text:
    [679 NE2d 1061, 657 NYS2d 581]
    In the Matter of Juan C., Respondent, v R.C. Cortines, as Chancellor of the New York City Board of Education, et al., Appellants.
    Argued February 5, 1997;
    decided April 1, 1997

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Jane L. Gordon, Barry P. Schwartz and Leonard Koemer of counsel), for appellants.

      Marcia Egger, New York City, and Jane M. Spinak for respondent.

      Dennis C. Vacco, Attorney-General, Albany (Barbara G. Billet, Peter H. Schiff and Lisa Lecours of counsel), for State of New York, amicus curiae.

      Stroock & Stroock & Lavan, New York City (Alan M. Klinger, J. R. Wilson and Adam M. Greenfield of counsel), and Rhonda Weingarten for United Federation of Teachers, amicus curiae.

      Daniel J. Popeo, New Hartford, and Richard A. Samp, of the District of Columbia Bar, admitted pro hac vice, for Washington Legal Foundation and others, amici curiae.

      Jeanne Edna Thelwell, New York City, Thomas D. Barr, Richard J. Davis, Dennis J. Saffran and Brian M. Stettin for Lawyers’ Committee on Violence, amicus curiae.

      Martin Guggenheim, New York City, and Randy Hertz for Advocates for Children and others, amici curiae.

   OPINION OF THE COURT

Bellacosa, J.

The Chancellor and President of the New York City Board of Education and the Superintendent of Bronx High Schools appeal from an Appellate Division ruling in a CPLR article 78 proceeding that nullified their actions in the underlying school matter. Student petitioner Juan C. sued them, seeking to annul a determination made, after a plenary hearing, by the Superintendent of the Bronx High Schools and affirmed by the Chancellor, that suspended the student from William Howard Taft High School for one year for carrying a gun into the school. The resolution also provided for the pupil’s continued educational needs at the Bronx Outreach Alternative Instruction Center.

Supreme Court dismissed the article 78 challenge. The Appellate Division reversed and annulled the schools’ determination. Applying the doctrine of collateral estoppel, it ruled that the educational authorities were precluded from reviewing the reasonableness and legality of the seizure of the gun from the student in a school hallway. The ruling suppressing evidence, rendered in a previously dismissed Family Court juvenile delinquency proceeding, was deemed determinative. That ruling rested on the Family Court Judge’s discrediting a school aide’s testimony as to what he observed about the student in the corridor.

On this key collateral estoppel aspect of this case, it should be emphasized that the Appellate Division grant of the petition to annul the educational entity’s determination rested on this core conclusion: "[t]he prerequisites for applying the doctrine have all been met: identity of parties and issues; a prior proceeding resulting in a final and valid judgment in which the party opposing the estoppel had a full and fair opportunity to litigate” (223 AD2d 126,130). The appeal is before this Court as of right pursuant to CPLR 5601 (b) (1).

The focus of this decision is entirely on the threshold question whether the doctrine of collateral estoppel applies to foreclose the education officials from separately determining the suspension and reassignment of the then-15-year-old student from whom the gun was seized in 1992 in his high school. We are satisfied that the collateral estoppel doctrine does not automatically block or limit the discrete action and remedial alternatives available to the educational entity.

The fact that the gun had been suppressed in a prior Family Court juvenile delinquency proceeding, instituted and prosecuted by the presentment agency in the name of the New York City Corporation Counsel pursuant to distinctively delegated special authorization in Family Court Act § 310.1, is not preclusive here. Thus, the otherwise sustainable findings and determination should not be disturbed in this proceeding. A reversal and reinstatement of the Supreme Court judgment dismissing the student’s CPLR article 78 proceeding is in order, and because the case is resolvable on that sole basis, we reach no other issue.

L

The testimony before the Board of Education Hearing Officer showed these salient facts about this case. On December 8, 1992, a school security aide at William Howard Taft High School, Luis Mujica, observed Juan C. walking towards him in the hallway. The security aide suspected the presence of a gun because he noticed something resembling the handle of a gun pulling down the left side of the student’s jacket, which was halfway closed. As the student passed, Mujica grabbed at him and the student then moved to avoid the aide. A hallway chase ensued, ending with Mujica catching Juan C. and feeling the gun on his person. Another school security aide arrived and removed the gun from the jacket. A third school security officer entered the scene and handcuffed the student, who was then taken to the Dean’s office. The youngster was later questioned by a police officer, who gave the student his custodial interrogation rights. Juan C. admitted taking the gun into the school but explained that he had found it in a park.

In Bronx County Family Court, Juan C. was charged with criminal possession of a weapon. After a suppression hearing, at which only Mujica testified, Family Court determined, essentially on credibility grounds, that the seizure of the gun was unreasonable and in violation of constitutional standards. It thus suppressed the gun and dismissed the juvenile delinquency petition for lack of evidence. The presentment agency took no appeal.

The Superintendent of the Bronx High Schools, shortly thereafter, instituted the educational disciplinary review that is the subject of this judicial proceeding and appeal. The Hearing Officer opened with a detailed explanation of the precise focus and pedagogical purpose of this distinct forum. In the framework of this hearing and with additional witnesses and evidence presented, the officer ultimately recommended that (1) collateral estoppel principles should not bar reexamination of the legality of the seizure of the gun for the purpose of this school disciplinary matter, and (2) Mujica had the initial, individualized, reasonable suspicion to believe that Juan C. possessed a gun, thus justifying the actions initiated and undertaken by the various school employees, including the eventual seizure of the weapon in the school corridor (Chancellor’s Regulations, Nos. A-432, A-441; compare, Matter of Gregory M., 82 NY2d 588, 592). The particularized findings were adopted by the schools Superintendent, who then imposed the one-year suspension and alternative school arrangement for Juan C. The Chancellor upheld the ruling on administrative appeal, specifically agreeing that the prior Family Court ruling was not preclusive against the school system which conducted its inquiry, made its findings, and addressed its special responsibilities in its separate forum (see, Chancellor’s Regulations, No. A-441).

Up to that point in the administrative process, New York City school personnel were in complete control of the pedagogical proceeding; they were the only official participants. The office of the New York City Corporation Counsel, which had presented and controlled the juvenile delinquency proceeding in Family Court pursuant to uniquely delegated responsibility under the Family Court Act, had no evident function in the subsequent school disciplinary examination (see, Family Ct Act §§ 254, 254-a, 301.2 [12]; see also, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29-A, Family Ct Act § 310.1, at 328). The reason for this discrete division of responsibility is that the Board of Education is an entity with an authority source and base that is distinctively separate from other usual City operations and powers and specifically distinct from the Corporation Counsel’s role under Family Court Act direction (id.; see also, Education Law arts 52, 52-A).

IL A.

Appellants were not parties to the Family Court proceeding. They cogently demonstrate that the collateral estoppel doctrine does not apply here to make the Family Court’s suppression ruling preclusive because no identity of parties and no full and fair opportunity to contest issues affecting the distinct pedagogical responsibilities were present or involved in the Family Court setting or adjudication. The contention continues that they, singly and as a collective educational entity, were never parties in any sense in the Family Court proceeding, any more than the Corporation Counsel was a party or even the legal representative in the school disciplinary track in any official role or participation — until later down the judicial review litigation route. Therefore, appellants contend, and we agree, that the educational entity did not share actual or functional identity as parties and did not receive in the Family Court setting any opportunity — no less a full and fair one — to contest the issues suffusing its unique educational responsibilities, especially as they are so prominently affected by the presence of the gun on school premises and the manner in which it was perceived and seized by school personnel.

The equitable doctrine of collateral estoppel is "intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it” (Kaufman v Lilly & Co., 65 NY2d 449, 455). It "is grounded on concepts of fairness and should not be rigidly or mechanically applied” (D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664). Its essential ingredients are: "[f]irst, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (Kaufman v Lilly & Co., supra, at 455, citing Gilberg v Barbieri, 53 NY2d 285, 291). Significantly, "[t]he party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” (Kaufman v Lilly & Co., supra, 65 NY2d, at 456).

In general,, "a nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation” (D’Arata v New York Cent. Mut. Fire Ins. Co., supra, 76 NY2d, at 664; see also, People v Roselle, 84 NY2d 350). This constitutes a form of privity; however, "the term privity does not have a technical and well-defined meaning” (Watts v Swiss Bank Corp., 27 NY2d 270, 277). Rather, it "is an amorphous concept not easy of application” (D’Arata v New York Cent. Mut. Fire Ins. Co., supra, at 664), and "includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action” (Watts v Swiss Bank Corp., supra, 27 NY2d, at 277). Importantly, "all the circumstances must be considered from which one may infer whether or not there was participation amounting to a sharing in control of the litigation” (id.).

