author: Chief Judge Cooke. Meyer, J.

text:
    The People of the State of New York, Respondent, v Joseph Mirenda, Appellant.
    Argued September 7, 1982
    decided October 21, 1982

      POINTS OF COUNSEL

      Vincent E. Gentile and Kathy M. Silberthau for appellant.
    I. The court’s refusal to appoint counsel to assist appellant in conducting his pro se defense (a) deprived him of his constitutional rights to the assistance of counsel and to represent himself, and (b) constituted an abuse of discretion as a matter of law. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v McLaughlin, 291 NY 480; United States v Plattner, 330 F2d 271; Chapman v United States, 553 F2d 886; Adams v United States ex rel. McCann, 317 US 269; People v Arroyave, 49 NY2d 264; People v Macerola, 47 NY2d 257; People v Felder, 47 NY2d 287; People v Pitman, 25 AD2d 637, 18 NY2d 919.) II. The warrantless search of appellant’s automobile including an attache case in the trunk of his car was unconstitutional where (a) appellant’s consent to the search was involuntary and coerced, and (b) appellant’s consent, even if voluntarily given, was expressly limited to exclude any search of the attache case in the trunk. (United States v Chadwick, 433 US 1; People v Hodge, 44 NY2d 553; People v Gonzalez, 50 Misc 2d 508; Gorman v United States, 380 F2d 158; People v Gonzalez, 39 NY2d 122; United States v Faruolo,
      506 F2d 490; Bumper v North Carolina, 391 US 543; People v Johns, 41 AD2d 342; Arkansas v Sanders, 442 US 753.) III. Appellant was denied due process and his statutory right to appeal because the unavailability of the stenographic transcripts of the summation precluded meaningful appellate review. (People v Rivera, 39 NY2d 519; People v Montgomery, 24 NY2d 130; People v Poole, 41 AD2d 699; People v Hartley, 34 AD2d 733; People v Adams, 22 AD2d 892; People v McKutchen, 76 AD2d 934; People v Manson, 63 AD2d 686; People v Wasserman, 46 AD2d 915; People v Bell, 36 AD2d 406; People v Williams, 29 NY2d 882.) IV. Other errors committed during the course of the trial prejudiced appellant and denied him a fair trial.

      Carl A. Vergari, District Attorney (Anthony J. Servino of counsel), for respondent.
    I. Appellant knowingly, intelligently and voluntarily waived the assistance of counsel at trial, having done so, and to the extent that he never requested that his self-representation be terminated, appellant was not entitled, as a matter of constitutional mandate, to have counsel appointed merely to aid him. The record here is devoid of any facts which suggest that the trial court abused its discretion when it refused to provide counsel merely to aid appellant in his self-representation. (Faretta v California, 422 US 806; Gideon v Wainwright, 372 US 335; United States v Mitchell, 137 F2d 1006, 138 F2d 831, 321 US 794; United States v Wolfish, 525 F2d 457, 423 US 1059; Wainwright v Sykes, 433 US 72; Estelle v Williams, 425 US 501; People v Medina, 44 NY2d 199; People v McIntyre, 36 NY2d 10.) II. The search of the car driven by Mirenda was in all respects proper. The trial court’s (now) affirmed findings of fact belie any claim that appellant’s consent to search said vehicle was anything but knowingly and voluntarily made. Defendant’s consent to search also extended to the attache case which was found in the trunk of the car. In any event, a search of the vehicle and the attache case found therein was proper, as there existed independent reasonable cause to search the vehicle. (People v Kuhn, 33 NY2d 203; People v Lane, 10 NY2d 347; Schneckloth v Bustamante, 412 US 218; United States v Vasquez, 638 F2d 507; United States v Tortorello, 533 F2d 809; United States v Miley, 513 F2d 1191; People v Rodri

      guez, 11 NY2d 279; People v Murphy, 55 NY2d 819; People v Milerson, 51 NY2d 919; People v Clark, 45 NY2d 432.) III. The unavailability of the stenographic transcripts of the summations of the parties does not constitute reversible error in a case where defendant has not adequately objected to any portion of the prosecutor’s summation nor raised any genuine appellate issue with respect to same. (Ross v Moffitt, 417 US 600; Griffin v Illinois, 351 US 12; Draper v Washington, 372 US 487; Coppedge v United States, 369 US 438; Ennis v LeFevre, 560 F2d 1072, 435 US 976; People v Dordal, 55 NY2d 954; People v Robinson, 36 NY2d 224.) IV. No error was committed by the trial court when it made these rulings: denied appellant’s request for the appointment of a handwriting expert; denied appellant’s request for a daily stenographic transcript of the day’s proceedings; and permitted Investigator Johansen to give his expert opinion ás to the value of the stolen property. (People v Cona, 49 NY2d 26; People v Palumbo, 49 NY2d 928; People v Dordal, 55 NY2d 954; People v Diaz, 51 NY2d 841; People v Irrizari, 5 AD2d 881; People v Conforti, 285 App Div 973, 309 NY 923; People v Arce, 42 NY2d 179.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal raises the question whether the trial • court erred in refusing to appoint standby counsel to assist defendant in presenting his own defense. A criminal defendant has a constitutional right to be represented by counsel, or to proceed pro se. A defendant has no constitutional right, however, to the assistance of a lawyer while conducting a pro se defense. The order of the Appellate Division, therefore, should be affirmed.

Defendant was convicted, after a jury trial, of three counts of criminal possession of stolen property in the first degree, two counts of grand larceny in the second degree, six counts of criminal mischief in the second degree, three counts of criminal possession of stolen property in the third dégree, one count of possession of burglary tools, and one count of unlawful possession of vehicle identification number plates. The charges stemmed from a police raid on a Yonkers garage where a stolen-car dismantling operation was being conducted. The police, armed with a search warrant, closed in as a truck filled with auto parts was about to leave the garage. Defendant was driving a car behind the truck. The officers arrested defendant, the truck driver, and two other men inside the garage.

After his arraignment, defendant moved to proceed pro se, with appointed counsel “to act only as an advisor.” Supreme Court permitted defendant to represent himself, but denied his request for the appointment of a lawyer to assist him. The court twice more denied his request for standby counsel, the second time during the course of a lengthy inquiry into defendant’s ability to represent himself. Defendant then acted without counsel at the suppression hearing and at trial, and was convicted. His codefendant, the truck driver, was represented by an attorney and was acquitted of all charges.

On this appeal, defendant argues that the courts’ refusal to appoint standby counsel to assist him with his self-representation violated his constitutional rights. This contention is without merit. The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right “to have the Assistance of Counsel for his defence.” The State Constitution guarantees that “[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel” (NY Const, art I, § 6). It is beyond argument that defendant had the right to be represented by counsel at his trial, and that he had the right to have counsel appointed for him if he could not afford a lawyer (see Argersinger v Hamlin, 407 US 25; Gideon v Wainwright, 372 US 335). Similarly, he had the constitutional right to represent himself (see Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v McLaughlin, 291 NY 480).

What defendant asserts here, however, is a constitutional claim to a hybrid form of representation. He maintains that he had the right to proceed pro se, while simultaneously being advised by appointed “standby” counsel. No such right is guaranteed by either the State or Federal Constitution.

It is true that the appointment of standby counsel to assist a pro se defendant has received judicial approval. As this court recently stated, “where a defendant decides on self-representation, a Judge ‘may — even over objection by the accused — appoint a “standby counsel” to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary’ ” (People v Sawyer, 57 NY2d 12, 22, quoting Faretta v California, supra, at p 835, n 46; see, also, ABA Standards for Criminal Justice [2d ed], Special Functions of the Trial Judge, standard 6-3.7). The assignment of standby counsel, however, is a matter of trial management. As such, it is a subject for the discretion of the Trial Judge, whose decision will not be disturbed by this court unless the Judge abuses that discretion. No such abuse was present here, in any of the denials of defendant’s request. The record demonstrates that defendant was fully aware of the potential pitfalls of self-representation. When denying defendant’s renewed request for standby counsel at the outset of the suppression hearings, the Judge conducted a lengthy colloquy with the 39-year-old defendant. The dangers of self-representation were extensively explained. Defendant repeatedly asserted his desire to appear on his own behalf and manifested his appreciation of the attendant risks as well as his familiarity with legal principles and courtroom procedures. The record demonstrates that defendant’s decision to proceed pro se without standby counsel was made knowingly and intelligently (see People v McIntyre, 36 NY2d 10, 17, supra).

Defendant also challenges the introduction at trial of material seized from an attache case in his car. The suppression court found that, when he was arrested, defendant consented to a search of his car but told the officers that he had legal papers in the car and secured their agreement not to look at these papers. The ensuing search yielded an attache case in the car’s trunk. When opened in defendant’s presence, the case was found to contain certain incriminating items, including identification tags from various stolen vehicles; at that time, defendant raised no objection that “legal papers” were inside and did not otherwise advance any contention that the search was going beyond the scope of his consent. The suppression court found that defendant’s limited consent to the police search encompassed permission to open the attache case. On the record before this court, it cannot be said that this was legal error.

Finally, defendant argues that the Appellate Division should have reversed his conviction because the stenographer’s notes of the prosecutor’s summation were destroyed. This claim is unpersuasive. The notes of the summation were not destroyed until two and one-half years after the trial, as permitted by section 297 of the Judiciary Law, and more than one year after the other portions of the typed transcript were filed. Inasmuch as defendant at no point during this period brought to the court’s or stenographer’s attention the summation’s absence from the transcript, and the destruction of the notes being authorized (see Judiciary Law, § 297), defendant’s claim does not merit reversal.

Defendant’s remaining assertions of error have been examined and are found to be without merit.

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

Meyer, J.

