author: Meyer, J. Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Michael John Kazmarick, Appellant.
    Argued January 9, 1981;
    decided February 26, 1981

      POINTS OF COUNSEL

      K. C. Garn for appellant.
    I. The indictment is supported by insufficient evidence as a matter of law. People v Murray, 40 NY2d 327; People v Reade, 13 NY2d 42; People v Bennett, 49 NY 137.) II. Corroboration of a confession is required for indictment. (People v Murray, 40 NY2d 327; People v Shanklin, 59 AD2d 588; People v Mayo, 36 NY2d 1002; People v Haney, 30 NY2d 328; People v Peetz, 7 NY 2d 147; People v Howell, 3 NY2d 672; People v Wallace, 101 Misc 2d 127; People v Clarkson, 50 AD2d 903; People v King, 48 AD2d 457; People v Baker, 46 AD2d 377.) III. Defendant’s statement was obtained through use of illegal police and law enforcement activity and in violation of his constitutional rights. (People v Martinez, 37 NY2d 662; Davis v Mississippi, 394 US 721; People v Jackson, 22 NY 2d 446; People v Malloy, 22 NY2d 559; People v Dibble, 46 AD2d 829; People v Davis, 13 NY2d 690; Culombe v Connecticut, 367 US 568; People v Valerius, 31 NY2d 51.)

      Joseph Jaffe, District Attorney (Philip E. Conaty of counsel), for respondent.
    I. Kazmarick’s plea of guilty vitiated any question as to the sufficiency of the evidence before the Grand Jury. (People v Clark, 65 AD2d 884; People v Gemmill, 54 AD2d 1034; People v O’Neal, 44 AD2d 830; Brady v United States, 397 US 742; McMann v Richardson, 397 US 759; Parker v North Carolina, 397 US 790; Lefkowitz v Newsome, 420 US 283; Tollett v Henderson, 411 US 258; People v La Ruff a, 40 AD2d 1022, 34 NY2d 242.) II. The requirement of CPU 60.50 is inapplicable to a Grand Jury proceeding. (People v Mayo, 36 NY2d 1002; People v Peetz, 7 NY2d 147; People v Karl, 41 AD2d 1001; People v Johnson, 46 AD2d 55; Matter of Ruggiero, 40 AD2d 135; People v King, 48 AD2d 457; People v Clarkson, 50 AD2d 903; People v Murray, 40 NY2d 327.) III. Kazmarick’s confession was sufficiently corroborated. (People v Talve, 73 AD2d 629; People v Friedman, 139 App Div 795; People v Cona, 49 NY2d 26; People v Laws, 54 AD2d 518; People v Reade, 13 NY2d 42; People v Lytton, 257 NY 310; People v Murray, 40 NY2d 327; People v Jaehne, 103 NY 182; People v Pettis, 62 AD2d 1110; People v Guernsey, 46 AD2d 698.) IV. Defendant’s arrest for disorderly conduct was neither a sham nor a manipulative pretext "for detaining defendant in order to investigate another crime and indeed was entirely proper. (People v Malloy, 22 NY2d 559; People v Johnson, 49 AD2d 663; People v Jackson, 22 NY2d 446; People v Gaudio, 95 Misc 2d 47.) V. There was no violation of Kazmarick’s Sixth Amendment right to counsel. (People v Samuels, 49 NY2d 218; People v Rogers, 48 NY2d 167; People v Albro, 73 AD2d 73.)
   OPINION OF THE COURT

Meyer, J.

A pending unrelated criminal case upon which an arrest warrant has issued does not bar the police from questioning a suspect when the suspect does not in fact have counsel on the unrelated charge. Although the right to counsel on the unrelated charge indelibly attaches upon the issuance of an accusatory instrument or warrant on that charge and in relation to that charge proscribes waiver of counsel in the absence of counsel, the unrelated charge is pertinent to the suspect’s right to counsel on a new charge only if the suspect is in fact represented by counsel on the unrelated charge. It appearing from this record that defendant Kazmarick was not represented on the unrelated charge, his right to counsel was not violated by subjecting him to a lie detector test to which he consented, or by questioning him.

The order of the Appellate Division affirming defendant’s conviction on his plea of guilty should, therefore, be affirmed.

Defendant, an alcoholic, was a suspect in the arson deaths of five persons in the Village of Monticello in Sullivan County. On the day of the fire he consented to take a polygraph test, but the test was aborted because his state of intoxication at the time rendered any result unreliable. The next day defendant was arrested on charges of disorderly conduct, assault on a police officer, escape, and criminal mischief. Counsel was appointed for him on those charges, which were satisfied by defendant’s plea at arraignment in the Village Court to the disorderly conduct charge. Defendant was sentenced to a 15-day term in the county jail.

Two days after his incarceration for disorderly conduct, defendant was scheduled to appear in the Justice Court of the Town of Thompson, a neighboring jurisdiction, on a pending five-month-old shoplifting charge for which he had been given a desk appearance ticket. When he failed to appear on that charge the Town of Thompson Justice issued an arrest warrant for defendant which was filed with the Sullivan County Sheriff.

Upon the expiration of his disorderly conduct sentence, defendant, now sober, was met at the jail by the detectives investigating the arson and taken once again for a polygraph test. No attempt was made to execute the shoplifting warrant. After the second test defendant was told that his answers were untruthful. He then admitted that he had unintentionally set a fire in the stairwell which he tried but failed to stamp out and that he then “got scared” and ran home.

Defendant was indicted for five counts of murder in the second degree on the theory that he had demonstrated a depraved indifference to human life. His pretrial motion to suppress his confession having been denied after a hearing, defendant pleaded guilty to five charges of criminally negligent homicide. The Appellate Division affirmed the conviction, without opinion.

On this appeal defendant argues that his confession was obtained in violation of his right to counsel, that the evidence before the Grand Jury was insufficient to sustain the indictment because his confession was not corroborated, that it was not voluntary, and that his arrest and incarceration on the disorderly conduct charge was but a pretext to sober him up for the polygraph test and, therefore, improper conduct on the part of the People. The sufficiency of the evidence presented to the Grand Jury cannot now be raised because as we held in People v Clairborne (29 NY2d 950, 951), “A bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed.” The Trial Judge found the confession to have been voluntary and that incarceration on the disorderly conduct charge was not a pretext. Those findings having been affirmed by the Appellate Division are now beyond our consideration. We therefore discuss only defendant’s right to counsel.

With respect to the right to counsel, defendant relying principally on People v Samuels (49 NY2d 218) and People v Rogers (48 NY2d 167), claims that the pendency of the shoplifting complaint in combination with the issuance of the arrest warrant caused his right to counsel to attach “indeliblv” on the unrelated arson case (see People v Settles, 46 NY2d 154, 165). Therefore, argues defendant, he could not waive counsel in counsel’s absence and his confession must be suppressed. We disagree.

Both Samuels and Rogers deal with when the right to counsel indelibly attaches and, therefore, may not be waived in counsel’s absence. The line of cases of which Samuels is a recent manifestation holds that upon the commencement of formal adversary proceedings the right arises, without regard to whether defendant in fact has or has requested counsel (People v Cunningham, 49 NY2d 203, 208). Proceedings are commenced, we have held, upon the filing of a felony complaint (People v Samuels, supra), upon indictment (People v Settles, supra), as well as upon arraignment (People v Meyer, 11 NY2d 162). As expressed in Settles (supra, at p 163), the justification for this principle is that when “the character of the police function shifts from investigatory to accusatory” the assistance of counsel becomes “indispensable”.

