text:
    The People of the State of New York, Respondent, v Leon Wasserberger, Appellant.
    Argued March 25, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Irving Anolik for appellant.

      Roderick C. Lankier, Deputy Attorney-General, Special State Prosecutor (Mark M. Baker of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed (see People v Archer, 49 NY2d 978, decided herewith).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


source: Caselaw Access Project

license: Public Domain

text:
    Henry Manley, III, Appellant, v Pandick Press, Inc., Respondent.
    Decided April 24, 1980
   Appeal by plaintiff dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Psychiatric Services Center, Inc., Appellant, v Charles W. Bates, as Westchester County Commissioner of Social Services, et al., Respondents.
    Submitted March 31, 1980;
    decided April 24, 1980
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of William J. Mezzetti Associates, Inc., Appellant, v State Liquor Authority, Respondent.
    Submitted March 24, 1980;
    decided April 24, 1980
   Motion for reargument granted and case set down for argument or submission at the September, 1980 session of the Court of Appeals. Motion for a stay granted. [See 49 NY2d 753.]


text:
    David J. Oakley, Appellant, v City of Rochester, Respondent.
    Submitted April 7, 1980;
    decided April 24, 1980
   Motion to dismiss the appeal herein denied.


text:
    Pan American World Airways, Inc., Respondent, v Overseas Raleigh Manufacturing, Ltd., Appellant.
    Submitted March 31, 1980;
    decided April 24, 1980
   Motion to dismiss, in part, the appeal herein denied and the appeal deemed taken from the final portion of the Appellate Division order of modification which brings up for review all aspects of the order insofar as appealed from (CPLR 5512, subd [a]; 5601, subd [a], par [iii]; 5611; see Markland v Markland, 47 NY2d 856).


text:
    The People of the State of New York, Appellant, v Elena Alirex, Appellant, et al., Defendant.
    Submitted April 14, 1980;
    decided April 24, 1980
   Motion for leave to appeal denied upon the ground that an appeal lies as of right. Motion for a stay dismissed for lack of jurisdiction, since there is nothing presently pending before the Court of Appeals.


text:
    Carol A. P. Virgo, Appellant, v Edward J. Bonavilla, Respondent.
    Argued March 17, 1980;
    decided April 29, 1980

      APPEARANCES OF COUNSEL

      Carl L. Feinstock for appellant.

      William M. Weegar for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this medical malpractice action, plaintiff ascertained on cross-examination that one of the members of the medical malpractice panel (see Judiciary Law, § 148-a) was an acquaintance of the defendant. Following a jury verdict of no cause of action, plaintiff moved to set aside the verdict upon the purported bias of the malpractice panel member.

In these circumstances, plaintiff waived her objection by not timely moving for a mistrial at the time the relationship between the defendant and the panel member was revealed. A party is not permitted to speculate upon a favorable verdict before asserting a claim that could properly be made during trial (see Taylor v Dayton Suregrip & Shore Co., 64 AD2d 809, 810; Schein v Chest Serv. Co., 38 AD2d 929).

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

Order affirmed.


text:
    Herbert Parilis, as Administrator of the Estate of David B. Parilis, Deceased, et al., Respondents, v Joyce Feinstein, an Infant, by Her Father and Natural Guardian, Herbert Feinstein, et al., Appellants.
    Argued March 24, 1980;
    decided April 29, 1980

      APPEARANCES OF COUNSEL

      A. Paul Goldblum for appellants.

      Edward Wooster for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this negligence action to recover damages stemming from the death of decedent, a 12-year-old boy, plaintiff was awarded $50,000 for wrongful death and $25,000 for conscious pain and suffering, the latter amount having been reduced to $15,000 upon stipulation. On this appeal, defendant maintains that, as a matter of law, the jury was required to be instructed that plaintiff was limited to recovering nominal damages on the wrongful death cause of action. The amount of the wrongful death award is not otherwise questioned by defendant.

Damages in a wrongful death action are, by statute, limited to "pecuniary injuries” suffered by the distributees of decedent’s estate (EPTL 5-4.3). Such damages are limited to loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death (Keenan v Brooklyn City R. R. Co., 145 NY 348, 350-351), but do not include those damages which could have been recovered in a personal injury action had the decedent survived (Liff v Schildkrout, 49 NY2d 622, 633). But in any wrongful death action, especially one involving a child of tender years, the absence of dollars and cents proof of pecuniary loss does not relegate the distributees to recovery of nominal damages only (Ihl v Forty-Second St. & Grand St. Ferry R. R. Co., 47 NY 317, 320-321; cf. Park West Mgt. Corp. v Mitchell, 47 NY2d 316, 329). Rather, since it is often impossible to furnish direct evidence of pecuniary injury, calculation of pecuniary loss is a matter resting squarely within the province of the jury. In the present case, there was proof as to the age, character and condition of the decedent and the circumstances of his distributees. This evidence was sufficient to premise the award of pecuniary damages and the jury’s evaluation of this factual question may not be disturbed here as. a matter of law (Birkett v Knickerbocker Ice Co., 110 NY 504, 508).

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

Order affirmed.


text:
    Board of Education of the Altmar-Parish-Williamstown Central School District et al., Respondents, v Gordon Ambach, as Commissioner of Education of the State of New York, Appellant.
    Aruged March 25, 1980;
    decided April 29, 1980

      APPEARANCES OF COUNSEL

      Kenneth Pawson, Robert D. Stone and Louis H. J. Welch for appellant.

      Edward A. O’Hara, III, and Marc H. Reitz for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Plaintiffs’ action should be dismissed as being time-barred. In this action, plaintiffs seek review of the Department of Education’s determination limiting State aid reimbursement for the cost of acquiring facilities from the State Dormitory Authority (see Education Law, § 1950, subd 13) by utilizing the cost allowance scheme set forth in subdivision 6 of section 3602 of the Education Law. Although this action is one for a declaratory judgment, inasmuch as the resolution of rights sought by the parties could have been obtained in a CPLR article 78 proceeding, the applicable Statute of Limitations is the four-month statute governing proceedings under article 78. (Solnick v Whalen, 49 NY2d 224.)

Here, plaintiffs learned of the Department of Education’s determination to limit reimbursement by utilizing cost allowances on May 24, 1976, at a meeting with officials of the Education Department’s division of finance. Certainly, the right to institute this action would have accrued no later than September 15, 1976, the date upon which the first reimbursement payment, reflecting cost allowances, was made. Thus, the instant action, commenced some 10 months thereafter, must be deemed time-barred.

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

Order reversed, etc.


text:
    Maurice Colbert et al., Respondents, v International Security Bureau, Inc., et al., Defendants, and Southern Railway Company, Appellant.
    Argued March 24, 1980;
    decided April 29, 1980
    APPEARANCES OF COUNSEL

      M. Elizabeth Kilcullen and Arthur F. Golden for appellant.

      Francis E. Dorn for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

Based on the record before us, we agree with the Appellate Division that the employee receiving service possessed sufficient authority to accept service of process on behalf of appellant Southern Railway Co. (See Fashion Page v Zurich Ins. Co., 50 NY2d 265.)

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

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v William A. Booker, Appellant.
    Argued March 17, 1980;
    decided April 29, 1980

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Kenneth R. Fisher of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed. Our examination of the record shows that defendant’s motion to suppress the gun was not premised upon the failure to provide warnings in accordance with the mandate of Miranda v Arizona (384 US 436). This argument is not one which constitutes a question of law reviewable in this court despite the failure to timely raise the issue (compare People v Tutt, 38 NY2d 1011, with People v Michael, 48 NY2d 1). Hence, defendant’s failure to preserve this issue for review precludes his reliance upon it upon this appeal and prevents our consideration of the merits of his argument with respect to the alleged illegality of the seizure of the gun and its effect upon the subsequent statement.

As to defendant’s claim that the court erred in not granting his motion for a mistrial when it became evident that one of the witnesses for the prosecution could not be subjected to intensive cross-examination because of her physical condition, we conclude that the court’s instruction to the jury to disregard her testimony altogether sufficed in the circumstances of this case to avoid any violation of defendant’s right of confrontation.

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

Order affirmed in a memorandum.


text:
    In the Matter of Andrew P. Dolan, Appellant, v Robert P. Whalen, as Commissioner of the New York State Department of Health, Respondent.
    Argued March 18, 1980;
    decided April 29, 1980

      APPEARANCES OF COUNSEL

      Andrew P. Dolan, appellant pro se.

      Robert Abrams, Attorney-General (Carl E. Stephan and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner argues in his brief in this court that as a veteran he was protected by section 75 (subd 1, pars [a], [b]) of the Civil Service Law from termination of his position without a hearing. Although his brief in this court makes that argument it was not advanced in either court below and the récord contains nothing to establish that he is in fact a veteran.

His claim that section 73 is unconstitutional because it permits termination without a hearing of an employee "continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability” is likewise without merit. As we have held in Matter of Economico v Village of Pelham (50 NY2d 120, 128), only when there is "some factual dispute impacting upon the employer’s right to discharge” is a hearing required by that section and that hearing may, in the absence of demonstrated serious hardship, be held posttermination. Here no hardship was demonstrated and by the many written statements by petitioner and his physicians filed with the department petitioner has obviated any question that he was continuously disabled for the requisite period.