(dissenting). Respectfully I dissent.

The Sixth Amendment to the United States Constitution gives an accused the right “to have the Assistance of Counsel for his defence” (emphasis added) and our State Constitution in section 6 of article I mandates that “the party accused shall be allowed to appear and defend in person and with counsel” (emphasis added).

Nothing in case law or constitutional history suggests that the right to counsel and the right to appear pro se are alternative or that election of one necessarily excludes the other. To the contrary, as the Supreme Court makes clear in Faretta v California (422 US 806), (1) the Federal amendment “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant” (id., at p 820); (2) as the right to counsel learned in the law developed in English criminal procedure, “the accused retained his established right ‘to make what statements he liked’ ” {id., at p 825, quoting 5 Holdsworth, A History of English Law, at p 195, n 17); (3) in the colonies, after the Declaration of Independence, “The right to counsel was clearly thought to supplement the primary right of the accused to defend himself” (id., at pp 829-830 [emphasis supplied]); and (4) “the colonists and the Framers, as well as their English ancestors, always conceived of the right to counsel as an ‘assistance’ for the accused, to be used at his option, in defending himself” {id., at p 832 [emphasis supplied]). Support for the view that there is a constitutional right to hybrid representation may be found in Welcom, Assistance of Counsel: A Right to Hybrid Representation (57 Boston U L Rev 570, 582-583, 586); Erhard, The Pro Se Defendant’s Right to Counsel (41 U of Cinn L Rev 927, 940); Homiak, Faretta v California and the Pro Se Defense: The Constitutional Right of Self-Representation (25 Amer U L Rev 897, 916-919, 936); but cf. Dreyer, Jury Nullification and the Pro Se Defense: The Impact of Dougherty v United States (21 U of Kan L Rev 47, 52-53).

Though the State Constitution does not go so far as did that of Georgia, whose 1798 Constitution provided (art III, § 8) the accused the right to defend “by himself or counsel, or both,” neither does it, as did the 1780 Massachusetts Declaration of Rights, accord the accused the right to be heard only “by himself, or his counsel at his election” (art XII). Without cogent reason or explanatory constitutional history, however, we should not construe “in person and with counsel” to mean “in person or through counsel” (cf. Wake v Barker, 514 SW2d 692, 695 [Ky]). No suggestion is made that by according the accused a right to standby counsel to assist in his defense the State will bear a greater burden in time or in money than it bears in providing counsel to an accused who does not seek to represent himself. Indeed, our recent recognition of the right to appoint standby counsel “‘even over objection by the accused * * * to aid the accused if and when the accused requests help’ ” (People v Sawyer, 57 NY2d 12, 22) and the holding of the Fifth Circuit in Wiggins v Estelle (681 F2d 266, 273) that standby counsel is “to be used or not used as the defendant sees fit” strongly suggest the contrary (see Wake v Barker, supra; see, also, Welcom, op. cit., at p 584; Erhard, op. cit., at p 940; Homiak, op. cit., at pp 917-919; Brick, Self-Representation in Criminal Trials: The Dilemma of the Pro Se Defendant, 59 Cal L Rev 1479, 1507-1513; Garcia, Defense Pro Se, 23 U of Miami L Rev 551, 562-566; Note, 49 Minn L Rev 1133,1151-1153). Nor, as we and the Supreme Court have made abundantly clear, need a Trial Judge permit the provision of standby counsel to a defendant to be used as an instrument of disruption (People v McIntyre, 36 NY2d 10, 18; Faretta v California, 422 US 806, 834, n 46, supra).

Because I conclude that there is a right under both Federal and State Constitutions of a pro se defendant to have the assistance of standby counsel in his defense, which defendant neither waived nor forfeited, I would reverse the order of the Appellate Division and order a new trial.

Judges Jasen, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke; Judge Meyer dissents and votes to reverse in a separate opinion; Judge Gabrielli taking no part.

Order affirmed.

       The provision in section 6 of article I of the State Constitution that a “party accused shall be allowed to appear and defend in person and with counsel” does not compel a contrary conclusion. The language is designed to guarantee that a defendant who chooses to defend through counsel does not thereby lose the right -to appear personally in the courtroom. Under the dissent’s contrary interpretation of this provision, not only would a pro se defendant have the right to standby counsel, but a defendant who chose to be represented by counsel would have the right also to personally take part in the conduct of the trial by, for instance, making motions, cross-examining witnesses, or arguing to the jury.
      Recognition of a Federal constitutional right to standby counsel has been proposed by some, but the proposals themselves acknowledge that “even the most liberal view of sixth amendment representation rights at present does not extend beyond this bifurcated model — allowing either full representation or pro se representation, but not both at the same time” (Note, Assistance of Counsel: A Right to Hybrid Representation, 57 Boston U L Rev 570; see Comment, Faretta v California and the Pro Se Defense: The Constitutional Right of Self-Representation, 25 Amer U L Rev, 897, 915; Note, The Pro Se Defendant’s Right to Counsel, 41 U of Ginn L Rev 927, 929). The fact remains that a Sixth Amendment right to such a form of representation has not been adopted (see United States v Klee, 494 F2d 394, 396, cert den 419 US 835; United States v Conder, 423 F2d 904, 907-908, cert den sub nom. Pegram v United States, 400 US 958).

       The court cited as an example Thomas Paine’s statement that “the civil right of pleading by proxy, that is, by a council, is an appendage to the natural right [of self-representation].” Examples of contrary civil cases are set forth in Brasier v Jeary (256 F2d 474, 476-477).


source: Caselaw Access Project

author:
      Per Curiam.
     Chief Judge Cooke and Jasen and Meyer, JJ.

license: Public Domain

text:
    In the Matter of Patrick Cunningham, as Judge of the County Court of Onondaga County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued October 13, 1982
    decided November 11, 1982

      POINTS OF COUNSEL

      Leonard, Amdursky and Bruce 0. Jacobs for petitioner.
    I. The commission’s rationale supporting removal of petitioner is not supported in the record. II. The commission erred in equating the “avoiding of criticism” with being swayed by “fear of criticism” as found in canon 3A (1) of the Code of Judicial Conduct. III. The ex parte communications between petitioner and Judge Sardino were not of the type prohibited under canon 3A (4) of the Code of Judicial Conduct. IV. Provision to impose a sanction of removal with its concurrent loss of the right to hold further judicial office requires a greater degree of proof and unanimity to be constitutional. (People v Light, 285 App Div 496; Apodaca v Oregon, 406 US 404; Burch v Louisiana, 441 US 130.) V. The sanction of removal from judicial office is unwarranted based on all of the facts and circumstances of the case.

      Albert B. Lawrence, Gerald Stern and Jean M. Savanyu for respondent.
    I. Petitioner’s conduct was prejudicial to the administration of justice, compromised the integrity of the judicial system and rendered him unfit as a Judge. (Matter of Shilling, 51 NY2d 397.) II. Due process does not require a unanimous determination or a higher standard of proof.

      William F. FitzPatrick, John J. Dee, John M. Freyer, John E. Shaffer and Ronald C. Berger for Onondaga County Bar Association, amicus curiae.

    I. The commission’s conclusions in support of the sanction of removal are unsubstantiated in the record. (Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462; Matter of Lonschein, 50 NY2d 569.) II. The sanction of removal is excessive under the circumstances. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386; Matter of Schilling, 51 NY2d 397; Matter of Sobel, 8 NY2d [a]; Matter of Steinberg, 51 NY2d 74; Matter of Rogers v State Comm. on Judicial Conduct, 51 NY2d 224; Matter of Cooley, 53 NY2d 64; Matter of Pfingst, 33 NY2d [a]; Matter of Kane, 50 NY2d 360; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465.) III. Subdivision 6 of section 41 of the Judiciary Law, allowing a Judge to be removed upon a majority vote of the commission, is unconstitutional. (Lubin v Panish, 415 US 709; Edwards v Reynaud, 463 F Supp 1235; Bullock v Carter, 405 US 134; Crowe v Lucas, 595 F2d 985; Lanza v Wagner, 11 NY2d 317; Burch v Louisiana, 441 US 130; Linmark Assoc. v Willingboro, 431 US 85.)
   OPINION OF THE COURT

Per Curiam.

In this proceeding we are called upon to review a determination of the State Commission on Judicial Conduct removing from office the petitioner, a Judge of the Onondaga County Court, for certain acts of judicial misconduct. After having reviewed all of the evidence before the commission, we conclude that the penalty of removal is excessive and that censure is the more appropriate sanction. On July 9, 1981, the commission served a complaint upon petitioner containing two charges of misconduct. The charges arose from two letters sent by petitioner to Judge J. Richard Sardino of the Syracuse City Court concerning appeals to County Court from Judge Sardino’s decisions. On November 20,1981, the petitioner, his attorney and the administrator of the commission signed an agreed statement of facts, as provided by subdivision 5 of section 44 of the Judiciary Law, waiving the right to a hearing and stipulating that the determination be made by the commission o.n the facts as agreed upon.

The first letter concerned three cases in Judge Sardino’s court: People v Thousand, People v Chichester and People v Turner. On March 20, 1976, Judge Cunningham read an article in the Syracuse Post Standard in which he was quoted as making statements critical of Judge Sardino’s handling of these cases; and later that day, he learned that Judge Sardino was angry at him for signing orders to show cause in these cases. Each of the appeals involved claims that the sentences'were excessive. To calm Judge Sardino and to avoid criticism from him, he wrote a letter to Judge Sardino on March 20, 1976, in which he stated “[t]here is no way I would ever change a sentence that you had imposed. You can do whatever you want to whenever you want to & I’ll agree with you * * * I take the position that you know the case and as sentencing judge you can do whatever you damn well please”.

