author:
Fuchsberg, J.
      Jasen, J.

text:
    In the Matter of Gilbert Wiley, Respondent, v Herbert Altman, as a Justice of the New York Supreme Court, et al., Appellants.
    Argued February 19, 1981;
    decided April 2, 1981

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Brian Rosner and Robert M. Pitler of counsel), for appellants.
    The decision of the court below should be reversed since Justice Altman’s decision is correct — the New York statute proscribing murder and the Maryland law prohibiting conspiracy are, in accordance with CPL 40.20 (subd 2, par [b]), designed to prevent very different kinds of evil. (People v Abbamonte, 43 NY2d 74; People v Lo Cicero, 14 NY2d 374; People v Vera, 47 NY2d 825; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; People v McGee, 49 NY2d 48; People v Smith, 61 AD2d 91.)

      Steven A. Thomas, of the Maryland Bar, admitted on motion pro hac vice, and Leslie Crocker Snyder for respondent.
    The decision of the court below should be affirmed since the New York statute proscribing murder and the Maryland law prohibiting conspiracy are, in accordance with CPL 40.20 (subd 2, par [b]), designed to prevent the same kind of harm or evil. (People v Abbamonte, 43 NY2d 74; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; People v Vera, 47 NY2d 825; Matter of Kessler v Sherman, 41 NY2d 851.)
   OPINION OF THE COURT

Fuchsberg, J.

We are once again called upon to determine the parameters of the defense of previous prosecution set forth in CPL article 40. Specifically, the question posed is whether the petitioner may be prosecuted for murder in New York after he was tried for conspiracy to commit that murder in Maryland. We conclude that the present prosecution does not come within any of the exceptions to the statutory bar against vexatious multiple prosecutions.

The case arises out of an episode which occurred on February 17, 1979, when an individual was shot to death in Manhattan. It later was charged that the victim had been murdered by one Dennis Wise pursuant to an agreement he entered into with the petitioner, Gilbert Wiley, in Maryland. In April, 1979, a Grand Jury indictment charging Wise and Wiley with conspiracy to commit the murder was returned in Maryland. A month later, a New York County Grand Jury indicted the two for second degree murder. The Maryland case, which went to trial first, resulted in an acquittal.

Based upon the Maryland proceedings, Wiley moved to dismiss thé indictment as violative of his statutory right not to be prosecuted twice for the same criminal conduct (CPL 40.20). Though it found the question “a close one and not altogether free from doubt”, Criminal Term denied the motion (104 Mise 2d 114, 119).

Review of the determination was then sought at the Appellate Division by way of this article 78 proceeding. That court, in a thoughtful opinion by Presiding Justice Murphy, granted the petition to the extent of dismissing the indictment and prohibiting prosecütion; for procedural reasons, the application was dismissed insofar as it purported to seek direct review of the order made below (76 AD2d 701). A dissent on a question of law permitted the People to appeal here as of right (CPLR 5601, subd [a], par [i]). In our view, the majority was correct.

At the outset, we note that there is no claim that the New York prosecution would invoke the Federal constitutional strictures against double jeopardy (US Const, 5th Amdt). Such an argument would, in any event, be unavailing since, under the so-called “dual sovereignty” doctrine, a prosecution by separate sovereigns for an act that infringes the penal laws of each is permissible (see, e.g., United States v Wheeler 435 US 313; People v Abbamonte, 43 NY2d 74; but see United States v Grimes, 641 F2d 96, 100-104).

Our concern, then, is solely with the protections afforded by CPL 40.20, which legislatively nullifies the “dual sovereign” doctrine in this State (People v Abbamonte, supra, p 81).* *3 With certain exceptions, subdivision 2 of that section provides that “[a] person may not be separately prosecuted for two offenses based upon the same act or criminal transaction”. As we observed in Abbamonte (pp 81-82), “absent the statutory exceptions, no matter the number of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct”. Further, it is the fact of the prior prosecution, not the result, which triggers the statutory protection (see CPL 40.30, subd 1; cf. Crist v Bretz, 437 US 28).

The People do not dispute that both the Maryland prosecution and the present indictment stem from the same “criminal transaction”, defined as “two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10, subd 2). Rather, it is contended that the present prosecution falls within the exception contained in CPL 40.20 (subd 2, par [b]), which reads, “Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil”. We disagree.

As noted, the prosecution in Maryland was for conspiracy, which we have had occasion to observe is a “ ‘crime * * * embracing] all of the overt acts and substantive crimes in the persisting criminal enterprise’” (People v Vera, 47 NY2d 825, 826, quoting People v Abbamonte, 43 NY2d 74, 85, supra). So, while Maryland law does not appear to require an overt act to complete the offense (Wilson v State, 8 Md App 653, 671), it does permit the same punishment as that proscribed for the object crime to which a conspiracy is directed (Ann Code of Md, art 27, § 38; Jones v State, 8 Md App 370), in this case life imprisonment (Ann Code of Md, art 27, § 413). Clearly, then, both the Maryland prosecution, based though it was on that State’s conspiracy statute, and the present prosecution for murder under this State’s laws were directed at a like goal; punishment for the unlawful taking of a particular human life (cf. Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, 567, supra). Put another way, in light of the fact that the “governmental interests” are the same in both prosecutions, the statutory exception is inapplicable (see Commonwealth v Grazier, 481 Pa 622, 631).

Moreover, we cannot accept the notion, pressed by the People, that the statutory - term “harm or evil” is to be governed by the geographical extent of the police power. It was purely fortuitous that in our prior decisions a geographical overlap existed between the two prosecuting authorities (see People v Vera, 47 NY2d 825, supra; People v Abbamonte, 43 NY2d 74, supra; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, supra; and Matter of Cirillo v Justices of Supreme Ct. of State of N. Y., 34 NY2d 990, affg 43 AD2d 4 [all involving Federal narcotics conspiracies]).

The decision in Matter of Kessler v Sherman (41 NY2d 851), which did not involve a conspiracy prosecution, was not the result of a divergent analytical course. There, the interest in environmental protection expressed in the State Tidal Wetlands Act was found “to differ materially in scope and purpose” from that embraced in the wetlands ordinance of the Town of Shelter Island. The court also was of the view that the lack of a State permit did not violate the town ordinance which petitioner was charged with violating by acting without a permit from the town board. Concluding from this that the governmental interests were different, a second prosecution was permitted (see Commonwealth v Grazier, 481 Pa 622, 631, supra). Moreover, the petitioner in Kessler could have easily moved to consolidate the two accusatory instruments filed in that case and thus avoided separate trials. So circumstanced, this failure to do so amounted to a waiver of his right to mandatory joinder (CPL 40.40; People v Dean, 56 AD2d 242, 246, affd 45 NY2d 651).

On this rationale, the judgment of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). This appeal presents the question whether prosecution of petitioner in New York for the murder of Robert Addison is barred under CPL 40.20 (subd 2) by reason of petitioner’s prior acquittal in Maryland for conspiracy to commit the same murder. At issue is whether the New York murder statute (Penal Law, § 125.25) and the Maryland law of conspiracy “are designed to prevent very different kinds of harm or evil” (CPL 40.20, subd 2, par [b]). In my view, prosecution of petitioner in New York is not barred by the statutory double jeopardy provision and, therefore, I respectfully dissent.

The facts are undisputed. On February 17, 1979, Robert Addison was shot and killed in New York City. On April 12,1979, petitioner was indicted in Maryland upon a charge of conspiracy to commit murder. The Maryland indictment alleged that petitioner had conspired with one Dennis Wise and Howard Lockwood “wilfully and of deliberately premeditated malice aforethought to kill and murder” Addison. Thereafter, in May, 1979, petitioner, Wise and Lockwood were indicted in New York and charged with murder in the second degree. (See Penal Law, § 125.25.) The New York indictment alleged that petitioner and the other two defendants, “with intent to cause the death of Robert Addison, caused the death of Robert Addison by shooting him with a shotgun.” On September 26, 1979, a Maryland jury acquitted petitioner of the conspiracy charge. In January, 1980, petitioner was arrested in Maryland and brought to New York to be tried on the pending charge of murder in the second degree.

In Supreme Court, New York County, petitioner moved to dismiss the New York murder indictment on the ground that the prosecution was barred by reason of the previous Maryland acquittal on the conspiracy charge. (See CPL 40.20, subd 2.) Petitioner’s motion to dismiss was denied. The court, in an opinion by Justice Altman, held that, although the Maryland and New York indictments grew out of the same criminal transaction, the New York indictment fell within the statutory exception of CPL 40.20 (subd 2, par [b]) permitting prosecution in New York. Justice Altman reasoned that the “two prosecutions involved are in fact intended to combat very different kinds of harm or evil” and “that they differ materially in scope and purpose.” (104 Mise 2d 114, 119.) Therefore, Justice Altman concluded that the New York murder prosecution was not barred by reason of the prior acquittal on the Maryland conspiracy charge.

