author: Wachtler, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Esteban Minaya, Respondent.
    Argued October 22, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Howard Birnbach and Alan Marrus of counsel), for appellant.
    The court below erroneously vacated defendant’s resentence where the re-sentence properly corrected a sentencing mistake. (People v Farrar, 52 NY2d 302; People v Pena, 50 NY2d 400; Peo-

      pie v Jones, 39 NY2d 694; People v Wilson, 18 AD2d 424, 13 NY2d 277, 377 US 925; People ex rel. Sloane v Lawes, 255 NY 112; Bozza v United States, 330 US 160; Fehleber Corp. v State of New York, 64 Misc 2d 167, 40 AD2d 881; Schoenberg v Schoenberg, 269 App Div 864; People ex rel. Hirschberg v Orange County Ct., 271 NY 151; Matter of Hynes v Karassik, 47 NY2d 659.)
    Miriam J. Hibel and William E. Hellerstein for respondent.
    I. The resentence by the trial court was, under GPL 430, an unlawful increase of respondent’s sentence once it had commenced, and violated respondent’s right not to be twice placed in jeopardy. (People v Snipe, 75 AD2d 750; People v Simmons, 86 Misc 2d 737, 54 AD2d 624; People v Harrington, 21 NY2d 61; People ex rel. Dauchy v Pitts, 118 App Div 457; United States v Lewis, 626 F2d 940; United States v Marquez, 506 F2d 620; People v Bradner, 107 NY 1; People v Yannicelli, 40 NY2d 598; People ex rel. Sedotto v Jackson, 307 NY 291; People v Cavelli, 50 NY2d 919; People ex rel. Spinks v Harris, 53 NY2d 784.)
   OPINION OF THE COURT

Wachtler, J.

The question , on this appeal is whether a court which mistakenly sentenced a defendant to three years, instead of eight years as agreed at the time of plea, could correct its error a few months later without violating either the statutory prohibition against changing sentences (GPL 430.10) or the defendant’s constitutional rights under the double jeopardy clause. The trial court held the error correctable but the Appellate Division reversed on the ground that the correction represented a change in sentence prohibited by the statute. The People appeal.

In 1978 the defendant was indicted for robbery in the first degree and related offenses for allegedly robbing a gas station with a shotgun. As the result of a plea bargain he agreed to plead guilty to attempted robbery in the first degree in exchange for an eight-year sentence. When the plea was entered on January 12, 1979 the defendant acknowledged that he received no promise other than that “the sentence will be zero to eight years”. The court accepted the plea on that representation.

When the defendant appeared for sentence on February 13, the plea agreement to sentence the defendant to “a period of zero to eight” years was again brought to the court’s attention by the prosecutor and acknowledged by defense counsel. The court after referring to the probation report and the defendant’s criminal history stated, “Under all the facts and circumstances, the court will follow the plea bargaining”. However, in formally pronouncing sentence the court apparently mentioned three years instead of eight as the maximum term of imprisonment. The discrepancy appears in the sentencing minutes and related court documents.

In May, 1979 during plea discussions with the defendant’s codefendants, the prosecutor noted the discrepancy and applied to the sentencing Judge to resettle the record to show that the defendant received the negotiated sentence of eight years imprisonment.

At an informal hearing attended by the prosecutor, the defendant and his attorney, the court admitted that it had “no independent recollection of the actual words used” in pronouncing sentence. It noted, however, that there had been a plea agreement to sentence the defendant to eight years; that the court accepted that agreement at the time of plea and again at the time of sentence and that the court’s private notes as well as the District Attorney’s notes indicated that the defendant was sentenced to zero to eight years in accordance with the agreement. Thus the court concluded that the references to a three-year sentence are erroneous and that “the sentence is now corrected”. The defendant did not testify or comment with respect to the discrepancy. His attorney simply challenged the power of the court to correct the error at this stage.

On appeal the Appellate Division reversed and reinstated the three-year sentence. The Appellate Division recognized that a court has inherent power to correct errors but concluded that the error in this case could not be considered clerical or correctable because the “imposition of judgment enlarging the time to be served by defendant is a matter of substance not form”. (78 AD2d 358, 362.) The Appellate Division apparently felt that a correction of this nature amounted to a change in the sentence which by statute is prohibited “once the term or period of the sentence has commenced” (CPL 430.10).

It is well settled that courts possess “inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth” (Bohlen v Metropolitan El. Ry. Co., 121 NY 546, 550-551). This power exists in criminal as well as civil cases and has been held specifically applicable to errors relating to sentence (People ex rel. Hirschberg v Orange County Ct., 271 NY 151, 157).

Of course a court cannot, in the guise of correcting an error, change or amend a sentence which is not defective (People ex rel. Sedotto v Jackson, 307 NY 291). Indeed as the Appellate Division noted that is expressly prohibited by CPL 430.10 which provides “[ejxcept as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced” (see, also, People v Yannicelli, 40 NY2d 598, holding the statute prohibits a court from resentencing a defendant on the incarceration portion of a sentence when that portion was not defective and had already been served). However, this statute like its predecessor (Code of Criminal Procedure, § 470-a; former Penal Law, § 2188) essentially restates the common law (see People ex rel. Kuney v Adams, 168 Misc 285, 296, affd 256 App Div 802, affd 280 NY 794; cf. People ex rel. Woodin v Ottaway, 247 NY 493, 496; see, also, People ex rel. Holton v Hunt, 217 App Div 428, 431) and does not alter the power of a court to correct errors or mistakes concerning sentences (see, e.g., People v Harrington, 21 NY2d 61, 65).

There is no contention in this case that the court intentionally but inexplicably sentenced the defendant to three years in violation of the plea arrangement it had just agreed to honor and then subsequently, and just as inexplicably, changed its mind and resentenced him to the longer term originally agreed upon. Here it is evident from the record and in fact not disputed that we are concerned only with the correction of an error in the sentence. The fact that the error may have resulted from the court’s own inadvertence in pronouncing the sentence does not make the error any less correctable. The inherent power of a court to correct its own errors extends to a statement or even formal pronouncement made by a court which may create “apparent ambiguity” but “which is, plainly, the result of some inadvertence on his [the Judge’s] part, and which our reason tells us is a mere mistake” (Bohlen v Metropolitan El. Ry. Co., supra, p 550). Neither is the court’s power to correct error in a sentence limited to purely formal defects which can have no effect on the substance of the sentence. For instance, a court may correct its records to show that a prior conviction reported as a felony was actually for a misdemeanor — a matter of obvious substance to a defendant sentenced as a prior felony offender (see, e.g., People ex rel. Hirschberg v Orange County Ct., supra). In short there is no reason why the court’s inherent power to correct its own mistakes generally should not permit the court to correct the particular error that occurred during sentencing in this case.

