text:
    The People of the State of New York, Respondent, v John R. Robinson, Appellant.
    Argued November 20, 1986;
    decided December 18, 1986

      POINTS OF COUNSEL

      William J. Comiskey for appellant.
    I. Appellant was denied a fair trial by the introduction of substantial evidence of uncharged criminal conduct that was not directly probative of any issue at trial. (People v Allweiss, 48 NY2d 40; People v Beam, 57 NY2d 241; People v Ventimiglia, 52 NY2d 350; People v McKinney, 24 NY2d 180; People v Liller, 20 NY2d 727; People v Molineux, 168 NY 264; People v Condon, 26 NY2d 139; Hoag v Wright, 174 NY 36; United States v Marshall, 683 F2d 1212; United States v Shelton, 628 F2d 54.) II. The introduction of evidence of other prior bad acts and crimes allegedly committed by appellant also denied a fair trial. (People v Zachowitz, 254 NY 192; People v Hetenyi, 304 NY 80; People v Diaz, 111 Misc 2d 1083; People v Mullin, 41 NY2d 475; People v Seeley, 74 AD2d 910; People v Carroll, 61 AD2d 760; People v Brown, 62 AD2d 715, 48 NY2d 921; People v Schwartzman, 24 NY2d 241.) III. The trial court’s erroneous refusal to exclude for cause a juror who was the son-in-law of the long-time employer of the People’s most important witness denied appellant his fundamental right to an impartial jury. (People v Branch, 46 NY2d 645; People v Provenzano, 50 NY2d 420; People v Culhane, 33 NY2d 90; Sims v United States, 405 F2d 1381; People v Purcell, 103 AD2d 938; People v Johnson, 89 AD2d 506; People v Sellers, 73 AD2d 697; People v Blyden, 55 NY2d 73.) IV. The trial court’s refusal to suppress evidence seized from appellant’s room without probable cause was error. (Illinois v Gates, 462 US 213; People v Potwora, 48 NY2d 91; People v Hanlon, 36 NY2d 549; People v Lalli, 43 NY2d 729; People v Wheatman, 29 NY2d 337; People v De Lago, 16 NY2d 289; People v Rainey, 14 NY2d 35; People v Baker, 23 NY2d 307.) V. After the prosecutor and court caused sensational press coverage about a "mystery arraignment” of appellant on a different sealed indictment, the trial court erroneously refused to grant a mistrial, adjourn the trial, sequester the jury or adequately question the jurors concerning possible prejudice arising from this publicity. The refusal of the trial court to safeguard appellant’s right to an impartial jury denied appellant due process and a fair trial. (Marshall v United States, 360 US 310; People v Rivera, 26 NY2d 304; Matter of Times-Union v Harris, 71 AD2d 333; People v Mordino, 58 AD2d 197.) VI. The court’s denials of appellant’s requests to charge were erroneous and warrant reversal. The court refused to charge on circumstantial evidence, and refused to submit the lesser included offenses of attempted grand larceny in the third degree and attempted petit larceny. (People v Sanchez, 61 NY2d 1022; People v Ford, 66 NY2d 428; People v Barnes, 50 NY2d 375; People v Woltering, 275 NY 51; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427; People v Martin, 59 NY2d 704; People v Atkins, 91 AD2d 507; People v Nelson, 79 AD2d 171; People v Carter, 79 AD2d 876.) VII. The intentional and systematic exclusion of college students from appellant’s jury pool, which resulted in a substantial underrepresentation of college students on appellant’s jury panel, denied appellant his constitutional right to trial by an impartial jury. (Duren v Missouri, 439 US 357; Taylor v Louisiana, 419 US 522; People v Parks, 41 NY2d 36; Matter of Paciona v Marshall, 45 AD2d 462; People v Attica Bros., 79 Misc 2d 492; People v Marr, 67 Misc 2d 113; Anderson v Casscles, 531 F2d 682; United States v Butera, 420 F2d 564; Peters v Kiff, 407 US 493; Thiel v Southern Pac. Co., 328 US 217.)

      Sol Greenberg, District Attorney (George H. Barber and Cheryl F. Coleman of counsel), for respondent.
    I. Evidence that defendant robbed the Central Savings and Loan was properly received to prove identity and that the attempted robbery of the Home Savings Bank was not a hoax. (People v Beam, 57 NY2d 241; People v Condon, 26 NY2d 139; People v Ventimiglia, 52 NY2d 350; Matter of Sylvestri, 44 NY2d 260; United States v Mohel, 604 F2d 748.) II. Defendant was not denied a fair trial by evidence of gambling, loans and writing checks without funds to cover nor by defendant’s photograph. (United States v Reed, 639 F2d 896; United States v Saniti, 604 F2d 603; People v Arce, 42 NY2d 179.) III. The trial court did not abuse its discretion in denying defendant’s challenge for cause to juror number four. (People v Blyden, 55 NY2d 73.) IV. The trial court did not err in refusing to suppress evidence seized from defendant’s dormitory room. (People v P. J. Video, 65 NY2d 566; People v Wheatman, 29 NY2d 337; United States v Levasseur, 619 F Supp 775; United States v Leon, 468 US 897.) V. There is no evidence that media coverage deprived defendant of a fair trial. (Matter of Times-Union v Harris, 71 AD2d 333.) VI. Since there was direct evidence of defendant’s guilt, it was not necessary to charge the circumstantial evidence rule; the court properly refused to submit petit larceny as a lesser included offense. (People v Ruiz, 52 NY2d 929; People v Barnes, 50 NY2d 375; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427.) VII. There was no intentional and substantial exclusion of college students which resulted in an underrepresentation of college students on defendant’s jury panel. (Taylor v Louisiana, 419 US 522; Thiel v Southern Pac. Co., 328 US 217; People v Shedrick, 104 AD2d 263, 66 NY2d 1015; People v Guzman, 60 NY2d 403; Duren v Missouri, 439 US 357.)
   OPINION OF THE COURT

Meyer, J.

For other crime evidence to be admissible on the issue of identity, the identity of defendant as the perpetrator of the other crime, if not conceded or previously adjudicated, must be established by clear and convincing evidence. Because the only evidence connecting defendant with a prior bank robbery —the similarity of some of the clothing worn and how it was worn, of the wording of the notes handed the teller and the writing on the notes, in the two robberies — was insufficient to permit introduction of the highly prejudicial prior crime evidence presented, and because of additional trial errors detailed below, there should be a reversal of the Appellate Division’s order affirming defendant’s conviction, and a new trial.

I

On December 12, 1978, Lettie Pinney, a teller at the Central Avenue branch of Home Savings Bank in Albany was handed a large manila envelope upon which there was a letter-size white envelope covered by a yellow withdrawal slip. She approximated the height of the man who handed it to her as over five and a half feet and his age as in his twenties, and testified that he had a light brown moustache, a dark colored knit hat pulled down almost to his eyebrows, a dark colored scarf pulled up to his chin, wore a tan coat and a knit glove on the hand with which he handed her the envelope, and carried a dark colored rectangular briefcase under his arm. Another bank customer, standing in the line of the teller next to Ms. Pinney, saw the note being passed, but as he turned toward that line the man was halfway to the door. He described the man as approximately six-feet tall, wearing a dark scarf that hung down his back and had come completely around his face, and a dark, loosely fitting coat that came down to between his waist and his hips. However, at the trial neither the teller nor the customer was able to identify defendant as the individual who presented the note, and the video tape pictures taken by the bank’s surveillance cameras were too blurred and the portion of the perpetrator’s face too limited to permit positive identification from them.

Printed on the white envelope was:

"this is a holdup
"your life is in
"danger
"put 100s 50s 20s in bag
"keep hands in sight
"at all times”.

After reading the note, the teller asked, "What do you want me to do with this?” and, receiving no response, handed the note to the next teller, whereupon the man walked rapidly toward the door. The police were not called until about 10 minutes later, the tellers being undecided whether the incident was a joke or a real holdup.

After the presentation of Ms. Finney’s testimony, the People moved under People v Molineux (168 NY 264) for permission to present evidence of the successful robbery on December 5, 1978 of the Central Savings and Loan Association, also located on Central Avenue in Albany, which, it was argued, involved the same modus operandi as that used in the Home Savings robbery attempt and was being offered both to establish identity and, with respect to intent, to show that the Home Savings incident was not a hoax. The motion was granted on both grounds, subject to foundation proof. Testimony was then presented by Vickie Owens, a teller at Central Savings, the court having first instructed the jury concerning the limited purposes for which the testimony was being received, that on December 5, 1978, a white male of medium build, about 5 feet 10 inches tall and weighing approximately 160 to 170 pounds, who had a reddish brown moustache, freckles and brown eyes, wore a navy blue pea coat and a blue ski cap and had a navy blue scarf pulled up to his upper lip, had handed her two envelopes, one a white envelope of standard size, the other a brown manila envelope. On the white envelope printed in pencil was the following note:

"THIS IS A HOLDUP!
"YOUR LIFE IS IN
"DANGER
"PUT 100s 60s 20s IN BAG
"REMAIN CALM FOR
"YOUR OWN SAFETY”.