Petitioner then instituted the present article 78 proceeding seeking to prohibit his prosecution on the New York murder indictment. The Appellate Division, one Justice dissenting, granted the petition and ordered that the indictment against petitioner be dismissed. The court held that petitioner could not be prosecuted in New York on charges arising out of Addison’s murder because of the prior Maryland acquittal on the conspiracy charge. The Appellate Division reasoned that both statutes under which petitioner was indicted (see Ann Code of Md, art 27, § 38; New York Penal Law, § 125.25) were aimed at preventing murder and, therefore, the exception to the bar to successive prosecutions found in CPL 40.20 (subd 2, par [b]) was inapplicable and the New York indictment had to be dismissed.

On appeal to this court, the majority affirms the dismissal of the New York murder indictment lodged against petitioner on the ground that the Maryland and New York prosecutions are “directed at a like goal: punishment for the unlawful taking of a particular human life”. According to the majority, “in light of the fact that the ‘governmental interests’ are the same in both prosecutions,” the statutory exception to the double jeopardy provision embodied in CPL 40.20 (subd 2, par [b]) is inapplicable in the present case. I cannot agree.

As the majority correctly notes, the double jeopardy clause of the Fifth Amendment of the United States Constitution is not relevant to the instant case. As pronounced by the Supreme Court, the “dual sovereign” doctrine clearly permits successive prosecutions by different States based upon the same transaction or event. (See United States v Wheeler, 435 US 313; Abbate v United States, 359 US 187; United States v Lanza, 260 US 377.) Thus, we are concerned solely with an application of the New York statutory double jeopardy provision. (See CPL 40.20.)

The statute in issue provides that a “person may not be separately prosecuted for two offenses based upon the same act or criminal transaction.” (CPL 40.20, subd 2.) The statute then lists six exceptions to this general prohibition against successive prosecutions. The People rely on the exception found in CPL 40.20 (subd 2, par [b]), which permits successive prosecutions when: “Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil”. (Emphasis supplied.)

It is clear that the Maryland and New York prosecutions are based upon the same “criminal transaction” as that term is defined in CPL 40.10 (subd 2). Moreover, the Maryland and New York offenses contain an element not found in the other. The New York statute (Penal Law, § 125.25) requires an accomplished murder, while the gist of the Maryland offense is an unlawful combination or agreement and, under Maryland law, no overt act in furtherance of the conspiracy need be committed. (See, e.g., Piracci v State, 207 Md 499; Hurwitz v State, 200 Md 578.) Thus, prosecution of the defendant in New York would be permitted if the two offenses involved “are designed to prevent very different kinds of harm or evil”. (CPL 40.20, subd 2, par [b].) In my view, the two laws in issue are aimed at deterring two distinct types of criminal activity.

The evil which the New York statute strives to avoid is, of course, readily ascertainable. Section 125.25 of the Penal Law clearly seeks to prevent the intentional murder of another person. On the other hand, the evil which the Maryland law of conspiracy aims to proscribe is not so apparent. In this regard, reference to the law of Maryland is somewhat enlightening.

In Maryland, conspiracy is a common-law offense (Archer v State, 145 Md 128) for which the degree of punishment cannot exceed the maximum penalty authorized for completion of the crime which serves as the object of the conspiracy. (Ann Code of Md, art 27, § 38.) The gist of the Maryland offense is the unlawful combination resulting from the agreement and, as mentioned earlier, no overt act need be accomplished in order to commit the crime. (Greenwald v State, 221 Md 245; Piracci v State, 207 Md 499, supra; Quaglione v State, 15 Md App 571; Jones v State, 8 Md App 370.) Indeed, as one Maryland court has noted, it is not accomplishment of the object of the illegal agreement which poses the harm to the peace and order of Maryland, but rather “it is the existence of the conspiracy which creates the danger.” (Regle v State, 9 Md App 346, 351 [emphasis in original].)

Thus, the Maryland law of conspiracy serves as a general prohibition against illegal agreements of all kinds without regard to the particular object sought to be achieved. This offense, as defined by the courts entrusted with its application, is designed to deter the formation of an unlawful combination and not the doing of a particular act such as murder. So viewed, the law of conspiracy in Maryland is aimed at preventing a very different kind of harm than that which the New York murder statute prohibits. In short, it is the mere existence of the conspiracy to commit any crime which creates the danger which the Maryland law aims to protect against, while it is the act of killing which is the evil which the New York law seeks to prohibit.

Nor can I accept the majority’s conclusion that “the ‘governmental interests’ are the same” in both the Maryland and New York prosecutions. New York and Maryland are two distinct geographic jurisdictions situated hundreds of miles apart which have interests separate and apart from one another in terms of prohibiting criminal conduct within their respective boundaries. Clearly, Maryland could not have prosecuted petitioner for the actual murder which occurred in New York. (See Goodman v State, 237 Md 64.) And, had the conspiracy terminated immediately after the agreement was reached and thereby remained wholly in Maryland, New York could not have prosecuted petitioner solely for his involvement in the Maryland conspiracy. As was aptly noted by Justice Altman : “The Maryland crime was completed when the unlawful agreement was reached in Maryland. At that time no act had yet been committed in New York and Mr. Addison was alive. Clearly, the harm or evil sought to be prevented in Maryland had been accomplished. The harm or evil sought to be averted in New York had not yet taken place. A completed crime had taken place in Maryland which could only be prosecuted in Maryland and not in New York and no crime had taken place in New York. If it were to be held that the statutes were directed at the same kind of harm or evil, it would follow that, at the conclusion of the unlawful conspiracy in Maryland, New York had no interest in whether Mr. Addison lived or died. This clearly cannot be true.” (104 Mise 2d 114, 120.)

In enacting CPL article 40, the Legislature abandoned, for the most part, the “dual sovereign” doctrine, thereby relinquishing this State’s ability to prosecute those previously tried in another jurisdiction for essentially the same criminal conduct. In so doing, however, the Legislature, by providing certain exceptions to the statutory double jeopardy provision, recognized that New York retained a continuing interest in enforcing its own laws where the prior out-of-State prosecution does not serve as the functional equivalent for prosecution within this State. Such is the case here. The prior Maryland prosecution, aimed only at conduct which took place within Maryland and in which the fact .of an actual murder occurring in New York was irrelevant, does not bar petitioner’s prosecution in New York for the crime of murder. The two prosecutions are aimed at preventing “very different kinds of harm or evil” and, thus, fall within the exception to the statutory double jeopardy provision found in CPL 40.20 (subd 2, par [b]).

Accordingly, I would reverse the grant of prohibition in this case and reinstate the indictment against petitioner.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Meyer concur with Judge Fuchsberg;

Judge Jasen dissents and votes to reverse in a separate opinion.

Judgment affirmed, with costs.

      . Wise is not a party to this appeal.

      . This procedural disposition flows, from the fact that, while the Constitution may require that appellate review of double jeopardy challenges must precede trial in order to afford an accused the “full protection” of the defense (Abney v United States, 431 US 651, 662), the Criminal Procedure Law does not provide for such review (see CPL 450.10). An aggrieved defendant may, however, as here, seek review in the Appellate Division by way of an article 78 proceeding (see, e.g., Hall v Potoker, 49 NY2d 501, 505, n 1;
        Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, 564) irrespective of the fact that he has made a motion to dismiss in the trial court (cf. Matter of Bondi v Jones, 40 NY2d 8). Thus, realistically viewed, the article 78 proceeding provides a mechanism for immediate appellate review of an otherwise nonappealable order (cf. People ex rel Rosenthal v Wolfson, 48 NY2d 230, 232).

      . The dissenting Justice at the Appellate Division voted to deny the application for the reasons stated by Criminal Term.

      . In light of our disposition, we have no occasion to measure petitioner’s contentions against the guarantee of the New York Constitution (NY Const, art I, § 6; see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL art 40, p 102).

      . Although not without criticism (see Ashe v Swenson, 397 US 436, 453-455 [Brennan, J., concurring]; Sigler, Double Jeopardy, pp 222-228), the Fifth Amendment to the Federal Constitution has been construed to merely preclude retrial of the same “offense”; a second trial for an act arising from a particular episode is permissible if the second prosecution requires proof of an element not required in the first prosecution (Brown v Ohio, 432 US 161; United States v Brooklier, 637 F2d 620).

      . While we are not bound by the parties’ formulation of the issues (see Rentaways, Inc. v O’Neill Milk & Cream, Co., 308 NY 342, 349; cf. People v Berrios, 28 NY2d 361, 367-368), we agree that this exception is the only one relevant to this appeal.

      . As the Appellate Division observed below, Kessler, a memorandum decision, must be confined to its facts.

      . Both accusatory instruments had been transferred to one court. There was no motion to consolidate. Trial on the town violation took place first (see 51 AD2d 52, 53).