With respect to the defendant’s double jeopardy argument we note that the Supreme Court has recently rejected the contention that “a sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal” (United States v Di Francesco, 449 US 117, 132). The defendant claims that that case is distinguishable on the ground that the defendant there had no expectation of finality because the Government was expressly authorized by statute to challenge the sentence on appeal, while in this case there is no express statutory mechanism for correcting the error in the sentence. However, as noted, the court’s power to correct errors, including errors in the sentence, is well established by the case law and is not expressly prohibited by statute. To the extent the defendant may actually have entertained the hope that such an obvious error would be uncorrectable once he reached State prison, it was not founded on any authoritative pronouncement to that effect from this court or the Legislature. Indeed we know of no case binding on this court which has held that a defendant who is mistakenly sentenced to a lesser term than he agreed to, should immediately upon commencing the sentence acquire a vested interest in the error so that it would be unfair, under the double jeopardy clause, to correct the error and make the defendant serve out the term of his own sentencing agreement (but cf. United States v Sacco, 367 F2d 368). Thus limiting the defendant’s objection to the facts of this case, as we must (see, e.g., Broadrick v Oklahoma, 413 US 601), there is no basis for concluding that the double jeopardy clause posed any impediment to the court’s power to correct the error in the sentence.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for review of the facts (CPL 470.40, subd 2, par [b]).

Meyer, J.

(dissenting). Respectfully I disagree with this court’s exercise of authority it does not have to sanction the exercise by Criminal Term of authority it did not have. That the particular defendant involved in this case would receive a windfall results from the failure of the prosecutor to move for correction of the sentence within the time the Legislature has allowed for corrective action and from the fact that the Legislature has in the Criminal Procedure Law enacted an explicit limitation upon when a sentence, as distinct from the clerical record of the sentence, may be changed. If change in the law is needed, and I believe it is, it should come from the Legislature, not from this court.

CPL 430.10 provides: “Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced.” When a sentence commences is defined by section 70.30 of the Penal Law: for an indeterminate sentence, “when the prisoner is received in an institution under the jurisdiction of the state department of correctional services” (subd 1); for a definite sentence, “when the prisoner is received in the institution named in the commitment” (subd 2). It is undisputed that defendant was sentenced to an indeterminate sentence of zero to three years and had been confined on that sentence in Danamora State Prison for several months before the Criminal Term, on motion of the District Attorney, ordered the record corrected by ”resentencing the defendant to zero to eight years, nunc-pro-tunc.”

To circumvent the clear absence of jurisdiction, the People rely upon CPLR 5019 (subd [a]) and generalities in decisional law. The majority, ignoring the People’s efforts to apply the CPLR, provides a pastiche of civil and criminal cases that do not withstand analysis in the face of CPL 430.10 and cases to date construing it.

It may well be questioned whether CPLR 5019 would be helpful to the People in any event in light of the limitation of the curative orders it authorizes to a “mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party” (italics supplied) . But the section is clearly inapplicable to the present situation for CPLR 101 explicitly states that the CPLR “shall govern the procedure in civil judicial proceedings” (italics supplied), and though the Criminal Procedure Law has no counterpart provision it has long been recognized that “it was intended by the Legislature that this Code [of Criminal Procedure] was to take the place of, and be substituted for, all of the statutes of the State bearing upon the subject, to which end provisions were made for every necessary step to be taken in every criminal case” (People ex rel. Hirschberg v Orange County Ct., 271 NY 151, 155). Nor in the face of “ The commands of the law-making power in matters wherein its fiat is supreme and final’ ” (id.) do generalities such as that “The law deals with realities and not fictions” (People ex rel. Sloane v Lawes, 255 NY 112, 117) or that “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner” (Bozza v United States, 330 US 160, 166-167) help the People’s case, distinguishable as those cases are on their facts and because they involved no statutory command such as CPL 430.10.

Linchpins in the majority’s analysis are Bohlen v Metropolitan El. Ry. Co. (121 NY 546), People ex rel. Hirschberg v Orange County Ct. (supra), People v Harrington (21 NY2d 61) and the cases cited (p 364) to support the conclusion that CPL 430.10 “essentially restates the common law”. Bohlen, however, relied upon section 723 of the Code of Civil Procedure, from which is derived CPLR 2001, which has no counterpart in the CPL, and the language of which allows correction of a “mistake” at “any stage of an action.” Aside from the fact, already noted, that the CPLR does not apply to criminal proceedings, the distinction between the two is obvious: the CPLR provision is broadly permissive while the CPL provision is expressly restrictive.

True it is that both Hirschberg and Harrington allowed corrections to be made and that in doing so Hirschberg relied upon Bohlen. Important to note, however, is that what was corrected in each was clearly a clerical error; in Hirschberg, “in recording the plea” as having been made to a felony rather than a misdemeanor; in Harrington, “in the failure of the clerk to make a record in his minutes of the offense after the sentence had been pronounced.” Moreover, Hirschberg recognized that there is no power in the courts to extend a time limit fixed by the CPL and quoted with apparent approval from People v Glen (173 NY 395, 400) the statement that “matters * * * regulated by the provisions of the Code of Criminal Procedure * * * however inconvenient, or even oppressive, they may appear to be in specific cases, the courts must apply * * * as best they can, for they embody the commands of the law-making power in matters wherein its fiat is supreme and final,” and the Harrington court, acknowledging that once begun a sentence could not be vacated or changed, distinguished what it was approving as merely the correction of the record “to support the sentence as it had been imposed * * * by inserting the nature of the offense in compliance with section 485 of the Code of Criminal Procedure.” It is one thing to recognize an inherent power in the court to conform the record of ministerial acts performed by the clerk to the fact and quite another to use that as a springboard for correction not of the record but of the fact, i.e., the length of the sentence imposed as a discretionary, albeit perhaps inadvertent, act of the Judge.