To round out the discussion of generally relevant authorities, we also note the collateral estoppel doctrine in its criminal or quasi-criminal context. Although collateral estoppel is "a common-law doctrine rooted in civil litigation,” the principle has some limited overlap into criminal matters (People v Aguilera, 82 NY2d 23, 29). Notably, however, "collateral estoppel is not as liberally applied in criminal prosecutions as in civil actions” (People v Acevedo, 69 NY2d 478, 485, citing People v Goodman, 69 NY2d 32, 37; People v Plevy, 52 NY2d 58, 64; People v Berkowitz, 50 NY2d 333, 344-346; People v Reisman, 29 NY2d 278, 285, cert denied 405 US 1041). Rather, "[w]e have actually employed the doctrine only once in a criminal case — to preclude the People from relitigating the fact of defendant’s alleged presence at a crime scene” (People v Aguilera, supra, 82 NY2d, at 29, citing People v Acevedo, 69 NY2d 478, supra). This is so, because "in criminal prosecutions, where defendant’s liberty interest is at stake, the preeminent concern is to reach the correct result, and hence the policies underlying issue preclusion are different” (People v Aguilera, supra, 82 NY2d, at 30 [citations omitted]).

II B.

We turn our attention now especially to the identity of party aspect of the doctrine. Generally, a party appearing in an action in one capacity is not bound by the doctrine of collateral estoppel in a subsequent action in which the party appears in a different capacity (see, e.g., Green v Santa Fe Indus., 70 NY2d 244, 254; see also, Restatement [Second] of Judgments § 36 [2], at 359).

The situation presented in the instant case is quite distinctive because of the nature, particular function and purpose of the two governmental entities and the discrete issues in each matter. Since "the source of authority of two government entities is not dispositive of whether they are in privity” for collateral estoppel purposes (United States v Romero, 836 F2d 39, 43, cert denied 488 US 817), both the circumstances of the actual relationship between the two agencies as demonstrated by the record and their statutory relationship are relevant (see, e.g., Matter of Home of Histadruth Irvith v State Facilities Dev. Corp., 114 AD2d 200, 205). Consequently, "[i]n some circumstances, a prior determination that is binding on one agency and its officials may not be binding on another agency and its officials” (Restatement [Second] of Judgments § 36, comment f, at 364). To be sure, "[i]f the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them, the earlier judgment should not be given preclusive effect in the second action” (Restatement [Second] of Judgments, § 36, comment f).

Thus, despite the respective appearances of the Corporation Counsel in the juvenile delinquency forum and in the eventual article 78 judicial proceeding challenging the Chancellor’s educational determination, the Corporation Counsel’s roles in the two procedures were functionally discrete and traced to very different source lines of authority. The mere fact that the Corporation Counsel may eventually become the Chancellor’s lawyer for ultimate litigation purposes — as in this article 78 proceeding and appeal — does not automatically and retrospectively satisfy the party identity prerequisite demanded for collateral estoppel to have its powerful issue preclusive effect. We find no support or authority or analysis for the proposition that would allow that consequence to flow out of the juvenile delinquency proceeding and its legal management. The Family Court role was plainly in contradistinction to the separate educational disciplinary proceeding and forum that the Corporation Counsel entered after it was administratively complete in all respects, including the Chancellor’s administrative appeal.

Concomitantly, too, the Corporation Counsel, as presentment agency, played no role whatsoever in school safety or education and had no representational or other responsibility at any stage of the educational forum or administrative determination level. Rather, the core responsibility to provide a secure and appropriate educational environment for all students and school personnel, and all associated procedural offshoots of that function, were reposed in the Chancellor and his associated school officials. Thus, the educational entity’s overarching function in a school suspension and relocation proceeding was to provide for and safeguard all students’ educational needs, including that of the offending student. It did so in the very proceeding and determination under review in this article 78 challenge.

Our conclusion regarding the distinction between the role of Corporation Counsel in each of the two matters here is buttressed by the decision in People v Roselle (84 NY2d 350, supra). There, this Court determined that the doctrine of collateral estoppel did not preclude the criminal prosecution of a defendant for the same incident which resulted in a Family Court determination that defendant neglected a three-year-old child (id.., at 352). We reasoned that "[t]he orientation of Family Court is rehabilitative, directed at protecting the vulnerable child, as distinct from the penal nature of a criminal action which aims to assess blame for a wrongful act and punish the offender” (id., at 355). The Court concluded that although the Family Court Act requires the District Attorney (or in New York City, the Corporation Counsel), to be named as a necessary party to certain Family Court Act article 10 child protective proceedings, a subsequent criminal action based on the same incident by the District Attorney was not foreclosed (id., at 352-353, 355-356). An opposite conclusion would be "contrary to our jurisprudence” because the passive function of the District Attorney in the protective proceeding is significantly distinct and separate from its plenary role in the criminal action (id., at 356; see also, Brown v City of New York, 60 NY2d 897, 898). Conversely, this analysis and articulation help pave the way to the result and rationale we espouse in deciding that the Family Court ruling in this case should not preclude the school system examination and determination to serve its purposes and responsibilities.

That the Corporation Counsel appeared in different capacities in the Family Court and article 78 proceedings is also underscored by article 3 of the Family Court Act. The Family Court Act provides that "[i]n all cases involving abuse * * * outside the city of New York, the appropriate district attorney shall be a necessary party to the proceeding” (Family Ct Act § 254 [b]; see, People v Roselle, supra, at 355-356). Notably, the numerous local school boards throughout this State are unquestionably distinct from local District Attorneys, who are charged with the prosecution of many juvenile delinquency cases in Family Courts. It would be unsupportable and too high a jurisprudential price to pay to use the doctrine of collateral estoppel to bar all such local school boards from exercising their educational, community-wide responsibility, independently and distinctively from the control and consequences of the actions of the local District Attorneys, flowing from their individualized, narrower and distinctive Family Court juvenile delinquency responsibilities. Thus, we discern no precedential or policy justification for concluding that a different set of rules should govern when Family Court proceedings, brought by the Corporation Counsel pursuant to Family Court mandate, happen to occur in New York City.

Importantly, under the statutory scheme of article 3 of the Family Court Act, the Corporation Counsel is not acting as the chief legal officer of the New York City government. Rather, that officer is designated by State statute as the presentment agency for all juvenile delinquency charges, except designated felony acts or criminal proceedings removed to the Family Court from the criminal courts (see, Family Ct Act §§ 254, 254-a, 301.2 [12]). The effect of the designation as the presentment agency under article 3 is a legislative delegation of the exclusive prosecutorial function for the criminal acts of juveniles committed within the appropriate territorial jurisdiction.

Under Family Court Act § 310.1 (2), only a presentment agency may originate a juvenile delinquency proceeding, by the filing of a petition. That section makes the presentment agency "the actual petitioner [and] confers full * * * prosecutorial authority upon the presentment agency” (Sobie, Practice Commentary, McKinney’s Cons Law of NY, Book 29A, Family Ct Act § 310.1, at 328). The presentment agency is given exclusive authority to screen cases, refuse to file petitions and decide whether to take appeals (id.). The presentment agency’s exclusive status as petitioner was adopted to avoid having its authority "seriously compromised if the petition remained the instrument of a private aggrieved party” (id.).

Thus, the statutory framework expressly negates any interpretation that school officials possess a legally recognized role or right to exercise control over or even participate in any meaningful way in the presentation of and decisions affecting a juvenile delinquency proceeding. Everything in theory and practice points the other Way. Likewise, the complete autonomy and independence of the presentment agency in the statutory scheme negates any inference that its role was to represent the interest of the school officials in the delinquency proceeding prosecution (Watts v Swiss Bank Corp., 27 NY2d 270, supra).

Additionally, in Brown v City of New York (60 NY2d 897, supra), this Court concluded that issue preclusion did not apply against the defendant City of New York in a civil action for false arrest, false imprisonment and assault based on the dismissal of a criminal charge against the defendant in a criminal action for resisting arrest, prosecuted by the Queens District Attorney (id., at 898). The Court determined that the Queens District Attorney and the City of New York were separate entities and did not "stand in sufficient relationship to apply the doctrine” (id., at 898-899; see, People v Roselle, 84 NY2d 350, supra). The lack of "sufficient relationship” has been applied to defeat the interposition of collateral estoppel in a variety of factual constructs, most not even close to being as distinctive as the instant circumstance between the presentment agency and the New York City Schools Chancellor (see, e.g., Matter of Saccoccio v Lange, 194 AD2d 794, 795; Doe v City of Mount Vernon, 156 AD2d 329; People v Morgan, 111 AD2d 771, 772; see also, Matter of New York Site Dev. Corp. v New York State Dept. of Envtl. Conservation, 217 AD2d 699, 700; Matter of Mason v Rothwax, 152 AD2d 272, 285, lv denied 75 NY2d 705).