The right to counsel may, however, “indelibly attach” apart from the commencement of formal adversary proceedings. As we recognized in Cunningham (49 NY2d, at p 208), there is a second distinct line of cases beginning with People v Donovan (13 NY2d 148) and running through People v Arthur (22 NY2d 325) and People v Hobson (39 NY2d 479), which articulates the rule that a suspect who has retained or been assigned counsel may not be questioned about the specific charge on which he is being held in the absence of counsel. That rule was extended in People v Rogers (supra), to bar questioning of a suspect who is in custody and represented by an attorney, about matters unrelated to the charge on which he is being held, in People v Cunningham (supra), to a suspect in custody not yet represented by counsel but who has requested counsel, and in People v Skinner (52 NY2d 24) to one not in custody but who is questioned about a matter under investigation in relation to which he is known by the officials to have obtained counsel. The predicates for this branch of the counsel rule are fundamental fairness, the belief that an attorney’s presence is the most effective means of minimizing the disadvantage of the accused person in custody, and the recognition that an unrepresented defendant in custody who has requested an attorney has indicated his own belief that without legal advice he is not competent to deal with those in whose custody he is being held (People v Cuningham, supra, at pp 207-209). That ruling, we said in Hobson and reiterated in Cunningham (at p 208), “breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary.”

Defendant in an overly simplistic lumping of the two lines of cases argues from Samuels that the arrest warrant and accusatory instrument on the shoplifting charge created a nonwaivable right to counsel and from Rogers that attachment of that right prevented interrogation on any other criminal matter. While the filing of an accusatory instrument triggers a right to counsel with respect to the charge made by the accusatory instrument, the right to counsel and representation by counsel are not the same thing. The fact that defendant Kazmarick may have been entitled to counsel on the shoplifting charge does not require, automatically and in all events, acting as though he was in fact represented by counsel and, therefore, protected even as to an unrelated charge. Simply put, the legal fiction of representation indulged by the Samuels line of cases is not tantamount to the actual or requested representation protected by the Roger s-Cunningham line. To accept the “strict liability” rule for which defendant argues would tax law enforcement officials anywhere with knowledge of accusatory instruments on unrelated charges everywhere, and unnecessarily and unrealistically limit police interrogation procedures (see People v Servidlo, 77 AD2d 191; cf. People v Miller, 76 AD2d 576).

This is not to say that law enforcement officials may never be chargeable with knowledge that defendant is in fact represented by counsel, or has requested counsel on an unrelated charge, in such a way as to cut off their rights to interrogate except in the presence of, or after waiver made in the presence of, counsel. Though the emphasis in the Rogers line of cases has been upon actual awareness by the police that defendant has counsel (People v Marrero, 51 NY2d 56, 59; People v Garofolo, 46 NY2d 592, 599; People v Blake, 35 NY2d 331, 338; People v Arthur, supra, at p 329), we noted in People v Cunningham (supra, at p 209), that the police may not obtain a waiver of the right to counsel “in the absence of counsel once they know or have reason to know that an attorney has become involved in the case,” and in People v Garofolo, (supra), and People v Pinzon (44 NY2d 458) we have held a county police department barred on constructive notice principles from interrogating a suspect in its custody in one of its office by notice given to central police headquarters that the suspect was represented by counsel. None of our decisions go so far, however, as to hold the police bound because they had reason to know of another charge on which defendant’s right to counsel has attached, as defendant urges.

We do not find it necessary on the present record to determine whether or under what circumstances knowledge, actual or constructive, by the police of a pending unrelated charge against defendant will be sufficient to put them on notice that defendant is in fact represented by counsel on that charge and, therefore, may not be interrogated on the new matter, absent waiver of counsel in the presence of counsel. Obviously, if the suspect informs the police that he has a lawyer on an unrelated pending case his right to counsel on the new matter will indelibly attach and bar interrogation (People v Cunningham, supra; People v Servidio, supra). Short of such direct advice, however, even actual knowledge by the police that there is a pending unrelated charge, such as defendant Kazmarick’s shoplifting offense, cannot charge them with any more information than would have been revealed had the police made reasonable inquiry concerning whether defendant in fact had counsel on the unrelated charge.

Though the record shows that the detective sergeant who took defendant to both polygraph tests was aware of the shoplifting charge appearance ticket, any inquiry made would have revealed that defendant Kazmarick was not represented on that charge, for his brief on this appeal concedes that he “had failed to appear in Court [on the shoplifting charge] since his arrest the previous November” and argues only that with the issuance of the arrest warrant “Kazmarick’s right to an attorney attached,” not that he ever had counsel on that charge. Consequently, defendant’s right to counsel on the second degree murder charges had not indelibly attached as a consequence of either that pending case or warrant so as to require suppression of his subsequent confession.

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

Chief Judge Cooke

(dissenting). Because I cannot agree with the majority’s right to counsel analysis, I dissent, vote to reverse the conviction and grant the motion to suppress.

In People v Rogers (48 NY2d 167), this court held that once a defendant is represented by counsel, he may not be questioned in the absence of counsel either on the charge for which the attorney was retained or assigned or on any unrelated charge. This ruling extended the established New York principle that a represented defendant obtains an “indelible” right to counsel which cannot be waived unless counsel is present. Whether the Rogers rationale also precludes questioning on unrelated charges where defendant obtains an “indelible” right to counsel other than by actual representation is the question in this case.

As the majority concedes, since an accusatory instrument and an arrest warrant were filed against defendant in connection with an unrelated shoplifting charge, defendant possessed a right to counsel which could not be waived in the absence of counsel (People v Samuels, 49 NY2d 218, 222-223). What the majority refuses to acknowledge, however, is that once this “indelible” right to counsel attaches it prohibits questioning in the absence of counsel, not only as to the charge on which defendant is entitled to a lawyer, but also as to all unrelated charges (People v Rogers, 48 NY2d 167, supra). Indeed, the rationale of Rogers itself— that law enforcement officials should not be permitted to circumvent the right to counsel by the simple expedient of questioning on unrelated charges — requires this result.

To escape the simple logic of the conclusion dictated by Rogers, the majority engages in a lengthy discussion of the genesis of the so-called “indelible” right to counsel. It notes, quite correctly, that there are two basic and closely related lines of cases in this area. The first, the Donovan-Arthur rule, holds that once an attorney enters the proceeding, no waiver of rights may be extracted from a defendant without the attorney being present (e.g., People v Hobson, 39 NY2d 479). Under the second rule, which may be referred to as the Settles-Samuels doctrine, the nonwaivability principle attaches upon actual commencement of the criminal proceeding (e.g., People v Samuels, 49 NY2d 218, supra; People v Settles, 46 NY2d 154). The majority would treat these two related rules as distinct, and apply Rogers to prohibit questioning on unrelated charges only where the defendant actually has an attorney.

Whatever superficial distinctions may exist between the two principles, they share the same historic roots and seek to foster the same goal. Thus, contrary to the majority’s unsupported assertion, this court has previously held that the commencement of the criminal proceeding is the equivalent of actual representation by counsel. Indeed, in People v Settles (supra, at pp 159, 166), where we held that the indelible right to counsel attaches upon indictment, the court expressly stated: “where an indictment has been returned, we equate the indictment with entry of a lawyer into the proceedings and invoke the requirement of counsel’s presence to effectuate a valid waiver” [emphasis added] and “an indictment constitutes the commencement of a formal judicial action against the defendant and is equated with the entry of an attorney into the proceedings.” In so ruling, the court in Settles relied heavily upon the Donovan-Arthur cases (46 NY2d, at pp 161-166, supra). Thus, rather than being a separate and distinct rule, the Settles-Samuels cases stem from and are intimately rooted to the Donovan-Arthur principle. And, the rule articulated in both lines of cases has but a single purpose: to protect against an uncounseled and unknowing waiver of the right to counsel in instances where that right has attached (see, e.g., People v Settles, 46 NY2d 154, 163-165, supra; People v Hobson, 39 NY2d 479, 484-485, supra).

