author: Conway, J. Fuld, J. Dye, J.

text:
    In the Matter of Alex Di Brizzi, Appellant. Joseph M. Proskauer et al., as Members of the New York State Crime Commission, et al., Respondents.
    Argued June 21, 1951;
    decided July 11, 1951.

      Louis Waldman, Martin Markson and Seymour M. Waldman for appellant.
    I. The subpoenas herein require petitioner to appear and testify in an executive investigation into the commission of crime and petitioner’s relation to such crime. (Ward Baking Co. v. Western Union Tel. Co., 205 App. Div. 723.) II. The Governor has no power under the Constitution and laws of the State of New York to create the New York State Crime Commission to conduct hearings, subpoena witnesses and exercise the powers, duties and functions conferred on this commission by the Executive Order. (Ward Baking Co. v. Western Union Tel. Co., 205 App. Div. 723; People ex rel. McDonald v. Keeler, 99 N. Y. 463.) III. Subdivision 8 of section 62 of the Executive Law does not authorize the creation of the New York State Crime Commission with its broad powers, duties and functions to conduct an investigation into organized crime, who committed it, and the links, if any, between organized crime and its perpetrators and any unit of government. (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Matter of McMaster v. Owens, 193 Misc. 284, 275 App. Div. 506; Metropolitan Life Ins. Co. v. Durkin, 195 Misc. 1040; Neuendorf v. Duryea, 6 Daly 276; Ward Baking Co. v. Western Union Tel. Co., 205 App. Div. 723; Matter of Ellis, 176 Misc. 887.) IV. If subdivision 8 of section 62 of the Executive Law is construed to authorize the creation of the New York State Crime Commission, with the powers, duties and functions conferred it, then the statute is unconstitutional. (Ward Baking Co. v. Western Union Tel. Co., 205 App. Div. 723; Matter of Both, 200 App. Div. 423; People v. Hebberd, 96 Misc. 617; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123; People ex rel. Travis v. Knott, 204 App. Div. 379; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Fleming v. Mayer, 41 Misc. 289.) V. The power of subpoena conferred on the Attorney-General is constitutional only when conferred by a statute dealing with specific economic or industrial activities deemed subject to license or similar control and preserving the rights of the witness by express safeguards which do not exist in the present case. (Dunham v. Ottinger, 243 N. Y. 423; Matter of Davies, 168 N. Y. 89; Hill v. Florida, 325 U. S. 538; Thomas v. Collins, 323 U. S. 516; People ex rel. Kenny v. Adams, 292 N. Y. 65.) VI. In naming the members of the State Crime Commission, the Governor invaded the discretion conferred upon the Attorney-General by subdivision 8 of section 62 of the Executive Law. Nor did the Attorney-General have power under that section to name a commission acting as a single entity. In addition the commission has failed to file its rules with the Department of State as required by section 8 of article IV of the State Constitution.

      Nathaniel L. Goldstein, Attorney-General, John M. Harlan, Special Assistant Attorney-General (Ben A. Matthews and Jerome G. Shapiro of counsel), for respondents.
    I. The present investigation is authorized by subdivision 8 of section 62 of the Executive Law. II. The present investigation is authorized by section 8 of the Executive Law. (Matter of Bleahley v. Schlesinger, 294 N. Y. 312; Schiffman v. Bleahley, 46 N. Y. S. 2d 353.) III. The present investigation pursuant to the Executive Law is in aid of the Governor’s duties. (People ex rel. McDonald v. Keeler, 99 N. Y. 463.) IV. A statute conferring subpoena power on the executive in aid of his functions is constitutional. (Dunham v. Ottinger, 243 N. Y. 423; Matter of MacNamara, 128 Misc. 84, 218 App. Div. 822; Schiffman v. Bleahley, 46 N. Y. S. 2d 353; Matter of Bleahley v. Schlesinger, 294 N. Y. 312.) V. The issuance of the present subpoenas violates no individual constitutional right of petitioner. (People ex rel. McDonald v. Keeler, 99 N. Y. 463; Matter of Withrow v. Joint Legislative Comm., 176 Misc. 597.) VI. There has been no unconstitutional interference with petitioner’s private affairs. (Matter of Ottinger, 216 App. Div. 271; Schiffman v. Bleahley, 46 N. Y. S. 2d 353; Matter of Ferrari, 134 Misc. 728; Matter of Davies, 168 N. Y. 89.)
   Conway, J.

In this proceeding, petitioner seeks to challenge the legality and constitutionality of an investigation ordered by the Governor, to be conducted by the Attorney-General and certain “ officers of the Department of Law ”, who were specially appointed for the purpose and who were denominated, collectively, as the “ New York State Crime Commission ”.

The petitioner was subpoenaed to appear at a specified place “before the New York State Crime Commission, one of its members, or such other officer as shall have been designated by the Attorney General ”, on April 24, 1951, “as a witness to testify and give evidence in an inquiry into matters concerning the public peace, public safety and public justice, as directed by the Executive Order of the Governor of the State oí New York dated March 29, 1951 * * V’ The subpoena was issued over the names of the members of the denominated “ New York State Crime Commission ” and the Attorney-General and was signed by the “ Chief Counsel to the New York State Crime Commission and Special Assistant Attorney General.” In obedience to the subpoena, petitioner appeared on the date specified therein and was asked to sign a waiver of immunity. Upon his refusal to do so on advice of counsel, no further proceedings were had, and he was served with a second subpoena, identical in form with the first, requiring his appearance on May 8, 1951. On that date, the present application to quash, set aside and vacate the subpoenas was made at Special Term, and petitioner’s examination was postponed pending the determination of the issues raised herein.

Special Term (Benvenga, J.) denied the application (199 Misc. 670) and the Appellate Division affirmed unanimously. Petitioner now appeals to this court, as of right, upon constitutional grounds. (Civ. Prac. Act, § 588, subd. 1, cl. [a]).

Petitioner contends that the subpoenas are illegal and void and should be quashed upon the following grounds: (1) That there is no statutory authority in this State for an investigation such as that contemplated by the Executive Order and, particularly, that there is no statutory authority for the creation of a “ New York State Crime Commission ”, having subpoena powers; (2) that if the only pertinent statute, hereinafter to be netted, purports to grant such authority, it is unconstitutional; and (3) that petitioner’s personal constitutional rights have been violated.

The Governor’s Executive Order of March 29, 1951, named five distinguished men as constituting “ the New York State Crime Commission to investigate and take action concerning the relationship between organized crime and Government, with the following duties, powers and authorities: ”. In the first numbered paragraph of the order, the commission was directed: To investigate generally the relationship between organized crime and any unit of Government anywhere in the state.” Paragraph III directed the commission to examine into the relationship between the Government of the State and local criminal law enforcement with particular reference ” to seven specified problems. The commission was authorized to co-operate with all public officers engaged in the investigation or the prosecution of crime or corruption ” (Par. II), and to “ conduct public or private hearings to accomplish the several purposes of the commission ”. (Par. IV.) All units of the State and local governments were directed to co-operate with the commission. (Par. VII.) The order further provided:

“ (V)
“ Pursuant to the provisions of Section 62, Subdivision 8 of the Executive Law, the Attorney General of the State is hereby directed to inquire into the matters hereinabove set forth involving the public peace, public safety and public justice and is requested to do so by appointing the members of the commission and such counsel, deputies, officers and other persons as the commission may require to accomplish the purpose of this order and to fix their compensation.
“ (VI)
The commission hereby established and the Attorney General in cooperation with the commission are hereby authorized and directed to exercise for the accomplishment of the purpose of this order all powers and authorities set forth in Section 62, Subdivision 8 of the Executive Law, and are hereby authorized by me to exercise any power to administer oaths and examine witnesses under oath, to subpoena any person, books, papers or records which I may have or have the power to delegate by virtue of any of the provisions of the Executive Law.”