She placed $1,830 in the manila envelope and as the man walked away activated the bank’s surveillance camera. She was, however, unable to identify defendant as the robber and the surveillance photographs, introduced in evidence, were, like those from the Home Savings incident, either blurred or of too limited a portion of the perpetrator’s face to permit identification.

Testimony was also presented, through a State Police document analyst, that the hand printing on both of the notes was the same as that on the student loan, financial and manpower applications filed by defendant with the State University at Albany (SUNYA), where defendant was a student, and through an FBI fingerprint specialist that three of the prints lifted from the Homes Savings note and one from the Home Savings manila envelope matched defendant’s fingerprints on his police arrest card. Defendant’s former girlfriend testified that defendant was a compulsive gambler, that she had loaned him $1,900 and that in the late afternoon or evening of December 5, 1978 he had repaid her $500, giving her two $50 bills and the rest in $20s.

Defendant introduced testimony of his roommate and another student that at the time of the Home Savings robbery attempt defendant was in his dormitory room reading a book and conversing with other students. He also presented the expert opinion of the retired deputy director of the State Identification and Intelligence System that the fingerprints taken from the Home Savings envelopes did not provide sufficient ridge characteristic data upon which to base an identification against an inked print and that none of them were identifiable as those of defendant.

The jury found defendant guilty of attempted robbery in the third degree (Penal Law §§ 160.05, 110.00). On appeal to the Appellate Division, that court affirmed in an opinion (114 AD2d 120), holding, among other things, that identity was a crucial issue and the conduct of the two crimes was sufficiently unique to permit proof of the uncharged Central Savings robbery. The matter is before us by leave of a Judge of this court (67 NY2d 949). Before us defendant raises a number of issues in addition to the Molineux question. Because we conclude that error on that question requires reversal and a new trial, we set forth below our reasons for that conclusion and pass on only such other questions raised by defendant as can be expected to arise upon retrial.

II

The Molineux rule excludes evidence of uncharged crimes when the danger that the jury may, on the basis of such testimony, convict, even though not convinced of defendant’s guilt of the crime charged beyond a reasonable doubt, is not overcome by the probative value of the prior crime evidence in relation to the crime now charged (People v Ventimiglia, 52 NY2d 350, 359-360; People v Santarelli, 49 NY2d 241, 247). So where defendant’s identity as the perpetrator of the crime for which he is on trial "is conclusively established,” evidence of a prior crime, though committed in the same unique manner as the crime for which defendant is being tried, is not admissible (People v Condon, 26 NY2d 139, 142 [italics in original]). But where the defense is mistaken identity and the testimony of the single eyewitness is extensively impeached, evidence of an uncharged crime is admissible (id., at p 142; People v Beam, 57 NY2d 241, 251), provided the modus operandi is so unique as to make the evidence highly probative (People v Allweiss, 48 NY2d 40; People v Condon, supra, at p 144).

What has not been sufficiently established by our case law is the degree to which defendant’s identity as the perpetrator of the uncharged crime must be established in order to make proof with respect to it admissible. Molineux stated the obvious in noting that (168 NY, at p 316) "an inference [of identity] might be justified if it had been shown conclusively that the defendant had killed [the victim of the uncharged cyanide poisoning murder] and that no other person could have killed [the present cyanide poisoning victim]”, but held that no such evidence had been given; People v Allweiss (supra) involved a defendant who had pleaded guilty to a number of prior uniquely committed rapes; and, at the other end of the spectrum, People v Johnson (47 NY2d 785, cert denied 444 US 857) held it without probative value on defendant’s case that the victim of another rape committed under similar circumstances could not identify him.

Wigmore, Evidence (Chadbourn rev ed) appears to accept a conclusiveness standard (vol 2, at 259 ["To identify a defendant as the perpetrator of the crime charged, it may become necessary to show former conduct of his, known to be the conduct of the perpetrator”] [emphasis supplied]), while the Second Circuit, at least with respect to willfulness, has held that a preponderance standard is sufficient (United States v Leonard, 524 F2d 1076, 1091, cert denied 425 US 958; see, United States v Smith, 727 F2d 214, 220).

Neither the Federal Rules of Evidence (rule 404 [b] [in 28 USC Appendix]) nor the proposed New York Code of Evidence (§404 [b]) indicates the precise standard for admissibility of other crime evidence to prove identity, but the majority of Federal cases that have considered the question have analyzed it in terms of the Trial Judge’s discretion and in that context have held that the proof as to the uncharged crime must be. clear and convincing (United States v Horvath, 731 F2d 557, 560; United States v Gilmore, 730 F2d 550, 554; United States v Bailleaux, 685 F2d 1105, 1110; United States v Shelton, 628 F2d 54, 56; United States v Robbins, 613 F2d 688, 693; United States v Bussey, 432 F2d 1330, 1335). Even the Fifth Circuit, which in United States v Beechum (582 F2d 898, cert denied 440 US 920), in overruling on the issue of intent a prior clear and convincing holding, was careful to note (582 F2d, at p 912, n 15) its holding in an identity case that a " 'much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind.’ ”

Commentators are likewise in disagreement. McCormick, Evidence (3d ed) states that guilt of the other crime need not be proved beyond a reasonable doubt, thus disagreeing with Wigmore, but then notes that the applicable standard "is variously described, including 'substantial’ and 'clear and convincing’ ” (§ 190, at 564). And the authors of Lempert and Saltzburg, A Modern Approach to Evidence (at 222-224 [2d ed]), disagree between themselves as to whether clear and convincing or preponderance is the proper measure, and whether the same standard should be applied in all cases in which other crime evidence is sought to be introduced.

To make evidence of a prior uncharged crime relevant, there must be more than a unique method involved, for, as Molineux long ago stated, "the naked similarity of * * * crimes proves nothing” (168 NY, at p 316). The probative value of such evidence is, therefore, dependent upon showing not only that the method used is sufficiently unique to make it highly probable that both crimes were committed by the same individual, but also upon proof that defendant was the perpetrator of the uncharged crime. To be balanced against probative value as thus defined is the possible prejudice to defendant.

Prejudice involves both the nature of the crime, for the more heinous the uncharged crime, the more likely that jurors will be swayed by it, and the difficulty faced by the defendant in seeking to rebut the inference which the uncharged crime evidence brings into play (see, People v Bay, 67 NY2d 787, 789; Weissenberger, Making Sense of Extrinsic Act Evidence: Federal Rule of Evidence 404 [b], 70 Iowa L Rev 579, 605 if). Defendant will, of course, be entitled upon request to an instruction, both when the uncharged crime evidence comes in and at the end of the case, concerning the limited purpose for which the evidence is being admitted (see, 1 CJI [NY] 12.20). But to the extent that the evidence of defendant’s identity as the perpetrator of the uncharged crime is unclear, or is called into question by defendant’s rebuttal evidence, the case becomes a trial within a trial which may result in jury confusion.

The foregoing analysis leads us to conclude that a Trial Judge who admits evidence of an uncharged crime on the issue of identity on less than clear and convincing proof of both a unique modus operandi and of defendant’s identity as the perpetrator of the crime abuses his discretion as a matter of law. And applying that standard, no other conclusion is possible than that the evidence of the Central Savings holdup, for which at the time of defendant’s trial on the Home Savings attempted robbery he had not been tried, was erroneously admitted. Indeed, the People’s offer of the evidence was correctly characterized by defendant’s trial attorney as a bootstrap attempt, for the evidence connecting defendant with the Central Savings robbery was even more tenuous than that “identifying” him as the Home Savings perpetrator. No fingerprints, however inconclusive, were obtained from the Central Savings envelopes, nor was anyone there present able to identify defendant. Although the clothing was similar and was similarly positioned and the Central Savings robber was of generally similar physique as the Home Savings perpetrator and passed a similarly worded note, the only evidence that could be said to relate defendant to the Central Savings robbery was the expert testimony that the hand printing on the two notes was the same as was present on the college applications defendant filled out. Whether that evidence alone, if wholly undisputed, would be a sufficient predicate for admission of the Central Savings evidence (cf. Matter of Sylvestri, 44 NY2d 260, 266) we need not decide for, as already noted, the People’s expert’s handwriting testimony was vigorously contested on cross-examination. There must, therefore, be a reversal and a new trial.