Nor is there any merit to petitioner’s claim that he was entitled to be reinstated on June 6, 1978 rather than August 1, 1978. His right to reinstatement depended under section 73 on his making application for a medical examination by a doctor selected by the department, a fact which the department called to his attention in its termination letter. He contends that he did so by letters dated January 28, 1978 and May 22, 1978. However, the first assumed his right to continued sick leave, was written prior to his termination and spoke generally of "whatever administrative and other arrangements as are necessary” and the second simply stated that he would make himself available for examination by a department doctor on the afternoon of June 6, 1978 and would not be available before then. Neither was an application sufficient to require reinstatement on June 6, 1978. The statute did not give petitioner the right to fix the date of the examination and he has not shown what caused the department’s failure to reinstate him prior to August 1, 1978 or whether or when he was in fact examined by a department doctor.

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

Order affirmed.


author: Wachtler, J.

text:
    Peter J. De Paulo et al., Respondents, v City of Albany et al., Appellants.
    Argued March 18, 1980;
    decided April 29, 1980

      APPEARANCES OF COUNSEL

      John E. Roe, Corporation Counsel (Francis Bergan of counsel), for appellants.

      Brian J. O’Donnell for respondents.
   OPINION OF THE COURT

Memorandum.

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

The arbitrator having found petitioner guilty of releasing an impounded car without authority and filing a false report, among other charges, also found in light of petitioner’s prior good record as a police officer that dismissal was not warranted, and imposed a penalty of suspension without pay, the net effect of which was loss of salary and holiday pay of $14,486. Binghamton Civ. Serv. Forum v City of Binghamton (44 NY2d 23) requires confirmation of that award unless it can be said that in failing to order petitioner’s discharge the arbitrator exceeded his powers.

Special Term held and the Appellate Division agreed that the arbitrator did not exceed his powers. The city on this appeal argues that petitioner having been indicted on a charge of official misconduct (Penal Law, § 195.00) and pleaded guilty to disorderly conduct (Penal Law, § 240.20) has forfeited his office by reason of section 30 of the Public Officers Law that it is contrary to public policy as declared in that section for him to continue in office, and that, therefore, the arbitrator must be held to have exceeded his powers. While we recognize the force of the argument that the filing of a false report involves a violation of a policeman’s sworn duty we conclude that as section 30 is presently worded it does not fix public policy at the standard for which the city argues.

Section 30 (subd 1, par e) provides that a public office shall become vacant upon a public officer’s "conviction of a felony, or a crime involving a violation of his oath of office”. What constitutes a felony or a crime within the meaning of that provision is determined by the definitions of the Penal Law (cf. Matter of Gunning v Codd, 49 NY2d 495; see McKinney’s Cons Laws of NY, Book 1, Statutes, § 230). Disorderly conduct is stated by section 240.20 of the Penal Law to be a "violation”. Section 10.00 of the Penal Law distinguishes between a "violation”, a "misdemeanor” and a "felony” and defines a "crime” as "a misdemeanor or a felony” (subd 6). It follows that disorderly conduct is not a crime within the meaning of section 30.

There is a further reason why section 30 does not mandate termination of petitioner’s office. Petitioner was accused of acts violative of his oath of office but convicted only of disorderly conduct. Without listing the seven categories of acts which fall within the definition of disorderly conduct, it is sufficient to note that none are even remotely connected with petitioner’s oath of office. While plea bargaining permits pleading to hypothetical crimes (cf. People v Serrano, 15 NY2d 304), what triggers the forfeiture provision of section 30 is only a "conviction”. Though a guilty plea is a "conviction” under that section, petitioner’s plea was to a violation rather than to a crime.

For the foregoing reasons, confirmation of the award was proper.

Wachtler, J.

(concurring). I agree with the majority that the principle of Binghamton Civ. Serv. Forum v City of Binghamton (44 NY2d 23, 30) is controlling in this case. It is appropriate, however, to reiterate the concern expressed in the dissent to Binghamton that the "Responsibility for setting the moral tone in civil service should not be wrested from local government by labor arbitrators.” The facts of the case now before us graphically underscore that concern.

We deal here with a police officer who was charged with filing a false official report and other misdeeds. Had he been convicted of the charges for which he was indicted he would have been removed from office automatically by force of section 30 (subd 1, par e) of the Public Officers Law. Instead, because he was permitted to negotiate a plea to the offense of disorderly conduct, he escapes that sanction.

In view of the singular responsibility and trust necessarily reposed in our police it would seem essential that the determination as to whether an officer should remain on the force, at least in cases where the conduct in question concerns a violation of the officer’s oath, should be made only by those persons entrusted by the public with that responsibility. Only those persons may be assumed to have in mind the public interest of the community, and only they are directly answerable to that community. That they should be permitted to bargain away that responsibility and allow a labor arbitrator to make such a decision is a grievous disservice to the public.

The Legislature has already recognized the need to remove public officers in case of serious misconduct. Obviously in such a case it should be the conduct, not the label placed upon it, which determines the sanction. Hopefully legislative action will remedy this situation and prevent its recurrence.

Judges Jones, Fuchsberg and Meyer concur in memorandum; Judge Wachtler concurs in a concurring opinion in which Judges Jasen and Gabrielli also concur; Chief Judge Cooke taking no part.

Order affirmed.


text:
    Manuel Braga, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted March 31, 1980;
    decided April 29, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the supporting papers, including brief, were not served at least eight days prior to the March 31, 1980 return date of the motion (Dellaratta v International House of Pancakes, 46 NY2d 936).


text:
    Community School Board District 6, Manhattan, by Leonard Strauss, President, Appellant, v Irving Anker, as Chancellor of the Board of Education of the City of New York, et al., Respondents.
    Submitted April 7, 1980;
    decided April 29, 1980

      APPEARANCES OF COUNSEL

      Dan Brecher for motion.

      Allan G. Schwartz, Corporation Counsel (Lillian S. Gewirtz of counsel), opposed.
   OPINION OF THE COURT

Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the supporting papers do not comply with section 500.9 (a) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.9 [a] [2] [see June 11, 1979 notice to the Bar, NYLJ, June 15, 1979, p 6, col 2]).

REMINDER NOTICE TO THE BAR

The attention of the Bar is directed to the April 29, 1980 decision of the Court of Appeals in Community School Bd. Dist. 6, Manhattan v Anker dismissing a motion for leave to appeal for failure to comply with section 500.9 (a) (2) of the court’s Rules of Practice and to the following statement in the Court of Appeals June 11, 1979 notice to the Bar: "The requirements of the Rule [500.9 (a) (2)] may be fulfilled in the form either of a new brief or memorandum of law. This does not require that the entire Appellate Division brief be rewritten in Court of Appeals form, but only that the substantive elements of § 500.9 (a) (2) be fulfilled. Indeed, a single copy of the Appellate Division brief in addition to ten copies of the newly-written Court of Appeals brief or memorandum of law, complies with §§ 500.9 (a) (2) and 500.9 (a) (3).”


text:
    Kay Jolan et al., Appellants, v Walter J. Johnson et al., Respondents.
    Decided April 29, 1980
   Appeal from so much of the order of the Appellate Division as reversed an order of Supreme Court and granted a motion to dismiss the second cause of action against defendant Walter J. Johnson [individually], dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that part of the order appealed from does not finally determine the action within the meaning of the Constitution (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck and Co., 36 NY2d 695).


text:
    Gary M. Kopel, Appellant, v County of Oneida, Respondent, et al., Defendant.
    Submitted March 31, 1980;
    decided April 29, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Orenstein Snitow Sutak & Pollack, P. C., Respondent, v William Chazen et al., Appellants.
    Decided April 29, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Elizabeth A. Gaynes, on Behalf of Cleveland J. Davis, Appellant, v Justices of the Supreme Court, Kings County, et al., Respondents.
    Submitted April 28, 1980;
    decided April 29, 1980
   Motion for leave to appeal and for a . stay and preference denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Park of Edgewater, Inc., Respondent, v Daniel W. Joy, as Commissioner of the City of New York Housing Preservation and Development Administration Office of Rent and Housing Maintenance Rent Control Division, Appellant.
    Argued March 17, 1980;
    decided April 29, 1980
   Reargument ordered and the case set down for argument or submission on May 29, 1980.


text:
    In the Matter of Arthur A. Gaines et al., Individually and as Copartners, Doing Business as Gaines, Reis & Co., Respondents, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellants.
    Argued March 24, 1980;
    decided May 1, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Nigel G. Wright and Shirley Adelson Siegel of counsel), for appellants.

      Daniel M. Sleasman for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (66 AD2d 106).

The Tax Commission’s finding that the taxpayer firm held the partner’s stock exchange membership as a capital asset was not supported by substantial evidence. Nor was the proof sufficient to sustain a finding that the firm was entitled, directly or indirectly, to benefit from the proceeds of the sale of this asset. Hence, the Tax Commission was not justified in treating the gain from the sale of the asset as income realized by the firm for purposes of the unincorporated business tax (see Tax Law, § 705, subd [a]).

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

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Freiday & Co., Respondent, v State Tax Commission, Appellant.
    Argued March 24, 1980;
    decided May 1, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Shirley Adelson Siegel of counsel), for appellant.