Moreover, it is not logical to say that recognizing a defendant’s nonwaivable right to counsel where an unrelated criminal complaint is filed “would tax law enforcement officials anywhere with knowledge of accusatory instruments on unrelated charges everywhere” (majority opn, at p 328). Quite simply, the rule would not be triggered absent knowledge of the unrelated charges. Here, the detective who accompanied defendant to the polygraph test admitted his knowledge of the outstanding charge. More fundamentally, however, this court has until today steadfastly refused to dilute the fundamental right to an attorney merely to provide law enforcement officials with a convenient procedure for obtaining a confession (e.g., People v Rogers, 48 NY2d 167, 173, supra; People v Settles, 46 NY2d 154, 164, supra; People v Donovan, 13 NY2d 148, 152). Yet, the majority now overrides the defendant’s right to counsel so as not to “unrealistically limit police interrogation procedures” (at p 328).

Today’s decision is reminiscent of People v Robles (27 NY2d 155, overruled People v Hobson, 39 NY2d 479, supra), in which this court, in affirming a criminal conviction, suddenly and unexplainedly departed from the consciously evolved Donovan-Arthur principle. The result was a period of uncertainty as to the scope of the right to counsel under the New York Constitution (see, e.g., People v Pellicano, 40 AD2d 169; 51 St John’s L Rev 216, 217-218). The decision in this case likewise might be viewed as a backtracking from the court’s unswerving insistence that the fundamental right to counsel be respected. Especially is this so here, where the interaction of the two established rules articulated in Samuels and Rogers — and the very purpose of those rules — dictates that defendant was entitled to a non waivable right to counsel. Rather than join in a rationale which can only cause renewed confusion as to the scope of the right to counsel, I would hold that a defendant who possesses an unwaivable right to counsel cannot waive his rights where the police, with knowledge of the facts which give rise to the right to counsel, question him on unrelated charges. In this case, since the detective admitted that he knew of the outstanding shoplifting charge, defendant should not have been questioned in the absence of an attorney on the unrelated murder charge.

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

Order affirmed.

      . A misdemeanor information was filed.

      . On this appeal defendant does not suggest that assignment of counsel on the disorderly conduct matter affected the right of the police to question him concerning the murder charge.

      . People v Servidio, supra, rejected a constructive knowledge-strict liability approach. Without accepting or rejecting that conclusion, we note that proximity in time and geographical location would, as Servidlo suggests, have important bearing, as would the seriousness of the pending unrelated charge.

      . The People’s brief, to which no reply was filed, states flatly that on the petty larceny charge “no counsel had been retained or appointed” for Kazmarick.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of Brunswick Hospital Center, Inc., Respondent, v Charles J. Hynes, as Deputy Attorney-General, Appellant.
    Argued February 9, 1981;
    decided March 31, 1981

      POINTS OF COUNSEL

      Charles J. Hynes, Deputy Attorney-General (Arthur G. Weinstein and Richard D. Carruthers of counsel), for appellant.
    I. CPL 610.25 does not require a prosecutor to obtain a court order before he can copy evidence validly subpoenaed as part of a Grand Jury investigation. (Matter of Hynes v Moskowitz, 44 NY2d 383; Matter of Heisler v Hynes, 42 NY2d 250; Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Matter of Long Beach Grandell Nursing Home & Health Related Facility v Hynes, 93 Misc 2d 117; Robert Hawthorne, Inc. v Director of Internal Revenue, 406 F Supp 1098; United States v Davey, 543 F2d 996; Aron Manor Nursing Home v Hynes, 63 AD2d 597; Schwimmer v United States, 232 F2d 855; Matter of Petroleum Ind. Investigation, 152 F Supp 646.) II. The prosecutor was properly permitted to retain copies of subpoenaed evidence during the interval between the terms of the two Grand Juries. (People v Fairview Nursing Home, 92 Misc 2d 694; Matter of Hynes v Lerner, 44 NY2d 329; United States v Procter & Gamble, 356 US 677; United States v Culver, 224 F Supp 419; United States v Kleen Laundry & Cleaners, 381 F Supp 519; United States v Halper, 470 F Supp 103, 590 F2d 422; United States v Universal Mfg. Co., 525 F2d 808; United States v Ryan, 402 US 530; Matter of Cunningham v Nadjari, 39 NY2d 314.) III. The prosecutor properly accepted the hospital’s tender of subpoenaed evidence during the interval between the terms of the two Grand Juries. (Consumer Credit Ins. Agency v United States, 599 F2d 770; Jo Ann Homes at Bellmore v Dworetz, 25 NY2d 112; De Meo v Horn, 70 Misc 2d 339; Prout v Dowdall, 40 Misc 2d 988; Ahearn v General Acc. Fire & Life Assur. Corp., 19 AD2d 883; Lanzi v Brooks, 43 NY2d 778; Latzko v Spector, 28 AD2d 1111, 22 NY2d 710; Simcuski v Saeli, 44 NY2d 442; Vitale v Coyne Realty, 66 AD2d 562; People v Selikoff, 35 NY2d 227.)

      Gordon J. Lang for respondent.
    Due process of law was violated by the Special Prosecutor making copies of books and records accepted by him, that were delivered pursuant to process issued by a Grand Jury no longer in existence. (United States v Dardi, 330 F2d 316; United States v Fisher, 455 F2d 1101; Matter of Hynes v Moskowitz, 44 NY2d 383; People v Savvides, 1 NY2d 554; Johnson v Zerbst, 304 US 458; Henry v Mississippi, 379 US 443; Matter of Heisler v Hynes, 42 NY2d 250; Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Armstrong v Manzo, 380 US 545.)
   OPINION OF THE COURT

Chief Judge Cooke.

Here, the entitlement of the Special Prosecutor in charge of the nursing home and hospital investigations to retain copies he made of certain records subpoenaed from petitioner is in dispute. County Court granted petitioner’s request for return of the original documents, but refused to direct the Special Prosecutor to surrender copies made from the originals. The Appellate Division modified, in effect ruling that the Special Prosecutor was required to apply for court approval prior to impounding subpoenaed material.

There should be a reversal. A prosecutor who obtains evidence by a subpoena duces tecum issued on behalf of a Grand Jury has a right to possess and retain the subpoenaed material without first obtaining a court order (Matter of Hynes v Moskowitz, 44 NY2d 383, 392-393; CPU 610.25). It is the burden of the subpoenaed party to raise a challenge as to the extent of possession to which the issuer is entitled. Prior to such an application, the issuer may lawfully exercise dominion and control over the subpoenaed evidence. Thus, petitioner’s request for return of the copies should have been denied. In addition, petitioner’s motion to quash two subpoenas on the ground that the Special Prosecutor lacked power to enforce them cannot now be entertained, as a motion to quash must be made before compliance with the subpoena (see Matter of Hynes v Moskowitz, supra, at p 394; Matter of Gammarano v Gold, 51 AD2d 1012).

Beginning in November of 1977, the Special Prosecutor undertook an investigation of the business affairs of petitioner Brunswick Hospital, its employees and suppliers. A Grand Jury was impaneled in September, 1978 to look into possible kickback schemes in hospitals and other facilities in Suffolk County. On behalf of the Grand Jury, on September 28, 1978, the Special Prosecutor served a subpoena duces tecum upon petitioner. After challenges to the validity of the process, petitioner purportedly surrendered the requested records in January, 1979. As it turned out, however, some of the subpoenaed material was not delivered to the prosecutor. Petitioner contended that the material was unavailable, as it had allegedly been voluntarily surrendered to the prosecutor at an earlier date and so mishandled or misfiled by him as to be unbeatable.

A second Grand Jury subpoena for additional records was issued on March 7, 1979 and made returnable on March 30. Again, petitioner claimed the records were unavailable due to the actions of the prosecutor. County Court ordered petitioner to comply with the subpoena by June 15, 1979, but scheduled a hearing for June 13 on the unavailability contention. The hearing was subsequently adjourned, at the petitioner’s request, until June 20; on June 20, the matter was adjourned, on consent of the parties, until June 27. On that date, petitioner delivered a number of documents to the Special Prosecutor, which he accepted as substantial and satisfactory compliance with the subpoenas.

