
    The People of the State of New York, Appellant, v Henry Geoghegan, Respondent.
    Argued May 28,1980;
    decided July 3,1980
    
      POINTS OF COUNSEL
    
      Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for appellant.
    I. Defendant’s guilt was proven beyond a reasonable doubt. II. Robert Jones’ inculpatory declarations against penal interest were properly admitted into evidence against defendant. (People v Settles, 46 NY2d 154; People v Maerling, 46 NY2d 289; Bruton v United States, 391 US 123; Douglas v Alabama, 380 US 415; Dutton v Evans, 400 US 74; California v Green, 399 US 149; Mancusi v Stubbs, 408 US 204; People v Settles, 46 NY2d 154.)
    
      Steven G. Eckhaus and Zoltán Hankovszky for respondent.
    I. The judgment of the court below should be affirmed: Respondent was deprived of his right to confront witnesses when an unavailable alleged accomplice’s out-of-court confession, incriminating respondent, was admitted into evidence over objection. (People v Cepeda, 61 AD2d 962; People v Torres, 57 AD2d 561; People v Maerling, 46 NY2d 289.) II. Under the rule of Bruton v United States, it was correct for the court below to have reversed respondent’s conviction and ordered a new trial. (Pointer v Texas, 380 US 400; Douglas v Alabama, 380 US 415.) III. The denial of respondent’s right to confrontation was not harmless error. (People v Wheatman, 31 NY2d 12; Marcus v New York, 409 US 1027; People v O’Farrell, 175 NY 323; People v Meyers, 56 AD2d 853; People v Cefaro, 23 NY2d 283; People v Baker, 23 NY2d 307; People v Boone, 22 NY2d 476; People v Jackson, 22 NY2d 446; People v Peller, 291 NY 438.) IV. Respondent’s additional points requesting guidance for purposes of the new trial. (People v Arce, 42 NY2d 179; People v Kitchen, 55 AD2d 575; People v Adams, 21 NY2d 397.)
   OPINION OF THE COURT

Per Curiam.

The issue on this appeal is whether a statement made by an accomplice, characterized as a declaration against penal interest, was properly admitted against the defendant. We conclude that it does not satisfy the tests for admission of a statement against penal interest laid down in People v Maerling (46 NY2d 289) and that the defendant’s conviction, therefore, may not stand. Because we decide that the statement cannot be consider whether the defendant’s right of confrontation guaranteed by the Sixth Amendment has been violated.

The defendant was convicted after a jury trial of second degree murder and first and second degree robbery in connection with the death of a wealthy homosexual. The Appellate Division reversed the conviction and we affirm. The facts relevant to this appeal were testified to by Detectives John Toone and Carl Sgrizzi and by Thomas Gilligan, a participant in the crime who co-operated with the prosecution and was permitted to plead guilty to attempted second degree robbery. Principally as told by Gilligan the events surrounding the murder were as follows:

The victim had been at various times the friend and lover of Gilligan, Robert Hoke and one Robert Jones. Gilligan, Hoke, and Jones, had become acquainted with the defendant and one Chris Denim. In October, 1975, at a party attended by Gilligan, Hoke, Jones, the defendant, the defendant’s brother and possibly Denim, there was a general discussion about obtaining money without labor, by means such as robbing the victim.

The next month Denim, Gilligan, Jones, and the defendant, decided to obtain money from the victim by telling him, falsely, that bail money was needed for Jones. If that did not work, they intended to rob him. At the building the defendant and Denim went upstairs to the victim’s apartment while Jones and Gilligan waited for a while in the vestibule. When they reached the apartment the defendant, holding a knife, was standing over the victim’s body. After being threatened by the defendant, Gilligan opened a file cabinet which he knew to contain valuables, then fled from the scene.

Shortly after the murder Jones was questioned by the police, but denied his own participation or having recently seen Gilligan, and offered to help the police find Gilligan. Gilligan was arrested December 3, 1975.

