author: Jones, J.

text:
    The People of the State of New York, Respondent, v James Davis, Also Known as Sylvester Scott, Appellant.
    Submitted October 19, 1979;
    decided November 29, 1979

      POINTS OF COUNSEL

      Barry M. Fallick for appellant.
    I. Appellant had a right to proceed at his trial without counsel. (People v McIntyre, 36 NY2d 10; Faretta v California, 422 US 806; United States ex rel. Konigsberg v Vincent, 526 F2d 131; United States ex rel. Maldonado v Denno, 348 F2d 12; Johnson v Zerbst, 304 US 458; People v Payton, 45 NY2d 300.) II. The trial court deprived appellant of his constitutional right in denying his motion to waive his right to a trial by jury. (People v Duchin, 12 NY2d 351.)

      Robert M. Morgenthau, District Attorney (Brian Rosner, Jerrold L. Neugarten and Phyllis M. Gershon of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The court properly denied the equivocal requests by an obstreperous defendant to proceed pro se. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v Payton, 45 NY2d 300; United States v Davis, 260 F Supp 1009, 365 F2d 251.) III. Defendant was not aware of the consequences of waiving a jury trial and would not permit them to be explained. Thus the court properly refused to accept defendant’s waiver. (Duncan v Louisiana, 391 US 145; People v Diaz, 10 AD2d 80, 8 NY2d 1061; People v Pasaro, 79 Misc 2d 504.)
   OPINION OF THE COURT

Jones, J.

The trial court erroneously denied defendant his constitutional rights to self-representation and to waiver of trial by jury.

The record discloses that this was a difficult case and that the Trial Judge exercised great patience and took great pains to protect the interests of defendant. We are obliged to conclude, however, that in so doing he deprived defendant of his constitutional right to make his own decision on these most significant procedural issues.

It may be inferred from the record that defendant was knowledgeable as to criminal trials in consequence of some prior contact with the criminal justice system. In the present chapter, on November 29, 1973 he was indicted on two counts of robbery in the first degree, two counts of robbery in the second degree, four counts of grand larceny in the third degree, two counts of possession of a weapon and one count of petit larceny, all arising out of the armed robbery of an off-duty police officer at a bar in New York City in the early morning hours of September 24, 1973.

On January 21, 1974 an attorney from the Legal Aid Society was appointed to represent defendant. A pretrial identification hearing was held on April 24, 1974, following which the motion made on defendant’s behalf to suppress a lineup identification was denied. On May 15 the People answered ready for trial. On May 20 defendant made a motion for substitution of counsel, and three days later his first counsel was relieved and a second attorney was appointed to represent him. On June 26 the case was marked "final for trial”. The following day defendant sent a letter to the Calendar Judge complaining of his second attorney. In the period from June, 1974 to January 10, 1975 it appeared that on several occasions defendant refused to come to court and his case was repeatedly adjourned.

On January 10, 1975 defendant was forcibly brought to court against his will. At that time he was informed by the Calendar Judge that in the future he would not be compelled to come to court but that he would be permitted to do so provided the court had assurances that he would behave himself in an orderly way. After the case was announced ready, defendant informed the court that he had filed a grievance against his then assigned counsel. The attorney stated that his own prior applications to be relieved because he could not communicate with defendant had been denied. An unsuccessful attempt was made to plea bargain and the case was marked ready.

On February 11 defendant and his second attorney appeared at Trial Term. Following the court’s disposition of several pretrial motions, the attorney informed the court that defendant wanted a nonjury trial. The court then engaged in an extended discussion with defendant as to the implications and consequences of a waiver of jury trial. Defendant assured the court that he understood the situation and still wished to waive a jury. The court then instructed defendant to discuss the question with his attorney. The attorney informed the court that he had already discussed the matter with defendant. There ensued a further attorney-client conference, following which defendant again assured the court that he desired a trial without a jury. The court then handed defendant waiver-of-jury-trial forms. Questioning by the court revealed that the attorney would not give defendant categorical advice as to whether he should waive a jury and that he took the position that the responsibility for this decision rested with defendant himself who had been through jury trials. In a somewhat extended colloquy the court endeavored unsuccessfully to persuade the attorney to change his position and to give his client categorical advice. When the attorney informed the court that he had advised his client not to waive a jury trial but that the final decision was the client’s to make, and it appeared that there was substance to the attorney’s statement that he could not communicate with the client, the court relieved him of the representation.

A week later, on February 18, defendant again appeared before the trial court. He was questioned by the court in the absence of any attorney, then a third attorney was queried in defendant’s absence and finally there was questioning by the court with both defendant and the third attorney present. Conflicting versions were advanced as to defendant’s readiness to co-operate with his counsel, and the attorney described the difficulty of representing defendant. The attorney stated that he opposed any waiver of jury trial. Defendant stated that he did not want the attorney to represent him. Nevertheless the court assigned the third attorney to do so. At that point defendant stated to the court that he wanted to represent himself. In response the court advised him that he might make a formal application to represent himself and that such an application would be considered at the appropriate time. After again counseling defendant as to the seriousness of the charge he faced, the court put the case over to February 20.

On February 20 the court discussed the situation with the third attorney in defendant’s absence. The latter reported the difficulties of representation and informed the court that defendant persisted in his desire to represent himself and to waive his right to a jury trial. The court then put the case over to February 24.

On the 24th defendant and the third attorney appeared before the court at which time defendant expressed his displeasure with the attorney. Following further explanations by the court of the situation he faced and colloquy as to a missing witness, defendant again restated his desire for a nonjury trial. In response to an inquiry from the court, defendant conceded that his third attorney had advised against a waiver of jury trial. The attorney confirmed that this had indeed been his advice. Defendant again explicitly stated that he wished to waive a trial by jury and expressed his readiness to sign a formal waiver form (CPL 320.10, subd 2). Thereupon, without allowing defendant to submit a written waiver, the court denied defendant’s application to waive trial by jury, and defendant left the courtroom. Jury selection began and was completed some three hours later.

At the opening of the trial on February 25 before the jury came in, defendant referred to the fact that he had previously made a motion to represent himself and then formally resubmitted the motion. The trial court summarily denied the motion with the statement that defendant had demonstrated a lack of capacity to represent himself. In the discussion which followed defendant reminded the court of its prior assurance that he could make an application to represent himself. When the court stated that defendant had demonstrated in his appearances before the court that he was not "capable” or "qualified to represent” himself, defendant inquired whether his conduct had been disruptive. The court responded, "Your conduct has not been disruptive, although it has not been particularly respectful”, adding, "It is not on that basis that I am declining your application.”

Thereupon the case proceeded to trial with the third assigned attorney acting for defendant who was found guilty of robbery in the second degree and sentenced as a persistent felony offender to an indeterminate term of from 20 years to life imprisonment, the sentence to be consecutive to a prior indeterminate term of imprisonment from 12 Vi to 25 years on an unrelated Bronx County case. The Appellate Division affirmed, without opinion.

It can no longer be disputed that defendant had a constitutional right to waive trial by jury (NY Const, art I, § 2; People v Duchin, 12 NY2d 351; see People ex rel. Rohrlich v Follette, 20 NY2d 297; see, also, CPL 320.10) and a constitutional right to represent himself (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10). In this case it appears that defendant was intelligent, articulate and knowledgeable of the criminal justice system, at least to a limited extent. His assertion of each right in advance of trial was timely and unequivocal. His repetitious, explicit reassertions of his rights at every opportunity, dispelled any possible misunderstanding of his intentions or of his good faith. Defendant’s lack of confidence in his assigned counsel and his failure to co-operate with them were consistent with his desire to represent himself. The court and assigned counsel took great care to explain the consequences both of a waiver of jury trial and of proceeding without counsel; both unmistakably advised against the positions defendant was taking. It cannot be said that defendant’s assertions of his constitutional rights were not made knowingly and understandingly, based on an intelligent, informed judgment.

Nor were defendant’s applications made for purposes of delay; at no time was there coupled with either application any request for an adjournment. Defendant never intimated any desire for a delay, and nothing in the record suggests that he was seeking by stratagem to procure an otherwise impermissible procedural advantage. No inference is available that in January and February, 1975 defendant’s applications were designed for purposes of obstruction; indeed the trial court explicitly disclaimed any intention to base its denials of defendant’s applications on such ground.

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. (Cf. People v Reason, 37 NY2d 351.)

