author: Jasen, J.

text:
    Carol Florence, as Mother and Natural Guardian of Darryle L. Davis, an Infant, et al., Respondents, v Meyer Goldberg, Defendant, and Lilly Transportation Corp., et al., Appellants.
    Argued February 15, 1978;
    decided April 4, 1978

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Bernard Bur-stein and L. Kevin Sheridan of counsel), for City of New York, appellant.
    There were no special circumstances here warranting a departure from the rule that a municipality acting in its governmental capacity to protect the public from external hazards cannot be held liable in damages for a failure to furnish sufficient protection. (Evers v Westerberg, 38 AD2d 751, 32 NY2d 684; Pinkney v City of New York, 50 AD2d 928, 40 NY2d 1004; Motyka v City of Amsterdam, 15 NY2d 134; Messineo v City of Amsterdam, 17 NY2d 523; Tuthill v City of Rochester, 32 AD2d 873, 27 NY2d 558; Murrain v Wilson Line, 270 App Div 372, 296 NY 845; Falco v City of New York,
      34 AD2d 673, 29 NY2d 918; Riss v City of New York, 22 NY2d 579.)

      Seymour Madow, Aaron J. Broder and Ann Abbott for respondents.
    I. By designating a specific area of a roadway as a school crossing and providing supervision by a school crossing guard for the sole purpose of protecting school children who cannot reasonably be expected to protect themselves, the city has assumed a special duty of protection to a special class, and may be held liable for its breach of that duty. (Riss v City of New York, 22 NY2d 579; Motyka v City of Amsterdam, 15 NY2d 134; Florence v Goldberg, 48 AD2d 917; Thain v City of New York, 35 AD2d 545, 30 NY2d 524; Baker v City of New York, 25 AD2d 770; Murrain v Wilson Line, 270 App Div 372, 296 NY 845; Smullen v City of New York, 28 NY2d 66; Schuster v City of New York, 5 NY2d 75; Bass v City of New York, 61 Misc 2d 465, 38 AD2d 407, 32 NY2d 894; Runkel v Homelsky, 286 App Div 1101, 3 NY2d 857.) II. The jury found that the city negligently failed to provide a substitute for the absent school crossing guard although there were police officers available for reassignment; this factual determination was not challenged on appeal in the court below, and therefore, upon a finding that the city had assumed a special duty to school children at the designated school crossing during the specific hours, liability is established. (Lopez v City of New York, 4 AD2d 48, 4 NY2d 738; McDonald v Central School Dist. No. 3, 179 Misc 333, 289 NY 800; Van Gaasbeck v Webatuck School Dist. No. 1, 21 NY2d 239; Da Rocha v New York City Housing Auth., 282 App Div 728; Geigel v New York City Housing Auth., 17 AD2d 838; De Marco v City of Albany, 17 AD2d 250; Willis v Young Men’s Christian Assn., 28 NY2d 375.)
   OPINION OF THE COURT

Jasen, J.

This appeal raises the issue whether a municipality may be held liable for injuries suffered by an infant struck by an automobile while attempting to negotiate a school crossing where the municipality’s police department, having voluntarily assumed a duty to supervise school crossings — an assumption upon which the infant’s parent relied — negligently omitted to station a guard at one of the designated crossings.

On November 14, 1967, Darryle Davis, a 6-Vi-year-old infant, was struck by a taxicab, the impact of which resulted in the infliction of severe brain damage to the infant. At the time of the injury, the infant plaintiff was a first-grade student at Public School 191, located on Park Place between Ralph and Buffalo Avenues in Brooklyn. Although he resided on Park Place, only one block away from the school, the infant plaintiff was required to cross Ralph Avenue to attend school.

Prior to the occurrence of the accident resulting in the infant’s injury, a civilian school crossing guard had been assigned regularly to cover the intersection of Park Place and Ralph Avenue, a busy two-way street. For the first two weeks of class, a period throughout which the infant’s mother accompanied her son to and from school, a crossing guard had been stationed at the intersection of Park Place and Ralph Avenue. Having witnessed the daily presence of a crossing guard at this intersection, the infant’s mother, who accepted employment two weeks after her son started class, felt confident that she need not arrange for someone to provide a similar service for her child.

