text:
    Helen Greschler, Appellant, v Jerome Greschler, Respondent. Attorney-General of the State of New York, Intervenor-Appellant.
    Submitted October 9,1980;
    decided November 25,1980

      POINTS OF COUNSEL

      Gerald Kadish for appellant.
    I. Special Term was correct in denying defendant’s motion to dismiss the complaint for failure to state a cause of action. (Gonsenhauser v Central Trust Co., 51 AD2d 644; Williams v Williams, 23 NY2d 592; Foley v D’Agostino, 21 AD2d 60; Wilhelmina Models v Faberge, Inc., 55 AD2d 520; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187; Lanzi v Brooks, 43 NY2d 778.) II. The court below erred in dismissing the second cause of action. (Lappert v Lappert, 20 NY2d 364; Rehill v Rehill, 306 NY 126; Fink v Goldblatt, 13 NY2d 957.)

      Joseph Heller for respondent.
    I. Where there has been full disclosure of all relevant facts in context and absent inequitable conduct in the execution of the agreement, the courts should not redesign the bargain. No further inquiry is to be made if the execution of the agreement is fair. (Diemer v Diemer, 8 NY2d 206; Fox v Fox, 17 Misc 2d 998, 17 AD2d 939; Harris v Harris, 46 Misc 2d 355; Schine v Schine, 31 NY2d 806.) II. Section 5-311 of the General Obligations Law is not against public policy for a wife to waive alimony provided a husband and wife make an equitable and reasonable division of their property. (Lynn v Lynn, 302 NY 193; Lappert v Lappert, 20 NY2d 364; Rawitz v Rawitz, 31 AD2d 832; Stuber v Stuber, 30 AD2d 655; Wadsworth v Wadsworth, 31 AD2d 524; Feinberg v Feinberg, 40 NY2d 124; Math v Math, 39 AD2d 583, 31 NY2d 693; Spearman v Spearman, 49 AD2d 837; Votta v Votta, 40 AD2d 532; Trazzi v Trazzi, 49 AD2d 954.) III. Plaintiff filed no brief and no reply is possible except as to contentions made in the court below. (Childs v Childs, 69 AD2d 406; Christian v Christian, 42 NY2d 63; Reno v Bull, 226 NY 546; Block v Landegger, 44 AD2d 671; Meltzer v Klein, 29 AD2d 548; Lustig v Lustig, 269 App Div 571; Untermeyer v Myriad Investors Corp., 43 AD2d 525; MacBarb v MacBarb, 267 App Div 183; Jaffe v Jaffe, 283 App Div 738.)

      Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. So much of section 5-311 of the General Obligations Law as bars either spouse from agreeing to waive the right to support in case of exigency clearly satisfies equal protection. Since the agreement herein waived basic support, it is void ab initio. Respondent husband lacked standing to challenge the constitutionality of the portion of the statute applicable to nonbasic support and the court below erred in reaching that question. (Kayser v Kayser, 71 AD2d 1015; Bruno v Bruno, 51 AD2d 862, 39 NY2d 706; Christian v Christian, 42 NY2d 63; Ferro v Bologna, 31 NY2d 30; Lacks v Lacks, 12 NY2d 268; United States v Herrera, 584 F2d 1137; Long v Somervell, 175 Misc 119, 261 App Div 946.) II.. Section 5-311 of the General Obligations Law does not violate equal protection by providing greater safeguards for wives than husbands against coerced waiver of nonbasic support. (Parham v Hughes, 441 US 347; Craig v Boren, 429 US 190; Kay v Kay, 37 NY2d 632; Hessen v Hessen, 33 NY2d 406; Geduldig v Aiello, 417 US 484; Jefferson v Hackney, 406 US 535; Williamson v Lee Opt. Co., 348 US 483; Usery v Turner Elkhorn Min. Co., 428 US 1; Dandridge v Williams, 397 US 471.) III. Section 5-311 of the General Obligations Law can be read to protect the support rights of husbands and wives equally from waiver and thus held constitutional. (Matter of Goldberg v Aylward, 72 AD2d 510; Childs v Childs, 69 AD2d 406; Navagata v Navagata, 99 Misc 2d 90; Matter of Roth v Roth, 98 Misc 2d 618; Kyff v Kyff, 286 NY 71; Goldman v Goldman, 282 NY 296; Tirrell v Tirrell, 232 NY 224; Nettleton Co. v Diamond, 27 NY2d 182, app dsmd sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; Matter of Van Berkel v Power, 16 NY2d 37.) IV. Even if section 5-311 of the General Obligations Law were partially invalid, the law as it stood at the time the agreement was negotiated is applicable. The court below erred in refusing to apply it to a pre-Orr agreement . (Janusz v Janusz, 69 AD2d 1004; Kroul v Kroul,
      99 Misc 2d 1031; Rubin v Rubin, 72 AD2d 810; Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Long Is. Light. Co., 31 NY2d 25; Frey v Bethlehem Steel Corp., 30 NY2d 764; Codling v Paglia, 32 NY2d 330; Chevron Oil Co. v Huson, 404 US 97.)
   OPINION OF THE COURT

Jasen, J.

In this action seeking a declaration that a Dominican Republic divorce decree and the separation agreement incorporated therein are void, we are called upon to decide the extent to which recognition must be accorded a foreign divorce decree in an action seeking to set aside a provision of a separation agreement incorporated into such decree.

The Greschlers were married on June 26, 1955. On August 22, 1975, the parties entered into a séparation agreement. Paragraph 5 of that agreement provided that plaintiff, Helen Greschler, waived all claims against her husband, the defendant, for alimony. The agreement also provided that, in the event either party obtained a divorce, the separation agreement would be "incorporated” into the decree but that it would otherwise survive the divorce and remain fully binding on the parties.

On October 6, 1975, plaintiff signed a power of attorney authorizing her appearance in a divorce action in the Dominican Republic. This power of attorney also provided that the separation agreement be submitted to the Dominican Republic court for approval and that the court "ratify and affirm” the agreement by incorporating it into the divorce decree and by directing the parties to comply with its terms.

On October 24, 1975, the defendant appeared personally before the Court of First Instance of the Judicial District of Santo Domingo, Dominican Republic, and obtained a divorce from the plaintiff on the ground of "incompatibility of temperaments”. The decree recited that plaintiff appeared in the action by her attorney-in-fact and that the marriage between the parties was dissolved. In addition, the decree incorporated the prior separation agreement and ordered the parties to "comply with each and every provision of the said agreement.”

By a complaint dated August 8, 1978, plaintiff commenced an action in Supreme Court, Kings County, seeking to set aside the 1975 separation agreement and requesting that alimony payments be fixed by the court. The complaint alleged that the separation agreement was void as against public policy because, it contained a provision in which plaintiff waived her right to support. (See former General Obligations Law, § 5-311.) As a second cause of action, plaintiff alleged that the separation agreement was void because it was procured by the defendant’s fraudulent misrepresentations.

Recognizing the conflict of laws problem, Special Term determined that since the separation agreement had been incorporated into the consented-to Dominican Republic divorce decree, plaintiff could not collaterally attack the validity of the separation agreement without first challenging the divorce decree on jurisdictional grounds. Therefore, the court dismissed the complaint with leave to replead.

Thereafter, plaintiff served an amended complaint in which she sought to set aside the Dominican Republic divorce decree and the separation agreement which it incorporated. As a first cause of action, plaintiff alleged that the power of attorney authorizing her appearance in the divorce action in the Dominican Republic and the separation agreement were without effect because both were procured by fraud. In support of this claim, plaintiff’s complaint stated that the defendant represented his earnings and assets to be "a certain amount” when in fact they were "materially in excess of that so represented.” As a result of this fraud, plaintiff contended that the Dominican Republic court was without jurisdiction to grant the divorce and that the divorce decree and separation agreement incorporated therein were void. As a second cause of action, plaintiff, again relying on former section 5-311 of the General Obligations Law, alleged that her waiver of support in paragraph 5 of the separation agreement was void and unenforceable because it violated the public policy of New York. Accordingly, plaintiff requested a judgment declaring that the Dominican Republic divorce decree and the separation agreement were void, that the parties were still married, and ordering the defendant to pay alimony to plaintiff.

Pursuant to CPLR 3211, defendant moved to dismiss the complaint for failure to state a cause of action. Special Term denied his motion. On appeal, a unanimous Appellate Division reversed, granted defendant’s motion and dismissed the complaint. The Appellate Division first determined that plaintiff’s cause of. action in fraud was not pleaded with sufficient detail to withstand defendant’s motion to dismiss. The Appellate Division then went on to dismiss the second cause of action by holding section 5-311 of the General Obligations Law unconstitutional on the ground that it contained an impermissible gender-based distinction. (See Orr v Orr, 440 US 268.)

