[112] OPINION OF THE COURT
Rosenblatt, J.
CPL 670.10 authorizes a trial court to allow into evidence the testimony of a witness given at a prior trial if the witness is outside the state and cannot with due diligence be brought before the court. In the appeal before us, we must determine whether the People met this due diligence standard.
After three mistrials (two of which resulted in hung juries), defendant was convicted of robbery in the second degree (see, Penal Law § 160.10 [2] [b]). The only prosecution witness who could identify defendant as the assailant was the victim, Oscar Leal. Immediately after the third trial, Leal left the United States to take up permanent residence in Mexico. Leal, a Mexican national, required the assistance of a Spanish-language interpreter at the first three trials. New York officials telephoned Leal to ask him to return to the United States for a fourth trial. They did not, however, address him in his native language or employ an interpreter. Because the People did not ensure that the witness understood those conversations, we hold, as a matter of law, that the People acted with less than due diligence, and therefore reverse and order a new trial,1
L
At the first three trials, Leal testified, in substance, that defendant threatened to shoot him if he did not surrender his valuables. He complied, surrendering $20 and his wristwatch. On the way to a friend’s house to telephone the police, Leal noticed a patrol car. He stopped the car and reported the robbery. After a brief investigation, the police officers arrested defendant and in his pocket found a $20 bill and Leal’s watch. When arrested, defendant claimed that he did not rob anyone, but had merely found the watch.
[113] Following the third mistrial, the defense moved for a trial order of dismissal pursuant to CPL 210.40 (1). After a hearing pursuant to People v Clayton (41 AD2d 204 [1973]), Supreme Court declined to dismiss the indictment. Although Leal had by this time moved to Mexico, the People did not reveal that fact to the Justice deciding the Clayton motion.2
When the case was called for the fourth trial, the People informed the court that Leal would not return to the United States. They sought permission to introduce into evidence a transcript of Leal’s prior testimony in lieu of his live appearance. In opposition, defendant argued that admitting a transcript would violate CPL 670.10 and his constitutional right to confront witnesses against him.
The court conducted a hearing on whether to allow the People to use transcripts in place of Leal’s testimony. At the hearing, the Assistant District Attorney (ADA) testified that during a recess in the third trial, Leal said he intended to return to Mexico to work on his mother’s farm. The ADA believed, however, that Leal was merely musing about the possibility of moving “sometime in the future.” Hearing testimony further revealed that in preparation for the fourth trial, the ADA attempted to contact Leal at his last-known home and workplace, but could not find him. Leal’s employer informed the ADA that he believed Leal had returned to Mexico. Ultimately, police detectives obtained Leal’s Mexican address and phone number from Leal’s cousin.
A detective testified that he telephoned Leal in Mexico and told him, in English, that he was needed in New York for a fourth trial, but Leal said he was too busy to return. The detective testified that in his opinion, Leal could understand English. A different ADA then testified that he telephoned Leal to follow up on the detective’s conversation. Addressing Leal in English, the ADA offered to pay the travel expenses, but Leal still refused to return to New York. The hearing concluded with the ADA’s testimony that Leal “certainly wasn’t fluent in English,” but “appeared to understand me at some point.”
The court granted the People’s motion, concluding “that the People have exercised due diligence” in attempting to bring Leal before the court. The jury convicted defendant of robbery in the second degree, and the Appellate Division affirmed. The [114] dissenting Appellate Division Justice granted defendant leave to appeal to this Court, and we now reverse.
II
Insofar as it allows a jury to convict a defendant based on a witness’s previous testimony, CPL 670.10 (1) is an exception to the Sixth Amendment right of confrontation (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 670.10, at 382-383). Although the right of confrontation contemplates that testimony against an accused be “delivered live within eyesight and earshot of the jurors” (People v Arroyo, 54 NY2d 567, 577 [1982]), the statute makes, and the Constitution allows, limited departures based on necessity and fairness.
In a number of instances this Court has sustained the use of previous testimony pursuant to CPL 670.10. We did so, for example, in Arroyo (54 NY2d, at 573, supra), by upholding the introduction of a witness’s prior testimony after she had disappeared inexplicably. In Arroyo, however, the People exercised due diligence in trying to locate her. After she had failed to appear, the prosecutor called her apartment twice; detectives visited the apartment several times, questioned neighbors, and searched for her “at the neighboring public hospital, at the Missing Persons Bureau, at the Bureau of Criminal Investigation and at the local [welfare] office” (id., at 573). These lines of inquiry brought investigators “to but one dead end after another” (id.). Accordingly, this Court concluded that the People exercised due diligence. Similarly, in People v Robinson (89 NY2d 648, 651 [1997]), we permitted the defense to introduce a witness’s Grand Jury testimony when the witness could not be brought before the court, notwithstanding the defendant’s due diligence.3
On the other hand, in other CPL 670.10 settings we have barred the use of transcript testimony when the statute’s terms were not strictly met. For example, we refused to countenance the use of transcript testimony in People v Green (78 NY2d 1029, 1030 [1991]) and People v Harding (37 NY2d 130, 133 [115] [1975]), in which we cautioned that courts may not freely expand CPL 670.10’s exceptions to confrontation.4
To prevent exceptions from devouring the rule, we have required “that the prosecutor’s failure to produce [a witness] * * * not [be] due to indifference or a strategic preference for presenting her testimony in the more sheltered form of [a transcript] rather than in the confrontational setting of a personal appearance on the stand” (Arroyo, 54 NY2d, at 571, supra).