      Joseph M. Persinger and Andrew J. Connick for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs (see Matter of Gaines v Tully, 49 NY2d 1008, decided herewith).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Valerie Weaver, Appellant.
    Argued March 27, 1980;
    decided May 1, 1980

      APPEARANCES OF COUNSEL

      John P. Lane for appellant.

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel) for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Clearly and explicitly CPL 710.60 (subd 4) requires ("the court * * * must conduct”) that a hearing be held and findings essential to a suppression motion be made whenever the court does not determine the motion pursuant to subdivisions 2 or 3. Subdivision 2 mandates a summary grant when the People concede the facts or stipulate not to use the evidence, neither of which is here true. Subdivision 3 permits a summary denial if the motion papers do not set forth a legal basis for the motion or the facts alleged do not support the ground advanced, but expressly provides that the absence of factual basis does not permit denial of a motion to suppress a statement claimed to have been involuntarily made to a law enforcement official. Thus, in the latter case there must be a hearing whenever defendant claims his statement was involuntary no matter what facts he puts forth in support of that claim.

The reason for requiring a hearing in the latter case is, no doubt, that to do otherwise would be to shift the burden of proof of voluntariness from the People to the defendant. But the fact that the People have that burden does not mandate the conclusion that to obtain a hearing on voluntariness they should have to do more than refuse to concede the truth of facts alleged by defendant for a hearing to be held. Here the People’s affidavit expressly stated that "the allegations surrounding the statement are controverted.”

People v Gruden (42 NY2d 214) does not require that the People have done more, for as the Appellate Division noted and as we pointed out in People v Dean (45 NY2d 651, 656; see, also, People v Ciaccio, 47 NY2d 431, 438), in Gruden (p 215) the People "did not dispute the facts alleged in the defendants’ motion papers.” Indeed, in Dean an oral statement of opposition in the courtroom was held sufficient even though no papers or records in opposition were submitted. Here the paper filed by the People made clear their opposition. That was enough, but there was more. The prosecutor both advised the Trial Judge during a chambers conference what he proposed to prove and in open court informed the Judge that he could obtain the affidavit of the police officer-witness substantiating those facts within 15 minutes. It was, therefore, as the Appellate Division ruled, an error of law for the Trial Judge to grant the motion summarily.

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

Order affirmed in a memorandum.


text:
    In the Matter of Rochester Gas and Electric Corporation, Appellant, v Public Service Commission of the State of New York, Respondent. Empire State Petroleum Association, Inc., et al., Intervenors-Respondents. (And Two Other Proceedings.)
    Submitted March 24, April 21, 1980;
    decided May 1, 1980
   Motion to dismiss the appeal taken as of right by intervenors denied.

Motion to dismiss the appeal taken by petitioner Rochester Gas and Electric Corporation granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


author:
      Per Curiam.
     Jasen, J.

text:
    In the Matter of Jerome L. Steinberg, a Judge of the Civil Court of the City of New York, Kings County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Decided May 2, 1980
   OPINION OF THE COURT

Per Curiam.

Substantial legal and factual questions are raised in the submission made on Judge Steinberg’s behalf. Bearing in mind that fact and the length of time that elapsed from the making of the formal complaint on February 1, 1979 to the commission’s determination on March 21, 1980, we conclude that the proper course is not to suspend but to calendar the matter for June 2, 1980, if the affected Judge files the request for review in accordance with article VI (§ 22, subd a) of the New York State Constitution and subdivision 7 of section 44 of the Judiciary Law. The charge of conducting private business in his chambers, referred to in the dissent, prejudices judicial administration as a matter of appearance rather than through affirmative prejudice to any litigant. Accepting the possibility, for purposes of our present determination, that it may be sustained, we conclude that it furnishes an insufficient predicate for suspension, the more so since the entire matter will be promptly determined.

Jasen, J.

(dissenting). Considering the unanimous determination by the Commission on Judicial Conduct of Judge Steinberg’s serious and substantial breach of the applicable Judicial Canons and Rules — for example, that Judge Stein-berg conducted private business in his chambers and enlisted the participation of his law secretary in private business matters which respondent knew would inure to his own financial benefit — public confidence in the courts requires that Judge Steinberg be suspended from office pending review of the determination by this court. Suspension from exercising the powers of his office does not constitute prejudgment of this court’s review of the commission’s determination of guilt but, rather, is dictated by overriding considerations of demanding public interest that the judiciary shall be beyond even the appearance of impropriety.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Jasen dissents and votes to suspend in an opinion.

On the court’s own motion, pursuant to article VI (§ 22, subd e) of the New York State Constitution and section 44 (subd 8, par [a]) of the Judiciary Law, it is determined that, pending final resolution of a determination of the State Commission on Judicial Conduct that he should be removed, Honorable Jerome L. Steinberg not be suspended from the exercise of the powers of his office of Judge of the Civil Court of the City of New York. Proceeding to review, if commenced in accordance with article VI (§ 22, subd a) of the New York State Constitution and subdivision 7 of section 44 of the Judiciary Law set down for argument on June 2, 1980; petitioner’s papers to be served and filed on or before May 16, 1980 and respondent’s on or before May 27, 1980.


text:
    The People of the State of New York, Appellant, v Salvatore Gravano, Gary Cardine, Lawrence Macari, Alexander Cuomo and Peter Macari, Respondents.
    Argued March 28, 1980;
    decided May 6, 1980

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Margaret Harrington Nelson of counsel), for appellant.

      Jeffrey A. Rabin and Jacob R. Evseroff for respondents.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (67 AD2d 988, amd 68 AD2d 895).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Judge Jasen concurs in result.


text:
    In the Matter of Hazel Pregent, Appellant, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent.
    Argued May 1, 1980;
    decided May 6, 1980

      APPEARANCES OF COUNSEL

      Michael J. Cunningham for appellant.

      Charles J. Hynes, Deputy Attorney-General (Arthur G. Weinstein and T. James Bryan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 722; cf. United States v Euge, 444 US 707).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Jeff Weirich, Appellant.
    Argued March 28, 1980;
    decided May 6, 1980

      APPEARANCES OF COUNSEL

      Randolph A. Meyer for appellant.

      Theodore E. Wiggins, Jr., District Attorney, for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (65 AD2d 932) insofar as the same relate to the speedy trial issue.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


author: Jones, J.

text:
    In the Matter of Todd H. (Anonymous), Respondent. City of New York, Appellant. In the Matter of Anthony P. (Anonymous), Respondent. City of New York, Appellant.
    Argued March 25, 1980;
    decided May 6, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Maureen F. Brennan and Francis F. Caputo of counsel), for appellant.

      Helen Neuborne, William E. Hellerstein and Charles Schinitsky for respondents.
   OPINION OF THE COURT

Memorandum.

The Appellate Division orders should be affirmed for the reasons stated by Mr. Justice Joseph A. Suozzi at the Appellate Division in Matter of Anthony P. (65 AD2d 294).

With respect to the dissenting opinion, we cannot agree that a statute, which requires the police to make certain records at the time of arrest for deposit in a central file, but also provides for the destruction of all those records if the charges are not sustained, nevertheless permits the police to retain in their own files some of the arrest records, essentially copies, simply because the statute did not require that they make the copies in the first instance. The statute’s beguiling symmetry should not divert us from the Legislature’s over-all objective which is to free juveniles of the stigma of an arrest record in cases, such as this, where the charges prove to be completely unfounded. Obviously it matters not whether the making of the record was prompted by statute, regulation, past practices, or was merely discretionary with the arresting officer, department or unit involved. The point is that the stigma will remain as long as the police preserve any record of the arrest no matter what the impetus. As we noted in Matter of Richard S. v City of New York (32 NY2d 592, 595): "It must, however, be recognized and conceded that in these cases where there can be no benefit to society in maintaining such records — and—where their maintenance will result in unwarranted discrimination in the child’s future, he should not be further penalized, nor should irreparable harm (the antithesis of the purpose of the Family Court Act) be the end result. The subject matter of this proceeding is one of legislative concern.”

Now that the Legislature has acted, it would be inappropriate for the courts to interpret the statute so narrowly as to frustrate the legislative intent (cf. Wein v Comptroller of State of N. Y., 46 NY2d 394, 399).

Jones, J.

(dissenting). I cannot accept the conclusion reached by the majority that the Legislature has manifested an intention that Family Court shall have broad authority to direct expunction of all records of juvenile delinquents maintained by external agencies in cases in which the charges against the juveniles are not sustained, however appealing and desirable the grant of such authority would be as a matter of policy. Neither the majority memorandum nor the opinion at the Appellate Division confronts the fact that the legislative enactment on which each relies, in both form and substance, as originally adopted and as subsequently amended, is detailed in particularized focus and makes expunction in the instances to which it applies mandatory rather than permissive.

At the threshold it is critical to observe that what is at issue on the appeals in these two cases is the authority of Family Court to order expunction of records of agencies which are external to and constitute no part of Family Court. We have recently upheld the authority of Family Court to expunge its own records (Matter of Dorothy D., 49 NY2d 212). In so doing we observed that such power "does not depend on statutory grant but exists independently and 'inheres in the very constitution of the court’ ”. We recognized, however, that "the court’s inherent power over its own records does not extend to the records of executive agencies not normally subject to its direction, particularly those of the police” (49 NY2d, at p 215). In Matter of Wade v Department of Mental Hygiene of State of N. Y. (49 NY2d 947 [April 22, 1980]) we held that Supreme Court had no authority to direct expunction of the records of the Department of Mental Hygiene because of lack of statutory authorization to do so.

