author: Bellacosa, J. Levine, J.

text:
    [626 NE2d 34, 605 NYS2d 218]
    John Prozeralik, Respondent, v Capital Cities Communications, Inc., Appellant.
    Argued October 12, 1993;
    decided November 23, 1993

      POINTS OF COUNSEL

      Cahill Gordon & Reindel, New York City (Floyd Abrams and Amy Glickman of counsel), Jaeckle, Fleischmann & Mu-gel, Buffalo (Ralph L. Halpern and Andrea R. Moore of counsel), and David L. Westin, New York City, and Marian D. Lindberg for appellant.
    I. Judgment should be entered dismissing this action as Prozeralik failed to prove by clear and convincing evidence that Capital Cities seriously doubted the truth of anything it broadcast. (New York Times Co. v Sullivan, 376 US 254; Mahoney v Adirondack Publ. Co., 71 NY2d 31; Liberman v Gelstein, 80 NY2d 429; Harte-Hanks Communications v Connaughton, 491 US 657; Bose Corp. v Consumers Union of U. S., 466 US 485; St. Amant v Thompson, 390 US 727; Newton v National Broadcasting Co., 930 F2d 662; Contemporary Mission v New York Times Co., 842 F2d 612, cert denied sub nom. O'Reilly v New York Times Co., 488 US 856; Edwards v National Audubon Socy., 556 F2d 113, cert denied sub nom. Edwards v New York Times Co., 434 US 1002; Karaduman v Newsday, Inc., 51 NY2d 531.) II. In the alternative, a new trial on liability and damages should be ordered because the jury was not allowed to decide whether statements in the televised retractions were true and the jury acted out of passion and prejudice in granting an excessive award. (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528; Bee Pubis, v Cheektowaga Times, 107 AD2d 382; Van Syckle v Powers, 106 AD2d 711; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Holy Spirit Assn. v New York Times Co., 49 NY2d 63; Faulk v Aware, Inc., 19 AD2d 464, 14 NY2d 899, 954; O’Neil v Peekskill Faculty Assn. Local No. 2916, 156 AD2d 514, 76 NY2d 935; New York Times Co. v Sullivan, 376 US 254; Douglass v Hustler Mag., 769 F2d 1128; Atkinson v Equitable Life Assur. Socy., 519 F2d 1112.) III. The award of punitive damages should, in any event, be set aside. (Gertz v Robert Welch, Inc., 418 US 323; Mahoney v Adirondack Publ. Co., 71 NY2d 31; Liberman v Gelstein, 80 NY2d 429; Wood v Lee, 41 AD2d 730; Loughry v Lincoln First Bank, 67 NY2d 369; Dun & Bradstreet v Greenmoss Bldrs., 472 US 749; NAACP v Claiborne Hardware Co., 458 US 886; Smith v Wade, 461 US 30; Rosenbloom v Metromedia, Inc., 403 US 29.)

      Cadwalader, Wickersham & Taft, New York City (John J. Walsh of counsel), Frank R. Bayger, Buffalo, and Sullivan, Benatovich, Oliverio & Trimboli, Buffalo (Richard T. Sullivan of counsel), for respondent.
    Respondent proved by clear and convincing evidence that the broadcasts were made with actual malice. (Bose Corp. v Consumers Union of U. S., 466 US 485; St. Amant v Thompson, 390 US 727; Mahoney v Adirondack Publ. Co., 71 NY2d 31; Harte-Hanks Communications v Connaughton, 491 US 657; Simonsen v Malone Evening Tel., 98 AD2d 905; Kent v City of Buffalo, 29 NY2d 818; Holy Spirit Assn. v New York Times Co., 49 NY2d 63; Zupprich v Smith Trucking Co., 2 NY2d 177; Tate v Colabello, 58 NY2d 84; Beverley v Choices Women’s Med. Ctr., 78 NY2d 745.)

      Sabin, Bermant & Gould, New York City (Ralph P. Huber of counsel), Rogers & Wells (Richard N. Winfield, David A. Schulz, Thomas J. Lilly and Hilary Lane of counsel), Douglas P. Jacobs, Helen M. Gold, Stuart D. Karle, Muriel H. Reis, Barbara W. Wall, of the Virginia Bar, admitted pro hac vice, Robert J. Hawley, New York City, George Freeman, Harry M. Johnston III, Robin Bierstedt, Nicholas J. Jollymore, Henry L. Baumann and Steven A. Bookshester, of the District of Columbia Bar, admitted pro hac vice, Roberta Brackman, New York City, Alberto Ibarguen, Melville, Ren P. Milam, of the Virginia Bar, admitted pro hac vice, Tina A. Ravitz, New York City, Kenneth M. Vittor, Slade R. Metcalf, Chad E. Milton, of the Missouri Bar, admitted pro hac vice, Jane E. Kirtley, of the District of Columbia Bar, admitted pro hac vice, and Lankenau, Kovner & Kurtz, New York City (Victor A. Kovner of counsel), for Advance Publications, Inc., and others, amici curiae.

    I. Punitive damages awarded violate the constitutional protection of expression and should be held impermissible. (New York Times Co. v Sullivan, 376 US 254; Bantam Books v Sullivan, 372 US 58; Gertz v Robert Welch, Inc., 418 US 323; Gitlow v New York, 268 US 652; Near v Minnesota, 283 US 697; Speiser v Randall, 357 US 513; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Camillo v Olympia & York Props. Co., 157 AD2d 34; Monitor Patriot Co. v Roy, 401 US 265; Cooperativa de Seguros Multiples de Puerto Rico v Suan Jaun, 289 F Supp 858.) II. The Court below erred by allowing an award of punitive damages without proof of common-law malice. (Wood v Lee, 41 AD2d 730; Mahoney v Adirondack

      Publ. Co., 123 AD2d 10, 71 NY2d 31; Guion v Associated Dry Goods Corp., 56 AD2d 798, 43 NY2d 876.) III. The record fails to establish the actual malice required to impose defamation liability. (New York Times Co. v Sullivan, 376 US 254; Harte-Hanks Communications v Connaughton, 491 US 657; Bose Corp. v Consumers Union of U. S., 466 US 485; Time, Inc. v Hill, 385 US 374; Board of Educ. v Barnette, 319 US 624; Herman & MacLean v Huddleston, 459 US 375; Ollman v Evans, 750 F2d 970, 471 US 1127; Garrison v Louisiana, 379 US 64; Greenbelt Publ. Assn. v Bresler, 398 US 6; Philadelphia Newspapers v Hepps, 475 US 767.) IV. The trial court erroneously charged the jury that the retraction broadcasts were false. (Coyne Enters, v Union Carbide Corp., 89 AD2d 545; Doolittle v Conklin Brass & Copper Co., 103 AD2d 722; Coury v Safe Auto Sales, 32 NY2d 162.)
   OPINION OF THE COURT

Bellacosa, J.

In this defamation action, the plaintiff public figure won a multimillion dollar jury verdict against defendant, owner of a radio and television station. The Appellate Division affirmed the judgment by a 3 to 2 vote and defendant appealed as of right. We conclude that the order should be reversed and a new trial ordered, for the sole reason that the trial court’s instructions to the jury on the falsity issue, involving particularly the retraction of earlier broadcasts, impermissibly withdrew from the jury crucial interrelated issues of credibility and actual malice that are solely the province of the fact finders.

On May 6, 1982, an abduction and beating occurred in the area serviced by the defendant’s television and radio stations. The next day, a report of the incident was broadcast during the defendant’s noon news telecast and during the 12:45 p.m., 1:45 p.m. and 2:45 p.m. news segments over defendant’s radio station. The news report consisted of the following statement:

"The FBI is investigating a beating and abduction in Cheektowaga last night. Today, investigators are questioning John Prozeralik, the owner of John’s Flaming Hearth Restaurant, in Niagara Falls, New York. Prozeralik was either tricked or forced to the Howard Johnson’s in Cheektowaga according to police, where he was beaten with a baseball bat or pipe, and tied up. Today, the FBI is investigating the possibility that Prozeralik owed money to organized crime figures.”

Shortly after the noon broadcast, plaintiff and his attorneys notified defendant that plaintiff was not the victim in this story. Defendant then verified that the actual victim was one David Pasquantino. It broadcast the following retraction during its 6:00 p.m. and 11:00 p.m. televised newscasts:

"Tonight, we have developments on two fronts in the abduction that ended yesterday in a Cheektowaga motel. First, the victim is not, and I repeat, is not, John Prozeralik, the operator of John’s Flaming Hearth Restaurants. The FBI earlier today said and confirmed the victim was Prozeralik, but our independent investigation is revealing he was not involved” (emphasis added).

