author: Kaye, J. Bellacosa, J.

text:
    In the Matter of Michael B. Catholic Child Care Society of Diocese of Brooklyn et al., Respondents; Marvin B., Appellant; Maggie W. L., Intervenor-Respondent.
    Argued September 10,1992;
    decided October 29, 1992

      POINTS OF COUNSEL

      Patterson, Belknap, Webb & Tyler, New York City (Stephen P. Younger, Eileen J. Shields and Ellen A. Rothschild of counsel), for appellant.
    I. The Court below erred in applying Matter of Bennett v Jeffreys to State supervised foster care cases. (Matter of Sheila G., 61 NY2d 368; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Sanjivini K., 47 NY2d 374; Matter of Thomas TT., 67 AD2d 788; Matter of Jonathan D., 62 AD2d 947; Matter of Lamond B, 64 AD2d 625; Little Flower Children’s Servs. v Andrew C., 144 Misc 2d 671; Matter of Susan, 124 Misc 2d 443; Matter of Mehl, 114 Misc 2d 55; Matter of Jamie M., 63 NY2d 388.) II. The Family Court properly recognized that once a fit parent seeks return of a child in voluntary foster care and a termination proceeding is dismissed, its inquiry is limited to determining parental fitness and grave harm to the child. (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Matter of Male Infant L., 61 NY2d 420; Matter of Sanjivini K., 47 NY2d 374; Matter of Jabril P., 105 Misc 2d 219; Little Flower Children’s Servs. v Andrew C., 144 Misc 2d 671.) III. Assuming, arguendo, Matter of Bennett v Jeffreys does apply, the requisite extraordinary circumstances were not established here. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Dickson v Lascaris, 53 NY2d 204; Matter of Male Infant L., 61 NY2d 420; Matter of Ricky Ralph M., 56 NY2d 77; Raysor v Gabbey, 57 AD2d 437; Matter of Pernice v Cote, 116 AD2d 945; Matter of Sanjivini K., 47 NY2d 374; Matter of Alfredo S. v Nassau County Dept, of Social Servs., 172 AD2d 528; Matter of Jamie M., 63 NY2d 388.) IV. The Court below’s disposition was in error since it awarded custody to the foster parents under Social Services Law § 392 (6) (b) which has no application here. (Matter of Bennett v Jeffreys, 40 NY2d 543.)

      Lenore Gittis, New York City (Marcia Egger of counsel), for respondent Law Guardian for Michael B.
    I. The Court below properly required a best interests hearing pursuant to Matter of Bennett v Jeffreys, where, following a permanent neglect finding and a suspended judgment, discharge of the 5½-year-old child to appellant father who had had virtually no contact with his son for the first few years of the child’s life was being contemplated and the child was profoundly attached to the foster parents with whom he had lived from early infancy until the age of five. (Matter of Sheila G, 61 NY2d 368; Matter of Ricky Ralph M., 56 NY2d 77; Matter of Dickson v Lascaris, 53 NY2d 204; Matter of Boedecker-Frey v Boedecker-Frey, 176 AD2d 392; David W. v Julia W., 158 AD2d 1; Matter of Jamie M., 63 NY2d 388; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Alfredo S. v Nassau County Dept, of Social Servs., 172 AD2d 528; Matter of Lillie Mae W., 116 AD2d 1026, 67 NY2d 938; Matter of Thomas TT., 67 AD2d 788.) II. Extraordinary circumstances exist because of the protracted period of separation of parent and child for which appellant was primarily responsible and in the child’s deep attachment to his foster parents. (Matter of Sanjivini K., 47 NY2d 374; Matter of Sheila G., 61 NY2d 368; Matter of Male Infant L., 61 NY2d 420; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Matter of Alfredo S. v Nassau County Dept, of Social Servs., 172 AD2d 528; Matter of Fay H., 103 AD2d 977.) III. The weight of the credible evidence clearly established that discharge of Michael to appellant was contrary to his best interests under the standards of either (a) a limited inquiry, since appellant’s lack of fitness as a parent and the grievous harm to Michael while in his care were manifest; or (b) a full-scale hearing, where comparing the foster parents’ advantages to Michael’s interest in being raised by his biological father showed that Michael’s best interests would be served by placement with the foster parents. (Roth v Michelson, 55 NY2d 278; People v Graham, 55 NY2d 144; Matter of Boedecker-Frey v Boedecker-Frey, 176 AD2d 392; David W. v Julia W., 158 AD2d 1; Matter of Bennett v Marrow, 59 AD2d 492.)

      Wattman & Wechsler, P. C., New York City (Lori Ehrlich of counsel), for intervenor-respondent.
    I. The Court below correctly reversed the decision of the Family Court which failed to hold a dispositional hearing on the issue of custody to determine the best interests of Michael B. in light of the extraordinary circumstances presented. (Matter of Sheila G., 61 NY2d 368; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Sanjivini K., 47 NY2d 374; Matter of Jonathan D., 62 AD2d 947, 45 NY2d 706, 97 Misc 2d 859; Matter of Mary H. v Helen P., 131 AD2d 571; Matter of Lamond B., 64 AD2d 625; Matter of Jean Yvette E., 59 AD2d 907; Matter of Lillie Mae W, 116 AD2d 1026, 67 NY2d 938; Matter of Belinda B., 114 AD2d 70.) II. The Court below correctly reversed the Family Court decision awarding custody of the infant, Michael B., to appellant, as that decision was against the weight of the credible evidence presented at trial whether utilizing a "best interest” or "parental fitness/grave harm” inquiry. (Matter of Bannister v Bannister, 81 AD2d 913; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; Matter of Jonathan D., 97 Misc 2d 859; Ponzini v Ponzini, 135 Misc 2d 468; Matter of Bennett v Marrow, 59 AD2d 492.) III. The Court below correctly awarded custody to the foster parents pursuant to section 392 (6) of the Social Services Law. (Matter of Jonathan D., 97 Misc 2d 859; Matter of Deborah Stokes, 63 AD2d 949; Matter of Mary H. v Helen P. 131 AD2d 571; Matter of Bennett v Jeffreys, 40 NY2d 543.)

      O. Peter Sherwood, Corporation Counsel, New York City (Francis F. Caputo, Alan G. Krams and Stephen J. McGrath of counsel), for Commissioner of the New York City Department of Social Services, amicus curiae.

    The Court below erred in placing the child directly into the custody of the foster parents. However, in light of new circumstances, to wit, the filing of neglect petitions alleging that Michael B.’s siblings have been neglected by appellant, appellant’s request for an order granting him custody must be denied. (Matter of Sheila G., 61 NY2d 368; Matter of George O., 115 Misc 2d 782; Katie B. v Miriam H, 116 AD2d 545; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Sanjivini K., 47 NY2d 374; Matter of Jewish Child Care Assn. [Sanders], 5 NY2d 222.)

      John C. Gray, Jr., Wanyong Lai Austin, James G. Newman, Martha Raimon, Florence Roberts and Jane Greengold Stevens, Brooklyn, and Martin Guggenheim, New York City, and Madeleine Kurtz for Brooklyn Legal Services Corporation B and another, amici curiae.

    The Court below erred by applying common-law principles fashioned by this Court in Matter of Bennett v Jeffreys in deciding a case involving State supervised foster care and in discharging Michael B. from foster care to the foster parent’s private custody. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Sanjivini K, 47 NY2d 374; Santosky v Kramer, 455 US 745; Smith v Organization of Foster Families, 431 US 816; Matter of Sheila G., 61 NY2d 368; Matter of Jamie M., 63 NY2d 388.)
   OPINION OF THE COURT

Kaye, J.

This appeal from a custody determination, pitting a child’s foster parents against his biological father, centers on the meaning of the statutory term "best interest of the child,” and particularly on the weight to be given a child’s bonding with his long-time foster family in deciding what placement is in his best interest. The biological father (appellant) on one side, and respondent foster parents (joined by respondent Law Guardian) on the other, each contend that a custody determination in their favor is in the best interest of the child, as that term is used in Social Services Law § 392 (6), the statute governing dispositions with respect to children in foster care.

The subject of this protracted battle is Michael B., born July 29, 1985 with a positive toxicology for cocaine. Michael was voluntarily placed in foster care from the hospital by his mother, who was unmarried at the time of the birth and listed no father on the birth certificate. Michael’s four siblings were then also in foster care, residing in different homes. At three months, before the identity of his father was known, Michael —needing extraordinary care — was placed in the home of intervenor Maggie W. L., a foster parent certified by respondent Catholic Child Care Society (the agency), and the child remained with the L.’s for more than five years, until December 1990. It is undisputed that the agency initially assured Mrs. L. this was a "preadoptive” placement.

Legal proceedings began in May 1987, after appellant had been identified as Michael’s father. The agency sought to terminate the rights of both biological parents and free the child for adoption, alleging that for more than a year following Michael’s placement the parents had failed to substantially, continuously or repeatedly maintain contact with Michael and plan for his future, although physically and financially able to do so (Social Services Law § 384-b [7]). Michael’s mother (since deceased) never appeared in the proceeding, and a finding of permanent neglect as to her was made in November 1987. Appellant did appear and in September 1987 consented to a finding of permanent neglect, and to committing custody and guardianship to the agency on condition that the children be placed with their two godmothers. That order was later vacated, on appellant’s application to withdraw his pleas and obtain custody, because the agency had not in fact placed the children with their godmothers. In late 1987, appellant — a long-time alcohol and substance abuser — entered an 18-month residential drug rehabilitation program and first began to visit Michael.