Against this general background I turn to section 753-b of the Family Court Act, enacted by chapter 447 of the Laws of 1977, effective September 1, 1977. That chapter introduced a new section 724-a of the Family Court Act (carrying forward in part subject matter with respect to fingerprinting and photographing of juvenile delinquents which previously had been addressed in former section 753-b), repealed former section 753-b, and enacted a new section under that number. Examination of the various subdivisions of new sections 724-a and 753-b reveals that attention was paid to particulars and to careful differentiations and that the two sections are inextricably interrelated. Section 724-a mandates the taking of fingerprints of juveniles 11 years old or older charged with acts which, if committed by an adult, would constitute class A or class B felonies and of juveniles 13 years old and older charged with acts which would be class C felonies. Additionally it permits palmprinting and photographing when fingerprinting is mandated. It also provides for procedural standards and sets forth prescriptions with respect to forwarding and temporary confidential retention of the records so obtained.

The new section 753-b (subd 2 of which was the predicate for the decisions in the courts below and now for the majority in our court) deals with permanent retention and destruction of fingerprints, palmprints and photographs, but by explicit provision is limited only to those prints and photographs taken pursuant to section 724-a and its predecessor, former section 753-b. It does not make provision for the destruction of fingerprints, palmprints and photographs taken of juveniles generally nor does it address the destruction of juvenile delinquency records in general. Subdivision 1 makes provision for the permanent retention of prints and photographs taken pursuant to section 724-a when there has been a felony adjudication. Subdivision 2 mandates, in the specified circumstances to which it is applicable but only with respect to fingerprints, palmprints and photographs taken pursuant to section 724-a, the destruction thereof by Family Court, the Division of Criminal Justice Services and all police departments and law enforcement agencies. Subdivisions 3 and 4 contain further detailed provisions with respect to durational and permanent retention of such records. By chapter 478 of the Laws of 1978 the Legislature made adjustments in the details specified in section 753-b in particulars which are not pertinent to the present appeals.

Even a cursory examination of sections 724-a and 753-b discloses that drafting care was exercised in the enactment of these statutes. It appears that the Legislature concluded that in the more serious cases of juvenile delinquency fingerprinting should be required and palmprinting and photographing should be authorized. To this end it enacted section 724-a. Having then created this data bank, the Legislature proceeded to make appropriate provisions with respect both to retention and destruction of the material so obtained. This was accomplished in section 753-b. It is not insignificant either that the Legislature has imposed no discretion in Family Court; destruction when provided for is mandatory. Rather than manifesting any general intention that when charges of alleged juvenile delinquency are withdrawn or dismissed Family Court should be authorized to order destruction of all records in connection therewith however obtained and wherever maintained, the statute mandates destruction but only of records obtained pursuant to the provisions of section 724-a and then only in the circumstances specified in the statute. To Infer a grant of general authority in Family Court to expunge all such records is wholly to obliterate the detailed specifications laid down by the Legislature, in effect to exercise a power of judicial legislation in an appealing circumstance.

I turn then to the application of the statute as enacted to the two cases now before us. In Matter of Todd, the statute is applicable. The 15-year-old juvenile was charged with an act which if committed by an adult would have been a class B felony; therefore his case falls squarely within the particularized scope of section 724-a and thus of subdivision 2 of section 753-b. To the extent that the order of Family Court directs the destruction of all fingerprints, palmprints, photographs and copies thereof in the records of the Division of Criminal Justice Services and of all police departments and law enforcement agencies having copies thereof, it was properly made and affirmed at the Appellate Division. To the extent that it directed destruction of Arrest Report No. 45771 other than in the records of Family Court, however, it was unauthorized inasmuch as such a report in the custody of the police or law enforcement agencies does not come either within the statutory grant of authority to Family Court in section 753-b or within the scope of that court’s inherent authority over its own records.

With respect to Matter of Anthony P., none of the expunction ordered by the courts below was authorized. In that case the alleged juvenile delinquent was charged only with a class E felony and a class A misdemeanor, neither of which would serve to bring him within the scope of section 724-a nor thus the reach of the authority granted to Family Court by section 753-b.

In Matter of Todd H.: Order affirmed, without costs, in a memorandum.

Chief Judge Cooke and Judges Gabrielli, Wachtler, Fuchsberg and Meyer concur; Judge Jones dissents and votes to modify in an opinion in which Judge Jasen concurs.

In Matter of Anthony R: Order affirmed, without costs, in a memorandum.

Chief Judge Cooke and Judges Gabrielli, Wachtler, Fuchsberg and Meyer concur; Judge Jones dissents and votes to reverse in an opinion in which Judge Jasen concurs.

       Nothing in the record suggests that the arrest report falls within "fingerprints, palmprints, photographs, and copies thereof, and all information relating to such allegations obtained by the division of criminal justice services pursuant to section seven hundred twenty-four-a”.


text:
    In the Matter of Utica Cheese, Inc., Respondent, v J. Roger Barber, as Commissioner of the New York Department of Agriculture and Markets, et al., Appellants.
    Argued April 29, 1980;
    decided May 6, 1980

      APPEARANCES OF COUNSEL

      Thomas G. Conway and Joan A. Kehoe for appellants.

      Arnold W. Proskin for respondent.
   OPINION OF THE COURT

Memorandum.

In this article 78 proceeding petitioner seeks to compel the Commissioner of the Department of Agriculture and Markets to act on its milk dealer license application, which has now been pending for some 16 months. Under subdivision 1 of section 301 of the State Administrative Procedure Act, the commissioner is required to reach his decision "within reasonable time” (see, also, State Administrative Procedure Act, § 102, subd 3). Though the statute does not define this period with specificity, we would have to deem it elapsed in this, case save for the commissioner’s advice as to the unusual nature of the matters he has been compelled to investigate in aid of his ultimate determination. But, as appears from the pertinent facts and circumstances revealed in the record in this proceeding and fairly summarized in the memorandum at the Appellate Division, the commissioner is unable to provide a better estimate of when, if ever, he will be able to ascertain the relevance and availability of the further information he seeks other than that it will be at some unknown time in the future. Fairness to the applicant therefore requires that a hearing be held and a determination rendered promptly. To that end, the order of the Appellate Division is modified to direct that these steps be accomplished no later than 90 days from the date of this decision and, as so modified, affirmed, with costs.

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

Order modified, with costs to petitioner, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Hearst Corporation, as Successor in Interest to Hearst Consolidated Publications, Inc., Respondent, v Hertz Corporation, Appellant. (Action No. 1.) Hearst Corporation, as Successor in Interest to Hearst Consolidated Publications, Inc., Respondent, v Hertz Corporation, Appellant, and Hartford Accident and Indemnity Company et al., Respondents. (Action No. 2.)
    Submitted April 21, 1980;
    decided May 6, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §§ 38, 39, 40).


text:
    In the Matter of Anthony M. Scotto, Respondent, v Waterfront Commission of New York Harbor, Appellant.
    Submitted May 1, 1980;
    decided May 6, 1980
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of George J. Seaman, Appellant, v Arthur Cooperman, as Chairman of the Workers’ Compensation Board of the State of New York, Respondent.
    Submitted April 28, 1980;
    decided May 6, 1980
   Motion for leave to appeal denied. Motion for a stay dismissed as academic. On consent, appeal taken as of right dismissed, without costs.

Judges Fuchsberg and Meyer taking no part.


text:
    The People of the State of New York, Respondent, v Garney Sea, Appellant.
    Submitted March 28, 1980;
    decided May 8, 1980
    APPEARANCES OF COUNSEL

      Lloyd L. Rosenthal for appellant.

      John R. King, District Attorney (Bridget R. Rahilly of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this case, the jury found defendant guilty of the crimes of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39) and criminal possession of a controlled substance in the third degree (Penal Law, § 220.16) arising out of a single transaction. Immediately following the rendition of the verdict, the jury was polled in accordance with CPL 310.80 and each member indicated his assent. Thereafter, the trial court dismissed the inclusory concurrent count of criminal possession of a controlled substance in the third degree. (See People v Robinson, 45 NY2d 448.)

We reject defendant’s contention that the trial court should have polled the jury a second time after dismissing the possession charge. During the initial poll, the jury clearly manifested that the verdict was unanimous, thus satisfying the statutory requirement set forth in CPL 310.80. The subsequent colloquy between counsel and the court concerning the People’s motion to dismiss an inclusory concurrent count did not vitiate that expression of unanimity. Therefore, the trial court’s acceptance of the verdict was proper.

We have examined such of defendant’s remaining contentions as are preserved for appellate review and have found them to be without merit.

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

Order affirmed in a memorandum.


text:
    City Building Employees’ Association et al., Appellants, v Arthur Levitt, as Comptroller of the State of New York, et al., Respondents, et al., Defendants.
    Argued March 28, 1980;
    decided May 8, 1980

      APPEARANCES OF COUNSEL

      John W. Vogel and Edward J. Degnan for appellants.