Nor is the majority’s thesis that CPL 430.10 “restates the common law” a valid one with respect to the issue in this case. Each of the cases cited (People ex rel. Kuney v Adams, 168 Misc 285, 296, affd 256 App Div 802, affd 280 NY 794; People ex rel. Woodin v Ottaway, 247 NY 493, 496; and People ex rel. Holton v Hunt, 217 App Div 428, 431) deals with the power to suspend sentence and such reference as there is to codification of the common law speaks only to the fact that the commencement of imprisonment limitation on the court’s power “was a clear recogniton of the common-law distinction between the judicial power to postpone the execution of a judgment and the executive power to terminate the service of a sentence thereunder” (Holton, supra, at p 431 [italics in original] ; Kuney, supra, at p 296). Each also recognizes that as a result of the common-law separation of powers the courts are without power to suspend sentence after commencement of sentence, and none of them suggests that the Legislature had any thought of sanctioning a change in sentence, as distinct from a change in the records supporting the sentence, after the beginning of imprisonment.

As we have but recently re-emphasized, a Judge when he imposes sentence does not act clerically but in the exercise of discretion (People v Farrar, 52 NY2d 302, 305, 308). What the court now authorizes is not a change in the record made to reflect what was actually done, but a change in what was actually done, on the ground that it was not intended. We may accept the fact that the Judge intended to impose an eight-year sentence for the words used were “Under all the facts and circumstances, the Court will follow the plea bargaining. The defendant is therefore sentenced to an indeterminate sentence of imprisonment which shall have a maximum term of three years and the Court imposes — of three years, and the defendant is committed to the custody of the State Department of Correction.” Repetition of the three-year maximum makes clear that we deal not with an error in recording what the Judge said, but at most an error of the Judge in saying it. But what he said was a valid and legal sentence within the discretion given him by statute. The fact that he erred in doing so does not make his action in imposing sentence clerical rather than discretionary. As a discretionary act it was, by statutory limitation, correctable only before sentence commenced; only if it were clerical could it be changed thereafter. The People could have moved for correction of the sentence to conform to the bargain either at sentence or at any time thereafter and before defendant arrived at the State institution, but once he was there the court was functus officio.

Such has been the consistent holding of this court (People v Thompson, 251 NY 428; People ex rel. Sedotto v Jackson, 307 NY 291, 295; People v Harrington, supra; People v Yannicelli, 40 NY2d 598; Matter of Cedar, 240 App Div 182 186, affd 265 NY 620; Pitler, New York Criminal Practice Under the CPL, § 13.77). Closely in point is People v Thompson (supra), in which defendant was sentenced to a term of not more than one year for illegally practicing medicine. Governing statutes authorized either a fixed sentence or, if the sentencing Judge found defendant capable of being substantially benefited by correctional and reformatory purposes of the institution to which committed, an indeterminate sentence. In imposing a fixed term sentence the court made no specific finding of defendant’s capability in that respect but thereafter, on its own motion and over defendant’s protest, reconsidered the sentence and imposed an indeterminate sentence. Noting that the trial court “chose to impose a definite sentence, which it might not do, unless it decided that the offender was incapable of being substantially benefited”, we ordered the original sentence reinstated, saying (251 NY, at p 431): “The court had jurisdiction of the person of the offender and of the offense. Its original sentence did not exceed the penalty fixed by the statute. It seems to me obvious that under the circumstances, the validity or nullity of the sentence cannot be made dependent upon proof of the mental processes of the trial court or of the mental or physical capacity of the offender” (italics supplied). Moreover, Sedotto and Yannicelli cannot be distinguished, as the majority suggests, on the ground that the sentences of imprisonment imposed in those cases were not defective for neither is the sentence imposed on Minaya defective. It is because, as Sedotto put it, “the original sentence was not defective but was a valid exercise of judicial discretion [that], the County Judge * * * was without power thereafter” (307 NY, at p 295), and as Yannicelli noted, “since the term of imprisonment was lawful * * * the court had no power to alter it by re-sentencing them [defendants] to a different, in fact longer, term” (40 NY2d, at p 602), that the resentence imposed in this case is a nullity.

The legislative direction should be adhered to notwithstanding that the result in this case may be that the punishment does not fit the crime. That the minutes strongly suggest that the Judge for some reason misspoke may be the predicate for statutory amendment but does not justify ignoring the existing statutory limitation upon the power of the court. The reason that it does not is nowhere better stated than in the Second Circuit opinion in United States v Sacco (367 F2d 368, 369-370) : “We are of the opinion that a judge should not be permitted to increase a sentence clearly and explicitly imposed, after the prisoner has begun to serve it, even though the judge later recollects that he had intended at the time to decree a longer sentence for a conviction on a particular count but did not do so because he had inadvertently confused it with another count. This is not the case of an error in reporting or a purely clerical error or a judicial mistake corrected the same day or the imposition of a sentence of less than a mandatory minimum or similar flaws which present quite different problems. The possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners.”

The order of the Appelllate Division should be affirmed.

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

Order reversed and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . By subdivision 3 credit is given against the sentence for “the amount of time the person spent in custody prior to the commencement of such sentence.”

      . At any state of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.

      . Compare CPL 440.20 (subd 1), which permits a defendant to move to set aside his sentence, but only “upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.” The obvious purpose of CPL 430.10 is to fix the point at which the lower court judgment is final, but the Legislature can, within the constraints of double jeopardy law, authorize correction of sentence even though valid and even after service of sentence has commenced, should it see fit to do so.

      . See People v Ozarowski (87 Misc 2d 607, 612) where the sentencing court denied defendants’ application to reduce their sentences, notwithstanding that service of sentence had not commenced and that defendants, who were youthful offenders, had, during the years their case traveled though our courts, shown themselves to be “useful, hard working and well-intentioned.” The court’s reasoning was that “the Legislature of this State did not see fit to specifically empower the court to change a sentence which was legally authorized and valid when imposed.”