       I find the majority’s reliance on such cases as People v Abbamonte (43 NY2d 74) and People v Vera (47 NY2d 825) to be misplaced. These cases concerned the exception to the statutory double jeopardy provision found in GPL 40.20 (subd 2, par [a]) and not the exception at issue herein. As such, Abbamonte and Vera provide little guidance in ascertaining whether the Maryland law of conspiracy is designed to discourage a harm or evil different from the New York murder statute.


source: Caselaw Access Project

author: Fuchsberg, J. Wachtler, J.

license: Public Domain

text:
    Dominic S. Rinaldi, Appellant-Respondent, v Viking Penguin, Inc., Appellant, et al., Defendant, Jack Newfield et al., Respondents.
    Argued January 7, 1981;
    decided April 7, 1981

      POINTS OF COUNSEL

      Irwin N. Wilpon for appellant-respondent.
    I. The published matter in the book about plaintiff is false. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Hoffman v Washington Post Co., 433 F Supp 600; James v Gannett Co., 40 NY2d 415; Mencher v Chesley, 297 NY 94; Greenburg v CBS Inc., 69 AD2d 693; Balabanoff v Hearst Cons. Pub., 294 NY 351; Afro-American Pub. Co. v Jaffe, 366 F2d 649; Time, Inc. v Firestone, 424 US 448; Abell v Cornwall Ind. Corp., 241 NY 327; Julian v American Business Consultants, 2 NY2d 1.) II. Plaintiff has made an ample showing of malice on the part of defendants in their paperback distribution of the book. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; New York Times Co. v Sullivan, 376 US 254; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Karaduman v Newsday, Inc., 71 AD2d 411; St. Amant v Thompson, 390 US 727; Garrison v Louisiana, 379 US 64; Curtis Pub. Co. v Butts, 388 US 130; Davis v Schuchat, 510 F2d 731; Stevens v Sun Pub. Co., 436 US 945; Church of Scientology of Cal. v Dell Pub. Co., 362 F Supp 767.) III. If for any reason plaintiff’s showing of malice be deemed insufficient, defendants’ motion for summary judgment should be denied under CPLR 3212 (subd [f]) by reason of defendants having by such motion precluded plaintiff from eliciting evidence on disclosure which would be used to defeat summary judgment. (Herbert v Lando, 441 US 153; Peterson v Spartan Inds., 33 NY2d 463; Proctor & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344; Marine Midland Trust Co. of Northern N. Y. v Macaluso, 30 AD2d 932.) IV. The attempt of defendants to apply section 74 of the Civil Rights Law as a defense is wholly frivolous. (Stevenson v News Syndicate Co., 302 NY 81; Time, Inc. v Firestone, 424 US 448; Foley v Press Pub. Co., 226 App Div 535; Julian v American Business Consultants, 2 NY2d 1.) V. Plaintiff’s cross motion to dismiss the defense of Statute of Limitations was correctly granted. (Rupert v Sellers, 65 AD2d 473, 50 NY2d 881; Carson v Allied News Co., 529 F2d 206; Kent v City of Buffalo, 61 Misc 2d 142, 36 AD2d 85, 29 NY2d 818; Goldwater v Ginzburg, 414 F2d 324, 396 US 1049; General Stencils v Chiappa, 18 NY2d 125; Glus v Brooklyn Eastern Term., 359 US 231; Robinson v City of New York, 24 AD2d 260; Rosenthal v Reliance Ins. Co., 25 AD2d 860, 19 NY2d 712; Ryan Ready Mixed Concrete Corp. v Coons, 25 AD2d 530.) VI. Appellant has made an ample showing of malice on the part of respondents in the paperback distribution of the book which requires the denial of their motion for summary judgment. (New York Times Co. v Sullivan, 376 US 254; Chapadeau v Utica ObserverDispatch, 38 NY2d 196; Karaduman v Newsday, Inc., 71 AD2d 411; Curtis Pub. Co. v Butts, 380 US 130; Alioto v Cowles Communications, 430 F Supp 1363; Rupert v Sellers, 65 AD2d 473; Carson v Allied News Co., 529 F2d 206; Kent v City of Buffalo, 61 Misc 2d 142, 36 AD2d 85, 29 NY2d 818; Goldwater v Ginzburg, 414 F2d 324, 396 US 1049; St. Amant v Thompson, 390 US 727; Garrison v Louisiana, 379 US 64.) VII. Respondents’ motion for summary judgment should be denied in any event under CPLR 3212 (subd [f]) by reason of respondents having by such motion precluded plaintiff from eliciting evidence on disclosure which would be used to defeat summary judgment. (Herbert v Lando, 441 US 153; Peterson v Spartan Inds., 33 NY2d 463; Proctor & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344; Marine Midland Trust Co. of Northern N. Y. v Macaluso, 30 AD2d 932; Badger v Lehigh Val. R. R., 45 AD2d 601.)

      Martin Garbus, Arthur J. Ginsburg and Lois F. Wasoff for appellant.
    I. Plaintiff cannot sustain his burden of demonstrating actual malice, where the publisher relied, inter alia, upon the authors, a New York Times article based in part upon the report of a State agency, an investigation by two law firms and plaintiff’s failure to substantiate his unsupported denials. (New York Times Co. v Sullivan, 376 US 254; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; James v Gannett Co., 40 NY2d 415; Trails West v Wolff, 32 NY2d 207; Schneph v New York Post Corp., 16 NY2d 1011; Gilberg v Goffi, 15 NY2d 1023; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Rosenbloom v Metromedia, Inc., 403 US 29; Washington Post Co. v Keogh, 365 F2d 965, 385 US 1011.) II. The one-year Statute of Limitations did not begin to run anew from the date that books from a single printing were sold in a different binding and this action is therefore barred by the Statute of Limitations. (Wolfson v Syracuse Newspapers, 254 App Div 211, 279 NY 716; Cassius v Mortimer, 161 F Supp 74, 252 F2d 959; Dodd v Harper & Bros., 3 AD2d 548, 4 NY2d 958; Heymann v Dodd Mead & Co., 260 App Div 573; Hartmann v Time, Inc., 166 F2d 127; Kilian v Stackpole Sons, 98 F Supp 500.) III. The statement complained of is not libelous because it is substantially true. (Cox Broadcasting Corp. v Cohn, 420 US 469; Cafferty v Southern Tier Pub. Co., 226 NY 87; Cassidy v Gannett Co., 173 Misc 634; Grab v Poughkeepsie Newspapers, 91 Misc 2d 1003; Josephs v News Syndicate Co., 5 Misc 2d 184; Klein v Prial, 32 AD2d 925, 28 NY2d 506.) IV. The statement complained of is privileged under section 74 of the Civil Rights Law. (Campbell v New York Evening Post, 245 NY 320; Gardner v Poughkeepsie Newspapers, 68 Misc 2d 169; Hanft v Heller, 64 Misc 2d 947; Keogh v New York Herald Tribune, 51 Misc 2d 888, 28 AD2d 1209.)

      Victor A. Kovner, Harriette K. Dorsen and Josephine Lea Iselin for respondents.
    I. The court below correctly held that the distribution of the unchanged soft-bound copies was a publication by Viking, and not of the authors, for New York Times Co. v Sullivan purposes. (Gregoire v Putnam’s Sons, 298 NY 119; New York Times Co. v Sullivan, 376 US 254; St. Amant v Thompson, 390 US 727.) II. Plaintiff cannot now assert a claim for libel based upon distribution of the hardbound copies of the book. (American Ind. Contr. Co. v Travelers Ind. Co., 54 AD2d 679, 42 NY2d 1041; Brown v Kimmel, 68 AD2d 896; Gregoire v Putnam’s Sons, 298 NY 119.) III. Except for the words “gone to police stations”, the language in suit contains no factual inaccuracy, and to the extent it criticizes plaintiff’s official conduct, it constitutes absolutely privileged opinion. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969.)
   OPINION OF THE COURT

Fuchsberg, J.

This case for libel, brought by Dominic S. Rinaldi, now a retired New York State Supreme Court Justice, against Viking Penguin, Inc., the publisher of a book entitled “The Abuse of Power”, and its coauthors Jack Newfield and Paul Du Brul, in the main requires us to consider (1) whether, under the relevant circumstances, there can be said to have been a republication of the book sufficient to start the applicable one-year Statute of Limitations running anew (CPLR 215, subd 3) and (2) the standards by which summary judgment may be applied in a public figure libel litigation in determining the existence of actual malice.

The issues come to us in the context of two appeals, now consolidated. Each arises from a single order of the Appellate Division, which, on the law, modified Special Term’s order denying the publisher’s and the authors’ separate motions for summary judgment and granting plaintiff’s cross motion to dismiss defendants’ affirmative defense of the Statute of Limitations. The modification granted summary judgment to the authors,, but otherwise affirmed (73 AD2d 43). The Appellate Division thereafter granted the publisher leave to appeal on a certified question, which, in its usual broad form, asks whether its ruling against this defendant was proper (CPLR 5602, subd [b]). For his part, aggrieved by so much of the ruling as favors the authors, plaintiff appeals as a matter of right (CPLR 5601). On the analysis which follows, we believe the result reached at the Appellate Division' was correct in all respects.