Ultimately, Judge Cunningham heard the appeals in People v Thousand and People v Turner and affirmed both cases. The appeal in the third case, People v Chichester, was never perfected.

The second letter, which formed the basis for the second charge against Judge Cunningham, concerned the appeal from Judge Sardino’s court in People v Bucktooth. On July 11, 1979, Cunningham learned that Judge Sardino was upset that he had signed an order to show cause in that case. Accordingly, in order to calm Judge Sardino, Cunningham wrote a second letter, in which he stated that “[i]f I catch the appeal, I will affirm, as always, on a judge’s discretion.” Later, Cunningham heard the appeal and reversed the determination of Judge Sardino in an opinion which was critical of Judge Sardino’s sentencing determination.

In the agreed stipulation of facts, Judge Cunningham conceded that his conduct constituted a violation of the Rules Governing Judicial Conduct and the Code of Judicial Conduct, insofar as the letters he had sent created the impression that he had prejudged the cases and also created the impression that he had allowed himself to be improperly influenced by Judge Sardino. On the basis of these stipulated facts, the commission determined, by a vote of 7 to 4,- that petitioner should be removed from the Bench.

In reaching this conclusion, the commission determined that petitioner had violated sections 33.1, 33.2, 33.3 (a) (1) and 33.3 (a) (4) of the Rules Governing Judicial Conduct (22 NYCRR 100.1, 100.2, 100.3 [a] [1], 100.3 [a] [4]) and canons 1, 2, 3A (1) and 3A (4) of the Code of Judicial Conduct. The commission felt that petitioner’s conduct had impaired his effectiveness as a Judge.

Petitioner now seeks review pursuant to subdivision 7 of section 44 of the Judiciary Law of the determination of the commission ordering his removal. Subdivision 9 of section 44 of that law, which defines the scope of our review in these matters, provides the Court of Appeals with authority not only to “review the commission’s findings of fact and conclusions of law,” but also to accept or reject the sanction determined by the commission, impose a different sanction, or impose no sanction at all. Under this statutory framework, the court is not restricted to reviewing the proceedings below for errors of law alone but, on the contrary, we are required to review the findings of fact made by the commission. Thus, in essence, there is a determination de novo (see Spector v State Comm. on Judicial Conduct, 47 NY2d 462).

Upon examination of the record in this proceeding, we conclude that Judge Cunningham’s actions were, indeed, improper. To be sure, a Judge must view matters before him on their merits alone, without regard to public or professional disapproval. Moreover, a Judge must also avoid creating the appearance that he would decide a matter before him in any other manner. Thus, regardless of whether Judge Cunningham was influenced by his concern about Judge Sardino’s criticism, his letters, as he concedes, constituted judicial misconduct because they gave the appearance of impropriety.

Although it is evident that Judge Cunningham acted improperly in sending the two letters to Judge Sardino, we do not believe that the record supports the conclusion that Judge Cunningham actually abrogated his appellate duty to review matters before him on the basis of their merits alone. His reversal of Judge Sardino’s decision in People v Bucktooth indicates that he continued to review cases dispassionately, and that his misconduct was rooted not in the actual prejudgment of cases but in the creation of the appearance that he might be prejudging certain matters.

Under the circumstances, we cannot agree with the conclusion of the commission that Judge Cunningham’s misconduct warrants the imposition of the sanction of removal. Removal is an extreme sanction and should be imposed only in the event of truly egregious circumstances (Matter of Steinberg, 51 NY2d 74, 83). Indeed, we have indicated that removal should not be ordered for conduct that amounts simply to poor judgment, or even extremely poor judgment (Matter of Shilling, 51 NY2d 397, 403, citing Matter of Steinberg, supra, at p 81). Under the circumstances of this case, we believe that censure is the appropriate sanction.

We find support for our conclusions in the interplay of several factors. First, although petitioner may have given the appearance to Judge Sardino that he would affirm all sentencing determinations, his reversal in Bucktooth indicates that he did not abrogate his appellate responsibility to review matters on their merits alone. Second, these letters were meant only for Judge Sardino’s eyes and were not to be nor were they disseminated publicly. This, of course, does not excuse the improper conduct, but to the extent that Judge Cunningham’s misconduct consisted of creating the appearance of impropriety, it is of some moment that the possible perception of this improper conduct was limited to the eyes of one person only. That it later came to public attention resulted from certain bizarre circumstances which could not have been anticipated, the responsibility for which cannot be attributed to Judge Cunningham.

In conclusion, we stress our belief that Judge Cunningham’s behavior amounted to misconduct. Nevertheless, after a careful review of the facts and circumstances in this case, we believe that petitioner should be censured for his conduct rather than removed from office.

Accordingly, the determined sanction should be rejected, without costs, and the sanction of censure imposed.

Chief Judge Cooke and Jasen and Meyer, JJ.

(dissenting). The perversion of the judicial process that is involved in an appellate Judge’s advice to a Trial Judge whose decisions the appellate Judge reviews that he can do as he wishes without fear of reversal warrants removal. The amorphous concepts which are the everyday consideration of an appellate Judge — of excessiveness, reasonableness, fairness, due process, arbitrariness, prudence, and the like — make it especially important that appellate decisions be made after conscientious evaluation of the case presented below, not with a rubber stamp.

Nor should the fact that the understanding stated was not intended to be made public be regarded as an ameliorating factor. To. the contrary, the clandestine nature of the communication, exposed only by happenstance, is an aggravating factor, not only because it encouraged the Trial Judge to continue his inappropriate and intimidating comments but also because there is no place in the decisional process for such secret understandings. Moreover, the continuing fairness of the judicial process being the reason for the procedures established by section 22 of article VI of the State Constitution, we should not, in a case so clearly involving detriment to that concept, overturn the commission’s determined sanction without potent reason.

We therefore, dissent and vote to accept the commission’s determination.

Judges Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion; Chief Judge Cooke and Judges Jasen and Meyer dissent and vote to accept the determined sanction in a dissenting memorandum.

Determined sanction rejected, etc.


author: Fuchsberg, J.

text:
    In the Matter of the Estate of Nicholas A. Piccione, Deceased. Jean M. Piccione et al., as Coexecutors of Nicholas A. Piccione, Deceased, Appellants; All Craft Finishing, Inc., et al., Respondents. In the Matter of Nicholas A. Piccione, Deceased. Jean M. Piccione et al., as Coexecutors of Nicholas A. Piccione, Deceased, et al., Appellants; All Craft Finishing, Inc., et al., Respondents; All Craft Metals, Inc., Intervenor-Appellant. Fire Burglary Instruments, Inc., et al., Respondents, v Jean M. Piccione et al., as Coexecutors of Nicholas A. Piccione, Deceased, Appellants.
    Argued September 7, 1982
    decided November 11, 1982

      POINTS OF COUNSEL

      Edward P. Schroeder for appellant in the first above-entitled matter.
    I. The demised real property was an asset of decedent’s estate subject to the executors’ control. (Matter of Kohler, 231 NY 353; Schoelles v Zausmer, 2 AD2d 979; Matter of Goelet, 28 AD2d 149; Matter of Jemzura, 65 AD2d 656, 52 NY2d 1067; Matter of Lainez, 79 AD2d 78, 54 NY2d 830; Baker v Sterling, 39 NY2d 397; Matter of Colon, 83 Misc 2d 344; Matter of Raymond v Estate of Davis, 248 NY 67; Matter of Young, 80 Misc 2d 937; Matter of Zalaznick, 84 Misc 2d 715.) II. The Surrogate properly enter tained jurisdiction of the eviction proceeding as it involved the affairs of the decedent’s estate. (Matter of Rothko, 69 Misc 2d 752, 40 AD2d 1083; Matter of Brandt, 81 AD2d 268; Matter of MacElroy, 58 Misc 2d 93; Matter of Dunham, 63 Misc 2d 1029, 36 AD2d 467, 29 NY2d 485; Matter of Maki v Estate of Ziehm, 55 AD2d 454; Matter of Gebauer, 79 Misc 2d 715, 51 AD2d 643.) III. The Appellate Division should have transferred this proceeding to the Supreme Court to be consolidated with the executors’ action to recover damages and the sublessees’ action for malicious prosecution and abuse of process. (Matter of Suchoff, 55 Misc 2d 284.)
    A. Thomas Levin for respondents in the first above-entitled matter.
    I. The Surrogate’s Court lacked jurisdiction to entertain this proceeding. (Matter of Mahshie v Dooley, 48 Misc 2d 1098; Matter of Lainez, 79 AD2d 78, 54 NY2d 830; Matter of Henry, 48 Misc 2d 320; Matter of Desotelle, 143 Misc 732; Matter of Ihmsen, 253 App Div 472; Matter of Rosenblum, 146 Misc 537; Matter of Ullman, 56 Misc 2d 495; Matter of Goelet, 28 AD2d 149; Matter of Young, 80 Misc 2d 937; Matter of Sklarsky, 80 Misc 2d 677.) II. The statutory month-to-month tenancy had not terminated. (Kashner v Kapilow, 283 App Div 929; 28 Mott St.

      Co. v Summit Import Corp., 64 Misc 2d 860.) III. The proceeding should not have been determined summarily in favor of the landlord.

      Edward, P. Schroeder and E. Scott Schroeder for Jean M. Piccione and another, appellants in the second above-entitled matter.
    The Surrogate’s Court has jurisdiction of all claims asserted in this proceeding under the New York Constitution and the Surrogate’s Court Procedure Act. (Matter of Vanderbilt, 109 Misc 2d 914; Matter of Hall, 54 Misc 2d 923; Matter of Chusid, 60 Misc 2d 462; Matter of Ryan, 63 Misc 2d 415; Matter of Carter, 69 Misc 2d 630; Matter of Maki v Estate of Ziehm, 55 AD2d 454; Matter of Lainez, 79 AD2d 78, 54 NY2d 830; Matter of Raymond v Estate of Davis, 248 NY 67.)

