
    The People of the State of New York, Respondent, v Armando Cardona, Appellant.
    Submitted January 12, 1977;
    decided February 17, 1977
    
      
      Nancy Rosner, New York City, for appellant.
    
      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Peter L. Zimroth of counsel), New York City, for respondent.
   Jasen, J.

Crucial to the prosecution’s murder case against defendant were admissions allegedly made by defendant to a fellow prison inmate. Defendant contends that these statements were not admissible in evidence under the rule of Massiah v United States (377 US 201) on the theory that the fellow inmate solicited the statements as an agent for the prosecution in violation of defendant’s right to counsel.

At the suppression hearing, the court found that the inmate-witness had not solicited the statements, that the statements had been freely volunteered by the defendant, that the prosecution had not promised the inmate-witness any benefit in return for the information that he provided, and that the inmate had contacted the District Attorney’s office on his own initiative. Moreover, it was found that the defendant had not been coached or instructed by the police and prosecutors. Upon trial, defendant was convicted by a jury of murder and felonious possession of a weapon. On appeal, the Appellate Division affirmed both the order denying the motion to suppress and the resulting judgment of conviction, one Justice dissenting. (48 AD2d 610.)

The procedural posture of this case dictates an affirmance unless it can be said, as a matter of law, that the sole inference to be drawn from the facts as found by the courts below, is that the inmate-witness was acting as an agent for the prosecution. Although the facts would certainly support an inference of agency, the facts would not support the conclusion that this inference is the exclusive inference that could be rationally drawn from these facts. Under this circumstance, with cognizance of the limited powers of this court with respect to the review of questions of fact, we cannot substitute our view of the record for that of the suppression court and of the majority of the Appellate Division.

Certain it is that the prosecution in this case walked a thin line, particularly when it is considered that the inmate-witness provided information on other defendants on several occasions and that this co-operation was brought to the attention of the Judge who sentenced the witness, thereby producing a measure of leniency that apparently would not have been otherwise forthcoming. On the other hand, it must be acknowledged that inmates, and other police informants, frequently volunteer information on their fellows in the hope, but not in the certainty, of obtaining favored treatment. That the informer has a self-interest in obtaining better treatment from the government does not thereby automatically make the informer an agent of the government. The motivation to inform comes from the informer and not from the government. To be sure, if the government affirmatively plays on that motivation or harkens the informer to his self-interest, it thereby runs the risk of being responsible and accountable for the informer’s actions. But mere acceptance of proffered information by the government does not by itself necessarily establish the existence of an agency relationship between government and informer.

Thus, it has been held that where an informer works independently of the prosecution, provides information on his own initiative, and the government’s role is limited to the passive receipt of such information, the informer is not, as a matter of law, an agent of the government. (E.g., United States ex rel. Milani v Pate, 425 F2d 6, cert den 400 US 867; Paroutian v United States, 370 F2d 631; United States ex rel. Irving v Henderson, 371 F Supp 1266.) Yet, if the government is more than a passive auditor, such as where it actively inveigles a codefendant or fellow prisoner to inform as in Massiah itself, the statements made to the informer should be suppressed on the ground that the government, through its agent, encroached upon the defendant’s Sixth Amendment rights. However, we decline to subscribe to any ironclad rules as to when agency exists since the niceties of rule-complying form could easily mask the substance of a true agency relationship. It suffices, for our present purpose, to state that the courts below have found that the factual predicates for a finding of agency are absent and that under the circumstances of this case, we cannot say that, based on the unreviewable factual findings, their ultimate conclusion was erroneous as a matter of law.

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

Cooke, J. (dissenting).

There should be a reversal and a new trial.

The defendant’s inculpatory statements to the inmate-witness should not have been admitted in evidence under the rule of Massiah v United States (377 US 201), a rule involving the basic protection of the Sixth Amendment guarantee to assistance of counsel. Of course, it is true, as the majority states, "that inmates, and other police informants, frequently volunteer information on their fellows in the hope, but not in the certainty, of obtaining favored treatment” (p 335). In the ordinary case, the volunteering of such information by the fellow inmate would not make him an agent of the prosecution and, hence, would not violate the Massiah rule (cf. Paroutian v United States, 370 F2d 631). In the instant case, however, if the inmate-witness was not in fact an agent, he was nonetheless performing the same function to the same unconstitutional end.

The contact between the inmate-witness and the prosecution was not one of an isolated instance or two but, rather, of long duration and involving a considerable number of contacts. The facts accepted by the Appellate Division (48 AD2d 610) establish, among other things: that Morgan, the inmate-witness, was arrested in October, 1969, indicted for robbery in the first degree and kept in the Tombs awaiting trial; that during his sojourn at the Tombs he visited the prosecutor’s office on some eight occasions to disclose information concerning his own and other pending cases; that during the summer of 1970 he twice reported the substance of conversations he had with defendant, the second more incriminating than the first; that, concededly, Morgan was informed that his co-operation would be brought to the attention of his sentencing Judge; and that, perhaps by coincidence, Morgan, who originally faced up to 25 years on the robbery charge, was eventually permitted to plead guilty to a reduced charge and sentenced to a four-year term, after rejecting earlier plea offers of 15, 7 and 5 years.

The finding of the Appellate Division reveals that the inmate-witness was actively seeking incriminating information from fellow inmates and offering it to the prosecution in return for having his co-operation made known to the sentencing court. Of course, the prosecution could not prevent him from obtaining this information, and the record shows that it did not coach him or expressly urge that he obtain further information. Nevertheless, it is too easy to say that the Massiah rule does not apply merely because the prosecution, though encouraging the source, did not actively seek information. For all intents and purposes, the inmate-witness here performed the same function as an agent and the admission in evidence of defendant’s statements to him flouts the Massiah rule just as much and just as effectively as if the prosecution had formally and expressly requested that he elicit the statements from defendant.

The Massiah rule is not limited to Massiah circumstances (see Hancock v White, 378 F2d 479, 482). For example, in Beatty v United States (377 F2d 181, 190) the majority of the Court of Appeals, Fifth Circuit, in attempting to distinguish the situation there with that in Massiah, stated, inter alia: "Here, the government agents did not instruct [the secret informer] to engage the appellant in conversation or even to associate with him.” On appeal, the Supreme Court summarily reversed the judgment of conviction, citing Massiah (Beatty v United states, 389 US 45). (See, also, McLeod v Ohio, 381 US 356; United States ex rel. O’Connor v State of New Jersey, 405 F2d 632, 636-637.) Similarly, in the instant case, the rule should not be so tightly compartmentalized into a strict principal-agent relationship so as to ignore the reality of what actually occurred here.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Jasen; Chief Judge Breitel concurs in the following memorandum: I concur in the majority opinion only because the findings of fact as a result of the suppression hearing are binding on this court. Otherwise I would have agreed with the reasoning of the dissenting opinion. Judge Cooke dissents and votes to reverse in a separate opinion.

Order affirmed.  