Ill

Because the issues may be expected to arise again upon a new trial, we comment briefly on defendant’s contentions that the jury pool was tainted by the exclusion of college students; that his motion to suppress the physical evidence seized from his dormitory room was improperly denied; and that the circumstantial evidence charge given, and to which defendant excepted, was inadequate.

As to the jury pool, the Appellate Division correctly held that there was no showing that college students as a particular group were deliberately excluded from the pool (People v Shedrick, 66 NY2d 1015).

The warrant for the search of defendant’s person and dormitory room was issued on the basis of an affidavit which detailed the Home Savings incident and stated that a fingerprint lifted from the note had been positively identified as defendant’s left middle finger, and that a SUNYA police officer had stated that defendant fit the description of "the suspect.” It specified the property sought as a maroon knit hat, brown scarf, blue nylon ski parka with silver snaps, dark briefcase, black leather gloves, manila and white envelopes and brown crepe-soled work shoes. The bases of defendant’s motion to suppress were that the application did not specify, as required by CPL 690.10 (4) and 690.35 (2) (b), that the property sought constituted evidence of the Home Savings offense (indeed, the People conceded at the suppression hearing that the articles of clothing sought related to the Central Savings robbery and were not connected to the Home Savings incident) or that there was reasonable cause to believe that the items sought could be found in defendant’s dormitory room. The suppression Judge held that there was probable cause and that the briefcase, manila envelopes and plain white envelopes were of direct evidentiary value in relation to the Home Savings incident. He deferred ruling as to the clothing items until trial, but they ultimately were admitted.

As we held in People v Hanlon (36 NY2d 549, 559), search warrants, which are composed not by lawyers but by police officers acting under stress, are not to be read hyper-technically and may be "accorded all reasonable inferences.” Given the nature of the items sought and the identification of the place to be searched as defendant’s living quarters, "it was entirely reasonable to deduce” that the items sought would be found there (People v Wheatman, 29 NY2d 337, 346, on later appeal 31 NY2d 12, cert denied sub nom. Marcus v New York, 409 US 1027, reh denied 409 US 1119). CPL 690.35 (2) (b) does not require suppression, therefore.

The more troublesome question involves the failure to inform the issuing magistrate that some of the items sought were involved not in the Home Savings incident upon which the application was based but in an entirely separate incident. While we certainly do not condone that failure, we agree that, under the severability principle stated in People v Hansen (38 NY2d 17, 21-22), the briefcase and the envelopes which were involved in both incidents need not have been suppressed. The remaining items should have been suppressed and on retrial should be excluded.

For the foregoing reasons, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.

      . Whether the jury must be explicitly instructed as to defendant’s identity as perpetrator of the uncharged crime, as is done with respect to handwriting (People v Molineux, 168 NY 264, 329-330), or to the voluntariness of a confession (see, People v Cefaro, 23 NY2d 283; 1 CJI [NY] 11.01), is an issue we need not reach on the present record.

      . Defendant also contends that evidence concerning his gambling and failure to repay loans involved other crimes and was unfair. We need not pass on the question, for it related to the Central Savings Bank robbery, evidence as to which will be inadmissible on retrial unless the People are able to present additional evidence as to the identity of defendant as its perpetrator.

      . In view of the retrial we do not pass upon the People’s harmless error argument except to note that the suggestion that exhibit 20, a cap, was owned not by defendant but by his roommate, not having been made at the suppression hearing, cannot now be urged (People v Havelka, 45 NY2d 636, 643), and that, in view of the People’s concession noted above, the fact that a scarf and leather gloves (exhibits 19 and 21) were used in both incidents comes too late (id,.).


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    The People of the State of New York ex rel. Richard J. Arcara, as District Attorney of Erie County, Respondent, v Cloud Books, Inc., Doing Business as Village Book and News Store, Appellant, et al., Defendants.
    Argued November 12, 1986;
    decided December 18, 1986

      POINTS OF COUNSEL

      Paul J. Cambria, Jr., and Mary Good for appellant.
    I. The decision of the Court of Appeals was made on the basis of State constitutional law. (Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597; People v Class, 67 NY2d 431.) II. The decision of the court should be reaffirmed and reiterated under NY Constitution, article I, § 8. (People ex rel. Arcara v Cloud Books, 65 NY2d 324; PruneYard Shopping Center v Robins, 447 US 74; Cooper v Morin, 49 NY2d 69; Matter of Beach v Shanley, 62 NY2d 241; People v Bigelow, 66 NY2d 417; Illinois v Gates, 462 US 213; People v Johnson, 66 NY2d 398; People v Hobson, 39 NY2d 479; People v Donovan, 13 NY2d 148; People v Ferber, 57 NY2d 256.)

      Richard J. Arcara, District Attorney (John J. DeFranks and Jo W. Faber of counsel), respondent pro se.

    The mandatory closure provision of Public Health Law, article 23, title II does not constitute an impermissible prior restraint. (United States v O'Brien, 391 US 367; Lewis v American Fedn. of Tel. & Radio Artists, 34 NY2d 265; Matter of Gannett Co. v De Pasquale, 43 NY2d 370; People ex rel. Arcara v Cloud Books, 65 NY2d 324; Young v American Mini Theatres, 427 US 50; Schad v Mount Ephraim, 452 US 61; Bantam Books v Sullivan, 372 US 58; Matter of von Wiegen, 63 NY2d 163.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein and Leonard Koerner of counsel), for City of New York, amicus curiae.

    I. The prior decision of this court was made on the basis of Federal constitutional law and on its application of the O’Brien test. (People ex rel. Arcara v Cloud Books, 65 NY2d 324; United States v O’Brien, 391 US 367.) II. The Supreme Court’s ruling that the mandatory closure provision of the Public Health Law was constitutional and not violative of First Amendment rights is appropriate and supported by a well-established body of Supreme Court case law. The ruling sought by appellant that the provision is violative of freedom of expression guaranteed by the State Constitution is unwarranted and would be an unprecedented expansion of constitutional rights subjecting all government action in enforcement of laws of general application regulating nonexpressive conduct to constitutional scrutiny where the action has some incidental impact on freedom of expression. (United States v O’Brien, 391 US 367; Clark v Community for Creative Non-Violence, 468 US 288; Heffron v International Socy. for Krishna Consciousness, 452 US 640; Young v American Mini Theatres, 427 US 50; Schad v Mount Ephraim, 452 US 61; Paris Adult Theatre I v Slaton, 413 US 49.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The District Attorney of Erie County seeks a court order closing a bookstore as a public nuisance (Public Health Law, art 23, tit II) because some patrons are using the premises to commit illegal sexual acts. The question presented is whether an order closing the bookstore, to curtail the illegal acts of customers, incidentally affects the store’s constitutional right to freedom of expression, so as to require the State to show that it is the only available means to abate the nuisance.

This is the second time this case has come before us. On the first appeal we held that such an order would have an incidental impact on the bookseller’s First Amendment rights and that the prosecutor had not demonstrated that closing the defendant’s store was the "least restrictive means” to abate the nuisanqe created by some of its customers (People ex rel. Arcara v Cloud Books, 65 NY2d 324). The Supreme Court reversed concluding that the bookseller’s First Amendment rights would not be implicated or sufficiently affected by an order aimed at curtailing the illegal conduct of some of the store’s patrons (see, Arcara v Cloud Books, 478 US —, 106 S Ct 3172). On remand from the Supreme Court we must now decide whether greater protections are afforded the bookseller under the State Constitution’s guarantee of freedom of expression (NY Const, art I, § 8).

The facts are fully set forth in our prior decision and the Supreme Court opinion. Briefly the case reaches us in the following posture. Cloud Books operates a store where it sells adult books and shows movies which are sexually explicit but not obscene. Certain patrons have used the premises for indecent and illegal sexual acts. The owner is aware of the activities but has done nothing to prevent them; however, there is no contention that the owner is criminally responsible.

The District Attorney is also aware of the illegal acts of the patrons, which were observed by an investigator from. his office, but has not arrested the offenders or had them criminally prosecuted. Neither has the prosecutor applied for an injunction to prevent the illegal acts from occurring on the premises in the future. Instead he has applied for an order closing the bookstore for a year under Public Health Law, article 23, title II, which is aimed at preventing public nuisances. The order, if granted, will not legally terminate or suspend the defendant’s business — it is free to move next door and continue its activities if space is available. The order will only close the offending building or premise where the patrons committed the illegal conduct. Thus during the year the order would be in effect, the place where the illegal acts occurred would be unhallowed ground, unusable by any person for any purpose.