On this appeal, plaintiff seeks a reversal of the order of the Appellate Division contending that the court below erred in dismissing her fraud cause of action. In addition, plaintiff argues that former section 5-311 of the General Obligations Law was not unconstitutional and, therefore, her waiver of support was void and unenforceable.

At the outset, we note our agreement with the Appellate Division that plaintiff’s cause of action in fraud was not pleaded with sufficient particularity and was properly dismissed. Plaintiff’s conclusory allegations as to the defendant’s misrepresentations concerning his financial status fail to meet the statutory requirement that a cause of action based upon fraud be pleaded "in detail”. (CPLR 3016, subd [b]; see CPLR 3013.) Moreover, when confronted with defendant’s motion to dismiss, plaintiff failed to come forth with any facts or circumstances constituting the claimed fraud as required by law. (Cf. Jered Constr. Corp. v New York City Tr. Auth., 22 NY2d 187, 194.)

However, the Appellate Division erred when it went on to address the merits of plaintiff’s second cause of action after having dismissed the fraud claim. Under well-established principles of conflict of laws, plaintiff, by failing to successfully challenge the jurisdiction of the Dominican Republic court on the ground that her power of attorney was obtained by fraud, was precluded from assailing the validity of the separation agreement incorporated into the foreign decree on the ground that it contained an impermissible waiver of her right to support under New York law. Since this latter cause of action, attacking solely the validity of the separation agreement, was rendered moot by the dismissal of the threshold claim that jurisdiction over the parties in the Dominican Republic was obtained by fraud, we do not pass upon the question of the constitutionality of former section 5-311 of the General Obligations Law.

Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States. (See, e.g., Schoenbrod v Siegler, 20 NY2d 403, 408; see, generally, Restatement, Conflict of Laws 2d, § 98; Leflar, American Conflicts Law [3d ed], § 84, pp 169-171.) Absent some showing of fraud in the procurement of the foreign country judgment (Feinberg v Feinberg, 40 NY2d 124) or that recognition of the judgment , would do violence to some strong public policy of this State (see, e.g., Mertz v Mertz, 271 NY 466), a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of this State.

In extending comity to uphold the validity of foreign country divorce decrees (Rosenstiel v Rosenstiel, 16 NY2d 64), it is logical that we would also recognize all the provisions of such decrees, including any separation agreements which may have been incorporated therein. (See Lappert v Lappert, 20 NY2d 364.) In fact, we have statéd that a foreign divorce decree rendered by a court with in personam jurisdiction over both spouses has an "overriding effect” on any subsequent action seeking alimony such that "no right of support can survive except as awarded by the final decree of divorce or by an authorized amendment to such decree.” (Lynn v Lynn, 302 NY 193, 203-204; Lappert v Lappert, 20 NY2d 364, 367, supra.)

It follows then that if plaintiff’s power of attorney is no longer challenged on the ground of fraud, her authorized appearance in the divorce action gave the Dominican Republic court jurisdiction not only to grant the divorce, but also to determine her right to support. Inasmuch as the Greschlers’ separation agreement was incorporated by the Dominican Republic court in its final decree of divorce, that agreement may not now be modified by an action brought in this State unless modification is required by reason of some compelling public policy. (See Rehill v Rehill, 306 NY 126, 135.)

Thus, there remains the question whether it is offensive to the public policy of this State to give full recognition to the Dominican Republic divorce decree simply because it incorporates a separation agreement which provides for plaintiff’s waiver of her right to support in contravention of former section 5-311 of the General Obligations Law.

While it is generally the rule in this State that where the basic public policy of the forum would be offended a court can refuse to recognize the validity of a foreign judgment (cf. Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Mertz v Mertz, 271 NY 466, supra), the public policy exception to the doctrine of comity is usually invoked only in the rare instance "where the original claim is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.” (Restatement, Conflict of Laws 2d, § 117, Comment c; Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, 227-228; see, also, Leflar, American Conflicts Law, § 48, pp 90-92.) Thus, for this court to refuse full recognition to a lawful foreign judgment, it must be demonstrated that the decree violates "some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” (Loucks v Standard Oil Co., 224 NY 99, 111.) Public policy should not be "determinable by mere reference to the laws of the forum alone” or "in the decisions of our courts in the Victorian era”. (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 14.) Rather, public policy should be predicated upon “the prevailing attitudes of the community”. (Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 580, supra.) It follows that foreign judgments generally should be upheld unless enforcement would result in the recognition of a “transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense.” (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 13, supra [emphasis supplied].)

In applying these rules and in ascertaining the public policy of New York as it concerns plaintiff’s ability to waive her right to support, we must look to the currently prevailing attitudes of the people of this State. This is best reflected in the recent amendment to the General Obligations Law. As amended, section 5-311 of the General Obligations Law now provides that either spouse may waive his or her right to support as long as he or she is not likely to become a public charge. (L 1980, ch 281, § 19.) Thus, by abrogating the gender-based distinction of former section 5-311 of the General Obligations Law, the Legislature has indicated that the present public policy of this State is that a wife validly can waive her right to support. Under these circumstances, plaintiff’s waiver of support as incorporated in the Dominican Republic divorce decree does no violence to the preváiling policy of this State.

In sum, without first overturning the validity of the Dominican Republic divorce decree, plaintiff may not collaterally attack the divorce decree by challenging the provisions of the separation agreement incorporated therein. Since the claim of fraud in the procurement of her power of attorney has been properly dismissed, plaintiff’s allegation that paragraph 5 of the separation agreement violated former section 5-311 of the General Obligations Law was rendered academic and should not be considered by this court.

Accordingly, the order of the Appellate Division should be modified, with costs to defendant, by granting judgment declaring (1) that plaintiff is not entitled to a declaration that the Dominican Republic divorce decree is void because the allegations set forth in the first cause of action fail to satisfy CPLR 3016 (subd [b]); and (2) that, inasmuch as the Dominican Republic divorce decree is outstanding, plaintiff is not entitled to challenge the validity of the separation agreement incorporated therein. (See Lanza v Wagner, 11 NY2d 317, 334; cf. Siegel, New York Practice, § 440.) As so modified, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer taking no part.

Order modified, with costs to defendant, in accordance with the opinion herein and, as so modified, affirmed.

      . Prior to its recent amendment (see L 1980, ch 281, § 19) section 5-311 of the General Obligations Law provided in pertinent part:
      "Certain agreements between husband and wife void.
      "A husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife or to relieve the wife of liability to support her husband provided that she is possessed of sufficient means and he is incapable of supporting himself and is or is likely to become a public charge.”

      . The Attorney-General, who intervened in the action by permission of the Appellate Division, joins plaintiff on this appeal seeking a reversal of so much of the order of the Appellate Division as held former section 5-311 of the General Obligations Law unconstitutional.

      . We are not here concerned with a situation in which the law of the jurisdiction rendering the judgment would allow an attack on its own judgment on the same grounds alleged in the New York action. (See Feinberg v Feinberg, 40 NY2d 124, supra.) If such were the case, we also would allow collateral attack as "there is no reason to give more conclusive effect to a foreign judgment than it would be accorded by the courts of the jurisdiction which rendered it.” (Schoenbrod v Siegler, 20 NY2d 403, 409, supra.)

      . As amended by section 19 of chapter 281 of the Laws of 1980, section 5-311 of the Generad Obligations Law now provides in pertinent part:
      "Certain agreements between husband and wife void.
      "Except as provided in section two hundred thirty-six of the domestic relations law, a husband amd wife camnot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.”


source: Caselaw Access Project

author: Jasen, J. Jones, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v James R. Kurtz, Appellant.
    Argued October 17, 1980;
    decided November 25, 1980

      POINTS OF COUNSEL

      William J. McClusky for appellant.
    I. The People did not present an adequate opening. (People v Aubrey, 25 AD2d 604; People v Mantesta, 27 AD2d 748; People v Levine, 297 NY 144; People v Wade, 35 AD2d 401.) II. Reprosecution is barred by double jeopardy. (People v Key, 45 NY2d 111; United States v Martin Linen Supply Co., 430 US 564.)

      Lee Clary, District Attorney (Donald R. Gerace of counsel), for respondent.
    Reprosecution of defendant is not barred by double jeopardy. (United States v Scott, 437 US 82; People v Key, 45 NY2d 111; People v Brown, 40 NY2d 381; Green v United States, 355 US 184; Lee v United States, 432 US 23; People v Coppa, 57 AD2d 189, 45 NY2d 244.)
   OPINION OF THE COURT

Jasen, J.

This appeal presents the issue whether constitutional or statutory double jeopardy provisions prohibit retrial after the trial court dismisses the accusatory instrument on the defendant’s own motion for the reason that the prosecutor failed to make an adequate opening statement as required by CPL 260.30.