The facts on which the determinations rest may be said to have begun on May 13, 1977, when Penguin released a hard-cover edition of the book to the general public. Among this work’s contents, in a section introduced by a topical sentence which speaks of “organized crime’s domination of New York City’s politics and judges”, appeared the following language: “Individual mobsters have had access to individual politicians and judges * * * And some judges appear to display generosity toward organized crime defendants * * * Supreme Court Justice Dominic Rinaldi has twice personally gone to police stations to release alleged Mafioso Santo Patti, who had twenty prior gambling arrests, rather than wait for Patti to be arraigned before another judge the next morning. Police records show that Justice Rinaldi did this on April 18, 1969, and again on June 5,1970. But no crime has ever been proven against Corso or Rinaldi. The secret connections between Mafia dons and politicians and judges are raw meat for gossip and television drama. But the element of legal proof seems lacking, although we would not be surprised if it were discovered tomorrow by an interprising prosecutor” (emphasis added).

Within a week, Justice Rinaldi had written to the publisher protesting that the emphasized language was false, and demanding both its retraction and its elimination from any unissued copies or future printings. In this and other correspondence in which he and the publisher engaged shortly thereafter, he specifically stated, among other things, that he had never been to a police station to sign a release on a bail bond; that the police records did not bear out the book’s assertion that he had; that the bonds he did sign, standard ones in misdemeanor cases, were in the form approved by the State Superintendent of Insurance; that he and other Judges in the same position were required to sign them in such cases in normal course; and that he never met or heard of Santo Patti and was not even familiar with his name when he signed the bonds.

The responses from Viking and its counsel in sum acknowledged that there had been “factual error”, but offered to do no more than delete the reference to going to police stations, amends which Justice Rinaldi was to reject as inadequate. In justification for its position, the publisher also indicated that it had had a right to rely on the authors and that Mr. Newfield, who had been the one to write the passages in question, in turn had relied on an article which had appeared in the New York Times some two years earlier.

But Justice Rinaldi, in addition to insisting that the Times story itself had been neither fair nor faithfully followed in “The Abuse of Power”, maintained that, in context, “[t]he book publishes the statements not contained in the Times article, that I went to the police station to sign these bonds, and that this was done because individual mobsters have had access to me and because of the secret connections between the Mafia dons and judges and that by reason thereof, I committed some yet unproven crime”. On that note, his last words to Viking’s lawyers, on September 8, 1977, read, “It is now clear to your client and to you, that these statements as to me, based on my signing of these bonds of Santo Patti, are false, and that if your client persists in its position, it does so with knowledge of such falsity”. Despite, or perhaps because of, the plaintiff’s firm views, Viking’s senior editor admits that, almost contemporaneously, she wrote a note “to be placed in the corrections file which would be organized in preparation for any subsequent printing of the Book.” The note itself has never been produced.

The scene.then shifts to the spring of 1978, when, having found the book far less successful than anticipated, the publisher, after having printed 20,000 copies for hard-cover use, found itself with about 10,000 unsold ones. About 5,400 of these had never even been bound. It was at this juncture that the publisher decided to market a paperback edition, in the course of whose production it would consume or convert the unbound and hardbound materials it had on hand.

This it had accomplished by May, 1978. The paperbacks so produced received, inter alia, new covers, a new publisher’s name (“Penguin Books” in place of “Vanguard Press”), a revised title page updating the publication from 1977 to 1978 and a copyright page memorializing new identifying numbers, including ones assigned by the Library of Congress. In addition, newly imprinted data indicated that the book was to be published simultaneously in foreign countries by diverse Penguin Books entities, mostly corporate in form. In the process, the hard covers on the some four-thousand-odd copies that had been left over from the initial publication were ripped off and two new pages substituted by hand. The changes necessary to recycle the previously unbound pages directly into paperbacks were even more extensive; a so-called “signature”, consisting of the first 32 pages of each unbound copy, was reprinted in its entirety. Yet, the matter which had elicited plaintiff’s indignation was left unchanged, nothing being deleted or rewritten to conform to the editor’s offer and “note”, much less to plaintiff’s prescription for repairing the harm. In the face of this event, plaintiff commenced this action, over a year from the time the hard-cover edition came out, but only two months from the time when the soft-cover copies first appeared.

It was essentially on this record that Special Term, passing on the motions, found that the books had been “substantially modified”, that the marketing of the paperbacks was an “independent act” rather than part of a “continuous publication” and that, as a consequence, the time within which the suit could be brought was to be measured from the issuance of the paperbacks and not the hard covers. Stressing that the plaintiff had put the defendants on notice that the “original publication was inaccurate and defamatory”, nisi prius also concluded that the plaintiff had made a sufficient demonstration of the existence of actual malice to resist summary judgment, all the more so when there had been no opportunity for discovery.

Only on the disposition as to the authors did the Appellate Division overrule Special Term. On that score, while Special Term would go no further than to suggest that subsequent disclosure might reveal that the authors had too little “input in the publication of the paperback edition to subject them to liability”, the Appellate Division arrived at a fixed conclusion that, since the authors had no say in the decision to publish the paperbacks, which alone were the subject of plaintiff’s suit, the republication of the offending statement was not an act for which Messrs. Newfield and Du Brul could be faulted. However, the Appellate Division agreed that, in putting out the paperbacks, the publisher had “held this out as a new edition or publication, a reissue, and it does have that effect for purposes of the statute of limitations”. Moreover, as to the requisite showing of actual malice, quoting from Trails West v Wolff (32 NY2d 207, 219), it too felt that there was sufficient showing that “the defendant in fact entertained serious doubts as to the truth” of the statement to require “further exploration of the facts”.

Against this factual and decisional background, treating first with the Statute of Limitations issue, we at once focus, as have all the parties, on Gregoire v Putnam’s Sons (298 NY 119), in which this court for the first time applied what has come to be known as the “single publication rule” to a book libel suit. Building on Wolfson v Syracuse Newspapers (254 App Div 211, affd without opn 279 NY 716), Gregoire marked a pronounced turnabout from the common law’s “multiple publication rule” which had held largely undisputed sway following the handing down of the historic English decision in Duke of Brunswick v Harmer in 1848 (14 QB 185,117 Eng Rep 75). These cases point the way for us now.

Brunswick’s suit was based on a newspaper story circulated in 1830. Over 17 years later in September, 1847, the Duke’s servant purchased a back copy of the original edition at the newspaper’s office. The prevailing Statute of Limitations, if measured from the time when the edition of which the copy was a part came out, long since would have run. The court, making no new law in the process, nevertheless held the sale of the back copy in 1847 was an independent publication from whose date the statutory period began to run all over again. As a result, the action was not barred, and the Duke recovered on a by then 18-year-old libel. However inconsonant with the policy of repose behind limitations statutes, the effect of the Brunswick decision was so pervasive that, at the dawning of Gregoire and Wolf son nearly a hundred years later, the Restatement confidently reported that in prevailing American law “each time a libelous book or paper or magazine is sold, a new publication has taken place which, if the libel is false and unprivileged, will support a separate action for damages against the seller” (Restatement, Torts, § 578, Comment b [1938]).

Departing from this doctrine, Gregoire expanded on a developing theory under which the activities reasonably related to the production and distribution of a newspaper or magazine were regarded as part of a single transaction against which the statute would run from the time that the original circulation of the periodical, no matter how large or widespread, had taken place (see Wolfson v Syracuse Newspapers, 254 App Div 211, supra; Means v Mac Fadden Pub., 25 F Supp 993, 994). Sensitive to the realities of a society in which mass distribution and nationwide communication now are norms, and antithetical to the almost unending potential for unbarred stale claims under Brunswick’s multiple publication approach, Gregoire made clear that neither the. time nor the circumstance in which a copy of a book or other publication finds its way to a particular consumer is, in and of itself, to militate against the operation of the unitary, integrated publication concept.

This is not to say that, for Statute of Limitations purposes, all of a publisher’s subsequent activities relating to a particular book or periodical are swallowed up in the publishing event which first launches it, for all practical purposes the position the publisher urges on us. Gregoire’s holding is not so all-embracing or so simple. Its reference to “one publication which gives rise to one cause of action” is expressly tied to “a single issue of a newspaper, or a single issue of a magazine” (emphasis added; Gregoire v Putnam’s Sons, supra, at p 123). Indeed, two cases the opinion distinguished but did not overrule confirmed for recognized scholars that a repetition of the defamation in a later edition could still give rise to a new cause of action. (Mack, Miller Candle Co. v MacMillan Co., 239 App Div 738, affd 266 NY 489 [newspaper]; Cook v Conners, 215 NY 175 [book]; Lañar, Single Publication Rule, 25 Rocky Mt L Rev 263, 267; Prosser, Interstate Publication, 51 Mich L Rev 959, 962). The balance so struck limited the exposure of publishers without untoward unfairness to those they might defame.

Moreover, the Gregoire court furnishes its own illustrations of the kind of case in which the principle it articulated was to have its primary application. First, of course, was the case then at hand. It emanated from a publisher’s sale from stock of a copy of the book containing the libelous language. Since this transaction occurred two years after the book had last undergone a printing and general distribution, the issue was whether the last printing or the later sale from stock was to be the point of departure for the running of the statute. Qualitatively reminiscent of the back issue sold in Brunswick, the sale from stock here was one of only a trickle of 60 to which dwindling demand for the book had reduced such sales in the 12 months preceding initiation of suit. Thus, on its facts, Gregoire merely held that, in a Brunswick-type case involving a book, the Statute of Limitations is not to be reactivated by a late sale from the residue of a time-barred publishing event.