With the guidance and direction of these many authorities, we conclude that these appellants did not share identity as parties, were not allied with the special role of the Corporation Counsel as presentment agency, and were not afforded any full or fair opportunity to litigate their concerns in the Family Court juvenile delinquency proceeding. They are not in legal or practical privity with the presentment agency; they had no legal or functional party status in the Family Court proceeding; petitioner Juan C. in this proceeding wholly failed to meet his burden here for invoking collateral estoppel under our settled precedents; and the Chancellor sufficiently met his corresponding burden that the school officials were not afforded a full and fair opportunity to effectuate their pedagogical interests and responsibilities. Additionally, the fact that the Board had no role to effect an appeal of the Family Court suppression determination illustrates its essential and functional lack of opportunity to litigate issues that relate to its responsibilities (see, e.g., Johnson v Watkins, 101 F3d 792, 795, citing People v Sailor, 65 NY2d 224, 229, cert denied 474 US 982; Restatement [Second] of Judgments § 28 [1 \,United States v Davis, 906 F2d 829, 835). In law, purpose and actual practice, the Chancellor’s and the Board’s procedures and wider educational community concerns are functionally and fundamentally discrete and independent from the presentment agency and that office’s uniquely delegated and described responsibility in a juvenile delinquency proceeding in Family Court, such as was presented here.

Ill

Despite abundant, cogent and integrated authorities as pertinently applied to these facts, petitioner stresses Matter of Finn’s Liq. Shop v State Liq. Auth. (24 NY2d 647, cert denied 396 US 840). There, this Court applied collateral estoppel and the exclusionary rule in State Liquor Authority (SLA) administrative proceedings to preclude evidence unlawfully seized by municipal police officers. The Court determined the officers acted as agents of the Liquor Authority. We rejected the SLA’s assertion that it had no association with the District Attorney and, thus, should not have been precluded by the determination in the prior criminal action (id., at 662). Refusing to permit the SLA to reexamine the issue of the legality of the seizure previously decided by the criminal court, the Court reasoned that "[although the two agencies may be treated, for other purposes, as independent parties, this can hardly be the case where they are both seeking to use the same police officials as their agents to gather evidence” (id.). Therefore, the Court concluded, "[i]f the search and seizure was unconstitutional to the extent that it was performed for the benefit of the prosecutor, the same act could hardly be considered lawful for the Authority’s purposes” {id.).

We are frank to acknowledge that some of that language is facially problematic here because the hall monitor’s actions and testimony constitute the same core evidence advanced in each forum. Importantly, however, the analysis of identity of parties and issues involves a case-by-case determination (see, Watts v Swiss Bank Corp., 27 NY2d 270, 277, supra). In Finn, the Court found an alignment of interests based on the sharing of agents by the parties — the police officials used to gather evidence. Finn is, therefore, critically distinguishable in that here there was no alliance, affiliation, privity or identity between the presentment agency and the Chancellor and other school officials. The security aide here hardly constitutes a "shared agent.” Additionally, Mujica was a mere witness in both the Family Court matter and the educational forum. The Board of Education proceeding was supported by evidence and witnesses beyond him, and by discrete, supportable findings. Finally, the nature of a quasi-law enforcement proceeding, such as a State Liquor Authority violation hearing, and the fact that the State Liquor Authority works with State law enforcement officers creates a sufficiently distinguishable factual scenario raising the special concerns that drove the Finn analysis. The security aide and other participating school personnel under these circumstances are functionally different from ordinary and usual law enforcement officers. That is a key distinction from Finn.

A few words are also necessary about People ex rel. Dowdy v Smith (48 NY2d 477) because of the reliance given it by Juan C. and the Appellate Division. In Dowdy, this Court held that "[a] prior acquittal based on the defense of entrapment in a criminal proceeding collaterally estops the Board of Parole from revoking parole on the basis of the transactions proved and admitted in the criminal action” (id., at 479-480; see also, People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76, 83). The Court determined in Dowdy that there was an identity of parties, reasoning that "the People as prosecutors in the criminal action stood in sufficient relationship with the Division of Parole in the parole proceeding to meet the requirements of the doctrine in this respect” (id., at 482; contrast, People v Roselle, supra).

Dowdy and Piccarillo are, however, likewise readily distinguishable from the instant case. Accepting, again, that the identity of parties determination must be made on a case-by-case basis (Watts v Swiss Bank Corp., 27 NY2d 270, 277, supra), the cases are substantially and significantly distinguishable in that their holdings are based on the unique relationship between the Division of Parole and the People, qua prosecutors. That inherent nexus is entirely absent here. Additionally, these cases involved a quasi-law enforcement proceeding (a parole violation), arising in an agency setting that customarily functions directly with State law enforcement officers. That is demonstratively not so for school personnel.

IV,

The flow of these authorities and rubrics on the instant juridical matrix of parties leads us confidently to the conclusion that collateral estoppel should not be deployed to handicap or foreclose the appropriate officials of the New York City Board of Education from exercising their responsibilities and prerogatives, as they did here. A governmental entity (this independent school system) was not afforded the necessary full and fair participatory role within the framework and jurisdiction of the distinctly quasi-criminal, rehabilitative forum and proceeding conducted and controlled exclusively by a legislatively delegated special agent (the Corporation Counsel as presentment agency). Also, the presentment agency did not represent the school officials in any stage of their proceeding at that forum level. Thus, the Chancellor and the other school officials, in law and fact, demonstratively lacked the requisite "sufficient relationship” or privity or uniformity of interest with the presentment agency in the juvenile delinquency proceeding. The latter official, moreover, has an entirely different purpose and source of authority for its quasi-prosecutorialrehabilitative role, as contrasted to the specially oriented pedagogical-rehabilitative one of the school system in relating to the problem with which it was confronted in this set of circumstances.

In sum, because indispensable ingredients of the collateral estoppel doctrine are plainly lacking here, that equitable doctrine should not block and interdict the independent inquiry and determination of the educational authorities. Moreover, because the record evidence supports the determination reached by the Chancellor and his affiliated school officials, we reverse and dismiss the article 78 judicial proceeding.

It should be emphasized, however, that while we uphold the action of the school authorities in dealing with this offending student, we should not lose sight of a seeming paradox that these same school authorities must simultaneously exemplify, honor and fulfill their constitutional and pedagogical obligations by respecting the rights of the many thousands of law-abiding students, yearning to learn about school subjects and life in society (see, Cardozo, The Paradoxes of Legal Science, in Selected Writings of Benjamin Nathan Cardozo, at 251 [Hall ed 1947]; see also, Bellacosa, Benjamin N. Cardozo: The Teacher, 47th Cardozo Lecture, vol 3, Memorial Lectures, Assn of Bar of City of NY, Nov. 9, 1994, at 1594, 1612). The natural and inherent tension in trying to satisfy these complementary responsibilities, goals and values — that everyone should cherish highly in our law-governed society — is real and difficult of achievement; yet the challenge is worthy of all our best efforts.

On a policy overview, the courts should be mindful not to incidentally compromise the independence of the authority of the school system of New York City, because such an inference could inappropriately affect pedagogical prerogatives. We caution, on the other hand, that the recognition of the value of independence and the inapplicability of the collateral estoppel doctrine to automatically bar use of evidence in this instance and in this educational proceeding and forum in no way invests the Chancellor and school officials or employees and their actions with immunity from appropriate scrutiny of the Judicial Branch when circumstances not now before us may warrant. The courts should remain vigilant in encouraging incentives that guarantee, first, within the educational apparatus itself, respect, high regard, training, proper supervision and sanctions, and, second, among all responsible entities, compliance with constitutional standards and safeguards. School officials and employees in their dealings with the pupils placed in their responsible and temporary charge should be held to no lesser standards of high conduct and high purpose.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

Chief Judge Kaye and Judges Titone, Smith, Levine, Ciparick and Wesley concur.

Order reversed, etc.


source: Caselaw Access Project

author: Titone, J. Bellacosa, J.

license: Public Domain

text:
    [680 NE2d 134, 657 NYS2d 863]
    The People of the State of New York, Respondent, v Matthew Adessa, Appellant.
    Argued February 4, 1997;
    decided March 27, 1997

      POINTS OF COUNSEL

      Nicolosi & Sciacca, Bayside (Vincent F. Nicolosi and Matthew J. Larkin of counsel), for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Alexander H. Gardner and John M. Castellano of counsel), for respondent.

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Glenn Green of counsel), and Francis D. Phillips, II, District Attorney of Orange County, Goshen, for New York State District Attorneys Association, amicus curiae.

   OPINION OF THE COURT

Titone, J.

The issue in this appeal is whether it is inherently prejudicial to obtain an indictment against a civilian defendant from a Grand Jury that has also been asked to consider a police misconduct charge arising out of the same incident. On this appeal, defendant contends that such a presentment procedure so impairs the integrity of the Grand Jury proceeding as to taint the indictment. Finding no concrete prejudice resulting from the “dual slip” presentment in this case, we conclude that the indictment against defendant was properly upheld.

According to the evidence presented to the Grand Jury as described in the opinions below, defendant entered a Queens gas station at about 4:50 a.m. on the morning of October 2, 1993. Having been asked to pay in advance for his gas, defendant reentered his vehicle and sped away. In the process, he allegedly hit another car that was parked at the gas station and nearly struck a security guard who was attempting to record his license plate number.