The District Attorney urges that this scheme should not unduly interfere with the bookstore’s legitimate activities. On the other hand he argues, somewhat inconsistently, that it would effectively disrupt and prevent the illegal activities of the patrons and therefore, furthers an important governmental interest. The goal of preventing the illegal acts is concededly a legitimate State concern — only the means chosen is in issue. It would appear, without more, that closing the store would be equally disruptive or ineffective with respect to the activities of both the bookstore and its customers. The primary question is whether it implicates the bookseller’s constitutional rights of free expression so as to require a balancing of the competing interests.

A divided Supreme Court held that the bookstore’s First Amendment rights were not affected because they were not sought to be affected. The majority in that court held that the object of the order is the customers’ illegal sexual activity which, it noted, "manifests absolutely no element of protected expression” (478 US, at p —, 106 S Ct. at p 3177). To the extent the order might have an effect on the defendant’s legitimate bookselling activities, it was deemed to be too remote to implicate First Amendment concerns. The "least restrictive means test” was held to be applicable only when the government’s action was triggered by and directly aimed at curtailing "conduct that has an expressive element”.

We, of course, are bound by Supreme Court decisions defining and limiting Federal constitutional rights but "in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States” (People v Barber, 289 NY 378, 384; see also, People v P. J. Video, 68 NY2d 296). The Supreme Court’s role in construing the Federal Bill of Rights is to establish minimal standards for individual rights applicable throughout the Nation. The function of the comparable provisions of the State Constitution, if they are not to be considered purely redundant, is to supplement those rights to meet the needs and expectations of the particular State.

Freedom of expression in books, movies and the arts, generally, is one of those areas in which there is great diversity among the States. Thus it is an area in which the Supreme Court has displayed great reluctance to expand Federal constitutional protections, holding instead that this is a matter essentially governed by community standards (Miller v California, 413 US 15). However, New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community (People v P. J. Video, supra). Thus, the minimal national standard established by the Supreme Court for First Amendment rights cannot be considered dis-positive in determining the scope of this State’s constitutional guarantee of freedom of expression.

It is established in this State that the government may not impose a prior restraint on freedom of expression to silence an unpopular view, absent a showing on the record that such expression will immediately and irreparably create public injury (East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129). It is also settled that when government regulation designed to carry out a legitimate and important State objective would incidentally burden free expression, the government’s action cannot be sustained unless the State can prove that it is no broader than needed to achieve its purpose (Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597; People v Taub, 37 NY2d 530). Although these holdings were based essentially on First Amendment principles, they are equally applicable under the State Constitution, since "at the very least, the guarantee of freedom of expression set forth in our State Constitution is of no lesser vitality than that set forth in the Federal Constitution” (Bellanca v State Liq. Auth., 54 NY2d 228, 235).

The only remaining question is whether the State constitutional guarantee of freedom of expression is implicated by an order closing the defendant’s bookstore to prevent illegal acts by patrons. There can be no doubt that bookselling is a constitutionally protected activity or that closing a bookstore for a year may have a substantial impact on that activity. The prosecutor urges that this impact may be constitutionally ignored when, as here, the State’s purpose is not to interfere with the store’s legitimate bookselling activities but is aimed at preventing patrons from committing illegal acts having no expressive content. That, however, is just another way of saying that the impact of the State’s action is not direct but only incidental. Actions of this type are subject to lesser scrutiny than those directed at restraining free expression, but they cannot be said to have absolutely no constitutional implications. The crucial factor in determining whether State action affects freedom of expression is the impact of the action on the protected activity and not the nature of the activity which prompted the government to act. The test, in traditional terms, is not who is aimed at but who is hit.

Of course a bookstore cannot claim an exemption from statutes of general operation aimed at preventing nuisances or hazards to the public health and safety. It is, however, entitled to special protection, and no undue burden is placed on the State by requiring it to prove that in seeking to close the store it has chosen a course no broader than necessary to accomplish its purpose. If other sanctions, such as arresting the offenders, or injunctive relief prove unavailing, then its burden would be met.

Finally, we note that not every government regulation of general application, having some impact on free expression, implicates constitutional guarantees. Arresting a newspaper reporter for a traffic violation is one example where the impact would not be constitutionally cognizable, as Justice O’Connor noted in her concurring opinion at the Supreme Court. But closing a bookstore for a year, as is required by this statute, cannot be said to have such a slight and indirect impact on free expression as to have no significance constitutionally.

Accordingly, on reargument following remand from the United States Supreme Court, the order of the Appellate Division should be modified to grant defendant partial summary judgment dismissing those portions of the second cause of action seeking an order directing the closing of the premises in question.

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On reargument following remand from the United States Supreme Court, order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Questions certified answered in the affirmative.

       NY Constitution, article I, § 8 states: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.”


author: Titone, J.

text:
    V.R.W., Inc., Respondent, v Barbara Klein, Appellant, et al., Defendants.
    Argued November 10, 1986;
    decided December 19, 1986

      POINTS OF COUNSEL

      Abraham Rosten and Bernard Meyerson for appellant.
    I. The court below erred when it directed the sale of one half of the premises as tenants in common without the limitation that this one half title was subject to the right of survivorship of defendant-appellant Barbara Klein. (Ryan v Fitzsimmons, 57 AD2d 922; O’Connor v McMahon, 54 Hun 66; Hiles v Fisher, 144 NY 306; Bartkowaik v Sampson, 73 Misc 446; Lawriw v City of Rochester, 14 AD2d 13, 11 NY2d 759.) II. The court erred when it gave the purchaser on foreclosure, the right "to use and possession of the premises with the cotenant”. (Lerbs v Lerbs, 71 Misc 51; Bank of N. Y. v Stauble, 84 AD2d 530.) III. In addition the decree below should be modified to state that the sale of Richard H. Klein’s interest in the premises is subject to credits due Barbara Klein in connection with maintenance, mortgage payments, taxes, insurance, etc. (Cagan v Cagan, 56 Misc 2d 1045.)

      Donald Tirschwell and Nan Klein for respondent.
    I. The court below was correct in ordering that the purchaser at the foreclosure sale of Richard Klein’s interest takes as a tenant in common with appellant in that the tenancy by the entirety was destroyed by the conveyance from Richard Klein to appellant. (Doyle v Hamm, 84 Misc 2d 683, 52 AD2d 899; Gleason v Tompkins, 84 Misc 2d 174; Matter of Dickie, 55 Misc 2d 976; De Golyer v Schutt, 40 AD2d 943; Stelz v Shreck, 128 NY 263; Lawriw v City of Rochester, 14 AD2d 13, 11 NY2d 759; Topilow v Peltz, 43 Misc 2d 947, 25 AD2d 874; Hiles v Fisher, 144 NY 306; Matter of Violi, 118 Misc 2d 283, 103 AD2d 805.) II. The court below was correct in ruling that the purchaser at the foreclosure sale took as a tenant in common as appellant’s divorce destroyed the tenancy by the entirety. (Hohenrath v Wallach, 37 AD2d 248; Matter of City of New York [Braddock Ave.], 251 App Div 669, 278 NY 163; Rector, Church Wardens & Vestrymen v Mack, 93 NY 488.) III. The court below properly found that the purchaser at the foreclosure sale had the right to use and possession of the premises with appellant Barbara Klein. (Bank of N. Y. v Stauble, 84 AD2d 530.) IV. The issue of credits allegedly due to appellant from Richard Klein was not raised below and cannot now be heard for the first time on appeal, and the court below was correct in ruling that respondent’s interest was complete and not subject to any credits allegedly due appellant. (Wells, Fargo & Co. v Wellesville, Caudersport & Pine Creek R. R. Co., 12 App Div 47.) V. The issue of respondent being estopped from pursuing this action by virtue of its commencing a second action upon the same mortgage debt was not raised below and cannot now be heard for the first time on appeal.
   OPINION OF THE COURT

Titone, J.

This appeal requires us to consider the nature of the property interest obtained by a mortgagee who has accepted a mortgage which is effective as to only one spouse’s interest in a tenancy by the entirety. While we have previously held that upon foreclosure the mortgagee in this situation acquires the rights of a tenant in common subject to the husband and wife’s reciprocal rights of survivorship, we have not before had the opportunity to decide whether the mortgagee’s rights are affected by a subsequent divorce between the husband and wife, which, by operation of law, dissolves the tenancy by the entirety as between the former spouses. With that question now squarely before us, we conclude that the dissolution of the tenancy by the entirety transforms the mortgagee’s interests to the same extent that it transforms the interests of the principals and, more specifically that it extinguishes all previously existing rights of survivorship.

