text:
    The People of the State of New York, Respondent, v John L. Darby, Appellant.
    Argued January 9, 1990;
    decided February 20, 1990

      POINTS OF COUNSEL

      J. Scott Porter, Gerald T. Barth and James P. Maxwell for appellant.

      Robert E. Wildridge, District Attorney (Donna M. Cathy of counsel), for respondent. I. Appellant was given a fair opportunity to examine the jurors.
   OPINION OF THE COURT

Bellacosa, J.

Defendant, tried with two accomplices, was convicted after a jury trial of multiple counts of burglary and robbery in the first and second degrees, assault in the second degree (two counts), and criminal possession of a weapon. He and four others broke into the home of a woman early one morning and terrorized her by the commission of many crimes against her person and property. They departed with her purse and television set.

Two issues are presented to us: first, whether the trial court committed reversible error requiring a new trial when it did not allow defense counsel to be present for the voir dire hearing — after four witnesses had testified — into possible taint of the impaneled jury; second, whether the District Attorney committed error, requiring dismissal of all charges, in not instructing the Grand Jury with respect to certain controverted evidence.

The voir dire hearing occurred during the course of the trial when a question arose as to whether a potentially prejudicial surmise — an alternate juror expressed concern to the court upon seeing defendant examining papers she thought might contain jurors’ home addresses — and conversation was had among the alternate juror and four other woman jurors. The Trial Justice questioned the alternate in Chambers with the prosecutor and defense counsel present. The trial court, however, proceeded to inquire of the other four sitting jurors with no attorneys or parties present, over defense counsel’s objection as to his exclusion. The alternate juror was ultimately excused. The trial court concluded, however, that the other four jurors remained qualified and the trial continued to verdict and conviction.

The Appellate Division, in affirming the judgment of conviction, addressed the voir dire issue and reasoned that because the actual presence of a defendant has been held dispensable in certain circumstances at such a hearing (People v Mullen, 44 NY2d 1), so too is the presence of defense counsel excusable where, as that court phrased it, the hearing was "evenhanded and not prejudicial.” (People v Boatman, 147 AD2d 912, 913 [codefendants].) The court appears to have rejected the Grand Jury instruction claim as being "without merit”.

We cannot agree with the Appellate Division’s rationale or result on the voir dire issue. The fundamental unfairness to defendant by the exclusion of his counsel from this relevant inquiry is evident from the inherently speculative nature of the impact on those four jurors. For that reason, we reverse and order a new trial.

CPL 260.20 requires that "[a] defendant must be personally present during the trial of an indictment”. In People v Mullen (44 NY2d 1, supra), we held that in camera questioning of a juror was not a "material part” of a trial requiring the personal presence of defendant, reasoning, however, that the presence of defense counsel at the inquiry was "sufficient to afford the defendant a 'fair and just hearing.’ ” (Id., at 6, quoting Snyder v Massachusetts, 291 US 97, 108.)

By holding here that under Mullen nothing less than counsel’s presence will suffice in these circumstances, we need decide no more in this case. While greater safeguards may be desirable or even eventually held to be required depending on some future particular fact pattern, it is unnecessary, because of the narrowness of the defense objection and its determinative impact on this case, to express any additional views to resolve this case (see, however, e.g., People v Buford, 69 NY2d 290, 299 [which, in holding that a juror was not "grossly unqualified” and should not have been discharged over defendant’s objection under CPL 270.35, commented that a defendant as well as the attorney should be present at an in camera hearing to determine that question]).

We believe and conclude that an inquiry to determine the existence and extent of prejudice affecting the gross disqualification of a sworn juror — here, 4 of 12 — is inextricably related to defendant’s entitlement to a fair hearing (see, People v Mullen, 44 NY2d, supra, at 6). Therefore, the unique, indispensable presence of at least the "single-minded counsel for the accused” (People v Rosario, 9 NY2d 286, 290) is minimally necessary to safeguard that fundamental fairness to defendant, who will be judged as to his charged criminal conduct by a jury selected with his approval and participation.

We agree with the Appellate Division, however, that defendant’s second argument addressed to the instructions to the Grand Jury is unavailing. Defendant, in testimony before the Grand Jury and at a later Huntley hearing, claimed his inculpatory statement was coerced. The Huntley hearing court ultimately ruled it was voluntary and admissible. Defendant nevertheless now contends that the District Attorney’s failure to instruct the grand jurors that a statement may turn out to be inadmissible infected the Grand Jury proceeding to the point that its "integrity [was] impaired” and requires the dismissal of the indictment. CPL 210.35 (5) provides: "A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when * * * [t]he proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result. ” (Emphasis added.) The dissenting-in-part opinion accepts that proposition as applicable here and would dismiss the indictment entirely. We disagree because neither the demanding test, nor the policies underlying it, nor the facts and evidence of this case warrant the final plenary remedy of dismissal of this criminal proceeding.

"[A] Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law.” (People v Calbud, Inc., 49 NY2d 389, 394.) The separate and distinct standards of instruction applicable to the issue are further made clear by CPL 190.30 (7): "Whenever it is provided in article sixty that a court presiding at á jury trial must instruct the jury with respect to the significance, legal effect or evaluation of evidence, the district attorney, in an equivalent situation in a grand jury proceeding, may so instruct the grand jury.” (Emphasis added.)

Here, defendant’s statement was ultimately admitted into evidence at trial after it was determined the statement was voluntary and a product of "a knowing, voluntary and intelligent waiver of his constitutional rights.” To adopt the standard urged by defendant and award him a dismissal of all charges on this argument would be particularly ironic in view of those developments. But more significantly, the adoption and application of this generalized standard in this case would invert retrospectively the well-established and well-founded instructional requirements for Grand Juries and would supplant the unquestionably high prong of "impairment of integrity” of the Grand Jury process without even addressing the additional prejudice prong. This case does not come anywhere near satisfying the statute’s high test and qualifying for its exceptional remedy (CPL 210.35 [5]).

The dissent-in-part complains that without such a result the Grand Jury proceeding in this case becomes "skewed” for lack of the particular evidentiary instruction. But this misses the point of the statutory test, which does not turn on mere flaw, error or skewing. The statutory test is very precise and very high: "impairment of integrity” of the Grand Jury process. It has not been met here.

We find it difficult to understand, in any event, how a third procedural litigation of the issue of voluntariness of a statement — which would be routinized now at the Grand Jury stage — advances fairness and justice generally or to this defendant. Defendant necessarily, appropriately and ultimately had his Huntley hearing to contest the voluntariness issue and he lost. He was also allowed by law to raise the issue a second time at the trial (CPL 60.45). Only if the very high hurdle of impairment of the integrity of the Grand Jury process, plus prejudice, is met, can it then be said that an additional evaluation of that issue should have been presented to the Grand Jury in the first instance. To rule otherwise would make the exceptional routine and without a valid justification.

Finally, the dissent-in-part finds some support for its view on this issue in People v Batashure (75 NY2d 306 [decided today]). That case, however, deals with arrogation by a prosecutor of authority reposed in the Grand Jury. It does not turn on or focus on the assertion of a particularized evidentiary instruction. We conclude in this case, in any event, that it was not even error because accomplice evidence does not have to be "ironclad” but rather only minimal. Thus, People v Batashure (supra) seems beside the point in this case on the pertinent issue.

Accordingly, because error was committed in excluding defendant’s counsel from the voir dire examination of sitting jurors, the order of the Appellate Division should be reversed and a new trial ordered.