The Attorney-General thereupon appointed each of the five men mentioned in the Executive Order “ an officer of the Department of Law of the State of New York, to wit, a member of the New York State Crime Commission ”.

Subdivision 8 of section 62 of the Executive Law (now § 63, subd. 8) which was expressly mentioned in the Executive Order (supra) provides in part as follows: “ Whenever in his judgment the public interest requires it, the attorney-general may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice. For such purpose he may, in his discretion, and without civil service examination, appoint and employ, and at pleasure remove, such deputies, officers and other persons as he deems necessary, determine their duties, and, with the approval of the governor, fix their compensation. * * * The attorney-general, his deputy or other officer designated by Mm, is empowered to subpoena witnesses, compel their attendance, examine them under oath before himself or a magistrate and require the production of any books or papers which he deems relevant or material to the inquiry. * * ” (Emphasis supplied.)

We agree with petitioner that there is no statutory authorization for the creation of a “ New York State Crime Commission ” as such. That phrase is unknown to any statute in this State. Our inquiry does not end there, however, for the Governor, after purporting to constitute such a commission and stating the scope of the investigation in his Executive Order, went further in paragraphs V and YI thereof and directed the Attorney-General, pursuant to subdivision 8 of section 62 of the Executive Law, “ to inquire into the matters hereinabove set forth involving the public peace, public safety and public justice ” and requested ” the Attorney-General to do so by appointing the members of the commission. The Attorney-General, as noted above, has appointed each of the persons named in the Executive Order as “ an officer of the Department of Law of the State of New York, to wit: a member of a commission to be known as the New York State Crime Commission ”. That procedure was in accordance with the statute which authorizes the Attorney-General to appoint and employ “ such deputies, officers and other persons as he deems necessary The further designation that, collectively, the five named persons are to be called the New York State Crime Commission cannot invalidate the otherwise legal appointments. It is merely a convenient name for a group of individuals engaged in a common endeavor. Nor do we think that the Attorney-General was deprived of the discretion granted to him under the statute in making the appointments. The Governor, in his Executive Order, did not direct the Attorney-General to appoint the named individuals, but merely requested him to do so. The fact that the Attorney-General, who is an elected official in his own right, acceded to the Governor’s request and appointed those named cannot be taken to mean that he was thereby prevented from exercising his own discretion. Likewise, we do not think it of any consequence that certain of the members of the commission are not lawyers, since the statute permits the Attorney-General to appoint “ deputies, officers and other persons ” and this is not limited to attorneys.

We are thus led to the question of whether the investigation to be conducted by the Attorney-General, and his officers constituting the Crime Commission, is within the purview of subdivision 8 of section 62 of the Executive Law. That subdivision grants authority to ‘ ‘ inquire into matters concerning the public peace, public safety and public justice. ’ ’ The words there used by the Legislature are sufficiently broad to encompass an investigation such as the one here involved, the principal purpose of which is to determine whether there exists a relationship between organized crime and any units of government in the State. We think the Legislature intended to use the words in their usual and ordinary sense, rather than to ascribe a narrow and technical meaning to them. Petitioner, however, points to the fact that the statute — Executive Law, section 62, subdivision 8 — was enacted in May, 1917, one month following the entry of the United States into World War I (L. 1917, ch. 595) and urges that it was merely “ a war measure with the limited scope of enabling the executive to cope with riots, insurrections, rebellions, sabotage,- and similar acts interfering with the very foundations of the State.” There is little doubt, of course, that the Legislature first recognized the need for such a statute as this because of a war emergency. The Legislature, in enacting the statute, however, utilized general terms, and did not, either expressly or by implication, limit its operation to a time of war. We may not do so now. As we noted in People ex rel. McClelland v. Roberts (148 N. Y. 360, 368): A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time, but, so long as it is expressed in general language, the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy.”

Likewise unavailing to petitioner is the fact that, in 1918, the then Attorney-General in his report stated that the powers conferred by subdivision 8 of section 62 of the Executive Law should not be continued in peacetime and recommended that the statute be repealed at the end of the war (1918 Atty. Gen. 16). The simple answer to this argument is that the Legislature failed to heed the recommendation of the Attorney-General and refused to repeal the statute. That, we think, is fairly conclusive evidence that the Legislature determined that the powers conferred by the statute upon the Governor and the Attorney-General might be necessary for the public good in time of peace as well as in time of war. Moreover, petitioner’s contention on this point is self-defeating, for even if it be assumed that the statute be applicable only when “ sabotage ” or some such peril threatens ‘ the very existence of the State ’ ’, how can it be denied that a 11 relationship between organized crime and any unit of Government anywhere in the state ”, if shown to exist, might have that very result. An alliance between the underworld and public officials would strike at the foundation of law and order in this State. Organized crime which subverts local units of government is as dangerous a substantive evil as sabotage.

It is thus quite clear that organized crime and its relationship to units of government in this State are “ matters concerning the public peace, public safety and public justice ” within the meaning of subdivision 8 of section 62 of the Executive Law. That being so, the question then arises as to whether the Legislature constitutionally had the power to authorize such an investigation. As a general proposition, it is clear beyond dispute that the Legislature may constitutionally confer authority upon an executive department to exercise subpoena power in connection with an investigation in aid of the executive function. In Dunham v. Ottinger (243 N. Y. 423), we said (pp. 434-435):

The power to investigate and examine witnesses to the end of a better discharge of their duties has been conferred upon administrative boards and officials without successful challenge by so many statutes that it is undesirable to refer to them all. * * *
The power here attacked is akin to that right of the Legislature to investigate and to subpoena and examine witnesses to the end of safeguarding public interests by appropriate legislation and which is so well established as to have passed beyond the realm of controversy. (People ex rel. McDonald v. Keeler, 99 N. Y. 463.) ” Thus, the only question here presented is whether the investigation directed by the Governor can reasonably be said to be for the purpose of securing information to advise him in his executive function.

Under the State Constitution, the Governor’s duties include the following (art. IV, § 3): “ * * * He shall communicate' by message to the legislature at every session the condition of the state, and recommend such matters to it as he shall judge expedient. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed. * * * ” Obviously, we cannot say that it is of no importance to the Governor in the discharge of his duties under the Constitution that he have the information sought to be obtained through the present investigation. If there be a relationship between organized crime and units of government in the State and if there be defects in the existing relationship between the State Government and local law enforcement, .these are matters affecting the condition of the state ” which should be communicated to the Legislature with appropriate recommendations for their elimination. If existing laws be adequate, at least the Governor would have additional information so that he might “ take care that the laws are faithfully executed.”

Since there exists a reasonable relation between the action taken by the Governor, through the Attorney-General, and the proper discharge of the executive function, it cannot be said that subdivision 8 of section 62 of the Executive Law, as here utilized and applied, is unconstitutional.