Tragically, however, on the day in question no crossing guard was stationed at the intersection of Park Place and Ralph Avenue. The regularly assigned crossing guard, having felt ill that day, notified the 77th precinct at 7:30 a.m that she would not be able to report for duty. Police department regulations provided that a crossing guard unable to report for duty "notify the [police precinct] desk officer sufficiently in advance so that other arrangements [could] be made for covering the crossing.” (Rules and Regulations of New York City Police Dept, ch 23, § 12.1.) Patrolmen and superior officers were also required to notify the desk officer of the absence of a crossing guard at a covered intersection. Upon receipt of this information, the desk officer was required to "assign a patrolman to cover the crossing.” (Id., ch 23, § 12.3.) Departmental regulations provided, however, that if all school crossings could not be covered, those intersections considered most dangerous were to be covered. (Id., ch 15, § 34.1.) Significantly, where more urgent police duty mandated a patrolman’s presence elsewhere, department regulations required him to notify the school principal so that the latter could make arrangements to provide for the safety of the children. (Id., ch 15, § 35.0.)

Upon receiving notification of the crossing guard’s unavailability for duty, the police department neither assigned a patrolman to substitute for the crossing guard nor notified the school principal of the absence of a crossing guard at the Park Place and Ralph Avenue intersection. It was shortly after 11:45 a.m., while the infant plaintiff was returning home from school, that he was struck by a taxicab while attempting to cross this intersection.

The infant’s mother, as natural guardian, commenced this action against New York City, Lilly Transportation Corp., the owner of the taxicab, and Meyer Goldberg, the operator of the vehicle, seeking damages for the personal injuries suffered by the infant. She also sought, in a derivative cause of action, damages for loss of the infant’s services and medical expenses. At trial, the action was discontinued against Goldberg.

The jury returned a verdict against Lilly and New York City, apportioning the liability between them in the ratio of 25% against Lilly and 75% against the city. On appeal, the Appellate Division affirmed the judgment of liability, but ordered a new trial on the issue of damages, holding that the award had been tainted by plaintiffs’ improper use of medical textbooks at trial.

On retrial of the issue of damages, the jury awarded the infant $500,000 and his mother $270,000. On appeal, the Appellate Division, holding the award to the infant’s mother excessive, ordered a new trial on the issue of damages unless plaintiff agreed to accept a reduction to $125,000. Plaintiff having so stipulated, the Appellate Division affirmed the judgment of the trial court.

On appeal to this court, the City of New York contends that a municipality acting in its governmental capacity to protect the public from external hazards cannot be held liable in damages for its failure to furnish adequate protection. We hold that a municipality whose police department voluntarily assumes a duty to supervise school crossings — the assumption of that duty having been relied upon by parents of school children — may be held liable for its negligent omission to provide a guard at a designated crossing or to notify the school principal or take other appropriate action to safeguard the children.

By its waiver of governmental immunity (Court of Claims Act, § 12-a [L 1929, ch 467, § 1], now § 8), the State assumed liability for its conduct and consented to have such liability determined in accordance with the same rules of law applicable to individuals and corporations. As a concomitant of the State’s waiver of immunity, the governmental subdivisions of the State — its counties, cities, towns and villages— formerly sheltered under the protective cloak of the State’s immunity (Murtha v New York Homeopathic Med. Coll. & Flower Hosp., 228 NY 183, 185), also became "answerable equally with individuals and private corporations for wrongs of officers and employees” (Bernardine v City of New York; 294 NY 361, 365; Motyka v City of Amsterdam, 15 NY2d 134, 138). As in the case of an individual or private corporation, however, a municipality’s liability must be premised upon the existence and breach of a duty flowing from the municipality to the plaintiff. (Motyka v City of Amsterdam, 15 NY2d 134, supra.) Absent the existence and breach of such a duty, the abrogation of governmental immunity, in itself, affords little aid to a plaintiff seeking to cast a municipality in damages.

Moreover, to sustain liability against a municipality, the duty breached must be more than a duty owing to the general public. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of "a duty to use due care for the benefit of particular persons or classes of persons” (Motyka v City of Amsterdam, 15 NY2d, at p 139, supra; Evers v Westerherg, 38 AD2d 751, affd 32 NY2d 684; see generally, 18 McQuillin, Municipal Corporations, p 126).