Titone, J.

(concurring in part and dissenting in part). Although I agree that the conviction in this case must be reversed, I cannot concur in the majority’s rationale, which rests not on the State statutory right to be present during "material parts” of the trial (CPL 260.20; see, People ex rel. Bartlam v Murphy, 9 NY2d 550; Maurer v People, 43 NY 1) but rather on the more fundamental right of a defendant to be present, but only in circumstances "where his absence would have a substantial effect on his ability to defend.” (People v Mullen, 44 NY2d 1, 5, citing Snyder v Massachusetts, 291 US 97, 105-106.) Since the latter right has heretofore been treated strictly as an aspect of a defendant’s due process rights under the Federal Constitution (see, People v Mullen, supra, at 5, citing Snyder v Massachusetts, supra; People ex retl. Bartlam v Murphy, supra), I cannot subscribe to an analysis that fails to come to grips with United States v Gagnon (470 US 522) and Rushen v Spain (464 US 114), two recent decisions drastically constricting the scope and effect of the Federal right. On this record, however, I find no need to set forth in detail my own. independent analysis of the problem addressed by the majority’s writing. In my view, an entirely separate ground for reversal exists because of the trial court’s refusal to dismiss the indictment before trial on the ground that the prosecutor’s legal instructions to the Grand Jury were fatally flawed.

Before the applicable legal principles may be considered, a brief review of the facts underlying the issue is required. The charges against defendant stemmed from a five-man robbery and brutal assault against a middle-aged woman. Although there was some evidence other than accomplice testimony connecting defendant to the crime, this evidence was not ironclad and, consequently, defendant’s identity as one of the perpetrators was clearly one of the factual issues for the Grand Jury to resolve. In this regard, one of the most significant pieces of evidence that were placed before the Grand Jury was a station house statement by defendant in which he admitted to having been present at the scene of the crime. The validity of this bit of evidence was directly called into question, however, by defendant’s own testimony before the Grand Jury concerning the alleged threats of serious violence by police that were used to elicit the station house statement. Despite this controversy over the statement, the prosecutor failed to instruct the Grand Jury on the inadmissibility of statements that are found to be involuntary. This omission was particularly puzzling because the Grand Jury was given clear and adequate instructions on the need for corroboration of accomplice testimony (see, CPL 60.22).

Turning to the applicable legal principles, I begin with People v Calbud, Inc. (49 NY2d 389), in which the standard for reviewing the quality of Grand Jury instructions was discussed. In that case, the court said: "We deem it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime.” (Id., at 394-395 [emphasis supplied]; see also, People v Goetz, 68 NY2d 96.) After establishing this relatively lenient standard, the court nonetheless went on to caution that the Grand Jury’s integrity might well be deemed impaired within the meaning of CPL 210.35 (5) "[w]hen the District Attorney’s instructions to the Grand Jury are so incomplete * * * as to substantially undermine [the Grand Jury’s] function” (People v Calbud, Inc., 49 NY2d, at 396, supra). It seems to me that this language is directly applicable here.

It is now beyond dispute that one of the Grand Jury’s fundamental functions is to determine whether there is legally sufficient evidence to support a particular criminal charge (CPL 190.65 [1] [a]; see, People v Batashure, 75 NY2d 306 [decided today]; see also, People v Jennings, 69 NY2d 103, 115). Indeed, in People v Calbud, Inc. (49 NY2d, at 394, supra [emphasis supplied]), the court stated that "[t]he primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a [particular] crime”. Further, in the first instance, it is the Grand Jury’s exclusive right to determine whether there is "reasonable cause to believe” that the charged crimes were committed by the accused (CPL 190.65 [1] [b]; see, People v Deegan, 69 NY2d 976, 979; People v Jennings, 69 NY2d, at 114-115, supra).

Legally sufficient evidence means "competent evidence which, if accepted as true, would establish every element of an offense charged” (CPL 70.10 [1]). It goes without saying that evidence obtained in violation of the defendant’s constitutional rights is not "competent” evidence within this definition (see, People v Huntley, 15 NY2d 72).

Thus, in order for the Grand Jury to perform its essential function in a case involving a seriously contested confession or admission, that body must be told by its legal advisor, the District Attorney, that the confession or admission cannot be used as part of the People’s direct case if found involuntary (see, People v Valles, 62 NY2d 36, 38 ["(t)he District Attorney is required to instruct the Grand Jury on the law with respect to the matters before it”]). Such an instruction, which is standard fare for petit juries (see, People v Huntley, supra), is necessary to enable the Grand Jury realistically to evaluate the People’s proffered evidence and to determine whether the legal sufficiency standard has been, or can be, satisfied.

Without such an instruction, the Grand Jury cannot properly determine the significance, if any, to be assigned to the testifying defendant’s claims that his statement was coerced. Moreover, in cases where the Grand Jury elects to credit the defendant’s claims of coercion, the absence of a proper instruction deprives the Grand Jury of the all-important knowledge that the sufficiency of the People’s case must now be assessed completely without regard to the statement. The net result is that the Grand Jury’s "essential function” is "substantially undermined,” and "it may fairly be said that the integrity of that body has been impaired”, requiring dismissal under CPL 210.35 (5) (People v Calbud, Inc., supra, at 396).

Finally, the fact that the Huntley hearing court in this case ultimately rejected defendant’s claims and found his station house statement to be voluntary does not cure the defect in the Grand Jury proceedings or otherwise vitiate the need for reversal. The issue here does not concern the sufficiency of the evidence before the Grand Jury or the propriety of admitting defendant’s station house statement — questions which may well be rendered moot by the subsequent determinations of an appropriate fact finder (see, People v Oakley, 28 NY2d 309; People v Valinoti, 26 NY2d 553, 557; People v Nitzberg, 289 NY 523, 529-530). Rather, the dispute concerns an impairment of the process by which the Grand Jury reached its decision to indict. If, as I believe, this process was improperly skewed by the omission of critical legal instructions, then defendant’s basic constitutional right to the intercession of an informed Grand Jury was abridged (NY Const, art I, § 6; see, People v Iannone, 45 NY2d 589), and the strength and/or subsequently determined admissibility of the evidence before the Grand Jury is irrelevant.

For that reason, I vote to reverse the order of the Appellate Division and dismiss the indictment.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Hancock, Jr., concur with Judge Bellacosa; Judge Titone concurs in part and dissents in part and votes to reverse and dismiss the indictment in a separate opinion.

Order reversed, etc.

       The Rushen case (464 US 114) is particularly important here because it treated an in camera inquiry conducted in the absence of the defendant and defense counsel as subject to harmless error analysis.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of the Association of Secretaries to Justices of the Supreme and Surrogate’s Courts in the City of New York, Respondent-Appellant, v Office of Court Administration of the State of New York et al., Appellants-Respondents, et al., Defendants. In the Matter of the New York State Court Clerks Association et al., Respondents, v Harry G. Himber et al., Constituting the Classification Review Board of the Unified Court System of the State of New York, et al., Appellants.
    Argued February 13, 1990;
    decided March 27, 1990

      POINTS OF COUNSEL

      Michael Colodner, John Eiseman and Patricia P. Satterfield for Office of Court Administration and another, appellants-respondents in the first above-entitled matter.

      Robert Abrams, Attorney-General (Lillian Z. Cohen, O. Peter Sherwood and Lawrence S. Kahn of counsel), for Classification Review Board, appellant-respondent in the first above-entitled matter.