Plaintiff’s action alleged that defendant’s noon, 6:00 p.m. and 11:00 p.m. televised newscasts and its 12:45 p.m., 1:45 p.m. and 2:45 p.m. radio broadcasts defamed him. At trial, plaintiff established that his name was first introduced as the possible victim during defendant’s employees’ discussion on the morning of the broadcasts. A reporter testified that during their meeting and conversation regarding the incident and the possible identity of the victim, who was thought to be a Niagara restaurateur, one of the reporters said, "I wonder if it was John Prozeralik. * * * That’s the first name that comes to mind.” This was a purely speculative query with no basis in fact, investigation or information acquired by defendant. The only connection was that Prozeralik happened to be one of many Niagara restaurateurs.

Defendant’s noon anchor, DiBiasi, used this supposition to inquire of the FBI whether this Prozeralik name could be that of the victim. The testimony of DiBiasi and the FBI’s media coordinator, Agent Thurston, as to what transpired between them during this telephone call differs sharply. DiBiasi testified that she mentioned Prozeralik’s name to Thurston, and he told her, "You can go with that unless I call you back.” Thurston unequivocally denied making any such statement. He testified that he did not give or confirm Prozeralik’s name. He did not tell DiBiasi she could go with Prozeralik’s name if he did not call back. Moreover, he never used that methodology in dealing with the press. He added that he may have told her only that he would call her back if something developed.

The evidence at trial also revealed that after plaintiff and his attorneys contacted the station, defendant’s news director, Ridge, also called Thurston. Thurston informed Ridge that he had not known the name of the victim when he spoke to DiBiasi and that he did not confirm Prozeralik’s name. The proof at trial showed that plaintiff’s reputation was grievously damaged and his various, substantial and law-abiding business interests were ruined.

The trial court instructed the jury, over defendant’s objection, that the initial broadcasts and the retraction were false as a matter of law. The jury returned a verdict in Prozeralik’s favor in the amount of $18 million, which was reduced to a judgment in the amount of $15.5 million; $5.5 million in financial loss and $10 million in punitive damages. On this appeal from the Appellate Division affirmance, the defendant contends that the trial court erred when it instructed the jury that the retraction was false as a matter of law; that plaintiff did not prove actual malice; that the award of punitive damages must be set aside, since there was no showing of common-law malice; and that the damages award is excessive.

L

The erroneous jury instruction on the issue of falsity requires reversal and new trial. Defendant demonstrates that the jury instructions impermissibly impinged on the jury’s resolution of credibility and actual malice by, in effect, directing the jury to accept FBI Agent Thurston’s version of the telephone conversation between him and DiBiasi. In pertinent part, the jury was instructed that:

"In the case presently being tried before you, I have determined as a matter of law that the defendant in its May 7th, 1982, 12 noon television broadcasts and its similar May 7, 1982, radio broadcasts and in its May 7th, 1982, 6 p.m. and 11 p.m. television broadcasts made certain false statements about the plaintiff which it communicated to its viewing and listening audience. This means that it will not be necessary for you to decide whether or not the plaintiff has proved those elements of his libel case.”

This is not some isolated, insignificant feature of the case. It cuts to the heart of the critical elements necessary to prevail in such cases.

Under well-established principles of law, a plaintiff in a defamation action "has the burden of showing the falsity of factual assertions” (Immuno AG. v Moor-Jankowski, 77 NY2d 235, 245 [citations omitted], cert denied 500 US 954). Defendant does not dispute that Prozeralik was not the victim and, accordingly, there was no error in instructing that the initial broadcasts were false as a matter of law. But whether Thurston had "said” or "confirmed” that Prozeralik was the victim or DiBiasi could have reasonably understood him to say so, is a feature of the case on which defendant is entitled to fact finder resolution. As to that, the jury should have been given the choice of accepting or rejecting the whole or parts of the testimony of Thurston and DiBiasi, including in the context of and in relation to the later telephone call between Ridge and Thurston.

It is well settled that "[assessment of the weight of the evidence and the credibility of witnesses is a function of the finder of fact” (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528, 534). By instructing the jury that the retraction was false as a matter of law, the trial court withdrew that function from the jury and resolved the critical issue of whether the defendant "realized that [its] statement was false or * * * subjectively entertained serious doubt as to the truth of [its] statement” (Bose Corp. v Consumers Union of U. S., 466 US 485, 511, n 30). The court effectively directed the jury’s verdict by allowing it to disregard DiBiasi’s testimony as incredible and to accept Thurston’s testimony that he had not confirmed Prozeralik’s name to her. That DiBiasi could not have reasonably believed that Thurston had confirmed the plaintiffs name is a reasonable inference from the court’s directive. In effect, mandating a verdict on such determinative issues altered the crucial balance and rules by which such cases must be adjudicated (compare, PJI 3:27 [1992 Supp]).

Since the trial court failed to tender to the jury its full range of fact-finding options in regard to the retraction and the conversation between Thurston and DiBiasi, we have no choice but to reverse and order a new trial.

IL

We must next address defendant’s argument seeking outright dismissal of plaintiffs case, a view urged by the dissenting Justices at the Appellate Division and by the partial dissent in this Court.

By stipulation of the parties, plaintiff is a public figure. To prevail in a defamation suit, he would have to prove with evidence of "convincing clarity” "that the statement was made with 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Co. v Sullivan, 376 US 254, 285-286, 279-280; see also, Harte-Hanks Communications v Connaughton, 491 US 657, 659). This rule was promulgated in recognition "of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on [public figures]” (New York Times Co. v Sullivan, 376 US, at 270, supra). "The burden of proving 'actual malice’ requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement” (Bose Corp. v Consumers Union of U. S., 466 US 485, 511, n 30, supra). The Supreme Court has emphasized "that the actual malice standard is not satisfied merely through a showing of ill will or 'malice’ in the ordinary sense of the term” (Harte-Hanks Communications v Connaughton, 491 US, at 666, supra). It must be established that the "defendant * * * made the false publication with a 'high degree of awareness of . . . probable falsity’ * * * or must have 'entertained serious doubts as to the truth of his publication’ ” (id., at 667).

On appeal in such cases, courts have "a constitutional duty to 'exercise independent judgment and determine whether the record establishes actual malice with convincing clarity’ ” (id., at 659 [emphasis added]).

"[J]udges * * * must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice’ ” (Bose Corp. v Consumers Union of U. S., 466 US, at 510-511, supra).

Thus, although this Court is "usually constrained to review only the law and without the power to disturb affirmed findings of fact,” we must scrutinize the evidence of actual malice for "convincing clarity” (compare, Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39, with Cohen v Hallmark Cards, 45 NY2d 493, 499).

This heightened review responsibility does not preclude consideration of all of the factual record in full, including "circumstantial evidence” and evidence of the defendant’s motive, and the findings of the fact finder (see, Harte-Hanks Communications v Connaughton, 491 US 657, 668, supra). Rather, our review of the Appellate Division’s analysis of the trial evidence necessarily encompasses all of these usual factors. We must be sure "undue weight” was not given to the jury’s findings in the usual mode and must be satisfied that an "independent review” was conducted.

Mindful of this special review power in the particular procedural framework of this argument by defendant, we conclude that plaintiff met his prima facie evidentiary burden of establishing actual malice sufficient to allow the jury (had it been instructed correctly) to find that defendant acted with a high degree of awareness of "probable falsity” or entertained "serious doubts” as to the truth of the broadcasts (Harte-Hanks Communications v Connaughton, 491 US, at 688, supra). Plaintiff adduced cogent direct evidence from which a jury could have inferred that defendant knew or suspected that the Prozeralik was not the victim in this story. It is undisputed that the actual victim, David Pasquantino, had been correctly identified by name in the May 6th 11:00 p.m. broadcast of a rival television station — the night before defendant’s broadcasts. The stations were engaged in their market "sweeps” competition at the time. Uncontroverted testimony from defendant’s own witnesses showed that the only reason defendant’s news employees speculated about plaintiff’s name, without any basis or source whatsoever, was because they believed that the organized crime abduction victim was a Niagara restaurateur. Prozeralik was one of countless restaurateurs in the region but had no connection whatsoever to the crime, the criminal or the story, except for defendant’s employees’ rootless speculation and then glaring projection of his name into the public’s eye.

Thurston emphatically denied that he had told DiBiasi that if he did not call her back she could go with Prozeralik’s name. He added that during his tenure as upstate New York media coordinator for the FBI, he had never told a reporter to treat a no-call-back as a confirmation of a fact inquired about in a reporter-initiated telephone call. News Director Ridge testified that before he aired the retraction he, too, had spoken to FBI Agent Thurston, who denied to him confirming Prozeralik’s name to DiBiasi. Yet, the "retraction” repeated that the FBI had earlier told the station that Prozeralik was the victim. While falsity alone and negligence alone would not be sufficient to sustain plaintiffs burden, there is enough in this case to submit the issue of actual malice to a jury for factual resolution.