If the rights of self-representation and of waiver of jury trial were not to be honored on this record, it is unlikely that either ever would be. Examination of this record fails to suggest any further action or submission defendant might have taken or made in support of his right or intention to exercise his constitutional privileges. By similar token the same examination discloses that the trial court was wholly convinced that it would not be in the best interests of defendant either to waive a trial by jury or to represent himself rather than to be represented by counsel. The inference may be drawn that the trial court — unquestionably in furtherance of what it perceived to be defendant’s best interests — was determined to deny defendant’s applications no matter what he said or what the record otherwise showed. We conclude, however, that in its rulings the court assumed to itself authority and responsibility for determining that it would not be in defendant’s interest for him either to waive a jury trial or to represent himself. In so doing the court arrogated to itself and denied to defendant the exercise of rights constitutionally guaranteed to him.

Accordingly, the order of the Appellate Division should be reversed, defendant’s conviction vacated, and the case remitted for a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc. retests of IQ were administered only when recommended by teachers, in the exercise of their professional judgment, or when requested by parents. Also there is no basis for finding that a retest of IQ "within two years” would have yielded any different result. VI. In any event, there should be a dismissal since there is no evidence from which a jury could find that this particular plaintiff would have done better (or even as well) outside the protective setting of a CRMD class. (Alexander’s Dept. Stores v Ohrbach’s, Inc., 269 App Div 321; Becker v Schwartz, 46 NY2d 401; Steitz v Gifford, 280 NY 15.)

      . The appeal is before us on an appendix. Even the single record filed in our court is incomplete. Accordingly, for significant portions of our recital of the procedural course of this case we have relied on the statement of facts in the People’s brief.

      . The court then indicated that, if permission were given defendant to conduct his own defense, the court might ask the attorney to remain in the courtroom to be available if defendant wished to ask him any questions or to seek his advice. This procedural possibility was never pursued.


source: Caselaw Access Project

author: Jasen, J. Meyer, J.

license: Public Domain

text:
    Daniel Hoffman, Respondent, v Board of Education of the City of New York, Appellant.
    Argued November 19,1979;
    decided December 17, 1979

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for appellant.
    I. The record does not establish malpractice by Dr. Gottsegen nor a basis for imposing tort liability upon a school board for not retesting plaintiff’s IQ pursuant to the policy then in effect, when it was the judgmental evaluation of plaintiff’s teachers not to recommend a formal retest of his IQ. Nor is there any basis for a finding that plaintiff would have done better on a retest, or, with his massive speech problems, done better in a regular class. (Fein v Board of Educ., 305 NY 611; Clark v Board of Educ., 304 NY 488.) II. There is no basis for liability upon any claim of professional negligence or malpractice by Dr. Gottsegen. (Pike v Honsinger, 155 NY 201; Ford v McAdoo, 231 NY 155; Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191.) III. There is no basis for liability on account of defendant’s policy of retesting the IQ’s only in selected cases. (Donohue v Copiague Union Free School Dist., 64 AD2d 29; James v Board of Educ., 42 NY2d 357.) IV. There is no basis for tort liability for the decision of plaintiff’s teachers, without exception, in the exercise of their professional judgment, not to recommend a retest of his IQ. (Ferrucci v State of New York, 42 AD2d 359; Cruz v State of New York, 63 AD2d 862; Bellows v State of New York, 37 AD2d 342; Dennison v State of New York, 28 AD2d 608; Yong v State of New York, 40 AD2d 730; Pratt v Robinson, 39 NY2d 554; Centano v City of New York, 48 AD2d 812, 40 NY2d 932; Donohue v Copaigue Union Free School Dist, 64 AD2d 29.) V. Under the board’s pre-1968 policy,

      Perry Pazer and Helen B. Stoller for respondent.
    I. Plaintiff made out a prima facie case and the verdict was support by the evidence. (Swensson v New York, Albany Desp. Co., 309 NY 497; Dunham v Village of Canisteo, 303 NY 498; Betzag v Gulf Oil Corp., 298 NY 358; Ingersoll v Liberty Bank of Buffalo, 278 NY 1; Cole v New York Racing Assn., 24 AD2d 933, 17 NY2d 761; Schuster v City of New York, 5 NY2d 75; McCrink v City of New York, 296 NY 99; Fischer v City of Elmira, 75 Misc 2d 510; Alexander v Central School Dist. No. 1, 28 AD2d 641; Shaw v Village of Hempstead, 20 AD2d 663.) II. The verdict was not excessive and should be restored to the $750,000 granted by the jury. (Griffin v United States, 351 F Supp 10; Foley v State of New York, 265 App Div 682, 294 NY 275; Couser v City of Mechanicville, 274 App Div 736, 300 NY 574; Triggs v Advance Trucking Corp., 23 AD2d 777; Rapant v Ogsbury, 279 App Div 298.)
   OPINION OF THE COURT

Jasen, J.

The significant issue presented on this appeal is whether considerations of public policy preclude recovery for an alleged failure to properly evaluate the intellectual capacity of a student.

The facts in this case may be briefly stated. Plaintiff Daniel Hoffman entered kindergarten in the New York City school system in September, 1956. Shortly thereafter, plaintiff was examined by Monroe Gottsegen, a certified clinical psychologist in the school system, who determined that plaintiff had an intelligence quotient (IQ) of 74 and recommended that he be placed in a class for Children with Retarded Mental Development (CRMD). Dr. Gottsegen was, however, not certain of his findings. The apparent reason for this uncertainty was that plaintiff suffered from a severe speech defect which had manifested itself long before plaintiff entered the school system. Plaintiff’s inability to communicate verbally made it difficult to assess his mental ability by means of the primarily verbal Stanford-Binet Intelligence Test administered by Dr. Gottsegen. As a result, Dr. Gottsegen recommended that plaintiff’s intelligence "be re-evaluated within a two-year period so that a more accurate estimation of his abilities can be made.”

Pursuant to Dr. Gottsegen’s recommendations, plaintiff was placed in a CRMD program. While enrolled in the program, plaintiff’s academic progress was constantly monitored through the observation of his teachers and by the use of academic "achievement tests” given twice a year. Although in 1959 and 1960 plaintiff received a "90 percentile” rating as to "reading readiness”, indicating that his potential for learning to read was higher than average, the results of his achievement tests consistently indicated that he possessed extremely limited reading and mathematical skills. As a result of plaintiff’s poor performance on the standardized achievement tests and, presumably, because his teacher’s daily observations confirmed his lack of progress, plaintiff’s intelligence was not retested on an examination designed specifically for that purpose.

In 1968, plaintiff was transferred to the Queens Occupational Training Center (OTC), a manual and shop training center for retarded youths. The following year plaintiff’s mother requested, for the first time, that plaintiff’s intelligence be retested. Plaintiff was administered the Wechsler Intelligence Scale for Adults (WAIS). The results of the test indicated that plaintiff had a "verbal” IQ of 85 and a "performance” IQ of 107 for a "full scale” IQ of 94. In other words, plaintiff’s combined score on the WAIS test indicated that he was not retarded. Inasmuch as his course of study at the OTC was designed specifically for retarded youths, plaintiff was no longer qualified to be enrolled. As a result, plaintiff was allowed to complete the spring semester of 1969, but was not allowed to return in the fall.

Thereafter, plaintiff commenced this action against the Board of Education of the City of New York, alleging that the board was negligent in its original assessment of his intellectual ability and that the board negligently failed to retest him pursuant to Dr. Gottsegen’s earlier recommendation. Plaintiff claimed that these negligent acts and omissions caused him to be misclassified and improperly enrolled in the CRMD program which allegedly resulted in severe injury to plaintiffs intellectual and emotional well-being and reduced his ability to obtain employment. At trial, the jury awarded plaintiff damages in the amount of $750,000. The Appellate Division affirmed this judgment, two Justices dissenting, as to liability, but would have reversed this judgment and required plaintiff to retry the issue of damages had he not consented to a reduction in the amount of the verdict from $750,000 to $500,000. The Appellate Division predicated its affirmance upon defendants’ failure to administer a second intelligence test to plaintiff pursuant to Dr. Gottsegen’s recommendation to "re-evaluate” plaintiffs intelligence within two years. The court characterized defendants’ failure to retest plaintiff as an affirmative act of negligence, actionable under New York law. There should be a reversal.

At the outset, it should be stated that although plaintiffs complaint does not expressly so state, his cause of action sounds in ’’educational malpractice”. Plaintiffs recitation of specific acts of negligence is, in essence, an attack upon the professional judgment of the board of education grounded upon the board’s alleged failure to properly interpret and act upon Dr. Gottsegen’s recommendations and its alleged failure to properly assess plaintiffs intellectual status thereafter. As we have recently stated in Donohue v Copiague Union Free School Dist. (47 NY2d 440), such a cause of action, although quite possibly cognizable under traditional notions of tort law, should not, as a matter of public policy, be entertained by the courts of this State. (47 NY2d, at p 444.)