The fact that the Attorney-General and the members of the Crime Commission, in determining whether there exists a relationship between organized crime and units of government, may find it necessary to inquire as to whether individual crimes have been committed does not, as petitioner urges, render the investigation unconstitutional as a usurpation of the traditional province of the grand jury in each county of the State. This is a general investigation into organised crime and its relation to government. As an incident thereto, it may be that the existence of specific, individual crimes will be uncovered, but that will merely be collateral and subordinate to the main object of inquiry. The purpose of the investigation is to secure information to guide executive action, not t.o indict .or punish any individuals. If the fact that a proposed investigation might be expected to disclose that crimes have been committed were to render such investigations unconstitutional, then few, if any, legislative or executive commissions could ever be validly created, for such commissions are not ordinarily established unless there is reason to believe that some violation of law has occurred.

The case upon which petitioner so heavily relies — Ward Baking Co. v. Western Union Tel. Co. (205 App. Div. 723) — is clearly distinguishable from the case at bar. In the Ward case, the Governor, purporting to act under subdivision 8 of section 62 of the Executive Law, directed the Attorney-General to inquire into the circumstances surrounding the death of one Clarence E. Peters ” (p. 725). The court held that the investigation “ was directed and conducted with the sole purpose in view of obtaining proof that the individual Ward killed the individual Peters with malice aforethought ” (p. 727) and that the statute was not intended, and could not constitutionally have been intended, ‘ ‘ to provide for a criminal investigation against a particular individual ” (p. 729). But, as we have said before, the purpose in the case at bar is not to conduct “ a criminal investigation against a particular person ’ ’, which is for a grand jury, but rather to investigate anywhere in the State the relationship between organized crime and units of government and the relationship between the State Government and local law enforcement. That is a vastly different purpose, and one which properly and constitutionally comes within the purview of the statute.

At this stage of the proceeding, on an application to quash the subpoenas, we cannot say that any personal constitutional right of petitioner has been violated. Whether or not his rights will be infringed by anything done pursuant to the subpoenas is not now before us. Either expressly or by implication of law, the safeguards upon the rights of witnesses before an executive commission, which we enumerated in Dunham v. Ottinger (supra, pp. 438-439), are likewise operative here.

The order appealed from should be affirmed, with costs.

Fuld, J.

(concurring). Study of the Executive Order makes clear that the Governor acted under both section 8 and subdivision 8 of section 62 of the Executive Law and, that being so, there can be no doubt either as to the authority of the Governor to appoint the so-called Crime Commission or as to the power of that commission to issue the subpoena here in question.

Dye, J.

(dissenting). I dissent and vote for reversal. We are all agreed that there is no authorization for the creation of a “ New York State Crime Commission ” as such. In the absence of constitutional authority or appropriate legislation, neither the Governor nor the Attorney-General has the power of subpoena or testimonial compulsion. However much the ultimate purpose here sought to be attained may be indicated and desired, it must under our system of government be accomplished according to law. The cardinal precept upon which the constitutional safeguards of personal liberty ultimately rest is that a government should be one of laws. (Jones v. Securities & Exch. Comm., 298 U. S. 1.)

In the present case, where the Governor and the Attorney-General, acting under a sense of public duty" in their understandable revulsion against organized crime, which has so menacingly manifested itself in recent years (see Proceedings of the Governor’s Conference on Crime, &c. [1935], hereinafter referred to as 1935 Governor’s Conference), have selected as members of the commission a group of lawyers and laymen of unquestioned character and integrity, the temptation to submit to approval is strong. But it is by such well-intentioned approaches and deviations from legal modes of procedure that dangerous practices often secure their first foothold (Boyd v. United States, 116 U. S. 616, 635).

We are not here concerned with the right of the Governor or his duly appointed representatives to gather information, hold hearings and invite voluntary attendance of interested persons in aid of the performance of his constitutional duties (see 1935 Governor’s Conference). We are dealing with the executive subpoena power. It may not be found in section 3 of article IV of our State Constitution, which provides that the Governor shall recommend to the Legislature such matters as he shall judge expedient. The President of the United States has a like duty with respect to the Congress (U. S. Const., art. II, § 3). Yet our attention has not been called to a single instance throughout all the course of our nation’s history where the power here claimed was exercised by the Chief Executive of the State or Nation, and these constitutional provisions have never been judicially or administratively construed as conferring such power in the absence of an express enabling act. Such power must be u authorized by law ” (Civ. Prac. Act, § 403).

When the Legislature has chosen to grant the power to subpoena, it has done so by express legislation limited to a specific purpose, as, for example, when it gave such power to the Governor under the Moreland Act (Executive Law, § 8), and in removal proceedings (Public Officers Law, § 34); to the Attorney-General under the Martin Act (General Business Law, §§ 352-359 [fraudulent practices in the sale of securities]), and the Donnelly Act (General Business Law, §§ 340-347 [monopolies and combinations in restraint of trade]), and with respect to elections (Executive Law, § 66-a, now § 69). (See Attorney-General’s Statement on the Limits of his Jurisdiction made to 1935 Governor’s Conference, pp. 655-656.) Indeed, even when the Legislature itself sought to exercise such power, it provided specific legislation for the purpose (Legislative Law, §§ 60, 62-a; Penal Law, § 1329). These statutes follow substantially the same pattern as to subpoena powers in recognition of existing limitations (People ex rel. MacDonald v. Keeler, 99 N. Y. 463), and have had our approval as valid enactments in Dunham v. Ottinger (243 N. Y. 423 [Martin Act]), and Matter of Davies (168 N. Y. 89 [Donnelly Act]). Thus, while it appears clear that the Legislature may confer subpoena powers on the executive in appropriate cases, whenever it has done so it has taken care to limit such powers to the matters specifically covered by the statute.

A majority of this court has concluded that the executive order and the proceedings taken thereunder, which are now challenged, fall within the purview of subdivision 8 of section 62 (now § 63, subd. 8) of the Executive Law, notwithstanding their agreement that there “ is little doubt, of course, that the Legislature first recognized the need for such a statute as this because of a war emergency.” (P. 214.)

This statute was originally enacted a few weeks after our entry into World War I as a “ Peace and Safety Act ” by chapter 595 of the Laws of 1917, effective May 21, 1917, for the purpose of dealing with wartime sabotage, espionage and subversive activities by enemy agents and sympathizers (1917 Atty. Gen. 8-9, under the caption “ Espionage Act ”; 1918, p. 16, under the caption Public Peace and Safety Act”; 1919, p. 5, under the caption “ Radicalism ”). The phrases public peace ”, “ public safety” and public justice ” were thus employed in keeping with an historical and established meaning, and as so used were properly referable to the situation then obtaining (Atty. Gen., id.; see Penal Law, art. 188; N. Y. Const., art I, § 4; Penal Law, arts. 14, 168; Ward Baking Co. v. Western Union Tel. Co., 205 App. Div. 723; Neuendorf v. Duryea, 6 Daly 276). The Attorney-General made full use of the authority thus conferred, not only to deal with wartime problems affecting the administration of State matters concerning public peace, safety and justice, but also to give useful assistance to the Department of Justice in its prosecution under the Espionage and Selective Service Acts and other wartime measures (1917 Atty. Gen. 8-9). Following the termination of World War I, the Attorney-General in his 1918 Report (p. 16) recommended the repeal of this statute after stating that it was “ well suited to war conditions ”. Nothing turns on the circumstance that the Legislature permitted the statute to remain in its original form, as is the case with other war measures. It is significant that Attorneys-General and Governors through all the intervening thirty-four years have never treated this enactment as being anything other than a war measure, with the exception hereinafter noted.