It is important at this juncture to note that this case is sufficiently distinguishable from Mahoney v Adirondack Publ. Co. (71 NY2d 31, supra), so heavily relied upon by defendant and the partial dissent, so as to withstand and avoid its broad precedential impact. There, defendant had run a story in the sports section of its newspaper in which a reporter, who had witnessed a local high school football game, reported that the coach had "verbally abused” the players. The reporter based his article on statements that he had allegedly heard. The evidence at trial established that the plaintiff had not uttered the sentence attributed to him ("get your head out of your &!(!!(&”); although what he said was similar ("get your head up”) (id., at 37-38). The plaintiff, the player to whom he was speaking and the player’s father, all testified as to. what was actually said. Additional witnesses testified "that they did not hear plaintiff use profane language” (Mahoney v Adirondack Publ. Co., 71 NY2d, at 40, supra). This Court found that although the evidence supported the jury’s falsity finding, "[t]here was no evidence [as to actual malice] to negate the possibility that [the reporter] simply misunderstood plaintiff” (id., at 40). Significantly, "[t]here was no direct evidence that [the reporter] or his employer knew or suspected the plaintiff did not utter the words attributed to him in the article” (id., at 39). There was nothing outside the parties’ differing versions of the incident to support the jury’s conclusion that the coach’s testimony was accurate and the reporter’s version was inaccurate. Moreover, there was no evidence to support the jury’s conclusion that the reporter knew or should have known that his understanding of what happened was false. On the contrary, it was more than likely that observers hearing the statement from different locations during the noise and confusion of a high school football game would differ in their understanding of the coach’s remarks. Thus, the evidence in Mahoney did not meet constitutional standards for establishing that the reporter knew or suspected that his version of events was inaccurate. Therefore, we reversed the Appellate Division and held that actual malice had not been established as a matter of law.

The evidence and context in the instant case cogently present a decidedly different and stronger case than Mahoney. A highly and significantly discrete feature of this case is the uncontroverted evidence that the plaintiff’s name was initially injected randomly by defendant’s own employees merely because he happened to be a Niagara restaurateur. Direct evidence was presented here from which the jury was entitled to infer and find that the defendant "knew or suspected” that Prozeralik was not the victim. Strikingly here, Agent Thurston gave categorical testimony that he had not confirmed Prozeralik’s name and that he never used the no-call-back method to confirm a factual inquiry from the media.

For assessing the prima facie proof burden to get to a jury, even within the special heightened appellate review standard, this Court may include in its over-all consideration the strengths and weaknesses of the whole evidentiary record. The heightened test cannot compel the reviewing court to deprive plaintiff of his right to a jury resolution in these circumstances. In answering defendant’s argument that the Court should dismiss as a matter of law, we should also consider, along with everything else, the high improbability of defendant’s explanation as it was offered in the face of Thurston’s testimony on some key facts. For example, the context of his version of events includes that the truth was objectively verifiable, since the name of the actual victim had already been transmitted across defendant’s competitor’s airwaves, thus contradicting defendant’s story that Thurston officially implicated Prozeralik in some way to defendant (see, Harte-Hanks Communications v Connaughton, 491 US, at 692, supra ["Although failure to investigate will not alone support a finding of actual malice * * * the purposeful avoidance of the truth is in a different category”]). This adds an independently objective verifying feature, not present in Mahoney (71 NY2d 31, supra). Next, DiBiasi’s central claim was contrary to Thurston’s standard practice in dealing with reporters. As we have observed, he had virtually no motive to lie, contrasted to defendant’s employees’ motivation to minimize and rationalize their gross blunder. Lastly, for Thurston to falsely report and testify in this matter would place him in direct violation of his sworn public duties for no reason beneficial to him or the FBI.

Despite the improbabilities, defendant would have this Court conclude that no prima facie case was even presented because its employees might have held an untarnished subjective state of mind. That approach and analysis is not constitutionally compelled by Bose (466 US 485, supra) or Mahoney (71 NY2d 31, supra), and it would erect a logically impossible test which, by its practical application of governing precedents, would inevitably result in no defamation case ever qualifying for jury resolution. The outcome of these complex, difficult and sensitively nuanced controversies cannot be that rigid or one-sided. Nor as a practical matter should such dispositions be placed into the unilateral control of defendants. Under the facts and circumstances of this case, enough evidence was adduced to convince us with the requisite clarity and cogency that the jury was rightly given the obligation of resolving credibility and the competing versions of what happened.

Thus, since there was sufficient and convincingly clear evidence to warrant submitting the case to the jury for its assessment of actual malice and liability, plaintiffs case should not be dismissed.

ra.

It is incumbent upon the Court also to address the punitive damages issue. In Mahoney v Adirondack Publ. Co., this Court did not have to decide "whether plaintiff’s proof of common-law malice was sufficient to sustain [an award of punitive damages] or whether punitive damages are ever recoverable in [defamation] actions involving [public figures]” (71 NY2d 31, 41, supra). Were we not ordering a new trial, we might be bound by a law-of-the-case-unobjected-to instruction to the jury on the issue. The trial court gave the following jury instruction on punitive damages:

"[P]unitive damages may be awarded to punish a defendant who * * * has acted maliciously and to discourage others from doing the same. * * * A statement is made maliciously if it is made with deliberate intent to injure or with a wanton and reckless disregard of its truth and its injurious effect upon the person upon whom it was made. * * * If you find that the defendant’s employees knew the statements in its broadcast were false or the information received by the defendant’s employees from Agent Thurston did not tend to establish the truth of the statements contained in the broadcasts or that the broadcasts did not accurately and completely state the information received from Agent Thurston, after considering all the evidence, you may find that the defendant’s employees acted with malice”.

This instruction does not fully or accurately inform the jury of the principles governing this important segment of such cases (see, PJI 3:38). Under the procedural circumstances of this case, we note our disagreement with the instruction given, so as to provide guidance on the new trial and to settle the issue for future cases.

Punitive damages are awarded in tort actions "[w]here the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime” (Prosser and Keeton, Torts § 2, at 9 [5th ed 1984]). That author also teaches that:

"Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or 'malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton” (Prosser and Keeton, Torts § 2, at 9-10 [5th ed 1984]).

Actual malice, as defined in New York Times Co. v Sullivan (376 US 254, supra), is insufficient by itself to justify an award of punitive damages, because that malice focuses on the defendant’s state of mind in relation to the truth or falsity of the published information (see, e.g., McCoy v Hearst Corp., 42 Cal 3d 835, 727 P2d 711, 736 [1986], cert denied 481 US 1041; compare, Liberman v Gelstein, 80 NY2d 429, 437). This does not measure up to the level of outrage or malice underlying the public policy which would allow an award of punitive damages, i.e., "to punish a person for outrageous conduct which is malicious, wanton, reckless, or in willful disregard for another’s rights” (Vassiliades v Garfinkle’s, Brooks Bros., 492 A2d 580, 593 [DC]; see also, Liberman v Gelstein, 80 NY2d 429, supra; Hartford Acc. & Indem. Co. v Village of Hemp-stead, 48 NY2d 218, 227). This kind of common-law malice focuses on the defendant’s mental state in relation to the plaintiff and the motive in publishing the falsity — the pointed factors that punitive damages are intended to remedy.

While theoretically, and upon proof and instructions, punitive damages may be available in such cases, the evidence on this record did not support the conclusion that Prozeralik was reported as the victim of this violent crime out of hatred, ill will, spite, criminal mental state or that traditionally required variety of common-law malice. Whether that could be shown on the new trial remains to be seen and demonstrated.

IV.

The other issues in the case, to the extent reviewable, warrant no further discussion.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered, with costs to abide the event.

Levine, J.

(concurring in part and dissenting in part). I agree with the majority that Supreme Court’s error in charging the jury on the falsity of all of defendant’s television and radio broadcasts of May 7, 1982 requires reversal. I would, however, go further and dismiss plaintiff’s action on the ground that he failed to meet the constitutional burden of proving defendant’s actual malice, i.e., clear and convincing proof that defendant’s broadcast statements were made with knowledge of their falsity or reckless disregard of whether they were false or not (New York Times Co. v Sullivan, 376 US 254, 279-280). The "reckless disregard” form of required scienter has since been further refined to signify that a defamation suit defendant must have made the false statement with a "high degree of awareness of * * * probable falsity” (Garrison v Louisiana, 379 US 64, 74) or must have "entertained serious doubts as to the truth of his publication” (St. Amant v Thompson, 390 US 727, 731). Actual malice for constitutional purposes refers to the defendant’s actual subjective state of mind, although that may be proved by circumstantial evidence (Harte-Hanks Communications v Connaughton, 491 US 657, 668). This Court must undertake an independent review of the record to ensure that the actual malice determination was premised upon clear and convincing proof sufficient to cross the constitutional threshold (id., at 659; Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39).