Secondly, in extending the reach of Wolf son to books, the Gregoire court adopted the rationale of the Appellate Division’s decision in that case. The latter court was vigorous in its declaration that the statute would be stultified if “although a book may have had but one publication twenty years ago, if the publisher continues to make unsold copies of the single publication available to the public today, by sale or otherwise, such conduct amounts to a republication of any libel which the book contains” (Wolfson v Syracuse Newspapers, 254 App Div 211, 213, supra). Obvious is Gregoire’s concern for the Statute of Limitations frustrations typified by Brunswick.

Finally, Wolf son’s own facts evidence the self-same preoccupation. There, too, the alleged libel was one outlawed by the passage of time if calculated from the date when the edition of the daily newspaper in which it appeared was published. But, as in Gregoire, the plaintiff argued that a time bar so measured would not be apropos because his cause was not founded on the original publication but on a recent and timely reading of the allegedly tainted text in an old copy kept on file in the newspaper’s reading room, where it was available for the perusal of the public. Once again, what was most pronounced about the court’s rejection of this contention was its repudiation of the classical Brunswick theory.

From all this, both the expounded law and the undisputed facts, the bringing out of the paperbacks unquestionably was that of a new edition and, as such, a republication. It flowed from a conscious and deliberate decision to prepare and distribute nearly 10,000 such copies, a number approximately equivalent to the equally substantial quantity of hardbacks which earlier had been introduced into the channels of commerce. It would appear to be immaterial that, in creating the paperbacks, or even in deciding whether and when to do so, the publisher may have taken into account the fact that in the process it might be able to incorporate, adapt, convert or otherwise make use of the oversupply of books created by its miscalculation of the responsiveness of the hard-cover market. Economic factors of this kind, be they the desire to put available funds, or personnel, or manufacturing facilities, or, as in this case, salvageable goods to work are commonplace cost accounting considerations in business decision-making.

By no means was this to be but a delayed circulation of the original edition. Whatever reediting, repricing, reprinting, restyling, rebinding, redistributing, republicizing, re-registering, reidentifying or recovering took place, these were directed to the new project. We also observe that, to the hard-cover edition’s copyright page notation that the book was published by Viking in 1977, the publisher in the paperback version added the unqualified words “Published in Penguin Books 1978”. We therefore agree that the publisher’s affirmative defense of the Statute of Limitations was properly stricken as a matter of law.

On the related subject of whether the authors participated or acquiesced in the publication of the paperbacks, it was their submission on the motion for summary judgment that they had no knowledge of and played no role in either the decision to issue a paperback edition or in its implementation. This the publisher concedes and the plaintiff does not contradict. Even more to the point, the authors’ position is supported by undisputed documentary proof. For, examination of the authors’ contract with the publisher, which forms part of the record on this appeal, reveals that the publisher was not required to obtain the authors’ consent, notify them of its intention or even consult them on the project. The authenticity of this writing is unquestioned. The Appellate Division, therefore, correctly recognized that, on the threshold publication issue, it had no option but to dismiss the case against the writers (see Karaduman v Newsday, Inc., 51 NY2d 531, 540).

We turn then to the correctness of the ruling on the publisher’s motion for summary judgment, made essentially on the “actual malice” issue. Since this is a public figure case, the motion was to be weighed by the requirements, now firmly decreed to be the law of the land, that, to “encourage comment on and criticism of those charged with public office”, before such a suitor may recover not only must it appear that the implicated defamatory falsehood was uttered with actual malice, but also that the burden of so demonstrating has been met by the plaintiff with “convincing clarity” (New York Times Co. v Sullivan, 376 US 254, 275, 285-286). Regard must be had too for the fact that “malice”, a term which, as used in its First Amendment constitutional sense, is not to be equated with a base or unworthy motive (see Greenbelt Pub. Assn. v Bresler, 398 US 6, 10), but instead is to be defined as “ ‘knowledge [of falsity or] reckless disregard of whether it was false or not’ ” (Wolston v Reader’s Digest Assn., 443 US 157, 160).

On the issues these principles control, the things the parties dispute are (1) whether on the facts plaintiff presented, viewed most favorably to the plaintiff, a reasonable jury could find that actual malice had been proved with convincing clarity, (2) whether the possible chilling of First Amendment rights by libel litigation should incline courts to favor summary judgment as “the best procedural protection for freedom of speech” (Maguire v Harriscope Broadcasting, 6 Media L Rptr 1257 [Wyo, 1980]), and (3) whether the determination of the motion should await the outcome of the suspended discovery.

On the first of these subissues the publisher, inter alia, relies on arguments that plaintiff’s own assertion of the falsity of the alleged libel is not enough to meet the clear and convincing standard; that the publisher’s reliance on the authors who, in turn, relied on the New York Times article, negates any “high degree of awareness of * * * probable falsity” (Garrison v Louisiana, 379 US 64, 74); that whether plaintiff signed the bonds in the police station or in the courthouse is not material; and that the failure of the “correction” note to reach those who prepared the paperbacks was due merely to a nonmalicious, and presumably nonreckless, lack of communication between the editor and production personnel.

To these, plaintiff responds that his own affidavit, far from standing alone, is corroborated by one from the insurance company’s representative attesting to the fact that its bonds were signed in court; that he had supplied a detailed and objectively verifiable analysis of the applicable law to support the propriety of his conduct; that he had provided an equally verifiable description of the procedure, long and uniformly followed by all Judges of the large Brooklyn court in which he sat, as a means by which the regularity of his own performance could be tested; that, while the publisher’s reliance on the authors could stand it in good stead as to the hardbacks, it could no longer serve that purpose when, well before the paperback edition was undertaken, the plaintiff’s letter of complaint had alerted it to specific inaccuracies (cf. Rinaldi v Holt, Rinehart, & Winston, 42 NY2d 369, 383); and that whether the plaintiff gave favored treatment to Santo Patti by repairing to the police station or whether he had routinely and impersonally passed on the bonds in court was a vital element in raising the libelous text’s innuendos that the Judge was at the beck and call of notorious members of organized crime. Also emphasized by the plaintiff, and crucial to the decision here, is the fact that, on independent investigation of his complaints, the publisher itself concluded that at least some part of the material to which he had objected indeed was inaccurate. Pointing out that though, in consequence, the publisher had informed the. plaintiff that appropriate corrections would be made in future publications, directions to that effect were never given to those who would be charged with the task of implementing such a decision, circumstances which, at least in combination, were sufficient to warrant a trial on the issue of malice.

On the second subissue, i.e., whether summary judgment should be the “rule” (see Oliver v Village Voice, 417 F Supp 235, 237; see, also, Rosenbloom v Metromedia, Inc., 403 US 29, 52-53), plaintiff points to the Supreme Court’s recent expressions of disapproval of the widespread use of summary judgment in public figure defamation cases. In what may be a swing of the pendulum the other way, the court observed that, since “ [t]he proof of ‘actual malice’ calls a defendant’s state of mind into question”, such a case “does not readily lend itself to summary disposition” (Hutchinson v Proxmire, 443 US 111, 120, n 9; see, also, Wolston v Reader’s Digest Assn., 443 US 157, 161, n 3, supra; cf. Herbert v Lando, 441 US 153, 174-175; see, also, Yiamouyiannis v Consumers Union of U. S., 619 F2d 932, cert den 49 USLW 3247; National Nutritional Foods Assn. v Whelan, 492 F Supp 374; Berkey v Delia, 287 Md 302; National Assn. of Governmental Employees v Central Broadcasting Corp., — Mass —, 396 NE2d 996 [Mass], cert den 446 US 935).

Finally, on the discovery point, the publisher, urging that the record is complete and that discovery will add nothing, asks for adjudication in its favor. The plaintiff, respondent on the publisher’s appeal, accurately noting that it had not delayed its demand for discovery, particularly with respect to the issue of malice, requests that the publisher’s motion for summary judgment be “denied in any event under CPLR 3212 (f)”, which permits denial in contemplation of discovery. This comports with the thinking of the Appellate Division, and we see no reason to disturb it. It also makes it unnecessary for us to finally pass on the first two subissues at this state of the development of the case.

Accordingly, the order of the Appellate Division should be affirmed in all respects, with costs to the plaintiff against the defendant Viking on the latter’s appeal and costs to the defendants Newfield and Du Brul on plaintiff’s appeal, and the question certified should be answered in the affirmative.

Wachtler, J.

(dissenting). Until today I had thought it understood, even by laymen, that one cannot tell a book by its cover. Nevertheless, the majority, focusing on a changed cover format, has artificially split a single unified publication into two distinct parts in order to avoid the consequences of the Statute of Limitations.