Long ago Chancellor Kent declared that the intent with which statutes were enacted is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view ” (1 Kent’s Commentaries 462; see, also, McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 95). Very recently we have pointed out that courts “ do not merely read the bare end product of the legislative labors ’ ’ but rather ‘1 read the statute in the light of the state of facts which were found by the Legislature, and which prompted the enactment ” (St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1, 31), and that “ statutes, directed against known and stated evils, are not to be stretched to cover situations having no real or reasonable relation to those evils ” (Metropolitan Life Ins. Co. v. Durkin, 301 N. Y. 376, 381). Long-continued administrative interpretation of a statute by those whose business it is to operate thereunder is persuasive in its construction and is entitled to great, if not controlling, weight (McKinney’s Cons. Laws of N. Y. Book 1, Statutes [1942 ed.], § 129; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104, 108).

The only time subdivision 8 of section 62 was invoked with respect to common-law and statutory crimes on the local level, the attempt was promptly rejected (Ward Baking Co. v. Western Union Tel. Co., supra). To give now to the words ‘1 public peace, public safety and public justice ’ ’ as used in subdivision 8 of section 62 a meaning broad enough to include authority to ‘ ‘ investigate generally the relationship between organised crime and any unit of G-overnment anywhere in the state ” (Executive Order, emphasis supplied) is to accomplish by judicial fiat something the Legislature could not reasonably have had in mind at the time the statute was enacted more than three decades ago. It is tantamount to giving the executive the power of the legislative and judicial branches of our government with respect to testimonial compulsion, for what matters do not touch “ public peace, public safety and public justice ” if those words' are to be given their broadest possible meaning, without reference to the mischief felt and the remedy in view at the time of enactment 1 Under such interpretation, long-recognized constitutional safeguards insuring due process are bound to be encroached upon. Organized crime is not an abstract concept ; it necessarily embraces specific unlawful acts by particular individuals, and the line between organized and unorganized crime is often difficult to detect. Assuming subdivision 8 of section 62 to be a valid enactment as a defense and safety wartime measure, it does uot follow that its language may be extended to embrace general investigatory power coupled with testimonial compulsion, and particularly so in the light of existing constitutional and statutory provisions.

Section 6 of article I. of our State Constitution provides, among other things: The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired hy ]aw, ’ ’ Ip the Report of the Subcommittee on Judicial Powers and Administration of the New York State Constitutional Convention Committee, of which then Chief Judge Frederick E. Crake was Chairman (Vol. IX, p. 861 [1938]), we read: “ It is undisputed that the grand jury is the only body authorized by law to conduct a general investigation into the commission of crime without a specific charge of crime and without the necessity for naming a specific defendant.” (See, also, Code Crim. Pro., §§ 252, 223; Ward Baking Co. v. Western Union Tel. Co., supra; Matter of Both, 200 App. Div. 423; People ex rel. Travis v. Knott, 204 App. Div. 379; People ex rel. Sandman v. Tuthill, 79 App. Div. 24; People ex rel. Sampson v. Dunning, 113 App. Div. 35; Harriman v. Interstate Commerce Comm., 211 U. S. 407.)

The safeguards attending a grand jury investigation (Code Crim. Pro., part IV, tit. IV, ch. II, particularly §§ 223, 249, 255, 256, 265, 267) are not here preserved. The commission is empowered by executive order not only to investigate, but to take action ”. Any person may be freely interrogated, not only at private but at public hearings authorized by executive order, and said hearings may be conducted in such manner as the commission may elect. What is more compelling, so far as this record shows, the commission has not yet formulated and filed with the Department of State its rules for procedure, having contented itself with the issuance from time to time of oral announcements that are both vague and indefinite (N. Y. Const., art. IV, § 8).

To read subdivision 8 of section 62 as conferring power thus to investigate into the affairs of private individuals is to authorize an interference with constitutional due process contrary to all basic conceptions of law enforcement. Heretofore whenever subpoenas have been issued in violation of constitutional rights they have been vacated as they should be here (People ex rel. Ferguson v. Reardon, 197 N. Y. 236).

The broad and sweeping meaning now being attributed to subdivision 8 of section 62 overlooks the existing powers of the Governor to appoint extraordinary terms of the Supreme Court and to assign designated judges thereto, with special grand juries, as has frequently been done; and that a District Attorney of any county may be superseded or removed by the Governor whenever public interest requires it (N. Y. Const., art. IX, § 5; Executive Law, § 62, sub. 2 [now § 63, subd. 2]; Judiciary Law, § 149). There is nothing in the language of subdivision 8 of section 62 remotely suggesting that it was intended to supersede such constitutional and statutory procedures in the present situation.

We may note in passing that subdivision 8 of section 62 provides that “the expenses of the inquiry shall be made out of funds provided by the legislature for such purposes ”, to be deposited in the names of the Governor and the Attorney-General, payable only on their draft and subject to no other audit, thus contemplating prior legislative authorization; there has been no such authorization here. Moreover, while the statute directs the Attorney-General to make the appointments, the Governor, by his Executive Order, directly appoints the members of the commission, outlines their 1 ‘ duties, powers and authorities ”, and then directs the Attorney-General to conduct the inquiry, coupled however with a request that he “do so by appointing the members of the commission ”, While the statute places upon the Attorney-General the responsibility of conducting the inquiry, the Executive Order provides: “ The commission hereby established and the Attorney General in cooperation with the commission are hereby authorized and directed to exercise for the accomplishment of the purpose of this order all powers and authorities set forth in Section 62, Subdivision 8, of the Executive Law ” (emphasis supplied). By the same Executive Order the commission is directed “ to report on all of the foregoing to the Governor and the Legislature ” — not to the Attorney-General. It is true that the Attorney-General appoints each of the Governor’s designees “ an officer of the Department of Law ” but then describes his office thus: “to wit: a member of a commission to be known as the New York State Crime Commission”, for which commission we all agree there is no statutory authority. The oaths are taken in precisely the same manner. Nor is there any authority to make the subpoenas here returnable “ before ” such commission “ as directed by the Executive Order of the Governor ”, or for the crime commission as such to issue them as they attempted to do here. The foregoing merely serves to illustrate the great strain to which the respondents have been put in their endeavor to bring themselves within a statute that could never have been intended as here applicable.

While we are mindful of the court’s duty to construe statutes liberally, we do not lose sight of the rule that “ freedom to construe is not freedom to amend ” (Sexauer & Lemke v. Burke & Sons Co., 228 N. Y. 341, 345; Matter of O’Brien v. Tremaine, 285 N. Y. 233; Matter of McNerney v. City of Geneva, 290 N. Y. 505; Wagner v. Panama R. R. Co., 299 N. Y. 432; Saltser & Weinsier, Inc., v. McGoldrick, 295 N. Y. 499).

We cannot agree with the interpretation now given to subdivision 8 of section 62 of the Executive Law, for reasons regarded as fundamental in the administration of justice under the law. We believe such interpretation to be a dangerous step in the absorption by the Executive Department of a judicial function without express legislative sanction.

The order appealed from should be reversed and the application to vacate the subpoenas should be granted.

Loughran, Ch. J., Lewis and Desmond, JJ., concur with Conway, J.; Fuld, J., concurs in separate opinion; Dye, J., dissents in opinion in which Froessel, J., concurs.