      Christopher S. Rooney for Data Control Systems, Inc., appellant, and for intervenor-appellant in the second above-entitled matter.
    I. The Surrogate’s Court has jurisdiction of all claims asserted in this proceeding under the State Constitution and the SCPA. (Matter of Vanderbilt, 109 Misc 2d 914; Matter of Young, 80 Misc 2d 937; Matter of MacElroy, 58 Misc 2d 93; Matter of Brandt, 81 AD2d 268; Matter of Finkle, 90 Misc 2d 550, 59 AD2d 862; Matter of Fornason, 88 Misc 2d 736; Matter of Zalaznick, 84 Misc 2d 715; Matter of Ryan, 63 Misc 2d 415; Matter of Rothko, 69 Misc 2d 752, 40 AD2d 1083; Matter of London, 90 Misc 2d 351.) II. The decision of the court below constitutes clear error. (Matter of Young, 80 Misc 2d 937; Matter of Reiner, 86 Misc 2d 511; Matter of Hall, 54 Misc 2d 923; Matter of D. D., 64 AD2d 898; Matter of Raymond v Estate of Davis, 248 NY 67; Matter of Coombs, 185 App Div 312; Dunham v Dunham, 40 AD2d 912; Matter of Gebauer, 79 Misc 2d 715, 51 AD2d 643.)

      A. Thomas Levin for respondents in the second above-entitled matter.
    The Surrogate’s Court had no jurisdiction to entertain this proceeding. (Matter of Lainez, 79 AD2d 78, 54 NY2d 830; Matter of Henry, 48 Misc 2d 320; Matter of Desotelle, 143 Misc 732; Matter of Ihmsen, 253 App Div 472; Matter of Rosenblum, 146 Misc 537; Matter of Ullman, 56 Misc 2d 495; Matter of Goelet, 28 AD2d 149; Matter of Young, 80 Misc 2d 937; Matter of Sklarsky, 80 Misc 2d 677; Matter of Buck, 203 Misc 1046.)

      Edward P. Schroeder and E. Scott Schroeder for appellants in the third above-entitled matter.
    The Surrogate’s Court has jurisdiction to entertain this proceeding. (Matter of Maki v Estate of Ziehm, 55 AD2d 454; Matter of Vanderbilt, 109 Misc 2d 914; Matter of Hall, 54 Misc 2d 923; Matter of Chusid, 60 Misc 2d 406; Matter of Ryan, 63 Misc 2d 415; Matter of Carter, 69 Misc 2d 630; Matter of Raymond v Estate of Davis, 248 NY 67.)

      A. Thomas Levin for respondents in the third above-entitled matter.
    The Surrogate’s Court lacks jurisdiction to entertain this action. (Kirchner v Muller, 280 NY 23; Matter of Van Slooten v Dodge, 145 NY 327; Keating v Stevenson, 21 App Div 604; Matter of Lainez, 79 AD2d 78, 55 NY2d 657; Matter of Ihmsen, 253 App Div 472; Matter of Rosenblum, 146 Misc 537; Matter of Young, 80 Misc 2d 937; Matter of Sklarsky, 80 Misc 2d 677.)
   OPINION OF THE COURT

Fuchsberg, J.

These three appeals, in separate but interrelated cases, require us to probe the scope of the jurisdiction conferred on our Surrogate’s Court. In particular, we are called upon to treat with article VI (§ 12, subd d) of our State Constitution and SCPA 201 (subds 1, 3) and SCPA 202. At issue too is the impact, if any, of RPAPL 701 on the power of the Surrogate’s Court to entertain a dispute over the possession of real estate.

The three cases arise out of the administration of a parcel of improved realty held by Jean M. Piccione and Bernard Grossman as executors of the estate of Nicholas Piccione. When the executors received the property it was burdened by a lease which the decedent in his lifetime had entered into with All Craft Metals, Inc. (ACM), which later had assigned the lease to Fire Burglary Instruments, Inc. (FBI), and its subsidiary, All Craft Finishing, Inc. (ACF).

Shortly before the lease by its terms was to expire, the executors, to facilitate the winding up of the estate, entered into what they regarded as an advantageous contract for the sale of the property to a third party. The sale, conditioned on the awaited vacating of the premises, was set for a date subsequent to the one on which the lease was to terminate. However, though the executors wrote the tenants to remind them that they would be expected to leave at the expiration date, when the time to do so arrived, the tenants found it more convenient not to do so. After many weeks of unsuccessful efforts to get their tenants to depart, the executors brought a summary proceeding in the District Court of Nassau County to recover possession. The petition was dismissed when the court held that the letter in which they attempted to notify the tenants of their intention to terminate the lease was technically deficient (Real Property Law, § 232-b).

At this juncture, the executors, apprehensive over a matured mortgage on the premises and the imminent exercise of the purchaser’s right to cancel, brought on a proceeding in Surrogate’s Court, Nassau County, to direct FBI and ACI to “vacate and surrender the premises”. The main thrust of the tenants’ opposition, premised on the fact that the Surrogate’s Court is not one of the courts mentioned in RPAPL 701 (subd l) was that the court was without subject matter jurisdiction. But the Surrogate, of the view that the proceeding “relate[d] to the affairs of a decedent”, concluded that the breadth of the constitutional delineation of his court’s jurisdiction rendered its nonlisting in section 701 a matter of “no consequence”. Reaching the merits, he ordered the tenants to vacate the premises (106 Misc 2d 898, 902). For its part, the Appellate Division joined in the Surrogate’s rejection of the tenants’ section 701 argument, but, citing to Matter of Lainez (79 AD2d 78, 80, affd 55 NY2d 657), ruled the proceeding an “independent controversy * * * outside of the subject matter jurisdiction of the Surrogate’s Court”. Accordingly, it reversed on the law and dismissed the proceeding (85 AD2d 604, 605). The executors now appeal.

Soon after they repossessed the property, the executors commenced a second Surrogate’s Court proceeding against FBI, ACF “and/or Data Control Systems, Inc” (Data), the last a guarantor of ACM’s obligations under the lease. Entitled “petition to recover .assets of the estate”, and treated by the Surrogate as a discovery proceeding brought under SCPA 2103, its prayer demanded damages because the executors (1) had been “forced to renegotiate the mortgage at a higher interest rate in order to prevent foreclosure”, (2) during the holdover period advanced real estate and school taxes payable by ACF under the lease, (3) incurred expenses to repair damage to the premises and replace fixtures and equipment, each the responsibility of the tenants, and (4) incurred consequent legal fees and court costs.

In their answer, FBI and ACF, aside from denying the executor’s material allegations, again challenged subject matter jurisdiction. Data, arguing that its guarantee was not in effect after the expiration of the original lease, moved to dismiss. ACM, who had not been joined as a party, moved to intervene in order to move for summary judgment on a proposed counterclaim and cross claim for return of the security deposited when it executed the original lease, entitlement to which ACF was laying claim. Except to grant ACM’s motion, the applications were denied.

In the same decision, the Surrogate’s Court rejected FBI and ACF’s jurisdictional attack. Relying in the main on a 1966 report of the Temporary State Commission on Modernization, Revision and Simplification of Law of Estates, the Surrogate ruled that constitutional and legislative expansion of Surrogate’s Court jurisdiction since 1962 sanctioned a Surrogate’s Court proceeding for “damages arising out of a contract to lease real property, which later becomes an asset of the decedent’s estate” (108 Misc 2d 255, 258). With this the Appellate Division took issue. Opining that section 2103’s reference to “money or other personal property or the proceeds or value thereof” now embraces such property as “a fund of indeterminate amount (see, e.g., Matter of Young, 80 Misc 2d 937), a determinate amount of money transferred by a decedent as the result of fraud or undue influence (see Matter of Reiner, 86 Misc 2d 511) and rents and profits already collected where * * * ownership of the demised premises [is contested] (see Matter of Hall, 54 Misc 2d 923)” is within the reach of such a discovery proceeding, it thought the line should be drawn at “contingent, unliquidated damages resulting from tortious acts or breaches of contract”. Finding that the executors’ claim fell within the latter class, and citing again to Matter of Lainez (supra), it reversed on the law and dismissed in this case too (85 AD2d, supra, at pp 605, 606). From the order entered on this decision, the executors take their second appeal.

The third case in this trilogy finds the litigants exchanging roles. This time the tenants, FBI and ACF, were the suitors and the executors defendants. Alleging that the prosecution of the eviction proceeding was malicious and an abuse of process, the plaintiffs lodged their action in Supreme Court. On motion of the executors, that court removed the action to the Surrogate’s Court. In so ordering, the Supreme Court stated that, while “[a] suit for malicious prosecution or other tortious act of an executor is against the executor in his individual rather than representative capacity” and that “a substantial relationship between this matter and the affairs of a decedent” in the end might not be found, it was not prepared to say that the conduct on which the complaint was based was not in furtherance of the administration of the decedent’s estate. But the Appellate Division, still citing to Matter of Lainez (supra), reversed, this time because “[t]his action is an independent matter involving living persons” (Fire Burglary Instruments v Piccione, 85 AD2d 594). The executors now appeal to this court by leave of the Appellate Division, which certified the following question “Was the order of this court dated December 7, 1981, properly made?”