Two police officers in an unmarked vehicle observed defendant’s hasty departure from the gas station. Believing that a robbery may have occurred, they chased defendant through several traffic lights, flashing their headlights and using an attachable rotating red light. When defendant’s vehicle finally came to a stop, the officers exited their car and identified themselves. At that point, the officers saw the back-up lights on defendant’s vehicle flash on and, fearful that defendant was about to back into them, the officers returned to their car. Defendant sped off again and the chase resumed, terminating only when defendant brought his vehicle to a stop in the right-hand lane of the Long Island Expressway.

Defendant alit from his car with a baseball bat in his hand and moved in the officers’ direction. The officers again identified themselves as police and ordered defendant to drop the bat. Rather than doing so, however, defendant continued to move toward them. One of the officers fired his weapon at defendant, striking him in the legs and buttocks. Defendant ran back to his car and sped away. He was subsequently arrested at Deepdale Hospital, where he had driven for treatment immediately after the shooting.

Approximately three weeks after the arrest, defendant’s attorney advised the District Attorney’s office that he planned to request an administrative and criminal investigation into possible misconduct by the officer who had fired at defendant. Noting the prospect of a conflict arising from the existence of defendant’s cross complaint, defense counsel further advised the District Attorney that his client would not testify before the Grand Jury with respect to the charges leveled against him.

On November 10,1993, the matter was presented to a Grand Jury as a "dual slip” presentment, the first "slip” involving "the People against Matthew Adessa” and the second involving "an investigation into the shooting of Matthew Adessa.” The only witnesses to testify were the gas station attendant, the shooting officer’s partner and a third officer who had been sent to the hospital to place defendant under arrest. Neither defendant nor the shooting officer testified before the Grand Jury.

On February 2, 1994, the Grand Jury voted to indict defendant on two counts of first degree reckless endangerment, two counts of second degree reckless endangerment, one count of second degree menacing, one count of fourth degree criminal possession of a weapon and one count of leaving the scene of an accident. The menacing and weapon counts arose out of defendant’s alleged use of a baseball bat and the remainder of the charges arose out of his vehicular activities. Several charges were also submitted against the shooting officer, but the Grand Jury declined to indict.

On April 27th, defense counsel moved to dismiss the indictment against defendant in motion papers that detailed defendant’s claim of police misconduct. Defense counsel’s affirmation alleged, among other things, that defendant had been unaware that the unmarked vehicle chasing him contained police officers. He had brandished the baseball bat at the vehicle’s occupants, who had never identified themselves as police officers, because he feared for his own safety. Defense counsel also alleged that defendant had already turned around to flee when the officer fired his third shot. In further support of his claim that the police had acted improperly, counsel noted that the officers had not attempted to apprehend the injured defendant after he reentered his car and fled the scene of the shooting.

Several months later defense counsel filed a supplementary motion for dismissal, asserting that he had just learned that both the case against his client and the "investigation” into the police officers’ conduct had been presented to the same Grand Jury. Counsel argued that the Grand Jury proceeding was "tainted” because defendant, the only person with evidence to give against the officers, was "never given an opportunity to appear” or to give testimony in the proceeding. Counsel further argued that the Grand Jury could not have impartially considered the evidence against defendant when it "had already found credible” the testimony of the People’s police officer-witness.

The Supreme Court granted defendant’s motion and dismissed the indictment. The court noted that the District Attorney could not be faulted for failing to notify defendant of the presentment against the officers or for depriving him of an opportunity to testify against them, since, unlike a target, a complainant has no statutory or common-law right to appear before a Grand Jury and the People enjoy broad discretion in determining how to conduct their case. Nonetheless, the court concluded that the People had breached their obligation of fairness by taking advantage of a "spilling over of sympathy” by the grand jurors for the officers, prejudicing defendant’s right to an unbiased Grand Jury hearing.

On the People’s appeal, however, the Appellate Division reversed and reinstated the indictment. While it recognized that the People’s discretion with regard to Grand Jury presentations is not without limits, the Court found no reason in law or policy to hold that two separate Grand Juries are required when there are cross accusations by police officers and citizens. Additionally, on the facts before it, the Appellate Division concluded that there was no basis for a finding that "the Grand Jury proceeding was impaired to the defendant’s possible prejudice.” (218 AD2d 415, 420.) Defendant has appealed by permission of a Judge of this Court.

It is beyond dispute that the Grand Jury has the dual role of investigating crimes and protecting citizens from unfounded prosecutions and governmental overreaching (People v Lancaster, 69 NY2d 20, 25; People v Calbud, Inc., 49 NY2d 389, 396). It is also beyond dispute that improper influences and exposure to bias can so undermine the Grand Jury’s integrity as to require dismissal of the resulting indictment (see, People v Huston, 88 NY2d 400; CPL 210.20 [1] [c]; 210.35 [5]). The issue presented here does not concern the vitality of these principles, but rather concerns the nature and extent of particularized prejudice, if any, that this defendant suffered by virtue of the "dual slip” procedure that was followed in his case. Absent a breach of a statutory command or some indication of likely prejudice, there is no legal basis for interfering with the prosecutor’s prerogatives in determining the manner in which a Grand Jury presentment is made.

We begin our analysis with defendant’s own claims of prejudice. In an argument that met with success in the Supreme Court, defendant contends that the joint presentment of citizen-police officer cross complaints is "inherently prejudicial” because the "societal respect and admiration police officers enjoy” could induce the grand jurors to give undue credence to the police-generated evidence against the civilian target. The argument, however, does not withstand scrutiny, since it rests on a speculative assumption that is neither self-evidently valid nor pragmatically viable in our system of criminal justice. That rationale is clearly not acceptable.

First, because the enforcement of the criminal laws is entrusted to police officers, the conduct and testimony of police officers figure prominently in virtually every aspect of criminal proceedings. Further, because the police-witnesses’ version of events is frequently challenged, the probity and veracity of police officers must often be assessed in the face of conflicting versions offered by civilian-witnesses, including the accused. Thus, to adopt the assumption that police testimony enjoys an unwarranted advantage in credibility disputes would be to cast doubt on the fairness of nearly every proceeding in which the truth of such testimony is disputed. Second, in this age of spontaneous videotaping of arrests and widespread news coverage of police brutality claims, it seems doubtful that many grand jurors asked to resolve a credibility dispute between an officer and a civilian would necessarily be strongly inclined to decide it in the police officer’s favor simply because of his or her position in the law enforcement establishment.

Finally, even assuming the correctness of defendant’s assumption that grand jurors are generally biased in favor of police officers, it is difficult to see how that assumption supports his present objection to the use of a single Grand Jury to evaluate both the case against him and the claim against the officers. If the prosecutor had followed the course defendant advocates and presented the cases to separate Grand Juries, the evidence against defendant would still have consisted primarily of police officer testimony and the ostensible problem of bias in favor of such testimony would still exist. Indeed, in this respect, the "dual slip” presentment could just as easily have had a salutary rather than a prejudicial effect, since it at least made the grand jurors aware that the testifying police officer’s partner had been accused of misconduct in connection with the incident and, accordingly, gave some basis for questioning the testifying officer’s candor and veracity.

The same analytical problem exists with respect to defendant’s second point, which emphasizes the purported unfairness of a procedure which in his case ensured that the civilian-complainant — the only individual likely to support the claim of police misconduct — would not appear. Initially, as defendant concedes, there is no rule of law requiring the District Attorney to call the complainant or any other witness to testify before the Grand Jury. Further, neither a complainant nor a target has a right to be informed of the manner in which a Grand Jury presentment will be made (see generally, People v Stepteau, 81 NY2d 799). The only right defendant had in this regard was the right conferred by CPL 190.50 (5) (a) to testify on his own behalf. However, for strategic reasons, defendant chose not to exercise that right.

Even if separate Grand Juries had been used, defendant’s police misconduct claim could not have been introduced into the Grand Jury proceeding against him unless he decided to waive immunity and assert his target’s right to testify under CPL 190.50 (5) (a). As the record makes clear, defendant, the only witness with evidence to give against the police officer, elected not to follow that course. Significantly, he made that decision at a time when he believed that the Grand Jury presentment pertained only to the charges against him. Thus, it was not the District Attorney’s decision to proceed with a "dual slip” presentment that prejudiced defendant’s ability to place his version of events before the Grand Jury, but rather his own decision to forgo his right to testify (see, People v Lancaster, 69 NY2d 20, 25-26, cert denied 480 US 922, supra).

To be sure, had he known of the simultaneous presentment of the charges against the police officer, defendant would have been faced with the tactically difficult choice of waiving his own immunity or forgoing the opportunity to give evidence against the police officer. Under that scenario, defendant’s interests as a citizen-complainant would unquestionably have been impaired. That circumstance, however, would not change the analysis here, since the only question before us is whether defendant’s interests as a Grand Jury target were so prejudiced as to vitiate the integrity of the indictment that was issued against him.

We stress that our holding in this case should not be construed as a blanket approval of the practice of submitting criminal charges against citizens and cross complaints against police officers to the same Grand Juries. We recognize that there may be situations in which such a practice could undermine the fairness of the proceeding and lead to palpable prejudice for the accused. We also are concerned about the potential for injury to the public interest that arises when the People fail to zealously pursue a bona fide accusation of police misconduct because of their fear that a criminal case against a civilian will be compromised. The latter concern, however, is a policy consideration that cannot sensibly be remedied by the dismissal of an otherwise valid indictment.