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[112] OPINION OF THE COURT
Rosenblatt, J.
CPL 670.10 authorizes a trial court to allow into evidence the testimony of a witness given at a prior trial if the witness is outside the state and cannot with due diligence be brought before the court. In the appeal before us, we must determine whether the People met this due diligence standard.
After three mistrials (two of which resulted in hung juries), defendant was convicted of robbery in the second degree (see, Penal Law § 160.10 [2] [b]). The only prosecution witness who could identify defendant as the assailant was the victim, Oscar Leal. Immediately after the third trial, Leal left the United States to take up permanent residence in Mexico. Leal, a Mexican national, required the assistance of a Spanish-language interpreter at the first three trials. New York officials telephoned Leal to ask him to return to the United States for a fourth trial. They did not, however, address him in his native language or employ an interpreter. Because the People did not ensure that the witness understood those conversations, we hold, as a matter of law, that the People acted with less than due diligence, and therefore reverse and order a new trial,1
L
At the first three trials, Leal testified, in substance, that defendant threatened to shoot him if he did not surrender his valuables. He complied, surrendering $20 and his wristwatch. On the way to a friend’s house to telephone the police, Leal noticed a patrol car. He stopped the car and reported the robbery. After a brief investigation, the police officers arrested defendant and in his pocket found a $20 bill and Leal’s watch. When arrested, defendant claimed that he did not rob anyone, but had merely found the watch.
[113] Following the third mistrial, the defense moved for a trial order of dismissal pursuant to CPL 210.40 (1). After a hearing pursuant to People v Clayton (41 AD2d 204 [1973]), Supreme Court declined to dismiss the indictment. Although Leal had by this time moved to Mexico, the People did not reveal that fact to the Justice deciding the Clayton motion.2
When the case was called for the fourth trial, the People informed the court that Leal would not return to the United States. They sought permission to introduce into evidence a transcript of Leal’s prior testimony in lieu of his live appearance. In opposition, defendant argued that admitting a transcript would violate CPL 670.10 and his constitutional right to confront witnesses against him.
The court conducted a hearing on whether to allow the People to use transcripts in place of Leal’s testimony. At the hearing, the Assistant District Attorney (ADA) testified that during a recess in the third trial, Leal said he intended to return to Mexico to work on his mother’s farm. The ADA believed, however, that Leal was merely musing about the possibility of moving “sometime in the future.” Hearing testimony further revealed that in preparation for the fourth trial, the ADA attempted to contact Leal at his last-known home and workplace, but could not find him. Leal’s employer informed the ADA that he believed Leal had returned to Mexico. Ultimately, police detectives obtained Leal’s Mexican address and phone number from Leal’s cousin.
A detective testified that he telephoned Leal in Mexico and told him, in English, that he was needed in New York for a fourth trial, but Leal said he was too busy to return. The detective testified that in his opinion, Leal could understand English. A different ADA then testified that he telephoned Leal to follow up on the detective’s conversation. Addressing Leal in English, the ADA offered to pay the travel expenses, but Leal still refused to return to New York. The hearing concluded with the ADA’s testimony that Leal “certainly wasn’t fluent in English,” but “appeared to understand me at some point.”
The court granted the People’s motion, concluding “that the People have exercised due diligence” in attempting to bring Leal before the court. The jury convicted defendant of robbery in the second degree, and the Appellate Division affirmed. The [114] dissenting Appellate Division Justice granted defendant leave to appeal to this Court, and we now reverse.
II
Insofar as it allows a jury to convict a defendant based on a witness’s previous testimony, CPL 670.10 (1) is an exception to the Sixth Amendment right of confrontation (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 670.10, at 382-383). Although the right of confrontation contemplates that testimony against an accused be “delivered live within eyesight and earshot of the jurors” (People v Arroyo, 54 NY2d 567, 577 [1982]), the statute makes, and the Constitution allows, limited departures based on necessity and fairness.
