(dissenting). The facts are fairly and comprehensively set forth in the court’s opinion. I agree the evidence is sufficient to sustain the jury’s verdict convicting defendant of murder in the second degree. Indeed, the presence of the defendant’s palm print on the deceased’s refrigerator in close juxtaposition to bloodstained fingerprints, coupled with the other circumstances presented, provide a compelling basis for the jury’s verdict.
Turning to the issue that divides the court, I am unable to agree with the court’s conclusion that the circumstances presented in support of admissibility of the deceased’s statement that she was to meet the defendant at her apartment do not meet the test set forth in People v Malizia (92 AD2d 154, 160, affd 62 NY2d 755), that such a statement is admissible only "where the statement is made under circumstances that make it probable that the expressed intent was a serious one, and that it was realistically likely that such a meeting would in fact take place.”
By any standard, the circumstances detailed in the court’s opinion meet the test set forth in Malizia (supra), and indeed meet that test more convincingly than did the circumstances in many cases in which the evidence was found admissible. The court’s opinion seems to me to clearly err in its apparent conclusion that admissibility of such a statement is permissible only under the circumstances set forth in Hunter v State (11 Vroom [40 NJL] 495), cited with approval by the United States Supreme Court in Mutual Life Ins. Co. v Hillmon (145 *97US 285), in which the court relied on the circumstance that the statement in question was uttered in the ordinary course of events, and at a time when no motive to lie was discernible. To the extent to which it is accepted that there are circumstances under which such a statement of intent is admissible, the controlling test should surely be one of reliability, not whether that reliability emanates from the particular circumstance that it was uttered in the ordinary course of events.
Although I believe that this court’s decision in Malizia (supra) should be dispositive of the issue here presented, I recognize that the central issue has never been addressed by the Court of Appeals, that court having found in Malizia that the issue had not been preserved for its consideration. Nor is the question one as to which any confident forecast can be made as to how the Court of Appeals is likely to resolve it. Although the overwhelming weight of judicial authority since Mutual Life Ins. Co. v Hillmon (supra) has sustained admissibility of such statements under the state-of-mind exception to the hearsay rule, the preponderant opinion of scholars in the area of evidence for many years has doubted the appropriateness of the application of the state-of-mind exception to permit admissibility of statements of the kind admitted in Hillmon, in Malizia, and in this case. This scholarly dissent from preponderant judicial authority is of particular interest because of the undoubted fact that, in general, the scholars in the field of evidence have been more inclined than the courts, where relevance is apparent, to relax the rules limiting consideration of evidence by the fact finders.
Because of the inherently interesting nature of the issue, the unusual circumstances presented by the split between the decided cases and scholarly opinion, and my own view that the rule adopted by most courts is a sound one, some further discussion of this question may be appropriate.
The leading judicial authority, of course, remains Mutual Life Ins. Co. v Hillmon (supra). In an action to recover on a life insurance policy, the Supreme Court sustained under the state-of-mind exception to the hearsay rule the admissibility of a declarant’s statement that he was going to be with another person for a period of time as evidence that such an event in fact took place. In the Hillmon opinion, the Supreme Court cited with approval and quoted extensively from Hunter v State (11 Vroom [40 NJL] 495, supra) a prosecution for murder in which that court had sustained the admissibility of a statement by the deceased that he was going to Camden, New *98Jersey, with the defendant for a business meeting. In the excerpt quoted by the Supreme Court, the court in Hunter said: " 'If it is legitimate to show by a man’s own declarations that he left his home to be gone a week, or for a certain destination, which seems incontestable, why may it not be proved in the same way that a designated person was to bear him company?’ ” (145 US, at p 299.)
Almost every court to consider the issue in criminal cases since Hillmon (supra) has followed Hillmon in sustaining admissibility. (See, United States v Pheaster, 544 F2d 353; People v Alcalde, 24 Cal 2d 177, 148 P2d 627; see also, 6 Wigmore, Evidence § 1725, n 1 [Chadbourn rev 1976], which includes in a more general listing of decisions a number that sustained admissibility under essentially the same circumstances with which we are concerned.)