On March 2, 1979, the defendant was arrested and charged in a simplified traffic information with speeding and driving while intoxicated. (Vehicle and Traffic Law, §§ 1180, 1192.) On June 20, 1979, trial was held in City Court, City of Water-town. After the jury was selected and sworn, the prosecutor delivered his opening statement. Immediately thereafter, defense counsel moved to dismiss the information on the ground that the People’s opening statement was inadequate as a matter of law. After arguments were heard in chambers, the trial court reserved decision on the motion. Over the objection of the prosecutor, who offered to amplify any inadequacies in his opening, the trial continued at the behest of defense counsel. After one witness had testified, the trial was recessed for the afternoon. The following day, the prosecutor moved for permission to supplement his opening statement to the jury. Defense counsel objected to this motion on procedural grounds. Shortly thereafter, the trial court denied the prosecutor’s motion to supplement his opening and then dismissed the information on the ground that the prosecutor’s opening statement to the jury was insufficient as a matter of law.

On appeal, County Court, Jefferson County, reversed and remanded the case to City Court for a new trial. While County Court agreed with the trial court that the prosecutor’s opening statement was inadequate in that it failed to state any of the facts constituting the offenses which the prosecutor intended to prove, County Court disapproved of the procedure utilized by the trial court subsequent to the defendant’s motion to dismiss. The court stated that the trial court should have determined the motion before allowing the trial to continue and, upon deciding the prosecutor’s opening statement was inadequate, it should have permitted the prosecutor to supplement his opening to the jury. Finally, County Court rejected defendant’s contention that a reversal and new trial was barred by the doctrine of double jeopardy. The court held that retrial was not precluded as "it was the defendant’s motion that concluded the trial proceedings prior to an evidentiary determination on the merits.” There should be an affirmance.

At the outset, we note our agreement with the determination reached by the courts below that the prosecutor’s opening statement was inadequate. CPL 260.30, which sets forth the order of events in a criminal jury trial, provides that the "people must deliver an opening address to the jury.” (CPL 260.30, subd 3 [emphasis supplied].) This opening statement should be a capsulized version "of the evidence that [the prosecutor] expects to present, and the claim that he will make with reference thereto, to the end that the jury, upon listening to the evidence, may better understand and appreciate its connection and bearing upon the case.” (People v Benham, 160 NY 402, 434; see, also, People v Wade, 35 AD2d 401, 403; People v Oakley, 10 AD2d 457, 459, revd on other grounds 9 NY2d 656; see, generally, 3 Wharton’s Criminal Procedure, § 493; 23A CJS, Criminal Law, § 1085.) Moreover, we have held that the prosecutor’s opening statement can neither be waived (People v Levine, 297 NY 144, 147; People v McLaughlin, 291 NY 480, 483; but cf. People v Rivara, 33 AD2d 567), nor does the reading of a short indictment constitute an adequate opening to the jury (People v Levine, supra, at pp 146-147).

Although the Criminal Procedure Law does not specify the requisite contents of the prosecutor’s opening statement, at a minimum the prosecutor generally should set forth the nature of the charge against the accused and state briefly the facts he expects to prove, along with the evidence he plans to introduce in support of the same. (See People v Benham, 160 NY 402, 434, supra; People v Wade, 35 AD2d 401, 403, supra.) In this case, the opening statement merely consisted of a brief summary of the evidence to be introduced and a listing of the names of the witnesses who were to testify. The prosecutor failed in all respects to delineate the particular offenses with which the defendant was charged and how these charges were to be proven. Such an incomplete recitation simply fails to satisfy the statutory requirement that the prosecutor make an opening statement to the jury. (CPL 260.30, subd 3.) That is not to say that the prosecutor must reveal all the evidence he intends to offer during the trial, but certainly the jury should hear sufficient evidence to intelligently understand the nature of the case they have been chosen to decide.

We also are in agreement with County Court’s conclusion that the trial court erred in allowing the trial to proceed without first disposing of the defendant’s motion to dismiss. The trial court should have ruled on the motion and given the prosecutor the opportunity to correct the deficiency before proceeding with trial. In failing to do so, the trial court abused its discretion.

Although heretofore we have not passed directly upon the propriety of a dismissal following an incomplete opening by the prosecutor, we have stated that "absent bad faith or undue prejudice, a trial will not be undone” simply because there was some defect in the prosecutor’s opening to the jury. (People v De Tore, 34 NY2d 199, 207, cert den 419 US 1025.) Moreover, although a trial court can no doubt direct acquittal based on the prosecutor’s opening statement, this should be done only upon an affirmative showing that the prosecutor is not entitled to a conviction because the charge cannot be sustained under any view of the evidence and then only after the prosecutor has been given an opportunity to correct the deficiency in his opening. (See People v Coppa, 57 AD2d 189, 192, revd on other grounds 45 NY2d 244; People v Handford, 40 AD2d 529.) Indeed, the overwhelming majority of courts faced with such motions to dismiss have adopted the view that they should be denied unless it clearly appears -from the opening statement that the defendant cannot be lawfully convicted and then only after the prosecutor has been made aware of the difficulty and fails or is otherwise unable to correct it. (See, e.g., Hanley v United States, 416 F2d 1160, cert den 397 US 910; United States v Dietrich, 126 F 676; Chatman v State, 164 Ind App 97; State v Gray, 423 SW2d 776 [Mo]; see, generally, Power of Trial Court to Dismiss Prosecution or Direct Acquittal on Basis of Prosecutor’s Opening Statement, Ann., 75 ALR3d 649.)

In this case, the prosecutor’s opening statement, although incomplete, did not contain any information that would indicate that the charges against the defendant could not be sustained, such as facts constituting a complete defense. (United States v Dietrich, 126 F 676, supra.) Rather, the only deficiency in the opening statement was that it did not adequately amplify the charges against defendant and the facts to be proven in support thereof. Moreover, before dismissing the information, the Trial Judge not only failed to inform the prosecutor of the nature of the defect in his opening, but denied him the opportunity to correct this deficiency before permitting the trial to go forward. As County Court concluded, such action was an abuse of discretion, contrary to law.

The better practice concerning such motions directed at the adequacy of the prosecutor’s opening statement would be that a motion should be made immediately after the prosecutor has completed his opening to the jury. The trial court should then inform the prosecutor of the nature of the defect, if any, and afford him an opportunity to rectify it. If the prosecutor is unable to do so, then the motion to dismiss the accusatory instrument must be granted. Under no circumstances should the court allow the trial to proceed without first ruling on the motion. As mentioned earlier, it was the belated disposition of the motion which has created the difficulty in this case, a problem which should be avoided in all other cases. However, our analysis does not end here for now we must determine whether defendant’s retrial is prohibited by the doctrine of double jeopardy.

In this State, a defendant’s right not to be twice put in jeopardy for the same crime is protected by the double jeopardy clauses of the Federal and State Constitutions as well as by statutory double jeopardy provisions. (US Const, 5th Amdt; NY Const, art I, § 6; CPL 40.20.) Specifically, as the doctrine of double jeopardy has developed in New York in relation to midtrial dismissals, “reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence [even where] dismissal occurs after jeopardy has attached.” (People v Key, 45 NY2d 111, 117.) Indeed, in its most recent excursion into the double jeopardy area, the Supreme Court has implicitly approved of this approach. (See Burks v United States, 437 US 1; Greene v Massey, 437 US 19; Sanabria v United States, 437 US 54; United States v Scott, 437 US 82; see, also, Swisher v Brady, 438 US 204.) As presently constituted under this recent line of cases, the doctrine distinguishes between trial orders terminating the trial in the defendant’s favor prior to any determination of guilt or innocence and those orders which terminate the trial based on evidentiary insufficiency. (Burks v United States, supra, at pp 14-18; United States v Scott, supra, at pp 94-99.) Because a dismissal based on insufficient evidence is tantamount to an acquittal, reprosecution is precluded in the latter category of cases. (See, e.g., People v Mayo, 48 NY2d 245.) Retrial of cases falling within the former category of dismissals, however, is permissible because “the defendant, by deliberately choosing to seek termination of the proceeding against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause”. (United States v Scott, supra, at pp 98-99; cf. People v Bartley, 47 NY2d 965.)

In the case before us, the trial court dismissed the action on defendant’s motion solely because of the insufficiency of the prosecutor’s opening statement. As mentioned earlier, this dismissal was not premised on any evidentiary determination that the People were not entitled to a conviction or that the prosecutor had acted in bad faith by deliberately delivering an incomplete opening in order to terminate the trial over defendant’s objection. (Cf. Illinois v Somerville, 410 US 458; Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1.) Rather, dismissal here was the result of the trial court’s misconception of the requirements of CPL 260.30 (subd 3) and occurred without any evaluation on the trial court’s part as to the factual elements of the offenses with which defendant was charged. Inasmuch as this dismissal, erroneous as it was, in no sense resembles an acquittal of the defendant and indeed appears functionally indistinguishable from the declaration of a mistrial (see Lee v United States, 432 US 23, 31), retrial of defendant is prohibited neither by the double jeopardy clauses of the State and Federal Constitutions nor by the statutory double jeopardy provisions.