This as background, we first observe that at this stage we cannot reach the merits of the second appeal, i.e., the one from the order dismissing the discovery proceeding. ACM’s counterclaim and cross claim, which are still pending, relate to the transaction encompassed by the order dismissing the petition. In consequence, the appeal is from an order which does not determine the proceeding within the meaning of the State Constitution (see NY Const, art VI, § 3). It follows that this appeal must be dismissed. (See Lizza Inds. v. Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695; Behren v Papworth, 30 NY2d 532; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], pp 81, 84-93; cf. Ratka v St. Francis Hosp., 44 NY2d 604, 609.)

Concentrating then on the other two appeals, it is self-evident that their determination requires definition of the subject matter jurisdiction of the Surrogate’s Court. Since September 1, 1962, this is grounded on article VI (§ 12, subd d) of our State Constitution, which provides: “The surrogate’s court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents * * * administration of estates and actions and proceedings arising thereunder * * * and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law.”

Broad as this mandate is on its very face, to appreciate its full extent its antecedents and sequellae must be examined. When they are, it becomes apparent that the history of the Surrogate’s Court during the twentieth century is one of steadily expanding jurisdiction (see, generally, 1 Warren’s Heaton, Surrogates’ Courts [6th ed], § 2, par 2, p 1-13). In essence, for a long time, its sole source of power was legislative. For the words by which the court’s existence was enshrined in the Constitution of 1894 and so continued without change until 1962 — “surrogates’ courts shall have the jurisdiction, legal and equitable, and powers now established by law until otherwise provided by the legislature” — left it completely at the mercy of statutory enactment.

In actual practice, however, the legislative course was to repeatedly enlarge the Surrogate’s power (see, e.g., L 1934, ch 352, granting the Surrogate’s Court discretion to transfer actions to the Supreme Court for trial; L 1934, ch 539, adding Surrogate’s Court Act, § 206-a, which greatly enlarged their former power to entertain discovery proceedings and direct payment of proceedings thereof; L 1937, ch 687, granting power over accounting of common trust funds). Of special significance for the point we make was section 40 of the former Surrogate’s Court Act, which conferred wide powers over claims that were merely incidental to those which the statutes had expressly committed to the court.

It was with section 40 before him that Chief Judge Cardozo, writing for a unanimous Bench, was prompted to indorse literal construction of the powers of the Surrogate’s Court because “ ‘[concentration of jurisdiction as to decedents’ estates’ * * * is the purpose clearly revealed in the statutory scheme” (Matter of Raymond v Estate of Davis, 248 NY 67, 72, quoting from Matter of Haigh, 125 Misc 365, 368). This makes it more than noteworthy that section 40 endowed Surrogates with-authority “to try and determine all questions, legal or equitable, arising between any or all of the parties to any proceeding, or * * * to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires”. Moreover, the 1962 constitutional amendment was preceded by a report of the Tweed Commission urging the Legislature to minimize unnecessary shuttling from one court to another (McKinney’s Session Laws of NY, 1956, Temporary Commission on the Courts, 1956 Report, p 1405).

All this culminated in the 1962 amendment, the obvious effect of which, among other things, was to secure the advances in Surrogate’s Court jurisdiction over matters “relating to” the affairs of decedents against the possibility of legislative withdrawal. Absent the need for specific statutory authorization for a particular proceeding, the emphasis now shifted so that, “ ‘for the Surrogate’s Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate’ ” (Matter of Young, 80 Misc 2d 937, 939 [Midonick, S.]).

Nevertheless it is suggested that the final clause of article VI (§ 12, subd d) — “as may be provided by law” — be read to modify subdivision d in its entirety. If such a construction were correct, there would have been no reason for the framers of the amendment to specify two types of actions and proceedings, i.e., “those relating to the affairs of decedents” and those “arising thereunder or pertaining” to the “administration of estates”, as being within the jurisdiction of the Surrogate’s Court, in addition to “such other actions and proceedings ** * * as may be provided by law”. Indeed, there would have been no necessity to amend the Constitution at all. In short, the Constitution itself conferred absolute and unconditional jurisdiction over specified subject matter and also authorized the Legislature to confer additional authority by statute. This, as we know, the Surrogate’s Court Procedure Act later did by enacting SCPA 201 (subds 1, 3) and SCPA 202. Professor Siegel, in his Practice Commentary on SCPA 201 (subd 1) tells us, “In its listing of the specific categories of subject matter jurisdiction, section 12(d) appears to be self-executing; that is, it confers the listed items of jurisdiction itself and contemplates that no statute would be needed to aid it” (Practice Commentary, McKinney’s Cons Laws of NY, Book 58A, SCPA 201, at p 43).

Nor properly read, is our decision in Matter of Lainez (55 NY2d 657, supra), to the contrary. The issue presented by Lainez was a limited one, i.e., whether the Surrogate’s Court had jurisdiction over a dispute between a distributee of the decedent and a creditor of the distributee when resolution of the controversy would have no effect upon the estate itself. In reversing the order of the Surrogate’s Court, the Appellate Division expressly limited its opinion to the facts of the case before it, and then merely held that no jurisdiction existed because “the power of the Surrogate’s Court relates to matters affecting estates of decedents and not to independent matters involving controversies between living persons” (79 AD2d, at p 80). Because of the express limitations in the opinion, it is clear that Lainez stands only for the proposition, already well established by prior case law, that “the Surrogate’s Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate * * * absent a showing that the distributee assigned his share to the creditor” (79 AD2d, at pp 80-81; accord Matter of Jemzura, 65 AD2d 656, affd 52 NY2d 1067).

Applying these principles to the eviction matter, it would seem to follow that such a proceeding, brought by the executors in the process of attempting to wind up the administration of the estate, is cognizable in the Surrogate’s Court. It is undisputed that the tenants were to be evicted so that the premises could be sold. It is further not denied that the proceeds of the sale were to go to the estate and no doubt it will be the Surrogate’s Court which will ultimately decide how these will be distributed. Thus, it can hardly be said that this controversy “in no way affects the affairs of the decedent or the administration of the estate”.

Despite all of this, it nevertheless is contended that RPAPL 701 operates to divest the Surrogate’s Court of jurisdiction. True it is that the Surrogate’s Court is not a forum denominated in the statute. But it is clear from the legislative history that the courts which were identified were not intended to enjoy exclusive jurisdiction (Fourth Preliminary Report of Advisory Committee on Practice and Procedure, NY Legis Doc, 1960, No. 20, p 541). As with the Supreme Court, which, though also unlisted, may nonetheless look to the Constitution as an independent source of authority, so may the Surrogate’s Court, procedurally unlimited as it is in its constitutional authority in matters “relating to the affairs of decedents”. And, since the main reasons for listing courts in RPAPL 701 was to encourage the bringing of such actions in lower courts (see, e.g., Matter of 3505 Realty Corp. v Weinberger, 41 Misc 2d 254), it would be counterproductive to interpret it as to intend the fragmentation of the treatment of the affairs of a decedent’s estate (cf. Lun Far Co. v Aylesbury Assoc., 40 AD2d 794). Fundamentally, of course, statutes are not to be interpreted to curtail constitutionally based jurisdiction (People ex rel. Mayor of City of N. Y. v Nichols, 79 NY 582, 590).

Now reaching the action for malicious prosecution and abuse of process, each a tort involving the commission of an act which is motivated by an improper purpose (see Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 400; Prosser, Torts [4th ed], §§ 119,121), it is a long-established general principle that an executor who has committed such an act, even in the course of the administration of the estate, is liable therefor in an individual rather than representative capacity (see Kirchner v Muller, 280 NY 23; see, generally, Estate’s Liability for Tort of Executor, Ann., 82 ALR3d 892, 950-952). Therefore, unlike the eviction proceeding, at least in the present context, it cannot be said to relate to either the affairs of the decedent or the administration of his estate.

For all these reasons, in Matter of Piccione (All Craft Finishing, Inc., and Fire Burglary Instruments, Inc., respondents), the order of the Appellate Division should be reversed and the order of the Surrogate’s Court, Nassau County, reinstated; in Matter of Piccione (All Craft Finishing, Inc., and Fire Burglary Instruments, Inc., respondents; All Craft Metals Co., Inc., and Data Control Systems, Inc., appellants), the appeal should be dismissed and, in Fire Burglary Instruments v Piccione, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

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

In Matter of Piccione in the first above-entitled matter: Order reversed, with costs, and the order of Surrogate’s Court, Nassau County, reinstated.

In Matter of Piccione in the second above-entitled matter: Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

In Fire Burglary Instruments v Piccione: Order affirmed, with costs. Question certified answered in the affirmative.

      . RPAPL 701 (subd 1) provides: “A special proceeding to recover real property may be maintained in a county court, the court of a police justice of the village, a justice court, a court of civil jurisdiction in a city, or a district court”.

      . (Legis Doc, 1966, No. 19, Report 4.41A Appendix [M-1J.)

      . (NY Const of 1894, art VI, § 15 [renum as art VI, § 13, in 1925, and continued without change in NY Const of 1938 until repealed by art VI of the Constitution, eff as of Sept. 1, 1962].)

      . SCPA 201 (subd 1) provides: “The court has, is granted and shall continue to be vested with all the jurisdiction conferred upon it by the Constitution of the State of New York, and all other authority and jurisdiction now or hereafter conferred upon the court by any general or special statute or provision of law, including this act”.
      Subdivision 3 provides in pertinent part: “The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents * * * to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding * * * as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter”.
      SCPA 202 provides: “The proceedings enumerated in this act shall not be deemed exclusive and the court is empowered in any proceeding, whether or not specifically provided for, to exercise any of the jurisdiction granted to it by this act or other provisions of law, notwithstanding that the jurisdiction sought to be exercised in the proceeding is or may be exercised in or incidental to a different proceeding”.


author: Jones, J.

text:
    In the Matter of Kevin Roach, Appellant, v Hastings Plastics Corp. et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued October 13, 1982
    decided November 16, 1982

      POINTS OF COUNSEL

      Morris A. Feuerstein and Bruce F. Parnell for appellant.
    I. The discontinuance of a medical malpractice action without the prior consent of the compensation carrier is not always equivalent to the settlement of a third-party action without the consent of the carrier, and does not bar claimant from receiving deficiency compensation under the Workers’ Compensation Law. (Matter of Meacham v New York Cent. R. R. Co., 8 NY2d 293; Matter of Kusiak v Commercial Union Assur. Cos., 49 AD2d 122.) II. Settlement of a third-party malpractice action without the prior consent of the compensation carrier can bar compensation only for the further disability caused by the malpractice, and not for the initial compensable injury itself. (Matter of Parchefsky v Kroll Bros., 267 NY 410; Cardillo v Long Is. Coll. Hosp., 86 Misc 2d 438; Milks v McIver, 264 NY 267.)