The majority decision has fairly and comprehensively described the evidence upon which plaintiff relied to prove defendant’s actual malice. The majority has also correctly focused on the states of mind of defendant’s news staff members with respect to two critical broadcasts: (1) the May 7, 1982 noon telecast by defendant’s noon anchor, Cindy DiBiasi, following her telephone conversation with FBI Agent and Media Coordinator John Thurston; and (2) the "retraction” telecast at 6:00 p.m. and 11:00 p.m. the same day, written by defendant’s news director, Steven Ridge, after speaking to DiBiasi, Thurston and the station’s investigative reporter who gave Ridge the name of the actual victim of the beating that was the subject of the news story. Thus, the legal sufficiency of the proof of actual malice in this case hinges principally on the evidence adduced concerning DiBiasi’s state of mind at the time of the noon telecast of May 7 and Ridge’s state of mind in preparing the retraction that was aired that evening.

As to the noon DiBiasi telecast, plaintiff points principally if not solely to the following evidence in order to establish actual malice: (1) the completely speculative way in which other news staffers of defendant had earlier surmised that plaintiff was the victim of the alleged mob beating; (2) the apparent motive of defendant to name some victim, due to defendant’s awareness that a competitor television station had named the victim on an earlier broadcast, and because this story broke during the week when local television popularity ratings were taking place; (3) DiBiasi "lied” to FBI Agent Thurston by stating to him that the "media had” plaintiffs name and she was merely calling for confirmation; and (4) the testimony of FBI Agent Thurston in which he unequivocally denied either giving or confirming plaintiffs name as the beating victim during his telephone conversation with DiBiasi.

Apart from the Thurston testimony, the foregoing evidence was of minimal if nonexistent probative value to establish that, at the time of the noon broadcast, DiBiasi named plaintiff as the victim of the beating (who was then being questioned by the FBI) with a high degree of awareness of the probable falsity of that statement, or that she entertained serious doubts as to its truth. Assuming that it can be inferred that DiBiasi knew of the speculative way her colleagues at the station arrived at plaintiffs name, DiBiasi did not broadcast plaintiff as the victim based on her colleagues’ speculations; undeniably, she went to the FBI which, as the investigating law enforcement agency on the case, was the best possible source of information as to the identity of the victim. Similarly, DiBiasi’s "lie” to Thurston, implying that plaintiff had independently been identified as the victim of the Mafia-related beating and that she merely needed confirmation, cannot be interpreted as anything but a news reporter’s ploy to gain accurate information from the FBI. Thus, these two items of evidence not only are lacking in probative value to establish DiBiasi’s reckless disregard for the true identity of the mob victim; if anything, they have some tendency to show DiBiasi’s conscientiousness in seeking the truth beyond the speculations of her news staff colleagues.

As to the defendant’s "motive” to sensationalize this story during a "sweeps” week determining the ratings upon which the station’s advertising revenues depended, a media defendant’s profit motive such as this is both the weakest and most dangerous (to First Amendment values) kind of evidence upon which to infer actual malice.

"Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice. The allegedly defamatory statements at issue in the New York Times case were themselves published as part of a paid advertisement. 376 U.S., at 265-266. If a profit motive could somehow strip communications of the otherwise available constitutional protection, our cases from New York Times to Hustler Magazine would be little more than empty vessels.” (Harte-Hanks Communications v Connaughton, 491 US 657, 667, supra.)

Thus, in attempting to establish by clear and convincing evidence that DiBiasi knew at the time of the noon telecast that her identification of plaintiff as the victim was false, or at least had a high degree of awareness of its probable falsity, plaintiff has to rely almost entirely on the testimony of FBI Agent Thurston. It must be kept in mind, however, that DiBiasi consistently maintained from the day of the broadcast through the trial that, after she mentioned plaintiffs name to Thurston in the telephone conversation before the offending noon newscast, he said, "[y]ou can go with that unless I call you back”. Under controlling precedent, no matter how plausible it may be to resolve the direct conflict in DiBiasi’s and Thurston’s testimony on this portion of their conversation in favor of Thurston, the proof is insufficient as a matter of law to establish DiBiasi’s actual malice.

It is pertinent to note at this point that in testifying concerning the critical telephone conversation before the May 7 noon newscast, DiBiasi and Thurston were in agreement that they had discussed the fact that the FBI was investigating a beating of a Niagara Falls restaurant or bar owner who was then being questioned by the Bureau, and also that Thurston conceded that it was "possible” that he promised to get back to DiBiasi if he had any further information. Also, DiBiasi was nearing and thus under the pressure to meet the 11:00 a.m. station deadline for completing copy for the noon newscast and while talking over the telephone to Thurston, was in a room in the station with other staff members. Under these circumstances, it was not enough for plaintiff to prove with convincing clarity that Thurston’s version of the key portion of the telephone conversation was the accurate one. Plaintiff had to prove by clear and convincing evidence that the conditions were such that DiBiasi simply could not have misunderstood Thurston; this plaintiff has failed to do. In this respect, our holding in Mahoney v Adirondack Publ. Co. (71 NY2d 31) is directly on point:

"It may be possible, as the United States Supreme Court has suggested, that proof of falsity will support an inference of actual malice 'when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves’ (Time, Inc. v Pape, 401 US 279, 285). The Appellate Division held that this case presented such an instance. We disagree. The inference depends for its validity on the premise that the eyewitness could not have perceived and understood anything but the truth. Thus, in reporting something else, the observer must have departed from the truth by design. The underlying premise is valid, however, only if the events were unambiguous and the setting was such that the observer could not have misperceived those events. Such conditions, however, cannot simply be assumed; as the proponent of the inference and the bearer of the burden of proof of actual malice, the plaintiff must demonstrate that they exist. No such showing was made here.” (Id., at 39-40 [emphasis supplied].)

The majority attempts to overcome the seemingly impossible hurdle of finding (on this record) clear and convincing evidence that DiBiasi could not have misunderstood FBI Agent Thurston’s version of what he told her during their telephone conversation on the morning of May 7 by relying on two factors in addition to the evidence I have already discussed: (1) the jury could have inferred from the broadcast the preceding evening of the true beating victim’s name by a rival television station, that DiBiasi or defendant’s news staff intentionally failed to investigate to ascertain the name of the actual beating victim (citing Harte-Hanks Communications v Connaughton, 491 US, at 692, supra); and (2) the strength and probability of Thurston’s testimony as weighed against the improbability of DiBiasi’s testimony and her motive to lie to "minimize and rationalize [her] gross blunder” (majority opn, at 478).

With respect to the failure-to-investigate factor, there is no evidence whatsoever in the record that DiBiasi or any other member of defendant’s news staff was aware of the name of the person the rival station had identified as the beating victim. Defendant’s response to the staff’s knowledge that a rival station had named someone as the beating victim was to have DiBiasi call the FBI, presumably the best source of information on the true identity of the victim. I should not think that defendant was obliged to make any inquiry of the rival station. By contrast, in Harte-Hanks Communications, the defendant newspaper’s editorial director studiously avoided going to the person who was uniquely suited to confirm or refute the charges of plaintiff’s wrongdoing published by that defendant. That failure supported an inference that the defendant newspaper in Harte-Hanks Communications made "a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the] charges” (supra, at 692). No inference can be drawn here that, in calling the FBI DiBiasi was attempting to avoid discovering the true identity of the victim of the beating. As previously discussed, the uncontradicted evidence was that the call was made to obtain a genuine confirmation or denial on whether plaintiff was the victim. For the majority to conclude that defendant’s news staff displayed actual malice by failing to investigate beyond calling the FBI regarding their speculation that plaintiff was the victim seems to me to be nothing more than condemning defendant’s inferior brand of journalism. This clearly is not a constitutionally permissible basis for a finding of actual malice (see, id., at 666).

With respect to the relative strengths of the testimony of FBI Agent Thurston and of DiBiasi, and the latter’s motive to lie to mask her blunder, I would submit that their true relevance is exclusively on the issue of which of the competing versions of the Thurston/DiBiasi telephone conversation of May 7 was correct, and on DiBiasi’s credibility on testifying to her version. Obviously, while DiBiasi may well have been motivated to mask or minimize her misunderstanding of what Thurston said in that conversation (once she later learned of her mistake) when she continued to insist in her testimony that her rendition of the conversation was accurate, she had no motive to conceal a blunder at the time of her May 7 noon telecast, when she was not yet aware of committing that blunder. Put another way, any motive she may have had to cover up the mistake she subsequently discovered is not evidence that DiBiasi was aware of her mistake when it was made.