This is not to say that retrial will be permitted in every case whenever the trial terminates on the defendant’s motion based on the inadequacy of the prosecutor’s opening statement. Where, for instance, the prosecutor in his opening statement clearly and deliberately admits a fact which defeats all possibility for conviction and the case is then dismissed, retrial on the same charge would be forbidden because there has been a determination involving the factual innocence of the accused. Since here there was no such determination in the prior trial, the doctrine of double jeopardy does not prohibit the People from again trying defendant for the offenses with which he is charged.

Accordingly, the order of the County Court, Jefferson County, should be affirmed.

Jones, J.

(dissenting). In my view the constitutional mandate that "No person shall be * * * subject for the same offense to be twice put in jeopardy of life or limb” requires a reversal of the order of County Court in this case and the dismissal of the accusatory instrument.

Defendant moved to dismiss on the People’s opening, after jeopardy had attached (CPL 40.30, subd 1, par [b]; Crist v Bretz, 437 US 28). The motion was granted on the ground that "the prosecutor’s statement was insufficient in that it failed to state any facts constituting the crime of driving while intoxicated which the prosecutor intended to prove”, i.e., specifically, that there was no statement with respect to proof of intoxication. Conceptually this must be likened to the granting of a motion, on the defendant’s application made at the close of the People’s case, for a trial order of dismissal on the ground that the trial evidence is not legally sufficient to establish the offense charged (CPL 290.10, subd 1). The dismissal, terminating the trial proceedings in defendant’s favor, was "an adjudication on the facts going to guilt or innocence” (People v Key, 45 NY2d 111, 117). It was expressly predicated on a determination with respect to the sufficiency of the People’s proof; it was not a termination of the trial on grounds unrelated to factual guilt or innocence. While the majority ascribes to CPL 260.30 the effect of requiring the prosecution to "adequately amplify the charges against defendant and the facts to be proven in support thereof’, it refuses to regard the trial court’s dismissal on the ground that the prosecution’s statement was defective as to facts to be proved as an evaluation by the trial court "as to the factual elements of the offenses with which defendant was charged” — which appears to me to be a patent inconsistency.

That the dismissal was thought by the trial court to be on the factual merit of the People’s case is apparent. In granting defendant’s motion to dismiss the trial court also considered the possibility of reprosecution of the charge and concluded, "I therefore find that this is a final determination, outside of any rights of appeal, that the People have, and that a resubmission is precluded by Section 210.20(4)”. Thus, to the extent that the characterization of the dismissal by the trial court may be relevant, it is clear in this instance that the dismissal was not "in contemplation of’ a second prosecution (People v Key, 45 NY2d 111, 119, supra).

Accordingly, retrial is now barred by the double jeopardy clause (see United States v Scott, 437 US 82, 96-101; cf. Finch v United States, 433 US 676).

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

Order affirmed.

      . Unlike the dissent, we place no reliance on the trial court’s characterization of the dismissal herein. Whatever the trial court may have envisioned with respect to the possibility of reprosecution is irrelevant for as our decision in People v Key (45 NY2d 111, 119, supra) clearly states: "[A] Trial Judge’s interpretations of the double jeopardy clause should not determine whether appeal and retrial are permissible. It is the nature of the order, and not the Trial Judge’s views on double jeopardy, that should govern.”

      . Such a dismissal would indeed be rare. As one commentary has pointed out, "if the prosecutor, defense counsel, and the court discharge their pretrial discovery responsibilities, it would appear next to impossible for a case to come to trial in which the prosecutor might be forced to admit, in his opening statement, the truth of a fact which constitutes a complete defense.” (Power of Trial Court to Dismiss Prosecution or Direct Acquittal on Basis of Prosecutor’s Opening Statement, Ann., 75 ALR3d 649, 656.)

       That CPL 210.20 applies to indictments rather than to felony complaints does not detract from the clarity of the trial court’s intention in this case.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Graeme Zimmer, Appellant.
    Argued September 9, 1980;
    decided November 25,1980

      POINTS OF COUNSEL

      Richard T. Aulisi for appellant.
    I. The District Attorney when presenting the instant matter to the Grand Jury and when prosecuting said indictment was disqualified on the basis of his personal interest in Zimmer, Inc., and as attorney therefor, thereby rendering the indictment a nullity and necessitating dismissal of all charges. (People v Krstovich, 72 Misc 2d 90; People v Lombard, 4 AD2d 666; People v Fielding, 158 NY 542; Matter of Johnson v Boldman, 24 Misc 2d 592; Matter of Hassan v Magistrates’ Ct. of City of N. Y., 20 Misc 2d 509, 10 AD2d 908, 364 US 844; Matter of Coleman v Lee, 1 Misc 2d 685; Matter of Koch, 276 App Div 36; People v Rodgers, 205 Misc 1106; Matter of McDonald v Goldstein, 191 Misc 863, 273 App Div 649; McCormick v Walker, 158 App Div 54.) II. Defendant’s convictions for grand larceny in the second degree, forgery in the first degree and issuing false financial statements (three .counts) should be reversed in that the prosecution failed to prove a prima facie case. (People v Levan, 295 NY 26; People v Will, 289 NY 413; People v Powell, 22 AD2d 959; People v Fucci, 57 AD2d 559; People v Duncan, 18 AD2d 771.) III. The prosecutor’s irrelevant, prejudicial and inflammatory closing remarks were a denial of due process and deprived defendant of the fair trial to which he is entitled. (People v Banks, 40 AD2d 833; People v Ashwal, 39 NY2d 105; People v Hickman, 34 AD2d 831.) IV. The trial court committed several errors in its charge to the jury, such errors having the effect of denying defendant’s due process right to a fair trial and thereby constituting reversible error. (People v Dreares, 15 AD2d 204, 11 NY2d 906; People v Newman, 46 NY2d 126; People v Cleague, 22 NY2d 363; People v La Belle, 18 NY2d 405.)

      William H. Intemann, Jr., District Attorney, for respondent.
    I. The trial court did not err in denying defendant’s motion to dismiss the indictment brought on the ground that the District Attorney was allegedly disqualified from prosecuting the instant charges, nor should defendant’s convictions be reversed by this court since there is no evidence that defendant was actually prejudiced by the District Attorney continuing with the prosecution. (People v Pobliner, 32 NY2d 356, 416 US 905; Schrader v Riddle, 401 F Supp 1345; Read v Sacco, 49 AD2d 471.) II. Did the People make out a prima facie case against defendant. III. Was the prosecutor’s summation beyond the bounds of fair comment so as to deny defendant due process of law and a fair trial. IV. Was the trial court’s charge to the jury proper. (People v Dreares, 15 AD2d 204, 11 NY2d 906; People v Newman, 46 NY2d 126.)
   OPINION OF THE COURT

Fuchsberg, J.

On this appeal from an order upholding a conviction in a criminal case, we are called upon to decide, inter alia, whether the trial court should have denied a motion to dismiss the indictment when the District Attorney, at the time he presented the case to the Grand Jury, was also counsel to and a stockholder of the corporation in the course of whose management the defendant is alleged to have committed the "white collar” crimes with which he was charged. We believe the motion should have been granted.

The facts that govern our conclusion are neither complicated nor disputed. Defendant, Graeme Zimmer, organized and managed a business in rural Hamilton County which, while corporate in form, essentially was run as a one-man enterprise. The corporation bore his surname, being ¡entitled Zimmer, Inc. For a long time, by what appears to have been at least silent acquiescence of the other investors, no reins were placed on his managerial conduct, or, if they were, they were not enforced. During his regime, no stockholders’ meetings were ever held and when, midst a corporate financial crisis in the spring of 1977, he elected to surrender his corporate holdings and resign, it had been nearly 10 years since the directors had met. Soon after his departure, dissatisfied stockholders of this now teetering business took control of its affairs. By July of that year, among other steps they had taken was to retain the incumbent District Attorney of Hamilton County as the corporation’s counsel. The District Attorney was also a stockholder of record.

Three months later, in October, 1977, the District Attorney, who at all times relevant to this prosecution continued to be corporate counsel and stockholder, personally procured a multicount indictment against the defendant and, in the following year, tried the case against him. All the counts in the indictment related to the defendant’s dealings with or for the Zimmer corporation or its stockholders.

As his primary point, the defendant asserts that the District Attorney’s involvement with the corporation disqualified him from representing the People at all stages of this matter and that, therefore, the denial of motions to dismiss the indictment, made both prior to and at the time of trial, was grievous error. Resisting the thrust of this contention, the position of the People in effect is that, absent demonstrative instances of "overzealousness, or overreaching attributable to the prosecutor’s role”, of which they insist there are none here, a "facial appearance of professional impropriety” would not constitute an impermissible imposition on defendant’s entitlement to fundamental fairness.