The defendant and Jones were separately arrested early on December 4, 1975 by Detectives Toone and Sgrizzi. According to the detectives Jones, upon seeing Gilligan and the defendant in custody, gave an account of the crime which was basically the same as that given by Gilligan at the trial. Jones thereafter testified before the Grand Jury but refused to testify at the defendant’s trial after the prosecutor declined to give consideration to his co-operation.

Because Jones was unavailable at trial the detectives were permitted to recount his confession without mention of the defendant, as a declaration against penal interest. Toone, however, in testifying as to Jones’ confession, made one reference to “the defendant”, from which the jury could infer that Jones implicated Geoghegan. It is that statement by Jones which is the focus of this appeal.

In People v Maerling (supra, at p 298), we required that for a statement against penal interest to be admissible the interest compromised must be such as to "all but rule out” motive to falsify, the declarant must be conscious of the consequences of his statement at the time it is made, that only those parts which inculpate the declarant should be admitted, and that there should be an opportunity to show from the circumstances of its making that any indicia of apparent reliability are misleading. Those assurances of probative value, which might in a proper case substitute for cross-examination, were not present in this case. Additionally, the fact that Jones’ confession was not restricted to self-inculpation, but as well implicated defendant, deprives it of admissibility under Maerling.

At the time Jones’ confession was made he had already been arrested for the murder and was subject to criminal prosecution. Moreover, having seen Gilligan and Geoghegan in custody at the station house he believed the police to be already fully apprised of his own role in the crime. Thus, there was more than the “distinct possibility” we referred to in People v Settles (46 NY2d 154, 168), that he would be motivated to implicate falsely in hope of winning immunity to prosecution or a plea to a reduced charge. That achieving lenient treatment for himself was indeed Jones’ goal is demonstrated by the degree of co-operation he gave the prosecution at various stages of the proceedings.

In his initial contact with the police Jones denied his own participation and misled the police. Only under stimulus of the belief that police already knew his role in the affair did Jones acknowledge a part in the crime, and then his "confession” carefully limited his participation to the less culpable role of -waiting with Gilligan while, without their knowledge, others accomplished the actual killing.- Jones then testified on his own behalf and against the others before the Grand Jury, and did not invoke his Fifth Amendment privilege until shortly before trial when it became clear that the prosecutor would afford him no consideration for his cooperation. That the particulars of Jones’ recital of the facts may be said to mirror those to which Gilligan testified may not be remarkable either, inasmuch as Gilligan too might be expected to have been disposed to implicate defendant in exchange for acceptance of his plea to a charge of robbery.

In view of the seriousness of the charges facing him and the belief that his participation in the crime was already known, it is apparent that Jones had powerful incentives to minimize his own role and to place primary blame on others. We conclude therefore, as a matter of law, that Jones had motive to falsify, and that his declaration should not be admissible to prove the guilt of another.

The order of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). I would hold that the confession of one participant in a crime who refuses to testify at trial should be admitted in evidence as a declaration against penal interest where there exists a clear indication of the statement’s reliability.

It is difficult to understand the majority’s view that a statement or confession made by a participant in a crime revealing his involvement therein, such as that made by Jones in this case, is not admissible in evidence as a declaration against penal interest. I had thought such a statement or confession was admissible as an exception to the hearsay rule where the person making the admission is dead or beyond the jurisdiction and, thus, not available; or where he is available but refuses to testify in court on the ground of self incrimination. (E.g., People v Maerling, 46 NY2d 289, 295-299; People v Brown, 26 NY2d 88.) As the court below aptly observed, “[Jones’] statements were properly characterized as declarations against penal interest for they qualified as such under the fourfold test enunciated in People v Settles (46 NY2d 154, 167). First of all, [Jones] was unavailable because he refused to testify at defendant’s trial. Secondly, he realized that the statements were against his penal interest when made. Thirdly, the declarant demonstrated a first-hand knowledge of the facts surrounding De Vroom’s murder. Lastly, Gilligan’s testimony constituted independent evidence confirming the reliability and trustworthiness of the declarations.” (68 AD2d, at p 283; see, e.g., People v Piazza, 48 NY2d 151, 157; People v Maerling, 46 NY2d 289, 295-299, supra; People v Brown, 26 NY2d 88, supra; see, generally, Richardson, Evidence [10th ed], §§ 255-266.)