For example, as a general rule, a municipality’s duty to furnish water to protect its residents against damage caused by fire is a duty inuring to the benefit of the public at large, rather than to the individual members of the community. (Motyka v City of Amsterdam, 15 NY2d 134, 138, supra; Steitz v City of Beacon, 295 NY 51, 57; Moch Co. v Rensselaer Water Co., 247 NY 160, 165; La Duca v Town of Amherst, 53 AD2d 1011.) Similarly, a municipality cannot be held liable for failure to furnish adequate police protection. This duty, like the duty to provide protection against fire, flows only to the general public. (Riss v City of New York, 22 NY2d 579, 583; Bass v City of New York, 38 AD2d 407, 411, affd 32 NY2d 894; Zibbon v Town of Cheektowaga, 51 AD2d 448, 449, app dsmd 39 NY2d 1056; see, generally, Comment, Municipal Tort Liability for Failure to Provide Adequate Police Protection in New York State, 39 Albany L Rev 599; Police Protection— Governmental Liability, Ann., 46 ALR3d 1084.)

Where, however, a special relationship exists between a municipality and a plaintiff creating a duty, albeit one normally inuring only to the benefit of the public at large, a municipality may be held liable for damages suffered as a consequence of its negligence. For example, a municipality possesses a special duty to provide police protection to an informer who collaborates with the police in the arrest and prosecution of a criminal. (Schuster v City of New York, 5 NY2d 75, 82-83.) Moreover, where a municipality assumes a duty to a particular person or class of persons, it must perform that duty in a nonnegligent manner, notwithstanding that absent its voluntary assumption of that duty, none would have otherwise existed. As Chief Judge Cardozo succinctly stated: "The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all.” (Moch Co. v Rensselaer Water Co., 247 NY, at p 167, supra.)

It is within this analytical framework that the issue posed on this appeal must be resolved: that is whether the City of New York, through its police department, assumed a particular duty to a special class of persons, not generally true of police control of pedestrian or vehicle traffic, and whether having assumed that duty, the city negligently omitted its performance, resulting in the infliction of physical injury to a member of the benefited class.

In this regard, there is little question that the police department voluntarily assumed a particular duty to supervise school crossings. Its departmental rules and regulations expressly provided that a crossing guard unable to report for duty advise the precinct sufficiently in advance to permit the police to make other arrangements to cover the crossing. (Rules and Regulations of New York City Police Dept, ch 23, § 12.1.) Upon notification by a patrolman or superior officer of the absence of a crossing guard from his or her position, the precinct’s desk officer was required by departmental regulations to assign a patrolman to cover the crossing. (Id., ch 23, § 12.3.) Where more urgent police duty necessitated a patrolman’s presence elsewhere, he was required to notify the precinct and the school principal so that the latter could make arrangements to safeguard the children’s welfare. (Id., ch 15, § 35.0.)

Significantly, the duty assumed by the police department was a limited one: a duty intended to benefit a special class of persons — viz., children crossing designated intersections while traveling to and from school at scheduled times. Thus, the duty assumed constituted more than a general duty to provide police protection to the public at large. Having witnessed the regular performance of this special duty for a two-week period, the plaintiff infant’s mother relied upon its continued performance. To borrow once more from Chief Judge Cardozo, "[i]f conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward” (Moch Co. v Rensselaer Water Co., 247 NY, at p 167, supra). Application of this principle to the present case leads unmistakably to the conclusion that the police department, having assumed a duty to a special class of persons, and having gone forward with performance of that duty in the past, had an obligation to continue its performance. (Cf. Zibbon v Town of Cheektowaga, 51 AD2d 448, 453, supra; Bloom v City of New York, 78 Misc 2d 1077, 1078-1079.) Had the police department not assumed a duty to supervise school crossings, plaintiff infant’s mother would not have permitted her child to travel to and from school alone. The department’s failure to perform this duty placed the infant plaintiff in greater danger than he would have been had the duty not been assumed, since the infant’s mother would not have had reason to rely on the protection afforded her child and would have been required, in her absence, to arrange for someone to accompany her child to and from school.