The dissent’s argument, which advocates deference to the trial court’s "particularized assessment” of the record before it, is flawed for several reasons. First, the argument proceeds from the erroneous assumption that the inquiry here concerns factual and discretionary issues and implicates the trial courts’ supervisory function. However, the question whether a particular presentment was so improper as to impair the integrity of the Grand Jury proceeding and to create the potential for prejudice has always been treated as a question of law. Indeed, all of our recent rulings under CPL 210.35 (5) analyze the question as one of law, and there is no hint in any of our writings of deference to the lower courts’ fact findings, discretionary choices or supervisory prerogatives (see, e.g., People v Huston, 88 NY2d 400, supra; People v Sayavong, 83 NY2d 702; People v Caracciola, 78 NY2d 1021). That the analysis requires consideration of all of the surrounding circumstances (dissenting opn, at 688, citing People v Huston, supra, at 409; People v Sayavong, supra, at 709) does not convert the inquiry from a legal one to a mixed question of law and fact or a discretionary matter warranting appellate restraint. Traditional "harmless error” analysis unquestionably entails an evaluation of the evidence and other relevant circumstances (see, People v Schaeffer, 56 NY2d 448), yet this Court has squarely rejected the suggestion that the question should be treated as a "mixed” one (People v Reddick, 65 NY2d 835).

The dissent’s call for deference to the trial court is particularly puzzling because the inquiry here involves only a review of transcripts and affidavits — a task that affords Trial Judges no special advantage over Judges at the appellate level. Indeed, despite the dissent’s assertion that trial courts have a "special” role in reviewing Grand Jury proceedings and even have special powers "to search the record and examine the more general claims an accused attempts to assert” (dissenting opn, at 690) and despite its suggestion that only the trial court had access to "the whole of the known, official record of [the] proceedings” {id., at 691), nowhere does the dissent identify how the inquiry at the trial court level differs from the appellate inquiry or how the record before the trial court differs in any respect from the record that is currently before us on this appeal.

Moreover, even if deference to the trial court were appropriate in the abstract in cases involving CPL 210.35 (5), it makes little sense to accord such deference here, where the trial court’s conclusion, which rested on a perceived "spilling over of sympathy” for the police by the grand jurors, is one that even the dissent would not adopt. It is, indeed, ironic that the dissent urges us to embrace the trial court’s holding because of its somehow more "appropriate” "fact-specific” inquiry and more "probing scrutiny” {id., at 690, 689), but at the same time judiciously steers clear of the trial court’s actual analysis and rationale.

Finally, although GPL 210.35 (5) does not require a showing of actual prejudice, there must be an articulable "likelihood of’ or at least "potential for” prejudice (see, People v Huston, supra, at 409). It simply does not suffice to refer to "nuanced guideposts” or "factual evolvementfs]”; some specific theory of prejudice must be identified in order to justify a dismissal under the statute. The only concrete problems that the dissent cites are that the Grand Jury "was not afforded [a] full and fair opportunity to evaluate the entire criminal activity” and that the "defendant’s right, opportunity and decision concerning the presentment of his side of the case and story were prejudicially compromised.” Whether defendant’s rights were "prejudicially” and wrongfully compromised, however, is precisely the question placed before us on this appeal. The dissent’s assertion of prejudice only begs that question and certainly does not serve to answer the critical question of how the "dual slip” procedure that the prosecution used here might have prejudiced the accused. Even more to the point, the "faults” that the dissent identifies were not the result of the "dual slip” procedure at all, but rather were a natural consequence of the fact that, apart from the accused police officer and his partner, defendant was the only person who could have shed light on the encounter, and he chose not to testify. Significantly, neither the dissent nor the appealing defendant has posited an alternative procedure that would have been less "prejudicial” or, more specifically, would have enabled defendant to place his side of the story before the Grand Jury that considered the charges against him. Inasmuch as no one has identified a cognizable risk of prejudice arising from the "dual slip” procedure itself, there was no basis for dismissing the indictment.

Accordingly, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(dissenting). We are satisfied that the trial court’s particularized assessment of the entire record evidence and circumstances and conditional termination of this prosecution do not rise to the level of error as a matter of law. Its conclusion that the integrity and fairness of this Grand Jury action was impaired by the manner and procedures with which the prosecutor handled the presentment (CPL 210.20 [1] [c]; 210.35 [5]) is amply supported by the record. Thus, we respectfully dissent and would reverse and reinstate the trial court’s dismissal of the indictment, with leave to the People to represent.

We agree that defendant’s proffered per se rule should not be adopted. That approach would inappropriately and unnecessarily restrict prosecutorial authority to present multiple, related matters to a Grand Jury, solely because an arrested citizen makes a cross complaint against an involved police officer. The long-standing theoretical and operational principle that the People retain wide discretion to present evidence and witnesses to the Grand Jury is thus not in dispute among us (see, e.g., Matter of Morgenthau v Altman, 58 NY2d 1057, 1059; People v Lancaster, 69 NY2d 20, 25, cert denied 480 US 922; People v Stepteau, 81 NY2d 799, 800; People v Mitchell, 82 NY2d 509, 515). It is certainly not the fulcrum of our difference of view about the analysis and outcome of this case.

Rather, this dissenting expression springs from the undue restriction correlatively imposed by the rule of this case on trial court authority to supervise the proper and fair conduct of Grand Jury proceedings and to review and remedy defects and prosecutorial overreachings (People v Pelchat, 62 NY2d 97, 106; CPL 190.25 [6]). Even as to this concern, we have no disagreement with respect to the role of a District Attorney as legal advisor to the Grand Jury, a power that vests that executive officer with substantial, virtually unilateral control over Grand Jury proceedings (see, CPL 190.25 [6]; 190.55; People v Di Falco, 44 NY2d 482, 487).

This Court has, however, consistently emphasized that prosecutorial discretion is not absolute or final and that the "duty of fair dealing” in Grand Jury proceedings owed to a potential accused is a right and protection afforded through appropriate judicial oversight (People v Pelchat, supra, 62 NY2d, at 105; see, People v Zimmer, 51 NY2d 390, 395-396). Courts are, therefore, statutorily and precedentially authorized to dismiss indictments for overzealous violation of this correlative value when a prosecutorial presentment fails to conform to the requirements of CPL article 190 "to such a degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5]; 210.20; see, People v Williams, 73 NY2d 84, 90). Moreover, it is not the burden of an accused or of us in dissent to propose "alternative” procedural rubrics for a prosecutorial failure to measure up to those high and important standards (majority opn, at 686).

The assessment of the prejudicial impairment to the Grand Jury process requires trial courts to review the entire record of the particular case in light of all the circumstances surrounding the proceeding (People v Huston, 88 NY2d 400, 409; People v Sayavong, 83 NY2d 702, 709). When appropriate, "a review of the Grand Jury minutes might be necessary in order to demonstrate the possibility of prejudice” (People v Di Falco, 44 NY2d 482, 488, supra [emphasis added]). To be sure, the "mere showing of a defect in the Grand Jury proceedings” will not suffice (id.; People v Huston, supra, 88 NY2d, at 409; compare, People v Mitchell, 82 NY2d 509, 513-514, supra).

Using these general and nuanced guideposts and rejecting the per se proposals of the defendant as well as that of the prosecution, we turn to the Trial Judge’s careful and thorough review of the record and still-sealed Grand Jury minutes in this case. That court concluded that "the likelihood of prejudice” to defendant was sufficient to warrant dismissal of the indictment (People v Huston, supra). The court assayed correctly, in our view, that this so-called "dual slip” procedure created the possibility of prejudice to the defendant based on the whole factual evolvement and legal presentment. The double fault of this case is that (1) the Grand Jury was not afforded the full and fair opportunity to evaluate the entire criminal activity and interaction of the parties under its most unusual configuration, and (2) defendant’s right, opportunity and decision concerning the presentment of his side of the case and story were prejudicially compromised by the strategic maneuvers of the prosecution side (see, People v Evans, 79 NY2d 407, 414; CPL 190.50 [5]; People v Mitchell, supra, 82 NY2d, at 518 [dissenting opn]).

The trial court’s assessment of the Grand Jury consideration of this matter reveals that, at best, there was a bifurcated, temporally distinct and seriously skewed presentment of defendant’s alleged criminal activity in relation to the conduct of the shooter police officer. The record is, at worst, bare and, at least, ambiguous that an authentic "dual slip” presentment occurred here. Yet, that procedural advantage is what the prosecutor, the amicus District Attorneys’ Association, and Appellate Division so assiduously strain to preserve with a per se unilateral control.