In August 1988, appellant, the agency and the Law Guardian agreed to reinstatement of the permanent neglect finding, with judgment suspended for 12 months, on condition that appellant: (1) enroll in a program teaching household management and parenting skills; (2) cooperate by attending and complying with the program; (3) remain drug-free, and periodically submit to drug testing, with test results to be delivered to the agency; (4) secure and maintain employment; (5) obtain suitable housing; and (6) submit a plan for the children’s care during his working day (see, Family Ct Act § 631 [b]; § 633). The order recited that it was without prejudice to the agency recalendaring the case for a de nova hearing on all allegations of the petition should appellant fail to satisfy the conditions, and otherwise said nothing more of the consequences that would follow on appellant’s compliance or noncompliance.

As the 12-month period neared expiration, the agency sought a hearing to help "determine the status and placement of the children.” Although appellant was unemployed (he was on public assistance) and had not submitted to drug testing during the year, Family Court at the hearing held October 24, 1989 was satisfied that "there seem[ed] to be substantial compliance” with the conditions of the suspended judgment. Because the August 1988 order was unclear as to who had responsibility for initiating the drug tests, the court directed that the agency arrange three successive blood and urine tests, and if the tests proved negative, "all subject children may be released to father except Jemel [a 'special needs’ child].” The matter was adjourned to December 21, when it was joined with respondents’ application for a dispositional order with respect to Michael, whose long residence with the L.’s, they said, raised special concerns.

On December 21, 1989, the Law Guardian presented a report indicating that Michael might suffer severe psychological damage if removed from his foster home, and argued for a "best interests” hearing pursuant to Matter of Bennett v Jeffreys (40 NY2d 543), based on Michael’s bonding with the L.’s and, by contrast, his lack of bonding with appellant, who had visited him infrequently. Family Court questioned whether it even had authority for such a hearing, but stayed the order directing Michael’s discharge to appellant pending its determination. Michael’s siblings, then approximately twelve, eight, seven and six years old, were released to appellant in January and July 1990. Litigation continued as to Michael.

In November 1990, Family Court directed Michael’s discharge to appellant, concluding that it was without "authority or jurisdiction” to rehear the issue of custody based on the child’s best interest, and indeed that Michael had been wrongfully held in foster care. The court noted, additionally, that the Law Guardian’s arguments as to Michael’s best interest went to issues of bonding with his temporary custodians rather than appellant’s insufficiency as a parent — bonding that had been reinforced by the agency’s failure to ensure sufficient contacts with appellant during the proceedings. Appellant "should not be denied custody simply because of the actions of the [agency] and the lengthy litigation following final disposition has resulted in the foster parents enjoying a stronger emotional tie to the child than the [appellant].” The court directed that Michael commence immediate weekend visitation with appellant, with a view to transfer within 60 days. Michael was discharged to appellant in December 1990.

The Appellate Division reversed and remitted for a new hearing and new consideration of Michael’s custody, concluding that dismissal of a permanent neglect petition cannot divest Family Court of its continuing jurisdiction over a child until there has been a "best interests” custody disposition (171 AD2d 790). As for the relevance of bonding, the Appellate Division held that, given the "extraordinary circumstances” (Matter of Bennett v Jeffreys, 40 NY2d, at 544, supra) — referring particularly to Michael’s long residence with his foster parents — Family Court should have conducted a hearing to consider issues such as the impact on the child of a change in custody. There having been no question of appellant’s fitness, however, the Appellate Division permitted Michael to remain with his father pending the new determination.

On remittal, Family Court heard extensive testimony — including testimony from appellant, the foster parents, the agency (having changed its goal to discharge to appellant), and psychological, psychiatric and social work professionals (who overwhelmingly favored continued foster care over discharge to appellant) — but adhered to its determination that Michael should be released to his father. Family Court found appellant "fit, available and capable of adequately providing for the health, safety and welfare of the subject child, and * * * it is in the child’s best interest to be returned to his father.”

Again the Appellate Division reversed Family Court’s order, this time itself awarding custody to the foster parents under Social Services Law § 392 (6) (b), and remitting the matter to a different Family Court Judge solely to determine appellant’s visitation rights (180 AD2d 792). Exercising its own authority —as broad as that of the hearing court — to assess the credibility of witnesses and character and temperament of the parents, the court reviewed the evidence and, while pointing up appellant’s many deficiencies, significantly stopped short of finding him an unfit parent, as it had the power to do. Rather, the court looked to Michael’s lengthy stay and psychological bonding with the foster family, which it felt gave rise to extraordinary circumstances meriting an award of custody to the foster parents. According to the Appellate Division, the evidence "overwhelmingly demonstrate^] that Michael’s foster parents are better able than his natural father to provide for his physical, emotional, and intellectual needs.” (180 AD2d, at 794.) Since early 1992, Michael has once again resided with the L.’s.

While prolonged, inconclusive proceedings and seesawing custody of a young child — all in the name of Michael’s best interest — could not conceivably serve his interest at all, we granted appellant father’s motion for leave to appeal, and now reverse the Appellate Division’s central holdings. The opinions of Family Court specifying deficiencies of the agency and foster parents, and the opinions of the Appellate Division specifying inadequacies of the biological parent, leave little question that the only blameless person is the child. But rather than assess fault, our review will address the legal standards that have twice divided Family Court and the Appellate Division, hopefully minimizing recurrences, for this child and others, of the tragic scenario now before us.

Analysis

Appellant no longer disputes that Family Court retained jurisdiction to consider the child’s best interest in connection with an award of custody even after the finding that he had substantially satisfied the conditions of the suspended judgment. All parties agree with the correctness of the Appellate Division determination that, despite appellant’s apparent compliance with the conditions of the suspended judgment, Family Court retained jurisdiction to consider the best interest of the children in foster care until a final order of disposition (171 AD2d, at 791; Social Services Law § 392 [6], [9]; Matter of Sheila G, 61 NY2d 368, 389).

What remains the bone of contention in this Court is the scope of the requisite "best interest” inquiry under Social Services Law § 392 (6). Appellant urges that in cases of foster care, so long as the biological parent is not found unfit — and he underscores that neither Family Court nor the Appellate Division found him unfit — "best interest of the child” is only a limited inquiry addressed to whether the child will suffer grievous injury if transferred out of foster care to the biological parent. Respondents, by contrast, maintain that extraordinary circumstances — such as significant bonding with foster parents, after inattention and even admitted neglect by the biological parent — trigger a full inquiry into the more suitable placement as between the biological and foster parents. Subsidiarily, appellant challenges the Appellate Division’s outright award of custody to the foster parents, claiming that disposition was beyond the Court’s authority under Social Services Law § 392 (6).

We conclude, first, that neither party advances the correct "best interest” test in the context of temporary foster care placements, but that appellant’s view is more consistent with the statutory scheme than the broad-gouge inquiry advocated by respondents and applied by the Appellate Division. Second, we hold that the award of custody to the foster parents was impermissible as we interpret Social Services Law § 392 (6).

The Foster Care Scheme

This being a case of voluntary placement in foster care — a subject controlled by statute — analysis must begin with the legislative scheme, which defines and balances the parties’ rights and responsibilities. An understanding of how the system is designed to operate — before the design is complicated, and even subverted, by human actors and practical realities — is essential to resolving the questions before us.

New York’s foster care scheme is built around several fundamental social policy choices that have been explicitly declared by the Legislature and are binding on this Court (Social Services Law § 384-b [1]). Under the statute, operating as written, appellant should have received the active support of both the agency in overcoming his parental deficiencies and the foster parents in solidifying his relationship with Michael, and as soon as return to the biological parent proved unrealistic, the child should have been freed for adoption.

A biological parent has a right to the care and custody of a child, superior to that of others, unless the parent has abandoned that right or is proven unfit to assume the duties and privileges of parenthood, even though the State perhaps could find "better” parents (Social Services Law § 384-b [1] [a] [ii]; Matter of Male Infant L., 61 NY2d 420, 426; Matter of Sanjivini K., 47 NY2d 374, 382; Matter of Corey L v Martin L, 45 NY2d 383, 391). A child is not the parent’s property, but neither is a child the property of the State (Matter of Sanjivini K., 47 NY2d, at 382, supra [citing Pierce v Society of Sisters, 268 US 510, 535; and Stanley v Illinois, 405 US 645]). Looking to the child’s rights as well as the parents’ rights to bring up their own children, the Legislature has found and declared that a child’s need to grow up with a "normal family life in a permanent home” is ordinarily best met in the child’s "natural home” (Social Services Law § 384-b [1] [a] [i], [ii]).

Parents in temporary crisis are encouraged to voluntarily place their children in foster care without fear that they will thereby forfeit their parental rights (Social Services Law § 384-a; Matter of Mehl, 114 Misc 2d 55, 60). The State’s first obligation is to help the family with services to prevent its break-up, or to reunite the family if the child is out of the home (Social Services Law § 384-b [1] [a] [iii]; Santosky v Kramer, 455 US 745, 748). While a child is in foster care, the State must use diligent efforts to strengthen the relationship between parent and child, and work with the parent to regain custody (Social Services Law § 384-a [2] [c] [iv]; Matter of Sheila G., 61 NY2d, at 385, supra).