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of Elaine Lowcher, Appellant, v New York City Teachers’ Retirement System, Respondent.
    Argued October 22, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      Ira Leitel for appellant.
    I. Petitioner was denied due process of law by the presence on the medical board of Dr. Schneck. (Matter of Martin v Bates, 65 AD2d 818; Matter of Sengstacken v McAlevey, 39 AD2d 965.) II. The medical board’s conclusion was based upon a mistake of law and a mistake of material fact and was, therefore, arbitrary and capricious. (Matter of Nilsson v La Guardia, 259 App Div 145.)

      Allen G. Schwartz, Corporation Counsel (Dody Schorr and Ronald E. Sternberg of counsel), for respondent.
    I. Dr. Schenck’s presence on the medical board, subsequent to his examination of petitioner at the request of a previous medical board, did not violate petitioner’s due process rights. (Matter of Martin v Bates, 65 AD2d 818; Matter of Sengstacken v McAlevey, 39 AD2d 965; United States v Morgan, 313 US 409.) II. Respondent’s determination denying petitioner’s application for accident disability benefits was based on credible evidence and, therefore, was not arbitrary, capricious or an abuse of discretion. (Matter of Drayson v Board of Trustees of Police Pension Fund of City of N. Y., 37 AD2d 378, 32 NY2d 852; Matter of Costello v Board of Trustees of Police Pension Fund, Art. II, 63 AD2d 894; Matter of Kelly v Board of Trustees of Police Dept. Pension Fund, Art. II, 47 AD2d 892; Matter of Manza v Malcolm, 44 AD2d 794; Matter of Ruth v Board of Trustees of Teachers’ Retirement Systems of City of N. Y., 66 AD2d 664.)
   OPINION OF THE COURT

Meyer, J.

On the facts and circumstances of this case, due process was denied petitioner, a claimant for accidental disability retirement, when one of the three members of the medical board which rejected her claim had previously examined claimant as an independent physician designated by two members of that board and had recommended that her claim be denied. The order of the Appellate Division affirming Special Term’s dismissal of petitioner’s article 78 proceeding seeking review of the determination rejecting her claim should therefore be reversed, with costs, and the matter remitted to Supreme Court, New York County, with directions to remand for further proceedings in accordance with this opinion.

Petitioner is a former school secretary who applied pursuant to section B20-42.1 of the Administrative Code of the City of New York for accidental disability retirement benefits as a result of physical and mental injuries sustained in an on-the-job assault against her by an angry parent. It is undisputed that petitioner had a history of coronary and psychiatric problems that predated the assault. It is also undisputed, however, that both her physical and mental condition deteriorated after the assault. The issue before the medical board was whether that deterioration was causally related to the assault.

Petitioner first applied for accidental disability benefits in 1971. Doctors Lester Fox and Bernard Perlman were members of the medical board which considered her claim, and as such made their own examination of her. The board designated Doctor Edward Gould as an independent psychiatrist to examine petitioner and make a written report to the board. After receipt of Dr. Gould’s written report, the board rejected petitioner’s application, but that determination was upset by a Federal court ruling that petitioner had been denied due process by the board’s refusal to permit her to see and respond to Dr. Gould’s report and by the board’s failure adequately to set forth its findings of fact and the evidence upon which it had relied (Lowcher v Beame, 405 F Supp 1247).

On remand, the board of which Drs. Fox and Perlman were members designated Dr. Larry Schneck as a second independent psychiatrist to examine and report. Essentially Dr. Schneck concurred with Dr. Gould. Petitioner was afforded the opportunity to see and dispute the reports of both Dr. Gould and Dr. Schneck. She attempted to rebut those reports by submitting written reports from five of her own doctors. Petitioner’s doctors, who had also examined her, had concluded that at least with respect to petitioner’s mental state, she had been disabled by severe neurotic anxiety as a proximate result of the assault.

Without a doubt, petitioner’s physicians constituted a formidable group. It included not only petitioner’s general practitioner, but also a cardiologist, an expert in forensic medicine who was also an attorney, a neuropsychiatrist and a psychiatrist. The forensic medicine expert, the neuropsychiatrist and the psychiatrist each directly challenged the conclusions of Drs. Gould and Schneck by suggesting, among other things, that they had failed to take relevant facts into consideration and had focused upon irrelevant matters, failed to appreciate the debilitating effects of neurotic anxiety, and failed to understand the legal, as opposed to medical, meaning of proximate cause.

Thereafter, for reasons which the record does not reveal, Dr. Schneck was appointed as the third member of the medical board, to serve with Drs. Fox and Perlman. On this record, were a medical board which did not include either Drs. Gould or Schneck as one of its members simply to have accepted the Gould-Schneck conclusion and rejected the conclusions of petitioner’s physicians, we would be unable to find any legal defect with that determination requiring annulment. Dr. Schneck’s presence as one of three members of the board, along with Drs. Fox and Perlman, which reviewed and rejected petitioner’s claim requires, however, that the medical board determination be annulled as a fundamental matter of administrative fair play and due process, for, in what the city concedes was a less than exemplary procedure, Dr. Schneck sat in review upon his own prior determination that petitioner had not been disabled by neurotic anxiety as a result of an assault. Moreover, he reviewed this determination against formidable contrary determinations expressed by other qualified experts who challenged, in effect, his basic professional competence. Not surprisingly, Dr. Schneck agreed with Dr. Schneck and upheld his determination. Pierce v Delamater (1 NY 17) to the contrary notwithstanding, we conclude that it is, indeed, improper for an impartial reviewer of an issue of fact to sit in review of his own prior determination of fact.

That due process will not allow an administrative decision-maker to sit in review upon his own decisions is the holding of Goldberg v Kelly (397 US 254, 271); compare Withrow v Larkin (421 US 35, 58, n 25); see Morrissey v Brewer (408 US 471, 485-486). Here, Dr. Schneck did just that. The issue he decided in his independent report to the medical board was the same issue he later decided as a reviewing member of the medical board.