The first so-called "slip” was introduced as "the People * * * against Matthew Adessa.” The related "dual” subject was presented to the Grand Jury as the "[ijnvestigation in the matter — the shooting of Matthew Adessa.” Apparently, a justification instruction relating to the police officer's conduct was acontextually tacked onto some other general instructions and definitions given to the Grand Jury at some different time from the testimonial evidence. While the transcript is hard to pin down, the Grand Jury evidently voted no true bill (or it voted not to investigate) as to the officer who shot defendant-appellant three times during one part of the episode at issue and only then curiously abandoned any further pursuit of the wounded, initial bat-wielding aggressor, who was allowed to flee in his car to reach a hospital on his own. The facts and prosecution, solely against the defendant-appellant, generate more questions than they answer, even for early-procedural-stage skirmishings. This is a case that does not call on anyone for an ultimate judgment of the conduct of the contending protagonists. The separate but sequential frames of conduct in the chase, confrontation, shooting and peculiar disengagement suggest that neither contender is wholly without blame of some kind. But this is not a morality play about good versus evil or whether one or the other participant is touched by an angel. It is about simple fairness of the adversarial, accusatory process in getting at the truth and the neutral Magistrate guarding and enforcing the correlative rights and duties of the parties before the tribunal.

Importantly, therefore, the trial court took the full measure of this over-all matter at this initiatory stage and discharged its directly relevant responsibility and power by concluding, on appropriate defense motion, that there was a likelihood that defendant’s rights and procedural protections were prejudiced (People v Sayavong, 83 NY2d 702, 711, supra; see also, People v Huston, 88 NY2d 400, 409, supra; CPL 210.35 [5]). The test is not "inherent,” "palpable,” or "cognizable” prejudice (majority opn, at pp 679, 684, 686); it is likelihood and possibility of prejudice, a quantification the fact-finding court had just cause to find as it did on this record. Thus, in this case there is no justification for the appellate courts to disturb or nullify that judiciously founded nisi prius ruling and its carefully calibrated remedy allowing re-presentment. The trial court in this case saw enough to disturb its sense of justice and fairness in the particular presentment. Therefore, sufficient reason filtering through this sparse record for the appellate courts provides enough to sustain the trial court’s probing scrutiny and ruling.

Additionally, trial courts are not limited to examining a defendant’s specific assertions of unfairness in these situations, but are also empowered to search the record and examine the more general claims an accused attempts to assert. This is so because in most cases, as in the case at bar, accuseds have no access to the confidential Grand Jury minutes and, therefore, are seriously disadvantaged when they try to speculate on specific challenges to the propriety of a prosecutor’s usually unilateral presentation to a Grand Jury.

Frankly, that is one reason why the initial role of the trial courts in reviewing otherwise secret proceedings is so central and special under this Court’s precedents and jurisprudence. They are the primary, on-the-scene gatekeepers against prosecutorial overreaching in customarily shielded proceedings. Let us be sure about what the trial court did — it rejected defendant’s arguments for a general per se prohibition of dual presentments. We agree with that. It also rejected any notion of a defense entitlement to step-by-step notice of strategic prosecutorial actions. We agree with that, too. But highly significantly, it found that the particular prosecutorial activities in this case impaired the integrity of this Grand Jury to the detriment of defendant’s protections by prejudicially compromising defendant’s informed exercise of his statutory rights (see, People v Evans, 79 NY2d 407, 414, supra; contrast; People v Mitchell, 82 NY2d 509, 513-514, supra).

In sum, the trial court applied standard operating principles of "fair dealing” applicable to any Grand Jury proceeding, whether characterized or classified as "dual slip” or anything else. Its type of fact-specific, case-by-case inquiry, necessary to weigh the fairness of this Grand Jury proceeding, is appropriate and supportable, not as a matter of "deference” to trial courts, but based on the record here and given the disproportionate influence of protagonists before "independent” and "secret” Grand Juries (see, e.g., People v Robinson, 89 NY2d 648, 655, n 2 [decided today]; majority opn, at 685), especially given the curiously unusual circumstances that unfolded here, factually and presentment-wise. As this Court stated unanimously in People v Evans'.

"The obligation under GPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed (see, e.g, People v Young, 138 AD2d 764; People v Skrine, 125 AD2d 507), is an added window given to defendants. However, the District Attorney acquires no correlative right to control or restrict the timing of the exercise of the right. This is especially important because defendant’s appearance before a Grand Jury is the singular incursion on the prosecutor’s otherwise exclusive stronghold” (id., at 414; contrast, People v Mitchell, 82 NY2d 509, supra).

Finally, we believe it should not be said as a matter of law that the trial court erred or abused its authority based on the whole of the known, official record of proceedings in this case. Indeed, the trial court is likely to face the responsibility, on the reinstatement of this indictment against defendant, to take an appropriately judicious look, on proper motion pursuant to CPL 210.30 to inspect or unseal and turn over the Grand Jury minutes. The re-presentment might be then purged of the strongly demonstrated and realistic possibility and potentiality for prejudice that permeates this case.

The correctness of the trial court order dismissing the indictment, with leave to the prosecution to resubmit and fairly present the accusations against defendant is well founded.

Chief Judge Kaye and Judges Levine and Wesley concur with Judge Titone; Judge Bellacosa dissents and votes to reverse in a separate opinion in which Judges Smith and Ciparick concur.

Order affirmed.

      . The dissent’s characterization of the record makes some clarification necessary. The Grand Jury presentment occurred over two days. On the first day, November 10, 1993, the Grand Jury was told that they would be considering two matters: the People against Matthew Adessa and an "[i]nvestigation in the * * * shooting of Matthew Adessa.” The Grand Jury then heard the prosecution’s evidence. The entire matter was continued on February 2, 1994. At that time, the Grand Jury was instructed both on the elements of the charges against defendant and on the elements of first degree assault with respect to the police officer’s alleged misconduct. The elements of the justification defense were also submitted in connection with the assault charge against the police officer. While the Grand Jury transcript does not include a report of the Grand Jury’s actual vote on the charges, it is fair to assume that the Grand Jury did in fact vote on the specific charges that it was asked to consider, including the assault count against the officer, and that, as the Appellate Division stated, it voted to report a "no true bill” on the assault charge.

      . The dissent’s assertion that "[t]he record is * * * ambiguous that an authentic 'dual slip’ presentment occurred here” is difficult to comprehend, since defendant’s entire argument — as well as the trial court’s holding — rests on the assumption that such a procedure was used and led to the impairment of the Grand Jury proceeding. If the "dual slip” aspect is removed from the case, defendant would have no argument at all.


author: Bellacosa, J.

text:
    [680 NE2d 142, 657 NYS2d 871]
    In the Matter of James L. Rogers, Appellant, v New York City Transit Authority, Respondent.
    Argued March 20, 1997;
    decided May 1, 1997

      POINTS OF COUNSEL

      Arthur N. Eisenberg, New York City, Christopher Dunn and Norman Siegel for appellant.

      Ira J. Lipton, Brooklyn, and Martin B. Schnabel for respondent.
   OPINION OF THE COURT

Bellacosa, J.

This CPLR article 78 proceeding seeks review and annulment of the New York City Transit Authority’s determination, under which petitioner-appellant James Rogers was fined $50 for selling his organization’s newspaper on a subway station platform in violation of Rules of the Metropolitan Transportation Authority § 1050.6 (b) (21 NYCRR 1050.6 [b]). The Appellate Division order reversed a Supreme Court judgment in Rogers’ favor, confirmed the Transit Authority determination and dismissed the proceeding. Rogers appeals as of right on constitutional grounds (CPLR 5601 [b] [1]).

The principal, intertwined issues relate to whether (1) the Transit Authority’s adoption and promulgation of regulations for specified distributions of expressive materials on subway platforms transforms those transportation system locations into public forums; (2) Rogers’ sale of. the newspaper is commercial activity subject to the Transit Authority regulation; (3) Rogers’ claimed not-for-profit political campaign activity provides a general immunity from reasonable regulation by reason of supervening First Amendment protections; and (4) the Transit Authority’s particularly applied ruling here, under the challenged regulatory paradigm, meets precedential and constitutional standards of reasonableness and fairness.

We uphold the Appellate Division ruling in favor of the Transit Authority because appellant’s claims do not constitute constitutional deprivations. Rather, the Transit Authority’s regulatory and adjudicative actions are within reasonable constitutional parameters, dictated by its primary and essential public transportation function and responsibility to provide safe and secure services. This case also reflects its reasonable management of a subsidiary role in fairly and evenhandedly controlling the large number and variety of purveyors of ideas, views, goods and services on its stretched network and myriad properties.

L

Rogers is a member of a political organization known as the Socialist Workers’ Party (SWP). On October 30,1993, just prior to the New York City elections, he and other SWP volunteers set up a card table on the mezzanine level of a subway station in Jamaica, Queens, for the purpose of campaigning for their candidates. While Rogers distributed some literature for free, he offered books and a weekly party newspaper, the Militant, for sale only. In response to a warning from a Transit Authority officer that this sales activity violated Transit Authority rules, Rogers and his associates removed their table from the subway station. Due to inclement weather, they later moved the table back inside, repositioned themselves by the station escalator and resumed their activities, including offering materials for sale. A Transit Authority officer issued Rogers a notice charging him with violating a rule against selling materials of this kind in the subway.