On June 22, 1981, plaintiff gave Richard Klein, defendant’s husband, a $50,000 business loan. This loan was secured by a mortgage, purportedly executed by both defendant and her husband, on real property that the couple owned as tenants by the entirety. Klein subsequently defaulted on his loan payments, and in October of 1981, plaintiff commenced this foreclosure action. In December of 1981, while the foreclosure action was pending, Klein executed an instrument conveying his interest in the property to defendant. Thereafter, defendant and Klein were divorced.

At the trial of the foreclosure action, defendant introduced evidence to show that she had not actually signed the mortgage plaintiff held. Crediting her testimony and the testimony of the handwriting experts, the trial court found that her signature on the instrument was a forgery. Consequently, the court held, the mortgage was not effective as a conveyance of defendant’s interest in the property and plaintiff was therefore limited to foreclosing on the interest it had received from defendant’s husband, which was by that time held in defendant’s name. The court’s final judgment, which was affirmed by the Appellate Division, dismissed the foreclosure action against defendant and directed the sale of only the husband’s former interest in the property. The judgment further stated that the interest received by the purchaser at the foreclosure sale would be that of a tenant in common, with all rights of survivorship extinguished. It is this aspect of the judgment which defendant challenges on this appeal.

The bundle of rights associated with defendant’s status as a tenant by the entirety is rooted in ancient common-law principles. Tenancy by the entirety has always been a form of real property ownership available only to those who were actually married at the time of conveyance (see, Armondi v Dunham, 221 App Div 679, 680, affd 248 NY 603; Bell v Little, 204 App Div 235, affd 237 NY 519; Perrin v Harrington, 146 App Div 292; but cf. Messing v Messing, 64 App Div 125; see also, EPTL 6-2.2 [b]). At common law, husband and wife were deemed a single legal entity, and a conveyance of property to both created an indivisible interest so that both parties were deemed seized of the whole (see, Matter of Klatzl, 216 NY 83, 85; Stelz v Shreck, 128 NY 263, 266).

The specific rights arising from this unique form of co-ownership are the logical corollary of the legal fiction that husband and wife were but one person. Although that fiction and the related rule prohibiting married women from owning property have long since been discarded, the special status of spouses jointly holding property has been continued into modern real property law (see, Matter of Klatzl, supra, p 85; Hiles v Fisher, 144 NY 306). Following the enactment of the Married Women’s Acts of 1849, both spouses had an equal right to possession of the property, and each had a right to demand that possession, as well as any profits yielded by the property, be shared (Neilitz v Neilitz, 307 NY 882; Matter of Goodrich v Village of Otego, 216 NY 112, 116; Grosser v City of Rochester, 148 NY 235; see, Hiles v Fisher, supra). While these features of tenancies by the entirety are also characteristic of tenancies in common, the tenancy by the entirety is further distinguished by the fact that it confers on the surviving spouse a right to absolute ownership of the property upon the other spouse’s death (Matter of Goodrich v Village of Otego, supra, p 116; Bertles v Nunan, 92 NY 152).

What makes this right of survivorship unique and differentiates it from the right of survivorship inherent in an ordinary joint tenancy is that it remains fixed and cannot be destroyed without the consent of both spouses (see, Kahn v Kahn, 43 NY2d 203; compare, Matter of Polizzo, 308 NY 517; Matter of Suter, 258 NY 104, with Matter of Klatzl, supra, pp 86-87; Hiles v Fisher, supra). As long as the marriage remains legally intact, both parties continue to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse’s coextensive interest in the property (see, Stelz v Shreck, supra, p 266; Bertles v Nunan, supra, p 156). Similarly, involuntary partition is not available to either cotenant as a means of severing the tenancy by the entirety, since a contrary rule would permit a vindictive or irresponsible spouse to deprive the other of the comforts of the marital home (see, Kahn v Kahn, supra, p 208; Anello v Anello, 22 AD2d 694; Vollaro v Vollaro, 144 App Div 242).

These were the rights possessed by defendant both immediately before and immediately after her husband’s unilateral execution of a mortgage to plaintiff. It is well established that a conveyance by one tenant, to which the other has not consented, cannot bind the entire fee or impair the nonconsenting spouse’s survivorship interest (Hiles v Fisher, supra; Lawriw v City of Rochester, 14 AD2d 13, affd 11 NY2d 759). The affirmed finding of the courts below that defendant’s signature on the mortgage instrument executed by her husband was a forgery precludes any conclusion here other than that the mortgage was ineffective to encumber defendant’s interest in the property.

On the other hand, there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other (Kline v Payne, 1 NY2d 15; Matter of Goodrich v Village of Otego, supra; Hiles v Fisher, supra). Since the status of a tenant by the entirety is reserved exclusively to those co-owners who are married to each other, the interest acquired by a grantee or mortgagee of such a unilateral conveyance is not denominated a tenancy by the entirety, but rather is labeled a tenancy in common. Nonetheless, the grantee’s or mortgagee’s rights in the property are essentially the same as those possessed by the grantor or mortgagor: a right to shared possession and ownership subject to the original cotenants’ reciprocal rights of survivorship (Hiles v Fisher, supra, p 316; Lawriw v City of Rochester, supra).

Since the grantee or foreclosing mortgagee, in effect, steps into the shoes of the grantor or mortgagor, his survivorship rights are measured by reference to the lifetimes of the original parties to the tenancy by the entirety. If the grantor or mortgagor predeceases the spouse whose interest in the property has been retained, the grantee or mortgagee is left with no interest in the property at all. Conversely, if the latter predeceases the former, the grantee or mortgagee acquires full rights to the property, unencumbered by the deceased spouse’s former interests (see, Lawriw v City of Rochester, supra).

As applied to the circumstances in this case, these principles lead to a conclusion, which defendant does not dispute, that at the time plaintiff took the mortgage from defendant’s husband, plaintiff acquired a contingent interest in all of the rights the husband had in the tenancy, encumbered by all of the limitations on those rights. Moreover, the husband’s December 1981 conveyance to defendant of his interest in the property did nothing to alter the respective rights that plaintiff and defendant had in the tenancy. Although a conveyance by one spouse to another of his or her interest in the property is ordinarily sufficient to produce a merger of the parties’ rights and dissolve the tenancy by the entirety (see, 5A Warren, Markuson, Zett & Gubala, Warren’s Weed New York Real Property Tenancy by Entirety § 7.02 [1986]; see also, Karp v Karp, 2 AD2d 796), a different conclusion must be drawn when there has been a prior conveyance or mortgaging of all or a portion of one spouse’s interests (see, Kline v Payne, supra; Beach v Hollister, 3 Hun 519). In those circumstances, the third party’s rights in the tenancy are entitled to the law’s protection, and, as a consequence, the conveyance between spouses cannot be deemed effective to alter the mortgagee’s bundle of rights associated with that tenancy. It follows that, as a result of the husband’s conveyance to her, the defendant had what was, in essence, the full interest created by the tenancy by the entirety, with one of those interests encumbered by plaintiff’s mortgage.

The same cannot be said, however, about the status of the tenancy after defendant and her husband were divorced. At that point, the tenancy by the entirety, which existed solely as a legal incident of the marriage, was dissolved by operation of law (see, Kahn v Kahn, supra, p 207; Stelz v Shreck, supra, p 267; see also, Matter of Kutick, 33 Misc 2d 580). The consequence was that, at least as between the former spouses, the basis of ownership was inevitably transformed from a tenancy by the entirety to a simple tenancy in common, with no right of survivorship existing in either party (see, Kahn v Kahn, supra; Stelz v Shreck, supra; 5A Warren, Markuson, Zett & Gubala, op. cit. § 6.01 [1]). Thus, the only remaining question is whether the divorce also altered the interest held by plaintiff V.R.W., Inc., which acquired its mortgage during the period when the tenancy by the entirety was still intact.

In resolving this question, we must recognize first that, as defendant contends, the rights of a mortgagee are generally fixed at the time that the mortgage is executed and can neither be enlarged nor impaired by the subsequent acts of the mortgagor (see, Rector, Church Wardens & Vestrymen v Mack, 93 NY 488). In other words, the mortgagee who forecloses after the mortgagor’s default ordinarily acquires no greater or lesser interest in the property than the mortgagor originally conveyed.