Likewise, as we have already demonstrated, total acceptance of Thurston’s testimony does not by itself prove DiBiasi’s actual malice at noon on May 7, unless plaintiff proved with convincing clarity that the conditions prevented DiBiasi from misunderstanding Thurston (Mahoney v Adirondack Publ. Co., 71 NY2d 31, supra). This remains so even if a trier of fact could reasonably reject the credibility of DiBiasi’s testimony. In Bose Corp. v Consumers Union of U. S. (466 US 485) (discussed, infra), a decision relied upon by this Court in Mahoney, the Supreme Court found legally insufficient to establish actual malice the trial court’s total rejection of the credibility of the testimony of the author of the defamatory article that was the subject of the suit. Its reasoning applies to DiBiasi’s purported lack of credibility as establishing her actual malice here:

"When the testimony of a witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion. * * * In this case the trial judge found it impossible to believe that Seligson continued to maintain that the word 'about’ meant 'across.’ Seligson’s testimony does not rebut any inference of actual malice that the record otherwise supports, but it is equally clear that it does not constitute clear and convincing evidence of actual malice. Seligson displayed a capacity for rationalization. He had made a mistake and when confronted with it, he refused to admit it and steadfastly attempted to maintain that no mistake had been made — that the inaccurate was accurate. That attempt failed, but the fact that he made the attempt does not establish that he realized the inaccuracy at the time of publication” (id., at 512 [emphasis supplied]).

Thus, after giving plaintiff the benefit of resolving all actually outstanding issues of credibility in his favor and of all favorable inferences on the evidence, I have concluded that his proof of defendant’s actual malice regarding the DiBiasi May 7 noon newscast fails to meet the constitutional standard.

I turn, then, to the offending broadcasts of 6:00 p.m. and 11:00 p.m. of May 7, 1982, the copy for which was prepared by Ridge, defendant’s news director, wherein, during the station’s retraction of its prior identification of plaintiff as the beating victim, it was stated, ”[t]he FBI earlier today said and confirmed the victim was Prozeralik”. Plaintiff’s evidence of Ridge’s actual malice when he drafted that statement was as follows: (1) FBI Agent Thurston personally told Ridge after the noon broadcast that he had not identified plaintiff nor confirmed him as the victim in talking to DiBiasi; (2) defendant’s investigative reporter furnished Ridge with the name of the true victim; and (3) even in DiBiasi’s version of her conversation with Thurston, he did not say that plaintiff was the victim; at most, he confirmed it. Again keeping in mind that DiBiasi steadfastly insisted on the accuracy of her version of the telephone conversation with Thurston on the morning before the broadcasts, I find little of probative value regarding Ridge’s actual malice in the fact that Thurston gave him his contradictory version of that conversation, or in Ridge’s by then awareness that plaintiff was not involved in the beating incident. DiBiasi never claimed that she had any source for identifying plaintiff as the victim other than what she was told by Thurston, so the fact that plaintiff was not the victim had no tendency to undermine DiBiasi’s credibility in the eyes of her supervisor. Moreover, Ridge was not presumptively obliged to accept Thurston’s denial of his own reporter’s rendition of the conversation, at the risk of a jury’s concluding that his refusal to do so demonstrated actual malice. As stated in Edwards v National Audubon Socy. (556 F2d 113):

"Surely liability under the 'clear and convincing proof standard of New York Times v. Sullivan cannot be predicated on mere denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error” (id., at 121).

Plaintiff did not submit any other evidence of clear and convincing clarity that even would have been expected to cast serious doubt in Ridge’s mind on the credibility of DiBiasi’s description of her telephone conversation with Thurston, or on that reporter’s integrity. In this respect, the instant case stands in stark contrast to Harte-Hanks Communications v Connaughton (supra). In Harte-Hanks Communications, the defendant newspaper’s informant’s version of the facts was not only contradicted by the plaintiff — the person the informant accused of wrongdoing — but by all the other witnesses to the relevant events, and the informant’s veracity was seriously undermined by several other pieces of objectively established undisputed evidence (id., at 691-692).

Thus, as to the retraction telecasts, the only truly damning evidence of News Director Ridge’s actual malice was that his statement in the retraction story that the FBI had earlier that day "said and confirmed” that plaintiff was the victim of the beating deviated literally from DiBiasi’s version, that she first mentioned plaintiff’s name as the beating victim, in response to which Thurston said, "[y]ou can go with that unless I call you back”. Plaintiff thus contends that, at the least, Ridge knew the falsity of the portion of the retraction broadcasts in which it was averred that the FBI "said” that plaintiff was the victim.

Basing a finding of Ridge’s actual malice on the inaccuracy of his characterization of Thurston’s "[y]ou can go with that [i.e., using plaintiff’s name as the victim] unless I call you back”, as an express statement by the FBI that plaintiff was the victim, however, runs into direct conflict with the Supreme Court’s holdings in Bose Corp. v Consumers Union of U. S. (466 US 485, supra) and Time, Inc. v Pape (401 US 279). Bose Corp. was a product disparagement suit arising out of a critical review of the plaintiff’s stereo loudspeakers in the magazine Consumer Reports. The article characterized the sound of music played through plaintiffs speakers as having the negative quality of tending "to wander about the room”. In his testimony at the trial, however, the author of the article made a sketch of the movement he claimed to have heard during his testing of plaintiffs speakers, which actually depicted a movement of sound back and forth along the wall between the two speakers (apparently a common trait of good quality sound systems). This misdescription of the sound as "wander[ing] about the room” was the basis of the lower court’s finding of actual malice (Bose Corp. v Consumers Union of U. S., supra, at 496-498).

In Time, Inc. v Pape, an issue of Time magazine contained an article on a volume of a 1961 report of the United States Commission on Civil Rights partly devoted to its study of the incidence of police brutality. The Commission’s study referred to a pending civil rights suit in which the complaint alleged that Pape, as a commanding officer in the Chicago Police Department, had mistakenly authorized and brutally executed a raid on the apartment of an innocent family. The Time article discussed that portion of the Civil Rights Commission’s study, but omitted mention that the Commission’s text expressly stated that it was describing allegations in the civil rights suit. Pape’s suit against Time, Inc. was based on the theory that, in omitting any indication that the Commission’s description of the incident was expressly based upon the allegations in a pending lawsuit, the Time article implied that the Commission had investigated the incident and found that the facts, rather than only alleged, were indeed true. The lower court found a triable issue of fact on the question of Time’s actual malice, since Time’s writer and editor of the article admitted that they knowingly omitted "alleged” in the article’s version of the Commission’s study. The Time staffers claimed, however, that they read the Commission’s study as a whole as implicitly endorsing those allegations (Time, Inc. v Pape, supra, at 289).

In Bose Corp., the Supreme Court concluded that the defendant author’s obvious misdescription of the sound movement he heard did not demonstrate consciousness of falsity or reckless disregard for the truth, essentially because the phenomenon that the author of the Consumer Reports article heard was sufficiently ambiguous so as to pose a descriptive challenge to the writer and be subject to a number of alternative rational interpretations by him (Bose Corp. v Consumers Union of U. S., supra, at 512). Viewed in that light, the Court held that "[t]he statement in this case represents the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies” (id,., at 513) and that the misdescription of that phenomenon "fits easily within the breathing space that gives life to the First Amendment” (id., at 513).

Likewise, in Time, Inc. v Pape, the Court rejected the conclusion that actual malice of Time magazine was established by its admittedly intentional omission of "alleged” in relating the Civil Rights Commission’s treatment of the incident in question. "Time’s omission of the word 'alleged’ amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of 'malice’ under New York Times” (Time, Inc. v Pape, supra, at 290). Because "a vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did” (id., at 285 [emphasis in the original]), errors of interpretation in reporting on what somebody said are entitled to the same constitutional zone of protection that New York Times Co. v Sullivan created for errors of fact (401 US, at 291).

In my view, the teachings of Bose Corp. and Time, Inc. v Pape directly apply to News Director Ridge’s characterization of DiBiasi’s version of the conversation with FBI Agent Thurston, i.e., as one in which the FBI had earlier "said and confirmed”, rather than merely confirmed, that plaintiff was the victim of the suspected mob-related beating. Whether looked at as an error in description, as in Bose Corp., or an error in interpretation, as in Time, Inc. v Pape, Ridge’s minor deviation from DiBiasi’s version of the conversation with Thurston, having little if any demonstrable effect on the meaning of the offending news broadcast or its defamatory content, also "fits easily within the breathing space that gives life to the First Amendment” (Bose Corp. v Consumers Union of U. S., supra, at 513).

Accordingly, I vote to reverse and dismiss plaintiffs complaint.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Smith concur with Judge Bellacos a; Judge Levine dissents in part in a separate opinion.