In Donohue, this court noted that "[c]ontrol and management of educational affairs is vested in the Board of Regents and the Commissioner of Education (NY Const, art V, § 4; art XI, § 2; Education Law, §§ 207, 305; see Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 116; Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 23 NY2d 483, 485).” (47 NY2d, at p 444.) In that case, the court was invited to undertake a review not only of broad educational policy, but of the day-to-day implementation of that policy as well. We declined, however, to accept that invitation and we see no reason to depart from that holding today. We had thought it well settled that the courts of this State may not substitute their judgment, or the judgment of a jury, for the professional judgment of educators and government officials actually engaged in the complex and often delicate process of educating the many thousands of children in our schools. (Donohue v Copiague Union Free School Dist., 47 NY2d 440, 444, supra; James v Board of Educ., 42 NY2d 357, 366.) Indeed, we have previously stated that the courts will intervene in the administration of the public school system only in the most exceptional circumstances involving "gross violations of defined public policy”. (Donohue v Copiague Union Free School Dist., 47 NY2d 440, 445, supra; Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 121, supra.) Clearly, no such circumstances are present here. Therefore, in our opinion, this court’s decision in Donohue is dispositive of this appeal.

The court below distinguished Donohue upon the ground that the negligence alleged in that case was a failure to educate properly or nonfeasance, whereas, in that court’s view, the present case involves an affirmative act of misfeasance. At the outset, we would note that both Donohue and the present case involved allegations of various negligent acts and omissions. Furthermore, even if we were to accept the distinction drawn by the court below, and argued by plaintiff on appeal, we would not reach a contrary result. The policy considerations which prompted our decision in Donohue apply with equal force to "educational malpractice” actions based upon allegations of educational misfeasance and nonfeasance.

Our decision in Donohue was grounded upon the principle that courts ought not interfere with the professional judgment of those charged by the Constitution and by statute with the responsibility for the administration of the schools of this State. In the present case, the decision of the school officials and educators who classified plaintiff as retarded and continued his enrollment in CRMD classes was based upon the results of a recognized intelligence test administered by a qualified psychologist and the daily observation of plaintiff’s teachers. In order to affirm a finding of liability in these circumstances, this court would be required to allow the finder of fact to substitute its judgment for the professional judgment of the board of education as to the type of psychometric devices to be used and the frequency with which such tests are to be given. Such a decision would also allow a court or a jury to second-guess the determinations of each of plaintiff’s teachers. To do so would open the door to an examination of the propriety of each of the procedures used in the education of every student in our school system. Clearly, each and every time a student fails to progress academically, it can be argued that he or she would have done better and received a greater benefit if another educational approach or diagnostic tool had been utilized. Similarly, whenever there was a failure to implement a recommendation made by any person in the school system with respect to the evaluation of a pupil or his or her educational program, it could be said, as here, that liability could be predicated on misfeasance. However, the court system is not the proper forum to test the validity of the educational decision to place a particular student in one of the many educational programs offered by the schools of this State. In our view, any dispute concerning the proper placement of a child in a particular educational program can best be resolved by seeking review of such professional educational judgment through the administrative processes provided by statute. (See Education Law, § 310, subd 7.)

Accordingly, the order of the Appellate Division should be reversed and the complaint dismissed.

Meyer, J.

(dissenting). I agree with Mr. Justice Irwin Shapiro, on the analysis spelled out in his well-reasoned decision at the Appellate Division (64 AD2d 369), that this case involves not "educational malpractice” as the majority in this court suggests (pp 125, 126) but discernible affirmative negligence on the part of the board of education in failing to carry out the recommendation for re-evaluation within a period of two years which was an integral part of the procedure by which plaintiff was placed in a CRMD class, and thus readily identifiable as the proximate cause of plaintiff’s damages. I, therefore dissent.

Chief Judge Cooke and Judges Gabrielli and Jones concur with Judge Jasen; Judge Meyer dissents and votes to affirm in a memorandum in which Judges Wachtler and Fuchsberg concur.

Order reversed, with costs, and complaint dismissed.


author: Jasen, J. Jones, J.

text:
    In the Matter of Mann Judd Landau et al., Appellants, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent. (And Two Other Proceedings.)
    Argued November 13, 1979;
    decided December 17, 1979

      POINTS OF COUNSEL

      Gerald Walpin, Eric M. Rosenberg and Edward Labaton for appellants.
    I. This court’s decision in Matter of Friedman v Hi-Li Manor Home for Adults bars the Special Prosecutor’s investigation of hospitals. (Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408; People v Karassik, 90 Misc 2d 839; Matter of Sigety v Hynes, 38 NY2d 260; People v Doe, 95 Misc 2d 175; Matter of Hynes v Moskowitz, 44 NY2d 383; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; People v Rallo, 39 NY2d 217.) II. Assuming, arguendo, that Friedman’s requirement of legislative authorization does not control, the subpoenas nevertheless are defective because the subdivision 3 of section 63 request letters, pursuant to which they were issued, lack required specificity. (Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408; Matter of Di Brizzi [Proskauer], 303 NY 206; Matter of Sigety v Hynes, 38 NY2d 260; People v Yonkers Contr. Co., 24 AD2d 641.) III. The subpoenas are invalid because they have been issued by a prosecutor who improperly combines civil and criminal powers and is committed improperly to reference of Grand Jury information to agencies for civil recovery use. (United States v Proctor & Gamble, 356 US 677; United States v Doe, 341 F Supp 1350; Matter of April 1956 Term Grand Jury v United States, 239 F2d 263; General Motors Corp. v United States, 573 F2d 936; Matter of Long Beach Grandell Nursing Home & Health Related Facility v Hynes, 63 AD2d 665.) IV. The exclusive Federal funding of the Special Prosecutor’s hospital division has resulted in its improper evasion of State legislative control. V. The Special Prosecutor is operating in a manner improperly independent of the Attorney-General’s control. VI. The Special Prosecutor has, without statutory authority, effectively superseded all District Attorneys. (People ex rel. Osborne v Board of Supervisors of County of Westchester, 168 App Div 765.) VII. The Special Prosecutor’s Grand Jury subpoenas duces tecum are overbroad, unduly burdensome and were issued without a reasonable basis in fact. (Matter of Hynes v Moskowitz, 44 NY2d 383.) VIII. The subpoenas upon Dr. Neuman’s sole proprietorships violate his privilege against compulsory self incrimination. (Matter of Sigety v Hynes, 38 NY2d 260; Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408; United States v Slutsky, 352 F Supp 1105; Matter of Weiss, 283 F Supp 97; United States v Lawn, 115 F Supp 674.)

      Charles J. Hynes, Deputy Attorney-General (Arthur Weinstein, T. James Bryan and Richard D. Carruthers of counsel), for respondent.
    I. The establishment of a Medicaid Fraud Control Unit within the Department of Law was a lawful and appropriate exercise of the executive function. (Mulroy v Carey, 58 AD2d 207, 43 NY2d 819; People v Kramer, 33 Misc 209; People v Tru-Sport Pub. Co., 160 Misc 628; Matter of Cranford Material Corp., 174 Misc 154; People v Hopkins, 182 Misc 313; People v Zara, 44 Misc 2d 698; People v Goldswer, 78 Misc 2d 910; Matter of Sigety v Hynes, 38 NY2d 260; Matter of L & S Hosp. & Institutional Supplies Co. v Hynes, 51 AD2d 515; Matter ofL&S Hosp. & Institutional Supplies v Lefkowitz, 54 AD2d 734.) II. Appellants lack standing to complain about the organization and independence of the Deputy Attorney-General’s office. (Matter of Taylor v Sise, 33 NY2d 357; People v Di Falco, 44 NY2d 482; Matter of Dondi v Jones, 40 NY2d 8; Long Beach Grandell Nursing Home & Health Related Facility v Hynes, 63 AD2d 665; People v Di Napoli, 27 NY2d 229; General Motors Corp. v United States, 573 F2d 936.) III. The prosecutor was not obligated to disclose, publicly or in camera, the evidence which prompted the Grand Jury to investigate. (Matter of Manning v Valente, 272 App Div 358, 297 NY 681; Matter of Maison & Co. v Hynes, 50 AD2d 13; Matter of Liberatore, 574 F2d 78; Matter of Gold-stein v Hynes, 64 AD2d 1032; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; People v Rallo, 39 NY2d 217; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; Matter of Grand Jury Subpoenas [Mor

      genthau], 58 AD2d 1; Blair v United States, 250 US 273; People v "John Doe” [Byk], 247 App Div 324, 272 NY 473.) IV. Neuman has no Fifth Amendment privileges in the books and records of his hospitals. (Matter of Sigety v Hynes, 38 NY2d 260; Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408; Bellis v United States, 417 US 85; Curdo v United States, 354 US 118; Notey v Hynes, 418 F Supp 1320.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, appellants challenge the authority of respondent Deputy Attorney-General Hynes to investigate possible Medicaid fraud and criminal conduct within hospitals and to issue Grand Jury subpoenas duces tecum in furtherance of his office’s duty to prosecute such activity. To resolve the issue whether respondent possesses the requisite authority for this investigation, our inquiry focuses necessarily upon the language of subdivision 3 of section 63 of the Executive Law — the statute which respondent claims provides a sufficient basis to authorize his investigation of hospitals.