      Alan R. Corn for Hastings Plastics Corp. and another, respondents.
    The discontinuance of a medical malpractice action without the consent of the compensation carrier is equivalent to the settlement of a third-party action without the consent of the carrier and thus bars claimant from receiving deficiency compensation. (Matter of Schreckinger v York Distrs., 9 AD2d 333; Matter of Wasserman v Char

      coal Chef, 66 AD2d 981; Matter of McDowell v La Voy, 63 AD2d 358; Matter of Gruhn v Brown, 275 App Div 975; Matter of Duffy v Fuller Co., 21 AD2d 725; Matter of Clark v Oakes & Burger Co., 16 AD2d 490.)
   OPINION OF THE COURT

Jones, J.

The compromise, without the consent of the workers’ compensation insurer, of an injured employee’s third-party action in malpractice to recover damages for aggravation injuries affects only that portion of the compensation award attributable to the malpractice.

On February 26, 1971, appellant sustained injury to his right arm in the course of his employment at Hastings Plastics. The following day his arm was operated on, and on May 26, 1972 the arm was amputated.

Appellant’s claim for workers’ compensation benefits was pending before the board during this period. Counsel for appellant also commenced an action against various hospitals and physicians alleging aggravation injuries in consequence of malpractice in appellant’s postaccident surgical and medical care. Persuaded that there was no merit to the malpractice action, on October 7, 1976 appellant discontinued that action. The consent of Royal Globe Insurance Co., workers’ compensation carrier for Hastings Plastics, to such discontinuance was neither requested nor granted.

In January, 1979, the workers’ compensation law judge-referee decided that the malpractice action was not a third-party action within the contemplation of section 29 of the Workers’ Compensation Law and accordingly that its discontinuance without consent of the carrier did not foreclose further recovery for the basic initial injury. On appeal the board reversed, and held that the malpractice action was a third-party action within section 29 and that its discontinuance without the consent of the carrier barred further recovery under the Workers’ Compensation Law. The Appellate Division affirmed the board’s decision. We reverse and remit the case to the Workers’ Compensation Board for further consideration.

Appellant has made two concessions for the purposes of this appeal: first, that the malpractice action is properly characterized as a third-party action within the contemplation of section 29 and, second, that the discontinuance of that action is properly classified as a compromise within the purview of the section. Additionally, it is undisputed that the malpractice action was discontinued without the consent of the compensation carrier.

Where, as here, the aggravation injuries are the direct consequence of the initial compensable injury and the chain of causation between the accidental injury and the ultimate disability remains unbroken, an injured employee is entitled to the statutory compensation for the ultimate disability so resulting from the initial injury (Matter of Parchefsky v Kroll Bros., 267 NY 410). Under the statute then in effect, we there articulated the principles involved in such cases as follows: “The injured employee is entitled to receive compensation for the result of the original injury apart from the result of the negligent treatment of the original injury. Here there is no room for election between statutory remedy against the employer and common-law remedy for malpractice. Recovery in the malpractice actions cannot include compensation for results of the original injury apart from the result of the malpractice. After malpractice has aggravated the original injury, the subsequent disablement is due to concurrent causes inextricably intertwined. More than that, these results would not have followed from the original injury but for the independent negligence of the physician. To the extent that the injury for which compensation may be made under the Workmen’s Compensation Law includes the result of malpractice, the Injury’ is due to the negligence of the physician within the spirit and letter of the statute. To that extent, then, the injured employee has a common law remedy against the physician and a statutory remedy against the employer. In accordance with the common law rule applicable to tort actions and the statutory rule embodied in section 29 of the Workmen’s Compensation Law, the injured employee has then an election which remedy he will pursue. If he pursues his common law remedy against the negligent physician and collects more than the compensation provided by the statute, the employer or carrier is liable only for the injury, apart from the result of the malpractice. If he elects to take compensation under the statute, including damages for the injury caused by the physician’s negligence, the employer becomes subrogated to the employee’s right of action against the physician.” (Matter of Parchefsky v Kroll Bros., supra, pp 417-418.) Thus, we held in that case that the claimant, having been fully compensated for his aggravation injuries by the $3,500 which he had received in settlement of the malpractice action, “was entitled only to an award for the injury apart from the malpractice” (id., p 418). We carefully distinguished between the two possible components of a compensation award when an initial injury has been aggravated by subsequent malpractice.

Consistent with that analysis and in accord with the dictates of reason, the conduct of a claimant with respect to a third-party malpractice action to recover damages for aggravation injuries is referable only to that portion of the compensation award which can be attributed to the malpractice. The injuries caused by the malpractice would mark the limit which the injured employee could recover in his common-law malpractice action and the limit which the insurer could recover under statutory subrogation. Likewise the component of the compensation award attributable to the malpractice would measure the prejudice suffered by the insurer in the event of compromise of the malpractice action by the claimant without the consent of the insurer.

Turning then to the facts of this case, we hold that the discontinuance of the malpractice action by appellant in 1976 forecloses recovery of compensation benefits only to the extent that such benefits are attributable to the malpractice, if any, which was the subject of the malpractice action.

Accordingly, the order of the Appellate Division should be reversed, with costs, and, as in Parchefsky, the case should be returned to the compensation board to determine appellant’s entitlement to benefits attributable to the initial accident only, apart from any malpractice aggravation.

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

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Workers’ Compensation Board for further proceedings in accordance with the opinion herein.

       This description of the decision is based on a statement in appellant’s brief which is not controverted by respondent. The shortened record stipulated by the parties does not contain the full decision. It is clear, however, that continuation of workers’ compensation benefits was directed.


author: Chief Judge Cooke.

text:
    The People of the State of New York, Respondent, v Herman Watts, Appellant.
    Argued October 11, 1982
    decided November 16, 1982

      POINTS OF COUNSEL

      Joseph R. Connelly, Rose H. Sconiers and Joseph B. Mistrett for appellant.
    I. The 18-month delay between arrest and trial violates appellant’s constitutional right to a speedy trial. (People v Taranovich, 37 NY2d 442; People v Johnson, 38 NY2d 271; People v Wallace, 26 NY2d 371; People v Staley, 41 NY2d 789; People v Blakley, 34 NY2d 311; People v Winfrey, 20 NY2d 138; People v Minicone, 28 NY2d 279; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Singer, 44 NY2d 241.) II. The trial court erred in refusing to charge the jury that justification is a defense and that the People have the burden of disproving such defense beyond a reasonable doubt. (People v Steele, 26 NY2d 526; People v Torre, 42 NY2d 1036; People v Sackmann, 49 AD2d 542; People v Harmon, 7 AD2d 159; People v Scarborough, 49 NY2d 364; People v Asan, 22 NY2d 526; People v Handy, 62 AD2d 973; People v Riordan, 117 NY 71; People v Robinson, 47 AD2d 618; People v Burnell, 84 AD2d 566.)

      Richard J. Arcara, District Attorney (Kurt T. Sajda of counsel), for respondent.
    I. The pretrial delay in the case at bar did not violate defendant’s constitutional right to a speedy trial. (People v Taranovich, 37 NY2d 442; People v Suarez, 55 NY2d 940; People v Brothers, 50 NY2d 413; People v Staley, 41 NY2d 789; People v Moore, 47 NY2d 872; United States v Yanishefsky, 500 F2d 1327; People v Savage, 54 NY2d 697.) II. The court properly denied the request to charge the defense of justification. (People v Steele, 26 NY2d 526; People v Torre, 42 NY2d 1036; People v Williams, 50 NY2d 1043.)
   OPINION OF THE COURT

Chief Judge Cooke.

A trial court need not charge a jury with respect to an accused’s proffered defense of justification if no view of the evidence establishes the basic elements of the defense. There was such a failure here, and defendant’s conviction should therefore be affirmed.

Defendant was convicted after a jury trial of assault in the second degree and criminal possession of a weapon in the fourth degree arising out of the shooting of a woman on August 13,1977. He contends that the trial court’s refusal to charge the jury on the defense of justification violated his right to due process.

A court is required to instruct the jury on “fundamental legal principles applicable to criminal cases in general” and those “material legal principles applicable to the particular case” (CPL 300.10, subds 1, 2; see People v Murch, 263 NY 285, 291). When evidence at trial viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury ás to the defense, and must when so requested. A failure by the court to charge the jury constitutes reversible error (see People v Torre, 42 NY2d 1036, 1036-1037; People v Steele, 26 NY2d 526, 528-529). As a corollary, when no reasonable view of the evidence would support a finding of the tendered defense, the court is under no obligation to submit the question to the jury.

The defense of justification, as raised in the present case, permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person (see Penal Law, § 35.15, subd 2, par [a]). The defense is qualified by a duty to retreat, unless the person acting defensively was in his or her home and was not the original aggressor (see id.). Thus, defendant here could have reached the jury with his asserted defense only if the record would support findings that defendant: (1) reasonably believed that the complainant was about to use deadly physical force; and (2) he had satisfied his duty to retreat or was under no such duty.