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. Although brought in the form of an action seeking declaratory relief, insofar as plaintiff seeks to compel the Comptroller and the State Retirement System to accept for filing a modification in the benefits provided plaintiff’s members by the State Retirement System, the action is subject to the four-month Statute of Limitations applicable to article 78 proceedings (see Solnick v Whalen, 49 NY2d 224). Our examination of the record persuades us that the instant proceeding is time-barred since it was not brought within four month’s after the respondents refused to accept for filing the modifications provided by the 1973 agreement. Nor does the inclusion of a similar provision in the later agreement, despite the respondents’ failure to accept the prior provision, serve to resurrect plaintiff’s claim that the respondents are obliged to accept such a modification. Finally, we emphasize that since the City of Hornell did not appeal from the order of Supreme Court, Steuben County, neither the order of the Appellate Division nor this affirmance of that order serves directly to modify the provisions of the Supreme Court order directed at the city. Quite simply, the appellate process has been limited to the issue of the Comptroller’s purported duty to accept for filing benefit increases covering some but not all of Hornell’s municipal employees, and has no direct bearing upon whatever liability the city may be subjected to pursuant to the collective bargaining agreement and in accord with the demands of public policy.

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

Order affirmed, with costs, in a memorandum.


text:
    Martin Strahl, Respondent, v Leila Strahl, Appellant.
    Argued April 22, 1980;
    decided May 8, 1980

      APPEARANCES OF COUNSEL

      Fabian G. Palomino for appellant.

      William F. Reilly and Sheila Riesel for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Vito J. Titone at the Appellate Division. We note, however, that our holding in this case should not be construed to represent tacit approval of that aspect of the Appellate Division’s decision which suggested that an individual’s obligation to support his or her children pursuant to a divorce decree may be modified by conditioning it upon the custodial parent’s compliance with a court order or agreement regulating visitation privileges (cf. Borax v Borax, 4 NY2d 113). Although we find no ground for reversal in this case, we prefer to leave open the question whether such a modification, under different circumstances, might constitute an abuse of discretion.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Matthew Meredith, Appellant.
    Argued March 28, 1980;
    decided May 8, 1980

      APPEARANCES OF COUNSEL

      Thomas J. Neidl and J. Raymond Fisher for appellant.

      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant had just arrived on a bus from New York City when two undercover police officers, acting on a reliable informant’s tip that defendant was trafficking in narcotics, followed him into the public restroom of the bus station and asked him if he had brought back any drugs. On the record here, we cannot say that the trial court was not free to find that no coercion was exerted in such circumstances and that the officers’ brief limited inquiry was based on a founded suspicion of criminal activity (see People v Skinner, 48 NY2d 889; People v De Bour, 40 NY2d 210, 220; cf. Dunaway v New York, 442 US 200). These findings, having been affirmed by the Appellate Division, are now beyond our review.

Nor is there any basis for overturning the affirmed finding that he voluntarily consented to the officers’ search of his person when, after the defendant offered a negative response to the officer’s inquiry, he continued with "you can check if you want”. This unsolicited invitation to conduct a search was promptly accepted by one of the officers, who first felt inside his jacket and pants pockets and then asked the defendant if he would undo his belt and trousers. Without registering any protest, defendant complied with this request, and, as he opened his pants, the officer noticed a gold-colored pin. When the officer asked what it was the defendant responded, "nothing” and attempted to conceal it by rolling up his underwear. While the defendant’s suddenly evasive conduct in these circumstances could be found to be enough to justify the officer’s further investigation, on these facts it suffices to say that it was not error for the courts below to have concluded as a fact that defendant’s actions did not effect a repudiation of his prior freely given consent (see United States v Seely, 570 F2d 322, 323; compare United States v Dichiarinte, 445 F2d 126, 129-131; United States v Bily, 406 F Supp 726, 728-729). The motion to suppress the packet of cocaine secured by the revealed pin was therefore properly denied.

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

Order affirmed in a memorandum.


text:
    In the Matter of D. M. C. Construction Corp., Appellant, v A. Leo Nash Steel Corp., Respondent.
    Argued April 22, 1980;
    decided May 8, 1980

      APPEARANCES OF COUNSEL

      Harold Fisher for appellant.

      Lauren D. Rachlin and Amanda T. Green for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs.

Petitioner was afforded the opportunity to stay the Erie County proceeding pending the determination of this appeal, but declined to post the requisite undertaking. That court in the interim without objection having ruled on the merits of the underlying issues for the litigation of which the motion for a change of venue to Kings County had been brought, the matter is now moot.

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

Appeal dismissed.


text:
    Joseph L. Lee, Appellant, v City of Mount Vernon et al., Respondents, et al., Defendants.
    Argued March 28, 1980;
    decided May 8, 1980

      APPEARANCES OF COUNSEL

      Andrew W. Tully, Jr., for appellant.

      Henry J. Smith and William F. Macreery for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The victim’s identification of plaintiff as the robber and the Grand Jury’s indictment established probable cause for his prosecution. In the face of those two elements plaintiff must establish that the identification was the result of a conspiracy between the officials and the victim and that the indictment was the result of fraud, perjury or the suppression of evidence (see Anns., 28 ALR3d 748, 66 ALR3d 10).

The evidence presented did not make out prima facie such a case. Not to be lost sight of is the fact that the decision to present the matter to the Grand Jury was that of the District Attorney, for whose acts the city is not responsible, and that Barbagallo, the city detective, did not testify before the Grand Jury, nor has it been shown that he withheld information in his possession from the Grand Jury.

In final analysis plaintiffs claim is that Barbagallo should have investigated further why plaintiff was in the area and to ascertain whether there were fingerprints on the gun that was retrieved near the scene. In the face of the fact that plaintiff matched the complaining witness’ description of the robber in height, weight, age and clothing, of the positive identification by the complaining witness when plaintiff was returned to the scene soon after the crime, of her identification of some of the money found in plaintiff’s possession as having been marked by her, and of the indictment of plaintiff by the Grand Jury, plaintiff was required to show that Barbagallo’s procedure deviated so egregiously from proper police activity as to indicate intentional or reckless action on his part. While the evidence suggests that not all procedures that could have been followed were followed in fact, it does not establish that the omissions were improper, much less egregious, given the positive identifications and exact description referred to above (compare Restatement 2d, Torts, § 664, subd [2], and Comment b; § 663, subd [1], par [c], and Comment h, with § 662, and Comment j).

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

Order affirmed.


text:
    Le Frois Foods Corporation et al., Appellants, v Aetna Insurance Company et al., Defendants-Respondents and Third-Party Plaintiffs-Respondents. Policy Advancing Corp., Third-Party Defendant-Respondent.
    Submitted April 7, 1980;
    decided May 8, 1980
   Motions to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [b], pp 143-144).


text:
    In the Matter of Ernest A. Lopena, Respondent, v New York City Employees’ Retirement System et al., Appellants.
    Submitted April 28, 1980;
    decided May 8, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    In the Matter of the Claim of Leonard Pressler, Appellant, v I. Maner Manufacturing et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted April 14, 1980;
    decided May 8, 1980
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dated October 18, 1979, denied; motion, insofar as it seeks leave to appeal from the Appellate Division orders dated January 8, 1980 and February 28, 1980, dismissed upon the ground that said orders do not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks permission to prosecute appeal as a poor person, dismissed as academic.


text:
    Charles Miller, Respondent, v Joseph Perillo et al., Respondents, and Riverbay Corp., Also Known as Co-op City, et al., Appellants.
    Decided May 8, 1980

      APPEARANCES OF COUNSEL

      Alvin P. Bluthman for appellants.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation for judgment absolute does not effect a final determination of the action as to both liability and damages and thus it is illusory and frustrates the purpose of CPLR 5601 (subd [c]).


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Joseph A. Suozzi
    Honorable John P. Cohalan, Jr.
    Honorable Reid S. Moule
    Honorable Richard J. Cardamone
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Wayne G. Smith, a Justice of the Town Court, Town of Plattekill, County of Ulster, Third Judicial Department.
   Respondent, pursuant to section 580.5 of the Rules of Procedure of the Court on the Judiciary (22 NYCRR 580.5), moves for an order dismissing the charges served upon respondent on a number of grounds:

That a number of charges against him are based on conjecture only and fail to allege actionable misconduct; that the provisions of the Rules Governing Judicial Conduct upon which the charges are based are so vague, uncertain and ambiguous as to provide no guide to a judicial officer; that respondent in the exercise of his judicial office may not be subject of a proceeding initiated by the State Commission on Judicial Conduct; that the conduct of members of the Court on the Judiciary is also subject to investigation by the State Commission on Judicial Conduct which preferred the charges herein against respondent and any hearing and determination had will therefore violate the constitutional rights of respondent to a fair and impartial trial; that the acts upon which certain of the charges are based are alleged to have occurred prior to the effective date of the rules adopted by the commission; that certain of the charges were not included in the written report of the State Commission on Judicial Conduct to the Chief Judge of the Court of Appeals and so may not be included, under section 43 of the Judiciary Law, in the charges now filed against respondent; that the State Commission on Judicial Conduct and other administrative agencies did not inform respondent of the guidelines and standards, rules and regulations governing the conduct alleged in the charges.