The majority, however, holds that Jones’ station house confession is not admissible as a declaration against penal interest by suggesting that Jones may have bent the truth in a misguided attempt to save his own skin. I find such logic strained.

In the Maerling case, we stated "that the interest which the declaration compromises must be one of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify.” (46 NY2d 289, 298, supra.) I simply cannot imagine a more compelling interest than the interest of a suspect in a brutal murder to conceal his involvement therein. It seems incredible that a man would confess fully to his participation in a murder in the farfetched hope of receiving lenient treatment, especially where, as here, the very persons whom he could implicate are already in the custody of law enforcement officials. If Jones “believed the police to be already fully apprised of his own role in the crime” (at p 49), it seems far more likely that Jones was prompted to confess because he believed that remaining silent would serve little purpose, rather than to confess in furtherance of an on-the-spot, contrived plan to escape prosecution for murder.

To insist on more reliability than was demonstrated evinces a quest for certainty that transcends the reality of litigation. Such insistence forgets that the dozens of forms of admissible hearsay that are so essential to the trial process would disappear if insurance rather than assurance of reliability was the test. It ignores the fact that direct testimonial proof offers no guarantee of truth, and overlooks the role in our adversarial system of counsel, through whose ministrations the inherent limitations of any form of proof, hearsay or direct, may be put in appropriate perspective.

Once it is established that Jones’ confession is admissible in evidence as a declaration against penal interest, it becomes necessary to resolve the further issue — not reached by the majority due to its disposition — whether defendant’s constitutional right "to be confronted with the witnesses against him” (US Const, 6th Arndt; NY Const, art I, § 6) was violated by the use of these statements at trial. I am convinced that defendant’s right of confrontation was not transgressed, and it was error for the court below to hold to the contrary.

It is fundamental that the confrontation clause does not require that all hearsay statements be excluded from evidence in criminal proceedings, even where the extrajudicial statement incriminates defendant. (See, e.g., Ohio v Roberts, 448 US 56, 63; Dutton v Evans, 400 US 74, 80; Pointer v Texas, 380 US 400, 407; People v Salko, 47 NY2d 230, 241.) This is so because the confrontation clause does not entitle criminal defendants to cross-examine witnesses against them in each and every instance (see United States v King, 552 F2d 833, 846, cert den 430 US 966); rather, if clear indications of reliability exist independent of cross-examination and the finder of facts has sufficient basis for evaluating the truth of the statement offered, a defendant under such circumstances is not deprived of the protections accorded by the confrontation clause. As the Supreme Court wrote in the Dutton case, "[t]he decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ ” (400 US, at p 89, supra, quoting California v Green, 399 US 149, 161.) This view has been recently reaffirmed (Ohio v Roberts, 448 US 56, 65-66, supra), and, thus, it is clear that “practical concern” for the reliability of inculpatory hearsay is the key to confrontation clause analysis. (United States v Alvarez, 584 F2d 694, 701.)

The very predicate for this court’s decision that "[t]he rule in New York should be modernized to hold that an admission against penal interest will be received” in evidence was a recognition of these statements’ inherent reliability (People v Brown, 26 NY2d 88, 94, supra), and further documentation of this well-settled observation would be mere surplusage. Suffice it to say that in People v Maerling (46 NY2d 289, supra), a case in which we undertook an extensive review of declarations against penal interest, our court unanimously held that "in the case of declarations against interest, the theory is that such assurance [of reliability] flows from the fact that a person ordinarily does not reveal facts that are contrary to his own interest. Therefore, the reasoning goes, absent other motivations, when he does so, he is responding to a truth-revealing compulsion as great as that to which he would likely be subjected if cross-examined as a witness.” (Emphasis added.) We went on to say that "[o]ne thing is clear: the severe sanctions potentially attendant upon a conviction for crime, whether by way of imprisonment or fine or both, make admissions of guilt among the most disserving of declarations. We therefore conclude that, conceptually, declarations against penal interest may be admissible against an accused.” (Id., at pp 295, 297.) When one recalls that the introduction of a declaration against penal interest is also dependent upon the submission of "other evidence tending to show that the declarant or someone he implicates as his accomplice actually committed a crime” (People v Settles, 46 NY2d 154, 169, supra), the reliability of the declaration is certainly assured. Indeed, the Supreme Court has observed that "[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” (Ohio v Roberts, 448 US 56, 66, supra.)