Relying heavily on these principles, defendant argues that plaintiff is bound by the rights and limitations characteristic of a tenancy by the entirety because that is the form of ownership in which the property was held by the mortgagor, defendant’s husband, when he executed the mortgage instrument. Defendant’s husband could convey no more than the interest he then had, and, consequently, defendant contends, the property right acquired by the purchaser at plaintiff’s foreclosure sale should be conditioned on the reciprocal survivorship rights that encumbered her husband’s interest at the time of the mortgage’s execution, notwithstanding the subsequent divorce. This was precisely the conclusion that was reached in Ryan v Fitzsimmons (57 AD2d 922), a decision that was expressly rejected by the court below in this case.

Like the Appellate Division, we are not persuaded by the contention that the nature of the mortgagee’s interests were immutably fixed at the point at which the mortgage was executed. Indeed, there is an inherently illogical element in defendant’s argument. As defendant readily acknowledges, a mortgagee who has acquired a mortgage on the property interest of only one of the parties to a tenancy by the entirety may lose whatever rights it had if its mortgagor subsequently predeceases the spouse who was not a party to the mortgage transaction. On the other hand, if the spouse who gave the mortgage survives the other, the mortgagee’s interest is transformed into an unconditional mortgage on the entire fee. Thus, even under the existing legal principles upon which defendant’s argument depends, the interest of a mortgagee in a tenancy by the entirety is not immutable, but rather is subject to transformation on the occurrence of a subsequent event, specifically the death of one of the spouses.

Inasmuch as we have long recognized that the nature of the property interests created by mortgages taken in these situations may be altered upon the occurrence of the specific "condition subsequent” of a spouse’s death (see, Lawriw v City of Rochester, supra), it follows that the mortgagee’s interests may also be altered upon the occurrence of a divorce decree or judgment of annulment issued after the mortgage was executed. The mortgagor’s rights and obligations at the time of the mortgage conveyance were subject to change upon a termination of the marriage; the interest conveyed to the mortgagor should be deemed similarly transmutable.

Furthermore, we see no unfairness in recognizing that the inchoate rights of the mortgagee follow those of its mortgagor. While we agree with defendant that a spouse who has not alienated his or her interest in a tenancy by the entirety should not suffer any impairment of rights as a result of the other spouse’s actions, we also conclude that the innocent spouse should not be placed in a more advantageous position by virtue of the conveyance. Here, for example, if defendant’s husband had not mortgaged his interest in the property, defendant would have had no continuing right of survivorship after the parties’ marriage was dissolved. To hold that as a result of her husband’s actions defendant has a continuing right of survivorship as against plaintiff and the purchaser at plaintiff’s foreclosure sale would be to confer on defendant a windfall because of a fortuitous circumstance in which she played no part. Such a result is plainly unacceptable.

In short, we hold that the judgment of the trial court, which was affirmed by the Appellate Division, correctly authorized a sale of plaintiff’s interest in a tenancy in common, unencumbered by any right of survivorship. Since the tenancy by the entirety has been dissolved, the purchaser will acquire all of the rights of an ordinary tenant in common, including the right to seek partition. We have not considered defendant’s remaining contentions that the foreclosure action is somehow barred by collateral estoppel and that the trial court erred in not awarding her credits due on maintenance, tax and mortgage payments she has made in connection with the property. These arguments were not raised before the trial court and therefore cannot be considered here.

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

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur.

Order affirmed, with costs.

       Noteworthy among these limitations is the absolute bar to involuntary partition of the property. Indeed, it would make little sense to allow partition at the instance of a third party to whom one spouse has conveyed, since to do so would be, in effect, to authorize the destruction of the nonconveying spouse’s possessory rights as a consequence of the unilateral action of the other spouse.


author: Kaye, J.

text:
    The People of the State of New York, Appellant, v Michael Kennedy, Respondent.
    Argued November 10, 1986;
    decided December 19, 1986

      POINTS OF COUNSEL

      Ronald Goldstock, Deputy Attorney-General (Martin Marcus of counsel), for appellant.
    I. The diaries were properly admitted into evidence as business records. (United States v Baxter, 492 F2d 150, 416 US 940; United States v Foster, 711 F2d 871, 465 US 1103; Arena v United States, 226 F2d 227, 350 US 954; United States v Re, 336 F2d 306, 379 US 904; Zenith Radio Corp. v Matsushita Elec. Indus. Co., 505 F Supp 1190; United States v Holladay, 566 F2d 1018, 439 US 831; United States v Hines, 564 F2d 925, 434 US 1022; Kelly v Wasserman, 5 NY2d 425.) II. The diaries were also admissible as statements of a coconspirator. (People v Berkowitz, 50 NY2d 333; People v Salko, 47 NY2d 230; People v Sanders, 56 NY2d 51; People v Mineral Resources, 114 Misc 2d 931; United States v Helmel, 769 F2d 1306; United States v Shursen, 649 F2d 1250; United States v Lewis, 759 F2d 1316; United States v DeLuna, 763 F2d 897; United States v De Gudino, 722 F2d 1351; United States v Wilson, 532 F2d 641, 429 US 846.)

      Ralph S. Joseph for respondent.
    I. The People’s failure to lay a proper foundation precluded the admission of the diaries as writings made in the regular course of business pursuant to CPL 60.10 and CPLR 4518 (a). (Blair v Martin’s, 78 AD2d 895; Sabatino v Turf House, 76 AD2d 945; Matter of Brown v Murphy, 43 AD2d 524; People v O’Briskie, 46 AD2d 779; Gawtry v Doane, 51 NY 84; Livingston v Arnoux, 56 NY 507.) II. CPL 470.35 precludes the People from urging, for the first time in this court, a new ground for the admission of the diaries. (Cuyler v McCartney, 40 NY 221; People v Ardito, 86 AD2d 144, 58 NY2d 842; People v Salko, 47 NY2d 230; People v Berkowitz, 50 NY2d 333; People v Evangelista, 88 AD2d 804; People v Rastelli, 37 NY2d 240.) III. The conspiracy counts of the indictment were jurisdictionally defective in the absence of a universe of alleged overt acts meeting the statutory standard. (People v Menache, 98 AD2d 335, 62 NY2d 652.)
   OPINION OF THE COURT

Kaye, J.

This appeal presents a novel application of the business records exception to the hearsay rule (CPLR 4518): two miniature pocket diaries, identified by the People’s retained expert as the master records of a loanshark kept in the regular course of his business, were received in evidence in a prosecution against defendant to establish that he was the loans-hark’s silent partner. We agree with the Appellate Division that a sufficient foundation for those records was not established, and there must be a new trial.

In this prosecution for conspiracy and criminal usury, the People sought to prove that defendant, a Clarkstown police officer, was the silent partner of a usurer and fellow police officer named Thomas Manuli. It was the People’s theory that defendant had supplied the cash for Manuli to lend the victim (Frank DiMare) at a usurious rate of interest, in exchange for which defendant received a percentage of the usurious payments. The People’s evidence at trial essentially consisted of the testimony of DiMare, certain admissions of defendant and bank evidence, tape recordings of two telephone conversations, and the diaries and related expert testimony.

DiMare testified that he had initially borrowed $5,000 from Manuli in February 1981, and in May 1981 obtained an additional $10,000 loan at an interest rate of 3% ($450) per week. In late May or early June, DiMare (who testified his nickname was "Cigars”) repaid $5,000 and negotiated new terms for the balance — $475 per week for 32 weeks. By January 1982 — the end of the 32 weeks — he still owed Manuli about $2,300. In January 1982, he negotiated a $5,000 loan ($2,700 net of his preexisting debt) to be repaid in 20 $300 weekly installments, and gave as security the certificate of title and registration to his car. Over the next five months, DiMare made 10 or 11 payments. When Manuli demanded further payments, DiMare suggested that he buy cocaine from him. Manuli purchased one ounce of cocaine for $2,000 and received back $300 against the indebtedness.

DiMare testified that throughout his various transactions with Manuli, he believed that Manuli was working alone, although Manuli had at one point told him that "some friend of mine * * * is complaining.” DiMare did not know defendant.

Defendant admitted in a police interview that he had loaned $10,000 to Manuli, but said that the loan was to be repaid at the going rate of interest. Evidence from defendant’s bank indicated that on May 14, 1981, the date of the $10,000 loan to DiMare, he requested $10,000 in cash, that he received a teller’s check in that amount, and that the check was approved for cashing by another bank.