As to whether the police department, having assumed this duty, negligently omitted its performance, the city contended at trial that sufficient patrolmen were not available to permit assignment of a patrolman to cover the intersection of Park Place and Ralph Avenue. The city placed great weight upon a departmental regulation mandating that "[w]hen all school crossings cannot be covered, those considered most dangerous shall be covered.” (Rules and Regulations of New York City Police Dept, ch 15, § 34.1.) It was the city’s contention that the intersection of Park Place and Ralph Avenue was not considered one of the most hazardous school crossings. Whether or not the police department negligently performed its duty to supervise school crossings is a question of fact properly left for determination by the jury. In returning a verdict against defendants, the jury resolved this question against the city.

In passing, we caution, however, that a municipality cannot be held liable solely for its failure to provide adequate public services. The extent of public services afforded by a municipality is, as a practical matter, limited by the resources of the community. Deployment of these resources remains, as it must, a legislative-executive decision which must be made without the benefit of hindsight. (Riss v City of New York, 22 NY2d, at pp 581-582, supra; Bass v City of New York, 38 AD2d 407, 417, affd 32 NY2d 894, supra; Glick v City of New York, 53 AD2d 528.) Had the city established that a shortage of personnel precluded assignment of a patrolman to cover the intersection of Park Place and Ralph Avenue, notification of this contingency to the school principal or other appropriate action would have been sufficient to relieve the police department and New York City from liability for the failure to supervise the designated school crossing. To place a greater burden upon the police department would be unwarranted.

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

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

Order affirmed.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Jose Medina, Appellant.
    Argued February 6, 1978;
    decided April 6, 1978

      POINTS OF COUNSEL

      Roger Bennet Adler for appellant.
    I. The court erred in permitting defendant to represent himself, pro se, absent clear proof, in the record, that he was voluntarily waiving his constituional right to counsel and was able to competently represent himself. (Gideon v Wainright, 372 US 335; Argersinger v Hamlin, 407 US 25; Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v Allen, 39 NY2d 916; United States v Duty, 447 F2d 449; Johnson v Zerbst, 304 US 458; Carnley v Cochran, 369 US 506.) II. The trial court erred in denying the pro se defendant’s motion for a continuance. (People v Foy, 32 NY2d 473.) III. The conviction on the rape count must be reversed because of the People’s failure to supply sufficient corroborative evidence as required by the "corroboration” statute in effect at the time the conduct complained of occurred. (People v Linzy, 31 NY2d 99; People v Evans, 85 Misc 2d 1088; People v Botteri, 50 AD2d 540; People v Yanik, 55 AD2d 164; People v Weiss, 290 NY 160; People v Cleague, 22 NY2d 363; People v Williams, 35 NY2d 783; People v Fellman, 35 NY2d 158; People v Fitzpatrick, 40 NY2d 44.) IV. The prosecutor’s closing argument was improper and denied defendant a fair trial. (People v Carbonaro, 301 NY 39; People v Tassiello, 300 NY 425; People v Ashwall, 39 NY2d 105; People v Petrucelli, 44 AD2d 58; Griffin v California, 380 US 609; People v Robinson, 13 NY2d 296; People v Rencher, 49 AD2d 609; People v Crimmins, 41 AD2d 933, 36 NY2d 230; People v Davis, 51 AD2d 974; People v Range, 49 AD2d 832; People v Nash, 49 AD2d 827.)

      Robert M. Morgenthau, District Attorney (Norman Barclay, Peter L. Zimroth and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt by properly corroborated evidence. (People v Davis, 41 NY2d 678; People v Terwilliger, 74 Hun 310, 142 NY 629; People v Dow, 34 AD2d 224, 28 NY2d 860; People v Bercume, 38 AD2d 356; People v Yannucci, 283 NY 546; People v Watson, 57 AD2d 143.) II. The court properly ordered that the trial proceed with defendant’s appointed counsel advising him. (People v Brabson, 9 NY2d 173; People v Jordan, 49 AD2d 660; People v Yates, 45 AD2d 778; Faretta v California, 422 US 806; People v MyIntyre, 36 NY2d 10; People v De Chiaro, 48 AD2d 54, 423 US 894; United States v Duty, 447 F2d 449; United States v Rosenthal, 470 F2d 837, 412 US 909.) III. The prosecutor’s summation was fair and proper. (People v Vidal, 26 NY2d 249.)
   OPINION OF THE COURT

Fuchsberg, J.