Order affirmed.


source: Caselaw Access Project

author: Fuld, J. Dye, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Coplin Yaras, Appellant, against Richard J. Kinnaw, as Commissioner of Assessment and Taxation of the City of Albany, et al., Respondents.
    Argued April 6, 1951;
    decided July 11, 1951.

      Ernest B. Morris and Coplin Yaras, in person, for Coplin Yaras, appellant.
    I. The weight of evidence submitted under section 293 of the Tax Law sustains the finding of 72.4% inequality made at Special Term; no other result is possible under the statute. (People ex rel. Hagy v. Lewis, 280 N. Y. 184; People ex rel. Ten Broeck Apts. Corp. v. Kinnaw, 197 Misc. 362; People ex rel. Reynolds v. Kinnaw, 276 App. Div. 718; People ex rel. Warren v. Carter, 109 N. Y. 576; People ex rel. Stewart v. Feitner, 53 Misc. 334.) II. The disposition of the county and State equalization rates by the Eeferee as confirmed at Special Term and as approved by Presiding Justice Fosteb and Official Eeferee Saetby, was in accord with the weight of evidence; the holding by the majority in the Appellate Division that such rates tend to increase the inequality ratio is erroneous as matter of law. (People ex rel. Queens Borough Gas & Elec. Co. v. Woodbury, 67 Misc. 481; People ex rel. Syracuse Trust Co. v. Matt, 283 N. Y. 241.) III. The opinion evidence offered by the city was inadmissible; in any event its weight should not affect the ratio established by the statutory proof. (People ex rel. Syracuse Trust Co. v. Matt, 283 N. Y. 241; Moran v. Standard Oil Co., 211 N. Y. 187.) IV. “ Evidence as to actual sales ” which is the only proof permitted by the statute aside from the sample parcel comparisons, lends added support to the ratio found at Special Term; in fact the comparison of sale prices with assessments warranted a lower ratio than 72%. (People ex rel. Hagy v. Lewis, 280 N. Y. 184; People ex rel. Westchester St. R. R. Co. v. Public Service Comm., 210 N. Y. 456.) V. The finding by the majority of the Appellate Division cannot be sustained by any evidence in the record; it is plainly the result of an averaging process without justification in law. (Van Der Harst v. Koenig, 249 App. Div. 235.)

      Russell G. Hunt, Corporation Counsel (Harold E. Blodgett of counsel), for respondents.
    I. The county rate of equalization as well as the State rate were not only competent but had probative force which the Referee, the Special Term and the Appellate Division were required to consider. II. The Court of Appeals in the case of People ex rel. Hagy v. Lewis (280 N. Y. 184) did not exclude other testimony where sampling and sales alone constituted the evidence respecting inequality. (People ex rel. Reynolds v. Kinnaw, 276 App. Div. 718; Heiman v. Bishop, 272 N. Y. 83; Matter of Home Sav. Bank [Associates Discount Corp.], 196 Misc. 427; People ex rel. Syracuse Trust Co. v. Matt, 283 N. Y. 241; People ex rel. Bennett Hotel Co. v. Cucci, 263 App. Div. 761; People ex rel. Queens Borough Gas & Elec. Co. v. Woodbury, 67 Misc. 481; People ex rel. Bingham Operating Co. v. Eyrich, 186 Misc. 434, 61 N. Y. S. 2d 679, 270 App. Div. 1063.)
   Fuld, J.

In this certiorari proceeding, brought under article 13 of the Tax Law, to review assessments on real property in the city of Albany for the year 1948, relator claimed that such assessments which amounted to $394,500 were erroneous, not only because of overvaluation, but also because of inequality in that they had been made at a higher proportionate valuation than the assessment of other property on the same roll (Tax Law, § 290, now § 290-c). We are concerned only with the latter issue of inequality, the issue as to overvaluation having been settled by the finding of the courts below: the determination by the court at Special Term reducing the assessment to $178,000 upon the ground of overvaluation was unanimously affirmed by the Appellate Division. (277 App. Div. 815.)

On the issue of inequality, Special Term found that the assessed valuations were erroneous to the extent of 27.6% and that real property in the subject district was assessed at the average ratio of 72.4% of its full value; accordingly, the assessments were further reduced to $128,872. The Appellate Division reversed on the law and facts, disapproved the findings and appointed an official referee, Honorable William F. Santby, to take further proof. The referee reported that the ratio of assessed value to full value in the subject district was 75%. The Appellate Division also rejected that determination and ruled that the ratio should be 85%.

In our view, the weight of evidence strongly supports the 72.4% ratio found by Special Term. As we read the record, the only predicates for the 85% figure arrived at by the Appellate Division are the county and state equalization rates, fixed by the Albany County Board of Supervisors and the State Board of Equalization, factors which in this proceeding not only were entitled to no weight at a.ll, but in truth were inadmissible under section 293 of the Tax Law.

The pertinent statutory provisions limit the proof that may be adduced in a proceeding where the assessment is attacked as “ unequal ”; thus, the third paragraph of section 293 reads as follows: “ Upon the hearing the parties to the proceeding may mutually agree on parcels of real property to be valued and the number of witnesses to be sworn. But in case the parties fail to agree on a selection of parcels to be valued and the number of witnesses to be sworn, then upon application of either party the court or referee shall determine the number of witnesses to be sworn, select the parcels that shall be valued without reference to their assessed values, and both parties shall be limited in their proof on the trial to such witnesses and the parcels so selected, except that evidence as to actual sales of real property within the tax district that occurred during the year in which the assessment under review was made may be given by either party. Before any testimony is given by either party as to the value of the parcels so selected, each party shall simultaneously file with the court or referee, on a date fixed by the court or referee, a written statement or tabulation of the appraised values placed upon the parcels selected by the witnesses of the respective parties, and each party shall serve on the other at the same time a copy of such statement or tabulation of values fixed by his witnesses.” (Emphasis supplied.)

The command of the statute that “ both parties shall be limited in their proof ” to the sample parcels clearly excludes proof of equalization rates. This limitation is made subject to the single, specified exception contained in the same sentence — except that evidence as to actual sales of real property within the tax district that occurred during the year in which the assessment under review was made may be given by either party.”

We cannot agree with the Appellate Division’s conclusion that the limiting provisions of the statute apply to overvaluation as well as to inequality cases and, for that reason, cannot operate to exclude all proof other than sample parcels and contemporaneous sales. In overvaluation cases, the only pertinent assessment is that of the subject parcel; assessments of other parcels are irrelevant to overvaluation and so are the statutory procedures relating to the assessment ratios in the sample parcels and in the sales of other parcels.

While the Appellate Division’s observation — that the purpose of the limitations in section 293 is to “ limit the range of proof on other parcels ” (277 App. Div. 1062) —leads to the correct analysis of the admissible lines of proof in inequality cases, its ruling that weight must be given to equalization rates and to opinion evidence of the city-wide levels of assessments is erroneous. Apart from other considerations, it would throw an inequality case open to endless collateral proof, for, unless the other party were to stand mute and accept the determinations of equalization boards, the correctness of such findings could be successfully challenged only by an examination of countless parcels by the trier of facts. The same kind of testing would be invited by permitting alleged experts to state what in their opinion is the average ratio of assessments to value in the tax district. The opinion of an expert offered in contradiction would be of no aid to the court unless, in turn, his opinion were to be tested by the evidence of countless other parcels.