Respondent also moves for an order designating venue in the County of Ulster so as to serve the convenience of witnesses who may be called in his behalf.

We find each and every claim made by respondent to be without merit. The charges do allege actionable misconduct on the part of respondent. He is charged with seeking special consideration on behalf of defendants in other courts and with being influenced by requests for special consideration on behalf of defendants in his court.

The gravamen of the charges as asserted by counsel to the court is special treatment and favoritism in the disposition of cases (see Matter of Bolte, 97 App Div 551). The charges set forth clear factual allegations of favoritism and are sufficient to warrant the determination of the issue by the court.

The fact that respondent is a Justice of a court established by . the New York State Constitution does not preclude the filing of charges against him alleging actionable misconduct.

The charges do not relate to the authority of justice courts but to the conduct of the individual Justice named herein as respondent. The New York State Constitution empowers the commission to investigate alleged misconduct and for the Court on the Judiciary to bring charges where appropriate. Nor is there any basis for respondent’s claim that he cannot receive a fair trial before the Court on the Judiciary because the members are Judges who are themselves subject to investigation by the commission. It is obvious that to adopt respondent’s argument would immunize all New York State Judges from discipline because there would exist no judicial forum which could hear charges against them.

Respondent’s contention that he was unaware of the standards governing judicial conduct because they are not published must fall. The Administrative Board Rules are published in the Official Compilation of Codes, Rules and Regulations of the State of New York (22NYCRR Part 33; see McKinney’s Cons Laws of NY, Book 29, Judiciary Law, p 517 et seq.). The fact that certain charges filed against respondent by this court exceed those included in the commission’s report to the Chief Judge of the Court of Appeals does not warrant a dismissal of such charges. (See order dated Dec. 14, 1977, giving this court broad authority to "hear and determine charges” against respondent.)

The court notes the willingness of the counsel to the court to amend certain of the charges.

The motion for a change of venue is denied. This court will designate a place for trial convenient for the interests of all parties in this litigation.

This memorandum decision constitutes the order of this court.

Presiding Officer Birns and Judges Suozzi, Cohalan, Jr., Moule and Cardamons concur.

Dated: April 18, 1978

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Joseph A. Suozzi
    Honorable John P. Cohalan, Jr.
    Honorable Reid S. Moule
    Honorable Richard J. Cardamone
    In the Matter of Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Michael D. Altman, a Justice of the Town Court, Town of Fallsburg, County of Sullivan, Third Judicial Department.
   Respondent, pursuant to section 580.5 of the Rules of Procedure of the Court on the Judiciary (22 NYCRR 580.5), moves for an order directing that counsel to the court clarify the charges filed against respondent by furnishing a bill of particulars.

Counsel to the court, in response to respondent’s motion, has furnished respondent with sufficient information and documentation to enable respondent to answer the charges. No further clarification is necessary at this time.

Counsel to the court has undertaken to furnish respondent, prior to trial, with copies of prior statements given by such persons as may be called as witnesses and to make available to respondent, for inspection prior to trial, all exhibits which will be offered in evidence. Almost all of the documents to be offered in evidence have already been turned, over to respondent.

Accordingly, the motion is in all respects denied. Respondent is granted an enlargement of time to answer the charges for a period of 10 days after service upon him of a copy of this memorandum decision, which constitutes the order of this court.

Presiding Officer Birns and Judges Suozzi, Cohalan, Jr., Moule and Cardamons concur.

Dated: May 4, 1978

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Joseph A. Suozzi
    Honorable John P. Cohalan, Jr.
    Honorable Reid S. Moule
    Honorable Richard D. Simons
    In the Matter of Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Michael D. Altman, a Justice of the Town Court, Town of Fallsburg, County of Sullivan, Third Judicial Department.
   Respondent moves to dismiss 10 of the charges filed against him on the ground that he was never called to testify before the State Commission on Judicial Conduct with regard to the matters contained therein. The motion is denied (see Matter of Owen, 47 NY2d [q]).

This memorandum decision constitutes the order of this court.

Dated: July 10, 1978

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Robert G. Main
    Honorable Michael E. Sweeney
    Honorable Reid S. Moule
    Honorable Richard D. Simons
    In the Matter of Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Gioanna I. La Carrubba, a Judge of the District Court, County of Suffolk, Second Judicial Department.
   Respondent, pursuant to section 580.5 of the Rules of Procedure of the Court on the Judiciary (22 NYCRR 580.5), moves for an order dismissing the charges against her, or, in the alternative, for an order granting clarification, discovery and an extension of her time to answer.

The motion for dismissal, clarification or discovery is denied (see Matter of Byrne, 47 NY2d [b]). Respondent is granted an enlargement of time to answer the charges for a period of 10 days after determination of her appeal from a judgment of conviction of criminal misconduct, presently pending in the Court of Appeals.

This memorandum decision constitutes the order of this court.

Dated: July 10, 1978

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


author: Per Curiam.

text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Vincent D. Damiani
    Honorable John P. Cohalan, Jr.
    Honorable Reid S. Moule
    Honorable Richard D. Simons
    In the Matter of the Proceeding Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Michael D. Altman, a Justice of the Town Court of Fallsburg, County of Sullivan, Third Judicial Department.
    Motion to confirm report of Referee (Honorable Raymond C. Baratta) and to remove respondent.

      Gerald Stern, Stephen F. Downs and Barry Vucker for the motion.

      David Cohen for respondent, opposed.
   Per Curiam.

Respondent is a part-time Town Justice of the Town of Fallsburg in Sullivan County. He is also an attorney and in addition to his duties as a Town Justice has engaged in the practice of law since his appointment to the Bench in 1971.

On January 18, 1978 the present proceeding against respondent was commenced by order of the Court on the Judiciary. A formal written complaint containing 68 charges was served upon the respondent on February 1, 1978. Respondent’s answer contained denials of the allegations of wrongdoing set forth in the complaint and asserted 11 affirmative defenses. By order dated July 12, 1978 the matter was referred to The Honorable Raymond C. Baratta, Acting Justice of the Supreme Court, to hear and report. A four-day hearing was held before the Referee; during the course of which the petitioner withdrew four and the respondent admitted 40 of the charges. Subsequent to the hearing petitioner withdrew an additional three charges. Of the remaining 21 contested charges, the Referee sustained 18 in full, sustained some but not all of the enumerated instances of misconduct underlying two more of the charges and dismissed one charge.

The 58 charges sustained in full and the two charges sustained in part involve respondent (1) using the influence of his judicial office to obtain favorable dispositions of a speeding charge pending against himself and a motor vehicle infraction pending against his wife, (2) using the influence of his judicial office to benefit clients of his law practice, (3) practicing law before the other Fallsburg Town Justice and permitting his co-Justice and the co-Justice’s law partner to practice before him in violation of 22 NYCRR 33.5 (f) and section 16 of the Judiciary Law, (4) practicing law before other lawyer Judges presiding in the same county in violation of 22 NYCRR 33.5 (f), (5) making and granting requests for special consideration for defendants in motor vehicle cases — so-called "ticket fixing”, and (6) at one time or another, acting in his judicial capacity and as attorney for both the plaintiff and the defendant in the same contested action.

On January 15, 1980 counsel to the Court on the Judiciary moved to confirm the Referee’s report and to remove the respondent from office. The respondent moved to disaffirm so much of the Referee’s report as in whole or in part sustained 20 of the contested charges. In our opinion the evidence before the Referee was more than ample to support his findings and accordingly his report is confirmed in its entirety.

We now turn to the question of an appropriate sanction for the respondent’s misconduct. Respondent has admitted numerous instances of soliciting and granting favorable dispositions in motor vehicle cases. In one instance he wrote to a Justice of another Town Court on his judicial stationery seeking special consideration in connection with a speeding ticket he had received. He also sought special consideration for his wife and clients of his law practice. He practiced law in his own court before his co-Justice and permitted his co-Justice to practice before him. He practiced before other lawyer Justices in the same county in violation of the rules of the Administrative Board of the Judicial Conference.

The most striking example of misconduct occurred when in May, 1974, Simmie Williams, a client of his law practice, came to see respondent in connection with a civil claim he had against one Stanley Smith arising out of an automobile accident. Smith was also respondent’s client. Respondent issued a summons ordering the appearance of Smith in the Town of Fallsburg Justices’ Court and signed the name of his co-Justice Murry Gaiman thereto because, as he admitted in his testimony before the Referee, 'T didn’t want my client, Stanley Smith, to see that I was involving myself as a judge in a case in which he was a defendant”. Thereafter Smith received the summons and brought it to respondent, his lawyer, for advice. Respondent then sent the summons to Smith’s insurance carrier by letter on his law office stationery noting that Smith was his client. The defendant’s insurance company refused to settle the case and the plaintiff Williams came to see respondent asking for a trial. Respondent then wrote to his co-Justice on his judicial stationery requesting that the matter be set down for a trial and suggesting that if the insurance company was acting in good faith they would inspect Williams’ car "and make him a settlement offer.” Respondent sent a copy of this letter to the defendant’s insurance company. By doing so, respondent improperly used the influence and prestige of his judicial office to encourage the settlement of a disputed claim at a time when he was rendering legal advice to both parties and had previously informed the insurance carrier that he was the attorney for the defendant. The prejudicial effect of this letter was twofold. First, it constituted an improper communication from one Town Justice attempting to influence the other Justice before whom the case was pending by informing him that if the matter went to trial it would only be because the insurance company had failed to settle in good faith. Second, from the viewpoint of the insurer, it could only cast doubt upon the independence, integrity and impartiality of the Justice to be obtained in the Justices’ Court of the Town of Fallsburg. Respondent’s actions in this one illustrative case violated the rules of the Administrative Board of the Judicial Conference governing judicial conduct (22 NYCRR 33.1, 33.2, 33.3 [a] [1], 33.3 [a] [4], 33.5 [f]) and Canons 1 and 2 of the Code of Judicial Conduct.