Nor are we persuaded by the city’s claim that the medical board does not sit as an impartial arbiter of disputed facts but, rather, engages in independent expert inquiry into an applicant’s medical condition. Consequently, the city argues, Dr. Schneck’s report as a designated independent physician stands free of and merely predated the independent decisions of Drs. Fox and Perlman who subsequently concurred with Dr. Schneck’s determination. This analysis, however, blinks reality. Of the three physicians on the medical board which rejected petitioner’s application for the second time, only Dr. Schneck was a psychiatrist. More important, the two nonpsychiatrists had twice indicated a need for psychiatric expertise to evaluate petitioner’s claim fairly — once by designating Dr. Gould to examine petitioner and submit to them a written report and a second time by subsequently designating Dr. Schneck for the same purpose. Thus, in a situation where psychiatrists Gould and Schneck had come to conclusions conflicting with petitioner’s psychiatrists, the danger was great that the two nonpsychiatrist board members would defer to the psychiatric opinion of their board member colleague, Dr. Schneck, the only one of the many psychiatrists involved with whom they have been privy, and .defend him against the challenge to his competence leveled by petitioner’s psychiatrists.

We are not unmindful of the cases holding that even if a Judge be biased his holding will not be reversed absent a showing that that bias unjustly affected the result. We conclude that, at least on a record such as the present, it would be wholly unreasonable to require petitioner to establish prejudice by demonstrating that the decisions reached by Drs. Fox and Perlman were influenced by Dr. Schneck’s dual role. Human nature being what it is, the presumption, if any, should be the other way (cf. Adams Laundry Mach. Co. v Prunier, 74 Misc 529, 531, affd 153 App Div 930, affd 214 NY 637). To establish prejudice means delving into both the conscious and subconscious motivations of Drs. Fox and Perlman, who will quite naturally tend to uphold the decision already reached by the two of them and Dr. Schneck.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter with directions as above indicated.

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

Order reversed, with costs, and matter remitted to Supreme Court, New York County, with directions to remand for further proceedings in accordance with the opinion herein.

       We, of course, do not mean to criticize either the use of independent medical advisers by a board (see Richardson v Perales, 402 US 389, 408) or Dr. Schneck for accepting both assignments.


author: Chief Judge Cooke.

text:
    In the Matter of New York City Board of Education, Community School Dist. No. 1 et al., Respondents, v Roberto Batista et al., Appellants. In the Matter of New York City Board of Education, Community School Dist. No. 1 et al., Respondents, v Theodore Fletcher et al., Appellants.
    Argued October 20, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      Joseph Peter Flemming, Kenneth Kimerling and Margarita Rosa for Roberto Batista and Theodore Fletcher, appellants.
    I. The court below correctly determined that interim acting principals, although they had “no vested property right in their position”, could not be removed for “a constitutionally impermissible reason.” (James v Board of Educ., 37 NY2d 891.) II. There are three propositions of law upon the basis of which the State division’s determination must be sustained. (Matter of Holland v Edwards, 307 NY 38; Matter of Pace Coll, v Commission on Human Rights of City of N. Y., 38 NY2d 28; McDonnell Douglas Corp. v Green, 411 US 792; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201; United States v Hazel-wood School Dist., 534 F2d 805, 433 US 299; Teamsters v United States, 431 US 324; Arlington Hgts. v Metropolitan Housing Corp., 429 US 252; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276.) III. The evidence before the division overwhelmingly supported the division’s determination. IV. The court below mistook the issue in this case: it failed to address the findings of a pattern and practice of discrimination which is at the heart of this case; instead, it confused the process by which respondents-appellants Batista and Fletcher (and others) lost their tenured status with the action of petitioners-respondents in removing Batista and Fletcher (but not others) from their nontenured positions.

      Elaine Berger and Ann Thacher Anderson for State Division of Human Rights, appellant.
    The order of the court below is erroneous and should be reversed. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.)

      Allen G. Schwartz, Corporation Counsel (Carol R. Abramson, Leonard Koerner and Judith A. Levitt of counsel), for respondents.
    The court below properly found that petitioners had not met their burden of proving by substantial evidence that their reassignments were wrongful or that their failure to be selected as principals was racially motivated. (McDonnell Douglas Corp. v Green, 411 US 792; Matter of State Div. of Human Rights v Bystricky, 36 AD2d 278, 30 NY2d 322; Tenenbaum v State Div. of Human Rights, 50 AD2d 257; State Div. of Human Rights v Service Systems Corp., Vending Div., 40 AD2d 1075; Board of Regents v Roth, 408 US 564; James v Board of Educ., 37 NY2d 891; Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520.)
   OPINION OF THE COURT

Chief Judge Cooke.

These cases involve the claims of two public school administrators that they were removed from their positions for racially discriminatory reasons. Roberto Batista, a native of Puerto Rico, and Theodore Fletcher, who is black, were removed by respondents in 1974 from their positions as interim acting principals in Community School District No. 1 in New York City. The State Division of Human Rights found that respondents unlawfully discriminated against Batista and Fletcher, and the State Human Rights Appeal Board affirmed. Since substantial evidence supports this determination, the orders of the Appellate Division vacating the board’s orders should be reversed.

Batista was selected in May, 1973 by the Community School Board of District No. 1 to be acting principal of P.S. 64. Fletcher was hired in June, 1973 as acting coprincipal of P.S. 188 in District No. 1 on Manhattan’s Lower East Side. In mid-1974, the Community School Board notified Batista, Fletcher and four other principals in District No. 1 that their appointments were invalid because the board had failed to comply with a directive of the New York City Board of Education. That directive, Special Circular No. 30, required that all supervisory openings be advertised for 30 days before being filled. Batista, Fletcher and the four others affected were therefore reclassified from acting principals to interim acting principals.

The school board subsequently removed Fletcher and Batista from their principalships and they were assigned to other duties. They filed complaints with the Division of Human Rights alleging that their removals were racially motivated. Following hearings, the division found the removals to be part of an unlawful discriminatory pattern and practice of removing black and Puerto Rican principals in the district from their interim acting principalships and replacing them with white principals. The State Human Rights Appeal Board affirmed the division’s orders granting injunctive relief and compensatory damages. The Appellate Division, however, annulled and vacated the orders, finding insufficient evidence in the record to support the division’s determinations. For the reasons that follow, the Appellate Division erred.

At the outset, it should be emphasized that there is no dispute over the propriety of the reclassification of Batista, Fletcher and four other acting principals due to the failure to adequately advertise the openings. Likewise, it is not disputed that an interim acting principal, who serves at the pleasure of the district superintendent, has no vested property right in his or her position.