Because of the statutory emphasis on the biological family as best serving a child’s long-range needs, the legal rights of foster parents are necessarily limited (see, Smith v Organization of Foster Families, 431 US 816, 846). Legal custody of a child in foster care remains with the agency that places the child, not with the foster parents (Social Services Law § 383 [2]). Foster parents enter into this arrangement with the express understanding that the placement is temporary, and that the agency retains the right to remove the child upon notice at any time (People ex rel. Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382, 387, rearg denied 46 NY2d 836). As made clear in Matter of Spence-Chapin Adoption Serv. v Polk (29 NY2d 196), "foster care custodians must deliver on demand not 16 out of 17 times, but every time, or the usefulness of foster care assignments is destroyed. To the ordinary fears in placing a child in foster care should not be added the concern that the better the foster care custodians the greater the risk that they will assert, out of love and affection grown too deep, an inchoate right to adopt.” (Id., at 205.) Foster parents, moreover, have an affirmative obligation —similar to the obligation of the State — to attempt to solidify the relationship between biological parent and child. While foster parents may be heard on custody issues (see, Social Services Law § 383 [3]), they have no standing to seek permanent custody absent termination of parental rights (see, Matter of Rivers v Womack, 178 AD2d 532).

Fundamental also to the statutory scheme is the preference for providing children with stable, permanent homes as early as possible (see, Matter of Peter L., 59 NY2d 513, 519). "[W]hen it is clear that the natural parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought” (Social Services Law § 384-b [1] [a] [iv]). Extended foster care is not in the child’s best interest, because it deprives a child of a permanent, nurturing family relationship (see, Matter of Gregory B., 74 NY2d 77, 90, rearg denied sub nom. Matter of Willie John B., 74 NY2d 880; Matter of Joyce T., 65 NY2d 39, 47-48). Where it appears that the child may never be reunited with the biological parents, the responsible agency should institute a proceeding to terminate parental rights and free the child for adoption (Social Services Law § 384-b [1] [b]; [3] [b]; § 392 [6] [c]).

Parental rights may be terminated only upon clear and convincing proof of abandonment, inability to care for the child due to mental illness or retardation, permanent neglect, or severe or repeated child abuse (Social Services Law § 384-b [3] [g]; [4]). Of the permissible dispositions in a termination proceeding based on permanent neglect (see, Family Ct Act §631), the Legislature — consistent with its emphasis on the importance of biological ties, yet mindful of the child’s need for early stability and permanence — has provided for a suspended judgment, which is a brief grace period designed to prepare the parent to be reunited with the child (Family Ct Act §633). Parents found to have permanently neglected a child may be given a second chance, where the court determines it is in the child’s best interests (Family Ct Act § 631), but that opportunity is strictly limited in time. Parents may have up to one year (and a second year only where there are "exceptional circumstances”) during which they must comply with terms and conditions meant to ameliorate the difficulty (see, 22 NYCRR 205.50 [spelling out terms and conditions]). Noncompliance may lead to revocation of the judgment and termination of parental rights. Compliance may lead to dismissal of the termination petition with the child remaining subject to the jurisdiction of the Family Court until a determination is made as to the child’s disposition pursuant to Social Services Law § 392 (6) (see, Matter of Sheila G., 61 NY2d, at 390, supra).

Where parental rights have not been terminated, Social Services Law § 392 promotes the objectives of stability and permanency by requiring periodic review of foster care placements. The agency having custody must first petition for review after a child has been in continuous foster care for 18 months (Social Services Law § 392 [2]), and if no change is made, every 24 months thereafter (Social Services Law § 392 [9]). While foster parents who have been caring for such child for the prior 12 months are entitled to notice (Social Services Law § 392 [4]), and may also petition for review on their own initiative (Social Services Law § 392 [2]), a petition under section 392 (captioned "Foster care status; periodic family court review”) is not an avenue to permanent custody for foster parents where the child has not been freed for adoption.

Upon such review, the court must consider the appropriateness of the agency’s plan for the child, what services have been offered to strengthen and reunite the family, efforts to plan for other modes of care, and other further efforts to promote the child’s welfare (see, Social Services Law § 392 [5-a]), and in accordance with the best interest of the child, make one of the following dispositions: (1) continue the child in foster care (which may include continuation with the current foster parents) (Social Services Law §392 [6] [a]); (2) direct that the child "be returned to the parent, guardian or relative, or [direct] that the child be placed in the custody of a relative or other suitable person or persons” (Social Services Law § 392 [6] [b]); or (3) require the agency (or foster parents upon the agency’s default) to institute a parental rights termination proceeding (Social Services Law § 392 [6] [c]).

The key element in the court’s disposition is the best interest of the child (Social Services Law § 392 [6]) — the statutory term that is at the core of this appeal, and to which we now turn.

"Best Interest” in the Foster Care Scheme

"Best interests) of the child” is a term that pervades the law relating to children — appearing innumerable times in the pertinent statutes, judicial decisions and literature — yet eludes ready definition. Two interpretations are advanced, each vigorously advocated.

Appellant would read the best interest standard of Social Services Law § 392 (6) narrowly, urging that Family Court should inquire only into whether the biological parent is fit, and whether the child will suffer grievous harm by being returned to the parent. Appellant urges affirmance of the Family Court orders, which (1) defined the contest as one between foster care agency and biological parent, rather than foster parent and biological parent; (2) focused first on "the ability of the father to care for the subject child,” and then on whether "the child’s emotional health will be so seriously impaired as to require continuance in foster care;” and (3) concluded that appellant was fit, and that Michael would not suffer irreparable emotional harm if returned to him. Wider inquiry, appellant insists, creates an "unwinnable beauty contest” the biological parent will inevitably lose where foster placement has continued for any substantial time.

Respondents take a broader view, urging that because of extraordinary circumstances largely attributable to appellant, the Appellate Division correctly compared him with the foster parents in determining Michael’s custody and concluded that the child’s best interest was served by the placement that better provided for his physical, emotional and intellectual needs. Respondents rely on Matter of Bennett v Jeffreys (40 NY2d 543, supra), this Court’s landmark decision recognizing that a child’s prolonged separation from a biological parent may be considered, among other factors, to be extraordinary circumstances permitting the court to inquire into which family situation would be in the child’s best interests (id., at 548, 551).

In that Matter of Bennett v Jeffreys concerned an unsupervised private placement, where there was no directly applicable legislation, that case is immediately distinguishable from the matter before us, which is controlled by a detailed statutory scheme (Matter of Bennett v Jeffreys, 40 NY2d, at 545, supra). Our analysis must begin at a different point — not whether there are extraordinary circumstances, but what the Legislature intended by the words "best interest of the child” in Social Services Law § 392 (6).

Necessarily, we look first to the statute itself. The question is in part answered by Social Services Law §§ 383 and 384-b, which encourage voluntary placements, with the provision that they will not result in the termination of parental rights so long as the parent is fit. To use the period during which a child lives with a foster family, and emotional ties that naturally eventuate, as a ground for comparing the biological parent with the foster parent undermines the very objective of voluntary foster care as a resource for parents in temporary crisis, who are then at risk of losing their children once a bond arises with the foster families.

Other portions of the statute support this conclusion. Significantly, after an adjudication of permanent neglect, the statute directs the disposition to be made "solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular disposition” (Family Ct Act § 631 [emphasis added]; Matter of Star Leslie W., 63 NY2d 136, 147-148). As against this provision, Social Services Law § 392 (6) states only that a disposition should be made "in accordance with the best interest of the child.”

Absent an explicit legislative directive — such as that found in Family Court Act § 631 — we are not free to overlook the legislative policies that underlie temporary foster care, including the preeminence of the biological family. Indeed, the legislative history of Social Services Law § 392 (5-a), which specifies factors that must be considered in determining the child’s best interests, states "this bill clearly advises the Family Court of certain considerations before making an order of disposition. These factors establish a clear policy of exploring all available means of reuniting the child with his family before the Court decides to continue his foster care or to direct a permanent adoptive placement.” (Mem Accompanying Comments on Bill, NY State Bd of Social Welfare, A 12801-B, July 9,1976, Governor’s Bill Jacket, L 1976, ch 667.)

We therefore cannot endorse a pure "best interests” hearing, where biological parent and foster parents stand on equal footing and the child’s interest is the sole consideration (see, Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d, at 204, supra; People ex rel. Kropp v Shepsky, 305 NY 465, 469). In cases controlled by Social Services Law § 392 (6), analysis of the child’s "best interest” must begin not by measuring biological parent against foster parent but by weighing past and continued foster care against discharge to the biological parent, or other relative or suitable person within Social Services Law § 392 (6) (b) (see, Matter of Sheila G., 61 NY2d, at 389-390, supra; see also, Mem Accompanying Comments on Bills, NY State Dept of Social Servs, A Int 12801-B, July 14,1976, Governor’s Bill Jacket, L 1976, ch 667).

While the facts of Matter of Bennett v Jeffreys fell outside the statute, and the Court was unrestrained by legislative prescription in defining the scope of the "best interests” inquiry, principles underlying that decision are also relevant here. It is plainly the case, for example, that a "child may be so long in the custody of the nonparent that, even though there has been no abandonment or persisting neglect by the parent, the psychological trauma of removal is grave enough to threaten destruction of the child” (id., at 550), and we cannot discount evidence that a child may have bonded with someone other than the biological parent. In such a case, continued foster care may be appropriate although the parent has not been found unfit.

Under Social Services Law § 392, where a child has not been freed for adoption, the court must determine whether it is nonetheless appropriate to continue foster care temporarily, or whether the child should be permanently discharged to the biological parent (or a relative or "other suitable person”). In determining the best interest of a child in that situation, the fitness of the biological parent must be a primary factor. The court is also statutorily mandated to consider the agency’s plan for the child, what services have been offered to strengthen and reunite the family, what reasonable efforts have been made to make it possible for the child to return to the natural home, and if return home is not likely, what efforts have been or should be made to evaluate other options (Social Services Law §392 [5-a]). Finally, the court should consider the more intangible elements relating to the emotional well-being of the child, among them the impact on the child of immediate discharge versus an additional period of foster care.