On February 12, 1974 respondent and other Town and Village Justices from Sullivan County were called to appear at a meeting before the Justices of the Appellate Division, Third Department, where they were admonished for improper conduct including, inter alia, violation of certain rules of the Administrative Board of the Judicial Conference which forbade lawyer Justices from appearing before other lawyer Justices in the same county and the practicing of law by Justices in their own court before their co-Justices. The Village and Town Justices in attendance were advised that their conduct should be free from the appearance of impropriety. The unequivocal implication of this meeting was that thereafter Village and Town Justices would be held to the highest ethical standards and should govern themselves accordingly. Despite this, the respondent committed 38 of the sustained charges of misconduct after he was admonished by the Appellate Division.

Respondent should be removed (cf. Matter of Gaiman, 49 NY2d [m], decided herewith).

Presiding Officer Birns and Judges Damiani, Cohalan, Jr., Moule and Simons concur.

Dated: March 18, 1980

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Vincent D. Damiani
    Honorable John P. Cohalan, Jr.
    Honorable Reid S. Moule
    Honorable Richard D. Simons
    In the Matter of the Proceeding Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Murry Gaiman, a Justice of the Town Court of Fallsburg, County of Sullivan, Third Judicial Department.
    Motion to confirm report of Referee (Honorable Raymond C. Baratta) and to remove respondent.

      Gerald Stern, Stephen F. Downs and Barry Vucker for the motion.

      Gerald Orseck for respondent, opposed.
   Per Curiam.

Respondent is a part-time Town Justice in the Town of Fallsburg in Sullivan County. He is also an attorney, having been admitted to practice in 1963, and has maintained a private law practice since his election as Justice in 1968.

The present proceeding was commenced in January, 1978 by order of the Court on the Judiciary. A formal complaint containing 27 charges of judicial misconduct was served on January 31, 1978. Respondent answered on May 8, 1978 and on June 13, 1978 the court appointed The Honorable Raymond C. Baratta as Referee to hear evidence, determine motions and report to the court. A four-day hearing commenced December 13, 1978 and on December 14, 1979 the Referee submitted his report sustaining 13 charges and recommending that 9 charges be dismissed. Five charges had been withdrawn.

The 13 sustained charges relate to granting favorable reductions pursuant to requests by third parties, requesting favorable dispositions from fellow Judges, failing to disqualify himself from presiding over cases involving clients or former clients, and practicing law before the other Fallsburg Town Judge.

Counsel to the court moved to confirm the Referee’s report and respondent moved to disaffirm, in part. He admits those charges dealing with granting and requesting favorable dispositions but challenges those determinations of the Referee which sustained charges concerning his failure to disqualify himself in cases involving clients or former clients. The Referee sustained four charges which alleged that respondent allowed clients or former clients to plead to reduced dispositions. In another case involving the son of a client, respondent dismissed a charge of failure to keep right and failed to report to the State Motor Vehicle Department a conviction for driving while intoxicated. Finally, in a case involving a defendant associated with a business respondent had represented, respondent reduced a charge of speeding to driving with unsafe tires notwithstanding that the case was returnable before the other Town Judge. This disposition was made on the same day that the ticket was issued.

We find adequate evidence in the record to confirm the Referee’s findings. Respondent’s misconduct goes beyond favoritism in granting and requesting reductions pursuant to requests of third parties. Respondent knowingly granted favorable dispositions to clients or former clients or their associates and, thus, violated elementary ethical precepts requiring, among other things, that a Judge not participate in any case in which his impartiality might reasonably be questioned, and that he avoid even the appearance of impropriety (e.g., Matter of Fuchsberg, 43 NY2d [j], [s]-[u]; Matter of Vaccaro, 42 NY2d [e]; Matter of Filipowicz, 54 AD2d 348).

In February, 1974 the Appellate Division, Third Department, admonished respondent and other Justices for improper conduct including the practice of law by part-time lawyer Judges before one another, and respondent was warned that his conduct was in violation of section 16 of the Judiciary Law and rule 20.18 of the Rules of the Administrative Board (now rule 33.5 [f]) and should be free from the appearance of impropriety. Five of the sustained charges in these proceedings occurred after this admonishment.

Respondent should be removed, effective the date of the order to be entered on this determination.

Presiding Officer Birns and Judges Damiani, Cohalan, Jr., Moule and Simons concur.

Dated: March 18, 1980

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W; Gamso (Signed) Clerk of the Court on the Judiciary


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Robert G. Main
    Honorable Reid S. Moule
    Honorable Richard D. Simons
    Honorable Michael E. Sweeney
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Gioanna I. La Carrubba, a Judge of the District Court, County of Suffolk, Second Judicial Department.
    Motion to confirm report of Referee (Honorable Bentley Kassal) and to remove respondent.

      Gerald Stern, Raymond S. Hack, Susan Shapiro and Emily Needle for the motion.

      James M. Catterson, Jr., opposed.
   Per Curiam.

In this judicial disciplinary proceeding brought pursuant to section 22 of article VI of the Constitution of the State of New York, the petitioner moves for an order confirming the report of the Referee appointed to hear and report in the matter, and to remove respondent.

Judge La Carrubba, a Judge of the District Court, Suffolk County, has been charged with three counts of misconduct, in that she improperly added three cases to her court calendar, failed to disqualify herself in the three cases and improperly disposed of the cases in her chambers. The three cases of favoritism involved her close friend, Loretta Leone; her son-in-law, John Bivona; and her son-in-law’s client, Elizabeth Valleca.

The respondent’s actions were originally the subject of a criminal proceeding. The Appellate Division, Second Department, affirmed the respondent’s criminal conviction of official misconduct based upon her disposition of the Leone matter. The Court of Appeals reversed and dismissed the indictment for the reason that the disciplining of Judges for violations of ethical standards not involving independent criminal conduct has been reserved by the State Constitution to proceedings instituted before a Court on the Judiciary (People v La Carrubba, 46 NY2d 658, 664).

After the Court of Appeals determination, Judge La Carrubba served an answer, which denied all the allegations in the charges and interposed two defenses. The ably and meticulously prepared report of Justice Bentley Kassal, as Referee, sustained all the charges.

Charge I alleged that the respondent did not disqualify herself from a traffic proceeding in which her close friend, Ms. Loretta Leone, was accused of speeding. The respondent transferred the case to her court, advanced the return date without informing either the District Attorney or the arresting officer and then dismissed the complaint on the ground that the arresting officer failed to appear. The matter was disposed of in chambers, not in open court, prior to a Christmas party being given by the respondent for court employees. The Assistant District Attorneys assigned to nonjury traffic cases testified that no one from their office was present at the Leone disposition.

The respondent testified that Ms. Leone was helping her with the party when the court officer assigned to her suggested that the respondent could "take care” of Ms. Leone’s speeding ticket. The respondent testified that she was swayed by the officer to dispose of the ticket and he advised her to assign the failure of the arresting officer to appear as the reason for the dismissal. The respondent testified in this proceeding that she became concerned with her failure to arraign Leone when she learned that arraignment records go to Albany. She then discussed her failure to arraign Leone with her Administrative Judge who informed her of the impropriety of her actions. Apparently, she did not believe that she had shown any undue favoritism until charges were brought against her.

Charge II alleged that the respondent added to her calendar a case concerning her son-in-law, John Bivona, who was accused of driving an uninspected vehicle. This case had been calendared before another Judge a month earlier. The respondent had called Assistant District Attorney Cardinale into her chambers prior to the Christmas party to discuss the case of Ms. Valleca who was represented by Mr. Bivona, the respondent’s son-in-law. As Assistant District Attorney Cardinale was about to leave, the respondent mentioned that Bivona also had a traffic violation against him and that he would plead guilty. Cardinale responded affirmatively and left, expecting that the plea would be taken before the other District Court Judge, to whom the case was assigned. However, respondent, after Cardinale had left, accepted the plea in chambers and granted an unconditional discharge.

Charge III alleged that the respondent added a motor vehicle case to her calendar and failed to disqualify herself although the defendant, Elizabeth Valleca, was represented by respondent’s son-in-law. The respondent dismissed a charge of speeding on the ground that the arresting officer had failed to appear (the officer was not notified of the advanced date) and granted an unconditional discharge on a second charge of driving without a license.

We find that the aforesaid acts of the respondent constitute misconduct and grounds for sanctions in that she improperly failed to disqualify herself in proceedings where her impartiality may be questioned, she permitted a court officer to influence a judicial determination, and she participated in a deceitful practice.