Meanwhile, after a number of extensions, the term of the September 1978 Grand Jury expired on June 22, 1979. Petitioner alleges that it was unaware that the Grand Jury’s term had terminated and that the prosecutor did not specifically notify it of this fact. On July 23, petitioner commenced this proceeding seeking to quash the subpoenas, to obtain possession of the surrendered original documents and all copies thereof, and to suppress all information obtained by respondent. The Special Prosecutor did not object to the return of the original documents and on this appeal seeks to retain only the copies. The initial question is whether the prosecutor may exercise dominion and control over material subpoenaed for a Grand Jury without prior court approval.

Under CPL 610.25, a prosecutor who issues a subpoena duces tecum on behalf of a Grand Jury now has the right to possess and retain the subpoenaed evidence for the Grand Jury. This provision was enacted in response to decisions of this court holding that, absent statutory authority, document sought by the Special Prosecutor by Grand Jury or office subpoena duces tecum could not be retained in his custody (Matter of Heisler v Hynes, 42 NY2d 250; Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243). Recently, this court had occasion to interpret the new legislation and unequivocally indicated that no prior court order is required to trigger the issuer’s right to possess and retain the subpoenaed material (Matter of Hynes v Moskowitz, 44 NY2d 383, 391-393, supra). Rather, it is incumbent upon the subpoenaed party to raise a challenge to the issuer’s possession, at which time the court can delimit the period and extent of the prosecutor’s or Grand Jury’s custody (id.; CPL 610.25, subd 2). In the absence of such a challenge, the prosecutor may lawfully exercise dominion and control over the evidence. Having obtained legal custody and control of the material, the Special Prosecutor was entitled to make copies and use them for any proper purpose. Thus, the Appellate Division’s conclusion that the burden is upon the Special Prosecutor to move to impound the evidence was erroneous.

Petitioner contends that, irrespective of the right to possess the evidence, the Special Prosecutor lacked jurisdiction to enforce the subpoena in the first instance, since the September 1978 Grand Jury was already disbanded when the materials were surrendered. Thus, petitioner asks that the subpoena be quashed. Whatever the merits of this position, the motion. to quash cannot now be entertained.

A motion to quash or vacate, of course, is the proper and exclusive vehicle to challenge the validity of a subpoena or the jurisdiction of the issuing authority (e.g., Matter of Santangello v People, 38 NY2d 536, 539; see Carlisle v Bennett, 268 NY 212, 218). Such a motion must be made promptly, generally before the return date of the subpoena (id.; see CPLR 2304; see, also, Fed Rules Civ Pro, rule 45, subd [b]). Once there has been compliance with the subpoena, however, a motion to quash or vacate no longer is available (see Matter of Hynes v Moskowitz, 44 NY2d 383, 394, supra; Matter of Gammarano v Gold, 51 AD2d 1012, supra). Quite simply, having complied with the process, the subpoenaed party no longer possesses the option of challenging its validity or the jurisdiction of its issuer. Any other rule would open the door to never-ending challenges to the validity of subpoenas, perhaps even years after initial issuance and compliance. At some point, litigation must terminate.

That petitioner claims it had no knowledge of the alleged defect until after it complied is not material. Procedural rules do not cease operation in every case where an individual litigant lacks sufficient knowledge to assert his rights (cf. Thornton v Roosevelt Hosp., 47 NY2d 780, 781). Indeed, no judgment would be insulated from attack were the rule otherwise. In any event, the expiration of the term of the Grand Jury was a matter of public record and was not concealed by the Special Prosecutor. Thus, petitioner’s allegation of lack of jurisdiction cannot be considered.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Suffolk County Court reinstated.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

      . Under CPL 610.25 provides: “1. Where a subpoena duces tecum is issued on reasonable notice to the person subpoenaed, the court or grand jury shall have the right to possession of the subpoenaed evidence. Such evidence may be retained by the court, grand jury or district attorney on behalf of the grand jury.
      “2. The possession shall be for a period of time, and on terms and conditions, as may reasonably be required for the action or proceeding. The reasonableness of such possession, time, terms, and conditions shall be determined with consideration for, among other things, (a) the good cause shown by the party issuing the subpoena or in whose behalf the subpoena is issued, (b) the rights and legitimate needs of the person subpoenaed and (c) the feasibility and appropriateness of making copies of the evidence. The cost of reproduction and transportation incident thereto shall be borne by the person or party issuing the subpoena unless the court determines otherwise in the interest of justice. Nothing in this article shall be deemed to prohibit the designation of a return date for a subpoena duces tecum prior to trial. Where physical evidence specified to be produced will be sought to be retained in custody, notice of such fact shall be given the subpoenaed party. In any case where the court receives or retains evidence prior to trial, it may, as may otherwise be authorized by law, grant the issuing party a reasonable opportunity to inspect such evidence.”

      . It should he noted that CPL 610.20, which authorizes the issuance of a Grand Jury subpoena, nowhere requires that the subpoena be for a particular Grand Jury. Thus, it might well be that the validity of a subpoena does not depend upon the existence of a particular Grand Jury at any specific time (cf. United States v Kleen Laundry & Cleaners, 381 F Supp 519,- 522-523).


author: Gabrielli, J.

text:
    Richard Sokolov et al., Appellants, v Village of Freeport, Respondent.
    Argued February 12, 1981;
    decided March 31, 1981

      POINTS OF COUNSEL

      Alan Manning Miller for appellants.
    I. The ordinance on appeal violates the provisions of the Fourth Amendment of the United States Constitution against illegal search and seizure and also violates the Constitution of the State of New York. (Camara v Municipal Ct., 387 US 523; See v City of Seattle, 387 US 541; Marshall v Barlow’s, Inc., 436 US 307; Colonnade Corp. v United States, 397 US 72; Michigan v Tyler, 436 US 499.) II. A consent to search and a waiver of constitutional rights must be done knowingly, intelligently, and without coercion; to encroach on a personal liberty, the State must show an overwhelming, compelling interest. III. The ordinance imposes responsibilities on landlords which infringe on their constitutional rights and guarantees. (People v Scott, 26 NY2d 286.) IV. A legislative act which interferes with the freedom and use of property is unconstitutional. (Sweeney v Murphy, 39 AD2d 306, 31 NY2d 1042; People v A & C Trucking Co., 88 Misc 2d 988.) V. Ordinances which violate constitutional guarantees are not permissible uses of the police power. (Modjeska Sign Studios v Berle, 43 NY2d 468; Nichols Herkimer Corp. v Village of Herkimer, 34 AD2d 371; People v Billi, 90 Misc 2d 568; People v Holbrook Transp. Corp., 84 Misc 2d 650.) VI. A municipality cannot pass ordinances which exceed its powers or which infringe on constitutional rights. (People v Kearse, 56 Misc 2d 586; Arverne Bay Constr. Co. v Thatcher, 278 NY 222; Polk v State Bar of Tex., 374 F Supp 784.) VIII. The ordinance on appeal is discriminatory, prohibitive and confiscatory. (Barry v Town of Glenville, 9 AD2d 822, 8 NY2d 1153.)

      Michael Solomon, Village Counsel (V. Roy Cacciatore of counsel), for respondent.
    I. The ordinance is constitutional and proper in all respects. (Loventhal v City of Mount Vernon, 51 AD2d 732; See v City of Seattle, 387 US 541.) II. The ordinance in question is proper even within the context of the prior decision in the first Sokolov case.
   OPINION OF THE COURT

Gabrielli, J.