While it is doubtful whether it could be found to be in the child’s best interest to deny the parent’s persistent demands for custody simply because it took so long to obtain it legally (Matter of Sanjivini K., 47 NY2d, at 382, supra), neither is a lapse of time necessarily without significance in determining custody. The child’s emotional well-being must be part of the equation, parental rights notwithstanding (Matter of Sheila G., 61 NY2d, at 390, supra). However, while emotional well-being may encompass bonding to someone other than the biological parent, it includes as well a recognition that, absent termination of parental rights, the nonparent cannot adopt the child, and a child in continued custody with a nonparent remains in legal — and often emotional — limbo (see, Matter of Bennett v Jeffreys, 40 NY2d, at 551, supra)

The Appellate Division, applying an erroneous "best interest” test, seemingly avoided that result when it awarded legal custody to the foster parents. We next turn to why that disposition was improper.

Award of Legal Custody to Foster Parents

The Appellate Division awarded legal custody of Michael to the foster parents pursuant to Social Services Law § 392 (6) (b), noting that the statute "permits a court to enter an order of disposition directing, inter alla, that a child, whose custody and care have temporarily been transferred to an authorized agency, be placed in the custody of a suitable person or persons.” (180 AD2d, at 796.) The Court correctly looked to section 392 as the predicate for determining custody, but erroneously relied on paragraph (b) of subdivision (6) in awarding custody to the foster parents.

As set forth above, there are three possible dispositions after foster care review with respect to a child not freed for adoption: continued foster care; release to a parent, guardian, relative or other suitable person; and institution of parental termination proceedings (Social Services Law § 392 [6] [a]-[c]).

As the first dispositional option, paragraph (a) contemplates the continuation of foster care, with the child remaining in the custody of the authorized agency, and the arrangement remaining subject to periodic review. As a result of 1989 amendments, disposition under paragraph (a) can include an order that the child be placed with (or remain with) a particular foster family until the next review (L 1989, ch 744). Under the statutory scheme, however, foster care is temporary, contractual and supervised.

Paragraph (b), by contrast, contemplates removal of the child from the foster care system by return to "the parent, guardian or relative, or direction] that the child be placed in the custody of a relative or other suitable person or persons.” The 1989 statutory revision added as a permissible disposition the placement of children with relatives or other suitable persons. The purpose of this amendment was to promote family stability by allowing placement with relatives, extended family members or persons like them, as an alternative to foster care (see, Sponsor’s Mem in Support of Amended Bill, L 1989, ch 744, and 10 Day Bill Budget Report, A 7216-A, Governor’s Bill Jacket; see also, Matter of Peter L., 59 NY2d, at 519, supra).

Plainly, the scheme does not envision also including the foster parents — who were the subject of the amendment to paragraph (a) — as "other suitable persons.” Indeed, reading paragraph (b) as the Appellate Division did, to permit removal of the child from foster care and an award of legal custody to the foster parents, exacerbates the legal limbo status. The child is left without a placement looking to the establishment of a permanent parental relationship through adoption, or the prospect of subsequent review of foster care status with the possibility of adoption placement at that time (see, Social Services Law § 384-b [4]; Matter of Peter L., 59 NY2d, at 519, supra), yet has no realistic chance of return to the biological parent.

The terms of paragraph (c), providing for an order that the agency institute a parental termination proceeding, further buttress the conclusion that foster parents are not included in paragraph (b). Pursuant to paragraph (c), if the court finds reasonable cause to believe there are grounds for termination of parental rights, it may order the responsible agency to institute such proceedings. If the agency fails to do so within 90 days, the foster parents themselves may bring the proceeding, unless the court believes their subsequent petition to adopt would not be approved. Thus, in the statutory scheme the Legislature has provided a means for foster parents to secure a temporary arrangement under paragraph (a) and a permanent arrangement under paragraph (c) — both of which specifically mention foster parents. They are not also implicitly included in paragraph (b), which addresses different interests.

We therefore conclude that the Appellate Division erred in interpreting Social Services Law § 392 (6) to permit the award of legal custody to respondent foster parents.

Need for Further Inquiry

We have no occasion to apply the proper legal test to the facts at hand, as the parties urge. New circumstances require remittal to Family Court for an expedited hearing and determination of whether appellant is a fit parent and entitled to custody of Michael.

The Court has been informed that, during the pendency of the appeal, appellant was charged with — and admitted — neglect of the children in his custody (not Michael), and that those children have been removed from his home and are again in the custody of the Commissioner of the Social Services. The neglect petitions allege that appellant abused alcohol and controlled substances including cocaine, and physically abused the children. Orders of fact finding have been entered by Family Court, Queens County, recognizing appellant’s admission in open court to "substance abuse, alcohol and cocaine abuse.” Moreover, an Order of Protection was entered prohibiting appellant from visiting the children while under the influence of drugs or alcohol.

Appellant’s request that we ignore these new developments and simply grant him custody, because matters outside the record cannot be considered by an appellate court, would exalt the procedural rule — important though it is — to a point of absurdity, and "reflect no credit on the judicial process.” (Cohen and Karger, Powers of the New York Court of Appeals § 168, at 640.) Indeed, changed circumstances may have particular significance in child custody matters (see, e.g., Braiman v Braiman, 44 NY2d 584, 587, 590; Matter of Angela D., 175 AD2d 244, 245; Matter of Kelly Ann M., 40 AD2d 546). This Court would therefore take notice of the new facts and allegations to the extent they indicate that the record before us is no longer sufficient for determining appellant’s fitness and right to custody of Michael, and remit the matter to Family Court for a new hearing and determination of those issues. The Appellate Division concluded that the hearing should take place before a different Judge of that court (180 AD2d, at 796), and we see no basis to disturb that determination. Pending the hearing, Michael should physically remain with his current foster parents, but legal custody should be returned to the foster care agency.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court, Kings County, for further proceedings in accordance with this opinion.

Bellacosa, J.

(concurring). I agree with Judge Kaye’s opinion for the Court that Social Services Law § 392 (6) (b) cannot be used to award permanent custody to foster parents within that statute’s intended operation and integrated structure. I concur in the reversal result in this case solely for that reason, noting additionally that a contrary interpretation of that key provision, as used by the Appellate Division, would have internally contradictory implications in the field of temporary foster child placement. While I prefer an affirmance result because that might more likely conclude the litigation and allow Michael B., the 7½-year-old subject of this custody battle, to get on with his life in a more settled and constructive way, I can discern no principled route to that desirable result without sacrificing the correct application of legal principles and engendering fundamentally troublesome precedential consequences.

This separate concurrence is necessary to express my difference of degree and analytical progression with respect to the best interests analysis and test, as adopted by the Court, for purposes of the remittal of this case and as the controlling guidance for countless other proceedings in the future. I would not relegate Matter of Bennett v Jeffreys (40 NY2d 543) essentially to general relevance only, would not limit the beginning of the analysis to the statutory setting, and would allow for appropriate flexibility as to the range and manner of exercising discretion in the application of the best interests test by the Family Courts and Appellate Divisions.

I believe courts, in the fulfillment of the parens patriae responsibility of the State, should, as a general operating principle, have an appropriately broad range of power to act in the best interests of children. We agree that the teachings of Matter of Bennett v Jeffreys (40 NY2d 543, supra) are still excellent and have served the process and the affected subjects and combatants in custody disputes very well. While the common-law origination in Bennett is a distinguishing feature from the instant case, I do not view that aspect as subordinated to or secondary in the use of its wisdom, even in a predominantly statutory setting, where this case originates. I am not persuaded that there is any support or positive authority for the view that the Legislature meant anything different when it adopted the phrase "best interest of the child” in Social Services Law § 392 (6) from the meaning of that phrase articulated in Matter of Bennett v Jeffreys (supra). Courts must exercise common-law authority in all these circumstances, and the Legislature has not, as far as I can tell, displaced that uniquely judicial function and plenary role. Since the best of Matter of Bennett v Jeffreys’ best interest analysis enjoys continued vitality therefore, it should serve as a cogent, coequal common-law building block. In my view, it provides helpful understanding for and intertwined supplementation to the Social Services Law provisions as applied in these extraordinary circumstances, defined in one aspect of Matter of Bennett v Jeffreys as "prolonged separation” of parent and child "for most of the child’s life” (40 NY2d, at 544, supra). The child in that case was eight years of age and none of the other serious and disquieting features of this case were apparent there.

The nuances, complexity and variations of human situations make the development and application of the general axiom— best interests of the child — exceedingly difficult. As a matter of degree and perspective, however, the Court’s test is concededly more limiting than Matter of Bennett v Jeffreys (supra), and therefore I believe it is more narrow than it should be in this case since I discern no compelling authority for the narrower approach. This 7½-year-old child, born of a long since deceased crack-cocaine mother, has yet to be permanently placed and has suffered a continuing, lengthy, bad trip through the maze of New York’s legal system. His father has an extended history of significant substance addiction and other problems, and the child has spent much of his 7½ years with the same foster parents. These graphic circumstances surely present an exceptionally extraordinary and compelling case requiring significant flexibility by the courts in resolving his best interests (see, Matter of Bennett v Jeffreys, supra). On this aspect of the case, therefore, I agree with the Appellate Division in its two decisions in this case, at least with respect to its best interests analysis and handling of this difficult case. On March 18, 1991, it said:

"In view of the extraordinary circumstances present in this case, the Family Court should have conducted a hearing to consider, among other things, the impact that a change of custody will have on the child in view of the bonding which has occurred between Michael and his foster parents, who have raised him since infancy. It is, therefore, necessary to remit this matter for a hearing and a custody determination to be made in accordance with Michael’s best interests (see, Matter of Sheila G., supra; Matter of Bennett v Jeffreys, 40 NY2d 543, 550; Matter of Jonathan D., 62 AD2d 947).” (171 AD2d 790, 791.)