Although Batista and Fletcher had no vested rights in their positions, they could not be discharged for a constitutionally or statutorily proscribed reason (James v Board of Educ., 37 NY2d 891). Among the impermissible reasons for discharging an employee are the employee’s race and national origin (Executive Law, § 296, subd 1). That an employee has no job security does not mean that he or she has no right to be free from unlawful discrimination.

In reviewing the record for evidence of such discrimination, it must be kept in mind that “discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,183; see Matter of Holland v Edwards, 307 NY 38, 45). Because of the covert nature of discrimination, “[statistics are valuable and often demonstrate more than the testimony of witnesses” in showing that discrimination has occurred (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 210, app dsmd 420 US 915; see Matter of Pace Coll, v Commission on Human Rights of City of N. Y., 38 NY2d 28, 39; McDonnell Douglas Corp. v Green, 411 US 792, 805).

The statistical evidence produced at the division’s hearings supports the finding of a pervasive pattern within Community School District No. 1 of removal by the school board of black or Hispanic principals and their replacement by white principals. At the start of the 1973-1974 school year, the district had 3 black persons, 7 persons of Puerto Rican heritage and 11 white persons performing the duties of school principal. Of these, two Puerto Rican, two black and two white persons had been appointed acting principals in 1973 under the hirings later rendered invalid for failure to comply with Special Circular No. 30. These six persons, including Batista and Fletcher, therefore became interim acting principals with no vested property right in their positions. The Community School Board subsequently removed both blacks and both Puerto Ricans from their interim acting principalships. It also removed Fletcher’s coprincipal, a white man who was fluent in Spanish. The remaining white interim acting principal was not removed, and all of the vacancies were filled by white persons. Two other minority principals were also replaced by white principals during this same period, and when three white principals left their posts, they too were replaced by white persons. The record thus shows that during the period in which Fletcher and Batista were removed, the Community School Board filled all principalship vacancies with white persons and, with one exception, removed only minority principals from their positions.

This evidence was legally sufficient to sustain a finding that a prima facie case of discrimination had been shown. In an effort to rebut this evidence of discrimination, respondents maintained that Fletcher and Batista were removed because of poor job performance. Although respondents offered some testimony at the division’s hearings that was critical of the pair’s performances, there was no evidence that such criticism was considered by the Community School Board or played any part in its decisions to remove Fletcher and Batista. Indeed, some of the criticism involved events that occurred after the board removed the pair. In addition, there was testimony that Batista and Fletcher had performed their duties as principals effectively.

At most, the division was faced with conflicting evidence on the claim that the removals were motivated by racial animus. In weighing the evidence regarding respondents’ asserted justification for the removals, the Division of Human Rights enjoys wide latitude. And, upon review of the division’s determination, it is well established that “where there is room for choice, neither the weight which might be accorded nor the choice which might be made by a court are germane” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180, supra; see State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612, 616, cert den sub nom. Gilinsky v Columbia Univ., 429 US 1096). The sole question for the court’s resolution is the presence or absence of substantial evidence to support the determination under review. The record here provides ample support for the division’s rejection of respondents’ proffered justification for the removals of Batista and Fletcher.

Accordingly, the orders of the Appellate Division should be reversed, with costs, and the orders of the State Human Rights Appeals Board should be reinstated.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

In each case: Order reversed, etc.

       In addition to arguing that the division’s determinations were unsupported by substantial evidence, respondents argue that the proper test is whether illegal discrimination was the sole reason for the removal of the principals. Respondents misperceive the applicable standard. Although the Appellate Division spoke of a complainant’s burden of establishing discrimination as the sole reason for the challenged conduct in Matter of State Div. of Human Rights v Bystrieky (36 AD2d 278, 280, affd 30 NY2d 322), this court neither adopted such language in its opinion affirming the Appellate Division’s order nor employed it in subsequent decisions. To the contrary, this court has held that to overcome a prima facie showing of discrimination in a firing an employer must make “a showing that the employee was terminated for some independently legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination” (Matter of Pace Coll, v Commission on Human Rights of City of N. Y., 38 NY2d 28, 40).


author: Per Curiam.

text:
    In the Matter of William J. Quinn, a Justice of the Supreme Court, Schenectady County, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued October 19, 1981;
    decided November 24, 1981

      POINTS OF COUNSEL

      Thomas J. McDonough and David B. Alford for petitioner.
    I. Charges I, II, III and IV are barred from prosecution here by the prior adjudication by the temporary commission. II. The proof does not establish that petitioner violated the rules governing judicial conduct or the code of judicial conduct. III. Removal is not appropriate.

      Stephen Downs, Gerald Stern and Jean M. Savanyu for respondent.
    I. The underlying conduct of the prior admonition may properly be charged in a formal written complaint. II. Petitioner’s conduct violated established ethical standards, is properly subject to discipline and warrants removal from office. (Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465; Matter of Lonschein, 50 NY2d 569; Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397.)
   OPINION OF THE COURT

Per Curiam.

The State Commission on Judicial Conduct has determined that petitioner, a Justice of the Supreme Court, should be removed for misconduct. The primary question is whether this sanction is appropriate for petitioner who is suffering from alcoholism and cancer and, as a result of his ill health, had submitted his resignation and applied for retirement prior to the commission’s recommended determination of removal. We agree that petitioner’s conduct cannot be condoned in a Judge and that he would be unfit to hold judicial office but have concluded that under the circumstances the public interest would be best served by reducing the sanction to censure, accepting his resignation, and permitting him to retire.

In 1974 petitioner was elected as a Justice of the Supreme Court for the Fourth Judicial District. Prior to that he had served as Judge in the Schenectady City Court system. In May of 1975 petitioner had three encounters with the police. On the first two occasions (May 4 and 16) he was found asleep behind the wheel of his car apparently “under the influence of alcohol” and was driven home by the police. On the third occasion (May 22) he was arrested driving the wrong way on the Northway. On May 29, 1975 he pleaded guilty to driving while his ability was impaired in violation of subdivision 1 of section 1192 of the Vehicle and Traffic Law, a traffic infraction.