By separate letters dated September 30, 1977, the Commissioners of Health and Social Services requested the Attorney-General’s office to investigate the alleged commission of any indictable offense or offenses in violation of either the Public Health Law or Social Services Law by hospitals which are subject to the provisions,of such laws. This request to probe into the activities of hospitals was joined by the Superintendent of Insurance who, by letter dated September 20, 1978, petitioned the Attorney-General to "investigate the alleged commission of any indictable offense or offenses in violation of the Insurance Law.” In addition, on April 27, 1978, the Commissioners of Health and Social Services requested the Attorney-General to investigate all criminal offenses connected with the provision of medical assistance to needy persons under the Medicaid program, thereby supplementing many of the prior requests. Pursuant to each one of these requests, respondent Hynes was designated by the Attorney-General to act as his deputy and was empowered "to perform all the functions and to exercise all the powers conferred upon the Attorney General.”

Grand Jury proceedings were commenced in May of 1978, due to serious allegations of wrongdoing which were made against appellant Dr. Neuman. In October of that year, respondent Hynes issued a Grand Jury subpoena duces tecum to appellant Mann Judd Landau, a firm of certified public accountants which was the independent auditor for Continued Care Facilities, Inc., a publicly held Delaware corporation of which appellant Dr. Neuman is a principal beneficial shareholder and officer. This subpoena sought "all workpapers prepared in connection with Continued Care Facilities, Inc. and subsidiaries, to include permanent and correspondence files for the period January 1, 1973, through December 31, 1977.”

In December of 1978, the Special Prosecutor served two Grand Jury subpoenas duces tecum on Dr. Neuman, doing business as Lydia E. Hall Hospital, and on Dr. Neuman, doing business as Syosset Hospital, demanding, in essence, all the business records of these hospitals for the five-year period from January 1, 1973 to December 31, 1977. In addition, a subpoena duces tecum was served on appellant Jay S. Zimmet, a certified public accountant, in February of 1979. Zimmet audited both Lydia Hall Hospital and Syosset Hospital and other proprietorships or corporations owned by Dr. Neuman. The subpoena called for the production of all workpapers, correspondence files and reports prepared in connection with these businesses for the period from January 1, 1972 through December 31, 1978.

The recipients of these Grand Jury subpoenas duces tecum and those businesses affected thereby, all appellants herein, moved to quash the respective subpoenas. County Court, after consolidating the three proceedings for disposition, denied the requested relief. A unanimous Appellate Division affirmed the order of County Court. Leave to appeal from the order of the Appellate Division was granted by this court. There should be an affirmance.

The main thrust of appellants’ contentions is that Deputy Attorney-General Hynes lacked the authority to investigate instances of fraud and criminal conduct within the hospital industry. Specifically, appellants argue that absent a legislative directive, the letters sent by the various commissioners to the Attorney-General, pursuant to subdivision 3 of section 63 of the Executive Law, were insufficient to authorize such investigation. Further, appellants contend that such requests are defective because they failed to specify the indictable offenses sought to be investigated.

The first prong of appellants’ argument — that the requests are insufficient to authorize an investigation of the hospital industry — derives its vitality from our recent decision in Matter of Friedman v Hi-Li Manor Home for Adults (42 NY2d 408). In Friedman, although we held unequivocally "that the Deputy Attorney-General had authority by the issuance of an office subpoena duces tecum under subdivision 8 of section 63 of the Executive Law to compel the production of books and records of private proprietary homes for adults” (id., at pp 411-412), the majority, in dictum, suggested that the preferable approach for "State-wide investigations of this sort would be the enactment of specific, ad hoc legislative authority for particular inquiries” (id., at p 414). The majority further noted that our holding in Friedman "should not be understood as viewing subdivision 8 of section 63 as any reservoir of latent authority for investigations, however desirable they may be thought to be, into other areas of legitimate governmental concern or responsibility.” (Id., at p 415.)

Appellants, seizing upon this language, now argue that respondent Hynes should not be allowed to expand his ongoing investigations of the nursing home industry and private proprietary homes for adults to include hospitals, absent an express legislative directive to do so. In short, appellants argue that the Attorney-General should not now be allowed to claim such authority under subdivision 3 of section 63 of the Executive Law inasmuch as we intimated in dictum in the Friedman case (supra) that he could not obtain such authority from subdivision 8. We do not agree.

Subdivision 3 of section 63 of the Executive Law provides that the Attorney-General shall "[u]pon request of the governor * * * or the head of any other department, authority, division or agency of the state, investigate the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department, and to prosecute the person or persons believed to have committed the same and any crime or offense arising out of such investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury.” It has been stated that this provision should not be construed strictly, but, rather, should be read in "a sense to accomplish the purpose intended.” (People v Yonkers Contr. Co., 24 AD2d 641, mod on other grounds 17 NY2d 322.)

While there is little case law delineating the powers conferred upon the Attorney-General by employment of subdivision 3 of section 63 of the Executive Law, it appears that the courts of this State have uniformly construed this section as bestowing upon the Attorney-General the broadest of powers. Although the apparent first attempt to use this authority was rejected in People v Tru-Sport Pub. Co. (160 Misc 628), that court predicated its decision upon the ground that the Department of State’s jurisdiction and duties were too far attenuated from the subject matter sought to be investigated — the advertising by persons who falsely claimed that they could predict the outcome of horse races — to support the Secretary of State’s request.

Here, in marked contrast, appellants do not claim, nor could they, that the crimes sought to be investigated do not concern matters within the jurisdiction of the heads of the departments who requested the investigations. Indeed, the letters of request themselves limit the inquiries to those matters connected with the respective departments.

In People v Zara (44 Misc 2d 698), the court held that the Attorney-General, by his assistants, acted properly in impaneling a Grand Jury and conducting proceedings before it when requested by the State Superintendent of Public Works to prosecute any persons who may have violated the law by removing topsoil belonging to the State. The court, in so holding, reasoned as follows: "Although they may have become latent since the office of District Attorney was created * * * the common-law powers of the Attorney-General have never been abrogated by any constitutional provision or legislative enactment. When activated by the request of a proper State officer to prosecute pursuant to subdivision 3 of section 63 of the Executive Law, these latent powers are revived.” (Id,, at p 701.) While this is not to say that the Attorney-General’s historic authority to prosecute all crimes occurring anywhere in the State is resurrected in toto, it does mean that the Attorney-General’s latent authority is revived with respect to those classes of crimes properly requested to be investigated. (See People v Tomasello, 21 NY2d 143, 151.)

Perhaps the most compelling authority to support respondent Hynes’ position that his office possesses the authority to investigate possible Medicaid fraud and criminal conduct within the hospital industry can be found in our opinion in Matter of Sigety v Hynes (38 NY2d 260). In the Sigety case, we held that letters — almost indistinguishable from those here at issue — sent by the Commissioners of the Departments of Health and Social Services to the Attorney-General authorized the latter to initiate an investigation into the nursing home industry. (See, also, Matter of Agnello v Armer, 56 AD2d 712, 713; Matter of L & S Hosp. & Institutional Supplies v Lefkowitz, 54 AD2d 734; Matter of L & S Hosp. & Institutional Supplies Co. v Hynes, 51 AD2d 515, affg 84 Misc 2d 431.)

Further, it should be noted that this is not the first time the Attorney-General’s authority to investigate the hospital industry pursuant to subdivision 3 of section 63 of the Executive Law has been tested in the courts. In Matter of Goldstein v Hynes (64 AD2d 1032, mot for lv to app den 45 NY2d 712), petitioners sought to quash certain subpoenas ad testiñcandum issued to them, claiming, as do appellants herein, that the letters sent to the Attorney-General by the Commissioners of Health and Social Services do not confer upon the former power to initiate a broad investigation of the hospital industry. This argument was rejected by the courts in that case, and we find no compelling reason to deviate from that holding in the present case.

There also exists a fundamental distinction between án office subpoena duces tecum which was the subject of our inquiry in Matter of Friedman v Hi-Li Manor Home for Adults (42 NY2d 408, supra) and a Grand Jury subpoena duces tecum as issued in this case, inasmuch as the latter is subject to direct judicial supervision and there is less chance of abuse. (See Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 231-232.) As perceptively noted by County Court, "the exercise of § 63(3) powers, as opposed to § 63(8) powers, involves a significant difference in the degree of protection afforded a witness or a target of an investigation.” This is an additional reason not to transform those concerns outlined in the Friedman case (supra) into the rationale to restrict the Attorney-General’s authority to investigate the hospital industry.