After the proper, broad, "pure” Matter of Bennett v Jeffreystype best interests hearing was held in Family Court, the Appellate Division on February 24, 1992 added in the order now before us:

"In light of the lengthy period of time during which Michael resided with and psychologically bonded to his foster parents and given the potential for emotional as well as physical harm to Michael should permanent custody be awarded to his natural father, we find that the requisite extraordinary circumstances are present (see, Matter of Bennett v Jeffreys, 40 NY2d 543, 545), and conclude that the best interests of this child will be served by allowing him to return to his foster parents.
"In view of the testimony presented during the best interests hearing, this court concludes that Michael’s natural father is incapable of giving him the emotional support so vital to his well-being (see, Matter of Bennett v Marrow, 59 AD2d 492). The testimony presented by Dr. Sullivan and Mr. Falco indicated that an emotional void still existed between Michael and his father despite the eight to nine months during which they resided together prior to the best interests hearing and that this void showed no signs of being bridged.” (180 AD2d 792, 795-796.)

In sum, I cannot agree that the important and pervasive legal axiom "best interests of the child” is or was meant to be as constricted as it is in the Court’s application to this case. The governing phrase and test even in this statutory scheme ought to be as all-encompassing as in Matter of Bennett v Jeffreys (40 NY2d 543, supra), despite the difference in the procedural origin and setting of the two cases. The approach I urge, not unlike that of the Appellate Division in this respect, better serves the objectives of finality and certainty in these matters, more realistically takes into account the widely varying human conditions, and allows the Family Courts to achieve more uniformity and evenness of application of the rules. That is a better way to promote the best interests of this youngster with reasonable finality and the best interests of all others affected by the operation of these rules.

Chief Judge Wachtler and Judges Simons, Titone and Hancock, Jr., concur with Judge Kaye; Judge Bellacosa concurs in result in a separate opinion; Judge Smith taking no part.

Order reversed, etc.

      . What is before us is an appeal from foster care review under Social Services Law § 392. While there should have been an order disposing of the suspended judgment upon its expiration (see, 22 NYCRR 205.50 [d] [4]), in this case appellant’s "substantial compliance” with the conditions of the suspended judgment necessarily resolved the permanent neglect issue, since Family Court concluded the hearing by directing release of children to appellant after three negative drug tests.

      . Several model statutes would authorize termination of parental rights based on a child’s absence from the biological home for a substantial period, with the period depending on the child’s age. Such provisions were based on the notion, in circulation prior to and during the formulation of our current parental termination statute, that once a child under the age of three has been in the continuous care of the same adult for a year, it is unreasonable to presume that the child’s ties with biological parents are more significant than ties with long-term caretakers (see, Taub, Assessing the Impact of Goldstein, Freud and Solnit’s Proposals: An Introductory Overview, 12 NYU Rev L & Soc Change 485, 490). Our Legislature did not recognize prolonged separation as an additional ground for termination of parental rights.

      . Although the concurrence underscores the extraordinary nature of this case, widely publicized failures of the foster care system indicate that this situation is, regrettably, all too common. To the extent the courts have a role, heartbreak can perhaps be avoided and the statutory goals of early permanence and stability advanced by clear standards and by promptness in addressing child custody matters; no custody determination should be permitted to languish for years. The clear (by no means "constricting”) standard set forth by the Court, incorporating all of the relevant considerations, helps to assure that these unfortunate cases will not be caught in an endless loop between trial and appellate courts such as we have here.
      The concurrence agrees that this case must be reversed on the section 392 (6) (b) ground because "a contrary interpretation of that key provision, as used by the Appellate Division, would have internally contradictory implications in the field of temporary foster child placement.” (Concurring opn, at 318.) The same is true of the "best interest” test in that same section, which must be read in the context of our statutory scheme requiring parents and the State to work together toward the preferred goal (so long as it remains realistic) of keeping biological families together. Given that foster parents cannot obtain permanent custody under Social Services Law § 392 (6) absent termination of parental rights, the concurrence’s call for even greater "flexibility,” comparing foster parent to biological parent (see, Matter of Bennett v Jeffreys, supra), obviously could not further the objectives of finality and certainty in custody determinations.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Neil W. Moynihan, a Judge of the Surrogate’s Court, Schenectady County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued October 20,1992;
    decided November 18, 1992
    POINTS OF COUNSEL

      DeGraff, Foy, Holt-Harris & Medley, Albany (Carroll J. Medley and Kirk M. Lewis of counsel), for petitioner.
    I. The record does not support the Commission’s determination that charges one, two, five and six were sustained. (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386; Matter of LaBelle, 79 NY2d 350; Matter of Cohen, 68 Misc 2d 445.) II. The evidence does not support the charge that banking records were altered to conceal facts from the Commission. III. The ultimate sanction of removal is not warranted in the circumstances of this case. (Matter of Greenfield, 76 NY2d 293; Matter of Cunningham, 57 NY2d 270; Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397; Matter of Kelso, 61 NY2d 82; Matter of Edwards, 67 NY2d 153; Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279; Matter of Sims, 61 NY2d 349.)

      Gerald Stern, New York City, Cathleen S. Cenci and Jean M. Savanyu for respondent.
    I. Petitioner’s conduct violated established ethical standards and demonstrates his lack of fitness for judicial office. (Matter of Myers, 67 NY2d 550; Matter of Intemann, 73 NY2d 580.) II. Petitioner’s brief fails to address the facts and, in so doing, minimizes the extent of petitioner’s misconduct. III. The amicus brief misconstrues both the facts and the law.

      William P. Willig, Schenectady, for Schenectady County Bar Association, Inc., amicus curiae.

    I. Upon his confirmation as Surrogate, Judge Moynihan sought to complete his longstanding obligations as a fiduciary as soon as reasonably possible. His actions were consistent with both the best interests of his former clients and the spirit of his obligations as Surrogate under the applicable provisions of the canons of judicial conduct. None of the allegations or findings made against him relate to the actual performance of his judicial duties. II. Judge Moynihan’s reputation for honesty, integrity and impartiality is recognized by the public, the judiciary and the Bar of Schenectady County. III. Removal is inappropriate because petitioner’s conduct was not egregious, willful or defiant and did not amount to criminal or immoral conduct. (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386; Matter of Shilling, 51 NY2d 397; Matter of Boulanger, 61 NY2d 89; Matter of Lonschein, 50 NY2d 569; Matter of Intemann, 73 NY2d 580; Matter of LaBelle, 79 NY2d 350; Matter of Money, 70 NY2d 27; Matter of Kelso, 61 NY2d 82; Matter of Cunningham, 57 NY2d 270; Matter of Cooley, 53 NY2d 64.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Judge of Surrogate’s Court, Schenectady County, was charged with violating the Rules of Judicial Conduct in that, after becoming a full-time Judge, he continued to act as a fiduciary in several estates, continued to perform legal services, maintained an improper business and financial relationship with a law firm, failed to file reports of his extrajudicial activities, and altered entries relating to these improper activities in an attempt to mislead Commission investigators. Following a hearing before a Referee, the Commission on Judicial Conduct sustained the charges and determined that petitioner should be removed from office. On petitioner’s request for review, we conclude that the determination is supported by the evidence, and that the Commission’s recommended determination of removal should be accepted.

Petitioner was nominated for the interim appointment to Surrogate’s Court in May 1987. His nomination was confirmed on June 17, 1987 and he was sworn in as Surrogate two weeks later, on July 1, 1987. For more than 30 years prior to that time, petitioner had been a sole practitioner concentrating in the field of trusts and estates. He had shared offices with Thomas Hayner, Esq., for a number of years, and Hayner had worked on some of petitioner’s matters. Many of petitioner’s clients knew Hayner. Around the time of petitioner’s appointment as Surrogate, Hayner and petitioner’s son, who had been admitted to practice in 1986, formed the partnership of Hayner & Moynihan, which succeeded petitioner as counsel in numerous matters.

After becoming a full-time Judge, petitioner improperly continued to act as fiduciary in several estates, improperly continued performing business or legal services for clients, and maintained an inappropriate business and financial relationship with the firm of Hayner & Moynihan, which had an active practice before his court (see, Code of Judicial Conduct Canon 5 [C] [1]; [D]; Rules of Judicial Conduct, 22 NYCRR 100.5 [c] [1]; [d]). These improper activities continued into 1988, 1989, and even 1990.

Petitioner does not dispute his continued provision of fiduciary and other legal and business services. He claims, however, that his actions were necessary in order to wind up a busy practice with longstanding responsibilities to clients concerning estates matters that could not readily be transferred. The Commission did not find this explanation acceptable, nor do we. Petitioner continued the provision of fiduciary and other legal and business services for more than two years —an inexcusably long period — after assuming the Bench. Moreover, the work he continued to perform involved matters that came before his own court (albeit before different Judges).

Petitioner contends that the tasks he continued to perform, including filling out tax returns, banking activities, expediting stock transfers, and administering an estate under a certificate of voluntary administration, were purely "ministerial” acts that did not conflict with his judicial responsibilities. Some, he claimed, were matters as to which he had sole knowledge. To the extent these acts were indeed ministerial, no justification appears for his failure to turn them over to another attorney.