The most significant reported decision to reach a contrary conclusion was that of the District of Columbia Court of Appeals in Clark v United States (412 A2d 21) in which that court, clearly influenced by scholarly criticism of the Hillmon doctrine, rejected its application on the basis of the House Report accompanying Federal Rules of Evidence rule 803 (3), setting forth the Federal state-of-mind exception, which said that the Hillmon doctrine was to be limited to include statements of intent by the declarant only to prove his future conduct, and not the anticipated conduct of another person.
It is of some interest that what may fairly be considered a judicial consensus in favor of applying the Hillmon doctrine in criminal cases came about notwithstanding a reference to it by Justice Cardozo in Shepard v United States (290 US 96, 105), a case involving a different but arguably related issue, that suggested a disposition to limit the Hillmon doctrine to the fact that the question arose in an insurance case, and the strong, oft-quoted dissenting opinion of Justice Traynor in People v Alcalde (supra) which, in part relying on Justice Cardozo’s comment, vigorously opposed admissibility.
Turning to the scholarly dissent, it may be noted that the Hillmon decision was originally accepted as a sensible resolution of the problem presented, and that it received the emphatic support of Professor Wigmore. For our immediate purposes, the most significant development in the academic response to the Hillmon doctrine occurred with the publication of Professor Maguire’s famous article, The Hillmon Case —Thirty-Three Years After (38 Harv L Rev 709 [1925]), which *99marks a turning point in the scholarly view of the issue, and whose essential approach undoubtedly has become today the preponderant view of the scholars.
The essence of his criticism, responding to the facts set forth in the Hillmon case itself, was put forth in the following words (op. cit., at 717): "To put the problem specifically: Even if Walters was planning to travel with Hillmon, how shall we prove that Hillmon was willing to and did accept him as a companion? By Walters’ hearsay declaration? Hardly, unless we drill a new and unusually deep hole in the hearsay rule. It is not customary to accept one man’s extra-judicial assertions as evidence of another’s mental state.”
The essence of this criticism was adopted in the note of the Committee on the Judiciary, House of Representatives Report No. 93-650, accompanying Federal Rules of Evidence, rule 803 (3), the Federal state-of-mind exception, which stated that the committee intended the rule to limit the Hillmon doctrine "so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.” The same formulation was adopted by the distinguished scholars who prepared the Proposed Code of Evidence for the State of New York in their comment with regard to the proposed state-of-mind exception to the hearsay rule.
Notwithstanding a natural hesitation to differ with the considered view of distinguished scholars in an area of their special competence, I have come to think that the analysis set forth in Professor Maguire’s article is less convincing than it at first appears, that the formulation of the House Committee Report, which follows that analysis, imposes limitations on the admissibility of deceased declarants’ statements of intent that are essentially artificial and unrealistic, and that the ultimate effect of this approach is to withhold from juries the right to consider reliable evidence of undoubted probative value that jurors are entirely capable of evaluating without any undue unfairness to defendants.
Turning to Professor Maguire’s analysis, it should be observed preliminarily that there are many situations, examples of which will be considered later, in which a deceased declarant’s statement of intent with regard to another would justify an inference with regard to the other’s actions without presenting a hearsay problem. The issue in Hillmon (145 US 285, supra), and in the criminal cases which have considered the *100problem since Hillmon, arises from the undoubted fact that implicit in the statement of the deceased declarant is some information with regard to the person referred to that, considered by itself, would be excludable as hearsay.
But it does not seem to me to follow automatically from the fact that the statement of intent was undoubtedly based on, or influenced by, information that would independently be hearsay, that the jury should be denied the right to draw from the declarant’s statement of intent the normal, everyday, commonsense inference that the declarant had some reason to believe that what he was intending to do was feasible. The normal test for the admissibility of circumstantial evidence is whether the proffered evidence makes more probably correct a relevant fact without any counterbalancing unfairness. It seems to me indisputably clear that in many situations the normal inference from a deceased declarant’s statement of intent to meet another that the declarant had reason to believe that the meeting would take place meets that critical test of admissibility for circumstantial evidence, and does so without impairing unacceptably the hearsay rule.
No doubt a special problem is presented in this kind of situation by the fact that the unavailability of the deceased declarant for cross-examination may make it difficult on occasion for a jury to evaluate precisely the basis for declarant’s intent, and in such situations cautionary instructions may well be appropriate. In my opinion, in most situations this concern would be more theoretical than real. But in any event, it seems to me doubtful that this possibility should uniformly deny a jury the right to consider the commonsense inference that a person normally does not intend to meet another unless the person has some basis for believing that the meeting will in fact occur.