After a trial by jury, Jose Medina was convicted of rape in the first degree (Penal Law, § 130.35) and burglary in the first degree (Penal Law, § 140.30). Dismissing a lesser included count, the Appellate Division affirmed. On this appeal to us, the appellant now asserts that (1) he was denied effective assistance of counsel because the Trial Judge refused to replace his court-appointed lawyer and thus improperly compelled him to defend himself and (2) the evidence was insufficient to meet the corroboration standards then required to support a conviction for rape. On the analysis which follows, we conclude that both contentions are lacking in merit.

We begin by setting forth the operative facts bearing on the commission of the crime itself. The prosecutrix, a young woman of 19, testified without contradiction that on May 23, 1973 the appellant, after putting her in a terrorized state by breaking into her locked Manhattan apartment at 3:00 a.m., compelled her to submit to acts of sexual intercourse and sodomy. After being disturbed by a clawing and rustling sound, she discovered him crouched on the floor with a knife in his hand. Presumably, Medina, a complete stranger, had gained entrance through an iron window gate which, previously in good condition, had been pried apart. The knife he held had been taken from her kitchen.

These additional items of proof bear particularly on the issue of corroboration: While the victim, having been forced to remove all her clothes, was still unclad the appellant opened the apartment door to admit an accomplice who, Medina announced, would also take his turn at raping her. At that juncture, the police, who arrived in response to a radio report that intruders had been seen entering the building, apprehended both men before either could make good his escape; in his haste to depart, Medina apparently had no time to get back into his underwear top and shorts; easily identified by their distinctive colors, both garments were found in the apartment; at the police precinct it was discovered that Medina was clothed only in his street clothes. Findings on medical examination made at a nearby hospital soon after the event were that the prosecuting witness, previously virginal, still possessed an intact hymen, that there were no spermatozoa in her genital organs and that she bore no signs of physical injury; the examining physician explained, however, that it was possible to penetrate her vagina for one inch without rupturing the hymen; for her part, the prosecuting witness described to the jury how Medina, though twice entering her body, encountered too much difficulty to consummate sexual intercourse and had proceeded to engage her in a forced act of cunnilingus.

Before describing the subsequent course of events relevant to the right to counsel issue, we pause to examine appellant’s contention that there was a failure to prove the necessary corroboration. In May, 1973, the Penal Law required independent evidence which "tended” to establish both that there had been an attempt to engage the victim in sexual intercourse and that force was used in that endeavor (former Penal Law, § 130.15, L 1972, ch 373). This evidence could be either direct or circumstantial (People v Bercume, 38 AD2d 356, 358; People v Dow, 34 AD2d 224, 228, affd 28 NY2d 860).

The statutory standards here were well met. That the appellant’s underwear was found in the victim’s apartment rather than under the appellant’s outer clothes was circumstantial evidence of a most telling nature as to his participation in the sexual encounter which the prosecuting witness described. The distressed state in which the police found the victim at the time of her rescue, the lateness of the hour, the role of the knife, the twisted window gate, without more and most certainly in combination, easily took the case to the jury on the question of force (see People v Yannucci, 283 NY 546, 550; People v Dow, supra, pp 228-229; People v Watson, 57 AD2d 143, 148).

Turning now to the less graphic, but here not less significant, events relating to the claimed impairment of right to counsel, these appropriately may be said to have begun on May 23, the date of Medina’s arrest. From then until the trial itself was begun the following October, appellant was never without a lawyer. Initially, both defendants were provided with counsel by the Legal Aid Society. But, about a month later, to avoid any possible conflict of interest between the two codefendants, the court, pursuant to article 18-B of the County Law and rule 606.1 of the Supreme Court, Appellate Division, First Department, appointed a private attorney to look to Medina’s interests alone. This representation of the appellant continued uneventfully during the ensuing months until the trial was about to get underway.