A hearing was held and the Transit Adjudication Bureau (TAB) determined that Rogers violated section 1050.6 (b) by engaging in "unauthorized commercial activity,” and imposed the standard $50 fine. TAB’s Appeals Board sustained the determination. Rogers sued, asserting that he did not receive a fair hearing, that his activities were permitted under 21 NYCRR 1050.6 (c) and that the Transit Authority action violated his right to free speech under the Federal and State Constitutions.

The trial court ruled in Rogers’ favor. It reasoned in part that the "incidental sale of a few copies of a political party’s newspapers during the course of a political campaign does not constitute 'commercial activity.’ ” It further held that "[t]he protection afforded free speech on the street, under the circumstances of the case at bar, can be extended to include the conduct of Petitioner [on the subway premises].”

The Appellate Division unanimously reversed and dismissed the proceeding (227 AD2d 629). The Court held that the Transit Authority’s determination that Rogers violated 21 NYCRR 1050.6 (b) was supportable in that it properly applied the rational rule and was entitled to deference (id., at 630). Addressing the constitutional claim, the Court reasoned that the subway is not a public forum and was not transformed into one by the Transit Authority’s enactment of 21 NYCRR 1050.6 (c), which authorizes certain nontransit activity (id., at 630-631). It concluded that the Transit Authority’s limited expansion of the function of the subway, by the enactment of 21 NYCRR 1050.6 (c), "expressly did not encompass the commercial activity at issue” (id., at 631). We now affirm.

IL

No one disputes that Rogers’ general right to sell books and promote his personal and his organization’s political views falls within First Amendment protection (see, Heffron v International Socy. for Krishna Consciousness, 452 US 640, 647; Murdock v Pennsylvania, 319 US 105, 111). This case is not about that.

Pertinently here, nothing in the Constitution commands that dissemination of all forms of speech at all times on all kinds of property are absolutely protected under the First Amendment, without regard for the nature of the activity, the property or the disruption that might be engendered by unregulated expressive activity in certain circumstances (see, International Socy. for Krishna Consciousness, v Lee, 505 US 672, 677; Cornelius v NAACP Legal Defense & Educ. Fund, 473 US 788, 799-800; United States Postal Serv. v Greenburgh Civic Assns., 453 US 114, 129). "Recognizing that the Government, 'no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,’ ” the United States Supreme Court has accepted a "forum based” approach for assessing restrictions that the government may place upon the use of property (Cornelius v NAACP Legal Defense & Educ. Fund, supra, 473 US, at 800 [quoting Greer v Spock, 424 US 828, 836]; see also, International Socy. for Krishna Consciousness, v Lee, supra, 505 US, at 678). This principle should apply as well to quasi-public entities.

Under the public forum doctrine, regulation of speech on government property that traditionally or by designation has been opened up for public expression and debate should be subjected to the sharpest scrutiny. Regulations of time, place and manner of expression may be permissible only when they are content-neutral and narrowly tailored to serve a significant government interest and allow for alternative modes and methods of communication (Perry Educ. Assn. v Perry Local Educators’ Assn., 460 US 37, 45). Indeed, a content-based prohibition might survive only when it is narrowly drawn to achieve a compelling governmental interest (see, id.; see also, International Socy. for Krishna Consciousness, v Lee, supra, 505 US, at 677; Cornelius v NAACP Legal Defense & Educ. Fund,, supra, 473 US, at 800). Importantly, everyone agrees that this case does not involve content-based regulations of any kind or quality.

A corollary principle allows government, when it acts as proprietor, to reserve property for its intended primary purpose, as long as restrictive regulations on speech are reasonable and not an effort to suppress expression because of disagreement with the speaker’s view (see, Perry Educ. Assn. v Perry Local Educators’ Assn., supra, 460 US, at 45 [citing United States Postal Serv. v Greenburgh Civic Assns., 453 US 114, 131, supra]; see also, International Socy. for Krishna Consciousness, v Lee, supra, 505 US, at 678-679).

Also of significance is the rubric that "[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse” (Cornelius v NAACP Legal Defense & Educ. Fund, supra, 473 US, at 802). Absent evidence of a contrary intent, authorization of certain speech activities by the government — or a quasi-governmental entity like the Transit Authority — will not be deemed to transform an otherwise nonpublic forum into a wholly open public forum freed of any reasonable regulation regimens (id., at 803). Thus, utilization of a nonpublic forum may be limited by speaker, subject matter and form of expression, so long as the restriction is viewpoint-neutral; to the extent a forum is designated to engender or foster some First Amendment activity, reasonable limitations on access are recognized to preserve and protect the retained nonpublic uses (see, id., at 806; International Socy. for Krishna Consciousness v Lee, supra, 505 US, at 682; United States v Kokinda, 497 US 720, 730; see also, Widmar v Vincent, 454 US 263; Madison School Dist. v Wisconsin Empl. Relations Commn., 429 US 167; Southeastern Promotions v Conrad, 420 US 546; Loper v New York City Police Dept., 999 F2d 699, 703 [2d Cir]; Young v New York City Tr. Auth., 903 F2d 146, 161-162 [2d Cir], cert denied 498 US 984).

While the United States Supreme Court’s adoption of the public forum doctrine has met with some critical commentary, as for example, allowing the government too much discretion in limiting the scope of designated public forums, it is the law (see, e.g., International Socy. for Krishna Consciousness v Lee, 505 US 672, 695, supra [Kennedy, J., concurring]; Cornelius v NAACP Legal Defense & Educ. Fund, supra, 473 US, at 813-822 [Blackmun, J., dissenting]; Tribe, American Constitutional Law § 12-24, at 996 [2d ed 1988]; Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L Rev 1713, 1745 [1987]). Part of the redeeming value for the doctrine, however, is that the tolerated restrictions and nuanced distinctions must be reasonable in light of the purpose which the particular property and forum serve (Perry Educ. Assn. v Perry Local Educators’ Assn., 460 US 37, 47, supra [citing Greer v Spock, 424 US 828, 838, supra]). Delicate as that doctrine may be in particular applications, it strives for a realistic and fair balance.

IIL

In considering the public forum analysis in the context of this case, everyone should prudently assay the distinctive character of the particular property and entity implicated here — a public, urban transportation system. In this regard, the United States Supreme Court’s reasoning in International Socy. for Krishna Consciousness v Lee (505 US 672, supra) emerges as particularly cogent and instructive. There, the Supreme Court pertinently held that an airport terminal operated by a public authority is a nonpublic forum. The Supreme Court noted that airport terminals historically have not been made available for assembly and debate, nor have they been opened to expressive activities by airport operators and managers (id., at 680-681). It rejected a comparison to other transportation hubs, at which speech activities may have been tolerated, and noted that equating airports with other transportation centers would not take into account the extent to which such facilities can accommodate expressive activity (id., at 681-682). Notwithstanding the myriad commercial enterprises and services that are provided in airport terminals, the Supreme Court observed that "[ajlthough many airports have expanded their function beyond merely contributing to efficient air travel, few have included among their purposes the designation of a forum for solicitation and distribution activities” (id., at 683).

The Supreme Court in Lee upheld as reasonable the Port Authority’s prohibition on solicitation. It added that solicitation disrupts the normal flow of traffic and delays passengers, often with troublesome and costly consequences (id., at 683-684) . Ultimately, the Supreme Court observed that the Port Authority allowed solicitation outside the terminals and, therefore, assured reasonable access to travelers (id., at 684-685) . To be sure, the multiple opinions in Lee ultimately converged to strike down a general prohibition against the distribution of literature. The portion of the regulation challenged by ISKON in that case encompassed a prohibition against leaf-letting and is, therefore, plainly distinguishable and inapt in assessing the narrow, particularized prohibition against commercial sales activity at issue here.

The Transit Authority’s primary function in operating the New York City subway system and its associated properties is unquestionably to facilitate the safe and efficient transport of passengers in a responsible manner, just as the Port Authority, as implicated in Lee, seeks to do with its facilities. Thus, even applying the most stringent standards applicable to public forums, the Transit Authority has shown a compelling interest in providing the service and securing protection of the entire riding public and the surrounding communities. Correspondingly, it tries also to serve the needs and interests of competitors for limited space and interactive opportunities, not directly related to its essential function and service.

Ultimately, we are persuaded by Lee that the Transit Authority’s subway stations are not public forums but, at best for appellant Rogers’ purposes, they would be limited public forums subject to reasonable regulation. These premises of our analysis are also consistent with analogous and instructive Federal case law (see, International Socy. for Krishna Consciousness v Lee, 505 US 672, supra; see also, United States v Kokinda, 497 US 720, supra; Young v New York City Tr. Auth., 903 F2d 146, 161-162 [2d Cir], supra; Loper v New York City Police Dept., 999 F2d 699, 703 [2d Cir], supra; see generally, Gannett Satellite Information Network v Metropolitan Transp. Auth., 745 F2d 767, 773 [2d Cir]).