Here, not only are Jones’ statements inherently reliable as declarations against penal interest, but there was clear proof, independent of these statements, to establish defendant’s culpability and, thus, confirm the declarations’ veracity. As the majority itself notes, “Jones ** * * gave an account of the crime which was basically the same as that given by Gilligan at the trial.” (At p 48 [emphasis added].) There can be no doubt that defendant’s conviction rested almost entirely upon Gilligan’s testimony at trial. His recitation of the events surrounding the brutal, slashing murder of De Vroom and defendant’s involvement in this animalistic act were exposed to cross-examination and, therefore, the jury was able to assess fully the truth of these statements. Further, one Kremer Hoke testified that a discussion had taken place between defendant and his cohorts in which the victim’s status as an easy prey was mentioned, and not to be forgotten is the jury’s opportunity to evaluate Detective Toone’s credibility.

Under these circumstances, I can only come to the conclusion that defendant’s right to confront the witnesses against him was not transgressed by the introduction of Jones’ declarations against penal interest. Reliability — the very essence of the confrontation clause — was certainly demonstrated as to these statements.

Before concluding, one point should be made clear. By this dissent, I am not advocating a rule of law which contemplates that every extrajudicial statement qualifying as an exception to the hearsay rule be permitted into evidence in a criminal proceeding, for I too recognize that "[wjhile the hearsay rule and the confrontation clause share a similarity of purpose, the protections they afford have not been viewed as entirely equatable.” (People v Salko, 47 NY2d 230, 241, supra, citing Dutton v Evans, 400 US 74, 86, supra; see California v Green, 399 US 149, 155, supra.) Phrased differently, the indicia of reliability which sustain an exception to the hearsay rule do not automatically render nugatory a defendant’s right to confront the witnesses against him. However, if, as in this case, clear indications of reliability exist, I would hold that the confession of . one participant in a crime who refuses to testify at trial, even if it implicates the defendant, should be admitted into evidence. (See, generally, Fine, Declarations Against Penal Interest in New York: Carte Blanche?, 21 Syracuse L Rev 1095, 1118-1134A.)

For the above-stated reasons, I would reverse the order of the Appellate Division, reinstate the murder and robbery convictions, and remit the case to the Appellate Division for determination of the facts. (GPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d].)

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

Order affirmed. 
      
       Name used herein is fictitious for the purpose of publication. [Rep.
     
      
      . As stated in Dutton v Evans (400 US 74, 80): "It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced.” Phrased differently, "[i]f one were to read [the language of the confrontation clause]' literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. See Mattox v. United States, 156 U. S. 237, 243 (1895) ('[T]here could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations’). But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.” (Ohio v Roberts, 488 US 56, 63.)
     
      
      . I am not implying, of course, that the right of criminal defendants to question the witnesses against them is not a very important component of the confrontation clause. (E.g., Bruton v United States, 391 US 123.) Also, I must admit that I find the Supreme Court’s analysis in this area less than lucid. (See Younger, Confrontation and Hearsay: A Look Backward, A Peek Forward, 1 Hofstra L Rev 32.)
     
      
      . It should be noted that at the time Bruton v United States (391 US 123, supra) 
        was tried, the Federal courts did not recognize the declaration against penal interest exception. (Donnelly v United States, 228 US 243.) However, rule 804 (subd [b], par [3]) of the Federal Rules of Evidence now provides, in pertinent part: "The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: * * * A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability * * * that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
     