This publisher, in remarketing the book containing the alleged libel in soft-cover form, used the very same pages from the original printing; the changes, in essence, were cosmetic. It is especially noteworthy that there was no reprinting of the text in such a way as to afford the publisher an opportunity to alter the controversial portion. Had that been the case, the rejection of such an opportunity might well have been viewed as a separate actionable wrong. But no such facts are presented here.

Instead we are faced with a reasonable book-marketing procedure which undoubtedly will be chilled by the bifurcation rule the majority adopts. A single one-year Statute of Limitations is an inherent part of the protection afforded by the single publication rule (see Gregoire v Putnam’s Sons, 298 NY 119, 123). However, after today, a publisher seeking to avoid successive limitations periods will be forced to choose between limiting the number of copies in a first printing, or risking expensive revisions to copies not immediately sold in the hard-cover format.

In this area especially, involving First Amendment rights, the court should avoid creating technical and unrealistic impediments to the free expression of ideas.

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

Order affirmed, with costs to plaintiff against defendant Viking on Viking’s appeal and with costs to defendants Newfield and Du Brul against plaintiff on plaintiff’s appeal, and question certified answered in the affirmative.

      . Penguin Books was also named as a defendant. However, according to Viking Penguin, Penguin Books is not a legal entity, but only a trade name or “imprint” under which Viking Penguin publishes paperback books.

      . After a long career as a Judge, the plaintiff retired on December 31, 1977. The matter on which his complaint is grounded was originally published on May 13,1977. However, when suit was commenced in July of 1978, it was premised on the assumption that the circulation of the material contained in the paperbacks only two months earlier, i.e., in May, 1978, was a republication..

      . Defendants served discovery notices with their answers. Plaintiff immediately filed cross notices. But before discovery could proceed, it was automatically stayed by defendants’ motions for summary judgment. Thereafter, auxiliary to its grant to the publisher of leave to take its present appeal, the Appellate Division continued the stay “subject to modification by the Court of Appeals”.

      . “Convincing clarity” and “clear and convincing” are used interchangeably in the case law on this subject.


author: Per Curiam. Jones, J.

text:
    The People of the State of New York, Appellant, v Samuel J. Roth et al., Respondents.
    Argued February 10, 1981;
    decided April 2, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Bonnie G. Wittner and Shirley Adelson Siegel of counsel), for appellant.
    I. The legislative history of the Donnelly Act demonstrates that physicians who engage in a boycott are within its scope. (State of New York v Mobil Oil Corp., 38 NY2d 460; State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251; American Med. Assn. v United States, 317 US 519.) II. Precedents in this court support the People’s contention that physicians who engage in a boycott are not exempt from prosecution under the Donnelly Act. (Matter of Freeman, 34 NY2d 1; Matter of Gordon, 48 NY2d 266; Goldfarb v Virginia State Bar, 355 F Supp 491, 497 F2d 1, 421 US 773; United States v Oregon Med. Soc., 343 US 326.) III. That the profession is regulated under the Education Law is irrelevant and confers no immunity from prosecution for an illegal boycott. (State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251; People v Masiello, 177 Misc 608, 271 App Div 875; National Soc. of Professional Engrs. v United States, 435 US 679.)

      James M. O’Brien and Kevin J. Murtagh for Frank Oliveto, respondent.
    I. The indictment is insufficient, as a matter of law, since the acts allegedly done by defendant, Oliveto, do no constitute a violation of sections 340 and 341 of the General Business Law. (Matter of Freeman, 34 NY2d 1; Matter of Gordon, 48 NY2d 266; Goldfarb v Virginia State Bar, 421 US 773; Feminist Women’s Health Center v Mohammad, 415 F Supp 1258, 586 F2d 530; Erie R. R. Co. v Tompkins, 304 US 64; Government of French Republic v Cabot, 190 Misc 517.) II. Under the reasoning of Goldfarb v Virginia State Bar, defendants-respondents are not subject to prosecution. (Goldfarb v Virginia State Bar, 421 US 773; American Med. Assn. v United States, 317 US 519; Lucomsky v Palmer, 141 Misc 278.) III. The indictment is dismissable as a matter of law on precedent — in addition it cannot be sustained by traditional concepts of antitrust law. IV. The record does not support the attacks of the honor of defendants.

      John J. Tigue, Jr., Elliot Silverman, John L. Kase, James O. Drucker and Paula Schwartz Frome for Seth Kaufman, respondent.
    I. The courts below correctly held that the Donnelly Act is inapplicable to the acts charged in the indictment. (Matter of Freeman, 34 NY2d 1; New York Clothing Mfrs.’ Exch. v Textile Finishers Assn., 238 App Div 444; Matter of Davies, 168 NY 89; Matter of Williams v Du Mond, 282 App Div 76; S-P Drug Co. v Smith, 96 Misc 2d 305; Goldfarb v Virginia State Bar, 421 US 773; United States v Container Corp., 393 US 333; American Column Co. v United States, 257 US 377; Feminist Women’s Health Center v Mohammad, 586 F2d 530, 591 F2d 1343; Markham v Gray, 393 F Supp 163, affd on other grounds sub nom. Markham v Anderson, 531 F2d 634.) II. A holding that the Donnelly Act applies to the acts alleged in this indictment would constitute an unforeseeable retroactive expansion of criminal liability, in violation of the due process clause. (United States v Harriss, 347 US 612; Coates v City of Cincinnati, 402 US 611; Lanzetta v New Jersey, 306 US 451; Connally v General Constr. Co., 269 US 385; Matter of Pomeroy v Whalen, 44 NY2d 992; People v Smith, 44 NY2d 613; People v Phyfe, 136 NY 554; Matter of Consolidated Mut. Ins. Co. v Keepnews, 41 NY2d 982; United States v Laub, 385 US 475; Bouie v City of Columbia, 378 US 347.) III. The Donnelly Act should not be construed so as to prohibit defendants’ constitutionally protected activity of petitioning the Legislature. (Eastern R. R. Conference v Noerr Motors, 365 US 127; Thomas v Collins, 323 US 516; First Nat. Bank of Boston v Bellotti, 435 US 765; Metro Cable Co. v CATV of Rockford, 375 F Supp 350, 516 F2d 220; Wilmorite, Inc. v Egan Real Estate, 454 F Supp 1124, 578 F2d 1372, 439 US 983; Mine Workers v Pennington, 381 US 657; Franchise Realty Inter

      state Corp. v San Francisco Local Joint Executive Bd. of Culinary Workers, 542 F2d 1076,430 US 940; Feminist Women’s Health Center v Mohammad, 586 F2d 530; Lafayette v Louisiana Power & Light Co., 435 US 389; Mine Workers v Illinois Bar Assn., 389 US 217.) IV. The Donnelly Act, if construed to prohibit the acts alleged in the instant indictment, imposes involuntary servitude on defendants in violation of the Thirteenth Amendment. (Bailey v Alabama, 219 US 219; Pollock v Williams, 322 US 4; Taylor v Georgia, 315 US 25; People v Lavender, 48 NY2d 334.)

      Harvey Paticoff for Joel Karen, respondent.
    I. The Donnelly Act does not apply to the medical profession. (Matter of Hirschorn v Attorney-General of State of N. Y., 93 Misc 2d 275; Goldfarb v Virginia State Bar, 421 US 773; National Soc. of Professional Engrs. v United States, 435 US 679; American Med. Assn. v United States, 317 US 519; United States v Oregon State Bar, 385 F Supp 507; United States v Philadelphia Nat. Bank, 374 US 321.) II. The doctrine of stare decisis excludes professions under the Donnelly Act. (Matter of Broderick v City of New York, 295 NY 363; Brooks v Horning, 27 AD2d 874, 20 NY2d 760; People v Munoz, 40 AD2d 337, 33 NY2d 998; American Med. Assn. v United States, 317 US 519; Matter of Gordon, 48 NY2d 266; Marsich v Eastman Kodak Co., 244 App Div 295, 269 NY 621; Feminist Women’s Health Center v Mohammed, 586 F2d 530.) III. There is no traditional antitrust concept and for that reason, too, the indictment was properly dismissed. (American Med. Assn. v United States, 130 F2d 333, 317 US 519; United States v American Tobacco Co., 221 US 106; Standard Oil Co. v United States, 221 US 1; United States v Aluminum Co. of Amer., 148 F2d 416; United States v United Shoe Mach. Corp., 110 F Supp 295; United States v Griffith, 334 US 100; American Tobbacco Co. v United States, 328 US 781; People v Woman’s Christian Assn. of Jamestown, 44 NY2d 466.) IV. The actions of defandant-respondent did not constitute a boycott. (State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251.)