Petitioner urges that he made no effort to hide his activities. However, he has not adequately explained his failure to file reports of the compensation he received from his extrajudicial activities (see, Code of Judicial Conduct Canon 6 [C]; Rules of Judicial Conduct, 22 NYCRR 100.6 [c]), or his alteration of several checks and check stubs submitted to the Commission staff that obscured or concealed notations identifying client work.

In light of all these circumstances, we conclude that the Commission’s recommended sanction of removal was appropriate. (See, Matter of Intemann, 73 NY2d 580.)

Accordingly, the determined sanction of removal should be accepted, without costs.

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

Determined sanction accepted, without costs, and Honorable Neil W. Moynihan removed from the office of Judge of the Surrogate’s Court, Schenectady County.


author: Hancock, Jr., J. Bellacosa, J.

text:
    The People of the State of New York, Appellant, v Richard Corrigan, Respondent.
    Argued September 17,1992;
    decided October 27, 1992
    POINTS OF COUNSEL

      Howard R. Relin, District Attorney of Monroe County, Rochester (Elizabeth Clifford of counsel), for appellant.
    The lower courts erred in dismissing the instant charge. (People v De Salvo, 32 NY2d 12; People v Shinkle, 51 NY2d 417; People v Baptiste, 72 NY2d 356; People v Gonzalez, 68 NY2d 424; People v Wilkerson, 64 NY2d 749; People v Avant, 33 NY2d 265; People v Jones, 141 AD2d 763; People v Kersch, 135 AD2d 570; People v Eaddy, 142 Misc 2d 341; People v Steuding, 6 NY2d 214.)

      Harris Beach & Wilcox, Rochester (Lawrence J. Andolina and Daniel J. Moore of counsel), for respondent.
    The lower court correctly dismissed the charges because the prosecutor used immunized testimony during the Grand Jury investigation in violation of Corrigan’s State and constitutional protection against self-incrimination. (Mincey v Arizona, 437 US 385; Lisenba v California, 314 US 219; Shales v Leach, 119 AD2d 990; Garrity v New Jersey, 385 US 493; Matter of Matt v Larocca, 71 NY2d 154; Lefkowitz v Turley, 414 US 70; Gardner v Broderick, 392 US 273; People v Avant, 33 NY2d 265; Kastigar v United States, 406 US 441.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant police officer elected to testify before a Grand Jury which was investigating his misconduct during an arrest. During submission of evidence to the Grand Jury, the prosecutor had in his possession, and concededly reviewed, a copy of defendant’s immunized statement made involuntarily pursuant to an internal police investigation. The question presented on the People’s appeal is whether the prosecutor’s possession and review of the immunized statement during defendant’s testimony constituted a use of the statement warranting dismissal of the charges against defendant. Under the circumstances of this case, the prosecutor’s actions did not warrant dismissal, and County Court’s order should, therefore, be reversed.

I.

Defendant, an off-duty Town of Brighton police officer, was working as staff security at a restaurant. After watching a group of young men drink alcohol and act in a boisterous manner, defendant asked one of them to produce identification to establish his age. The young man could not provide identification and defendant ordered him not to drink. Defendant had seen another member of the group, Bihn Nguyen, giving drinks to this same young man. Defendant confronted Bihn, who began to argue. When defendant told the group to leave, they became abusive, and defendant finally advised the owner to call the local police. After the police arrived, defendant took Bihn outside to a police car. The People allege that defendant grabbed Bihn by the throat, bent him over the trunk of the car, and struck him in the head with a flashlight.

The Police Department conducted an internal investigation of the incident which included taking an internal affairs statement from defendant — a compulsory interview under threat of dismissal. As part of its internal investigation, the Police Department also interviewed officers who had been at the scene and had witnessed the incident. Subsequent to the departmental investigation, the matter was referred to the Grand Jury.

Two of the police officers who had been interviewed during the internal police investigation testified before the Grand Jury. During the examination of defendant — who voluntarily appeared before the Grand Jury and waived immunity — the prosecutor concededly had the statement before him in his presentation of the case and reviewed it while defendant was testifying. The statement was never offered into evidence, however, and the Grand Jury was not made aware of its existence. Defendant was neither confronted with the statement, nor was there any showing that he even knew the prosecutor possessed it.

Upon direction from the Grand Jury, the District Attorney filed an information charging defendant with two counts of assault in the third degree. At Town Court, defendant moved to dismiss the information on the ground that during the Grand Jury proceedings the People had made use of defendant’s involuntary statement in violation of his rights under the Federal and New York State Constitutions. Town Court granted defendant’s motion and dismissed the information. It concluded that the prosecutor had used the involuntary statement in the Grand Jury proceeding and that — excluding all evidence derived from its use — insufficient evidence existed to support the information. County Court affirmed, but noted that the information was supported by other properly admitted proof and could have been sustained. Nevertheless, County Court held that dismissal of the information was warranted pursuant to CPL 210.35 (5) because the prosecutor’s use of the involuntary statement had the over-all effect of forcing defendant to conform his Grand Jury testimony to his prior statement and thereby restricted his right to testify freely. A Judge of this Court granted leave to appeal.

II.

Under both the State and Federal Constitutions, a statement made under threat of dismissal is protected by the privilege against self-incrimination and automatically immunized from use in criminal proceedings (see, Matter of Matt v Larocca, 71 NY2d 154, 159; Lefkowitz v Turley, 414 US 70, 79). The immunity attaching to a compelled statement bars the People from using in any way the statement itself or any evidence derived directly or indirectly from it (see, Matter of Matt v Larocca, supra; Kastigar v United States, 406 US 441, 453). After the People are made aware of the fact that a defendant has made an immunized statement, the People bear the burden of establishing that any evidence used was derived from a source wholly independent of the statement (see, Braswell v United States, 487 US 99, 117; Kastigar v United States, supra, at 460-462; see also, United States v North, 910 F2d 843, 853-855; United States v Serrano, 870 F2d 1, 14-15). Where the People have submitted evidence obtained directly or indirectly from use of an immunized statement, the charge may be sustained only if supported by admissible evidence derived from an independent source (see, People v Avant, 33 NY2d 265, 271-272; People v Eckert, 2 NY2d 126, 129; see also, United States v Serrano, 870 F2d 1, 16, supra; United States v North, supra, at 854).

Notwithstanding the sufficiency of such properly admitted evidence, however, CPL 210.20 (1) (c) could, in some circumstances, provide a basis for a dismissal of the charge. Specifically, CPL 210.20 (1) (c) provides that a charge must be dismissed when the proceedings as a whole are defective within the meaning of CPL 210.35. Pursuant to CPL 210.35 (5), a Grand Jury proceeding is defective when "[t]he proceeding otherwise fails to conform to the requirements of [CPL 190] to such a degree that the integrity thereof is impaired and prejudice to the defendant may result.” CPL 190.50 (5) gives a defendant the right to testify at a Grand Jury proceeding, provided certain requirements are met, and charges have been dismissed under this section where this right has been denied (see, e.g., People v Green, 80 AD2d 650, 651 [prosecutor interrupted defendant several times and refused to allow her to complete her testimony]; see also, People v Massard, 139 AD2d 927; People v Davis, 119 Misc 2d 1013).

"Although not called as a witness by the people or at the instance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision”.

III.

We turn to the circumstances presented here. Defendant’s statement during the internal Police Department investigation was involuntary as a matter of law and automatically immunized from use in criminal proceedings. We are thus presented with two questions: (1) whether the prosecutor’s conduct constituted prohibited "use” of the immunized statement; and (2) if so, whether that "use” required dismissal of the information.

There is no showing that the prosecutor employed the statement as a source of information for questioning defendant. On the contrary, the record of defendant’s extensive testimony (covering 52 pages in the Grand Jury transcript) establishes that the prosecutor framed his questions to avoid any suggestion that he had any prior knowledge of the facts pertaining to the incident. All but three of his inquiries were nonspecific and nonleading, questions such as "What happened then?” and "What happened next?” The prior knowledge reflected in the three leading questions related to particulars already known by the prosecutor and fully available from other sources — i.e., the statements of the police witnesses in the police internal investigation report and the officers’ prior description of the same events in their testimony before the Grand Jury. No suggestion is made, and, moreover, defendant does not claim, that the People made any use of defendant’s statement as a source of information leading to the discovery of other information in the investigation (see, United States v Serrano, 870 F2d 1, 13-15, supra; compare, United States v Poindexter, 951 F2d 369, 374-377; United States v North, 910 F2d 843, 860-868, supra).

Nor does the record reveal any instance where the prosecutor could be said to have "used” his possession of the statement to control the witness or to affect in some way his answers or his demeanor. Defendant was never confronted with the statement, and indeed, there is no showing that he was even aware that the prosecutor had it (compare, New Jersey v Portash, 440 US 450, 458-460).

Defendant argues, nevertheless, and both courts below agreed, that the prosecutor’s mere possession and viewing of defendant’s immunized statement, without more, constituted a "use” prohibited by the State and Federal Constitutions. Defendant cites no authority, nor have we found any, to support his contention. We need not decide this question, however, because we conclude that the prosecutor’s conduct was not such a "use” as could warrant dismissal of the charges.

We find nothing in the record to support County Court’s conclusion that the prosecutor’s conduct had the effect of forcing defendant to conform his testimony to the statement and, thus, restricted his right to testify under CPL 190.50 (5). Given the absence of any indication that defendant was aware of the prosecutor’s possession of the statement, we cannot see how the statement could have affected his testimony. Indeed, a review of the 52-page transcript of defendant’s testimony reveals that it did not. Defendant was given wide latitude to offer his account of the incident. His answers were complete and, at times, lengthy and wide-ranging. He was never cut off or interrupted. We hold, therefore, that defendant was in no way inhibited from exercising his right to testify before the Grand Jury (see, CPL 190.50 [5]). Nor is there any other basis for a holding that the integrity of the Grand Jury proceedings was impaired or the defendant somehow prejudiced so as to require dismissal (see, CPL 210.20 [1] [c]; 210.35 [5]). For these reasons and because, as County Court held, the record contains ample evidence to sustain the charges independent of anything that could be attributed to the immunized statement, the dismissal of the charges should be reversed (see, e.g., People v Avant, supra, at 271-272).