The People submitted two tape recordings of telephone conversations between defendant and Manuli. During the first, on July 6, 1982, defendant asked Manuli, "How did you make out with Frankie?” Manuli responded that he was going "to pick it up tonight” and "would work something out with him.” Manuli told defendant that he had warned Frank that "this friend of mine, he, ah, you know, he’s, he’s not too happy.” The next day — July 7, 1982 — during a second conversation, Manuli told defendant that he "got the S — .” In that conversation defendant said he would visit Manuli that evening. Later that same day, Manuli’s apartment was searched pursuant to a warrant. In a metal box in the bedroom bureau the police found cash, the title and registration documents for a car belonging to DiMare’s wife, contraband and the two diaries.

The diaries, one for 1981 and one for 1982, contained scattered entries at various dates in each book, consisting of handwritten words, names and initials often followed by numbers or other names. Some of the entries were in ink, some in pencil, some had been changed. As a foundation for admission of the diaries into evidence, the People offered the testimony of a private investigator, retired police officer Michael Emanuelo, qualified as an expert in the field of criminal usury and records pertaining to criminal usury.

Emanuelo testified that, in his experience, loansharks often have partners who underwrite their loans and usually receive 1% per week of the principal advanced to the usurers and loaned to the victims. Criminal usurers ordinarily keep master records of their transactions, including records of money paid to victims, amounts received from them, and payments to partners; they maintain such records themselves; and they keep their records in cryptic fashion, consisting of numbers preceded by names or symbols, indicating that they are scheduled to meet their victims or partners to make or receive payments. Entries are sometimes prerecorded in anticipation of payments, with numbers added upon actual receipt of the money.

The following key questions were asked and answered, after which the diaries were received in evidence over the objection of defense counsel that a sufficient foundation had not been established:

"Q Do you have an opinion as to what the nature of these books is?
"A Yes, I do.
"Q What is that opinion?
"A These are master business records normally kept by usurers.
"Q Do you have an opinion as to whether these records were kept in the ordinary course of usury loan business?
"A Yes.
"Q What is that opinion?
"A They are loans given out to victims, payments received from victims and also payments of expenses to other individuals.
"Q Do you have an opinion by whom these entries were made?
"A I don’t understand your question.
"Q Do you have an opinion as to who it was, either by name or by category of who maintained these records?
"A Just by category. It was a usurer that kept these records.”
"the court: Would these be the type of records which would ordinarily be kept in the business of a usurer?
"the witness: Yes, it is, your Honor.”

After admitting the diaries, the court advised the jury that it was free to believe or disbelieve that these were regular records, despite the expert’s testimony.

With the diaries in evidence, Emanuelo’s remaining testimony was consumed by a detailed interpretation of the entries, identifying certain of the entries as names of victims and others as partners of the usurer. Emanuelo opined that in February and May 1981 certain entries reflected loans of $5,000 and $10,000 to Frank "Cigars”; that an entry in May 1981 — "Cigar 5,000” — indicated repayment; and that other entries, including one on May 29, 1981 — "Frank—600.00”— and one on June 5, 1981 — "Frank—750.00”—referred to payments against the indebtedness. Emanuelo further testified that in his opinion entries for "M.K.” and "Mike K” indicated one and the same person. The almost weekly notations, during the second half of 1981, reading "Mike K — 100” and "M.K.— 100” referred in Emanuelo’s view to payments by the usurer to "Mike K”, and were related to "Frank — $10,000”. (There were approximately 26 $100 entries referring to "Mike K” or "M.K.” in the 1981 diary, and none in the 1982 diary.) Because payments of $100 would be "approximately one percent” of $10,000, Emanuelo testified, "Mike K” was either the usurer’s partner or an independent usurer who advanced the principal to be furnished to the victim.

Thus, the testimony of Emanuelo that payments of $100 to "Mike K” or "M.K.” were actually payments to one person of 1% against a loan of $10,000, and that payments of 1% meant that Mike K. was the usurer’s silent partner, connected defendant as a participant in Manuli’s usurious loan to DiMare. The diaries and expert testimony also buttressed the testimony of DiMare, a convicted felon.

Defendant’s conviction of conspiracy in the fourth degree and criminal usury in the second degree was reversed by the Appellate Division, and a new trial ordered, on the ground that the People had failed to lay a sufficient foundation for the admission of the diaries. Critically lacking, in the view of the Appellate Division, was "testimony from someone with knowledge of the particular usurer’s record-keeping procedures that these diaries were made in the regular course of the usury business, that it was in the regular course of his business to make such records and that the notations were made at or soon after the purported transactions occurred.” (113 AD2d, at pp 844-845.)

This appeal presents several questions relating to CPLR 4518 (a), technically made applicable to criminal prosecutions by CPL 60.10. In that the diaries were admitted as evidence of the truth of their terms and thus constitute hearsay, the requirements of CPLR 4518 (a) — pursuant to which they were offered — must be satisfied, however reliable such records may otherwise be deemed to be (see, People v Nieves, 67 NY2d 125, 131). Moreover, while business records, once admitted, have no more probative force than any other evidence admitted pursuant to a hearsay exception, the threshold determination that they are business records satisfying the requirements of the statute is one of law. Whether records admitted pursuant to CPLR 4518 (a) are in fact regular business records is not — as the trial court advised the jury — a matter going only to weight of the evidence; other circumstances of the making of the records may go to weight once the threshold requirements for admissibility are met (CPLR 4518 [a]).

Initially, neither the fact that records are those of a criminal enterprise, nor the fact that the alleged enterprise is a one-man business, disqualifies them from consideration as business records within CPLR 4518 (a).

The statute itself provides that "[t]he term business includes a business, profession, occupation and calling of every kind.” The Legislature’s broad definition of "business” embraces a wide range of enterprises, entities and groups where records are regularly kept and there is a dependence on the accuracy of those records (see, 5 Weinstein-Korn-Miller, NY Civ Prac If 4518.15). While this court has not previously determined whether records of a criminal enterprise can ever be considered "business records” within the contemplation of the statute, the Legislature did not foreclose that application. It is certainly conceivable that a criminal enterprise, like any other, could maintain its records with such regularity and method as to leave no doubt of their accuracy and trustworthiness as business records.

While new for us, the question whether records of a criminal enterprise can ever be business records admissible as a hearsay exception has long been answered in the affirmative by the Federal courts, applying definitions of "business” similar to the CPLR definition (see, Fed Rules Evidence rule 803 [6] [in 28 USC Appendix]; 28 USC § 1732). As the Federal courts have recognized, "[t]he principles of efficient accounting apply just as readily to an illicit enterprise as they do to a licit business.” (United States v Baxter, 492 F2d 150, 164, cert denied 416 US 940; see also, United States v Foster, 711 F2d 871, 882, cert denied 465 US 1103; United States v Hedman, 630 F2d 1184, 1198, cert denied 450 US 965; United States v Cohen, 384 F2d 699; United States v Re, 336 F2d 306, 313, cert denied 379 US 904; United States v Quick, 128 F2d 832; Arena v United States, 226 F2d 227, 234, cert denied 350 US 954.) Where the foundation requirements of CPLR 4518 (a) are satisfied, the fact that the records may be those of a criminal enterprise is itself of no consequence.

By the same token, the fact that business records are those of a sole proprietor, or that their intended purpose may be for internal use rather than display to third parties or filing with government agencies, is not disqualifying. So long as the writings do not record purely personal acts or events, but are made in the course of some "business” in accordance with statutory requirements, there is no basis for excluding the private records of a one-man business from the ambit of CPLR 4518 (a) (see, 5 Weinstein-Korn-Miller, NY Civ Prac ][ 4518.16; Fisch, New York Evidence § 833 [2d ed]).

Finding no categorical impediment to accepting the diaries of a loanshark as business records within CPLR 4518 (a), we proceed to a consideration whether in this case there was sufficient foundation for their admission, and conclude that there was not.

The focus of the People’s argument is on the issue of the foundation witness. In particular, the People urge that the foundation witness need not be the custodian of the records, or even an employee of the business, but can be an expert witness.

While the Federal business records rule requires that a foundation be "shown by the testimony of the custodian or other qualified witness” (Fed Rules Evidence rule 803 [6]), CPLR 4518 (a) is silent as to who, if anyone, must introduce a business record, and the issue is without controlling precedent in our case law. Recognizing that business records are customarily offered through a custodian or employee, the People nonetheless contend that resolution of this novel issue should be guided by the principle that the business records exception has consistently been expanded by the Legislature and is liberally applied by this court (citing Kelly v Wasserman, 5 NY2d 425), and that an expert can, as well as any other witness, be someone with knowledge of the particular record-keeping procedures of the maker of the record (Blair v Martin’s, 78 AD2d 895; see also, Sabatino v Turf House, 76 AD2d 945, 946; Matter of Brown v Murphy, 43 AD2d 524; 4 Weinstein, Evidence 803 [6] [02]). Whether an expert witness could, in any situation, furnish the necessary foundation for admission of business records is an issue we need not and do not decide, for here it is plain that the testimony of Emanuelo was insufficient for that purpose.