      Irving Anolik for Samuel J. Roth and others, respondents.
    I. The opinion and decision of Judge Santagata in the court below with respect to the applicability of the Donnelly Act to physicians is correct and should be affirmed. (National Soc. of Professional Engrs. v United States, 435 US 679; American Med. Assn. v United States, 317 US 519; United States v Oregon State Bar, 385 F Supp 507; United States v Philadelphia Nat. Bank, 374 US 321; Matter of Broderick v City of New York, 295 NY 363; Brooks v Horning, 27 AD2d 874, 20 NY2d 760; People v Munoz, 40 AD2d 337, 33 NY2d 998; Lee v Consolidated Edison Co. of N.Y., 98 Misc 2d 304; Matter of Gordon, 48 NY2d 266.) II. While the courts below did not reach the question, we maintain that a violation of the Thirteenth Amendment and of the bill of attainder clause of the United States Constitution (bill of pains and penalties) is inherent in the argument of the Attorney-General that defendants-respondents were required to perform services for patients under the workers’ compensation program and the no-fault law. (United States v Lovett, 328 US 303; Whitney Stores v Summerford, 280 F Supp 406, 393 US 9; People v Saffore, 18 NY2d 101; Matter of Freidus v Leary, 66 Misc 2d 70; Goldfarb v Virginia State Bar, 421 US 773; People v Lavender, 48 NY2d 334.)

      Jeffrey Weingard and Roy Broudny for S. Peter Ravitz and another, respondents.
    I. The indictment was correctly dismissed on the ground that the Donnelly Act does not apply to the medical profession and, therefore, does not prohibit a purported combination of professionals which would restrain the furnishing of their own services. (Matter of Freeman, 34 NY2d 1; American Med. Assn. v United States, 317 US 519; Marsich v Eastman Kodak Co., 244 App Div 295, 269 NY 621; Feminist Women’s Health Center v Mohammad, 586 F2d 530; Matter of Gordon, 48 NY2d 266; Engle v Talarico, 33 NY2d 237; Matter of Scheftel, 275 NY 135; Matter of Simonson v Cahn, 27 NY2d 1; Baden v Staples, 45 NY2d 889; Seider v Roth, 17 NY2d 111.) II. Dismissal of the indictment is also required by the failure to state a violation of the Donnelly Act since it fails to contain the essential elements of either a mono-ply in the furnishing of medical services or a restraint in competition or the free exercise of any activity in the furnishing of medical services by the respective defendants. (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251.) III. Dismissal of the indictment is also required because it is bottomed upon allegations constituting constitutionally protected First Amendment activity, including the right to free speech, assembly and petition. To the extent that the Donnelly Act may be construed as prohibiting such activity, the provision must be declared unconstitutional as applied herein. (Eastern R. R. Conference v Noerr Motors, 365 US 127; Mine Workers v Pennington, 381 US 657; California Transp. v Trucking Unlimited, 404 US 508; Feminist Women’s Health Center v Mohammad, 586 F2d 530; Sacramento Coca-Cola Bottling Co. v Chauffeurs, Teamsters & Helpers Local No. 150, Int. Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer., 440 F2d 1096; Parker v Brown, 317 US 341; Mine Workers v Illinois State Bar Assn., 389 US 217; State of Mo. v National Organization for Women, 467 F Supp 289, 620 F2d 1301; Lafayette v Louisiana Power & Light Co., 435 US 389.) IV. Ample grounds exist for the court to conduct an in camera inspection of the Grand Jury minutes and, thereafter, to sustain the dismissal of the indictment for legal insufficiency and because it is predicated upon a defective Grand Jury proceeding. (People v Fielding, 158 NY 542; People v Percy, 45 AD2d 284, 38 NY2d 806; Barns v Dairymen’s League Co-op. Assn., 220 App Div 624; Park & Sons Co. v National Wholesale Druggists’ Assn., 175 NY 1; Solomon v Houston Corrugated Box Co., 526 F2d 389; Scranton Constr. Co. v Litton Inds. Leasing Corp., 494 F2d 778; Scott Med. Supply Co. v Bedsole Surgical Supplies, 488 F2d 934; People v Gassman, 295 NY 254; Rochette & Parzini Corp. v Campo, 301 NY 228.) V. The prosecution by the State of New York of defendant physicians for exercising their constitutional right not to participate in the workers’ compensation and no-fault programs, is violative of the Thirteenth Amendment’s prohibition against involuntary servitude. (Pollock

      v Williams, 322 US 4; Bailey v Alabama, 219 US 219; Matter of Freeman, 34 NY2d 1; People v Lavender, 48 NY2d 334.) VI. Dismissal of the indictment is required because the State of New York unlawfully singled out defendants for selective and discriminatory prosecution based upon the constitutionally impermissible consideration that defendant physicians saw fit to actively participate in a public protest against the State mandated fee schedules in the workers’ compensation and no-fault programs. (United States v Falk, 479 F2d 616; People v Walker, 14 NY2d 691; People v Utica Daw’s Drug Co., 16 AD2d 12; People v Goodman, 31 NY2d 262; United States v Gillings, 568 F2d 1307.)

      Taylor R. Briggs and Thomas G. Rohback for the Medical Society of the State of New York, amicus curiae.

    I. This court has held that the Donnelly Act does not apply to the learned professions. (Matter of Freeman, 34 NY2d 1.) II. A fortiori the medical profession, like the legal profession, is not covered by the Donnelly Act. III. Additional legislative history demonstrates that the Legislature never intended the Donnelly Act to apply to the learned professions. IV. Federal case law cannot alter the intention of the New York Legislature in enacting the Donnelly Act. (Goldfarb v Virginia State Bar., 421 US 773; Hotel Edison Corp. v Taylor, 185 Misc 681, 268 App Div 1029, 295 NY 581; Marsich v Eastman Kodak Co., 244 App Div 295, 269 NY 621; Columbia Gas Co. of N. Y. v New York State Elec. & Gas Corp., 28 NY2d 117; Feminist Women’s Health Center v Mohammad, 586 F2d 530.) V. As a matter of sound judicial policy, the Freeman precedent should be respected. (Matter of Freeman, 34 NY2d 1; Bing v Thunig, 2 NY2d 656; Seider v Roth, 17 NY2d 111; Shaffer v Heitner, 433 US 186; Matter of Higby v Mahoney, 48 NY2d 15.)
   OPINION OF THE COURT

Per Curiam.

Defendants, all of whom are licensed physicians, were indicted under the Donnelly Act, which prohibits “combination [s] whereby * * * [c] ompetition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service * * * is or may be restrained” (General Business Law, § 340). Specifically, it was alleged that defendants had violated this statute by organizing a group boycott and concertedly refusing to furnish professional services to nonemergency workers’ compensation and no-fault insurance patients. The boycott was ostensibly organized as a means of protesting the low fee schedules established by law for these plans.

Defendants promptly moved to dismiss the indictment, asserting, among other grounds, that combinations among licensed professionals involving the provision of professional services are exempt from the proscriptions of the Donnelly Act. County Court granted the motion after concluding that our decision in Matter of Freeman (34 NY2d 1) mandated adoption of defendants’ position. The Appellate Division unanimously affirmed, without opinion. Because we agree that Matter of Freeman (supra) is dispositive of the issue presented by defendants’ motion, we now affirm the decisions below.

In Freeman, we were asked to consider whether a minimum fee schedule adopted by a County Bar Association constituted a violation of the Donnelly Act. After examining the language and legislative history of the act, we held that it was simply not intended to apply to the legal profession (34 NY2d, at p 9). Since we can discern no principled basis for distinguishing between the legal profession and the medical profession, at least for purposes of the Freeman rule, we are obliged to conclude that the medical profession is similarly insulated from liability under the Donnelly Act.

It has been suggested that the recent decision of the Supreme Court in Goldfarb v Virginia State Bar (421 US 773) requires a re-examination of our categorical ruling in the Freeman case. We cannot agree. The Goldfarb court merely held that the language and legislative history of the Federal antitrust laws did not support the conclusion that Congress intended to exempt the learned professions from the strictures of the Sherman Act (421 US, at pp 786-788). As we noted in Freeman, the ruling of a Federal court interpreting a Federal statute has no direct bearing upon a State court’s analysis of an analogous provision enacted by the State Legislature (34 NY2d, at p 7).

Of course, it could be argued that the Goldfarb analysis represents the more “modern” view of the relationship between the antitrust laws and the learned professions and that, accordingly, we should re-examine our own State antitrust statutes in light of that decision. Such an argument, however, cannot seriously be maintained in the face of the clear language in Freeman, which indicates that our decision in that case rested not upon general policy considerations, but rather upon a specific analysis of the legislative history underlying the Donnelly Act and the intent of our own State Legislature in enacting that statute. Inasmuch as nothing has occurred since Freeman was decided which would suggest that we were mistaken in that analysis, we can see no sound reason to abandon the Freeman rule merely because a Federal court has reached a different conclusion about an analogous Federal statute (cf. Monell v New York City Dept. of Social Servs., 436 US 658, overruling Monroe v Pape, 365 US 167).

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

Jones, J.

(concurring). I agree that there should be an affirmance but not on the ground that the allaged conduct of defendant physicians does not fall within the proscription of the Donnelly Act (General Business Law, § 340). In my view, while at least certain activities of members of the medical and other professions should now be held to come within the embrace of our State statute, constitutional principles preclude the prosecution of the physicians charged in this instance.