Following these incidents petitioner was investigated by the State Commission on Judicial Conduct. As a result of that investigation petitioner was formally admonished for his drinking habits, pursuant to former subdivision 4 of section 43 of the Judiciary Law. In the letter of admonition dated November 10, 1977, it was noted that “a judge’s private life cannot be easily separated from his public life” and that the rules governing judicial conduct require a Judge to “conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” (22 NYCRR 33.2). Petitioner accepted this admonishment without seeking further review.

On January 16, 1979 petitioner was again arrested for driving while under the influence of alcohol. After having several drinks at a private club in midafternoon on that date, petitioner had driven home in an intoxicated condition. Not far from his home he passed out behind the wheel with the motor running and the car in gear. When he was taken into custody he was abusive to the arresting officer and asserted the prestige of his office. At the police station he threatened the police and demanded that they call various public officials including the District Attorney, while constantly reminding the police of his judicial position. He was beligerent and un-co-operative with the officer taking the breathalyzer test. The results shows that his blood alcohol content was .18%, well over the .10% needed to demonstrate intoxication (Vehicle and Traffic Law, § 1192, subd 2). He refused to submit to fingerprinting.

On February 16, 1979 petitioner, through his attorney, pleaded guilty to driving with greater than .10% alcohol in his blood in violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law, a misdemeanor. He was given a conditional discharge and was directed to attend an alcoholic rehabilitation program for a year. He was also instructed, through his attorney, to submit to fingerprinting.

Petitioner joined the alcoholic program specified in the conditional discharge. He also enrolled in an extensive 28-day program at Rhinebeck. However, he did not submit to fingerprinting until August when the District Attorney arranged to have a police officer sent to his chambers to fingerprint him in private.

In November, 1979 the State Commission on Judicial Conduct filed a complaint charging petitioner with “judicial misconduct”. In addition to the incidents noted above, the commission also charged petitioner with disregarding the 1977 admonition by continuing “until January 1979 to consume 2 or 3 alcoholic drinks in public on 2 or 3 nights per week and then drive a vehicle to his home.” In his answer petitioner essentially admitted the facts. With respect to his conduct while in custody in 1979 he stated that he was intoxicated at the time, had a poor recollection of the events, that the officers’ “recollections are probably better than mine” but that he lacked an intent to act improperly. He also, asserted various “affirmative defenses” including (1) a kind of double jeopardy defense with respect to the 1975 incidents for which he had previously been admonished and (2) a contention that his conduct was due to the disease of alcoholism.

At the hearing petitioner admitted that he was an alcoholic and submitted uncontested expert proof that he suffered from that disease. The referee recommended that all of the charges be sustained and that the defenses be dismissed. The referee stated that alcoholism cannot provide “exemption from professional sanction for disgraceful conduct * * * A judge who is perceived to be out of control of his senses cannot be viewed confidently in his actions * * * what is the public to make of judgments of a judge known for impaired conduct as the result of drinking? Would an average citizen feel confident in putting his fate in the hands of a person of demonstrable instability.”

Counsel for the commission then moved to have the commission confirm the referee’s report and the petitioner’s counsel moved to have it disaffirmed. Petitioner did not personally appear during oral argument before the commission. When his absence was noted by one of its members, his attorney explained that petitioner was undergoing cobalt treatments for cancer of the salivary glands.

While the referee’s report was pending before the commission, petitioner submitted his resignation from the Bench and applied for retirement. He stated that ill health, resulting from the cancerous condition prevented him from properly performing his judicial duties. His application for retirement was to be effective May 8, 1981. However before that date the commission determined that he should be removed for misconduct. By order dated May 1, 1981 the commission, with one member abstaining, concluded that “public confidence in [petitioner] is irretrievably lost and that the public interest can be protected only by removal of [petitioner] from office.”

Petitioner has requested that we review that determination pursuant to the State Constitution and enabling statutes (NY Const, art VI, § 22, subd a; Judiciary Law, §44, subd 7). Under those provisions the scope of our review is broader than that traditionally assigned to an appellate court (see Matter of Spector v State Comm, on Judicial Conduct, 47 NY2d 462, 465-466). We are not limited to considering alleged errors of law. Nor in considering the propriety of the sanction are we bound to treat the commission’s determination with the same deference due to other State agencies by considering it beyond our review unless found to be “ ‘shocking to one’s sense of fairness’ ” (e.g., Matter of Pell v Board of Educ., 34 NY2d 222, 233). On the contrary, in matters involving the conduct and continued fitness of judicial officers the Constitution has conferred upon this court broad plenary power to determine the facts and appropriate sanction in the exercise of its own sound discretion and judgment (NY Const, art VI, § 22, subd d; Judiciary Law, § 44, subd 9; see, also, Matter of Dixon v State Comm, on Judicial Conduct, 47 NY2d 523; Matter of Lonschein, 50 NY2d 569; Matter of Rogers v State Comm, on Judicial Conduct, 51 NY2d 224; Matter of Shilling, 51 NY2d 397).

Indeed, the Constitution expressly states that “the court of appeals may impose a less or more severe sanction prescribed by this section than the one determined by the commission, or impose no sanction” (NY Const, art VI, § 22, subd d). The implementing legislation of subdivision 7 of section 44 of the Judiciary Law then carefully reposes in this court alone the extraordinary power and sanction to remove or retire a judicial officer.

In this case there is no basis for setting aside the commission’s findings of fact, which for the most part were conceded. Nor did the commission err in considering the petitioner’s conduct throughout his Supreme Court career, including the 1977 admonition and the circumstances which prompted it. Even in criminal matters the repeat offender may be subject to stronger sanctions (see, e.g., Penal Law, § 70.10). Similarly, in determining whether a Judge’s conduct warrants discipline or renders him unfit to continue in office, the fact that a prior admonition for similar conduct proved ineffective, is a fact which may be taken into account (Matter of Kuehnel v State Comm, on Judicial Conduct, 49 NY2d 465, 469-470).