Central to the issue so sharply drawn is the pivotal point at which a public prosecutor stands in the criminal justice system. Unlike other participants in the traditional common-law adversarial process, whose more singular function is to protect and advance the rights of one side, a District Attorney carries an additional and more sensitive burden. It is not enough for him to be intent on the prosecution of his case. Granted that his paramount obligation is to the public, he must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, his mission is not so much to convict as it is to achieve a just result (Berger v United States, 295 US 78, 88; People v Petrucelli, 44 AD2d 58, 59; Code of Professional Responsibility, EC 7-15).

These are more than noble sentiments. In large part to enable a public prosecutor to carry out his heavy responsibility in a fair and impartial manner, we and, increasingly, other nations (see Goldstein & Marcus, Myth of Judicial Supervision in Three "Inquisitorial” Systems: France, Italy and Germany, 87 Yale LJ 240), have come to grant the office wide latitude in the allocation of its resources. Not the least feature of this flexibility is a discretion to investigate, initiate, prosecute and discontinue broad enough, conceptually and practically, to merit the observation that, overall, more control over individuals’ liberty and reputation may thus be vested than in perhaps any other public official (Ganger v Peyton, 379 F2d 709, 712; Note, Prosecutor’s Discretion, 103 U of Pa L Rev 1057; Freedman, Professional Responsibility of the Prosecuting Attorney, 55 Georgetown L Rev 1030, 1037).

For example, almost invariably it is the prosecutor who decides whether a case is to be pressed or dropped and what the nature of the specific offense ór offenses. to be lodged against a defendant is to be. As a vital partner in the plea bargaining process or via his sentencing input (e.g., Penal Law, § 65.00), he heavily influences the sanction meted out. (See, generally, Report of the President’s Comm on Law Enforcement and the Administration of Justice, The Challenge of Crime In a Free Society, 11, 12, 134-135; ABA Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function [Approved Draft, 1971], p 7.) Of especial pertinence to the case before us now is "the crucial nature of the prosecutor’s role vis-á-vis the the Grand Jury” (People v Di Falco, 44 NY2d 482, 485).

It would be simplistic therefore to think of the impact of a prosecutor’s conflict of interest merely in terms of explicit instances of abuse. Even our thumbnail description of prosecutorial power is enough to indicate that resulting prejudice can at least as easily flow from an act of omission as from one of commission, from discretion withheld as from discretion exercised. In this context, whether abuse is express or implied may be difficult to determine. Suffice it to say that any presumption of impartiality tends to be undermined when there is a clear conflict of interest. Indeed, the judgmental nature of much of a District Attorney’s conduct will put it beyond effective appellate review. And, no matter how firmly and conscientiously a District Attorney may steel himself against the intrusion of a competing and disqualifying interest, he never can be certain that he has succeeded in isolating himself from the inroads on his subconscious.

Thus, the practical impossibility of establishing that the conflict has worked to defendant’s disadvantage dictates the adoption of standards under which a reasonable potential for prejudice will suffice (Commonwealth v Dunlap, 233 Pa Super Ct 38, 43 [Hoffman, J., dissenting]; cf. People v Jones, 47 NY2d 409, 416-417). Nor is the gravity of that potential lessened because it may cut either or both of two ways, against a defendant or against the People,, toward each of whom the discharge of the District Attorney’s duties of course should be uninhibited by subjective influences.

The District Attorney in this case ran afoul of these standards. The conflict was plain. The corporation and its stockholders in effect were the complainants. The Hamilton Grand Jury investigation that culminated in the defendant’s indictment was precipitated, to quote the People’s brief, by “transactions which were revealed by the records of the corporation and stockholders”. Aside from his financial interest as a stockholder, as counsel to the corporation the District Attorney was its spokesman in legal matters, of which this was one. Assuming he intended to be as fair and objective as fair could be, in presenting this evidence where did his role as partisan corporate attorney end and where did that of nonpartisan District Attorney begin? At what point was he serving which of his two masters? To put the questions is to state the problem, a problem instinct with due process implications.

Moreover, even if the actuality or potentiality of prejudice were absent, what of the appearance of things (see Code of Professional Responsibility, Canon 9)? No matter the good faith and complete integrity of the District Attorney, under these circumstances what impression could the defendant have had of the fairness of a prosecution instituted by one with the personal and financial attachments of this prosecutor? Would it have been unreasonable for the defendant — or others — to doubt that the public officer, whose burden it was to screen the complaint for frivolousness and, if necessary, guide its destiny before the Grand Jury, would do so disinterestedly?

It was important that these responsibilities, carried out in the name of the State and under the color of the law, be conducted in a manner that fostered rather than discouraged public confidence in our government and the system of law to which it is dedicated. This concern, that those occupying prosecutorial office be jealous of the evidences as well as the substance of integrity, was not to be discounted. In particular, the District Attorney, as guardian of this public trust, should have abstained from an identification, in appearance as well as in fact, with more than one side of the controversy (People v Superior Ct. of Contra Costa County, 19 Cal 3d 255; State v Rosengard, 47 NJ 180; ABA Project on Standards for Criminal Justice, The Prosecution and the Defense Function, Part I [1.2] [(a)], [(b)]).

For all these reasons, it would have been better had the District Attorney recused himself. He having failed to do so, it was error to deny the motion to dismiss the indictment he obtained. Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed, without prejudice to an application for resubmission of the matter to the Grand Jury consistent with this opinion.

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

Order reversed, etc.

      . The affirmance, by the Appellate Division, Third Department, is without opinion.

      . The District Attorney of a county having a population as small as that of Hamilton County, with certain exceptions not relevant here, may engage in the private practice of law (see County Law, § 700, subd 8).

      . The District Attorney later was to advise the trial court that, though he was a stockholder of record, he regarded himself more as a creditor than as a stockholder. On our analysis, nothing turns on this distinction.

      . The President’s Commission on Law Enforcement and the Administration of Justice reported that the charge is reduced in roughly two thirds of cases in many cities, usually by the District Attorney, and that the cases of roughly half of those arrested are dismissed early on (see Ganger v Peyton, 379 F2d 709, 712, supra).

      . In light of this disposition, we have no occasion to reach the other issues raised by the defendant.


author:
      Per Curiam.
     Fuchsberg, J.

text:
    In the Matter of Norman H. Shilling, as a Judge of the Civil Court of the City of New York, Kings County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued October 8,1980;
    decided November 25, 1980

      POINTS OF COUNSEL

      Stanley D. Steinhaus for petitioner.
    I. Testimony herein is not proper evidence but supposition and conjecture. II. The accusations of witnesses were used as basis for fact. III. Charge that petitioner attempted to influence Judge Nardelli cannot be sustained by evidence. IV. Action of petitioner in requesting that corporate defendant be substituted for an individual was a proper and legitimate request. V. The theory in his report states character witnesses cannot serve to contradict objective proof. This is not law, character witnesses in and of themselves are sufficient to acquit defendant in a criminal case. VI. The conduct of petitioner was not improper and did not involve the prestige of his office. (Matter of Vaccaro, 42 NY2d [a] ; Matter of Filipowicz, 54 AD2d 348; Matter of Schwerzman, 44 NY2d [a]; Matter of Schamel, 46 AD2d 236; Matter of Sarisohn, 27 AD2d 466; Matter of Pfingst, 33 NY2d [a] ; Matter of Jones, 47 NY2d [mmm] ; Matter of Waltemade, 37 NY2d [a] ; Matter of Mertens, 56 AD2d 456; Matter of Richter, 42 NY2d [aa].) VII. The real issue here is should a Judge be disciplined for actions which are not improper when done by a private individual.

      Gerald Stern and Jean Savanyu for respondent.
    Petitioner’s conduct violated established ethical standards, is properly subject to discipline and should be condemned. (Matter of Feinberg, 39 NY2d [a]; Matter of Kuehnel, 49 NY2d 465.)
   OPINION OF THE COURT

Per Curiam.

A Judge whose conduct off the Bench demonstrates a blatant lack not only of judgment but also of judicial temperment, and complete disregard of the appearances of impropriety inherent in his conduct, should be removed from office, notwithstanding that his reputation for honesty, integrity and judicial demeanor in the legal community has been excellent. The commission’s findings of fact should be confirmed but its determined sanction of censure should be rejected and the sanction of removal imposed, as hereafter directed.