We conclude with a word of caution. Although we hold that a dismissal of the information was not warranted, we by no means approve the practice followed by the prosecutor here. A defendant’s guarantee of immunity as well as his or her rights to testify before the Grand Jury must be scrupulously protected. To be sure, the possession of an immunized statement during a Grand Jury presentation could, in other circumstances, where the defendant becomes aware of the statement’s existence, be employed to compel the defendant to tailor the testimony to the statement or used in some other way to impair these guarantees. No reason is suggested for a prosecutor’s possession of an immunized statement during a Grand Jury presentation, and the practice should be avoided.

Accordingly, the order of Monroe County Court should be reversed, the information reinstated, and the case remitted to Mendon Town Court for further proceedings on the information.

Bellacosa, J.

(dissenting). I would affirm the lower courts’ dismissal of the criminal information for assault in the third degree.

Two critical facts are uncontroverted. First, the prosecutor possessed and read the defendant’s immunized statement prior to questioning the defendant — the target of the Grand Jury investigation — in the presence of the Grand Jury. Second, the presenting prosecutor held the immunized statement in his hand in the presence of the Grand Jury and defendant while he questioned the target defendant. Thus, it is plainly inaccurate to state that the People did not "in any way” use defendant’s immunized statement (majority opn, at 329).

Reasonable inferences from those two conceded uses, as drawn by the courts below, include that the prosecutor read the statement as part of his general preparation of the case and particularly for his interrogation of the target defendant in the Grand Jury. Another reasonable inference is that the "smoking gun” item was displayed by the prosecutor, who held it in his hand at the critical time and place. The likely strategic advantage sought was to assist in structuring the interrogation and in intimidating the target witness against testifying at variance with his prior sworn immunized statement. The prosecutor did not just discover this unauthorized evidence in his hands in the presence of the Grand Jury and the target witness at a critical juncture of this case.

County Court concluded on the appeal to that intermediate appellate court that "[defendant’s] statement was apparently used by the prosecutor to structure his examination of the defendant” (Monroe County Ct, Oct. 7, 1991, Wisner, J., slip opn, at 2). County Court also stated that it was "unable to parse out the effect of [the prosecutor’s] tactics” but found "the prejudice to the defendant [to be] clear” (id., at 4-5). I believe there is no basis for this Court to reject or undo the undisturbed facts and reasonable inferences drawn from the record by the courts below.

These record-rooted inferences are potent in themselves. They become dispositive, however, in the face of the unalterable burden placed on prosecutors in such matters and circumstances. Prosecutors must demonstrate that the use of forbidden evidentiary fruit was uncalculated and unconnected to the other evidence adduced before the Grand Jury. The prosecutor failed to meet or even try to meet that burden. Indeed, the Court acknowledges the burden and then ironically allows it to be shifted and inverted to the accused by relieving the prosecutor of providing any explanation and making the proper record. We should be unanimous that prosecutors who dominate the Grand Jury process should bear the burden and consequences of a barren record which fails to demonstrate that the People’s evidence was not obtained directly or indirectly through the use of the immunized statement and was derived from an independent source (see, majority opn, at 329). Targets, like defendant here, who are exercising a statutory right to testify by waiving immunity, should bear no such responsibility. They should not have to try to prove the negative of the prosecutor’s affirmative burden. Besides, targets and accuseds who find themselves in this virtually ex parte, vulnerable arena enjoy no meaningful opportunity to create a record. Thus, adverting repeatedly to the absence in the record of direct prejudicial impact on the defendant seems particularly unfair and misguided (see, e.g., majority opn, at 330, 331). It is not for us or the defendant to "suggest” a reason for "[the] prosecutor’s possession of an immunized statement during [the] Grand Jury presentation” (majority opn, at 332). That must remain the prosecutor’s burden to explain in fact, not in suggestion.

People v Avant (33 NY2d 265) cannot salvage this case for the prosecution on some alternative, fallback rationale. In Avant, defendants waived immunity and appeared to testify before a Grand Jury. They claimed after indictment that their appearance and waiver were involuntary. We held that, as a general rule, dismissal of criminal charges was not required if other independent evidence was legally available and sufficient. But, significantly, the Court adhered to People v Steuding (6 NY2d 214), requiring dismissal of the indictment where the defendant is a target and is wrongly, i.e., involuntarily, compelled to testify before a Grand Jury.

In the instant case, defendant was the target. Thus, the general rule employed in People v Avant (supra, at 271) does not control; instead, the exception based on People v Steuding (6 NY2d 214, supra) should apply and supports dismissal of this criminal information. While defendant here does not challenge the voluntariness of his Grand Jury appearance or waiver of immunity, he did suffer from the District Attorney’s strategic use of defendant’s concededly immunized statement in and during his own Grand Jury testimony. That is equivalent in this context to the violation of defendant’s right against self-incrimination. Thus, the Steuding dismissal remedy, preserved and restated in Avant, applies and should be employed to correct the error and to guard against improper advantage.

The Court’s expressed caveat and uneasiness concerning the precedential implications of approving the prosecutor’s conduct here, while it reverses and reinstates the information (see, majority opn, at 332), provides more food for thought. The effective way to ease that concern is to uphold the lower courts’ dismissal, not to reverse their actions. Otherwise, prosecutorial tactics of an unfair dimension and impact are bound to continue and proliferate. A still deeper concern is that this case may be read as signalling a weakening of New York State’s long-standing, unique immunity doctrine designed not only to be more generous in protecting against the power of State-compelled self-incrimination, but also to keep prosecutors in check in the exercise of their already disproportionately potent Grand Jury prerogatives (see, CPL 190.40, 190.45; Kastigar v United States, 406 US 441, 453; People v Sobotker, 61 NY2d 44; see also, People v Betts, 70 NY2d 289; United States v North, 910 F2d 843).

On the record before us, the lower courts correctly con-eluded that the prosecutor’s evident misuse in the Grand Jury of an immunized statement of the target defendant affected the integrity of the Grand Jury process. Inasmuch as the accusatory instrument suffers from a "legal impediment” (CPL 170.30 [1] [f]) and "fails to conform to the requirements of [the article governing the Grand Jury and its proceedings] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5]), this Court should sustain the dismissal of the information expressly authorized and contemplated by the interplay of those sections.

Chief Judge Wachtler and Judges Simons and Kaye concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in another opinion in which Judge Titone concurs; Judge Smith taking no part.

Order reversed, etc.

      . CPL 190.50 (5) states, in part:

      . Specifically, the prosecutor asked defendant if he had ever grabbed Bihn by the throat, if he had bent Bihn over the trunk of the police car, and if any other officer was holding Bihn when defendant struck him.

      . The dissent offers no reason for why, when there is concededly sufficient proof to sustain the charges, the information should be dismissed. People v Steuding (6 NY2d 214), relied on by the dissent, is inapplicable. There, the defendant was subpoenaed to appear before the Grand Jury and given immunity. The indictment was not dismissed for any tainting misconduct during the Grand Jury proceedings but because the subsequent indictment was based on immunized testimony given by defendant during his involuntary appearance.


author: Acting Chief Judge Simons.

text:
    In the Matter of Robert T. Rowe, a Suspended Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Argued October 15,1992;
    decided November 18, 1992

      POINTS OF COUNSEL

      William M. Brooks, Huntington, for appellant. I. Robert Rowe is not guilty of conduct that reflects adversely on his ability to practice law because he did not engage in any conduct that calls into question his character or fitness as an attorney.

      (Matter of Holtzman, 78 NY2d 184; People v Young, 65 NY2d 103; Jones v United States, 463 US 354; Matter of Cohen, 139 AD2d 221; Matter of Williams, 105 AD2d 974; Matter of Engram, 129 AD2d 115, 71 NY2d 889; Matter of Kiley, 170 AD2d 90; In re Levine, 675 F Supp 1312.) II. Imposing discipline on the basis of nonculpable conduct amounts to an arbitrary restriction on Bar participation. (Baird v State Bar of Ariz., 401 US 1; Ex parte Garland, 4 Wall [71 US] 333; Schware v Board of Bar Examiners, 353 US 232; Lawrence v Stevens, 370 F Supp 805; Matter of Holtzman, 78 NY2d 184; Matter of Gould, 4 AD2d 174; Matter of Nixon, 53 AD2d 178; Matter of Levy, 37 NY2d 279.) III. Appellant’s elopement from Creedmoor Psychiatric Center does not constitute conduct involving moral turpitude and was not prejudicial to the administration of justice. (Matter of Higgins, 105 AD2d 462; Matter of Kramer, 73 AD2d 983.) IV. Because appellant never engaged in an attorney-client relationship nor in any way advised or assisted an individual facing a legal problem, he did not violate his order of suspension. (Matter of New York County Lawyers’ Assn, v Dacey, 28 AD2d 161, 21 NY2d 694; State of New York v Winder, 42 AD2d 1039; People v Alfani, 227 NY 334.) V. Imposing discipline upon appellant because he wrote a legally oriented professional article violated his First Amendment rights. (Lowe v SEC, 472 US 181; Accountant’s Socy. v Bowman, 860 F2d 602; Thomas v Collins, 323 US 516; Matter of New York County Lawyers’ Assn, v Dacey, 28 AD2d 161.) VI. Because Robert Rowe has established as a matter of law that his disability has been removed and he is fit to practice law, this Court should direct his reinstatement. (Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; People v McRay, 51 NY2d 594; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; Shapiro v City of New York, 32 NY2d 96, 414 US 804, 1087; Matter of Rowe, 73 NY2d 336; Baird v State Bar of Ariz., 401 US 1.) VII. This Court should not impose any further sanctions against appellant other than censure. (Matter of Hoffmann, 41 AD2d 998; Matter of Kramer, 73 AD2d 983; Matter of Riccio, 131 AD2d 973; Matter of Williams, 105 AD2d 974; Matter of Kiley, 170 AD2d 90; Matter of Levy, 37 NY2d 279.)