      David Rosenberg and Laurie L. Lau for respondent-appellant in the first above-entitled matter.

      Nancy E. Hoffman and Marilyn S. Dymond for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae in the first above-entitled matter.

      Robert Abrams, Attorney-General (Lillian Z. Cohen, O. Peter Sherwood and Lawrence S. Kahn of counsel), for Harry G. Himber and others, appellants in the second above-entitled matter.

      Michael Colodner, John Eiseman and Barbara Zahler-Gringer for Chief Administrative Judge, appellant in the second above-entitled matter.

      Owen McGivern, Paul A. Crotty and Kent E. Frankstone for New York State Court Clerks Association, respondent in the second above-entitled matter.

      Joyce M. Ward, pro se, amicus curiae in the second above-entitled matter.
   OPINION OF THE COURT

Simons, J.

These proceedings arise out of the classification of positions and allocation of salary grades for: (1) secretaries working for Judges in trial and appellate courts and (2) clerks in those courts. In each case, the Chief Administrative Judge had differentiated between employees at different court levels. On appeal, the Classification Review Board (the Board) confirmed the Chief Administrative Judge’s classifications for secretaries but modified the order for clerks, directing that trial and appellate clerks be classified the same. These article 78 proceedings were instituted by employee organizations and the Chief Administrative Judge challenging various parts of the Board’s decisions. For the reasons which follow, we conclude that the Board’s decisions concerning the classifications in both matters were rational. The appropriate remedy in the secretaries’ case is reinstatement of the Board’s determination and in the clerks’ case, remittal to the Chief Administrator for reclassification and allocation of the clerks’ positions.

I

In 1976 the Legislature enacted the Unified Court Budget Act by which the State assumed the responsibility for local court costs and transferred approximately 8,500 locally paid court employees to the State payroll (L 1976, ch 966, as amended; now codified as Judiciary Law § 39). Subdivision (8) (a) of section 39 authorized the Administrative Board of the Judicial Conference to "adopt a classification structure for all non-judicial officers and employees * * * of the state of New York” and required that their positions be classified according to "duties required to be performed in title”, "responsibilities of the position” and the "volume of work in the court or court-related agency in which the position exists.” The Administrative Board of the Judicial Conference was subsequently abolished by constitutional amendment in November 1977 and its powers were assumed by the Chief Judge of the Court of Appeals (NY Const, art VI, § 28 [b]). He became the chief judicial officer of the State and, with the advice and consent of the Administrative Board of the Courts (consisting of the Chief Judge and the Presiding Justices of the four Appellate Divisions), now appoints a Chief Administrator to "supervise the administration and operation of the unified court system” (NY Const, art VI, § 28 [a], [b]). By administrative order dated May 28, 1979, the Chief Administrator (CAJ) adopted a new Classification Plan for all nonjudicial employees in the Unified Court System. It classified each nonjudicial position to a new Unified Court System title and established standards for the duties and responsibilities of the titles and the knowledge, skills and abilities required to perform those duties and responsibilities. Each title was then allocated to a salary grade, retroactive to April 1, 1977.

Concurrent with the establishment of the new Plan, the Chief Judge created a comprehensive appeal procedure which authorizes aggrieved employees to seek review by the CAJ (see, 22 NYCRR 25.41 [a]) and if dissatisfied after that review, to appeal to an independent three-member Classification Review Board composed of classification experts from outside the judicial branch (see, 22 NYCRR 25.41 [b]). The Board is authorized to reverse or modify a classification of the CAJ found to be "unjust and inequitable” (Administrative Order of Chief Administrative Judge, 80/9, Jan. 11, 1980; Matter of Bellacosa v Classification Review Bd., 72 NY2d 383, 390). Its determinations are administrative orders subject to judicial review in an article 78 proceeding brought by an aggrieved employee, an employee organization or the CAJ (22 NYCRR 25.41 [e]). Unlike the standard of review of the CAJ’s decision, which the Board may reverse or modify if it is "unjust and inequitable” (see, Matter of Bellacosa v Classification Review Bd., 72 NY2d 383, 390, supra), the Board’s determination will not be disturbed by the courts unless it is arbitrary or irrational (Cove v Sise, 71 NY2d 910, 912).

With that background we turn to the two proceedings before us.

II

The Secretaries’ Case

Historically, secretaries to Appellate Division Justices were State employees occupying State salary grades and personal secretaries to Judges in trial-level courts were ungraded and paid pursuant to local contracts. Under the Plan all secretaries to Supreme Court Justices, Surrogates, and Appellate Term Justices in New York City were classified into three titles and allocated salary grades as follows: personal secretaries to Justices of the Supreme Court, Judges of the Court of Claims and Judges of the larger Family, County and Surrogate’s Courts were classified as Senior Secretary to Judge (JG-17); secretaries working for Administrative Judges were classified as Principal Secretary to Judge (JG-19); secretaries to Appellate Division Justices were classified as Secretary to Appellate Division Justice (JG-21).

Petitioner, the Association of Secretaries to Justices of the Supreme and Surrogate’s Courts in the City of New York (Secretaries) appealed these classifications and salary allocations to the CAJ. He denied the appeals and the Secretaries then filed appeals to the Board. They contended that Senior Secretaries should be elevated to the Principal Secretary title because of the equivalence in their work or, in the alternative, that all secretarial titles should be allocated to the highest secretarial grade, JG-25.

The Board upheld the CAJ’s classification and allocation of salary grades and dismissed the appeal. It ruled that the Secretaries had failed to demonstrate that personal secretaries who were reclassified to the title of Senior Secretary to Judge performed duties that were equivalent to the duties performed by those personal secretaries who served administrative Judges, classified to the higher title of Principal Secretary to Judge. The Board found that the administrative duties of a Principal Secretary to Judge "were substantially broader in scope and more demanding than those of Secretaries to Supreme Court Justices not so assigned” (Board Administrative Order 86-34, May 29, 1986, at 16). The Board also rejected the Secretaries’ claims that all secretaries are equivalent and should be allocated to JG-25, stating, "Q]ust as there are differences in levels of judges, it seems only reasonable that there be differences in levels of their personal secretaries.” These differences were found to be reflected in "the degree of sensitivity, importance or criticality within the court system of the judgments the secretary must make and the matters he or she deals with, and which impact on the programs or activities for which the judge is responsible” (id., at 17).

Upon reconsideration, the Board rejected the Secretaries’ claim that its failure to modify the Plan and reclassify all of its members to JG-21, the salary grade of the Secretary to Appellate Division Justice title, was contrary to its earlier decision in Matter of Law Assistants Assn. (Board Administrative Order 82-1). The Board noted that Matter of Law Assistants Assn., in which it directed the upward reclassification of trial level law assistants to the same salary grades as appellate level law assistants, did not presume a similar finding with respect to all nonjudicial employees.

Petitioner then commenced this article 78 proceeding to set aside the Board’s decision. Supreme Court granted the petition finding that the Board’s determination was "arbitrary and capricious * * * insofar as the members of the Association were graded lower than the Secretaries to Appellate Division Justices.” It held that the Board, which had previously rejected classifications based on "criticality” of function involving law assistants in the Supreme Court and Appellate Divisions in Matter of Law Assistants Assn., acted "contrary to law” in recognizing such distinctions between the trial level and appellate level secretaries. Instead of remanding the matter to the Board, the court directed the reallocation of petitioner’s titles from judicial salary grades JG-17 and JG-19 to the salary grade allocated to Secretaries to Justices in the Supreme Court, Appellate Division (JG-21) and remanded the matter to respondent Office of Court Administration for action consistent with its decision.