Order reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [626 NE2d 48, 605 NYS2d 232]
    In the Matter of Richard W. Murphy, a Justice of the Shandaken Town Court, Ulster County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued November 11, 1993;
    decided December 16, 1993

      POINTS OF COUNSEL

      Rusk, Wadlin, Heppner & Martuscello, Kingston (Daniel G. Heppner of counsel), for petitioner.
    I. The Commission failed to sustain its burden that Judge Murphy "took an envelope with $1,173.00 in cash, checks and money orders for fines and surcharges paid to the court”. II. The Commission failed to sustain their burden of proof that "Judge Murphy told the Board that he had put the deposit envelope in the trunk of his car and had later transferred ownership of the car”. III. The Commission failed to sustain its burden of proof as to Charge III that Judge Murphy knew at the time he presided over nine cases involving Mr. Warfield that he was aware that on a previous occasion he had secured a one-time loan.

      Gerald Stern, New York City, and Jean M. Savanyu for respondent.
    Petitioner’s egregious misconduct, including his mishandling of official funds, presiding over cases of a litigant who had lent him money, and his many false explanations of his conduct, warrants removal from office. (Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807; Matter of Rogers v State Commn. on Judicial Conduct, 51 NY2d 224; Bartlett v Flynn, 50 AD2d 401, 39 NY2d 942; Matter of Bird v McGoldrick, 277 NY 492; Matter of Moynihan, 80 NY2d 322; Matter of Intemann, 73 NY2d 580; Matter of Conti, 70 NY2d 416; Matter of Gelfand, 70 NY2d 211; Matter of Myers, 67 NY2d 550; Matter of Kiley, 74 NY2d 364.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Justice of Shandaken Town Court, Ulster County, seeks review of a determination by the State Commission on Judicial Conduct that he should be removed from office (see, NY Const, art VI, § 22 [a]; Judiciary Law § 44 [7]). Of the four charges in the formal complaint, the Commission sustained two: one relating to petitioner’s mishandling of court funds (Charge I), the other imposing discipline for petitioner’s failure to recuse himself (or disclose the relevant facts) in several cases involving a litigant from whom petitioner had once borrowed several hundred dollars (Charge III).

In the exercise of our plenary review powers (see, Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386, 391), we find the following facts. After an evening court session on November 28, 1989, petitioner’s court clerk prepared an envelope for deposit in petitioner’s official bank account (see, 22 NYCRR 214.9 [a]). The envelope contained $1,173 in fines and surcharges collected, either by mail or in court that evening, from 16 individuals. Four hundred fifty-four dollars was cash, the remainder checks and money orders.

Deposits were ordinarily made by the clerk, but petitioner himself on occasion attended to the transaction and offered to make the November 28 deposit. In late December or January 1990 a bank officer advised the court clerk that there were insufficient funds in petitioner’s account to cover a check written to the State Comptroller for November’s receipts. It was then that the clerk learned that the November 28 deposit had not been made.

When the clerk asked petitioner what became of the money, he said he might have left it in one of his suit pockets and would look for it. In the ensuing weeks, the clerk repeatedly queried petitioner about the missing funds and petitioner responded that he was still checking. Petitioner, however, made no official report of the missing deposit, explaining at the hearing that he was embarrassed the money was missing and was hoping it would turn up.

In September 1990 an independent accountant who performed the annual audit of the town’s finances reported to the Shandaken Town Board that there was a deficiency in petitioner’s official bank account because a deposit had not been made. At a Board meeting, petitioner said that he might have put the envelope in the trunk of his Oldsmobile, which he gave away in or about March 1990. In December 1990 petitioner gave similar explanations to the accountant, his fellow Town Justice and others. The car’s new owner, however, when finally contacted by petitioner, could not locate the money.

In February 1991 (after the Commission had initiated an inquiry) petitioner had letters sent to the individuals who in November 1989 paid by check or money order. Only one individual submitted a new payment of $117. Later in 1991, petitioner suggested to his fellow Justice that the deposit may have become lost in some files.

Although circumstantial evidence had been presented suggesting the possibility that petitioner converted the money to his own use, neither the Hearing Officer nor the Commission made such a definitive finding, each concluding that petitioner’s failure to make the deposit resulted from either "carelessness or calculation.” The Commission nevertheless sustained the charge, stating that the mishandling of public money by a Judge is "serious misconduct” even when not done for personal profit.

We agree. As this Court has noted, "carelessness in handling public moneys is a serious violation of [a Judge’s] official responsibilities” (Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807, 808). Such breaches of public trust have frequently led to removal (see, Matter of Vincent, 70 NY2d 208, 209; Matter of Rater, 69 NY2d 208, 209; Matter of Petrie, supra; Matter of Cooley, 53 NY2d 64, 66).

Had petitioner taken immediate remedial steps, a lesser sanction might be warranted for a first transgression. In the present case, however, petitioner’s attitude for an extended period was, at best, one of relative indifference. For almost a year he made no official notification of the missing money— the Referee concluded this "smack[ed] of concealment” — and he did not contact the debtors until the Commission intervened, almost 15 months after the deposit should have been made. Nor has petitioner provided an adequate explanation for the loss of the money. These are aggravating circumstances warranting removal (see, Matter of Rater, 69 NY2d, at 209).

We similarly sustain Charge III, which alleged that petitioner created the "appearance of partiality” by not recusing himself, or disclosing the relevant facts, in a number of cases adjudicated in 1988 and 1989 involving an acquaintance from whom defendant had previously borrowed about $500. The money was borrowed between 1983 and 1986 from the owner of a diner petitioner patronized, and repaid within a few days.

Petitioner testified that at the time of the adjudications he did not recall the loan, and would have disqualified himself had he been aware that he had borrowed the money. The Hearing Officer and Commission found incredible petitioner’s claim of having forgotten about the loan, given petitioner’s relationship with the lender, the amount of money involved, and his varying positions on the issue throughout the proceedings.

The Code of Judicial Conduct requires a Judge’s recusal when his or her "impartiality might reasonably be questioned” (22 NYCRR 100.3 [c] [1]). Absent a legal disqualification, however (see, e.g, Judiciary Law § 14), a Judge is generally the sole arbiter of recusal (People v Moreno, 70 NY2d 403, 405; see also, People v Smith, 63 NY2d 41, 68 [noting that recusal is generally "a matter of personal conscience”]). Accordingly, while Judges should strive to avoid even the appearance of partiality, and the "better practice” would be to err on the side of recusal in close cases (see, Corradino v Corradino, 48 NY2d 894, 895), formal charges of misconduct are inappropriate when the circumstances fall in that vast discretionary area over which reasonable Judges can differ (compare, Matter of Wait, 67 NY2d 15, 18 [Judge presided over cases involving family members]; Matter of Myers, 67 NY2d 550, 554 [Judge attempted to preside over case in which he and family members had a personal interest]; Matter of Scacchetti v State Commn. on Judicial Conduct, 56 NY2d 980 [Judge presided over case involving close friend while a loan was still outstanding]).

This case, however, does not involve review of a Judge’s discretionary determination that the circumstances did not warrant recusal. Petitioner testified that the reason he did not disqualify himself or disclose the relevant facts to the parties is that he simply did not remember the loan. Like the two previous bodies that have reviewed this case, we too find that assertion unworthy of belief. In these circumstances, therefore, the Commission properly sustained Charge III.

Accordingly, the determined sanction should be accepted, without costs, and petitioner removed from the office of Justice of the Shandaken Town Court.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine concur in Per Curiam opinion.

Determined sanction accepted, without costs, etc.

      . Charges II and IV, relating respectively to alleged improprieties in connection with travel expenses, and lack of candor during the staff investigation, were dismissed by the Commission and are not before us.

      . Although at the hearing 2 Vi years later the clerk testified that she did not have a specific recollection of giving the envelope to petitioner, and the Judge asserted a similar lack of recollection, the Hearing Officer and the Commission concluded, and we agree, that petitioner must have taken custody of the envelope. As the events unfolded, and the money’s disappearance became evident, petitioner did not deny taking the envelope or suggest that the clerk was at fault. Instead, petitioner offered various explanations of what he may have done with the money.


author: Chief Judge Kaye.

text:
    [626 NE2d 51, 605 NYS2d 235]
    The People of the State of New York, Respondent, v Robert C. Ryan, Appellant.
    Argued November 9, 1993;
    decided December 16, 1993

      POINTS OF COUNSEL

      James P. Kelley, Wappingers Falls, and D. James O’Neil for appellant.
    I. In proving the crime of attempted criminal possession of a controlled substance in the second degree, the People must not only establish that defendant knew the nature of the controlled substance, but must also prove defendant’s knowledge of the weight of the controlled substance attempted to be possessed. (People v Acosta, 80 NY2d 665; People v Houston, 72 AD2d 369; People v Vandercook, 99 Misc 2d 876; People v Davis, 95 Misc 2d 1010; People v Dlugash, 41 NY2d 725; People v Moran, 123 NY 254; People v Culligan, 79 AD2d 875; People v Bracey, 41 NY2d 296; People v Kane, 161 NY 380.) II. Defendant was improperly denied his right to represent himself as guaranteed by the Constitutions of the State of New York and the United States. (Faretta v Califor

      nia, 422 US 806; People v Davis, 49 NY2d 114; People v McIntyre, 36 NY2d 10; Johnson v Zerbst, 304 US 458; United States v Terranova, 309 F2d 365; United States v Arlen, 252 F2d 491.)