The legislature unquestionably sought to avoid just such endless labyrinths by enacting section 293 and by adopting the procedures therein specified. To engulf a taxpayer, or a taxing body, in such uncharted seas of proof would foreclose any conscientious challenge of unequal assessing. In People ex rel. Town of Hempstead v. State Bd. of Tax Comrs. (163 App. Div. 803, mod. 214 N. Y. 594), for instance, the town’s attack on county equalization rates was upheld after the consideration of over a thousand different parcels. Such litigation also suggests that equalization rates are not to be readily accepted in the absence of exhaustive testing beyond the resources of the average taxpayer.

While there is a certain superficial resemblance between “ inequality ” and “ equalization ’’ — for both have reference to the relation between assessed values and full values of property— a county or state equalization rate serves a function entirely distinct from that to be served by the ratio fixed in inequality cases, and an equalization rate has no bearing upon the issue presented in such cases. The assessed valuation of a parcel is “ unequal ” if the assessment has been made “ at a higher proportionate valuation than the assessment of other property on the same roll by the same officers ” (Tax Law, § 290, now § 290-c). A typical claim of inequality is that property for instance, in the city of Albany, generally is assessed at less than its full value for tax purposes and that the subject property is assessed at its full value or at a greater percentage of its full value than properties in the city generally. On the other hand, the “ purpose ” sought to be achieved through equalization by boards of supervisors is the “ ascertaining whether the valuations in one tax district bear a just relation to the valuations in all the tax districts in the county ” and the adjustment of the equalization rates where necessary to establish such just relation ” (Tax Law, § 50). When the equalization rates are properly adjusted, the tax imposed on each of the tax districts is justly proportioned to the value of the taxable property within its limits. The purpose of equalization may be accomplished as a practical matter, however, even if the rate for Town A is higher than the true proportion of assessed valuations in Town A to the full value of the property in the town.. If Town A’s rate is 96%, as compared with a true proportion of, for example, 72.4%, the town is not prejudiced if all the other towns or tax districts in the county have the same discrepancy. If Town B’s equalization rate is only 92% and the true proportion of Town B’s assessments to full value is also 72.4%, the necessary correction would be to change Town A’s rate in a proper proceeding to 92%, and not to 72.4% (Tax Law, §§ 175-177). Thus, the equalization rates may be, as in the Hempstead case (163 App. Div. 803), erroneous in their relation to each other. If the rates are not incorrect in this regard, rough justice is accomplished, for their purpose is to serve as a base for the allocation of tax burdens, and benefits, amongst the towns and tax districts. But such rates would be misleading in an inequality case since they do not purport to reflect the ratio of .assessments to value within the tax district itself. (See People ex rel. Syracuse Trust Co. v. Matt, 283 N. Y. 241.)

On the subject of this serious infirmity in equalization rates as proof of inequality ratios, we have in the record before us the admission of one of the city’s witnesses, Mr. Walter L. Collins, legal advisor to the Board of Supervisors of Albany County. He testified that it is u immaterial ” to that board to establish an exact ratio between true value and assessments so long as proportionate ratios among various tax districts are established. And, beyond that, a bill which in 1950 sought to amend section 293 so as to provide that the determination fixing a county equalization rate shall be ‘6 presumptive evidence ’ ’ of the ratio of inequality (Sen. Int. 2693), was vetoed by Governor Dewey upon the ground — set forth in his memorandum — that The bill is unrealistic. It overlooks the purpose of a county equalisation rate, which is to provide for the apportionment of county taxes among the various districts in the county and which in reality often does not have any accurate relationship to the true full value of the property in the county.” (Emphasis supplied.)

The procedures to correct unequal assessments, contained in article 13 of the Tax Law, have always been treated by the legislature as having no relation either to the equalization process (Tax Law, art. 3) or to proceedings to correct equalization rates (Tax Law, art. 8, §§ 175-177). Neither the taxpayer nor the taxing body is burdened, in an inequality case, with the task of challenging or sustaining equalization rates. The efforts of the legislature have been directed to shortening the trials in inequality cases. Since the issue involves proof as to the ratio of assessment to full value of all other properties in the tax district, such litigation, it was found years ago, became burdensome and unwieldy. (See People ex rel. Stewart v. Feitner, 53 Misc. 334.) Section 293 was expressly designed to limit the proof in such cases by giving to the court or referee the ultimate power to select the parcels to be valued and the number of witnesses to be sworn. To permit a court in its discretion to receive equalization rates in evidence in these cases would destroy the benefits of the statute’s proof-limiting provisions and import into an inequality case all of the issues in an appeal from an equalization rate, thereby confounding the trial with data designed to accomplish different ends.

In the light of section 293, opinion evidence as to the citywide ratio of assessments to values is likewise impermissible. Indeed, quite apart from that statutory limitation, such opinion evidence is entitled to little, if any, weight. We share the view expressed by Justice Blackmar in the course of his opinion in People ex rel. Queens Borough Gas & Elec. Co. v. Woodbury (67 Misc. 481, 486), where an expert was called to state the relation of assessed valuations in a tax district to actual values: ‘ ‘ My own opinion at the trial was that this is not a proper subject of expert testimony; that the evidence offered was a summary of other facts and a conclusion or an inference drawn from those facts, and that the witness instead of testifying to his conclusion from his knowledge of specific instances should have testified to such instances and left the conclusion to the court.”

The official referee expressed a similar opinion in the instant case. And, although he received this testimony, his recommended finding of a rate of 75% amounted to a rejection of the witnesses’ opinions of ratios of 90% to 100%.

Turning, then, to the evidence of inequality properly received under section 293 and to its evaluation according to People ex rel. Hagy v. Lewis (280 N. Y. 184), there can be little doubt that the weight of evidence strongly sustains the finding of 72.4% made by the court at Special Term.

By stipulation, the referee appointed by that court selected six parcels of real estate in the city of Albany from those chosen by each of the parties, and received evidence of their assessments and of appraisals of their value by experts. There was little disagreement between the opposing experts as to value. The relator’s parcels, assessed at $697,800, were valued by relator’s witness at $1,211,750, and by the city’s witness at $1,200,443. The city’s parcels, assessed at $653,800, were valued at $654,664 by the city’s expert without contradiction.

Based upon the values ascribed to those selected sample parcels by relator’s expert, the ratio was 72.4%; on the basis of the values assigned to them by the city’s witness, the figure was 72.8%.

The only other evidence properly to be considered was that of sales made in Albany in the year ending August 31, 1948. Again by stipulation, each of the parties submitted a list of selected sales, stating in each instance the consideration and the assessment, summarized as follows:

This line of evidence — and it is entitled to substantial weight under section 293 — would indicate a ratio of 61.5%. The higher figure of 72.4% found by the Special Term is therefore a maximum figure, favorable to the city, on all the cogent and competent evidence.

The finding of 85% by the Appellate Division was reached, according to its opinion, by giving weight to official findings and opinion evidence ’ ’, as well as the sample parcels and sales, producing a resulting average ” of 85%. We note that its opinion in the companion case of People ex rel. Reynolds v. Kinnaw (276 App. Div. 718) stressed the circumstance that in a large number of certiorari proceedings it was usually stipulated that Albany property is assessed at about 85% of its full value. Manifestly, the prevalence of such stipulations may neither be deemed an evidentiary fact nor considered in determining the inequality ratio.