The Appellate Division modified by affirming the annulment of the Board’s determination, but it deleted the directive that the secretaries’ titles be reallocated to salary grade JG-21, reasoning that this court’s decision in Matter of Bellacosa v Classification Review Bd. (72 NY2d 383, supra) required a remand to the CAJ for a determination of the salary grade to be allocated to the three positions. We granted the motion of respondent Board and the cross motion of petitioner association for leave to appeal.

The CAJ and the Board contend that there is a rational basis in the record for the Board’s determination upholding the classification of different titles for personal secretaries to Judges in trial and appellate level courts and, therefore, it should not have been disturbed by the courts below. In its determination, the Board reasoned that the close personal relationship of trust and confidence between a Judge and his secretary and the differences in levels of Judges, based upon their responsibilities, justify differences in the classification of personal secretaries. It found that the CAJ’s classifications were based on differences in the sensitivity and importance of the duties and responsibilities to be performed by secretaries within the court system. The Board’s determination was based on the classification standards outlined in Judiciary Law § 39 (8) (a) (see, supra, at 467-468) and contained a rational basis supported in the record (see, Cove v Sise, 71 NY2d 910, 912, supra; Matter of Bellacosa v Classification Review Bd., 72 NY2d 383, 390, supra).

The Secretaries, for their part, assert that the Board’s decision was arbitrary and capricious under our decision in Matter of Field Delivery Serv. (Roberts) (66 NY2d 516, 517) because the Board disregarded one of its prior holdings (i.e., Matter of Law Assistants Assn., Board Administrative Order 82-1, Feb. 5, 1982). In Field we held that a decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious. The Board explained the different classifications in this case, however, emphasizing that "more than any other subordinate” the secretary bears a "close personal relationship” with the Judge, a working relationship which is inherently different from the role of law assistants who perform their functions in a pool environment supervised by a higher level law assistant. In addition, the Board noted that the greater "criticality” of the judicial functions and the increased administrative responsibilities of Judges of the appellate courts, as evidenced by the Legislature’s allocation of increased salaries for appellate Judges, require that personal secretaries, who work on a one-to-one basis with the Judge, exercise more sensitive, important and critical responsibilities. In sum, the Board’s decision in Law Assistants was properly addressed and distinguished and does not compel a finding that secretaries of appellate and trial court Judges should be classified in the same title and allocated the same salary grade (see, Knight v Amelkin, 68 NY2d 975, 977-978 [requiring a showing of existence of several earlier determinations by Zoning Board with sufficient factual similarity to warrant an explanation from Board]). The Secretaries’ remaining arguments are without merit and, accordingly, the determination of the Board upholding the CAJ’s classification and salary grade allocations should be reinstated.

¡II

The Clerks’ Case

Prior to April 1977, clerks in the appellate courts were State employees and Supreme and Surrogate’s Court clerks were employees of the localities in which they worked. Both trial and appellate clerks were classified as Court Clerk I, Court Clerk II and Court Clerk III and received comparable salaries graded commensurately to their titles. Under the CAJ’s Plan, court clerk titles at the appellate levels were reclassified and allocated salary grades as follows: Court Clerk I was reclassified to Appellate Court Clerk (JG-24), Court Clerk II to Senior Appellate Court Clerk (JG-26), and Court Clerk III to Principal Appellate Court Clerk (JG-28). Trial court titles were classified and allocated grades as follows: Court Clerk I was transferred to Senior Court Clerk (JG-21), Court Clerk II to Associate Court Clerk (JG-23) and Court Clerk III to Principal Court Clerk (JG-26).

In 1982 and 1983, members of the petitioner New York State Court Clerks Association (Clerks) and other clerks employed by the court system, appealed their classifications and salary allocations to the CAJ (see, 22 NYCRR 25.41 [a]). He denied the appeals relying in part on the fact that historically appellate court clerks had received higher pay than trial clerks because of the "difference in the criticality of function” between the two groups. On appeal, the Board determined that trial court clerks and appellate court clerks were engaged in basically the same kind of work with equivalent levels of difficulty and responsibility and that any differences between the titles were insignificant. Thus it held that under the State policy requiring equal pay for equal work (see, Civil Service Law § 115), there should be no difference in the clerks’ salary grades. To equalize the positions, petitioner had sought to have the salaries of the 1,133 affected trial clerks raised to the same level as the 18 affected appellate clerks. The Board found no evidence that the trial clerks were underpaid, however, concluding instead that the appellate clerk salaries were too high and ordered that appellate court clerks be allocated to the lower salary grades occupied by the trial clerks. On a separate issue, petitioners challenged the inclusion of Supreme Court trial part duties in the title for Senior Court Clerk. The Board rejected the claim and held that the CAJ’s conversion of Clerk I to the Senior Court Clerk title was valid.

Following the issuance of the Board’s decisions, four article 78 proceedings challenging various aspects of the administrative orders were commenced and subsequently consolidated into this proceeding. Supreme Court confirmed the Board’s finding that the duties and responsibilities of clerks working in trial courts are basically equivalent to those of appellate court clerks. It granted the petitions in part, however, by (1) annulling the Board’s direction to reduce the appellate clerk’s salary grades, (2) directing that trial court clerks be allocated to the appellate clerks’ salary level and (3) ordering that the duty of acting as Part Clerk in Supreme Court be deleted from the Senior Court Clerk title and placed in the Associate Court Clerk title. It remanded the matter to the CAJ for "appropriate action not inconsistent with the provisions of this judgment and the decision of the court”. The Appellate Division affirmed, without opinion, and we granted the CAJ and the Board leave to appeal.

The Board found that although trial and appellate courts process cases differently, clerks of both courts perform similar court clerical work: they examine and review documents filed with the court, prepare orders and documents, prepare and call the calendar and answer inquiries. A comparison of the relevant title standards confirms the Board’s finding that the clerks’ duties and responsibilities in performing those tasks are sufficiently similar so that different classifications were not justified and created inequities in the Plan (see, Report of Office of Court Administration, May 28, 1979 [Plan’s objectives include "redressing] equitably the disparities in salaries paid for similar jobs in different locations”]). Thus, the Board’s determination, which was based on the statutory mandate that nonjudicial employees be classified according to the duties required to be performed and the responsibility of the position, is supported by evidence in the record and is rational (see, Judiciary Law § 39 [8] [a]).

There was also a rational basis for its determination that inclusion of Supreme Court trial part duties in the work of Senior Court Clerks was appropriate. The 1979 Classification Plan reclassified titles that were in existence at that time. Although prior title specifications for court clerk positions in New York City had been court specific, the Court Clerk titles promulgated in 1975, which were reclassified under the 1979 Plan, simply authorized Court Clerk I’s "to act in the courtroom”. Under the present Plan the CAJ converted the title of Court Clerk I to Senior Court Clerk and included within the title specifications the duty of serving as a "Supreme Court” Part Clerk. In upholding the CAJ’s classification the Board relied upon its earlier decision in Matter of Mennella (see, Matter of Mennella v Office of Ct. Admin., 116 AD2d 649) which held that the 1975 title specifications for Court Clerk I and Court Clerk II in effect prior to the adoption of the Plan corresponded to the title standards for the new titles of Senior Court Clerk and Associate Court Clerk, respectively. The Board also noted that the conversion was appropriate, notwithstanding the practice in New York City of assigning Court Clerks I to lower courts and Court Clerks II to Supreme Court, because there was no indication that the Part Clerk assignment in Supreme Court was significantly more difficult or carried greater responsibility than an assignment in the Criminal or Civil Courts in New York City.