In a number of instances this Court has sustained the use of previous testimony pursuant to CPL 670.10. We did so, for example, in Arroyo (54 NY2d, at 573, supra), by upholding the introduction of a witness’s prior testimony after she had disappeared inexplicably. In Arroyo, however, the People exercised due diligence in trying to locate her. After she had failed to appear, the prosecutor called her apartment twice; detectives visited the apartment several times, questioned neighbors, and searched for her “at the neighboring public hospital, at the Missing Persons Bureau, at the Bureau of Criminal Investigation and at the local [welfare] office” (id., at 573). These lines of inquiry brought investigators “to but one dead end after another” (id.). Accordingly, this Court concluded that the People exercised due diligence. Similarly, in People v Robinson (89 NY2d 648, 651 [1997]), we permitted the defense to introduce a witness’s Grand Jury testimony when the witness could not be brought before the court, notwithstanding the defendant’s due diligence.3
On the other hand, in other CPL 670.10 settings we have barred the use of transcript testimony when the statute’s terms were not strictly met. For example, we refused to countenance the use of transcript testimony in People v Green (78 NY2d 1029, 1030 [1991]) and People v Harding (37 NY2d 130, 133 [115] [1975]), in which we cautioned that courts may not freely expand CPL 670.10’s exceptions to confrontation.4
To prevent exceptions from devouring the rule, we have required “that the prosecutor’s failure to produce [a witness] * * * not [be] due to indifference or a strategic preference for presenting her testimony in the more sheltered form of [a transcript] rather than in the confrontational setting of a personal appearance on the stand” (Arroyo, 54 NY2d, at 571, supra).
The case before us confirms the importance of this requirement. The proof rested principally on Leal’s testimony. Considering that defendant was found with a $20 bill and Leal’s watch, the case would seem open and shut. And yet, two juries heard the proof and observed the victim but were unable to conclude that defendant was the robber. It may, of course, be a coincidence, but the fact remains that the only jury to convict defendant had no opportunity to see, hear and appraise the victim. Indeed, in summation at the third trial, defense counsel specifically asked the jury to assess Leal’s demeanor. The defense emphasized Leal’s hesitancy in pointing to defendant as the robber, and argued that this reluctance pointed to defendant’s innocence.
By allowing the People to base their case largely on a cold transcript, the court prevented the fourth jury from evaluating Leal’s demeanor and, thus, his credibility. Before the Appellate Division, and again here, the defense contended that the ADA wanted Leal to remain absent. Regardless of what may or may not have been the People’s subjective intent, we conclude that they undertook insufficient steps to constitute due diligence.
It was obvious that Leal was not confident in English. Due diligence requires that when the People try to secure a witness’s presence at trial, they communicate in language the witness can understand. And there should be no question about the witness’s understanding. The matter should not be left to surmise or impressions as to the witness’s capacity to appreciate the conversation fully. In this case the People were so unsure of Leal’s ability to speak and understand English that they provided him with an interpreter to prove their case before the jury. The People in effect ask us to conclude that Leal did [116] not understand English well enough to be an effective witness at trial, but did understand English well enough to grasp the subtleties of a conversation designed to induce him to travel thousands of miles from his home. Compliance with the requirements of due diligence in this case would have posed no extraordinary burden. Asking a Spanish-speaking detective to contact Leal could have been accomplished with minimal effort.
At the hearing’s culmination, the ADA told the court that when he spoke to Leal on the telephone, Leal “appeared to understand me at some point.” (Emphasis supplied.) Under the circumstances this is not enough. The due diligence requirement of CPL 670.10 is not satisfied by mere appearances or equivocation. Before proceeding without the witness, the court must be assured that the witness is beyond the practical reach of the prosecution.
Under CPL 670.10, a party seeking to induce a witness to return to the United States for trial — here, for a fourth trial— must make more than a pro forma request before the court declares the witness unavailable. Even under ordinary circumstances it is often difficult to convince victims to testify in criminal trials. Traveling from distant points, let alone from out of the country, presents even greater difficulties. Such witnesses would understandably be concerned about the length of time required, travel arrangements, expenses and potential personal disruption that might accompany a trip of this sort. Due diligence under these circumstances required the People to explain to the witness, fully and plainly, what they would do to accommodate these concerns. Here, as a matter of law, the People did not exercise due diligence within the meaning of CPL 670.10 (1).5
Contrary to our dissenting colleague’s contention, we have not determined that Leal could speak and understand only Spanish. Indeed, as the dissent emphasizes, Leal had “some proficiency in English” (dissenting opn, at 118). In measuring the People’s diligence in the case before us, however, it is the level of Leal’s comprehension that counts. Even the most [117] rudimentary communications — explaining a timetable or giving travel directions — can be labored if not confusing for someone with a limited understanding of the language.
We do not doubt that Leal knew the prosecution wanted him back, but that does not satisfy the People’s burden of establishing due diligence in convincing him to return. Considering that a trial on paper should be conducted only as a last resort, the underlying goal of CPL 670.10 is not for the prosecution to go through the motions come what may, but to succeed in bringing the witness to court. In the face of Leal’s reluctance, the prosecution could have engaged a bilingual individual who could have evaluated Leal’s misgivings and explained the lengths to which the State was willing to go to assuage them. This would have been easy. Just as the importance of having accurate testimony at trial prompted the People to use a translator, the comparable importance of having live testimony required that the People address Leal in his native tongue when trying to secure his presence at trial. In sum, using understandable language to get the witness to the trial is as important as using understandable language to question the witness at the trial.
The dissent recognizes the need for clarity in a witness’s testimony and the potential for confusion when being cross-examined in another language. The same confusion and lack of comprehension, however, are equally likely when explaining the nature and extent of the State’s promises regarding travel, costs and time away from home.
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.