Thus, we conclude that the letters sent to the Attorney-General by the respective department heads empowered the Attorney-General, by his duly appointed deputy, to conduct an investigation into the hospital industry. Our holding today is in accord with the plain language of subdivision 3 of section 63 of the Executive Law itself, which provides the Attorney-General or his deputy with broad investigative and prosecutorial powers whenever an investigation is requested by a head of a department. Nowhere in the Friedman case (supra) did we suggest a contrary result.

Nor is our holding today altered by the fact that the department heads failed to designate specifically in their letters of request the indictable offenses and persons or businesses sought to be investigated. Suffice it to say that a fair reading of subdivision 3 of section 63 of the Executive Law reveals that it imposes no such requirement, and this court would be remiss in reading this statutory provision in a hypertechnical manner which would defeat its purpose. The wording of the statute itself by providing the Attorney-General with authority "to prosecute the person or persons believed to have committed [offenses in violation of the law which the officer making the request is required to execute] and any crime or offense arising out of such investigation or prosecution or both” evinces the intent of the Legislature to permit both the investigation of unspecified crimes and the prosecution of unnamed persons. (Emphasis added.) Indeed, this statute has been accorded such construction previously by courts of this State. (See Matter of Goldstein v Hynes, 64 AD2d 1032, supra; Matter of L & S Hosp. & Institutional Supplies Co. v Hynes, 84 Misc 2d 431, 435, supra; People v Zara, 44 Misc 2d 698, 702, supra.)

As a practical matter, it would be virtually impossible for the department heads to set forth specifically the crimes sought to be investigated. Such information would become available only after the investigation has been undertaken, especially where, as here, the investigation encompasses a most complex field and requires painstaking efforts to disentangle the financial web of the hospital industry.

One remaining issue requires comment. Appellants also mount an attack upon the Grand Jury subpoenas duces tecum claiming that they are overbroad and unduly burdensome. Both courts below have decided this primarily factual issue to the contrary, however, and we cannot say, as a matter of law, that their conclusions were erroneous in view of the purpose of the inquiry. (See Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408, 416-417, supra.)

We have examined appellants’ remaining contentions, and have found them to be wholly without merit.

Accordingly, for the reasons stated herein, the order of the Appellate Division should be affirmed.

Jones, J.

(dissenting). I am persuaded that the activating letters from the Commissioners of Health and Social Services to the Attorney-General lacked the specificity contemplated by subdivision 3 of section 63 of the Executive Law and accordingly that Deputy Attorney-General Hynes did not have authority to issue the Grand Jury subpoenas which are sought to be quashed in this proceeding;

Subdivision 3, one of the subdivisions of that section under which the Attorney-General may be authorized to investigate and to prosecute, provides:

"The attorney-general shall:

* * *

"3. Upon request of the governor, comptroller, secretary of state, commissioner of transportation, superintendent of insurance, superintendent of banks, commissioner of taxation and finance or commissioner of motor vehicles, or the head of any other department, authority, division or agency of the state, investigate the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department, and to prosecute the person or persons believed to have committed the same and any crime or offense arising out of such investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury.” (Emphasis added.)

The disposition of this appeal turns on the proper meaning to be ascribed to the italicized words.

The letters from the commissioners were couched in identical terminology — requests to "investigate the alleged commission of any indictable offense or offenses in violation of the Public Health [Social Services] Law or in relation to any matters connected with the New York State Department of Health [Social Services] by hospitals subject to the provisions of Article 28 of the Public Health Law [Social Services Law], their principals, agents, suppliers or other persons connected or involved therewith.” The only focus of the requested investigation was any indictable offense in violation of the Social Services Law or article 28 of the Public Health Law committed by hospitals or their associates. Few brushes could paint a broader or less specific agenda for investigation of the hospital industry in New York State. I cannot conclude that this is what the Legislature contemplated as required to invoke the authority vested in the Attorney-General under subdivision 3 of section 63; nor have we previously approved any such blunderbuss.

What the statute requires before the Attorney-General, and through his delegation his Special Prosecutor, may presume to act, is a request that the former investigate "the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any. matters connected with such department”. The majority construes these words as requiring no more than a parroting of the statutory verbiage on the duly signed letterhead of one of the listed department heads to set the office of the Attorney-General in motion. Such, a construction is too broad and saps the statute of any meaningful limitation, casting on the Attorney-General at one time both the authority and the responsibility for an unbounded and undefined investigation of criminal activity within a sweeping subject area. Bearing in mind that the duty of investigation and prosecution of indictable offenses rests normally with the several District Attorneys of the State, who are the officers chosen by popular vote to perform that function, the conferral of special authority on the State Attorney-General to perform the same duty is fittingly circumscribed by subdivision 3 of section 63 of the Executive Law. The reference to "the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department” contemplates some identifiable criminal activity within the knowledge or suspicion of the department head to which he specifically invites the attention of the Attorney-General. It is by no means inappropriate for the Legislature to have required that the nature of the crimes or criminal activity suspected be describable and be described in the department head’s request which galvanizes the State’s legal officer to act in an area otherwise reserved to local District Attorneys. That specific misconduct is contemplated is underscored by the prosecutorial power which descends on the Attorney-General — power "to prosecute the person or persons believed to have committed the same”. The inclusion of some definitive specification in the request which sets in motion the office of the Attorney-General serves a real purpose, not only in confining the scope of authority of that office but also in making possible a meaningful judicial review of the exercise thereof, which must always be contained within the limits of the authority conferred (Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, cert den 395 US 959).

The attention devoted by both parties to our recent decision in Matter of Friedman v Hi-Li Manor Home for Adults (42 NY2d 408) is not warranted. That case does not address the issue posed by this appeal. The authority of the Deputy Attorney-General there was predicated on an executive order issued by the Governor under subdivision 8 of section 63, not on authority derived from subdivision 3. The two subdivisions have a completely different legislative history and envisage wholly different activating prerequisites. As we noted in Friedman, the predecessor of subdivision 8 was enacted during World War I, when the Legislature recognized that a war emergency might create a need for such authority. Continued thereafter, the provision has been viewed as requiring some demonstration of urgent if not emergent circumstances. The critical consideration under subdivision 8 is the existence of such an activating prerequisite; this necessary predicate was found to have been met in Friedman and the three prior instances cited therein. The source of authority under subdivision 8 is not dependent on the specified scope of the language employed in the enabling executive order. The authority derives from the underlying circumstances and occasion for the issuance of the executive order, and the scope of the delegated authority to investigate and to prosecute will necessarily be principally defined by the dimensions and character of these underlying circumstances.

The existence of authority under subdivision 3 depends on a quite different predicate, calls for no such imperative prerequisite, but does require some particularization of the suspected criminal activity. Present subdivision 3 of section 63 of the Executive Law was enacted by chapter 790 of the Laws of 1965 to replace a prior subdivision derived from section 62 of the Executive Law of 1909 which in turn had been derived from section 52 of the Executive Law of 1892. The statutes in effect from 1892 to the time of the 1965 replacement had authorized the Attorney-General on request of one of several designated State officers to prosecute a person "charged [by the officer] with the commission of an indictable offense in violation of the laws, which such officer is especially required to execute, or in relation to matters connected with his department.” Thus, the Attorney-General’s authority, extending only to prosecution, clearly related both to an identified crime and to an identified suspect.

In 1965 the present subdivision 3 of section 63, adding investigative authority, was enacted as a part of the program of the Attorney-General. The memorandum of the State Department of Law accompanying the legislation states that, in addition to adding the Commissioner of Motor Vehicles to the included public officers, "the provisions of the present section are also expanded by the amendment to clarify the power of the Attorney General because of inconsistent interpretations of the statute by trial courts within the last year”. (1965 McKinney’s Session Laws of NY, p 2086.) While the Attorney-General was thus explicitly clothed with authority to investigate as well as to prosecute criminal activity relative to a State agency or department when requested to do so by the department head, nothing in the 1965 material suggests that there was any intention to convert what had theretofore been a focused attention on identified wrongdoing to a roving examination of all activities relative to a particular State department simply in the expectation of uncovering crimes, if any there be, without any particularization of suspected illegality by the requesting department head.