As noted by the Board, the prior title standard for Court Clerk I, "to act in the courtroom”, corresponded to the title standards for the new title of Senior Court Clerk and, therefore, the reclassification was not "unjust and inequitable” (see, Mandle v Brown, 5 NY2d 51, 65). Although the administrative practice in New York City prior to the 1979 Plan was to limit the assignment of Court Clerk I’s to trial parts in courts other than Supreme Court, there is no legal requirement that this administrative assignment practice be continued under the present Plan. Although this classification may have the effect of limiting certain job promotional opportunities, changes in the classification of positions in public employment need not maintain the status quo in promotional opportunities (see, Matter of Pon v McCoy, 38 AD2d 608, 609, affd 30 NY2d 902; Marino v Evans, 87 AD2d 623, 624).

Accordingly, the Board’s decision that trial and appellate court clerks should be allocated to the same salary grade and that Supreme Court trial part duties were properly included in the title of Senior Court Clerk was rational and should be reinstated.

IV

Relief

The Board and the CAJ contend that the CAJ possesses the exclusive authority to reclassify positions and allocate salary grades under the Classification Plan and that the courts in the Clerks’ proceeding improperly usurped that authority by directing that trial court clerks be allocated to the appellate clerks’ salary level instead of remanding the reclassification and reallocation issues to the CAJ. The Clerks maintain that the courts’ order was proper because the courts are empowered to direct agency action where there is only one option left open to the agency. Here, they assert the CAJ’s authority was not usurped because there was no discretionary function remaining for him to perform; the salary grades of the trial level clerks must be upgraded to the same level as appellate court clerks.

In Matter of Bellacosa v Classification Review Bd. (72 NY2d 383, 391, 392, supra), we noted that the authority to adopt and revise classifications and allocations constitutes a "core administrative power” delegated exclusively to the CAJ and that "under the existing regulatory scheme, only the CAJ, or a designated representative over whom the CAJ retains supervisory authority, may exercise that power.” Consequently, we held that the Board’s authority to "reverse or modify” classification determinations only permitted it "to invalidate * * * or to modify the challenged classification in a way that does not impinge upon the CAJ’s exclusive classification authority.” (Matter of Bellacosa v Classification Review Bd., 72 NY2d 383, 392-393, supra.)

The same reasoning applies to this case. The courts have the power to reverse or modify a particular classification of the Board pursuant to CPLR article 78 if it is "wholly arbitrary or without any rational basis” (Cove v Sise, 71 NY2d 910, 912, supra). However, they exercise a review function only and may not encroach on the discretion delegated exclusively to the CAJ to classify nonjudicial employees in the Unified Court System (see, NY Const, art VI, § 28 [b]; Judiciary Law § 212 [1]). As Matter of Bellacosa emphasized, "[s]uch a result would seriously undercut the CAJ’s authority and would threaten the orderly administration of the court system.” (72 NY2d, at 391.) Only the CAJ possesses the expertise required to determine how new classifications and salary grades will impact on the budget and structure of the Unified Court System and his discretionary authority in these matters may not be usurped (see, Matter of Ahsaf v Nyquist, 37 NY2d 182, 186; Matter of Berger v Walsh, 291 NY 220, 223). Although the courts below were empowered to determine that awarding the two classes of titles of clerks the same salary was rational, they were thereafter required to remand the matter to the CAJ for appropriate action (see, Matter of Bellacosa v Classification Review Bd., 72 NY2d 383, 393, supra).

Moreover, the CAJ is not limited to the remedy of upgrading the salary grades of trial court clerks to the same level as appellate court clerks. Although the State policy of providing equal pay for equal work embodied in Civil Service Law § 115 applies to the Unified Court System (see, Judiciary Law § 211 [1] [d]) and requires that the salary grades of trial and appellate court clerks be equivalent, nothing prohibits the reallocation of the salaries of the two positions to a grade lower than that presently held by appellate clerks. Judiciary Law § 39 (6) (a) requires only that nonjudicial employees be "entitled to the salaries * * * to which they were entitled pursuant to any law or contract in effect immediately prior to the effective date [of the Plan]” (see also, Judiciary Law § 39 [8] [a]). Therefore, incumbents in the title must be placed at an increment step within the allocated salary grade at the salary they had been receiving prior to the Plan (Judiciary Law § 39 [8] [b]; see, Matter of Tolub v Evans, 58 NY2d 1, 4-6, appeal dismissed 460 US 1076; NY Const, art VI, § 35 [l] ["the non-judicial personnel of the courts affected by this article in office on the effective date of this article shall, to the extent practicable, be continued without diminution of salaries”]). However, they need not be allocated the same salary grade which they held prior to the Plan. Thus, the matter must be remanded to the CAJ so he may exercise his discretion to determine the appropriate equivalent salary grade for trial and appellate court clerks.

Accordingly, in Matter of Association of Secretaries to Justices v Office of Ct. Admin., the order should be modified, without costs, in accordance with this opinion and as so modified, affirmed. In Matter of New York State Ct. Clerks’ Assn. v Hirnber, the order should be reversed, without costs, and the matter remitted to Supreme Court, New York County, with directions to remand to the Chief Administrator for further proceedings in accordance with this opinion.

Judges Kaye, Alexander, Titone and Hancock, Jr., concur; Chief Judge Wachtler and Judge Bellacosa taking no part.

In Matter of Association of Secretaries to Justices v Office of Ct. Admin.: Order modified, etc.

In Matter of New York State Ct. Clerks Assn. v Hirnber: Order reversed, etc.

      . The incumbent is either the Chief Administrator of the Courts or, if a judicial officer, the Chief Administrative Judge of the Courts (Judiciary Law § 210 [3]). When these actions were commenced, the Chief Administrator was a judicial officer and for convenience CAJ is used to describe him.

      . The association is a voluntary organization which represents the confidential executive secretaries employed by Justices of the Supreme and Surrogate’s Courts throughout the City of New York. Its members, all of whom were locally paid prior to April 1, 1977, were reclassified to the new trial-level title of either Senior Secretary to Judge or Principal Secretary to Judge under the Plan.

      . The association is the certified representative for persons in the court clerk titles employed in the Supreme Court and Surrogate’s Courts within New York City.

      . Contrary to the contention of the Clerks, no hearing was required prior to the adoption of the 1975 title specifications (see, Corkum v Bartlett, 46 NY2d 424, 431).


author: Kaye, J.

text:
    Yvonne Haddock, Respondent, v City of New York, Appellant.
    Argued February 7, 1990;
    decided March 29, 1990

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (June A. Witterschein and Leonard Koemer of counsel), for appellant.

      Joseph Kelner for respondent.
   OPINION OF THE COURT

Kaye, J.

This appeal, centering on the rape of a nine-year-old child in a New York City playground by a Parks Department employee with a history of violent crime, poses a modern-day dilemma: assuring the public safety as well as the rehabilitation of former felons to constructive lives within society. In this case we conclude that the City was properly held liable for the child’s injuries, and therefore affirm the Appellate Division order, but on narrower grounds.