Presented for our determination is the constitutionality of a municipal ordinance which provides, effectively, that a landlord is required to consent to a warrantless inspection of his property in order to obtain a rental permit. We hold today that the imposition of a penalty upon a landlord for renting his premises without first consenting to a warrant-less search violates the property owner’s Fourth Amendment rights.

The Village of Freeport enacted a rental ordinance (Village Ordinance, art IV) in 1974 which required that landlords obtain a rental permit prior to leasing any part of a residential dwelling. For various reasons the ordinance was held to be unconstitutional in a declaratory judgment action (Sokolov v Incorporated Vil. of Freeport, 82 Misc 2d 1087), and in 1978 the ordinance was recodified in an attempt by the village to overcome the constitutional difficulties. It is this amended ordinance which is the subject of the present appeal.

The amended ordinance provides, in effect, that no one can let or relet a residence rental property within the Village of Freeport without first obtaining a permit from the village. No permit can issue without an inspection of the premises to determine that the property is “safe, clean, sanitary, in good repair, and free from rodents and vermin”. Permits must be renewed every two years or each time a vacancy occurs, and an owner cannot rerent his property without submitting to an inspection and obtaining certification that the premises are free from all violations. Furthermore, the owners must immediately notify the department of buildings of the village of any vacancies, and the department must thereafter inspect the property within two business days. In the event that the inspection reveals any violations, the department may issue a notice of violations or a notice to vacate the premises. The village may impose a penalty of $250 per day for each day in which a building is occupied without a rental permit. Thus, in substance, a landlord is subject to a fine of $250 per day for failure to consent to a warrantless administrative inspection.

The appellants, owners of rental property within the Village of Freeport, commenced the present action for a declaration that the rental ordinance is unconstitutional. In addition, it appears that each of the appellants is presently being prosecuted in criminal actions in the Freeport Village Justice Court for failure to obtain rental permits under the ordinance. Supreme Court struck down the ordinance on constitutional grounds as being violative of the owners’ Fourth Amendment rights. The Appellate Division reversed, however, on constraint of the decision in Loventhal v City of Mount Vernon (51 AD2d 732). In that case the Appellate Division upheld an apparently similar ordinance, concluding that it did not have the effect of coercing plaintiffs into consenting to warrantless inspections in derogation of their constitutional rights, and that the proposed inspections were not unreasonably intrusive. We reach an opposite conclusion.

In our examination of the constitutionality of the ordinance here involved, we focus primarily on the holding and the principles set forth in Camara v Municipal Ct. (387 US 523). There, the Supreme Court held unconstitutional a San Francisco ordinance which permitted unconsented warrantless inspections of buildings or premises to ensure compliance with the city’s housing code. The court found applicable to that situation the governing principle that “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant” (387 US, at pp 528-529, supra). The question before the court was thus not whether a search could be made, but whether the public interest justified a search without a warrant. Since the governmental purpose behind the search would not be frustrated by the burden of obtaining a warrant, and because administrative searches of the type there at issue involved significant instrusions upon the interests protected by the Fourth Amendment, the court determined that such searches could not be made without the owner’s consent unless a search warrant had first been obtained. Later, in the case of See v City of Seattle (387 US 541), the court held that the warrant procedure and the prohibition against unconsented warrantless entry outlined in Camara would be applicable to private commercial premises. Additionally, in Marshall v Barlow’s Inc. (436 US 307), the court held that Congress could not authorize the unconsented search of the work area of any employment facility within OSHA’s jurisdiction for safety hazards without a warrant. It is against this background that we view the present ordinance.

The search procedure authorized by the Freeport ordinance is, to some extent, distinguishable from those provisions previously interpreted in the case law. First, under the Freeport ordinance a warrantless search is not directly authorized, but instead the ordinance provides that an individual will be subject to criminal penalty if he rents or rerents his premises without first obtaining a permit, which in turn can be obtained only if the property owner consents to an inspection. Second, the occurrence and timing of the inspection is not completely unexpected, since the ordinance provides that the inspection must occur within two business days after the property owner has notified the department of buildings of a vacancy in the rental property. We find these differences to be inconsequential, however, and conclude that the rental permit ordinance of the Village of Freeport is unconstitutional insofar as it effectively authorizes and, indeed, requires a warrantless inspection of residential rental property.

The respondent village has advanced several arguments in an attempt to persuade the court to uphold the constitutionality of the ordinance. Initially, it argues that failure to consent to a warrantless inspection is not punishable under the ordinance, but only the renting of the property without a permit. The village thus infers that any searches which are made under the ordinance are made with the consent of the owner. We find this line of reasoning to be unpersuasive, for through an indirect method the property owner is being penalized for his failure to consent to a warrantless search. In this instance the property owner’s consent is not voluntarily given (see Schneckloth v Bustamonte, 412 US 218), as it is clearly a product of coercion. A property owner cannot be regarded as having voluntarily given his consent to a search where the price he must pay to enjoy his rights under the Constitution is the effective deprivation of any economic benefit from his rental property.

Additionally, we note that the village may not compel the owner’s consent to a warrantless inspection upon the theory that these searches are a burden which a property owner must bear in exchange for the right to open his property to the general public for rental. It is beyond the power of the State to condition an owner’s ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution (see 3 La Fave, Search & Seizure, pp 219-220). The Supreme Court has held, and we think properly so, that “the right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee’s submission to a condition prescribed by the state which is hostile to the provisions of the federal Constitution” (United States v Chicago, etc., R. R. Co., 282 US 311, 328-329).

Respondent village also seeks to justify the ordinance by urging that the intrusion is minimal because any search of the premises will occur while the premises are vacant. This reasoning is equally unpersuasive. First, we observe that although the inspection is ostensibly to occur while the premises are vacant, such an occurrence is by no means a certainty. The ordinance provides that the search must be conducted within two business days after the department of buildings receives notification of a vacancy. It is not uncommon in residential rental, however, that the lease of an occupying tenant may expire on the last day of one month, while the lease of the succeeding tenant, and his occupancy, will commence on the first day of the following month. Thus, there may be in actuality no time during which the premises are vacant and accessible to unobtrusive inspection. Furthermore, even if the premises were vacant during the inspection, there would nevertheless be a serious intrusion upon the interests of the owner deserving of constitutional protection. The interest for which the owner seeks the protection of a warrant is not necessarily the prevention of possible inconvenience to his tenants, but .may be his own interest in “self-protection”, an interest found to be of significant importance in Camara (387 US, at p 531, swpra).

Finally, respondent seeks to justify the inspection procedure by pointing out that the search is not unexpected by the landlord, but is instead anticipatable because it must be undertaken within the two-day period prescribed in the ordinance. In this regard we merely observe that a search which is well publicized and, in fact, expectable nevertheless may be a serious intrusion into the privacy of an individual.

We note also that the result reached in the present situation finds support in the case law of other States interpreting similar ordinances (see Currier v City of Pasadena, 48 Cal App 3d 810; see, also, Wilson v City of Cincinnati, 46 Ohio St 2d 138). An ordinance which compels consent to a warrantless search may not be upheld except in certain carefully limited circumstances.

Although we hold that the rental permit ordinance of the Village of Freeport before us is unconstitutional, we take further note that this holding does no violence to the legitimate code enforcement goals of the village. As was observed in Camara, most citizens will allow inspections of their property without a warrant (387 US 523, swpra). In addition, and of compelling significance, the Camara opinion expressly provided that the strict standards attending the issuance of a warrant in criminal cases are not applicable to the issuance of a warrant authorizing an administrative inspection. Thus, as the court reiterated in See (387 US, at p 545, supra), “[t]he agency’s particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved”. We do not believe, however, that the requirement of a warrant for an administrative inspection is a hollow one. It has been postulated that, among other things, the warrant requirement may prevent inspections based upon caprice or spite and prevent administrative inspections as a pretext for police investigations; and the use of a warrant may also lead to appropriate restrictions on the place to be searched (see 3 La Fave, Search & Seizure, p 194). The minor and infrequent inconvenience which a warrant requirement may create cannot overshadow the substantial benefits which will result to the individual’s dignity and liberty through the preservation of his right to privacy. It must also be emphasized, however, that our holding is not to be construed as preventing prompt inspections in true emergency situations (see Camara v Municipal Ct., 387 US 523, 539, supra).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Nassau County, declaring the ordinance invalid, reinstated.