Petitioner is a Judge of the Civil Court, Kings County. He is also a trustee of the Associated Humane Societies of New Jersey (AHS), a not-for-profit corporation which in 1977 was seeking, a permit to operate an animal shelter in Kings County. In December, 1977, John Esteves, the manager of the AHS shelter, received three summonses, one from the city department of health for operating the Kings County shelter without a permit, and two from the ASPCA for violations relating to health certificates for dogs shipped from New Jersey and to the manner in which certain animals were kept. Other violations were investigated apparently in March or May, 1978, and a further summons issued.

In relation to the permit application, petitioner had several telephone conversations with Dr. Alan Beck, Director of the New York City Department of Health, Bureau of Animal Affairs. In these conversations, petitioner identified himself as a Judge, inquired why the AHS permits had not been granted and on receiving an explanation became angry and screamed so loudly into the telephone that Dr. Beck could not keep the phone to his ear. He also informed Dr. Beck that he had more political clout than Dr. Beck, and in vulgar language told Dr. Beck he should stop impeding the AHS application. The permit came up also in the courtroom corridor conversation, hereafter detailed, between petitioner and Dr. Howard Levin, Chief Veterinarian of the City Department of Health, when petitioner raised the question why it had ndt been issued and suggested that “he had people in high places that he hadn’t even tapped as yet.”

In relation to the summonses, petitioner was called by Esteves at the time the 1978 summons was issued. Esteves then put Dr. Levin, who had just inspected the shelter, on the phone with petitioner. Levin was told by petitioner, in what Levin characterized as a threatening voice, that the department was abusing its authority. Petitioner also contacted Dr. John Kullberg, Executive Director of the ASPCA, and Eric Plasa, its Law Enforcement Director, in an effort to have the 1977 summonses dropped. Dr. Kullberg declined that suggestion but informed petitioner that the society would make an unannounced reinspection and inform the court of its results when the violations came on for trial. Petitioner requested that he be notified in advance of such a reinspection. No reinspection was ever made.

Thereafter, when the Esteves matter came on before Judge Eugene Nardelli in Criminal Court, petitioner sat in the rear of the courtroom, and Judge Nardelli was informed by the AHS attorney, during discussions, that petitioner sat on the AHS board. After the matter had beén adjourned, petitioner approached the Bench and commented to Judge Nardelli that if the ASPCA and the department of health were really interested in animals, they would not be proceeding as they were. In the corridor outside Judge Nardelli’s courtroom there ensued a heated discussion participated in by petitioner, the AHS attorney, Dr. Levin, the ASPCA attorney and two ASPCA officers. All three of the ASPCA personnel testified, as did Dr. Levin, that petitioner was angry, was talking in a loud voice and stated during the conversation both that he was a Judge andldiat he had friends in high places.

The commission determined that it was improper for petitioner to have attempted to persuade ASPCA officials to withdraw the summonses and to identify himself as a Judge while so doing, to interfere with department of health officials on behalf of AHS in relation to issuance of a permit, to have identified himself as a Judge in so doing and to have addressed those officials iíi a-hostile, profane and loud manner, to. have spoken in a loud voice in the public corridor outside the courtroom and referred to his political influence, and to have interfered in the Esteves case by speaking to Judge Nardelli about the case. It concluded that “the blatant impropriety [petitioner] has evinced [is] seriously compounded by his refusal in this record to acknowledge that his actions even appear improper,” but nevertheless determined that the appropriate sanction was censure, which was what the commission administrator, with some misgivings, had recommended.

Petitioner denied any intent to influence anyone and testified that as a Judge elected ás a reform Democrat in Brooklyn he had no political clout, but never directly denied making the remarks attributed to him. He admitted speaking in emphatic tones, and did not deny the vulgarity attributed to him, saying that he did not remember the exact words and that he could have used another word (a euphemism, which would have conveyed the same meaning). Though he, thus, has not categorically denied the factual basis for the charges, he argues before us, as he did before the commission, that he was not acting as a Judge and gave no appearance of impropriety, that the evidence does not sustain the charges, that the procedures followed were improper and that the Referee improperly ignored the many lawyers and Judges who testified to his reputation for integrity, honesty and judicial demeanor.

As in Matter of Steinberg (51 NY2d 74, 83), so here, we cannot accept petitioner’s “contention that conduct off the Bench may give rise to removal only where there has been some act of overt illegality or extreme ‘moral turpitude’ ”, since “[a]ny conduct, on or off the Bench, inconsistent with proper judicial demeanor subjects the judiciary as a whole to disrespect and impairs the usefulness of the individual Judge to carry out his or her constitutionally mandated function” (Matter of Kuehnel, 49 NY2d 465, 469). Thus, petitioner’s insistence that because he was acting on behalf of a not-for-profit corporation his acts had “nothing to do with my judicial position” is misguided. Equally misguided is the suggestion that general reputation testimony, even though in the numbers and from persons of such standing as testified on petitioner’s behalf, make the findings of the Referee and the commission against the weight of the evidence. As we noted in People v Miller (35 NY2d 65, 69): “Character evidence does not exist in a vacuum, and its value, influence or the weight to be accorded it depends in great part upon the other evidence in the case. * * * If the evidence of guilt against a defendant is cumulative and reliable, the influence of contrary evidence of good character is likely to be slight. Under other circumstances, such evidence may be so good, if believed, as to create a reasonable doubt where without it none would exist.”

After careful review of the record we find the evidence of petitioner’s misconduct, which comes not only from other witnesses but from the subjective nature of his defense and his inability to contravert the objective evidences of that misconduct, to be both cumulative and reliable, and find neither reason to disturb the commission’s findings and conclusions concerning that misconduct nor any basis for holding that there was any infirmity in the procedure followed.

We do, however, reject the commission’s determined sanction. We recognize that the power given us by subdivision 9 of section 44 of the Judiciary Law to do so is not lightly to be exercised and that the ultimate sanction of removal is not normally to be imposed for poor judgment, even extremely poor judgment (Matter of Steinberg, supra, at p 81). The situation with which we deal here is clearly more egregious than that involved in Matter of Lonschein (50 NY2d 569) where the Judge sought special consideration for a license applicant but never asserted his judicial office and did no more than request expedition of the application. Here petitioner, having identified himself as a Judge, nevertheless thought it not improper to request the ASPCA, the complaining and prosecuting agency, to cause dismissal of pending charges. He also asked for preferential treatment for AHS, clearly contrary to the spirit and purpose of the regulatory provisions being enforced, by requesting that he be given advance notice of when reinspection might take place. Likewise, he felt it not improper to address a remark to the Judge before whom the matter was eventually called and which impugned the motives of ASPCA and the department of health in seeking to enforce those regulatory provisions. That it may have been improbable that the same Judge would sit when the matter was again called before the court appears, like petitioner’s suggestion that he lacks political clout, to be an afterthought which may temper but does not excuse the initial transgression.

Also not improper in petitioner’s mind was the threat, made on two separate occasions to Dr. Beck and during the courthouse corridor confrontation, to use political influence to obtain the ends he sought, made in intemperate tones and with the use of vulgarity. That he could be wholly unmindful of the impression that would be made upon others present in that corridor by the spectacle of a person identifying himself as a Judge and speaking in loud and threatening tones of his friends in high places strongly suggests a lack of judicial temperament. Not without significance in that respect is the private admonishment of petitioner by the former State Commission on Judicial Conduct in March, 1977 for having used profane, vulgar and inappropriate language in open court on several occasions in November, 1976.

Compounding those four separate instances of impropriety, as the commission noted, is petitioner’s continued insistence that his actions involved neither impropriety nor the appearance of impropriety. Judicial office, concerned as it is with concepts of reasonable care, arbitrariness, capriciousness, substantiality of evidence, excessiveness of discipline, involves a large measure of discretion. Public acceptance of the judicial product, however exemplary on a substantive level, cannot survive the acceptance of such invective and pressure politics as petitioner’s conduct suggests. As in Matter of Steinberg (51 NY2d 74, 84, supra), we conclude “that petitioner’s complete insensitivity to the special ethical obligations of Judges [renders] him unfit for judicial service”.

For the foregoing reasons we confirm the commission’s findings and conclusions except as to sanction and direct that petitioner be removed from office as a Judge of the Civil Court of the City of New York effective at midnight December 31,1980, and that, during the period between the date of service upon him of a copy of the order to be entered on this decision and December 31, 1980, petitioner be suspended, with pay, from office except to the extent necessary to complete matters begun but not completed by him at the time of such service.

Fuchsberg, J.

(dissenting). It is a source of regret that I find it necessary to state my strong objection to the catastrophic consequences which the majority so sweepingly visits on the respondent.

Not a single one of those who officially have participated in the investigations and determinations, or in the personal confrontations on which they were based, expressed the opinion that the nature of respondent’s improprieties warranted the judicial beheading ordered today. For instance, the counsel who, exhaustively and meticulously, presented the case on behalf of the Commission on Judicial Conduct summed up his conclusions in this way: “I regard the respondent, and I say this as an adversary to the Commission, as a person of integrity. His testimony was credible from the very beginning of this case. He cooperated; he told the truth. I think that removal from office would be too harsh a penalty”.