Rule 33.3 (c) (1) of the Administrative Board of the Judicial Conference (22 NYC RR 33.3 [c] [1]) requires a Judge to disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including any matter in which

"(i) he has a personal bias concerning a party [Charges I and II]

"(iv) he or his spouse, or a person within the sixth degree of relationship to either of them, or the spouse of such a person:

"(a) is a party to the proceeding [Charge II] or

"(b) is acting as a lawyer in the proceeding [Charge III]”. The Referee found these charges substantiated but did not find any evidence to support the charge that the respondent had a financial interest in the controversies. (Rule 33.3 [c] [1] [iii].)

The Referee found that the general procedure of adding a case to the calendar for the purpose of taking a negotiated guilty plea is not per se improper. However, impropriety lies in the hearing of a case (without appropriate disclosure and consent) involving a friend (Charge I) or a person within the sixth degree (rule 33.3 [c] [1] [iv] [a]) or the third degree (Code of Judicial Conduct, Canon 3 C [1] [d]) of relationship to the Judge (Charges II and III). The rules and canons provide that the degree of relationship is calculated according to the civil law system. (Rule 33.3 [c] [3] [i]; Canon 3 C [3] [a].) Since Bivona was the husband of the respondent’s daughter, he was within the first degree of relationship. We also note that respondent has violated section 14 of the Judiciary Law which contains a similar prohibition. These matters should not have been heard by respondent.

The affirmative defense to Charge I that respondent vacated the dismissal after consulting with the Administrative Judge is without merit. Respondent’s expressed reason for consulting the Administrative Judge was her concern for the possible consequences of her failure to arraign Ms. Leone. She apparently was not troubled by the possibility that her judicial actions might be considered as favoritism. We note also that she did not tell the Administrative Judge about the other two matters in which she had acted at the same time.

The respondent interposed an affirmative defense of remittal of disqualification in regard to Charges II and III. The respondent maintains that she notified (albeit not on the record) the parties in the Bivona and Valleca cases of her relationship to her son-in-law prior to her disposition of the cases in which they were involved, and had continued in these matters with the consent of all parties. The Referee properly found that this affirmative defense was not established because the respondent had not followed the procedure expressly prescribed by rule 33.3 (d) and Canon 3 D, that the court disclose on the record the basis for disqualification; that the parties and lawyers independently all agree in writing that the court’s relationship is immaterial, and that the agreement, signed by all parties and lawyers, be incorporated into the record.

The respondent permitted her court officer to improperly influence her judgment. In her testimony concerning the Leone matter, the respondent testified that the court officer suggested that she aid her friend and offered advice concerning the method of dismissing the violation. Her failure to exercise independent judgment was improper (rule 33.2 [b]).

Respondent as a judicial officer engaged in a decéitful practice. In the Leone case, the reason assigned for dismissal was the failure of the arresting officer to appear. The officer’s appearance was impossible, as the respondent well knew, because of the judicial act of respondent in advancing the date of the hearing without iiiforining the officer.

In the Valleca case the respondent again engaged in a deceitful practice. Assistant District Attorney Cardinale and Mr. Bivona had agreed in chambers to take a plea on the driving without a license charge in satisfaction of both tickets and Cardinale left the chambers to check on the availability of the arresting officer. When Cardinale discovered that the officer was not available because the matter had just been added to the calendar, he requested an adjournment. Respondent denied the motion and then dismissed the speeding charge on the ground that the arresting officer failed to appear. Cardinale was not present at the formal plea as he had expected it to be taken by the other Judge. The Referee found that the process of entertaining the matter on an unscheduled date, refusing to grant an adjournment and dismissing the speeding ticket for failure of the officer to appear, all over the objection of the District Attorney, did constitute special consideration.

This conduct in conjunction with the fact that she concealed these matters by failing to arraign the defendant Leone and conducting the proceedings in chambers constituted deceitful practices in the conduct of judicial proceedings and amounts to gross misconduct. (Rule 33.3 [a] [1].)

These acts of misconduct are much more serious than those presented in the traffic cases which were before Courts on the Judiciary in Matter of Kuehnel (45 NY2d [y]). While two of the cases decided jointly in Kuehnel (Matter of Lahey and Matter of Thomson [45 NY2d (y), (dd)]), and the case of Matter of Lombardi, (49 NY2d [v], decided herewith) involved situations of close relationship between the court and the defendants, they did not present the aggravating instances of misconduct and deceit found here.

Respondent’s reliance upon Matter of Schmidt (31 AD2d 214) is unfounded. The court in Schmidt found that the Judge’s conduct of handling a case involving a relative was excusable because attempts to locate other Judges were unsuccessful and a distinct possibility existed of a continuing breach of the peace. (Schmidt, supra, at p 220.) In this case, the respondent was not faced with any degree of urgency and she willfully added cases to her calendar for the purpose of dismissing them on false grounds.

The respondent’s conduct indicates that she lacks the integrity and character required of a judicial officer. She should be removed, effective the date of the order to be entered on this determination.

Presiding Officer Birns and Judges Main, Moule, Simons and Sweeney concur.

Dated: March 18, 1980

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable John P. Cohalan, Jr.
    Honorable Vincent D. Damiani
    Honorable Robert G. Main
    Honorable Michael E. Sweeney
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Sebastian Lombardi, a Justice of the Town Court, Town of Lewiston, Fourth Judicial Department.
    Motion to confirm report of Referee (Honorable James N. White) and to remove respondent.

      Gerald Stem, Richard Granofsky, John W. Dorn and Lester C. Goodchild for the motion.

      Benjamin N. Hewitt and Stanley Grossman for respondent, opposed.
   Per Curiam.

Motion by counsel to this court to confirm the Referee’s report which sustained all 154 charges against respondent.

In this judicial proceeding, pursuant to section 22 of article VI of the Constitution of the State of New York, the Referee has sustained by his report dated November 15, 1979 all 154 charges against respondent. The charges may be divided into three groups. The first and by far the largest in number (1-148 and 154) involve incidents where respondent negotiated reductions or bail forfeitures in various vehicle and traffic matters pending before other Justices outside his jurisdiction. The second group (149-152) relate to certain motor vehicle violations brought before respondent against his nephew. Finally, charge 153 involves a charge of leaving the scene of an accident brought against one Lioukras. The latter caused damage to property owned by Lombardi Dairy, Inc., a family corporation in which respondent was and is an officer.

Considering the record in its entirety, we are of the view, that there is ample proof to support each of the charges sustained by the Referee. The motion, therefore, to confirm is granted.

We now pass to the question of appropriate sanction to be imposed, i.e., censure, suspension or removal (NY Const, art VI, § 22, subd a).

All of the charges constitute injudicious and improper conduct which clearly violate the Code of Judicial Conduct (Canons 1, 2, 3, subd A). The more serious charges are, in our opinion, charges 149-152 and 153. Manifestly, respondent should not have presided over cases in which his nephew was a defendant and a case where members of his family had a financial interest in the outcome of the litigation. Such participation violates the basic rule that a Judge’s conduct should be free from even the appearance of impropriety. Considering all of the circumstances, including those in mitigation mentioned by the Referee and that this proceeding does not involve the element of deceitful practice which was present in Matter of La Carrubba (49 NY2d [p], decided herewith) or improper practices such as were found in Matter of Altman (49 NY2d [i]) and Matter of Gaiman (49 NY2d [m], also decided herewith), it is the judgment of this court that respondent should be suspended, without pay, for a period of six months commencing from the date of the order to be entered on this determination.

Presiding Officer Birns and Judges Cohalan, Jr., Damiani, Main and Sweeney concur.

Dated: March 18, 1980

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Vincent D. Damiani
    Honorable John P. Cohalan, Jr.
    Honorable Reid S. Moule
    Honorable Richard D. Simons,
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Wayne G. Smith, a Justice of the Town Court, Town of Plattekill, County of Ulster, Third Judicial Department.
    Motion to confirm report of Referee (Honorable Raymond C. Baratta) and to censure respondent.

      Gerald Stern and Richard Granofsky for the motion.

      J. Philip Zand for respondent, opposed.
   Per Curiam.

This is a judicial disciplinary proceeding initiated pursuant to section 22 of article VI of the Constitution of the State of New York. Respondent, a Town Justice of the Town of Platte-kill since 1971, is charged with granting favored treatment to defendants in traffic cases pending in his court on 70 instances and requesting similar treatment on behalf of defendants appearing in other courts on four instances. Respondent’s answer to the charges raised questions of fact and the matter was referred to Honorable Raymond C. Baratta for hearing and to make findings. At the hearing counsel for petitioner withdrew five charges and the Referee found that the evidence sustained the remaining 69 charges. Petitioner moves to confirm the findings and for the respondent’s censure. Respondent requests that the charges be dismissed.

The Referee’s findings are confirmed.

The court adopts the reasoning expressed in prior similar proceedings (see Matter of Kuehnel, 45 NY2d [y]; Matter of Byrne, 47 NY2d [jjj]) and imposes the sanction of censure. Respondent is censured.

Presiding Officer Birns and Judges Damiani, Cohalan, Jr., Moule and Simons concur.

Dated: March 18, 1980

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gámso (Signed) Clerk of the Court on the Judiciary