      Michael Coccoma, District Attorney of Otsego County, Cooperstown (Brian D. Burns of counsel), for respondent.
    I. In proving attempted criminal possession of a controlled substance in the second degree, the People are not required to prove that defendant knew the specific weight of the controlled substance he attempted to possess. (People v Acosta, 80 NY2d 665.) II. The issue of denial of appellant’s right to represent himself is not properly before this Court.
   OPINION OF THE COURT

Chief Judge Kaye.

Penal Law § 220.18 (5) makes it a felony to "knowingly and unlawfully possess * * * six hundred twenty-five milligrams of a hallucinogen.” The question of statutory interpretation before us is whether "knowingly” applies to the weight of the controlled substance. We conclude that it does and that the trial evidence was insufficient to satisfy that mental culpability element.

A subsidiary issue concerns the denial of defendant’s request to represent himself at trial. We agree with defendant that the trial court’s basis for denying the application was improper, and that the issue was not waived in a subsequent letter to the trial court or in his jurisdictional statement to this Court.

I.

Viewed in a light most favorable to the People (People v Contes, 60 NY2d 620, 621), the trial evidence revealed that on October 2, 1990 defendant asked his friend David Hopkins to order and receive a shipment of hallucinogenic mushrooms on his behalf. Hopkins agreed, and adhering to defendant’s instructions placed a call to their mutual friend Scott in San Francisco and requested the "usual shipment.” Tipped off to the transaction, on October 5 State Police Investigator Douglas Vredenburgh located the package at a Federal Express warehouse in Binghamton. The package was opened (pursuant to a search warrant) and resealed after its contents were verified. The investigator then borrowed a Federal Express uniform and van and delivered the package to Hopkins, the addressee, who was arrested upon signing for it.

Hopkins explained that the package was for defendant and agreed to participate in a supervised delivery to him. In a telephone call recorded by the police, Hopkins notified defendant that he got the package, reporting a "shit load of mushrooms in there.” Defendant responded, "I know, don’t say nothing.” At another point Hopkins referred to the shipment containing two pounds. The men agreed to meet later that evening at the firehouse in West Oneonta.

At the meeting, after a brief conversation, Hopkins handed defendant a substitute package stuffed with newspaper. Moments after taking possession, defendant was arrested. He was later indicted for attempted criminal possession of a controlled substance in the second degree.

In pretrial letters to the Trial Judge, defendant expressed dissatisfaction with his assigned attorney and requested permission to represent himself. The Judge held a hearing, questioning defendant on his knowledge of the law and trial procedure. Defendant, who had three years of college and had previously stood trial for another offense, provided answers that were reasonably accurate for a layperson. Nevertheless, the court denied the request, concluding that defendant was "not sufficiently qualified to represent [himjself in this charge that faces life imprisonment.” In a subsequent letter dated May 13, 1991, defendant thanked the Judge for taking time to determine whether he was capable of representing himself, expressing confidence that he would get a fair trial and the hope that, with his attorney’s help, he would soon earn his freedom.

The case proceeded to trial, where the evidence summarized above was adduced. Additionally, the police chemist testified that the total weight of the mushrooms in Hopkins’ package was 932.8 grams (about two pounds), and that a 140-gram sample of the package contents contained 796 milligrams of psilocybin, a hallucinogen (Penal Law § 220.00 [9]; Public Health Law § 3306 [schedule I] [d] [19]). He did not know, however, the process by which psilocybin appears in mushrooms, whether naturally, by injection or some other means. Nor was there any evidence as to how much psilocybin would typically appear in two pounds of mushrooms.

At the close of the People’s case, defendant moved to dismiss for insufficient proof that he knew the level of psilocybin in the mushrooms, and also requested a charge-down to seventh degree attempted criminal possession, which has no weight element. Both applications were denied, defendant was convicted as charged, and he was sentenced as a second felony offender to 10 years-to-life.

The Appellate Division affirmed. The court held that a defendant must know the nature of the substance possessed, and acknowledged that the weight of the controlled substance is an element of the crime. The court declined, however, to read the statute as requiring that a defendant have actual knowledge of the weight. Instead, the court held that "the term 'knowingly’ should be construed to refer only to the element of possession and not to the weight requirement.” (184 AD2d 24, 27.)

Finding ample evidence that defendant intended and attempted to possess psilocybin while knowing the nature of the substance, and that the weight of the psilocybin ultimately proved to be more than 625 milligrams, the Appellate Division sustained the conviction. Similarly, because there was no reasonable view of the evidence that the weight of the psilocybin in the mushrooms was less than 625 milligrams, the court rejected the argument that the trial court erred in refusing the charge-down.

Finally, the Appellate Division concluded that, by virtue of his May 13 letter, defendant waived any objection with respect to the denial of his request to proceed pro se.

We now reverse.

II.

Although the present case involves an attempt, analysis begins with the elements of the completed crime, second degree criminal possession of a controlled substance. Penal Law § 220.18 (5) provides:

"A person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses: * * *
"5. six hundred twenty-five milligrams of a hallucinogen.”

It is undisputed that the knowledge requirement of the statute applies to the element of possession (see also, Penal Law § 15.00 [2]), and that defendant must also have "actual knowledge of the nature of the possessed substance” (People v Reisman, 29 NY2d 278, 285). At issue is whether defendant must similarly know the weight of the material possessed. That is a question of statutory interpretation, as to which the Court’s role is clear: our purpose is not to pass on the wisdom of the statute or any of its requirements, but rather to implement the will of the Legislature as expressed in its enactment (People v Smith, 79 NY2d 309, 311).

In effectuating legislative intent, we look first of course to the statutory language. Read in context, it seems evident that "knowingly” does apply to the weight element. Indeed, given that a defendant’s awareness must extend not only to the fact of possessing something ("knowingly * * * possesses”) but also to the nature of the material possessed ("knowingly * * * possesses * * * a hallucinogen”), any other reading would be strained. Inasmuch as the knowledge requirement carries through to the end of the sentence (see, People v Reisman, 29 NY2d, at 285), eliminating it from the intervening element — weight—would rob the statute of its obvious meaning. We conclude, therefore, that there is a mens rea element associated with the weight of the drug.

That reading is fortified by two rules of construction ordained by the Legislature itself. First, a "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability” (Penal Law § 15.15 [2]). If any material element of an offense lacks a mens rea requirement, it is a strict liability crime (Penal Law § 15.10). Conversely, a crime is one of "mental culpability” only when a mental state "is required with respect to every material element of an offense” (id.).

By ruling that a defendant need not have knowledge of the weight, the Appellate Division in effect held, to that extent, that second degree criminal possession is a strict liability crime (see, Penal Law § 15.10). That is an erroneous statutory construction unless a legislative intent to achieve that result is "clearly indicated]” (Penal Law § 15.15 [2]).

In a similar vein, the Legislature has provided in Penal Law § 15.15 (1):

"Construction of statutes with respect to culpability requirements.
"1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms 'intentionally/ 'knowingly,’ 'recklessly’ or 'criminal negligence/ or by use of terms, such as 'with intent to defraud’ and 'knowing it to be false,’ describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears. ” (Emphasis added.)

Accordingly, if a single mens rea is set forth, as here, it presumptively applies to all elements of the offense unless a contrary legislative intent is plain.

We discern no "clear” legislative intent to make the weight of a drug a strict liability element, as is required before we can construe the statute in that manner (Penal Law § 15.15 [1], [2]). Moreover, the over-all structure of the drug possession laws supports the view that a defendant must have some knowledge of the weight.

There are six degrees of criminal possession of a controlled substance, graded in severity from a class A misdemeanor (Penal Law § 220.03 [seventh degree]) up to an A-I felony (Penal Law § 220.21 [first degree]). The definition of each begins identically: "A person is guilty of criminal possession of a controlled substance in the _____ degree when he knowingly and unlawfully possesses * * *.” The primary distinctions between one grade or another relate to the type and weight of the controlled substance, and in some instances the existence of an intent to sell (e.g., Penal Law § 220.16 [1]) or intent to sell combined with a prior drug conviction (e.g., Penal Law § 220.09 [13]).