While the Appellate Division’s apparent reluctance to reject a method which might achieve uniformity in inequality cases may be understandable, the operative and important factor is that the adoption of such a method flies in the face of the controlling statute. The statutory procedure may produce results varying from case to case, depending upon the sample parcels selected (see opinion of Foster, P. J., dissenting in the companion case of People ex rel. Ten Broeck Apts. Corp. v. Kinnaw, 276 App. Div. 722), but the statutory method, representing a practice long established, confines the proof to fact evidence and excludes opinion evidence and official determinations which raise collateral issues of vast proportions. As Judge Loughran, writing for the court in the Hagy case (280 N. Y. 184, 187-188), expressed it, adoption of the statutory method ‘ ‘ may perchance give effect to lopsidedness * * *. But this possibility seems to us to be so remote as to be negligible in the ordinary ease. * * * the idea of the statute appears to be that a sufficiently approximate arithmetical mean can be established by pooling a number of parcels (so selected) and comparing the aggregate of their assessed valuations with the aggregate of their full values. * * * We cannot say that such a process is inadequate for practical attainment of the rough equality which is all that has heretofore been possible under any system of taxation.” (Emphasis supplied.)

In the cases cited by Judge Dye in his dissent as authority for the admissibility of state and county equalization rates; neither party had offered proof in accordance with section 293. (See, particularly, People ex rel. Bingham Operating Corp. v. Eyrich, 186 Misc. 434, affd. 270 App. Div. 1063.) In the absence of such proof — of sample parcels and sales ■ — there was no other evidence available for the court’s consideration, and, accordingly, those decisions may not here be regarded as authoritative.

The order of the Appellate Division should be reversed, and that of Special Term affirmed, with costs in this court and in the Appellate Division.

Dye, J.

(dissenting). The order of the Appellate Division should be affirmed, with costs. There is no reasonable basis for excluding from evidence equalization rates as officially fixed by the State Tax Commission and the County Board of Supervisors when, as here, the correctness of such rates is supported by opinion testimony. The courts have consistently recognized the admissibility of such proof (People ex rel. Syracuse Trust Co. v. Matt, 258 App. Div. 853, mod. 283 N. Y. 241; People ex rel. Bingham Operating Corp. v. Eyrich, 186 Misc. 434, affd. 270 App. Div. 1063; People ex rel. Bennett Hotel Co. v. Cucci, 263 App. Div. 761). The case of People ex rel. Hagy v. Lewis (280 N. Y. 184) is not to the contrary as it dealt only with the sufficiency of the sampling method as proof of inequality. Section 293 may not reasonably be construed as authority to deprive otherwise competent proof of its probative value. As we read the section, the limitations mentioned have reference to the volume of comparative proof that may be offered without restriction as to use of otherwise competent proof. It does not follow that when the limited comparative value method is used, equalization rates are thereby deprived of weight. "When so viewed, the weight of the evidence herein supports the findings of the Appellate Division.

Lottghran, Ch. J., Lewis, Conway and Froessel, JJ., concur with Fuld, J.; Dye, J., dissents in opinion in which Desmond, J., concurs.

Ordered accordingly.


author: Lewis, J. Fuld, J.

text:
    The People of the State of New York, Respondent, v. James Davis, Appellant.
    Argued May 23, 1951;
    decided October 18, 1951.

      Jawn A. Sandifer for appellant.
    I. The Court of Special Sessions as convened was without jurisdiction in the absence of an order of the County Court as required by subdivision 2 of section 702-a of the Code of Criminal Procedure. (People ex rel. Lotz v. Norton, 76 Hun 7; People v. McPherson, 74 Hun 336; People v. McLaughlin, 57 App. Div. 454; Lattimore v. People, 10 How. Prac. 336; Moore v. Taylor, 88 App. Div. 4; Blend v. People, 41 N. Y. 604; Cancemi v. People, 18 N. Y. 128; People v. Guidici, 100 N. Y. 503; People v. Bork, 96 N. Y. 188; People v. Rathbun, 21 Wend. 509.) II. The People did not prove that defendant had violated subdivision 1 of section 722 of the Penal Law as a matter of law. (People v. Reid, 40 N. Y. S. 2d 793; People v. Nixon, 248 N. Y. 182; People v. Huyck, 12 N. Y. S. 2d 811; People v. Most, 171 N. Y. 423; People v. Perry, 265 N. Y. 362; People v. McCauliff, 267 N. Y. 581; People v.
      Oczko, 272 N. Y. 604; People v. Schultz, 301 N. Y. 495; People v. Monnier, 280 N. Y. 77; People v. Ludovici, 13 N. Y. S. 2d 88.) III. There is no provision in the Code of Criminal Procedure for the intervention of an outside attorney on behalf of the People as a friend of the court.

      Frank A. Gulotta, District Attorney (Philip Huntington and Henry P. De Vine of counsel), for respondent.
    I. The evidence is sufficient to sustain the conviction as a matter of law. (Cantwell v. Connecticut, 310 U. S. 296; People v. Most, 171 N. Y. 423; People v. Clarke, 12 N. Y. S. 2d 8; People v. Sadowsky, 149 Misc. 583; People v. Gardner, 51 N. Y. S. 2d 197; People v. Fenton, 102 Misc. 43.) II. The Acting City Judge had power and jurisdiction to continue the proceedings, preside over the trial and render judgment when the City Judge declared himself disqualified, upon defendant’s motion.
   Lewis, J.

This appeal by the defendant, by permission of a member of this court (Code Crim. Pro., § 519, subd. 1; § 520, subd. 3) presents for our review a judgment of the County Court, Nassau County, affirming a judgment of the City Court of the City of Glen Cove, which convicted the defendant of assault in the third degree and disorderly conduct, the sentence in each case having been suspended (Penal Law, §§ 244, 722).

By the original and superseding informations it was charged that on March 3, 1950, on a public street in the city of Glen Cove, the defendant assaulted a local police officer and then and there used profane, abusive and threatening language of such a character as to occasion, a breach of the peace, and cause a crowd to collect.

There is evidence, adduced upon the trial, that while the complainant, a local police officer, was preparing a summons for the defendant’s violation of a local parking ordinance, the defendant, on a public street in the city of Glen Cove, addressed the police officer in foul and abusive language and inflicted blows upon him, thereby causing a crowd to gather.

In that state of the record we cannot say as a matter of law tnat there was no substantial evidence which served as a basis for a finding, by the trier of the facts, of the defendant’s guilt as charged. Concluded, as we are, by that circumstance and by the concurrent action of the courts below, from a consideration of the facts (People v. Most, 171 N. Y. 423, 427; People v. Lobel, 298 N. Y. 243, 251) we pass to the remaining inquiry whether, on the trial, the defendant’s rights were prejudiced by any ruling of the trial court to which an exception was taken.

Upon this appeal the argument is made that the City Court of the City of Glen Cove, as convened to conduct the defendant’s trial, was without jurisdiction in the absence of an order by a County Court Judge — claimed to have been required by subdivision 2 of section 702-a of the Code of Criminal Procedure — designating the judicial officer who presided at the trial.