Defendant asserts that the issue of justification was sufficiently injected at trial" to require that the jury consider it. The sole probative evidence was the testimony of a police officer, who recounted a statement, made by defendant at the time of his arrest, that the complainant “came after [defendant] in his room with a kitchen knife”. This evidence, standing alone, was insufficient to require a jury charge on the defense of justification. It provides no basis for determining whether defendant reasonably believed that he was in imminent danger of being subjected to deadly physical force. On the record here, the court’s denial of defendant’s requested charge was not error.

Defendant also argues that the 18-month delay from his arrest until trial deprived him of his constitutional right to a speedy trial and, therefore, his conviction should be reversed and the indictment dismissed. The constitutional right to speedy trial affords a humanitarian protection to mitigate the injury to an untried suspect who is imprisoned for a prolonged period (People v Johnson, 38 NY2d 271, 276; People v Prosser, 309 NY 353, 356). It also serves policies akin to the right of due process by forbidding the punishment of a defendant whose defense was, by reason of the delay, unduly prejudiced (see People v Staley, 41 NY2d 789, 791). This court has set forth five factors for evaluating a defendant’s constitutional speedy trial claim: (1) the extent of the delay; (2) the reason(s) for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether the defense may have been impaired by reason of the delay (see People v Taranovich, 37 NY2d 442, 445; see, also, People v Perez, 42 NY2d 971; People v Staley, supra; People v Imbesi, 38 NY2d 629; People v Johnson, supra).

Due to the factual inquiry unique to each case, however, “no rigid precepts may be formulated which apply to each and every instance” (People v Taranovich, supra, at p 445). The delay in this case was 18 months during the first 12 of which defendant was incarcerated. The courts below found that two weeks of the delay was attributable directly to the prosecution, three weeks of the delay was attributable to the defendant, and the remainder was caused by court scheduling and assignment. Furthermore, defendant was incarcerated for one year prior to his trial. Although not the result of prosecutorial inaction the bulk of the pretrial delay is, nevertheless, attributable to the State (see People v Johnson, supra, at p 279; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498).

Notably, inasmuch as delay based on an inability to provide sufficient court facilities may not be as readily deterred by the extraordinary remedy of dismissing an indictment, such cause tends to “weigh less heavily” on the State when a court evaluates constitutional speedy trial claims (People v Johnson, supra, at p 278).

Although the nature of the crime here was serious, that did not contribute to the delay. As to the question of prejudice, defendant argues that the delay so weakened his memory that he was “less able to articulate exactly what had transpired” (People v Taranovich, supra, at p 447), and he therefore decided not to testify. Although this court has held that acuity of memory, whether that of a defendant or a nonparty witness, when dulled by a substantial pretrial delay, may sufficiently impair a defense so as to warrant a finding of a denial of a defendant’s speedy trial right (see People v Moore, 47 NY2d 872; People v Taranovich, supra, at p 447; see, also, Barker v Wingo, 407 US 514, 532), there is no such indication here. Indeed, the existence of defendant’s written statement would have been sufficient to revive any lapsed memory or to have demonstrated an inability to recall at the time of trial. The record indicates that defendant’s counsel made a tactical decision to not call defendant as a witness solely because he found the defendant, whose recollection counsel admittedly never attempted to refresh, unable to recount events sufficiently to withstand cross-examination. Under all the circumstances here, it cannot be said that defendant was deprived of his constitutional right to a speedy trial.

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

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

Order affirmed

       In sharp contrast, in People v Torre (supra), error was found in the trial court’s failure to charge the jury on the issue of justification because there was testimony of the defendant and an eyewitness that detailed the victim’s first aggression with deadly force. In People v Steele (supra), the Assistant District Attorney admitted that the complainant was the initial aggressor and that he possessed a knife.


author: Gabrielli, J.

text:
    Beverly Crosby, Appellant, v State of New York, Workers’ Compensation Board, Respondent.
    Argued October 7, 1982
    decided November 16, 1982

      POINTS OF COUNSEL

      Dirk A. Galbraith and William R.Bartholomae for appellant.
    I. Section 24 of the Workers’ Compensation Law violates plaintiff’s constitutional right of privacy. (Defiance Milk Prods. Co. v Du Mond, 309 NY 537; Abie State Bank v Bryan, 282 US 765; Dobbins v Los Angeles, 195 US 223; Lincoln Bldg. Assoc. v Barr, 1 NY2d 413; Goldberg v Kelly, 397 US 254; Roe v Wade, 410 US 113; Stanley v Georgia, 394 US 557; Whalen v Roe, 429 US 589; People v Onofre, 51 NY2d 476; Griswold v Connecticut, 381 US 479.) II. Section 24 of the Workers’ Compensation Law violates plaintiff’s constitutional right of freedom of contract. (Board of Regents v Roth, 408 US 564; Yeiser v Dysart, 267 US 540; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; Quinn v State of New York, 70 AD2d 670; Matter of Reich [Ross], 53 AD2d 925; Matter of Hogg v Workers’ Compensation Bd. of State of N. Y., 78 AD2d 721.) III. Section 24 of the Workers’ Compensation Law violates plaintiff’s constitutional right to equal protection under the law. (Eisenstadt v Baird, 405 US 438; Montgomery v Daniels, 38 NY2d 41; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326.)

      Robert Abrams, Attorney-General (Howard Friedland, Peter H. Schiff and Henriette Frieder of counsel), for respondent.
    I. Appellant’s challenges to section 24 of the Workers’ Compensation Law, based on provisions of the New York State Constitution, are without merit as a matter of law since section 18 of article I thereof establishes the irrebuttable validity of section 24 of the Workers’ Compensation Law. (Koutrakos v Long Is. Coll. Hosp., 47 AD2d 500, 39 NY2d 1026; Shanahan v Monarch Eng. Corp., 219 NY 469; Matter of Schmidt v Wolf Contr. Corp., 269 App Div 201, 295 NY 748.) II. The court below properly held that appellant’s decision to contract with an attorney for a fee in connection with the prosecution of her workers’ compensation claim is not a decision protected from State interference by the “right to privacy” established under the due process clause of the Fourteenth Amendment to the Federal Constitution. (Wein v Levitt, 42 NY2d 300; Carey v Population Servs. Int., 431 US 678; Whalen v Roe, 429 US 589; People v Onofre, 51 NY2d 476; Paul v Davis, 424 US 693; Matter of Priest v Hennessey, 51 NY2d 62; Stanley v Georgia, 394 US 557; PruneYard Shopping Center v Robins, 447 US 74.) III. Since the fee determination provisions of section 24 of the Workers’ Compensation Law are reasonably related to the legitimate State purposes of the Workers’ Compensation Law, section 24 satisfies the substantive due process requirements of the Fourteenth Amendment to the Federal Constitution and does not violate appellant’s “right to counsel” thereunder. (Lighthouse Shores v Town of Islip, 41 NY2d 7; Dandridge v Williams, 397 US 471; Montgomery v Daniels, 38 NY2d 41; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152; New York Cent. R. R. Co. v White, 243 US 188; Caravaggio v Retirement Bd. of Teachers’ Retirement System of City of N. Y., 36 NY2d 348; Yeiser v Dysart, 267 US 540; Gendron v Saxbe, 389 F Supp 1303, affd sub nom. Gendron v Levi, 423 US 805; Randolph v United States, 274 F Supp 200, 389 US 570; Matter of Hogg v Workers’ Compensation Bd. of State of N. Y., 78 AD2d 721, 53 NY2d 605.) IV. The court below properly held that the Legislature, in enacting the Workers’ Compensation Law for the benefit of persons such as appellant, could abrogate her right to contract with an attorney as a valid exercise of the State Police power. (Margolin v United States, 269 US 93; Calhoun v Massie, 253 US 170.) V. The court below properly held that section 24 of the Workers’ Compensation Law satisfies the requirements of the equal protection clause of the Fourteenth Amendment to the Federal Constitution since the classification created by the fee determination provisions thereof is reasonably related to legitimate State goals. (Vance v Bradley, 440 US 93; People v Whidden, 51 NY2d 457; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326; Board of Educ. v Nyquist, 83 AD2d 217; Slewett & Farber v Board of Assessors of County of Nassau, 80 AD2d 186, 54 NY2d 771; Duncan v Missouri, 152 US 377; Nik-O-Lok Co. v Carey, 52 AD2d 375, 40 NY2d 1089.) VI. Appellant’s contentions based upon provisions of the Insurance Law and Judiciary Law are without foundation; moreover, no grounds exist for remand to Supreme Court, Tompkins County. (Mulligan v Lackey, 33 AD2d 991.)
   OPINION OF THE COURT

Gabrielli, J.

This appeal presents for our determination the issue of whether section 24 of the Workers’ Compensation Law, requiring that attorneys’ fees sought in connection with a claim arising under that law must be approved by the Workers’ Compensation Board, violates a claimant’s constitutional rights to due process or equal protection. We hold today that this reasonable regulation of the payment of attorneys’ fees, enacted for the protection of the claimant, suffers no such constitutional infirmity.

Plaintiff’s claim for workers’ compensation benefits arose out of an injury she sustained on April 11, 1979, during the course of her employment. Proceeding pro se initially, plaintiff received an award of benefits covering the period from the injury until the hearing. No further payments were to be made, however, until claimant submitted a medical report justifying the receipt of further benefits. In January of 1980, plaintiff retained an attorney who requested the Workers’ Compensation Board to direct the compensation carrier to commence payments retroactive to the date of the hearing. On March 17, 1980, the carrier was ordered to make the payments retroactive to some three months prior to the hearing date at an increased rate of benefits.