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

Order reversed, with costs, and the judgment of Supreme Court, Nassau County, reinstated.

      . Nor may it be said that the business of residential rental is of such a nature that consent to a warrantless administrative search may be implied from the choice of the appellants to engage in this business (see United States v Biswell, 406 US 311 [dealer in firearms]; Colonnade Corp. v United States, 397 US 72 [dealer in intoxicating liquor]).

      . In Camara (387 US, at pp 534-539, supra), the court held that a search warrant may authorize an area inspection program based upon an appraisal of conditions in the area as a whole, and that probable cause for the issuance of a warrant authorizing an administrative inspection does not require a demonstration of knowledge of conditions in a particular building. The standards articulated as justifying an area inspection include “the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area” (at p 538). This list is not exhaustive, and we believe that another factor to be considered in justifying a search warrant is whether a residential rental property is being introduced onto the marketplace for the first time, without having undergone prior inspection (see See v City of Seattle, 387 US, at pp 545-546, supra). We emphasize our belief, however, that the likelihood of warrant approval in this latter instance does not justify dispensing with the warrant requirement altogether.

      . The potential danger of capricious enforcement is not absent from the present inspection scheme simply because the ordinance requires a rental permit and an accompanying inspection for all landlords, since the ordinance itself, by providing that the property may be rented if an inspection is not had within two business days of notification to the department of buildings of a vacancy, contemplates that inspections may not necessarily be carried out in all instances.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Sebastian Ventimiglia, Also Known as Benjamin Ventimiglia, Appellant.
    The People of the State of New York, Respondent, v Mario Russo, Appellant.
    Argued February 10, 1981;
    decided March 31, 1981

      POINTS OF COUNSEL

      Irving Anolik for Sebastian Ventimiglia, appellant.
    I. The Trial Judge’s refusal to grant a mistrial after defendant Ardito’s case had been severed, deprived appellant of a fair trial because most of the evidence in the proceedings had been admitted solely against Ardito and it was inevitable that the jury would thereafter utilize that evidence in their deliberations, irrespective of any instruction to the contrary. (United States v Grunewald, 233 F2d 556, 353 US 391; People v Marshall, 306 NY 223; People v Jusino, 10 AD2d 618; People v Taylor, 2 AD2d 977; People v Owens, 22 NY2d 93; United States v Kelly, 349 F2d 720; Kotteakos v United States, 328 US 750; United States v Varelli, 407 F2d 735; United States v Branker, 395 F2d 881.) II. The trial court erred in refusing to marshal the evidence. (People v Rivera, 60 AD2d 852; People v Mabry, 58 AD2d 897; People v Taylor, 45 AD2d 953; People v Bell, 38 NY2d 116; People v Williamson, 40 NY2d 1073; People v Jackson, 39 AD2d 557; People v Miles, 48 AD2d 706.) III. The trial court impermissibly permitted the People to introduce evidence of uncharged crimes and irrelevant evidence of a most gruesome and prejudicial nature. (People v Molineux, 168 NY 264; People v Namer, 309 NY 458; People v Napoletano, 58 AD2d 83; Shepard v United States, 290 US 96; People v Zackowitz, 254 NY 192; People v Jackson, 39 NY2d 64; People v Montanez, 41 NY2d 53; People v Pobliner, 32 NY2d 356; People v Rial, 25 AD2d 28; People v Silverman, 252 App Div 149.) IV. The misconduct of the prosecutor deprived appellant of his State and Federal constitutional rights to due process and to a fair trial. (People v Arce, 42 NY2d 179; People v Baker, 23 NY2d 307; Donnelly v De Christoforo, 416 US 637; People v Matthews, 33 AD 2d 679; People v Migliori, 273 App Div 915; People v Norton, 285 App Div 1165; United States v Lopez, 584 F2d 1175; People v Mirenda, 23 NY2d 439; People v Rogers, 59 AD2d 916; People v Manson, 63 AD2d 686.)

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
    I. The trial court’s denials of the motions for mistrial and severance were correct. (Bruton v United States, 391 US 123; People v Payne, 35 NY2d 22;
      People v Owens, 22 NY2d 93; People v Kampshoff, 53 AD2d 325, 433 US 911; United States v Knife, 592 F2d 472; United States v Milham, 590 F2d 717; United States v Lyles, 593 F2d 182; United States v McPartlin, 595 F2d 1321; United States v Martin, 599 F2d 880; People v Marshall, 306 NY 223.) II. The trial court’s instructions to the jury were correct in all respects. (People v Culhane, 45 NY2d 757; People v Harris, 69 AD2d 843; People v Williamson, 51 AD2d 843; United States v Kahaner, 317 F2d 459, 375 US 836; United States v Caramandi, 415 F Supp 443, 538 F2d 321; United States v Dockery, 417 F2d 330; United States v Lamont, 565 F2d 212, 435 US 914; United States v Armedo-Sarmiento, 545 F2d 785, 430 US 917; People v Goods, 75 AD2d 650; People v Carney, 73 AD2d 972.) III. The testimony as to appellant’s favorite “dumping spot” was properly admitted. (People v Vails, 43 NY2d 364; People v McCray, 60 AD2d 895; People v Sorenson, 70 AD2d 892; People v Willis, 52 AD2d 972; People v Mitchell, 40 AD2d 117; People v Sostre, 70 AD2d 40, 51 NY2d 958.) IV. The real and demonstrative evidence was properly received. (People v Pobliner, 32 NY2d 356; People v De Tore, 34 NY2d 199, cert den sub nom. Wedra v New York, 419 US 1025; People v Arca, 72 AD2d 205; People v McKown, 71 AD2d 730; People v Corbett, 68 AD2d 772; People v Culhane, 45 NY2d 757; People v Sears, 58 AD2d 693; People v Rial, 25 AD2d 28; Public Operating Corp. v Weingart, 257 App Div 379.) V. There was no prosecutorial misconduct. (People v Cole, 54 AD 643; People v Murphy, 53 AD2d 937; People v Brosnan, 32 NY2d 254; People v Shields, 58 AD2d 94, 46 NY2d 764; People v Alovic, 68 AD2d 928; People v Bryant, 67 AD2d 987; People v Utley, 45 NY2d 908; People v Cicchetti, 44 NY2d 803.) VI. Any errors which may have been committed at any stage of the proceeding were harmless, as a matter of law. (People v Crimmins, 36 NY2d 230; People v Cruz, 47 NY2d 838; People v Almestica, 42 NY2d 222.)