We also agree with the commission that the petitioner has demonstrated by his conduct that he is unfit to continue as a Judge. The fact that there is no evidence that his drinking directly interfered with thé performance of his duties on the Bench is not determinative. A Judge also has a higher obligation to insure that his conduct off the Bench does not undermine the integrity of the judiciary or public confidence in his character and judicial temperament (Matter of Kuehnel v State Comm, on Judicial Conduct, supra, p 469; Matter of Steinberg, 51 NY2d 74; Matter of Shilling, supra). Here the petitioner’s public drinking and notorious involvements with the law over a span of several years, can only have resulted in irretrievable loss of public confidence in his ability to properly carry out his judicial responsibilities.

However, we do not agree with the commission that the only solution is to remove the petitioner for misconduct. Although the Constitution provides for mandatory removal following conviction of certain types of offenses (NY Const, art VI, § 22, subds e, f; see, also, Judiciary Law, § 44, subd 8, pars [a], [b]), petitioner’s convictions do not fall into that category. Neither is removal for cause the only method for terminating the services of an unfit judicial officer in all cases.

The commission “may determine that a judge be admonished, censured, removed or retired” (Judiciary Law, § 44, subd 7 [emphasis added]; see, also, NY Const, art VI, § 22, subd a). The sanctions available to this court also include “admontion, censure, removal or retirement for the reasons set forth in subdivision one” (Judiciary Law, § 44, subd 9 [emphasis added]; see, also, NY Const, art VI, § 22, subd d). Subdivision 1 in turn provides that the commission “may determine that a judge be admonished, censured, or removed from office for cause, including, but not limited to, misconduct-in office * * * and conduct, on or off the bench, prejudicial to the administration of justice, or that a. judge be retired for mental or physical disability preventing the proper performance of his judicial duties” (Judiciary Law, § 44, subd 1 [emphasis added] ; see, also, NY Const, art VI, § 22, subd a).

Thus there are in fact two methods for terminating the services of an unfit Judge: (1) removal for cause when misconduct or other dereliction is concerned and (2) mandatory retirement when unfitness is due to mental or physical disability. When misconduct is the result of alcoholism, retirement for disability may be most appropriate in cases where discretion is called for.

Admittedly alcoholism has had an irregular history in the law and the proper legal response is still subject to debate and adjustment. At common law in criminal cases, the use of alcohol was viewed by some as an aggravating circumstance (see 4 Blackstone, Commentaries, p 26; but also, see Perkins, Criminal Law, p 782). At the present time it is generally viewed as having the opposite effect of mitigating guilt, at least in cases where the crime charged requires proof of a specific intent which would be lacking in one who is intoxicated (see, e.g., Penal Law, § 15.25). Indeed it is now evident that the Constitution prohibits the punishment of one whose only offense is being an alcoholic (cf. Robinson v California, 370 US 660; but see, also, Powell v Texas, 392 US 514). The shift of course is not complete. There are still offenses, including recently enacted laws such as those dealing with the operation of motor vehicles, where the use of alcohol is an aggravating fact or element of the crime (e.g., Vehicle and Traffic Law, § 1192; Penal Law, § 240.40). Even those who advocate a general decriminalization of conduct caused by alcoholism recognize the need for this type of legislation (see, e.g., Grad, Goldberg and Shapiro, Alcoholism in the Law, p 195 [1971]).

Apart from the criminal law the most recent development in this area has been the formal recognition by Congress and the Legislature of this State that alcoholism is an illness which must be treated as a public health problem (US Code, tit 42, § 4541, subd [a], par [6]; Mental Hygiene Law, § 1.03, subd 13). It has also been recognized as a type of disability (Mental Hygiene Law, § 1.03, subd 3; Disability Benefits-Alcoholism, Ann., 39 ALR Fed 182), and a potential basis for unfair discrimination which the Congress has sought to eliminate from Federal employment (US Code, tit 42, § 4561, subd [c]). However, even the Federal law does not preclude the discharge of one who is unable to perform his duties because of this handicap (US Code, tit 42, § 4561, subd [d]).

Here the record amply supports the conclusion that petitioner was suffering from the illness of alcoholism. With the possible exception of the fingerprinting incident his misconduct may be seen as a manifestation of that illness. That, of course, provides no legal excuse for violating the law. But as far as the criminal law is concerned, petitioner has been convicted and a criminal punishment was imposed on him. And, as noted, these convictions do not require mandatory removal for cause. As far as the petitioner’s fitness for judicial office is concerned his alcoholism again can provide no basis for dispensation. However, there is no reason why his alcoholism may not be given consideration in determining the method for terminating his services when a less harsh alternative is available. Of course even forced retirement for mental or physical disability is embarrassing and a drastic measure to be employed against a sitting Judge. But it does at least permit him to retire without adverse legal consequences (NY Const, art VI, § 22, subd h).

In this case however, the complaint only charges the petitioner with misconduct. No effort was made to effect his retirement for mental or physical unfitness. There is no indication in the record why the complaint was so restrictively drafted. It appears that the possibility of mandatory retirement as an alternative to removal for cause, which was first mentioned by one of the members of the commission during oral argument, may have been simply overlooked at the time the complaint was drafted or perhaps it was felt to be unavailable because of petitioner’s involvements with the law. Whatever the reasons, however, and accepting the limitations of the complaint, this court is still not circumscribed to direct petitioner’s removal for cause as the only available option in view of his manifest unfitness for judicial office. We need not in the technical sense broaden the complaint and consider mandatory retirement because we can under all the circumstances achieve the same functional effect by censuring Justice Quinn and acknowledging his retirement.

As noted it appears that petitioner is suffering from cancer as well as alcoholism and recognizing his inability to perform his judicial duties because of ill health, he tendered his resignation. Acceptance of the resignation by the appropriate authorities offers a satisfactory solution for the public and petitioner under the facts of this particular case. We recognize that one charged with misconduct may not generally avoid the consequences of removal for cause by racing to resign (Judiciary Law, § 47). However, that policy will not be undermined by giving effect to petitioner’s resignation in this case. Accordingly, the sanction should be reduced one level to censure; petitioner’s resignation is acknowledged and should be accorded whatever legal effect as is appropriate.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Determined sanction rejected, without costs, and the sanction of censure imposed.

       In some cases the stronger sanction of removal may be necessary to insure permanent retirement from judicial office (NY Const, art VI, §22 subd h). In this case though we do not perceive any practical risk to that possibility.