The circumstance of record which the defendant cites as the basis for his argument is that the Judge who presided at his trial was an Acting City Court Judge who, without designation by an order of a County Court Judge, took over the case following the disqualification of the City Court Judge before whom the case was called and before any evidence was taken. Further facts from the record will contribute to an understanding of the problem presented:

On March 4, 1950, when charges were filed against the defendant, an appearance in his behalf in the City Court of the City of Glen Cove was originally made by an attorney, at whose request Judge Joseph A. Suozzi, the City Court Judge then presiding, adjourned the defendant’s formal arraignment until March 28, 1950. On the latter date, when the defendant appeared in City Court and charges previously filed with the court were read to him, a second attorney noted his appearance as counsel for the defendant. Thereupon Judge Suozzi permitted the withdrawal from the case by the attorney who originally appeared who stated that he “ * * * had represented defendant Davis free of charge at his request and by request of the National Association for the Advancement of Colored People ”. After granting a request ” by the original attorney * * * that all the defenses and challenges be made in writing”, and having permitted him to “ intervene ’ ’, as he phrased it, “osa friend of the Court ’ ’, Judge Suozzi — who did not preside at the trial — adjourned the case, upon the defendant’s request, for trial on April 21, 1950.

It also appears that, following arraignment of the defendant, the case — involving, as it did, the arrest of the defendant, a member of the Negro race — had aroused local interest and had been the subject of discussion during at least one local “ conference ” attended by Judge Suozzi. It was that circumstance which prompted Judge Suozzi on April 21,1950 — the adjourned date for the defendant’s trial — to make the following statement:

“ The Court: I wish to say that at the time I participated in the conference the only thing that transpired during my presence was a general discussion with respect to relations between white and colored people, and at that time my only declaration was that I would give the defendant in this case as fair a trial as I would give anyone. On the basis of the fact we have had an interval in between I want to ask you for the record: do you have any objection to my sitting on this case? Do you feel I can try this case in a fair and impartial manner? As far as I am concerned, I have made no judgment on this case and I wish you to state for the record what your feelings are on this. ’ ’ In response to that inquiry, counsel for the defendant then voiced his objection to Judge Suozzi presiding at the trial, to which objection Judge Suozzi made the following statement:
“ The Court: I want this case to proceed as impartially as I feel we can do it. If the feeling of the defendant is I cannot try this case, feeling his rights are being prejudiced, on that ground I think perhaps the best thing to do is to get somebody else to try this case.” Thereupon Judge Suozzi disqualified himself and adjourned the case until April 28, 1950, when a trial was had before Acting City Court Judge William J. Cosgbove of the City Court of Cien Cove.

For reasons presently to be stated, we think the defendant’s challenge to the jurisdiction of the trial court by which he was convicted — such challenge being based upon the lack of a County Court Judge’s order designating the Acting City Court Judge to preside — is without merit. True it is that subdivision 2 of section 702-a of the Code of Criminal Procedure provides that, if a magistrate shall become disqualified pending final disposition of a case, a transfer of the cause for trial before another magistrate may be effected by an order of the County Judge. That statute, however, does not prescribe the exclusive procedure where, as in the present case, the Legislature has expressly provided for the City of Cien Cove an alternative method of substitution in the event the City Court Judge disqualifies himself. The Charter of the City of Glen Cove, as amended by chapter 380 of the Laws of 1942, provides “ The mayor may, from time to time, designate a person with the same qualifications to act in the temporary absence or disqualification of the city judge, with the same jurisdiction.” (Emphasis supplied.) In the absence of any asserted claim by the defendant to the contrary, we take judicial notice of the fact that on April 28, 1950 — the date when the evidence was taken upon which the defendant was convicted — Judge Cosgbove had been duly appointed and had qualified as an Acting City Court Judge under the statute last quoted .above. Accordingly, we find in the record no basis for the defendant’s claim that the City Court of the City of Glen Cove as convened with Acting City Court Judge Cosgbove presiding, was without jurisdiction to render the judgment of conviction with which this apppeal is concerned.

Nor does the record contain any evidentiary basis whatever for the suggestion that the attorney who originally appeared for the defendant was present at any time during the trial had on April 28, 1950, before Acting City Court Judge Cosgbove, and there is no evidence that any ruling or judicial act by that presiding officer was influenced by the displaced attorney.

Concluding, as we do, that the defendant’s trial was conducted by a properly constituted court, and finding in the record no evidence from which an inference of prejudice to the defendant’s rights may be drawn, the judgment should be affirmed.

Fuld, J.

(dissenting). When charges were first filed against him in the City Court of the City of Glen Cove," defendant was represented by an attorney. When arraigned several weeks later, he appeared by another attorney, and the first one was permitted to “withdraw”. Then, after defendant’s new' counsel had attacked the regularity of the proceedings, the other asked the judge presiding to allow him to “ intervene as a friend of the Court ”, because, as he expressed it, “ his conduct had been put in question ” by defendant. The court granted the request, despite the fact that it was clear from his statement that he wanted to remain in the case, not to assist defendant, but to vindicate some supposed right of his own, and despite the further fact that he had already taken a position, if not adverse to defendant, certainly not helpful to him, by insisting upon the burdensome and unusual requirement ‘ ‘ that all the defenses and challenges [by defendant] be made in writing and sworn to.” And while it is true, as the court notes in its opinion, that the record fails to show that the displaced attorney was present on April 28th, the day on which the trial proper was held, the fact seems to be — asserted by defense counsel, and acknowledged by the assistant district attorney, on the argument before us upon this appeal — that he conferred with the prosecutor during the course of the trial.

One accused of crime has an absolute and unqualified rigiii to have counsel of his own choosing, and that, of course, encompasses the right to relieve himself of an attorney formerly retained. (See, e.g., People v. Koch, 299 N. Y. 378, 381; People v. McLaughlin, 291 N. Y. 480; People v. Price, 262 N. Y. 410, 412; Glasser v. United States, 315 U. S. 60.) That right existing, a court may not curtail it or render it illusory by permitting a discharged, and perhaps disgruntled, lawyer to continue in the ease. Quite apart from other considerations, a defendant should not be forced to run the risk of even an unwitting and innocent disclosure of some privileged or confidential communication. Potentially dangerous, instinct with prejudice and harm, the practice of permitting a discharged attorney to intervene in a criminal prosecution, even under the ambiguous title of “ friend of the court”, is as inherently wrong and indefensible as, concededly, it is unwarranted.

It may well be that there is no proof in this ease that the displaced attorney violated any confidence of his former client or that his intervention in the case influenced any ruling or judicial act of the judge or affected the outcome of the trial. But that does not mean that we may disregard the asserted impropriety as technical or harmless. (Code Crim. Pro., § 542; cf. People v. Mleczko, 298 N. Y. 153, 162.) In a case where a constitutional right has been violated (see, e.g., Snyder v. Massachusetts, 291 U. S. 97, 116) or where, as here, the ruling or conduct complained of offends against basic principles, a court cannot be satisfied that defendant’s rights were not affected. “ We may disregard errors which do not affect the substantial rights of the parties, but we must be satisfied that these rights are not affected. The possibility that they may not be is insufficient.” (People v. Doran, 246 N. Y. 409, 428, per Andrews, J., concurring.) We will not speculate as to the impact of the error upon defendant’s rights or “ indulge in nice calculations as to the amount of prejudice arising ” therefrom. (Glasser v. United States, supra, 315 U. S. 60, 76.)

The conviction should be reversed, and a new trial ordered.

Conway, Dye and Froessel, JJ., concur with Lewis, J.; Fuld, J., dissents in opinion in which Loughran, Ch. J., and Desmond, J., concur.

Judgment affirmed.