So too all 11 members of the commission, each a distinguished jurist, lawyer or layperson, and each experienced in hearing and deciding such matters, voted, without exception, that the appropriate punishment be public censure. Consonantly, the respondent having elected to appeal to this court, the brief filed by the commission’s administrator recommends that we accept the sanction. And, as to the majority’s concern that the respondent is not contrite enough, the record shows that he has avowed that, “In the future I will not do it”. More mea culpas would serve no purpose.

In passing on the sanction, it cannot be unimportant that there is here not even a suggestion that the acts on which these charges were based in any way or at any time interfered with the proper conduct of Judge Shilling’s judicial duties. Nor is the unexampled and impressive demonstration of support by the host of 56 character witnesses, most of whom are Judges and one of whom is the Administrative Judge of the very court on which he serves, to be blithely cast aside. It certifies to the respect he has earned for his judicial deportment among those in whose midst he must carry out his public responsibilities day in and day out.

What is involved here essentially is overzealous conduct on behalf of an eleemosynary institution which, in the respondent’s private life, he had long served as a devoted trustee. This organization, the Association of Humane Societies of New Jersey, is dedicated to animal welfare. Without gainsaying the lack of sensitivity with which it has been found that the respondent functioned on its behalf on the occasions which precipitated this proceeding, it would seem that a proper balance demands equal acknowledgement that the criticizable conduct was not motivated by venality or personal gain or any other mean, selfish or dishonorable impulse.

There was nothing wrong per se in the respondent’s participation in the society’s affairs. Jurists do not have to sit in isolated, cloistered, legal splendor, completely detached from responsibilities to the community at large. True, there are boundaries that must be respected, but they are free to live normal lives and to identify themselves with or engage in charitable activities. In fact, the Code of Judicial Conduct (Canon 5, subd B) expressly permits them to hold officerships and directorships in educational, religious, charitable, fraternal and civic organizations, so long as these activities are not conducted for the economic and political advantage of their members and so long as they do not detract from either the dignity or the performance of judicial office.

It is against this background that we now turn to the misguided conduct out of which this case arose. It started when the Humane Society decided to enlarge the geographical scope of its operations by establishing an animal shelter in Brooklyn. This brought on a flood of licensing, zoning and other objections from the American Society for the Prevention of Cruelty to Animals (ASPCA) and the New York City Department of Health. The Humane Society, justly or unjustly, was convinced that the objections were meritless and had been fueled by reluctance on the part of the ASPCA, which enjoys limited law enforcement powers in New York City, to abide the intrusion of the New Jersey agency. Be that as it may, when the grant of the license had been delayed inordinately and the ASPCA had issued several summonses against the Humane Society and John Esteves, the employee in charge of its newly opened Brooklyn facility, it turned to Judge Shilling. As the Humane Society trustee who resided in Brooklyn, he was asked to and, undisputably, though very unwisely, did undertake to communicate with the ASPCA and the health department to try to persuade them to cease what he and his colleagues at the society perceived to be an attempt to destroy the society’s newborn project. Initially, this took the form of the telephone calls to which the majority alludes, and, later, at the behest of the society’s counsel, to his attendance in court, where he was asked to be available, on behalf of the society, to approve any agreement that might be arrived at between the parties at a conference expected to be held there that day.

There appears to be little question but that the respondent, moved by an obvious passion for the society’s cause, waxed indignant about what he and his colleagues conceived to be the unfair exclusionary tactics of those in opposition to its Brooklyn inroads, and that, at times, the depth of his irritation, perhaps with some unconscious loss of control and dignity, came through in angry tones. And, in one telephone conversation, he did use an expletive which, while not acceptable in the “polite society” of a by-gone age, regrettably is no longer an uncommon feature of private parlance in the world of today. In the course of the conversations, he suggested that, if the ASPCA were intent on pressing the court proceedings it had started, these could just as well be tested against the society without involving the employee as an individual.

In the courthouse episode, though it was indiscreet for him to be there at all, the fact is that the respondent sat mutely in the back of the room until the conference was concluded, never speaking to the Judge, who in any event was not expected to have any continuing connection with the matter, until the meeting was over. After the court recessed, the parties and their attorneys were already engaged in a heated corridor discussion when the respondent, having approached the group to.offer some information on the zoning question and having received a rejoinder that appeared to challenge his credibility, proudly responded, “I am a Judge of the City Court. I don’t lie. When I state a fact, it is a fact”.

Now, it would seem that altogether too much has been made of the fact that the respondent introduced himself as “Judge” Shilling when he had the telephone conversations. It is clear that, if anything, the relevant association that was stressed was, in the words of a communicant called by the commission, “the Judge Shilling who was involved with the AHS”. Titular identification of Judges, even after they no longer hold judicial office, is the accepted practice. Former Judges are usually so addressed when they appear in court as lawyers. It would be unreal then, to expect that Judges (or for that matter, clergymen, physicians, professors or doctors of philosophy), just because they may find themselves addressing people with whom they have a difference of opinion in private matters, should be required to move about with a cloak of anonymity. The important thing, of course, is that a Judge should conduct himself, off or on the Bench, in a manner respectful of the title he or she bears.

Now, we must not lose sight of the fact that, no matter how we subdivide it into its details, overall this case involves only one situation, the controversy between the Humane Society and the ASPCA, in which, the respondent, for idealistic and humane reasons, foolishly permitted himself to be swallowed up. Withal, he insists that he never intended to exert the influence of his office. This must be accepted for, whatever may be said about his judgment or the care with which he expressed himself in this instance, one thing that appears established, and confirmed, is his principled veracity.

Corroborative is the fact that, though some may have formed the impression that he intended to exert influence on behalf of the Humane Society, there is nothing at all to indicate that he ever tried to do so. The threat, indeed, may have been largely within the minds of the witnesses as a reaction to the vigor and vehemence of his repeated requests on behalf of the society. While the Judge should have been mindful that there could be such reaction and controlled his conduct accordingly, in the circumstances here I cannot accept judicial action, which, repudiating the commission’s determination, insists on a result that not even a post-Watergate public image syndrome would justify. The sanction voted by the Commission on Judicial Conduct should be accepted.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in Per Curiam opinion; Judge Fuchsberg dissents and votes to accept the determined sanction in a separate opinion.

Determined sanction rejected, without costs, the sanction of removal imposed and Norman H. Shilling removed from his office of Judge of the Civil Court of the City of New York, effective at midnight December 31, 1980, and, during the period between the date of service upon him of a copy of the order to be entered herein and December 31, 1980, he is suspended, with.pay, from office except to the extent necessary to complete matters begun but not completed by him at the time of such service.

       Immediately following the portion- of the administrator’s'statement quoted in the second paragraph of the dissent-appears the following:
      “But where a judge so totally lacks sensitivity to his obligations, his ethical obligations, and where he acts in such a manner to distort the processes of justice, removal was not and is not out of my mind a'question as a recommendation.
      “However, there are only two alternatives in my.mind, and I recommend public censure."

      . These appraisals were in the face of the private admonition he had once received some years earlier for courtroom use of “inappropriate” language, a circumstance that appears never to have repeated itself. As the unimpeached judicial testimony indicates, a sense of perspective requires us to also note that the sundial that marked this single blemish did not record the impartiality, industry, wisdom and otherwise excellent temperament that characterized Judge Shilling’s judicial performance.

      . It is interesting to note, for whatever it is worth in these proceedings, that ultimately the license was granted and the summonses against the employee in the main were dismissed.