      Richard J. Oddo, Mario Melerba and Nicholas R. Canizio for Mario Russo, appellant.
    I. The refusal of the lower court to grant appellant a mistrial after the severance of defendant Ardito deprived appellant of a fair trial and due process of law. (People v Payne, 35 NY2d 22; People v Mallette, 59 AD2d 199; People ex rel. Lehman v Moorehead, 272 NY 531; People v Marshall, 306 NY 223; People v Jusino, 10 AD2d 618; People v Taylor, 2 AD2d 977; People v Owens, 22 NY2d 93; United States v Kelly, 349 F2d 720; United States v Varelli, 407 F2d 735; United States v Branker, 395 F2d 881.) II. Appellant was deprived of a fair trial and due process of law by the admission of a mass of irrelevant and prejudicial testimony and exhibits. (People v Sandoval, 34 NY2d 371; People v Harris, 136 NY 423; Pierson v People, 79 NY 424; Shepard v United States, 290 US 96; United States v Check, 582 F2d 668; United States v San Juan, 545 F2d 314; People v Vails, 43 NY2d 364; People v Fiore, 34 NY2d 81; People v Grutz, 212 NY 72; People v Formato, 286 App Div 357.) III. The misconduct of the prosecutor deprived appellant of his State and Federal constitutional rights to due process and to a fair trial. (People v Arce, 42 NY2d 179; People v Hetenyi, 304 NY 80; People v Burton, 46 AD2d 774; Desmond v United States, 345 F2d 225; Griffin v California, 380 US 609; People v Ashwal, 39 NY2d 105.) IV. The lower court committed numerous errors of omission and commission in its charge to the jury. (People v Williamson, 51 AD2d 843; Schaffer v United States, 362 US 511; People v Salemi, 309 NY 208; People v Bell, 38 NY2d 116; People v Corey, 157 NY 332; People v Rodriquez, 61 AD2d 914; People v Mabry, 58 AD2d 897; People v Mussenden, 308 NY 558; Keeble v United States, 412 US 205.)

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
    I. The trial court’s denials of the motions for mistrial and severance were correct. (Bruton v United States, 391 US 123; People v Payne, 35 NY2d 22; People v Owens, 22 NY2d 93; People v Kampshoff, 53 AD2d 325, 433 US 911; United States v Knife, 592 F2d 472; United States v Milham, 590 F2d 717; United States v Lyles, 593 F2d 182; United States v Davis, 597 F2d 648; United States v McPartlin, 595 F2d 1321; United States v Martin, 599 F2d 880.) II. The testimony as to appellant’s favorite “dumping spot” was properly admitted. (People v Vails, 43 NY2d 364; People v McCray, 60 AD2d 895; People v Sorenson, 70 AD2d 892; People v Willis, 52 AD2d 972; People v Mitchell, 40 AD2d 117; People v Sostre, 70 AD2d 40, 51 NY2d 958.) III. The real and demonstrative evidence was properly received. (People v Pobliner, 32 NY 2d 356; People v De Tore, 34 NY2d 199, cert den sub nom. Wedra v New York, 419 US 1025; People v Arca, 72 AD 2d 205; People v McKown, 71 AD2d 730; People v Caprio, 47 AD2d 1; People v Hampton, 38 AD2d 772; People v Corbett, 68 AD2d 772; People v Culhane, 45 NY2d 757; People v Sears, 58 AD2d 693; People v Rial, 25 AD2d 28.) IV. There was no prosecutorial misconduct. (People v Cole, 54 AD2d 643; People v Murphy, 53 AD2d 937; People v Brosnan, 32 NY2d 254; People v Shields, 58 AD2d 94; People v Alovic, 68 AD2d 928; People v Bryant, 67 AD2d 987; People v Williams, 46 NY2d 1070; People v Utley, 45 NY2d 908; People v Cicchetti, 44 NY2d 803.) V. The trial court’s instructions to the jury were correct in all respects. (People v Culhane, 45 NY2d 757; People v Williamson, 51 AD2d 843; United States v Caramandi, 415 F Supp 443, 538 F2d 321; United States v Dockery, 417 F2d 330; United States v Lamont, 565 F2d 212, 435 US 914; United States v Armedo-Sarmiento, 545 F2d 785; People v Goods, 75 AD2d 650; People v Carney, 73 AD2d 972; People v Williams, 75 AD2d 717; People v Rivera, 69 AD2d 868; People v Vargas, 74 AD2d 859.) VI. Any errors which may have been committed at any stage of the proceeding were harmless, as a matter of law. (People v Crimmins, 36 NY2d 230; People v Cruz, 47 NY2d 838; People v Almestica, 42 NY2d 222.)
   OPINION OF THE COURT

Meyer, J.

Where defendants charged with murder, kidnapping and conspiracy have stated as part of their planning that they have a place for disposing of the body “where we put people * * * and they haven’t found them for weeks and months”, the statement is admissible because its probative value as to premeditation of the murder and as to the plan of the conspiracy outweighs the prejudice resulting from the admission implicit in the statement that defendants have committed prior murders. In view of the potential for prejudice in such testimony, however, a prosecutor who intends to adduce it before the jury should first obtain a ruling from the Trial Judge by offering the testimony out of the presence of the jury, and the Trial Judge should exclude any part of it that is not directly probative of the crimes charged. While that was not done in. the instant case the portion of the statement that may have been excluded had it been done is essentially cumulative of the part which was admissible. That being so, and the other contentions urged by defendants not constituting grounds for reversal, either because not preserved, not error or not an abuse of discretion, the order of the Appellate Division affirming their convictions should be affirmed.

Defendants were indicted together with Victoria Ardito and charged with the murder of her lover, Benjamin Mattana. The theory of the prosecution was that Ardito had hired defendants to kill Mattana because he was about to leave her for another woman. During trial Ardito became incompetent to stand trial, and the case against her was severed.

The prime witness for the prosecution was John Dellacona, who claimed that he had been impressed into service by defendants who made him their driver. He gave a complete account of the events leading up to the murder of Benjamin Mattana, which took place in the early morning hours of April 28,1976. According to Dellacona, Ardito had agreed to lend him money and had instructed him to meet her at 7:30 p.M. on April 27, 1976 at Exit 19 of the Southern State Parkway. At the meeting place Dellacona found not only Ardito but also defendants Ventimiglia and Russo. Together they drove to the parking lot of a nearby bowling alley, where defendants made clear to Dellacona that he was to participate in a murder and that his participation was not a voluntary matter.

Benjamin Mattana operated a motorcycle shop, in Lynbrook. Dellacona testified that Ventimiglia first made a short trip from the bowling alley to the motorcycle shop in order to decide whether the murder could be accomplished there. Concluding that the shop was too busy, Ventimiglia returned to the bowling alley parking lot and together Dellacona, Ventimiglia, Russo and Ardito departed for Mattana’s residence in Lloyd Harbor.

At trial Dellacona gave detailed testimony about discussions between the defendants as to who was to kill Mattana and where and how it was to be done. Because Ardito did not want Mattana killed in the house, they devised a plan whereby Mattana would be taken to a desolate area where the murder would go unnoticed. The plan was for defendants to hide in Mattana’s house until he came home and retired for the evening with Ardito, then burst into the bedroom and, pretending that their only purpose was to rob the safe in Mattana’s motorcycle shop, to demand the keys to the shop and the combination of the safe. Russo was then to “force” Ardito to accompany him to the shop, while Ventimiglia remained at the house with Mattana. After opening the safe and removing its contents, Russo was to call Ventimiglia at Mattana’s house and inform him that the safe would not open, after which Ventimiglia would instruct them to return to the house so that Ventimiglia and Russo could take Mattana back to the motorcycle shop and force him to open the safe. The latter statement would, of course, be mere pretext; Mattana was to be taken from his house to be murdered.

Dellacona’s recitation of the discussion between and with defendants concerning where the murder was to take place is the subject of this appeal. As ultimately detailed before the jury it was as follows: “Benny said that they would take him [Mattana] to ‘their spot’. Mario said, ‘Yeah, it’s a good idea, we’ll take him over there.’ I had said, ‘You mean you done it before?’ and Benny said, ‘Yeah, we did it before.’ Mario said, ‘Yeah, just a couple of times’ and like snickered. Ben then said to me, ‘Junior, we have a spot over by — you know where the Belt Parkway is?’ I said, ‘Yeah’. He said, ‘Right over there by the dumps, we have a spot where we put people there and they haven’t found them for weeks and months.’ ”

Defendants objected that “testimony of another alleged murder committed by Mr. Russo and Mr. Ventimiglia” was inadmissible and moved for a mistrial. Conceding that the statements were declarations by defendants implying a prior crime, the District Attorney argued that they were nevertheless admissible because they showed that the reason the defendants had chosen to commit the murder in the particular spot they did, some 30 miles from Mattana’s home, was the possibility that his body would decompose before it could be discovered, that the statements related to the “where, why and how the murder was committed in the very remote section * * * where * * * it was carried out.” The Trial Judge overruled the objection not only when first made, but also when repeated as part of a motion for a mistrial at the end of the People’s case and when at the jury’s request the testimony was reread to them during deliberation.