Taking hallucinogens as an example, knowing and unlawful possession of any amount, even a trace (see, People v Mizell, 72 NY2d 651, 655) is seventh degree possession (Penal Law § 220.03); 25 milligrams or more, fourth degree (Penal Law § 220.09 [6]); 125 milligrams or more, third degree (Penal Law § 220.16 [10]; and 625 milligrams, second degree (Penal Law § 220.18 [5]). The maximum penalty for these crimes ranges from one-year incarceration to a life sentence, yet the only statutory difference relates to the weight of the drugs. To ascribe to the Legislature an intent to mete out drastic differences in punishment without a basis in culpability would be inconsistent with notions of individual responsibility and proportionality prevailing in the Penal Law (see, e.g., Penal Law § 1.05 [4]).

Our cases, too, have suggested that knowledge of the weight is an element. In People v Scarborough (49 NY2d 364, 374), for example, a case involving a similarly worded criminal sale of a controlled substance statute (see, Penal Law § 220.41), we concluded "that there is no substance to defendant Scarborough’s claim of insufficiency of proof on the issue of her knowledge of the weight or the nature of the contents of the glossine envelopes which she delivered to the buyer” (emphasis added).

Similarly, in People v Reisman (29 NY2d 278, 287, supra), defendant — like defendant here — requested a charge-down to an offense that did not require possession of a specified amount. We rejected the claim that the trial court’s failure to deliver the charge was error, first noting that the "weight of the contraband in the carton was uncontradicted” (id., at 287). If defendant’s knowledge of the weight were not an element, and the only issue were the objective weight of the substance, that would have been sufficient to dispose of the claim, as it was for the Appellate Division here (184 AD2d, at 28). But we continued:

"Moreover, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. Consequently, under no view of the facts, because there was no basis in any of the evidence, could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity” (29 NY2d, at 287).

In the charge-down context, the Court’s reference to the nature and circumstances of the case could only have been an allusion to defendant’s knowledge of the weight.

In sum, the plain language of the statute, rules of construction, the format of the drug possession laws and our cases all lead to the conclusion that the Appellate Division erred in holding that there is no mens rea requirement associated with the weight of a controlled substance.

III.

The People’s contrary argument is based in part on a concern that it would be "prohibitively difficult,” if not impossible, to secure convictions if they were required to prove that a defendant had knowledge of the weight. We disagree.

Often there will be evidence from which the requisite knowledge may be deduced, such as negotiations concerning weight, potency or price (see, e.g., People v Acosta, 80 NY2d 665, 668, n 1, and 672-673). Similarly, for controlled substances measured on an "aggregate weight” basis (see, e.g, Penal Law § 220.06 [2]), knowledge of the weight may be inferred from defendant’s handling of the material, because the weight of the entire mixture, including cutting agents, is counted (see generally, Rosenblatt, New York’s New Drug Laws and Sentencing Statutes, at 45-48 [1973]; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 220, at 9 [comparing aggregate and pure weight statutes]).

By contrast, that same inference may be unavailable for controlled substances measured by "pure” weight, like psilocybin. The effective doses of these drugs may be minuscule, and they are customarily combined with other substances to facilitate handling and use. In these circumstances it may indeed be difficult to show defendant’s knowledge of the weight. Although we cannot simply read the knowledge requirement out of the statute, these "compelling practical considerations” may inform our interpretation of that element (see, People v Mizell, 72 NY2d, at 654).

The Legislature has decided that persons who illegally possess larger quantities of controlled substances should be punished more severely; their conduct is more repugnant and presents a greater threat to society. Because drug possession is not a strict liability crime, however, an individual is not deserving of enhanced punishment unless he or she is aware that the amount possessed is greater. A purpose of the knowledge requirement, then, is to avoid overpenalizing someone who unwittingly possesses a larger amount of a controlled substance than anticipated.

That legislative purpose can be satisfied, among other ways, with evidence that the pure weight of the controlled substance possessed by defendant is typical for the particular form in which the drug appears. This correlation between the pure weight typically found, and the pure weight actually possessed, substantially reduces the possibility that a person will unjustly be convicted for a more serious crime.

To illustrate: a person may knowingly possess 50 doses of LSD on blotter paper but, understandably, have no awareness what the pure LSD weighs; upon chemical analysis it is determined that defendant actually possessed 2.5 milligrams. If there is evidence that a typical dose of LSD weighs .05 milligrams (see, Chapman v United States, 500 US 453, 457), the jury could conclude, within the meaning of the statute, that defendant knowingly possessed more than 1 milligram, and convict of fourth degree possession (Penal Law § 220.09 [5] [1 mg or more]). If, however, because of some manufacturing defect unknown to defendant those 50 doses weighed 10 milligrams, defendant should not be convicted of more serious third degree possession (Penal Law § 220.16 [9] [5 mg or more]).

There may of course be other ways of proving defendant’s knowledge within the meaning of the statute. Our purpose today, however, is not to survey all of the permissible methods but to clarify that the statute does in fact contain a weight-related mental culpability element.

IV.

With the foregoing principles in mind, we consider whether there was sufficient evidence to convict defendant of attempted second degree possession, an A-II felony.

Certainly there was sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that defendant attempted and intended to possess a two-pound box of hallucinogenic mushrooms. It is also undisputed that, upon testing, the mushrooms in the particular box defendant attempted to possess — the one sent to Hopkins by Scott — contained more than 650 milligrams of psilocybin. The issue we must decide, however, is whether sufficient evidence was presented at trial from which it could be inferred that defendant had the requisite knowledge of the weight.

We disagree with the People’s suggestion that the evidence of defendant’s knowing attempt to possess two pounds of mushrooms, without more, could satisfy their burden of proof. The controlled substance here is psilocybin; had defendont ordered a specific quantity of that drug, plainly that would satisfy the knowledge element. But defendant attempted to possess two pounds of mushrooms, only a small portion of which was pure psilocybin.

Although in these circumstances defendant could properly be convicted of attempting to possess the amount of psilocybin that would typically appear in two pounds of hallucinogenic mushrooms, there was no evidence linking psilocybin weight to mushroom weight. Indeed, there was no evidence indicating whether psilocybin grows naturally or is injected into the mushrooms, or of the usual dose of the drug — matters not within the ken of the typical juror. We thus conclude on this record that there was insufficient evidence to satisfy the knowledge requirement within the meaning of the statute.

That deficiency does not absolve defendant of all criminal liability. There is sufficient evidence to sustain a conviction for the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which does not have a weight element.

V.

Finally, we briefly consider whether the trial court had a proper basis for denying defendant’s request to represent himself.

A criminal defendant may be permitted to proceed pro se if the request is timely and unequivocal, there has been a knowing and intelligent waiver of the right to counsel, and defendant has not engaged in conduct that would interfere with a fair and orderly trial (People v McIntyre, 36 NY2d 10, 17). Although the trial court in the present case perceived defendant’s legal skills to be wanting, and therefore denied the motion for defendant’s "own protection,” that was not a proper ground for decision. What we said in People v Davis (49 NY2d 114, 120), applies equally here:

"To accept a defendant’s lack of knowledge of legal principles and rules of law or his unfamiliarity with courtroom procedures as the ground for concluding that he is not qualified to represent himself would in effect be to eviscerate the constitutional right of self-representation; such limitations could confidently be said to exist in nearly every criminal case in which the defendant had not received legal training. This, however, appears to have been the rationale for the court’s ruling in this case; nothing intimates that the trial court’s evaluation of this defendant as not capable or qualified to represent himself was because of any mental incompetence or illiteracy.”

On this appeal, the People do not defend the trial court’s decision on the merits, instead arguing that the issue is not properly before us because (i) it was not identified in defendant’s rule 500.2 jurisdictional statement (22 NYCRR 500.2) and (ii) it was effectively waived in defendant’s May 13 letter. Neither argument has merit.

Rule 500.2 (c) expressly provides that "inclusion and identification of issues shall not be binding on counsel for brief writing or oral argument purposes.” The issue-identification requirement is for subject matter indexing and calendaring (id.). Nor can defendant’s May 13 letter be read as a waiver of legal issues with respect to the propriety of the trial court’s denial of the motion.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed with leave to the People to institute such proceedings as they deem appropriate respecting the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree.

Judges Simons, Titone, Hancock, Jr., and Smith concur with Chief Judge Kaye; Judge Bellacosa dissents and votes to affirm for the reasons stated in the opinion by then-Justice Howard A. Levine at the Appellate Division (184 AD2d 24); Judge Levine taking no part.

Order reversed, etc.

      . Defendant knew, for instance, what a peremptory challenge was; the sentence he faced; the definition of an accomplice; that an indictment was not evidence; that the People had the burden of proof; that the reasonable doubt standard was operative; and the function of an objection.

      . "Unlawfully” is not a term of mental culpability but means "in violation of article thirty-three of the public health law” (Penal Law § 220.00 [2]).