After school on April 8, 1975, plaintiff, her sister and four other children went to The Bronx playground near her home. She usually played there several times a week, and knew James Johnson, then 55 years old, as the only Parks Department employee there. According to plaintiff and her mother, Johnson swept, picked up the garbage, and handed out the games, ropes and basketballs. On the day in question, Johnson gave plaintiff a jump rope and told her to return it to him when she finished with it. At about 5:00 p.m., when plaintiff went into the maintenance shed to return the rope, Johnson closed the door, blocked it with a desk, and for more than two hours repeatedly raped, assaulted and sexually abused the child while threatening to kill her. When Johnson finally allowed her to leave, she ran home and reported the incident to her mother, who took her to Misericordia Hospital where she was treated for her injuries. Johnson was ultimately convicted and sentenced to a lengthy prison term.

Johnson had begun work for the City barely seven months earlier — on September 14, 1974 — pursuant to the Work Relief Employment Program (WREP). Created by the Legislature in 1971 as part of a welfare reform package, WREP was designed to put employable home relief recipients — including ex-convicts — to work in public and private nonprofit agencies, so that they might "work off” their public assistance benefits and also receive training for ultimate self-sufficiency and an escape from what one witness characterized as the "welfare syndrome.” This program replaced prior statutory law allowing local welfare officials to prescribe employment, with a mandate requiring that they assign work to employable home relief recipients, and it permitted only limited local discretion to declare individuals unable to work (see, Social Services Law § 164). A criminal past — however gruesome — was not under the statute a ground for "unemployability.”

Under the program, the local centers dispensing welfare checks determined an individual’s eligibility. Once declared employable, participants received an intake interview, eliciting their qualifications and background, and they were employed by the City provisionally, subject to investigation. Participants were asked about any criminal record. While such a record was not a disqualification from WREP, persons with a criminal record would be asked to complete a declaration of convictions, which was then used to determine both their suitability for particular jobs (for example, an individual with a history of robbery or embezzlement would not be assigned as a cashier) and the need to check further with the Police Department (for example, for outstanding warrants). The guidelines of the City Personnel Department additionally provided: "Qualifications for employment of individuals with criminal convictions will be determined for each individual on the basis of the criminal and social seriousness of the act, the age of the person at the time of the offense, the length of time since the act or acts took place, known behavior since the last criminal act, the nature of the jobs to be filled and other pertinent factors.”

Johnson appeared for his intake interview by the Department of Social Services on August 27, 1974. Based on the information he provided, his application reflected that he had no arrest record. As a matter of routine, his fingerprints were taken that day and forwarded to the City’s Department of Personnel. On the sheet containing his fingerprint record, Johnson also stated that he had not been convicted of any crime, not even a moving violation. No further checking was done before he was put to work.

WREP participants were accepted within several City departments, in three job categories: clerical, human services and utility work. Utility workers’ duties were described as follows: "Under close supervision performs simple routine tasks necessary for the operation and maintenance of city department facilities and performs related work.”

On September 14 Johnson began as a Parks Department utility worker at the Parkside Playground in The Bronx. He was responsible for tidying up and maintaining his assigned station, which consisted of toilet facilities, a maintenance shed and the playground area. Johnson had a key to the maintenance shed, where supplies were kept, and he worked under the supervision of a district foreman, who visited the 25 or more parks under his jurisdiction several times weekly, for five or ten minutes each. As distinct from a recreation director (a competitive civil service post), the City considered that the job of utility worker did not involve public contact or working with children.

Although his fingerprints were taken in August and he commenced work in September, Johnson’s prints were not actually received for processing by the Police Department until December 1974. As the City explained, WREP participants were assigned the lowest investigation priority, because State law mandated their employment, and because the City at that time faced a fiscal crisis requiring some 60,000 layoffs and the need for the Personnel Department to prepare civil service retention lists. On January 6, 1975, as the result of the Police Department’s fingerprint check — which a City witness testified normally took "maybe 20 minutes” — the Personnel Department received Johnson’s "rap sheet” reflecting his substantial criminal past.

While Johnson had told the City that he had no arrest record, the report reflected that by the time he reached the age of 21, in 1941, he had in fact accumulated a series of convictions in the South for hoboing, fighting, conspiracy to effect a prison break, assault, and breaking and entering. Then in 1946, in Queens County, he was convicted of attempted rape, robbery in the second degree and grand larceny in the first degree, and sentenced to a prison term of 15 to 30 years. Johnson was paroled in 1967. The report the City Personnel Department received from the Police Department indicated, however, that in 1968 — within months of his release on parole — Johnson was rearrested on charges of rape, assault and use of a dangerous instrument. The report stopped there.

A second report, from the State Division of Criminal Justice Services, showed that the 1968 charges were dismissed, but that Johnson’s parole was violated and he was returned to prison. He was released on July 22, 1974, at the expiration of his maximum sentence — weeks before the Department of Social Services intake interview and little more than seven months before his attack on plaintiff. The City Personnel Department, however, did not seek or receive that second report until the present lawsuit, and thus it did not know before April 8, 1975 of the parole violation or the disposition of the 1968 charges.

Plaintiff’s first jury verdict against the City, in the amount of $2.5 million, was overturned by the Appellate Division and a new trial granted, because the trial court had erroneously failed to instruct the jury that any risk of injury had to be foreseeable by the City (106 AD2d 359). After 11 trial days before a Judge and jury, a second verdict was rendered in plaintiff’s favor, this time for $3.5 million. However, this verdict was set aside by the trial court and the complaint dismissed, on the ground that Johnson’s hiring and retention were discretionary governmental acts and his attack on plaintiff was unforeseeable. The Appellate Division reversed and reinstated a reduced verdict of $2.5 million (140 AD2d 91), which we now affirm.

While several theories of liability have been advanced throughout the lifetime of this litigation, the issue now comes down to whether, as a matter of law, the City can be held liable to plaintiff for negligent retention of Johnson as its employee, or whether it is immune from liability on that basis. It is agreed that no cause of action lies for Johnson’s hiring, which was mandated by law. By the same token, no challenge is made to the factual determinations of foreseeability, causation and damages. Additionally, we need not linger long on the Appellate Division’s conclusion that the City might be held responsible here for breach of duty as owner of a public park to an invitee (see, e.g., Caldwell v Village of Is. Park, 304 NY 268). Plaintiffs injury allegedly resulted from a governmental decision to retain its employee, not any proprietary function in managing a park (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182), and we therefore turn directly to the question of immunity from liability for that act.

Despite the sovereign’s own statutory surrender of common-law tort immunity for the misfeasance of its employees, governmental entities somewhat incongruously claim — and unquestionably continue to enjoy — a significant measure of immunity fashioned for their protection by the courts. Governmental immunity under the decisional law of this State does not attach to every act, but when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages for the injurious consequences of that action (see, Tango v Tulevech, 61 NY2d 34, 40; Arteaga v State of New York, 72 NY2d 212, 216; Weiss v Fote, 7 NY2d 579). Whether absolute or qualified, this immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.

While the line separating discretionary and ministerial action may sometime blur, it is clear that "discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.” (Tango v Tulevech, 61 NY2d 34, 41, supra.) Applying that test in Tango, we concluded that defendant acted within the very essence of her discretionary authority as supervisor of the Probation Department’s In-Take Unit when she refused to detain children for appearance before a Judge but instead released them to their mother. At the other extreme is McCrink v City of New York (296 NY 99), where we held on those extraordinary facts that there was no room for the exercise of reasoned judgment by the Police Commissioner in retaining an alcoholic, armed police officer presenting a known danger to the public (see, Tango v Tulevech, 61 NY2d, at 41 [characterizing the omission as "ministerial”]).