      Mark F. Dewan, Brooklyn, and Robert H. Straus for respondent. I. Appellant’s conduct in killing his wife and three children adversely reflected upon his fitness to practice law.

      (Matter of Samuels, 22 AD2d 564; Matter of Anonymous, 21 AD2d 48; Matter of Levy, 37 NY2d 279; Matter of Nixon, 53 AD2d 178; Matter of Gould, 4 AD2d 174; Matter of Holtzman, 78 NY2d 184.) II. Appellant’s conviction of a "serious crime” while suspended adversely reflected upon his fitness to practice law. (Matter of Moskowitz, 130 AD2d 346; Matter of McKaba, 110 AD2d 79; Matter of Rosenbaum, 72 AD2d 251; Matter of Rosenbluth, 36 AD2d 383.) III. The Court below’s disbarment of appellant for violating its order of suspension was a proper exercise of that Court’s supervisory power. (Matter of New York County Lawyers’ Assn, v Dacey, 28 AD2d 161; Matter of Rosenbluth, 36 AD2d 383; Lowe v SEC, 472 US 181.) IV. The Court below’s exercise of its discretion in imposing a sanction upon appellant and denying his application for reinstatement should not be disturbed. (Erlanger v Erlanger [Erlanger], 20 NY2d 778; Erie County Water Auth. v Western N. Y. Water Co., 304 NY 342; Matter of Flannery, 212 NY 610.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

Respondent, an attorney licensed to practice law in this State since 1956, has been found guilty of eight charges of misconduct and disbarred. He raises two issues meriting discussion on this appeal. First, he claims that he cannot be found unfit to practice law because of acts committed while he was mentally ill and, second, he contends that the Court cannot discipline him for publishing a law-related article during his suspension from practice. We conclude that the Court properly considered respondent’s conduct while he was ill when determining fitness but that its imposition of discipline for publication of the article interfered with respondent’s constitutional right to free speech.

I

In 1978, respondent killed his wife and three children and was charged with four counts of second degree murder. A court found him not guilty by reason of mental disease or defect and ordered him placed in a psychiatric hospital. In 1980, respondent was discharged from the Creedmoor Psychiatric Center, and in 1988, he was discharged from mandated out-patient psychiatric care.

Following his acquittal respondent was suspended from the practice of law because of his mental disability. His subsequent applications for reinstatement were unsuccessful but in 1989, we reversed an Appellate Division order denying reinstatement and remitted the matter for a hearing to determine whether respondent’s disability had been removed and whether, based on the record, he was fit to practice law (Matter of Rowe, 73 NY2d 336).

On remittal, petitioner Grievance Committee for the Second and Eleventh Judicial Districts filed eight charges of misconduct against respondent and a Special Referee, appointed by the Appellate Division, found respondent guilty of all charges after a hearing. The Court confirmed the Referee’s report, rejected respondent’s application for reinstatement and disbarred him. This appeal followed.

II

The first four charges of misconduct relate to the four killings and allege respondent violated Code of Professional Responsibility DR 1-102 (A) (6) (now DR 1-102 [A] [7] [22 NYCRR 1200.3 (a) (7)]), which prohibits a lawyer from engaging in “conduct that adversely reflects on [the lawyer’s] fitness to practice law.” Respondent contends that he should not be disciplined for violating this rule because his conduct was not criminally culpable.

The Code of Professional Responsibility, promulgated by the American and New York State Bar Associations and implemented by the rules of the Appellate Divisions, counsels that the continued existence of a free and democratic society depends on a concept of justice based upon the rule of law. Lawyers play a critical role in sustaining the rule of law and thus it is necessary that the legal profession maintain its unique ability to do so by earning the respect and confidence of society (Code of Professional Responsibility, Preamble and Preliminary Statement, Judiciary Law, Appendix). To this end, the courts are charged with the responsibility of insisting that lawyers exercise the highest standards of ethical conduct and insuring that only those fit to practice law are admitted to the Bar. Conduct that tends to reflect adversely on the legal profession as a whole and to undermine public confidence in it warrants disciplinary action (see, Matter of Holtzman, 78 NY2d 184, 191, cert denied — US —, 112 S Ct 648; Matter of Nixon, 53 AD2d 178, 181-182; cf., Matter of Mitchell, 40 NY2d 153,156).

Respondent contends that though he has committed four homicides he was not mentally responsible for his acts and therefore those acts should not be considered in judging his fitness to be reinstated to the Bar. His argument fails to recognize the distinction between conduct that is criminal and conduct that disqualifies an attorney from entitlement to practice law. A disciplinary proceeding is concerned with fitness to practice law, not punishment. Criminal culpability is not, therefore, controlling (see, Matter of Samuels, 22 AD2d 564, 567, cert denied 383 US 954). The primary concern of a disciplinary proceeding is the protection of the public in its reliance on the integrity and responsibility of the legal profession (Matter of Levy, 37 NY2d 279, 282; Matter of Kahn, 38 AD2d 115, 124, affd 31 NY2d 752). Thus, the inquiry is not directed to the attorney’s subjective mental processes, but to the objective and qualitative nature of the conduct, for it is the acts themselves which the public sees and which guide its perception of the Bar (see, Matter of Gould, 4 AD2d 174, 175, lv denied 3 NY2d 708; see generally, Note, Disbarment: NonProfessional Conduct Demonstrating Unfitness to Practice, 43 Cornell LQ 489; 6 NY Jur 2d, Attorneys at Law, § 19). Although respondent was not criminally responsible for his acts, they tended to undermine public confidence in the Bar and, as such, they properly provided a basis for disciplinary action. Accordingly, charges one through four were properly sustained by the Appellate Division.

Ill

The eighth charge alleges that respondent violated the Appellate Division’s order of suspension by publishing an article in the Journal of Urban Psychiatry entitled The Right to Refuse Treatment: Therapeutic Orgy or Rotting With Your Rights On?, and by identifying himself in the article as "Robert T. Rowe, J.D.” The Appellate Division’s order, which substantially restates the provisions required by section 90 (2) of the Judiciary Law, directed respondent to desist and refrain "(1) from practicing law in any form * * * (2) from appearing as an attorney or counselor-at-law before any court * * * (3) from giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) from holding himself out in any way as an attorney and counselor-at-law”.

Respondent’s article did not violate subdivision (1) of the order. The practice of law involves the rendering of legal advice and opinions directed to particular clients (see, El Gemayel v Seaman, 72 NY2d 701, 706; Matter of New York County Lawyers’ Assn, v Dacey, 28 AD2d 161, 173-174 [Stevens, J. R, dissenting], revd on dissenting opn below 21 NY2d 694). Respondent’s article sought only to present the state of the law to any reader interested in the subject. Inasmuch as it neither rendered advice to a particular person nor was intended to respond to known needs and circumstances of a larger group, its publication did not constitute the practice of law.

The Appellate Division concluded that the publication violated subdivision (3) of its suspension order because the article "offered advice to readers on the significance and effect of court decisions concerning the legal rights of psychiatric patients who refuse treatment” (174 AD2d 159, 161). As so applied, the Court’s order violated respondent’s constitutional right to speak freely.

The courts may, in the public interest, prohibit attorneys from practicing law and that prohibition may incidentally affect the attorney’s constitutional right to free speech by forbidding the giving of advice to clients. Where the individual is not practicing law, however, and "does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech”, but rather impermissibly interferes with that individual’s First Amendment rights (see, Lowe v SEC, 472 US 181, 232 [White, J., concurring]; Thomas v Collins, 323 US 516, 544 [Jackson, J., concurring]). In this case, respondent was exercising his right to free speech by publishing his article (see, Matter of New York County Lawyers’ Assn, v Dacey, 28 AD2d 161, 176, revd on dissenting opn below 21 NY2d 694, supra). The Appellate Division, by applying its order to foreclose him from doing so, improperly "prohibited] him from engaging in endeavors which he could have undertaken had he never been admitted to the Bar in the first place” (see, Matter of Rosenbluth, 36 AD2d 383, 384).

Finally, it is not clear from the Appellate Division’s decision whether it concluded that respondent, by use of the letters J.D. following his name, had "[held] himself out * * * as an attorney” in violation of subdivision (4) of its suspension order. If it did so, its determination was error. The letters identified him as one who had successfully completed a law school curriculum, not as a member of the Bar licensed to practice law.

We have reviewed respondent’s other contentions and find them without merit.

Accordingly, the order of the Appellate Division should be modified, without costs, by denying petitioner’s motion to confirm so much of the Special Referee’s report as sustained the eighth charge of misconduct, granting respondent’s motion to disaffirm that portion of the Special Referee’s report, and remitting to the Appellate Division, Second Department, for reconsideration of the discipline to be imposed, and, as so modified, affirmed.

Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order modified, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.