Assume, for example, a case in which deceased stated that he was going to see the defendant at his home, and is thereafter found dead under circumstances pointing to the defendant as the killer. Under the approach set forth in the House Committee Report, it is clear that the statement of the deceased declarant would be admissible as evidence that he had indeed gone to the defendant’s home and that a jury could infer from that fact the possibility that he may have seen the defendant, and could consider that evidence together with other evidence pointing to the defendant as the person who caused his death. However, the jury would not be allowed to learn that he had stated his intent to see the defendant, or, if *101that were permitted, would not be permitted to infer from that statement that the deceased had reason to believe that the defendant would be home.
What seems to me apparent in this situation is that the House Committee Report effectively denies jurors the right to make precisely the kind of factual evaluation that jurors are qualified to make, and that it limits the inferences reasonably to be drawn from the evidence in a way that distorts the reality of the situation without a countervailing benefit. There may well be situations in which a person may intend to drop in on another without any reason to suppose that this individual is at home. Jurors are entirely capable of evaluating that possibility under the circumstances presented. But there are clearly many situations in which it is apparent that the deceased declarant would not undertake to visit the defendant unless he had good reason to know that the defendant was at home, either because he was aware from past experience that the defendant was likely to be home at the time or because of some specific communication, directly or indirectly, with the defendant.
If, as appears undisputed, the statement of a deceased declarant would be admissible as some evidence that he went to the defendant’s home, it is difficult to see a persuasive reason why the jury may not consider on the basis of the relevant circumstances the obvious possibility, if not likelihood, that the deceased had formed that intent on the basis of some reason, satisfactory to him, to believe that the defendant would be home. It seems to me indisputable that the probative trustworthiness of such an inference would be greater, and the possibility of unfairness to the defendant less, than in many situations in which circumstantial evidence is unhesitatingly admitted into evidence.
Assume a different situation in which the deceased declarant told someone that he was going to meet the defendant at a place at which the defendant would not ordinarily be except for some special arrangement, and the deceased is found dead somewhere else, under circumstances independently pointing to the defendant as his killer. Under the rule favored by scholars, the statement would be admissible to establish that the deceased had gone to that place if that were relevant to an issue in the case, but would not be admissible to the extent to which the deceased said that he was going to meet the defendant there. But if the circumstances are such as to justify a jury in inferring that the deceased went to the *102indicated place, it is difficult to see why the purpose of his going there, a fact inextricably linked with his intention, and the basis for his stated intention, is automatically so untrustworthy, or its admission so unfair to the defendant, that this integral part of the admitted statement should be excluded from the jury’s consideration. It seems peculiarly unrealistic to exclude the jury from considering the possibility that the deceased met the defendant where, as would uniformly be the fact in criminal prosecutions, other circumstances, independent of the statement of the deceased, point to the defendant as having been guilty of the homicide.
Returning to the issue in the Hillmon case (supra) and Professor Maguire’s analysis of its hearsay implications, it appears to accept that if otherwise relevant to the case, Walters’ statement that he was going on a trip would have been admissible as evidence that he had in fact gone on such a trip. But is there any realistic basis to believe that he would have truthfully reported his plans to go on a trip, but for some inexplicable reason would have falsely claimed that he was going on a trip with a particular person? In the Hillmon case, the inference that Hillmon accompanied Walters on the trip is almost as strong, if not as strong, as the inference that Walters in fact went on the trip. Although this is not always true, it can be said with confidence that in many situations the trustworthy nature of the inference to be be drawn with regard to the person named is compelling, and that the result of the proposed limitation will often be to exclude reliable evidence for plainly insufficient reasons.
A curious aspect of the rule adopted in the House Committee Report and advocated in the Commentary to the Proposed New York Code of Evidence, and one that I have not seen discussed elsewhere, is that it permits introduction of statements of intent as a basis for inferences with regard to another person under circumstances that have less probative value than those statements which it excludes, or the inferences from which it limits.