We need not determine whether the City’s retention of Johnson at the Parkside Playground would be subject to absolute or qualified immunity because the City’s argument for any immunity here has a fundamental flaw. The difficulty with the City’s contention that it is entitled to a cloak of immunity for the discretionary decision to retain Johnson in his status is that there is no evidence that, prior to the rape, the City in fact made any such decision or exercised any such discretion. This is not a case of mere error of judgment of City officials in choosing to retain a WREP participant in his work assignment after learning of his criminal record. There is no indication that, before the attack on plaintiff, the City made any effort to comply with its own personnel procedures for employees with criminal records, and no indication that it made a judgment of any sort when it learned that Johnson both had a criminal record and lied egregiously about it.

The immunity afforded a municipality presupposes an exercise of discretion in compliance with its own procedures. Indeed, the very basis for the value judgment supporting immunity and denying individual recovery for injury becomes irrelevant where the municipality violates its own internal rules and policies and exercises no judgment or discretion. Given the scope of the immunity — which frees municipal defendants of liability where others in similar circumstances might have to respond in damages (see, e.g., Hall v Smathers, 240 NY 486) — that critical omission cannot be cured by later supposition that, had a review been made, the employee’s placement would have remained unchanged. Whether or not that is so, for purposes of this discussion the key fact is that no City employee in the relevant time frame weighed the impact of Johnson’s record on his work assignment or made a judgment that he should be retained at the Parkside Playground.

For much .the same reason, we reject the City’s argument for reversal based on the strong public policy favoring rehabilitation of ex-convicts (see, Eiseman v State of New York, 70 NY2d 175). The importance of employing former inmates, and reintegrating them into society, without risk of absolute liability for those who open doors to them, cannot be overstated. But even that worthy objective cannot excuse a municipal employer from compliance with its own procedures requiring informed discretion in the placement of individuals with criminal records, which in this jury’s unchallenged judgment resulted in a foreseeable risk of harm to plaintiff and proximately caused her injuries.

Finally, it should be made perfectly plain that, by affirming the Appellate Division order, we do not hold that the City here breached any "duty not to continue the assignment of an employee to a sensitive, mainly unsupervised position in a children’s playground after it learn[ed] of that employee’s violent criminal history.” (140 AD2d 91, 98; see also, McCrink v City of New York, 296 NY 99, supra.) While the City points to the record to show that, factually, Johnson’s job as a utility worker was not a sensitive, mainly unsupervised position in a children’s playground, and that the violent crime of which he was convicted took place nearly 30 years before his employment by the Parks Department, the cautionary note we sound goes beyond any factual discrepancy.

As a general proposition, it is not for courts to second-guess the wisdom of discretionary governmental choices, troubling though they may sometimes seem in the glaring clarity of hindsight. Particularly with respect to the employment of ex-convicts — who are officially free to walk the streets, visit the playgrounds, and live and work in society without being branded or segregated — the opportunity for gainful employment may spell the difference between recidivism and rehabilitation. While municipalities should not have to fear that they imperil the public fisc whenever they hire persons with criminal records, the narrow ground on which we resolve this appeal should not have the far-reaching consequence of deterring participation in programs that offer such employment opportunities.

Accordingly, the judgment appealed from and order brought up for review should be affirmed, with costs.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

       On April 8, 1975, two of the three City supervisors assigned to the district were off; the recreation director was on vacation; and another WREP worker purportedly on duty that day was checked out at 5:00 p.m.


text:
    The People of the State of New York, Respondent, v Alfonso Huertas, Also Known as Alphonso Huertas, Appellant.
    Argued February 9, 1990;
    decided April 3, 1990

      POINTS OF COUNSEL

      Miriam J. Hibel and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Tammy J. Smiley and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Kaye, J.

At issue on this appeal is the admission into evidence, on the People’s direct case, of the complaining witness’s account of a description of her assailant given to the police shortly after she was raped. Defendant contends that this testimony was inadmissible hearsay, as well as impermissible bolstering of the complainant’s in-court testimony through introduction of a prior consistent statement. For the reasons that follow, we conclude that the challenged testimony was properly admitted for a nonhearsay purpose.

According to her testimony, the complainant encountered defendant at about 11:15 p.m. on March 27, 1986, as she was walking home from her sister-in-law’s house in Brooklyn. She first saw defendant standing on the sidewalk when she reached the corner of Willoughby and Tompkins Avenues and, after she turned the corner onto Willoughby, she noticed that defendant was walking parallel to her on the opposite side of the street. Defendant then crossed the street and walked directly toward her with his hand in his pocket. When they were face-to-face under a streetlight, defendant drew a gun from his pocket, and pushed it into her side. She described the illumination provided by the streetlights during this time as "bright” or "decent.”

Pleading with defendant not to hurt her, the complainant asked, "Why are you doing this to me? Who are you? What have I done?” Defendant responded that he would kill her unless she "shut up” and pushed her forcibly to a dark tunnel-like overhang attached to a school building. There, he tore her T-shirt and touched her "all over.” In answer to defendant’s demand for money or jewelry, she offered him her silver bracelets, but defendant did not take them.

Instead defendant pushed her out from the overhang, where she had been unable to see him, to the back of the school playground. Although she characterized the light in the playground as dim, she testified that she was only a few inches from defendant and able to perceive his features. Forcing her to lie on her back on some playground equipment, defendant had her undress and raped her.

When someone approached through the playground, defendant ordered her not to scream, and he dressed and fled. The complainant herself dressed and ran from the playground in a different direction. Within a few blocks, at approximately midnight, she encountered three police officers to whom she reported that she had been raped. The officers drove her around the area of the school, but they did not find her assailant. She was then taken to Woodhull Hospital, where a physical examination was performed; testing of slides taken during this examination revealed the presence of spermatozoa. At the hospital, she provided a description of her assailant to the police officers. That account is the focus of the present appeal.

Defendant was not arrested until April 8, 1986 — 12 days after the rape. That evening, the complainant saw defendant leave a house near the corner of Willoughby and Tompkins Avenues, and enter a pool hall. She found a nearby police officer, who arrested defendant after she reported that she had just seen the man who had raped her 12 days earlier.

Before trial, defense counsel made a motion for a prospective ruling concerning the testimony to be given by the complainant and the police officer witnesses. Specifically, counsel requested that neither the complainant nor the officers be permitted to testify that she had identified defendant to the police, and that the police officers be prohibited from testifying that they had arrested defendant as the result of a conversation with the complainant. In addition — the basis of defendant’s claim on this appeal — counsel argued that the complainant should not be allowed to testify that she had given any description of defendant to police. Counsel contended that such testimony would constitute "bolstering, plain and simple.”

The prosecutor agreed that there would be no police testimony concerning what the complainant had said to the police witnesses. She argued, however, that it was proper for the complainant herself to testify that when she had spotted defendant on the street 12 days after the rape, she had gone to the police and told them. The court agreed with the People on this point, and defendant makes no appellate claim about the propriety of that testimony.

As to the complainant’s testimony about the description she gave to the police immediately after the rape, the prosecutor urged that it would be admissible because it bore upon the accuracy and reliability of the identification of defendant, and was a factor mentioned in the standard charge on identification in a one-witness identification case. The court ruled that such testimony was admissible, and at trial — over defendant’s objection — the complainant testified on direct examination that she had described her assailant to the police that night and gave the details of her description.