A second hearing was held on June 3, 1980, at which plaintiff’s attorney failed to appear. Following this hearing, the compensation carrier was ordered to pay plaintiff further benefits. The carrier has appealed that decision to the Workers’ Compensation Board and has suspended payments to plaintiff pending the outcome of the appeal. Plaintiff sought to engage a new attorney to represent her on this appeal and contacted an Ithaca attorney for this purpose. This attorney agreed to represent plaintiff, and, having estimated the time that would be involved in preparing for and attending the appeal, informed plaintiff that he would require a retainer of $300, to be deposited in his trust account pending the outcome of the case. Plaintiff agreed to this fee amount and procedure.

Thereafter, plaintiff’s attorney filed a notice of substitution and appearance form with the Workers’ Compensation Board. He advised the board, in an accompanying letter, that plaintiff had agreed to deposit the sum of $300 with him, to be held in trust and applied to any fee subsequently approved by the board. The board then informed the attorney that the fee arrangement was not in accordance with board procedure and advised him to return plaintiff’s deposit and make application for his fee in the prescribed manner.

Plaintiff then commenced the instant action, seeking a judgment declaring the fee restrictions unconstitutional because they effectively prevent her from retaining skilled legal counsel of her choice to pursue her compensation claim. Defendant’s motion for summary judgment dismissing the complaint was granted by Special Term. The Appellate Division modified the judgment, to the extent only of adding a provision declaring that section 24 of the Workers’ Compensation Law is constitutional.

The challenged statute provides that no claim for legal services in connection with a claim arising under the Workers’ Compensation Law shall be enforceable unless approved by the Workers’ Compensation Board. If such a claim is approved, it becomes a lien upon the compensation awarded and upon any moneys ordered paid under an award into special funds, but is to be paid therefrom only in the manner fixed by the board. The statute also provides that receipt of fees except in an amount determined by the board is a misdemeanor (Workers’ Compensation Law, § 24). The rules of the Workers’ Compensation Board require that application for fee approval be made on a prescribed form, unless the fee requested is $300 or less, in which case oral application may be made (12 NYCRR 300.17 [c] [1]). In addition, the board is required, in passing on a fee request by an attorney whose client has received an award, to approve a fee “in an amount commensurate with the services rendered and having due regard for the financial status of the claimant” (12 NYCRR 300.17 [d]). Nothing contained in these rules operates to limit fee requests, as plaintiff has urged, to a maximum ceiling of $300.

At the outset, we reject plaintiff’s arguments insofar as they are predicated upon the due process and equal protection guarantees contained in the Constitution of this State (NY Const, art I, §§ 6, 11). Any notion that these constitutional guarantees place limitations upon the legislative authority to enact laws concerning workers’ compensation is completely dispelled by another provision of the Constitution. Section 18 of article I, insofar as it is here relevant, provides that: “Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment, either by employers, or by employers and employees or otherwise * * * of compensation for injuries to employees or for death of employees resulting from such injuries”. The statute challenged herein plainly falls within this constitutional provision. It is well recognized that section 18 of article I itself lays to rest all State constitutional attacks on the workers’ compensation laws falling within its scope (Koutrakos v Long Is. Coll. Hosp., 47 AD2d 500, 505, affd 39 NY2d 1026; Shanahan v Monarch Eng. Co., 219 NY 469; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, affd 295 NY 748). Accordingly, our analysis of plaintiff’s contentions rests solely upon the provisions of the Federal Constitution.

Plaintiff urges that section 24, in limiting her ability to choose an attorney on her own terms, violates her constitutional right of privacy by interfering in the “fundamentally private relationship” between attorney and client. In support of her assertion that the statute is an unwarranted governmental interference with her choice of counsel, plaintiff relies upon the affidavits of four attorneys practicing in the Ithaca area. These attorneys state that they will not ordinarily represent claimants in workers’ compensation proceedings, because they are unable to negotiate their fee arrangements privately with the claimants and, in their experience, if fees are approved by the Workers’ Compensation Board at all, they are economically unrewarding. Plaintiff thus argues that the fee limitations effectively operate to preclude her from obtaining skilled legal counsel to pursue her compensation claim and therefore violate her right of privacy.

The “right of privacy” has its roots in the concept of personal liberty and restrictions upon State action embodied in the Fourteenth Amendment (Zablocki v Redhail, 434 US 374, 384; Roe v Wade, 410 US 113, 153; Paul v Davis, 424 US 693, 713). This guarantee recognizes certain “zones of privacy” existing under the Federal Constitution and protects those individual interests which can be said to be “fundamental” or “implicit in the concept of ordered liberty” (Roe v Wade, supra, at p 152). Although the precise contours of this right have yet to be defined, it is clear that it has application in two primary areas of personal autonomy: “the individual interest in avoiding disclosure of personal matters”, and “the interest in independence in making certain kinds of important decisions” (Whalen v Roe, 429 US 589, 599-600). It is this latter interest which plaintiff argues is implicated by the statute’s limitations on fee arrangements between attorney and client.

The cases according constitutional protection to such individual decision-making interests indicate that this aspect of the right of privacy is limited to the most personal and intimate matters of individual choice of conduct. Thus, clearly falling within its scope are matters relating to the decision of whom one will marry (Loving v Virginia, 388 US 1, 12), the decision whether to bear or beget a child (Carey v Population Servs. Int., 431 US 678, 687; see Griswold v Connecticut, 381 US 479, 485-486), and a woman’s decision whether to terminate her pregnancy (Roe v Wade, supra, at p 153). Moreover, the right has some extension to decisions involving the private possession of obscene materials in one’s home (Stanley v Georgia, 394 US 557, 564), as well as decisions concerning private sexual morality (People v Onofre, 51 NY2d 476, 488, cert den 451 US 987).

An examination of the types of decisional conduct to which constitutional protection has been extended under the concept of the privacy guarantee makes readily apparent that plaintiff’s interest in entering into a particular fee arrangement or indeed, choosing a particular attorney to represent her, is not the sort of personal decision encompassed within the “zone of privacy”. Notwithstanding the importance of the attorney-client relationship, the choice of legal representation involves nothing more than an economic decision. Such a choice simply does not have such an intimate or sensitive character as to warrant protection under this constitutional doctrine.*

Plaintiff also contends that the effective limitation of her choice of counsel by virtue of the fee restrictions violates her right to equal protection. Defining the class of persons similarly situated to include all litigants before the Workers’ Compensation Board, plaintiff maintains that such a restriction, directed only to claimants and not to employers and compensation carriers appearing as parties to such proceedings, amounts to an unreasonable classification. Thus, while the latter can employ the most skilled legal counsel to represent them in workers’ compensation proceedings, it is argued that the unwillingness of attorneys to undertake the representation of claimants because of the lack of economic reward leaves claimants without the same level of legal expertise. Although we agree with plaintiff that a classification exists between claimants, on the one hand, and insurers and employers on the other, we believe that a rational basis exists for this disparate treatment.

Section 24 of the Workers’ Compensation Law is part of a broad scheme of economic and social welfare legislation. The challenged classification, burdening no suspect group and affecting no interest deemed fundamental, need only pass the constitutional test of rationality. Thus, the statute will withstand judicial scrutiny if the resulting classification bears a reasonable relationship to some legitimate legislative objective (Vance v Bradley, 440 US 93, 96-97; Dandridge v Williams, 397 US 471, 485; People v Whidden, 51 NY2d 457, 460; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326, 332).

The broad scheme of compensation for work-related injuries or death contained in the Workers’ Compensation Law has as its purpose the provision of a swift and sure source of benefits to injured employees or the dependents of deceased employees (Matter of Burns v Miller Constr., 55 NY2d 501; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 158; O’Rourke v Long, 41 NY2d 219, 222). The compensation law was intended to obviate, among other things, the delay and expense to the claimant caused by the protracted litigation involved in pursuing a negligence claim (Shanahan v Monarch Eng. Co., 219 NY 469, 477-478, supra). That such relief is a legitimate legislative objective hardly need be stated. Section 24, with its restrictions on fee arrangements between the claimant and counsel, is similarly designed for the protection of the injured employee or his dependents. The purpose of the restrictions being to protect the claimant from entering into an improvident fee agreement which might substantially reduce the eventual monetary benefits awarded, the statute clearly promotes the over-all objective of ensuring adequate economic relief to the employee or his family. We believe that the Legislature could properly determine that employers and compensation carriers, not laboring under the same economic difficulties as the claimant, are not in need of similar protection. Accordingly, we conclude that the classification has a rational basis, inasmuch as the restriction on a claimant’s choice of counsel is a reasonable method of furthering the legislative objectives of the Workers’ Compensation Law.

We note, finally, that to the extent plaintiff has demonstrated that at least some attorneys will not undertake claimants’ compensation cases because of the fee restrictions, she has identified a problem that is the proper concern of the Legislature. If it is true, as plaintiff asserts, that the intent of the Legislature to protect claimants is not accomplished by the provisions of section 24, then the wisdom of the statute may be in some doubt, but such a deficiency may not properly be remedied by the courts (see Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed.

       Equally without merit is plaintiff’s contention that the statute in issue violates the contract clause of the Federal Constitution (US Const, art I, § 10: “No State shall * * * pass any * * * Law impairing the Obligation of Contracts”). This clause operates only to invalidate State legislation relieving the commitments of one party to a contract or otherwise retroactively altering rights and obligations under existing contracts (see United States Trust Co. v New Jersey, 431 US 1, 17-21; Allied Structural Steel Co. v Spannaus, 438 US 234, 244-246). Section 24 of the Workers’ Compensation Law is not such State legislation. It merely regulates the terms upon which attorney and client may enter into a fee arrangement in a limited context.