The remainder of the testimony need not be detailed, except to note, that Dallacona’s account of what actually happened thereafter showed that while the events did not occur exactly as planned, the essentials of the plan were carried out. Dellacona drove the group to Howard Beach, where Mattana was ordered out of the car and led into the tall weeds of the marshes bordering Jamaica Bay. Dellacona heard several “pops” coming from the direction of the weeds, and when Ventimiglia returned he related that Mattana had tried to escape and it had taken several bullets to kill him. Evidence from other witnesses corroborative of Dellacona’s testimony was also presented. The jury found defendants guilty of second degree murder, first degree kidnapping and first degree conspiracy and the Appellate Division affirmed.

The rule excluding evidence of uncharged crimes is based upon the human tendency more readily “to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” (People v Molineux, 168 NY 264, 313; People v Allweiss, 48 NY2d 40, 47; see People v Zackowitz, 254 NY 192, 198) and is intended to eliminate the danger that a jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged.

The rule is not an absolute, however. Its policy of protection against potential prejudice gives way when evidence of prior crime is probative of the crime now charged (People v Allweiss, supra; People v Vails, 43 NY2d 364; People v Jackson, 39 NY2d 64). There is no litmus paper test for determining when the probative value of the evidence outweighs its potential for prejudice. Attempts to categorize situations in which evidence of prior crime is admissible have yielded Molineux’ well-known listing (168 NY, at p 293) of “(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial”, but even that listing is acknowledged to be “merely illustrative” (People v Vails, supra, at p 368) and “not exhaustive” (People v Santarelli, 49 NY2d 241, 248) or capable of statement with “categorical precision” (People v Molineux, supra, at p 293).

Efforts to quantify the degree of probativeness necessary for admission establish that the evidence must be of more than “slight value” (People v Allweiss, supra, at p 47), but the authorities are not in agreement concerning whether it must be “highly probative” (id., at pp 47 and 49), simply “directly probative” (People v Vails, supra, at p 368; People v Jackson, supra, at p 68), or “substantially relevant” (McCormick, Evidence [2d ed], § 190, p 447), phrases which are themselves not entirely distinguishable. In final analysis the process is one of balancing in which both the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other (People v Santarelli, supra; People v Allweiss, supra). Factors which play a part in measuring probative value are “the degree to which the evidence persuades the trier of fact that the particular fact exists and the [logical] distance of the particular fact from the ultimate issues of the case” (Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So Cal L Rev 220, 233). Further, as the Supreme Court of California noted in People v Stanley (67 Cal 2d 812, 818-819): “On the issue of probative value, materiality and necessity are important. The court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered, that it is offered on an issue material to the prosecution’s case, and is not merely cumulative.” Important in the weighing process will also be how the evidence comes into the case, that is, whether at the instance of the People initially, or in rebuttal to a defense offered by defendant (People v Tas, 51 NY2d 915; People v Santarelli, supra; see People v Allweiss, supra).

Against that background, the first two and last two sentences of the testimony here in issue were unquestionably admissible. The crimes with which defendants were charged included intentional murder and conspiracy. The first two sentences constitute direct evidence of agreement between Russo and Ventimiglia, but not of an agreement to kill. The last two sentences made clear that defendants had agreed to take Mattana to their “spot” at Howard Beach for one reason only: to kill him. Together the four sentences bore directly on issues material to the prosecution’s case: that there was an agreement between Russo arid Ventimiglia and that the agreement was to kill and to do so in a way that might avoid discovery. Recounting as they did defendants’ admissions as to what they planned and why, the four sentences compellingly demonstrate both premeditation and conspiracy to murder. Moreover, the prosecutor’s reference to the “where, why and how the murder was committed in the very remote section” where it was, while not including the words “premeditation” and “agreement”, sufficiently presented the purposes for which the testimony was offered as the purposes for which we now hold the Trial Judge correctly admitted it, to withstand defendants’ argument (predicated on the holding of People v Zackowitz, 254 NY 192, 199-200, supra) that to sustain admission of the evidence is to treat them unfairly. Because the sentences referred to were directly related to ultimate issues in the case and as admissions by defendants were strongly persuasive and, therefore, not merely cumulative, we conclude that the Trial Judge did not err in admitting them.

Considered separately the third and fourth sentences of the testimoriy quoted above refer only to prior killings by defendants and should have been excluded because not relevant to or in any way probative of the charges being tried. The Trial Judge may have regarded them as “inextricably interwoven” in the conversation Dellacona was reciting within the meaning of People v Vails (43 NY2d 364, 368, supra), but the Vails holding does not make evidence admissible simply because it is a part of conversation other parts of which are admissible. To be inextricably interwoven in the Vails sense the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence. Here the third and fourth sentences were unnecessary to an understanding of the other parts of the testimony and should therefore, have been excluded. The error is not reversible, however, because the necessary implication of the fifth and sixth sentences put before the jury the fact that defendants had murdered more than once before (“we put people there and they haven’t found them for weeks and months” [emphasis supplied]).

While that disposes of the issues on this appeal, we deem it proper to add some thoughts concerning the procedure to be followed in cases involving potentially prejudicial testimony such as that considered above. In People v Santarelli (49 NY2d 241, 249, supra), we noted the particularity with which a Trial Judge should evaluate (indeed, parse would be a better word) such evidence. When a prosecutor, knowing that such evidence is to be presented, waits until objection is made when it is offered during trial before informing the court of the basis upon which he considers it to be admissible, there is unfairness to the defendant, even if his objection is sustained, in view of the questionable effectivness of cautionary instructions in removing prior crime evidence from consideration by the jurors. There is, moreover, a greater probability of error, and consequent waste of scarce judicial resources, when evidentiary rulings are made during trial than in the more relaxed atmosphere of an inquiry out of the presence of the jury. Whether some time prior to trial, just before the trial begins or just before the witness testifies will depend upon the circumstances of the particular case, but at one of those times the prosecutor should ask for a ruling out of the presence of the jury at which the evidence to be produced can be detailed to the court, either as an offer of proof by counsel or, preferably, by presenting the live testimony of the witness (Dolan, op. cit., supra, 49 So Cal L Rev, at p 255; Rothblatt and Leroy, The Motion in Limine in Criminal Trials: A Technique for the Pretrial Exclusion of Prejudicial Evidence, 60 Ky LJ 611; Ann., 63 ALR3d 311). The court should then assess how the evidence came into the case and the relevance and probativeness of, and necessity for it against its prejudicial effect, and either admit or exclude it in total, or admit it without the prejudicial parts when that can be done without distortion of its meaning (Dolan, op. cit., supra, at pp 254-255).

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

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

In each case: Order affirmed.

      . Denial of a mistrial after severing the trial as to defendant Ardito was not error in view of the fact that much of the testimony as to her did not relate to defendants and of the Trial Judge’s careful instructions to the jury as to what testimony should be excluded. Admission of the photographs, shirt and telephone chart were well within discretionary bounds. The reference in the prosecutor’s summation to defendants’ privilege not to testify was rendered harmless, both defendants having specifically requested the Trial Judge to charge that the jury could draw no inference from their not testifying (CPL 300.10, subd 2). Other claimed errors concerning the prosecutor’s summation and the court’s charge either were not preserved or are groundless.

      . Defendant Ventimiglia is also known as Benjamin Ventimiglia and was referred to throughout Dellacona’s testimony as Benny or Ben. The “spot” referred to was shown by later testimony to be located at Howard Beach.