of larceny for double billing to the jury — one count for the Maytag trust and one for the Poulos trust — holding that "there was evidence that [defendant] improperly obtained reimbursement from the two trusts” (id., at 420).

On our review of the record, we agree with the foregoing conclusions of the Appellate Division as well as with its rejection of the argument that the proof for the forgery count for altering the airline coupon was deficient because an airline representative was not called to testily. Further discussion of defendant’s arguments on these issues is unnecessary. In dismissing defendant’s argument that the court had committed error in its charge on the issue of territorial jurisdiction, however, the Appellate Division held "that the Court was not required to charge the jury that the prosecution had to establish jurisdiction beyond a reasonable doubt, since jurisdiction, which necessarily follows venue, is not an element of the crime” (id., at 420 [emphasis added]). It is on this issue that we disagree. We hold that the People were required to establish jurisdiction under CPL 20.20 beyond a reasonable doubt.

II

Our analysis starts with the proposition that the basis of the State’s jurisdiction in criminal cases is the territorial principle derived from the common law (see, People v Merrill, 2 Parker Cr Rep 590, 596-600 [NY Sup Ct 1855]; Perkins, The Territorial Principle in Criminal Law, 22 Hastings LJ 1155, 1156-1157). The territorial principle, which is universally adopted in this country, has its origin in the traditional concept of criminal justice in the early English common law as being concerned primarily with keeping the King’s peace (id., at 1157; 1 Blackstone, Commentaries 268 ["offenses (were) either against the King’s peace or his crown and dignity and (were) so laid in every indictment”]).

The general rule in New York is that, for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State (see, CPL 20.20; American Banana Co. v United Fruit Co., 213 US 347, 356). Jurisdiction in this sense is a question of the sovereign’s power to prosecute and punish an accused for conduct which is allegedly criminal. Because the State only has power to enact and enforce criminal laws within its territorial borders, there can be no criminal offense unless it has territorial jurisdiction (see, Restatement of Conflict of Law §§ 425, 428; Nielsen v Oregon, 212 US 315).

Venue, as distinguished from territorial jurisdiction, refers to the proper county or place of trial, not to the power of the court to hear and determine the case (see, CPL 20.40; 20 Am Jur 2d, Courts, §89). Thus — unlike territorial jurisdiction which goes to the very essence of the State’s power to prosecute and which may never be waived — questions relating only to the proper place for the trial are waivable (id., § 89; see, People v Lowen, 100 AD2d 518, 519; People v Ebron, 116 Misc 2d 774, 777-778).

The People concede that territorial jurisdiction is a "jurisprudential ’fundamental’ ”. They argue, nevertheless, that "it is not for that reason logically required that jurisdiction, any more than venue, be proved beyond a reasonable doubt”. We disagree. The distinct conceptual differences between venue and territorial jurisdiction and their different jurisprudential purposes make it virtually impossible to equate the two. Moreover, when measured in terms of the effect on the fundamental rights of the defendant, there is a marked contrast in importance between questions relating to territorial jurisdiction and venue. Whether any conduct has been committed which the State has the power to criminalize and for which it can commence prosecution against the defendant is certainly not commensurate with a question relating solely to the place within the State where the trial should take place.

The People also argue that because the jury found that venue was properly laid in New York County under CPL 20.40 by a preponderance of the evidence it necessarily follows that territorial jurisdiction was established under CPL 20.20. The argument is pointless since the jury finding could, at most, establish territorial jurisdiction by a preponderance of the evidence, the very standard of proof which defendant challenges as insufficient. Nor are we persuaded by the contention that because territorial jurisdiction is not classified as an element of the crime which must be established beyond a reasonable doubt (see, CPL 70.10 [1]; 300.10), a lesser burden is appropriate. Jurisdiction concerns the power of the State to bring the criminal proceeding, not the factual elements of the crime which must be proven for a conviction. Ordinarily, jurisdiction is not put in issue. When the power of the State to try and convict the defendant is disputed, however, proof of that power is no less critical to a legal conviction than proof of the elements of the crime (see, People v McManus, 67 NY2d 541; Mullaney v Wilbur, 421 US 684). There is no reason why a different burden of proof should be required.

Our holding that, unlike venue which may be established by a preponderance of the evidence (see, e.g., People v Ribowsky, 77 NY2d 284, 291-292; People v Moore, 46 NY2d 1, 6), territorial jurisdiction must be proven beyond a reasonable doubt is in accord with existing authority in this State (see, People v Mitchell, 99 AD2d 609; People v Winley, 105 Misc 2d 474) and with the prevailing authority in other jurisdictions (see, e.g., State v Baldwin, 305 A2d 555 [Me]; see generally, Annotation, Necessity of Proving Venue or Territorial Jurisdiction of Criminal Offense Beyond Reasonable Doubt, 67 ALR3d 988).

Accordingly, there should be a new trial on counts 5, 6 and 7. If State territorial jurisdiction is put in issue during the new trial, the trial court should charge the jury that jurisdiction must be proven beyond a reasonable doubt. Because there is no dispute as to the State’s jurisdiction over count 12, the verdict on that count should be affirmed (see, People v Kitch ing, 78 NY2d 532, 539, n 2). Finally, inasmuch as there will be a new trial, we note that the missing witness charge requested by defendant in regard to the People’s failure to call John Poulos as a witness should have been given by the court.

The order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed.

Acting Chief Judge Simons and Judges Kaye, Titone and Smith concur; Judge Bellacosa taking no part.

Order modified in accordance with the opinion herein and, as so modified, affirmed.

         Twenty-two jurisdictions hold that territorial jurisdiction must be proven beyond a reasonable doubt (see, e.g., Mayhall v State, 22 Ala App 223, 114 So 361; Dewitt v State, 306 Ark 559, 815 SW2d 942; Sheeran v State, 526 A2d 886 [Del]; Mitchell v United States, 569 A2d 177 [DC]; Lane v State, 388 So 2d 1022 [Fla]; State v Thomas, 810 P2d 668 [Haw App]; State v Wimer, 118 Idaho 732, 800 P2d 128; McKinney v State, 553 NE2d 860 [Ind]; People v Holt, 91 111 2d 480, 440 NE2d 102; State v Baldwin, 305 A2d 555 [Me]; Presley v State, 217 Miss 112, 63 So 2d 551; NH Rev Stat Annot ch 625; State v Schumann, 111 NJ 470, 545 A2d 168; State v Batdorf 293 NC 486, 238 SE2d 497; State v Ramirez, 89 NM 635, 556 P2d 43; State v Khong, 29 Ohio App 3d 19, 502 NE2d 682; State v Rose, 311 Ore 274, 810 P2d 839; 18 Pa Cons Stat Annot §§ 102, 103; State v Shatney, 572 A2d 872 [RI]; State v Greene, 86 SD 177, 192 NW2d 712; State v Beall, 729 SW2d 270 [Tenn Ct App]; State v Svenson, 104 Wash 2d 533, 707 P2d 120; see also, ALI Model Penal Code §§ 1.12, 1.13 [9] [e]). Only Utah and California have adopted a rule allowing territorial jurisdiction to be proven on a preponderance of the evidence (Utah Code Annot § 76-1-501 [3]; People v Cavanaugh, 44 Cal 2d 252, 282 P2d 53).