      . Since none of the three disciplinary cases cited by the Per Curiam (Matter of Lonschein, 50 NY2d 569; Matter of Kuehnel, 49 NY2d 465; Matter of Steinberg, 51 NY2d 74) would justify the drastic disposition in the present case, I append the following comments on each:
      In Lonschein (pp 571, 572), the respondent had intervened in two nonjudicial matters, one on behalf of a close personal friend who had encountered difficulties with various New York City administrative agencies from whom he was seeking to obtain a lease to a car service base station, the other by communicating with a deputy counsel of the City Taxi and Limousine Commission to urge the removal of “various impediments * * * thwarting approval” of a “lucrative contract”. The determination of the commission was that the Judge be censured on each. This court rejected the determined sanction as excessive on the one charge and, though it found that “petitioner was aware that his judicial position would affect the subsequent conduct of the * * * counsel” and nevertheless “placed the prestige of his office behind the request”, it reduced the sanction on the second to admonishment.
      In Kuehnel (p 469), where the commission’s recommendation of removal was accepted by the court, the respondent, inter alia, after detaining four youths without cause, engaged in “two frenzied displays of overt physical violence” towards young boys, engaged in “repeated outbursts * * * [of] virulent racism”, displayed “at the very least a gross lack of candor” before the officer who heard the charges. There can be no comparison between this case and that of Judge Shilling.
      In Steinberg, where the commission’s recommendation of removal was accepted by the court, the respondent was found, inter alia, for years to have been using his chambers to conduct a loan brokerage business, had utilized a judicial employee to collect his loan payments and had deliberately falsified his income tax returns. Again, there can be no comparison between this case and that of Judge Shilling.


author: Chief Judge Cooke.

text:
    Cora L. Brown, Respondent, v The Bowery Savings Bank, Appellant, et al., Defendant.
    Argued November 20, 1980;
    decided December 18, 1980

      POINTS OF COUNSEL

      Peter G. Bergmann, Terence F. Gilheany, Mary Frances Buchinsky and Jeffrey Q. Smith for appellant.
    I. As a matter of law, section 675 of the New York State Banking Law fully discharges Bowery from liability herein. (Ohanian v Ohanian, 25 AD2d 465; Caruso v Dry Dock Sav. Inst., 170 Misc 867; Matter of Carlin, 134 Misc 596; Matter of Filfiley, 63 Misc 2d 824, 43 AD2d 981; Matter of Kleinberg v Heller, 38 NY2d 836.) As a matter of law, Bowery did not receive proper notice of an adverse claim to the funds in the time deposit account. (Ciriello v Eastchester Sav. Bank, 74 Misc 2d 425, 45 AD2d 823 ; Shafran v Shafran, 57 Misc 2d 485; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357; Hunt v Hunt, 171 NY 396; Matter of Russo v Valentine, 294 NY 338.) III. As a matter of law, Bowery’s payment of the funds in the time deposit account to Ruth McCullough does not constitute negligence.

      Hector Willems for respondent.
    I. The Bowery was negligent and breached its contract with plaintiff by not asking for her release from the joint accounts. (Allen v Williamsburgh Sav. Bank, 69 NY 314; Novak v Greater N. Y. Sav. Bank, 30 NY2d 136.) II. Plaintiff’s inquiry regarding the existence of joint accounts placed the bank on notice and should have excited the suspicion and inquiry of the bank. (Kalb v Chemical Bank N. Y. Trust Co., 62 Misc 2d 458, 64 Misc 2d 824; Gearns v Bowery Sav. Bank, 135 NY 557;
      Matter of Filfiley, 63 Misc 2d 824, 43 AD2d 981; Schwartz v Schwartz, 81 Misc 2d 177, 82 Misc 2d 51; Matter of Lang, 76 Misc 2d 636, revd sub nom. Matter of Kleinberg v Heller, 45 AD2d 514, 38 NY2d 836.) III. Subdivision 5 of section 239 of the New York State Banking Law is not applicable to this situation. (Kalb v Chemical Bank N. Y. Trust Co., 62 Misc 2d 485, 64 Misc 2d 824; Alumiline Corp. v Charla Iron Works, 65 AD2d 737.) IV. The bank’s procedure regarding the change or deletion of a joint tenant was an assumption of a duty, or of an obligation to act. (Danbois v New York Cent. R. R. Co., 12 NY2d 234; Thorne v Deas, 4 Johns 84; Glanzer v Shepard, 233 NY 236; White v Guarente, 43 NY2d 356.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal presents the issue of the ensuing liability of a bank to a person whose name is removed without her permission from a joint savings account at the behest of the other person named on the account.

Although section 675 of the Banking Law immunizes banks with regard to some transactions involving joint savings accounts, it does not do so here. Plaintiff is entitled to recover only one half of the amount in the account, however, and the order of the Appellate Division should be modified accordingly.

Plaintiff and her son, William J. Brown, opened three joint savings accounts in 1966, 1968 and 1972 at The Bowery Savings Bank in New York City. This appeal concerns the last created of these, a “time deposit” account — one that paid a higher rate of interest than regular savings accounts if the money was not withdrawn for a certain period and imposed an interest penalty for early withdrawal. The account was payable to either plaintiff or Brown, or the survivor, and both persons were listed on the bank’s signature cards. On March 29, 1974, Brown alone filed new signature cards, eliminating plaintiff and substituting the name of Ruth McCullough. Although plaintiff’s consent was not obtained, the bank effectuated the change of title to the account. Brown died on June 25,1974, and Mrs. McCullough withdrew all funds from the account on. August 29, 1974.

Trial Term found that after Brown’s death but before Mrs. McCullough’s withdrawal, plaintiff, through her grandson, asked the bank about any accounts held in Brown’s name individually or jointly with plaintiff and was not told about the time deposit account from which her name had been removed. The court held that this inquiry placed the bank on notice of a possible adverse claim to that of Mrs. McCullough and made the bank’s subsequent payment to Mrs. McCullough negligent as a matter of law. It rejected the bank’s claim of immunity from liability under section 675 of the Banking Law and granted partial summary judgment to plaintiff for the entire amount of the time deposit account. The Appellate Division affirmed, two Justices dissenting. Although the courts correctly rejected the claim of immunity under section 675, plaintiff is entitled to only one half of the sum in the account.

The creation of this joint account by plaintiff and Brown established, under section 675, a rebuttable presumption that the funds were to be held as a joint tenancy with the right of survivorship (see Matter of Kleinberg v Heller, 38 NY2d 836; Lo Gerfo v Lo Gerfo, 31 AD2d 655, 656, affd 24 NY2d 940). The bank did not attempt to refute this presumption in its answer and no evidence was presented at trial to rebut this presumption. The opening of the account, therefore, must be deemed to have created a joint tenancy between plaintiff and Brown. When Brown removed plaintiff’s name, however, he destroyed the joint tenancy between himself and plaintiff as to the whole of the account. From that moment forward, each possessed a sole interest in one half of the account, and neither any longer had a right of survivorship or any interest in the other’s portion (Kleinberg, supra). Thus plaintiff’s claim to the entire sum in the account must fail, regardless of the inquiry to the bank by her grandson. Nonetheless, by removing plaintiff’s name from the account, Brown in effect converted that half of the account’s funds that belonged to plaintiff. The question that remains is whether the bank’s participation in this transaction makes it liable to plaintiff.

The bank maintains that subdivision (a) of section 675 protects it from liability to plaintiff. This position requires too broad a reading of the statute. The bank is correct that subdivision (a) of section 675 would insulate it from liability if Brown had withdrawn all of the money in the time deposit account and placed it in a new account under his and Mrs. McCullough’s names. Indeed, this is precisely what Brown did with one of the other savings accounts. For some reason, very possibly to avoid losing interest on the time deposit, he did not do so here. Instead, he left the account intact but substituted the name of Mrs. McCullough for that of plaintiff. The bank argues that this is only a technical difference and that the effect of Brown’s action was the same as if he had withdrawn the full amount and placed it in a new account. In some contexts, this might well be persuasive. But the statute involved here confers immunity from liability, and it therefore must be strictly construed (see Zaldin v Concord Hotel, 48 NY2d 107). Here the transaction did not fit within the frame of the statute.

Subdivision (a) of section 675 provides that if the entire contents of such an account are “paid or delivered to either [tenant] during the lifetime of both or to the survivor after the death of one of them * * * such payment or delivery and the receipt or acquitance of the one to whom such payment or delivery is made, shall be a valid and sufficient release and discharge to the banking organization”. Here, however, there was neither “payment” nor “delivery”. Although the end result was the same in the sense that plaintiff was deprived of her share of half of the funds in the account, this was accomplished through a different method — removing her name from the account rather than withdrawing the money from the account.. Because the Legislature chose to insulate savings banks from liability when one joint tenant wrongfully deprives another of an interest by one route, it does not follow that courts should stretch the statute to confer immunity when the tenant uses another avenue. This is especially true when the methods differ in important respects. Immunity from liability where one joint tenant withdraws more than his or her moiety from an account without the other tenant’s permission relieves the bank of the burdensome responsibility of monitoring each withdrawal from a joint account to ensure that one joint tenant is not misappropriating another’s funds. Obtaining the acquiescence of a joint tenant before removing his or her name from an account, however, poses a much lesser burden. Extending the statute to absolve savings banks from liability for failing to obtain such acquiesence is therefore an action more appropriately left to the Legislature.

In the absence of any statutory immunity, traditional principles of common law establish a bank’s liability for the wrongful disposal of a depositor’s funds (International Aircraft Trading Co. v Manufacturers Trust Co., 297 NY 285). The bank, through its participation in the substitution of plaintiff’s name, helped deprive plaintiff of her half of the time deposit account. Accordingly, partial summary judgment in plaintiff’s favor was proper. Because plaintiff’s interest extended to only half of the money in the account, however, she is entitled to recover only that amount.

Order modified, with costs to appellant, in accordance with this opinion and, as so modified, affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, etc.