Until now our court has not had occasion to consider what degree of particularization, if any, is required to activate authority under subdivision 3. In Matter of Sigety v Hynes (38 NY2d 260), while subdivision 3 requests had preceded the Governor’s executive order under subdivision 8, we upheld the issuance of the subpoenas as authorized under subdivision 8. In People v Tomasello (21 NY2d 143) no challenge was raised to the authority of the Attorney-General to conduct the Statewide investigation there involved on the ground that the underlying requests lacked the requisite specificity. In Matter of Goldstein v Hynes (45 NY2d 712) we denied leave to appeal from an order of the Appellate Division (64 AD2d 1032) which had upheld the issuance of subpoenas predicated on the same requests from the Commissioners of Health and Social Services as are involved in the case now before us. The contention advanced in that case was that to trigger the authority of subdivision 3 the implementing requests must specifically enumerate the alleged indictable offenses. To the extent that appellants in the case now before us urge the same contention as a ground for reversal it should similarly be rejected. While identification of the particular offenses charged might have been required when subdivision 3 authority was limited to prosecutions, after the 1965 amendment, which added authority to investigate as well as to prosecute, it would be unrealistically restrictive and defy common sense to require enumeration of specified offenses for investigation. This is not, however, to say that all requirements for focus and direction were thereby discarded.

In principle, undergirded by history, I am persuaded that the thrust of subdivision 3 of section 63 is more properly to be analogized to that of subdivision 2, the historical superseder subdivision, than to the differently oriented purpose of subdivision 8. If there is to be a wide-ranging investigation of an entire industry or any broad segment of it, the authority should come under subdivision 8, if the extraordinary circumstances prerequisite to reliance on that subdivision exist, or preferably, as we indicated in Friedman, from a specific individualized grant from the Legislature. Subdivision 3 exists to enable the designated heads of State departments to enlist the aid and assistance of the Attorney-General in the investigation and prosecution of identified criminal activities, known or suspected by the department head to be occurring.

Because there has not been that degree of particularization in this instance, I would reverse the order of the Appellate Division and grant the application to quash the subpoenas.

Chief Judge Cooke and Judges Gabrielli and Meyer concur with Judge Jasen; Judge Jones dissents and votes to reverse in a separate opinion in which Judges Wachtler and Fuchs-berg concur.

Order affirmed, with costs.

      . The full text of the letter sent by the Commissioner of Health reads as follows: "Pursuant to Section 63(3) of the Executive Law, I hereby request that your office investigate the alleged commission of any indictable offense or offenses in violation of the Public Health Law or in relation to any matters connected with the New York State Department of Health by hospitals subject to the provisions of Article 28 of the Public Health Law, their principals, agents, suppliers or other persons connected or involved therewith; and that you prosecute the person or persons believed to have committed the same or any crime or offense arising out of your investigation or prosecution or both.”
      The letter authored by the Acting Commissioner of Social Services provided: "Pursuant to Section 63(3) of the Executive Law, I hereby request that your office investigate the alleged commission of any indictable offense or offenses in violation of the Social Services Law or in relation to any matters connected with the New York State Department of Social Services by hospitals subject to the provisions of the Social Services Law, their principals, agents, suppliers or other persons connected or involved therewith, and that you prosecute the person or persons believed to have committed the same or any crime or offense arising out of your investigation or prosecution or both.”

      . This letter read as follows: "Pursuant to Section 63(3) of the Executive Law, I hereby request that your office investigate the alleged commission of any indictable offense or offenses in violation of the Insurance Law or in relation to any matters connected with the New York State Department of Insurance by hospitals which receive payment for services in accordance with rates approved by me under Article IX-C of the Insurance Law and Section 2807 of the Public Health Law, their principles [sic], agents, suppliers or other persons connected or involved therewith, and that you prosecute the person or persons believed to have committed the same or any crime or offense arising out of your investigation or prosecution or both.”

      . It should be noted that the many forms of waste by the hospital industry in the expenditure of public funds did not escape the attention of the Governor. On June 5, 1978, the Governor issued Executive Order No. 72 (9 NYCRR 3.72) directing the Attorney-General, pursuant to subdivision 8 of section 63 of the Executive Law, to "inquire into matters concerning the public peace, public safety and public justice with respect to the operation, management and funding of hospitals, and any principal, operator, agent, supplier or other person connected therewith.” This civil investigation was initiated by the Governor so that he could take appropriate executive action to cure the cited problems.

      . Unlike instances in which reliance is placed on subdivision 8, there was no requirement that there be some demonstration of special occasion for resort to prosecution under subdivision 3. While it might be inferred that recourse to this provision would not necessarily be the normal course of events, nothing in the statute or its legislative history suggests that the decision when to call on the Attorney-General rested other than in the nonreviewable discretion of the particular State officer.

      . The group of public officers entitled to call on the Attorney-General under subdivision 3 has been expanded by amendments enacted by chapter 420 of the Laws of 1968 and by chapter 814 of the Laws of 1969.

      . As to the significance of a denial of leave to appeal, see, e.g., Panico v Young (46 NY2d 847).

      . In the lower courts, there has been relatively little attention given to subdivision 3. The first attempt to invoke its provisions, when the scope of the subdivision was still limited to prosecution only, was rejected in People v Tru-Sport Pub. Co. (160 Misc 628), inter alia, on the ground that the activating request of the Secretary of State was "insufficiently complete and definite as to the subject-matter of the requested prosecution and, as well, to its compass in time, place and manner” (at p 633). In People v Yonkers Contr. Co. (24 AD2d 641, mod 17 NY2d 322) the underlying request from the Superintendent of Public Works concerned alleged irregularities on the part of a named corporation and named individuals with respect to a described contract. In People v Zara (44 Misc 2d 698) the court upheld the authority of the Attorney-General based on a request by the Superintendent of Public Works for prosecution of persons who might have violated the law by removing topsoil belonging to the State.
      As is noted in the majority opinion (p 136) broad, general requests of the Commissioners of Health and Social Services have been held sufficient at the Appellate Division to support investigation and prosecution of indictable offenses in the nursing home industry (Matter of Agnello v Armer, 56 AD2d 712; Matter of L & S Hosp. & Institutional Supplies v Lefkowitz, 54 AD2d 734; Matter of L & S Hosp. & Institutional Supplies Co. v Hynes, 51 AD2d 515).

      . For a similar view see People v Tru-Sport Pub. Co. (160 Misc 628, 633, supra).


author: Fuchsberg, J.

text:
    In the Matter of the Arbitration between Board of Education of Norwood-Norfolk Central School District, Appellant, and Frank F. Hess, as President of the Nor-wood-Norfolk Central Teachers Association, et al., Respondents.
    Argued November 20, 1979;
    decided December 19, 1979

      POINTS OF COUNSEL

      Dennis G. O’Hara and Michael J. Kawa for appellant.
    I. The arbitrator gave a completely irrational construction to the agreement before him which, in effect, created a new contract between the parties. (Matter of National Cash Register Co. [Wilson], 8 NY2d 377; Steelworkers v Enterprise Corp., 363 US 593; Matter of Town of Wallkill Unit of Orange County Ch., Civ. Serv. Employees Assn. [Town of Wallkill], 85 Misc 2d 1076, 52 AD2d 586; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Hirsch v Hirsch, 37 NY2d 312; Matter of United Liverpool Faculty Assn. v Board of Educ., 94 Misc 2d 459; Clifton-Fine Cent. School Dist. Bd. of Educ. v Wisner, 59 AD2d 50, 43 NY2d 643; Lentine v Fundaro, 29 NY2d 382.) II. The arbitrator’s award was not based upon the agreement before him. (Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], 25 NY2d 451; County of Ontario v Civil Serv. Employees Assn., Ontario County Ch., 76 Misc 2d 365, 46 AD2d 738; City of Rochester v AFSCME, Local 1635, 54 AD2d 257; Matter of Civil Serv. Employees Assn., Steuben County Ch. v County of Steuben, 50 AD2d 421; Matter of Professional Staff Congress/City Univ. of N. Y. v Board of Higher Educ., 39 NY2d 319; Matter of W. M. Girvan, Inc. [International Brotherhood of Teamsters, Local 294], 55 AD2d 746.) III. Implementation of the arbitrator’s award would require the district to violate the law. (Matter of Mantell [Unipak Aviation Corp.], 28 AD2d 1134; Matter of Amos v Board of Educ., 54 AD2d 297, 43 NY2d 706; Matter of Meliti v Nyquist, 41 NY2d 183.) IV. The arbitrator’s award is violative of public- policy. (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Cohoes City School Dist. v Cohoes Teachers Assn.; 40 NY2d 774; Board of Educ. v Areman, 41 NY2d 527; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509.)