Assume, for example, that in the immediate case the deceased had told a witness that it was important for her to meet the defendant and that she was going to do so, and that she was thereafter found dead under circumstances pointing to the defendant as the killer, of comparable probative value to those presented here. Such a statement, as I understand it, would present no hearsay issue even though it were offered as evidence that the deceased may have met defendant at a *103relevant time, since the statement does not include directly or by implication anything of a hearsay character relating to the defendant’s actions or state of mind. The single question presented would be the normal one raised by any offer of circumstantial evidence — its relevance to an issue in the case. And although the inference to be drawn from the statement would be attended by several contingencies of a doubtful kind, it would seem to me clear that such a statement would in fact be admissible as relevant in a case in which independent evidence of a significantly probative value pointed to the defendant as the killer.
Such a statement would at least have as much probative value as would testimony by a witness that he had seen the defendant at a relevant time in the neighborhood of the deceased’s apartment building, testimony that would surely be admitted under the circumstances presented here even though considered by itself, and without regard to other circumstances, it would have no value and would depend upon an inference as to the defendant’s state of mind.
Or consider that in the instant case the deceased had told the witness that she was going to call the defendant and ask him to come over to her apartment. A statement of this kind likewise would have presented no hearsay problem of the kind alleged to be presented by the statement with which we are concerned. The single issue would have been the circumstantial one of whether her intent to call the defendant to come over should be considered by the jury together with the other evidence in the case, and I have little doubt that an application of the normal principles of relevancy would have supported its admission.
What is striking about these illustrations is that they present no hearsay problems with regard to statements of intent offered as a basis for drawing an inference as to a defendant’s action although the probative value of the statements is clearly significantly less than the value of the statements of the kind presented in Hillmon (145 US 285, supra), Malizia (92 AD2d 154, supra), and in this case, statements alleged to be inadmissible as violative of the hearsay rule. It is surely permitted to doubt the correctness of a rule that yields such anomalous and apparently unrealistic results.
In approaching the central issue presented here, I would think that analysis should start with the lesson of ordinary human experience that people do not usually say that they *104are going to meet another unless they have reason to believe that such a meeting will in fact take place. No doubt there are circumstances in which a declarant may have formed his intention on the basis of inaccurate or unreliable information or because of a misunderstanding, and for these reasons it is important for the trial court to be satisfied that the statement was serious in character and made under circumstances persuasive as to its trustworthiness. Where the circumstances surrounding the statement meet those criteria, it would seem to me that the reason for admitting such testimony and its probative value is unmistakably clear in the kind of situation with which we are concerned, and that juries may be trusted to evaluate the evidence in a way that will present no significant problem of unfairness to a defendant.
The rule that follows from the above analysis, the one set forth in Hillmon (supra) and in a host of cases since Hillmon, seems to me this: If a statement of intent by the deceased declarant is made under circumstances which justify its admissibility as evidence that he did what he said he would do, the fact that his intention was influenced by or based on information or facts that would, by themselves, have been excludable as hearsay, should not deny the jury the right to consider the evidence or artificially limit the jury in the inferences that they might derive from the evidence when considered together with all of the evidence in the case.
In Professor Maguire’s article, he refers to notes on evidence by Dean Thayer, himself a distinguished authority in the area of evidence, who was secretary to the author of the Hillmon opinion at the time the opinion was written. Dean Thayer concluded with regard to the Hillmon doctrine " 'that some broad and simple rule like this is really necessary.’ ” (38 Harv L Rev 712.) Notwithstanding the scholarly criticisms which have been leveled at the Hillmon doctrine, I believe that this view, which has been accepted by numerous courts in a broad range of circumstances, reflects a response to the situation presented that makes sense in accordance with the lessons of human experience.
Accordingly, the judgment of the Supreme Court, New York County (Joan B. Carey, J.), rendered May 3, 1984, convicting defendant of three counts of murder in the second degree, one count each of robbery in the first degree and burglary in the second degree, and sentencing him to three terms of imprisonment of from 15 years to life on the murder counts to run concurrently with each other, and with concurrent sentences *105of 5 to 15 years on the robbery and burglary counts, should be affirmed.
Sullivan and Kassal, JJ., concur with Carro, J; Sandler, J. P., and Wallach, J., dissent in an opinion by Sandler, J. P.
Judgment, Supreme Court, New York County, rendered on May 3, 1984, reversed, on the law, and the matter remanded for a new trial.