I am impelled to dissent from the conclusion that the Donnelly Act is inapplicable because I think the majority ignores the basal legislative intent disclosed in the history of the 1957 revision of that statute as identified and underscored in our decision in State of New York v Mobil Oil Corp. (38 NY2d 460), as well as the now controlling significance of the decision of the United States Supreme Court in Goldfarb v Virginia State Bar (421 US 773). I recognize that in Matter of Freeman (34 NY2d 1) our court, after a careful examination of the language and legislative history of our State statute, concluded in 1974 that the legal profession was exempt from any application of the Donnelly Act. I also perceive no significant legal difference between the medical profession and the legal profession for present purposes. But acknowledgment of these two propositions does not dictate the disposition of the appeal now before us. At the time of our decision in Freeman there had been no final, authoritative decision as to whether the Federal antitrust laws applied to the professions. After the Supreme Court’s decision in Goldfarb in 1975, however, it is clear that the professions are not wholly exempt from the Federal antitrust laws.

What is now known as the Donnelly Act was initially adopted in 1893. Our present focus, however, must be on the major revision of the statute enacted in 1958; the statute today is virtually the product of the 1957 redrafting based in large part on a report of the Special Committee to Study the New York Antitrust Laws of the New York State Bar Association. A reading of its report can leave no doubt that it was the intention of that committee that our Donnelly Act should be considered the mirror counterpart of the Federal Sherman Act and that interpretations of the former were to be guided largely by interpretations and applications of the latter. Portions of the committee’s report are illustrative. For instance, at p 10: “The changes which we advocate are designed merely to simplify and not to alter in any respect the coverage and meaning of the statute save to make clear that it relates to all subjects of commerce, or in other words, that it embraces the same economic activities as the Sherman Act.” (Emphasis in original.) Not only is it evident that the drafters intended the State courts to consider Federal antitrust principles as they existed in 1957, it is equally clear that they intended and expected that the Donnelly Act would be interpreted compatibly with future interpretations of the Sherman Act. Indeed, the special committee stated that expectation as one of the reasons it considered it unnecessary to substitute the wording of the Sherman Act for the diction of the Donnelly Act.

Subsequent to our decision in Freeman, we explicitly recognized this principle of counterpart conformity (State of New York v Mobil Oil Corp., 38 NY2d 460, 463, supra; see, also, Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 626). It was the dissent in Mobil Oil which unsuccessfully contended for an independent construction of our State statute. While it would unquestionably lie within the competence of our State Legislature to adopt antitrust proscriptions at variance, large or small, with the provisions of the Federal statutes, there is no ground to conclude that such was in fact the intention of the Legislature nor has any rational elucidation been advanced in this instance for any such disparity. Indeed, with the continual constriction of the areas of commercial activity held to be of intrastate dimension only and the increasing Federal-State nexus in both the provision and the financing of medical care services, no sound reason is perceived for the application of differing antitrust standards under State and Federal statutes; sound reason would dictate parallel application of the two similar statutes.

Respect for the basic requirement of parallel statutory construction did not dictate any particular result when Freeman was before us. At the time of that appeal there had been no definitive decision with respect to the application of the Sherman Act to the professions. Now there has been. This is not, as the majority would characterize it, an instance in which “the ruling of a Federal court interpreting a Federal statute has no direct bearing upon a State court’s analysis of an analogous provision enacted by the State Legislature” (majority opn, at p 447). Acceptance of any rubric that the dogma of stare decisis mandates slavish adherence to a State court application of the Donnelly Act which by happenstance antedates but later proves to have been at variance with a subsequent definitive construction of the Federal antitrust statute by the Supreme Court would, pro tanto, vitiate the fundamental counterpart conformity principle which was at the heart of the 1957 revision of the Donnelly Act.

Matter of Freeman (34 NY2d 1, supra) should, therefore, be expressly overruled and total exemption from the proscriptions of the Donnelly Act be denied the members of the medical profession. It would suffice for present purposes to hold that the conduct here alleged (organization of a group boycott and concerted refusal to furnish professional services to nonemergency workers’ compensation and no-fault insurance patients as a means to protest low fee schedules established by law for such services — a blatant effort to advance the economic self-interest of members of the medical profession) falls within the scope of the Donnelly Act prohibitions. Recognizing, as did the Goldfarb court, that professional activities may be considered for antitrust purposes under a slightly different standard from that applicable to businesses (421 US, at p 792), we would not find it necessary to reach or consider whether there might not be certain combinations that, while restraining the free rendering of medical services, would nonetheless be exempt from both Federal and State antitrust law proscription because they were grounded in legitimate professional rather than economic objectives (for instance, enforcement of a requirement that for certification of physicians as specialists they continue their training under Continuing Medical Education [“CME”] programs — to use the illustration tendered by the Attorney-General).

Notwithstanding that I would overrule Freeman and reject the holding in that case as requiring a dismissal of this indictment, I would nonetheless affirm the order of the Appellate Division and uphold the dismissal of the indictment as against these defendants on constitutional grounds. Inasmuch as our decision in Freeman was a very clear statement of the inapplicability of this State’s antitrust laws to the professions, as a matter of fundamental justice it cannot be said that the individual defendants in this case acted at their peril in relying on a prior holding of this court. To hold the Donnelly Act applicable to the activities alleged in this indictment would run afoul of the fair warning requirement set down by the United States Supreme Court in Bouie v City of Columbia (378 US 347) (cf. Marks v United States, 430 US 188).

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur in Per Curiam opinion; Judge Jones concurs in a separate opinion in which Judge Fuchsberg concurs; Judge Meyer taking no part.

Order affirmed.

       Indeed, in Freeman we specifically noted our awareness that the Federal District Court in the Goldfarb case had reached the conclusion that the learned professions are not exempt from regulation under the Federal antitrust laws (355 F Supp 491). We expressly declined to follow the Goldfarb holding, however, noting that the question presented in Freeman was strictly a matter of the proper interpretation of a State statute (Matter of Freeman, 34 NY2d 1, 7, supra). All that has occurred in the seven years since Freeman was decided is the Supreme Court’s decision upholding the ruling of the District Court in the Goldfarb case (421 US 773, supra). That ruling, however, is no more persuasive now on the question of the proper application of the Donnelly Act than it was when we first addressed the question in Freeman.

      . (NYS Bar Assn., Section on Antitrust Law, Report of the Special Committee to Study the New York Antitrust Laws [1957].)

      . Upon consideration of the substantive adequacy of the Donnelly Act, the special committee wrote:
      “The Committee finds New York law substantively adequate for the task at hand. However, in contrasting state and federal law one is struck by the verbosity, turgidity and complexity of the New York legislative language. Were we to start from scratch, in order to avoid placing businessmen in the dilemma of having to comply with conflicting standards, we might urge the use of identical wording in both state and federal statutes.
      * ** V
      “But the Donnelly Act has been on the books for close to sixty years and the substitution of Sherman law wording would produce more confusion than it would allay. Moreover, the state decisions seem to rest on the same fundamental concepts as does the federal law, and the differences between state and federal jurisprudence are insubstantial. In the few instances where the state law seems to diverge from federal, the state decisions are often generations old. Should the same issues arise again, they would presumably be decided in the light of modern antitrust concepts which have been developed federally.
      “For these reasons we find no need for legislative alteration of any of the doctrines developed by the New York courts.” (Report, at p 8.)

      . In earlier cases there had been opinions which intimated that members of the medical profession might be within the ambit of the Federal antitrust laws (United States v Oregon Med. Soc., 343 US 326; American Med. Assn. v United States, 317 US 519). It is worth noting that the report of the special committee in 1957 cites both of these cases in comparing the text of the Donnelly Act, which prior to the 1957 revision was couched in terms of described activities with that of the Federal antitrust statute, observing that “[t] he Sherman Act, on the other hand, is not limited in application to specific articles or services. Advertising, investment banking, insurance, medicine, are all within its reach” (Report, at p 23a; emphasis added).

      . Goldfarb and its progeny have firmly established that “The nature of an occupation, standing alone, does not provide sanctuary from the Sherman Act” (421 US, at p 787). Since Goldfarb, the Federal courts have consistently reaffirmed that the professions fall within the ambit of the Sherman Act. (See, e.g., National Soc. of Professional Engrs. v United States, 435 US 679; Virginia Academy of Clinical Psychologists v Blue Shield of Va., 1980-2 CCH Trade Cases, par 63,395 [4th Cir]; Arizona v Maricopa County Med. Soc., 1980-1 CCH Trade Cases, par 63,239 [9th Cir], cert granted 49 USLW 3663; Boddicker v Arizona State Dental Assn., 549 F2d 626; Ballard v Blue Shield, 543 F2d 1075.)

      . Indeed in Freeman we acknowledged that price-fixing arrangements the primary purpose of which would be to produce a certain minimum financial reward to individual members of the legal profession might fall into a different category (34 NY2d, at p 11).

      . Additionally, it might have been that, at later stages of the criminal action, if the indictment were now to be sustained, a defense would have been available under section 15.20 of the Penal Law. Subdivision 2 provides: “A person is not relieved of criminal liability for conduct because he engaged in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in * * * a judicial decision of a state * * * court”.