      Richard E. Casagrande, Bernard F. Ashe and J. Michael Eadry for respondents.
    I. Judicial review of an arbitrator’s award is strictly limited. (Board of Educ. v Niagara-Wheatfield Teachers Assn., 46 NY2d 553; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; North Syracuse Cent. School Dist. v North Syracuse Educ. Assn., 45 NY2d 195.) II. Appellant may not raise new legal issues in this appeal. (Persky v Bank of Amer. Nat. Assn., 261 NY 212; Telaro v Telaro, 25 NY2d 433; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Matter of Triborough Bridge & Tunnel Auth. [District Council 37], 56 AD2d 890, 44 NY2d 967; Matter of Allen v Grand Is. Cent. School Dist, 56 AD2d 131.) III. The arbitrator’s award with respect to Harriet Liota was not totally irrational. (Matter of British Overseas Airways Corp. v International Assn. of Machinists & Aerospace Workers, AFL-CIO, 32 NY2d 823; Matter of Professional Staff Congress/City Univ. of N. Y. v Board of Higher Educ., 39 NY2d 319; Matter of Connolly v Board of Educ., 53 AD2d 1041; Board of Educ. v New Paltz United Teachers, 44 NY2d 890.) IV. The arbitrator’s award does not violate public policy. (Matter of Glekel [Gluck], 30 NY2d 93; Matter of National Equip. Rental [American Pecco Corp.], 28 NY2d 639; Matter of Goodman [Lazrus], 15 AD2d 530.) V. If the arbitrator’s award is vacated, the court should remand the case for a new hearing pursuant to CPLR 7511 (subd [d]). (Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266.) VI. Public policy demands that this arbitration award be confirmed in all respects.
   OPINION OF THE COURT

Fuchsberg, J.

In a proceeding brought pursuant to CPLR 7511, the Appellate Division reversed an order of Special Term vacating an arbitration award which, inter alia, had ordered a school district to reinstate a former teacher. The essential question is whether the arbitrator exceeded his power.

The arbitral proceeding was the last stage in the grievance machinery provided by a collective bargaining agreement between petitioner Norwood-Norfolk Central School District and respondent Norwood-Norfolk Central Teachers Association to cover the 1975-1976 school year. The controversy arose out of the district’s decision not to re-employ respondent Harriet Liota, who had then worked for it as an art teacher for some five years.

At the time her principal notified Ms. Liota of this decision, he also gave her a copy of her year-end evaluation, which included critical comments about classroom control and the like. Believing that these formed the basis for her termination, she then filed a grievance in which she complained that the school had neglected to comply with subdivision B of article IV of the union agreement. That clause, entitled "teacher evaluation”, reads: "It is recognized that a system of periodic evaluation is essential to assist teachers in developing competency and realizing their potential. It is further recognized that information gathered through such a system will enable decisions by the Board of Education concerning reappointment, tenure, promotion, etc., to be made in a just and equitable manner. Consequently it is agreed that the policy on evaluation jointly developed by the administration and Teaching staff will be followed for the life of the contract subject to modification jointly agreed upon” (emphasis ours). Further particularizing her grievance, she went on to assert, and in due course the arbitrator was to find, that, despite its commitment to assist teachers in developing competency, the district had not only been derelict in failing to confer with her as to. the results of its 1975-1976 observation of her classroom performance, but that in the two previous years it had not even bothered to make observations at all.

The school’s answer was directed solely to meeting the charge articulated by the teacher. The submission to the arbitrator, as pertinent here, was simply whether "the District violated Article IV, B as to observations and evaluations”. Only during the arbitration hearings, which followed the three prearbitration stages, did the district take the tack that the determination not to re-engage Ms. Liota, then a provisionally certified teacher, had been impelled by her failure to obtain permanent certification within five years of her initial employment (see State Education Dept, Memorandum Div TEC 75-76 [5] [May, 1976]).

As found by the arbitrator, however, the district had been notoriously lax in its enforcement of that requirement until December, 1975, when its board of education newly announced a policy whereunder "continued employment of teachers who have allowed their provisional certifications to lapse” was to be conditioned on successful completion of six graduate credits during the 1975-1976 year and at least six more in each subsequent year until the certification deficit was cured. However, Ms. Liota, to the knowledge of the school authorities and at their inspiration, had embarked on a more than responsive after-school program of nine credit hours towards a master’s degree for 1975-1976 and apparently was pursuing it diligently at the time of her separation.

At the completion of the proceeding before him, the arbitrator concluded that the purpose of subdivision B of article IV was to "enable decisions by the Board of Education concerning reappointment * * * to be made in a just and equitable manner” and that the board’s "arbitrary and discriminatory” application of the new certification policy offended that requirement. "[I]n the light of this finding of violation of the contract”, he then directed that Ms. Liota be re-employed, reimbursed for net loss of earnings (less credit for any outside earnings) and thereafter not be terminated for lack of certification so long as she continued to comply with the board program, the last on the presumption that the State Commissioner of Education would continue to forgive the delay of certification upon good faith application by the district.

It was against this backdrop that Special Term, echoing the district’s contentions that the arbitrator’s consideration of the failure to observe the teacher in the two prior years constituted an unauthorized delving into the "irrelevant” and that his "incorporation” of the board’s own certification policy into the agreement was impermissible, concluded that the arbitrator had rewritten rather than interpreted the agreement. It thereupon entered an order vacating the award and, concordantly, rejected respondents’ motion to confirm. For its part, the Appellate Division reversed in a memorandum which emphasized that the award was not irrational. We now affirm. Our reasons follow.

Mapping our course, we once again stress the limited and well-defined nature of the issues presentable to a court on review of a consensual arbitration. Unless law or strong public policy prohibits its submission, a party that wishes to challenge the arbitrability of any issue must do so before the process gets underway (CPLR 7503, subd [b]; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23, 28; Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383). And, once it does, its conduct is not governed by the substantive or evidentiary rules which commonly prevail in courts of law; rather, the constraints on the arbitral authority are those measured by the bounds of rationality. Further, to achieve what the arbitration tribunal believes to be a just result, it may shape its remedies with a flexibility at least as unrestrained as that employed by a chancellor in equity (North Syracuse Cent. School Dist. v North Syracuse Educ. Assn., 45 NY2d 195, 200; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582; Matter of Professional Staff Congress/City Univ. of N. Y. v Board of Higher Educ., 39 NY2d 319, 323). In countenancing such departures from conventional common-law standards, courts do no more than respect the right of disputants to solve their differences by pursuing what they may perceive to be speedier, less expensive and more practical dispositional paths (see, generally, Matter of Siegel [Lewis], 40 NY2d 687, 689).

These principles in mind, it seems clear that the fact that 1973-1974 and 1974-1975 defaults in classroom evaluation preceded the year of the contract under which the arbitration arose did not preclude the arbitrator from taking them into account. In this connection, we first note the breadth of the clause from which the arbitrator derived his authority; it covers "an alleged violation of the provisions of this contract”. More particularly, as previously indicated, the submission to which the parties agreed did not directly or indirectly confine the arbitrator’s inquiry to 1975-1976.

In any event, we need not regard the proof of teacher evaluation in prior years as other than evidentiary in character. As such, the relevancy and weight it was to be accorded rested well within the arbitrator’s unfettered discretion. Most important, it easily met almost any conceivable test of rationality. Certainly, it was not for the courts to say that the arbitrator was not at liberty to treat the departure from evaluation requirements in the year of the contract as evidence of a pattern of disinterest casting doubt on the accuracy of the district’s 1975-1976 rating of Ms. Liota. Likewise, it was within the province of the arbitrator alone to judge whether it tended to counter any contention that Ms. Liota was exaggerating the significance of the failure to hold any conferences aimed at developing her competency and her teaching potential. In brief, in accepting this proof, the arbitrator could have been motivated by the clearly rational view that a party’s intent or expectations may be gauged by its similarly circumstanced past conduct.

We turn then to the district’s contention that the arbitrator improperly based his decision on matters dehors the contract, to wit, the board’s independently promulgated certification policy. The short answer is that it was for the arbitrator’s interpretation of the agreement that the parties bargained. In that light, it was for him, and him alone, to decide whether, under subdivision B of article IV, the contract’s provisions for teacher evaluation were the only criteria for determining whether the decision as to Ms. Liota’s reappointment was "made in a just and equitable manner”. In effect, he apparently chose to construe this clause as requiring performance to be the controlling consideration in reappointment determinations. On this basis, it was perfectly permissible for the arbitrator to examine the certification policy — a factor introduced into the proceeding by the district itself as a defense— in order for him to be able to judge whether its arbitrary and discriminatory enforcement was inconsistent with a goal-oriented requirement for "just and equitable” treatment. In pursuing such a train of thought, the arbitrator was also bolstered by the license his appointment gave him to interpret the agreement in accordance with its spirit rather than merely its letter and to divine both (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, supra). Needless to say, that a court of law might reach a different result, both in its interpretation of subdivision B of article IV and its evaluation of the certification policy, is beside the point (see Lentine v Fundaro, 29 NY2d 382).