By enacting section 1050.6 (c) in conjunction with subdivision (b), the Transit Authority opened limited access to its subway stations to a variety of nontransit expressive activities, including "public speaking; distribution of written noncommercial materials; artistic performances, including the acceptance of donations; solicitation for religious or political causes; [and] solicitation for charities” (21 NYCRR 1050.6 [c]). While expressive activities of these kinds, therefore, cannot be deemed necessarily inconsistent with the essential nature and transportation uses of the properties (compare, Greer v Spock, 424 US 828, 836, supra), the Transit Authority has expressly circumscribed the authorized forms of speech by retaining its prohibition against "commercial activity” (21 NYCRR 1050.6 [b]). We are satisfied that the Transit Authority possesses the legitimate authority to provide a public forum accommodation with some limited access and within a reasonable, content-neutral set of regulations.

¡V,

Rogers urges this Court, in interpreting article I, § 8 of the State Constitution, to reject the public forum doctrine and its effect on this case. He proffers a more "contextual and fact-sensitive approach” under which a person engaged in expressive conduct would have a right of access to public property, subject only to narrowly tailored restrictions, so long as the manner of expression is not basically incompatible with the intended use of the property. He relies on language in Grayned v City of Rockford (408 US 104), a pre-public forum doctrine case, and People v Leonard (62 NY2d 404), a case in which this Court vacated a former student’s conviction for trespass on a SUNY campus. We stated in People v Leonard:

"[W]hen the public enjoys broad license to utilize certain property, State trespass laws may not be enforced solely to exclude persons from exercising First Amendment or other protected conduct in a manner consistent with the use of the property. * * * Therefore, a decision to exclude that is predicated on or impermissibly inhibits a constitutionally or a statutorily protected activity will not be lawful” (id., at 410-411 [citations omitted]).

That is an entirely distinct context with no apt application here. Moreover, Rogers curiously adds in this regard that the Second Department, in SHAD Alliance v Smith Haven Mall (106 AD2d 189, revd 66 NY2d 496), applied People v Leonard (62 NY2d 404, supra) in a manner that he claims supports his unpersuasive theory here. This Court’s rejection of the Appellate Division approach in SHAD Alliance, in effect, formidably undercuts the point of his argument and instead furnishes supplementary support for the result and rationale we adopt in the instant case. SHAD Alliance v Smith Haven Mall helps to sustain the proposition that New York Constitution, article I, § 8 does not provide the claimed separate right of access to privately owned places (see, 66 NY2d 496, supra). By analogy and extension to the quasi-public Transit Authority premises here, Rogers’ novel approach in this regard is not supportable.

V.

We must now turn our attention to the next important aspect of this case — the conceded sales activity. The Transit Authority’s regulatory scheme limiting access to noncommercial expressive activity is both viewpoint-neutral and reasonable in light of the essential public transportation service purposes for which the properties exist (see, Cornelius v NAACP Legal Defense & Educ. Fund, 473 US 788, 805, supra). The Transit Authority’s core justification for its prohibition against "commercial activity” is that, in its experience, the volume of "purveyors” who would be allowed the opportunity to secure proceeds from distribution of materials would be far greater than the volume of "solicitors” wishing merely to distribute products or literature without charge and with the hope for voluntary donations. Artwork, musical recordings, religious paraphernalia, buttons, T-shirts, flags and banners imprinted with a political or social message might automatically qualify under Rogers’ expansive theory of First Amendment protection for his sales of his organization’s newspaper and associated materials. Even assuming the proceeds of those sales are used to defray the cost of producing the goods or to otherwise fund a nonprofit organization, permitting sales would inescapably engender or encourage competitive participants and open an unmanageable overflow. The principle would be established and, thus, notions of de minimis quantity and incidental commercialism cannot be allowed. Any other more generous view might lead to a veritable bazaar of expressive merchandise being authorized to be churned for sales throughout the subway system. Instead of the secure and efficient flow of ridership traffic into and through the stations and the trains, a reasonably anticipated loss of control and unsafe interference with the concededly paramount purpose of this public transportation enterprise might ensue.

Given the Transit Authority’s realistic and reasonable justification for its regulatory distinction between "solicitation” and "sales,” the sorting out as to whether the rule at issue is " 'the most reasonable’ ” or " 'the only reasonable’ ” limitation consistent with the property and forum should not shift to a judicial level of substituted judgment (see, United States v Kokinda, 497 US 720, 730, supra [quoting Cornelius v NAACP Legal Defense & Educ. Fund, 473 US 788, 808, supra]). In this respect, Rogers’ reliance upon Wright v Chief of Tr. Police (558 F2d 67) for a contrary result is plainly misplaced. In Wright, the Second Circuit Court of Appeals held that the Transit Authority’s prohibition against the exhibition or sale of newspapers in the New York City subway system could not stand absent a compelling government interest justifying a total bar. The court remanded for a trial to explore less restrictive alternatives. Wright, critically, was decided prior to the Supreme Court’s enlarged development of the public forum doctrine and, thus, cannot stand for the sweeping proposition that subway stations are somehow traditional public forums (contrast, International Socy. for Krishna Consciousness v Lee, 505 US 672, supra). As we have shown, they are not. Neither does Wright support Rogers’ argument that the Transit Authority’s authorization of specified speech activities converts the subway system into a wholesale public forum. Moreover, the reasonableness of the Transit Authority’s ban on sales activity is further supported by the many alternative noncommercialized channels that remain open for Rogers’ expressive opportunities on behalf of his political activity and those of his organization (see, International Socy. for Krishna Consciousness v Lee, supra, 505 US, at 684-685; Perry Educ. Assn. v Perry Local Educators’ Assn., 460 US 37, 53-54, supra; Greer v Spock, 424 US 828, 849, supra).

The Transit Authority’s application of section 1050.6 (b) and (c) to Rogers’ conceded sale is likewise unremarkable and unassailable. Section 1050.6 (b) expressly forbids unauthorized "commercial activity,” defined as:

"(1) the advertising, display, sale, lease, offer for sale or lease, or distribution of food, goods, services or entertainment (including the free distribution of promotional goods or materials); and
"(2) the solicitation of money or payment for food, goods, services or entertainment” (21 NYCRR 1050.6 [b]).

The rule makes no exception to its flat prohibition against sales. Not-for-profit organizations and the like are not exempted in general or as to sales of their books or newspapers. Yet, appellant would have the courts draw such a line. That is an inappropriate role for the Judicial Branch in these circumstances and an unsupportable demarcation, in any event, on this record.

Nor does the promulgated and applied rule exclude sales incidental to noncommercial expressive activities, as Rogers’ theory also tries to postulate in accordance with the trial court ruling in this case. Rogers relies on language in policy guidelines through which the Transit Authority first test-marketed nontransit uses, defining "commercial activities” in part as activities whose "main purpose” is the sale of goods or services. He thus maintains that his activities — minimal or incidental sales — are not intended to fall within the rule. Rogers’ multifaceted purpose in displaying the books and newspapers on a table set up at a subway station undeniably included the desire and the act of selling them. He does not dispute that, and the record supports the Transit Authority fact finding in that respect as well. Even accepting his argument that the "main purpose” behind his activity was not the sale of goods, the language in the experimental guidelines does not survive into the promulgated rules ultimately adopted by the Transit Authority and applied in this case.

VL

In sum, the Transit Authority’s action in this case involves a rational application of a constitutionally reasonable, sound and content-neutral regulatory blueprint, appropriate to its essentially nonpublic forum purpose (see, Matter of Salvati v Eimicke, 72 NY2d 784, 791; Matter of Johnson v Joy, 48 NY2d 689, 691; see also, Matter of Howard v Wyman, 28 NY2d 434, 438). Here, the Transit Authority legitimately enacted a regulatory process that is purpose-related and premised on and accommodating to safety and access and general traveling public needs. That is, after all, its primary and essential raison d’etre.

The determination that Rogers’ sales activity was plainly commercial falls properly within the regulatory scheme and the permissible ambit of Transit Authority responsibility. We reject his argument that such conduct acquires some automatic or general immunity from reasonable regulation in this unique environment — a nonpublic forum space — merely because the purveyor claims not-for-profit status or any other recognized protective umbrella, even as sweeping and important a cloak as the First Amendment. He, thus, properly falls within the rule and he violated it.

The rule is also rational, limited and individually applied in this particular review setting and instance, based on an undeniably fair manner of implementation with specific notice, prior warning and fair hearing. A subway station is simply not a public forum under Lee (International Socy. for Krishna Consciousness v Lee, 505 US 672, supra), and the rule should not be used as a boomerang to transform the Transit Authority’s realistically accommodating allowance into an "Open Sesame” for a stampede of likely competitors. Indeed, as the Second Circuit remarked in Young: "Confronted with the district court’s holding [enjoining enforcement of a prohibition against panhandling on the ground that Transit Authority regulations permit charitable solicitation], a cynic might remind the [Transit Authority] that 'no good deed goes unpunished’ ” (Young v New York City Tr. Auth., 903 F2d 146, 162, supra).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Titone, Smith, Levine, Ciparick and Wesley concur.

Order affirmed, with costs.