Defendant did not take the stand, but his girlfriend testified on his behalf that on the date of the rape, defendant — unlike the rapist, as the complainant described him — had a noticeable moustache and goatee and fairly full hair, which she trimmed just before he was arrested. Based on this testimony, and on his cross-examination of the complainant, counsel argued in summation (as he had in opening) that the identification of defendant as the rapist was mistaken. In particular, counsel contended that the complainant had only "a matter of seconds” to observe her attacker’s features during the incident, under poor lighting conditions, and that the stress of the event had undermined her "ability to recall and to really get a picture in [her] mind of what the person who did this to [her] looked like.” Counsel argued that although the complainant had later convinced herself that defendant was the rapist, her certainty that she had correctly identified defendant only cast doubt on her reliability as a witness, given that she could not have formed an accurate mental impression of defendant during the crime. Counsel urged that the in-court identification was merely "ceremonial.”

In a precharge conference at the close of all the evidence, defense counsel requested that the court give "an identification charge as in the C.J.I.” The court granted that request, and gave the jury the pattern charge on the evaluation of identification evidence in a one-witness case, including the section intended for use where the trial evidence includes testimony of a description given by the witness to the police, as follows: "In evaluating the witness’s capacity to observe and remember, you may consider the 'description’ of the perpetrator which he gave to the police soon after the commission of the crime. If that 'description’ does not match the physical characteristics of the defendant, that factor must be considered by you in making your determination of the witness’s capacity and ability to observe and remember the physical features of the perpetrator. On the other hand, an accurate matching 'description’ may be considered by you in assessing the witness’s capacity to observe and remember.” (1 CJI[NY] § 10.01, at 586.)

Although counsel had not earlier requested that this portion of the C.J.I. instruction be omitted, following the charge he objected to its inclusion, on the ground that it was error for the court to tell the jurors that they were to consider the description at all, because it had been error to admit it in the first instance. The court denied his request for a curative instruction to that effect.

We now affirm the Appellate Division order that upheld defendant’s conviction.

Hearsay is a statement "not made in the course of the trial in which it is offered * * * if it is offered for the truth of the fact asserted in the statement” (Richardson, Evidence § 200 [Prince 10th ed]). There is no dispute that the description the complainant gave to the police of her rapist was made out of court. Thus, it was inadmissible unless it was not offered for the truth of the facts asserted in the statement, or unless it fell within an exception to the prohibition against hearsay testimony.

The complainant’s testimony, according to the People, was not offered to prove the truth of the description she gave to the police. Rather, the description was probative of her ability to observe and remember her assailant, and thus relevant to the accuracy of the identification she made. Indeed, that ground for admission was argued by the prosecutor in response to counsel’s pretrial motion to preclude description testimony. The prosecutor urged that the testimony bore upon the complainant’s reliability and accuracy, and referred to the C.J.I. identification instruction, which charges the jury to consider description testimony for that very purpose.

According to defendant, the People’s theory at best lacks substance, as the mere fact that the complainant was capable of describing the perpetrator in some detail after the crime proves nothing about her ability to observe and remember unless it is assumed that the description is true. While a detailed description would not, in itself, prove that the witness was able to observe accurately, the fact that such a description was given would tend to demonstrate that the particular conditions at least allowed the witness to make observations, whether accurate or not. That alone might be of sufficient probative value to warrant admission of the details of the description.

As charged to the jury, the relevance of the complainant’s description testimony was also based on the fact that the jurors could compare it to the physical characteristics of the defendant. This was a factor to be considered by the jury in assessing the witness’s ability to observe and remember the features of the perpetrator. Thus, defendant misconstrues the purpose of the description testimony here. It is not the accuracy or truth of the description that establishes its relevance. It is, rather, the comparison of the prior description and the features of the person later identified by the witness as the perpetrator that is the ground of relevance.

In a case — like this one — where identification is the only contested issue, the question whether the complainant was mistaken in identifying the defendant as the person perceived during the commission of the crime must be resolved by the jury. Comparison of the verbal description — made on the basis of recollection alone, close to the time of the crime — with the actual features of the person later corporeally identified can assist the jury in evaluating the degree to which the later physical identification may or may not have been the product of intervening memory failure or suggestion. Stated conversely, it is evidence of the victim’s mental ability to transfer accurately the mental images made during the commission of the crime to the time and place of the corporeal identification.

In fact, defense counsel made precisely this argument in summation. He described in detail each discrepancy between the complainant’s description and defendant’s appearance, suggesting to the jury that those differences "should raise substantial doubts in [their] mind as to the reliability of her identification testimony” as they allegedly demonstrated "a lack of ability on her part to relate to you a clear and consistent picture.”

Accordingly, the probative force of the complainant’s description evidence is not based on an assumption that the prior description is or is not true, nor does the comparison conclusively establish the identification as accurate or inaccurate. It is, however, evidence that assists the jury in evaluating the witness’s opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification — both important aspects of the critical issue. Thus, the description testimony was properly admitted for this nonhearsay purpose and, that being so, defendant’s contention that it was inadmissible as a prior consistent statement is irrelevant.

Nor are we persuaded by defendant’s contention that the fact that a statutory exception to the hearsay rule was required in order to permit a witness to testify to a prior identification proves that a witness’s testimony concerning a prior description must "a fortiori” be inadmissible, as it is beyond the scope of the exception.

As defendant notes, CPL 60.25 and 60.30 permit a witness who has previously identified the defendant under constitutionally unexceptionable circumstances to testify to the earlier identification, in addition to making an in-court identification; those statutory exceptions are in derogation of the common-law prohibition against hearsay testimony, which had been held to bar the prior identification testimony. (See, People v Trowbridge, 305 NY 471, 475.) On their face, CPL 60.25 and 60.30 render admissible only testimony concerning a previous corporeal identification. Defendant reasons that the legislative creation of this narrow exception suggests that as a policy matter, related or similar testimony, such as the description testimony given in this case, must be deemed inadmissible.

CPL 60.25 and 60.30, in substance part of the law of this State for more than 60 years, allow prior identification testimony not merely as corroboration of an in-court identification, but as independent evidence of identity, so long as the identifying witness was available at trial for cross-examination. The drafters noted that the amendment was necessary "to aid the administration of justice and do away with what at best seems a technical interpretation of the law” (Report of Crime Commission, 1927 NY Legis Doc No. 94, at 67).

Indeed, the technical application of the hearsay rule barring a witness’s testimony concerning a prior identification had been widely criticized. A formal in-court identification, often long after the crime and following arrest and judicial proceedings, was predictable and thus of inconclusive value. By contrast, there seemed to be greater value in evidence that the witness had made an identification soon after the event, "at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness’ mind,” and the rejection of such evidence by some courts on hearsay grounds was described as "a telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning” (4 Wigmore, Evidence § 1130 [Chadbourn rev 1972]).

We do not consider the admissibility of description testimony for its truth. We note, however, that the background of CPL 60.25 and 60.30 indicates that the Legislature intended by adoption of those statutory "exceptions” only to eliminate a technical bar to the receipt of probative evidence of identification, not to preclude all use of similar testimony. Thus, we are not persuaded that the existence of a statute for related testimony, standing alone, necessarily forecloses even the nonhearsay use of description testimony.

Finally, defendant’s other claims of trial error are without merit. The court’s interested witness charge was balanced and did not suggest that any particular witness was or was not an "interested” witness (People v Agosto, 73 NY2d 963, 967). Contrary to defendant’s contention, the court’s rulings did not deprive him of an opportunity to present to the jury his theory that the complainant’s in-court identification of defendant was unreliable.

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

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

Order affirmed.