The present statute, like its predecessor (Civ Prac Act § 374-a), traces its ancestry both to the common-law "shop book” rule, permitting merchants (disqualified from serving as their own witnesses) to authenticate their books of account as evidence of debts owing to them, and to the common-law regular entries rule, admitting entries made in the regular course of business by a clerk since deceased. In this State, over the years a mass of petty technicalities had sprung up to block admission into evidence of plainly trustworthy business records which were accepted and relied on in daily commercial dealings as accurate accounts. The legislative purpose in enacting Civil Practice Act § 374-a in 1928 was to permit such records to be received in evidence without the need to call as witnesses all the individuals who made them. (For the history of the statute see, Johnson v Lutz, 253 NY 124; Murray v Donlan, 77 AD2d 337; Richardson, Evidence §§ 294-296 [Prince 10th ed]; Fisch, New York Evidence § 831 [2d ed]; see generally, 5 Wigmore, Evidence §§ 1517, 1561a [Chadbourn rev 1974]; 4 Weinstein, Evidence fl 803 [6] [01].) Since that enactment nearly 60 years ago, the statutory exception to the hearsay rule has widened considerably, both as business and record-keeping have become increasingly complex and sophisticated. The business records exception has been recognized as probably the most important hearsay exception, and a major growth point in the law with great potential for further expansion (5 Weinstein-Korn-Miller, NY Civ Prac [HI 4518.01, 4518.02).

While the concept of "business” has ventured far beyond the mercantile origins of this hearsay exception, and records in forms previously unimagined are now routinely received in evidence pursuant to CPLR 4518 (see, e.g., Guth Realty v Gingold, 34 NY2d 440), still not every record máde in business falls within the exception. Courts must surely be sensitive to innovation and not seize on petty irregularities to exclude otherwise trustworthy evidence, but there is also the countervailing interest of fairness to the party against whom the records are admitted, and especially so in a criminal case, where the accused has a constitutional right of confrontation (see, Ohio v Roberts, 448 US 56, 66). The particular force of documents which are not subject to cross-examination, and which may be taken into the jury room (as the pocket diaries were in the present case), cannot be ignored. However flexibly or liberally they may be viewed, the purpose and requirements of the statute remain the touchstone.

As with other hearsay exceptions, the business records exception grew out of considerations of necessity and trustworthiness — the necessity for alternatives to permit large and small businesses to prove debts by their records of account, and the unusual degree of trustworthiness and reliability of such records owing to the fact that they were kept regularly, systematically, routinely and contemporaneously (5 Wigmore, Evidence §§ 1421, 1422, 1546 [Chadbourn rev 1974]; see also, Note, Business Records Rule: Repeated Target of Legal Reform, 36 Brooklyn L Rev 241). The element of unusual reliability is supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation (McCormick, Evidence § 306 [Cleary 3d ed]). The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise (see, Williams v Alexander, 309 NY 283, 286).

These concepts appear as the foundation requirements of CPLR 4518 (a): first, that the record be made in the regular course of business — essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business; second, that it be the regular course of such business to make the record (a double requirement of regularity) — essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and third, that the record be made at or about the time of the event being recorded — essentially, that recollection be fairly accurate and the habit or routine of making the entries assured.

The People did not establish a sufficient foundation for the two pocket diaries as business records. The fact that Emanuelo recited only that the diaries were the type of records kept in the ordinary course of a usury business, without also testifying in haec verba that it was the regular course of such business to make these records, is not determinative; the fact that his testimony — the only evidence offered of the regularity of the diaries — failed to meet these standards, is.

Even assuming that the testimony established that the records were kept in a criminal usury business, it did not indicate that they were made by their author (or authors, whoever they might be) pursuant to an established procedure for the routine, habitual, systematic making of records that would qualify them as trustworthy accounts. Nor did the testimony establish that these pocket diaries were the records regularly relied on in the business. That diaries may have been kept to record certain transactions in a business is insufficient. All records are presumably made to keep track of events, transactions or occurrences, but only those meeting the statutory requirements may be admitted in evidence.

Not only were the requisite regularity and unusual reliability of the diaries as business records not shown as a foundation on direct examination, but also the converse emerged on Emanuelo’s cross-examination:

"Q Would you say that it was the norm for the keeper of these books to write in code name or would you say it was normal for the keeper of the books to keep a set of books like you did when you were working undercover?
"A It’s hard to say. The answer to that would be no. Each usurer uses his own record keeping. We never really got everybody’s master records out of sixty-five or better arrests that we made. We didn’t come up with everybody’s master record. Some of them were worksheets that would come up with physical evidence. The norm would be — it’s really hard to say. Each individual operation is normally separate and distinct.
"Q Did the money lender keep the paperwork on, I presume, disposable paper?
"A The money lender? No. You never put it on inflammable paper. That’s your whole ball game. You lose this and it’s all over. Your action is gone.
"Q Your action is gone?
"A Your action is gone.
"Q So that each money lender kept books in his own style, in his own fashion?
"A Yes, sir.
"Q If he had a code, it was a code known to him?
"A Yes, sir.”

Similarly, with respect to the time entries were recorded in the diaries, the expert’s testimony failed to establish a regular, methodical, systematic practice, and indeed his further testimony betrayed the converse:

"Q Do you have an opinion as to why there are entries and no payments reflected?
"A I feel that Frank prepaid. He knew he wasn’t going to pay those particular weeks, so he gave him $750 which picked up maybe 2 weeks and another $750 he prepaid.
"Q Well, do you have an opinion as to why Frank is written in there at all?
"A Well, throughout the book the usurer seems to predate his people that he is going to meet. In other words, he will take the book and I don’t know exactly how he did it, but he took the book and jotted down the name Frank five times. He knows he’s got to meet him 5 weeks. And after that fifth time he jots down his name 5 times and he seems to have done that throughout the entire book.” (Emphasis added.)

* * *

“A It appears that what he did was predate his book.
"Q You don’t know exactly how he did it?
"A No.
"Q You didn’t know why he did it?
"A No, I wouldn’t know why he did it.”

Obviously, the regularity and trustworthiness of books of account of a criminal enterprise (or, indeed, any enterprise) need not be tested by compliance with generally accepted accounting principles. More, however, is required by way of foundation than an expert’s view that, because usurers personally and cryptically maintain records of what is collected, paid and owed, two pocket diaries identified as a usurer’s record are "business records” admissible in evidence against a third person for the truth of their contents.

Finally, defendant urges that the conspiracy count on which he was convicted should have been dismissed because three of the six overt acts alleged were legally insufficient. No such challenge having been raised below by timely motion to dismiss the indictment, there is no issue of law presented for our review (see, CPL 470.35 [2] [b]).

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

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur.

Order affirmed.

      . Manuli did not testify. While he was charged both with defendant and also separately in two additional indictments, at the time of defendant’s trial he had pleaded guilty to the crime of criminal possession of a controlled substance in the third degree and was awaiting sentence (see, People v Manuli, 104 AD2d 386).

      . CPLR 4518 (a) reads: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.”

      . Appellant now urges that admission of the diaries should be sustained, if not under CPLR 4518 (a), then as statements of a coconspirator made in furtherance of the conspiracy. No such argument was made before the trial court, and it cannot be considered here (see, People v Nieves, 67 NY2d 125, 131).

      . No contention is made that the diaries are so patently trustworthy as to be self-authenticating, with no need for a qualifying witness; from our own review of the two little notebooks, it is apparent that such a contention could not seriously be made. Nor do the People contend that the requirements for qualification of the diaries as business records were satisfied by other evidence apart from the expert testimony (see, Zenith Radio Corp. v Matsushita Elec. Indus. Co., 505 F Supp 1190, 1233-1236, revd in part on other grounds sub nom. In re Japanese Elec. Prods. Antitrust Litig., 723 F2d 238, revd on other grounds 475 US —, 106 S Ct 1348; see also, 4 Weinstein, Evidence fl 803 [6] [02]; Proposed New York Code of Evidence § 803 [c] [5]).

      . We note that in the Federal criminal cases relied upon by the People, the records were generally introduced by a custodian, an employee or similarly situated person, or their own author, never by an expert witness (see, e.g., United States v Hedman, 630 F2d 1184; United States v McPartlin, 595 F2d 1321, cert den 444 US 833; United States v Baxter, 492 F2d 150).