Finally, a word about that part of the award which directs Ms. Liota’s re-employment and places a limitation on her future discharge, each despite her present lack of permanent certification. The district takes the position that these are violative of law. But the arbitrator did not order her re-engagement and retention unconditionally. He relied on the continued generosity of the commissioner’s regulations in allowing uncertified teachers to be legally employed (see 8 NYCRR 80.32) and on the policy adopted by the district in contemplation of the continued existence of the commissioner’s policy. It is within the broad remedial powers of an arbitrator, acting with flexibility, to fashion a remedy which will forestall even an unconscious inclination to circumvent an aggrieved party’s rights, no matter how well motivated or how sincerely rationalized that conduct may be. We cannot say that the arbitrator went outside his storehouse of permissible remedies here.

We therefore conclude that the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order affirmed, with costs.

       Though her notice of termination arrived before her grades were due, as the arbitrator’s opinion indicates, Ms. Liota satisfactorily completed all the courses she was pursuing.


author: Wachtler, J.

text:
    In the Matter of John J. De Lury et al., Respondents, v Abraham D. Beame, as Mayor of the City of New York, et al., Appellants.
    Argued November 21,1979;
    decided December 19, 1979

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Renee Modry and L. Kevin Sheridan of counsel), for appellants.
    The 30- to 90-day time period in section 210 (subd 2, par [g]) of the Civil Service Law for imposing Taylor Law penalties of payroll deductions for participation in an illegal strike does not start to run until either there has been a determination identifying the strikers by name or they have been served with notice of their violation. In any event the time period is not a Statute of Limitations which precludes enforcement of Taylor Law sanctions for a public official’s failure to strictly comply with the time requirements. (Matter of Delea v Board of Educ., 86 Misc 2d 988, 53 AD2d 613, 40 NY2d 808; Matter of Wilson v Board of Educ., 39 AD2d 965, 32 NY2d 636; People ex rel. Huff v Graves, 277 NY 115; People v Karr, 240 NY 348; Matter of 121-129 Broadway Realty v New York State Div. of Human Rights, 43 AD2d 754; Matter of Brenner v Bruckman,
      253 App Div 607; Thomson v Harris, 88 Hun 478; People v Cook, 14 Barb 259; Matter of Heath, 3 Hill 42.)

      Morris Weissberg and Robert J. Krengel for respondents.
    The Taylor Law (Civil Service Law, § 210, subd 2, par [g]), limits the time within which penalty deductions may be made from the pay of public employees to 90 days from the date of a determination that such employees were on strike on dates stated in such determination. (Matter of Place v Albanese, 73 Misc 2d 638, 43 AD2d 817; Lennox v Rhodes, 39 AD2d 801; Matter of Powers v Foley, 25 AD2d 525; Matter of Delea v Board of Educ., 86 Misc 2d 988, 53 AD2d 613, 40 NY2d 808; Matter of St. Pierre v Board of Educ., 40 AD2d 71; Matter of Wilson v Board of Educ., 39 AD2d 965, 32 NY2d 636; People ex rel. Huff v Graves, 277 NY 115; People v Karr, 240 NY 348.)
   OPINION OF THE COURT

Wachtler, J.

The Taylor Law (Civil Service Law, § 210) provides that if public employees have engaged in a strike the chief executive officer of the governmental unit involved may make salary deductions from the compensation of those employees who participated in the strike. The deductions must be made not earlier than 30 days nor later than 90 days following the date of the chief executive officer’s "determination”. The question presented on this appeal is the fixing of the time when such a "determination” is deemed to have been made.

On October 10, 1975 a report was submitted to the Mayor of the City of New York advising him that on five occasions between June 27 and July 2, 1975, up to 5,518 members of the New York City sanitation workers’ union engaged in a job action against the city. The employees on those occasions did not report for work, or refused to take out the trucks, and picketed or otherwise blocked access by private garbage haulers to city-owned landfill sites.

On October 10, 1975 in furtherance of this report to the Mayor, and pursuant to subdivision 2 of section 210 of the Civil Service Law, sanitation men who had violated the Taylor Law, except the 370 petitioners in this action, were personally served with notice of the determination of their violation, the penalties to be applied, and their right to object to the determination. On March 17, 1976 the Commissioner of Sanitation sent a teletype message to all work locations within the department that "[Duplicate notices of violation of the Taylor Law will be distributed to 370 sanitationmen who for one reason or another were not yet served.”

These 370 sanitation men commenced this proceeding arguing successfully before Special Term and the Appellate Division that the city was time-barred from imposing the payroll deduction. Both courts held that a "determination” that a strike had occurred in June and July of 1975 as well as the number of participants on each day of the strike had been made on October 10,' 1975. The courts also held that the statute was "explicit” in barring deductions "later than 90 days after the 'determination’ not after notice of the determination” and that section 210 (subd 2, par [g]) of the Civil Service Law required that the 90 days within which payroll deductions must be made be computed from the October 10, 1975 determination rather than from the date the notices were personally served. On this reasoning the period for assessing penalties would have expired on January 8, 1976.

The issue presented is the statutory interpretation of a part of section 210 of the Civil Service Law which provides that no public employee or organization shall engage in, cause, instigate, encourage, or condone, a strike (subd 1). Subdivision 2 of the statute states that any public employee who does engage in a strike violates the subdivision. It is paragraphs (d), (e) and (g) which are directly at issue. They read as follows:

"(d) Determination. In the event that it appears that a violation of this subdivision may have occurred, the chief executive officer of the government involved shall, on the basis of such investigation and affidavits as he may deem appropriate, determine whether or not such violation has occurred and the date or dates of such violation. If the chief executive officer determines that such violation has occurred, he shall further determine, on the basis of such further investigation and affidavits as he may deem appropriate, the names of employees who committed such violation and the date or dates thereof. Such determination shall not be deemed to be final until the completion of the procedures provided for in this subdivision.

"(e) Notice. The chief executive officer shall forthwith notify each employee that he has been found to have committed such violation the date or dates thereof and of his right to object to such determination pursuant to paragraph (h) of this subdivision; he shall also notify the chief fiscal officer of the names of all such employees and of the total number of days, or part thereof, on which it has been determined that such violation occurred. Notice to each employee shall be by personal service or by certified mail to his last address filed by him with his employer.

* * *

"(g) Payroll deductions. Not earlier than thirty nor later than ninety days following the date of such determination, the chief fiscal officer of the government involved shall deduct from the compensation of each such public employee an amount equal to twice his daily rate of pay for each day or part thereof that it was determined that he had violated this subdivision; such rate of pay to be computed as of the time of such violation. In computing such deduction, credit shall be allowed for amounts already withheld from such employee’s compensation on account of his absence from work or other withholding of services on such day or days. In computing the aforesaid thirty to ninety day period of time following the determination of a violation pursuant to subdivision (d) of paragraph two of this section and where the employee’s annual compensation is paid over a period of time which is less than fifty-two weeks, that period of time between the last day of the last payroll period of the employment term in which the violation occurred and the first day of the first payroll period of the next succeeding employment term shall be disregarded and not counted.” (Emphasis added.)

Subdivision (h) allows for the filing of objections by the employees which may be dismissed or sustained by the chief executive officer subject to CPLR article 78 review.

The statute provides for a two-stage initial determination. First the chief executive officer must determine that there has been a violation; second, he must then determine the names of the violators and the dates of the violations. This two-part determination becomes final if the employee does not file an objection or, if objections have been filed, all applicable procedures have been completed (see Matter of Sanford v Rockefeller, 35 NY2d 547, 553-554, app dsmd 421 US 973). By imposing this requirement the Legislature apparently intended some form of notice prior to the imposition of penalties. Indeed it imposed a 30-day waiting period before deductions could be made so that employees would have an opportunity to object before the imposition of penalties (Matter of St. Pierre v Board of Educ., 40 AD2d 71, 73).

The plain language of the statute is to the effect that the "determination” identify the strikers by name. The "determination” of October 10, 1975 did not become final as to these 370 strikers until they were identified by name by the chief executive officer or provided with notice of their violation. Therefore the October 10 date was an improper basis for measurement of the 30- to 90-day time period.

Lest our holding be understood to countenance any unreasonable delay by the municipality in giving the required notice, we note that the statute requires that after the names of the individual strikers have been ascertained notice shall be given "forthwith” (Civil Service Law, § 210, subd 2, par [e]). However, we need not in this case decide whether the city’s actions comported with that requirement, as this issue was not raised.

The order appealed from should be reversed and the petition dismissed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

Order reversed, with costs, and the petition dismissed.