On September 11, a month before trial, the People proffered a plea bargain. When Medina indicated that he was not then ready to accept it, the likelihood that the case would have to be tried in October became obvious. On October 2, Medina having finalized his rejection of the plea offer, the plan for trial that month became firm and, on October 5, the court again alerted the parties to be prepared to proceed, this time upon the completion of another trial then in progress in the part to which the Medina case had been assigned. On none of these dates — indeed, so far as the record reveals, during all the preceding months — was there the slightest hint that the appellant was harboring any dissatisfaction with his lawyer. Even on October 9, when the appellant was in court for the call of the case preparatory to commencement of its trial the next day, every indication was that both sides were ready to proceed.

On the morning of October 10, however, Medina’s counsel advised the court that on the preceding day his client had informed him that he had no confidence in him as his lawyer. Appellant personally confirmed this statement. All indications from the transcript are that the Trial Judge then took pains to reassure the appellant of the experience and competence of his counsel. The court did not rest on this alone. Its conscientious and persistent efforts to ascertain the cause of Medina’s unhappiness continued over the next two days. But they proved fruitless.

Little by little some explanations were eked out, but they seemed almost entirely frivolous or specious. His belaboring of counsel as inadequate was for such things as failure to move to dismiss the indictment on the ground that the District Attorney’s name appeared in type rather than script on the copy given to the appellant and for having failed to move to suppress evidence, even though there was no suppressible evidence in the case. He had even expressed similar displeasure because other "motions” whose nature he could not specify had not been made. Encouraged to elaborate, the most he would say was "I don’t know. You’re supposed to be the lawyer. You make the motions”. Other complaints read like semisophisticated and belated second-guessing of his lawyer’s professional judgment: for instance, he complained that he had not been put before the Grand Jury and that his attorney had relied on the far more informative preliminary hearing minutes rather than on a bill of particulars. Crystallizing his thinking, in the end Medina stated that what disturbed him basically was that the lawyer was "putting in doubt the democratic process. That’s all”.

After a great deal of colloquy, the Judge painstakingly explained to the appellant that his court-appointed lawyer could not be changed at will and without cause and that, construing the application as one to discharge counsel, the request would be denied. Medina then shifted his ground, stating that he "did not feel ready for trial yet”, but never did he satisfactorily indicate how a new attorney or an adjournment would add to his preparation. Despite this, the court offered to delay the daily commencement of trial to allow additional time for him to confer with counsel, promised to lend assistance in the procurement of witnesses, and in fact to "give [you] anything [you] want”. All to no avail. From the cold record what comes through is an impression that it would have been perfectly permissible for the trial court to have perceived in appellant’s responses an attempt — inchoate or deliberate — either to put off his day of reckoning or obtain delay for delay’s sake alone.

When the appellant would not accept the court’s decision that there was no basis for assigning a different counsel, the Judge warned him that, if he persisted in his refusal, he would have to try his case himself. It was also made clear to him that, while it was his right to proceed pro se, such a course would be unwise. To this Medina’s ready answer was that he nevertheless would rather do so. As was obvious from the adamancy with which he announced his decision, this waiver was not given perfunctorily. Nor was it cavalierly accepted. Even while respecting and accepting appellant’s determination to act contrary to its advice, the court continued to manifest its concern by instructing counsel to sit next to his former client and hold himself available for consultation. These services were not utilized. Instead, after making motions and putting questions to the court, all with considerable articulateness and poise, Medina, whether to carry out an ill-fated trial strategy, or in abandonment of some earlier plan, or for some totally different reason best known to him, chose to remain almost entirely mute for the balance of the trial. An exception was when he pressed the court for assurance that the jury would be shown the complainant’s hospital record; he could have believed it dispositive.

In treating with the questions that arose regarding the matter of counsel, the trial court was governed by now well-settled principles. Under our State and Federal Constitutions, an indigent defendant in a criminal case is guaranteed the right to counsel (NY Const, art I, § 6, People v Koch, 299 NY 378, 381; US Const, 6th Amdt; Argersinger v Hamlin, 407 US 25; Gideon v Wainwright, 372 US 335). The fulfillment of that obligation calls for more than merely pro forma appointment of or service by a member of the Bar. The legal assistance provided must be "effective”. (Cf. People v Droz, 39 NY2d 457; People v La Bree, 34 NY2d 257; People v Bennett, 29 NY2d 462.) To insure that it is, Trial Judges have a continuing duty, not to be lightly eschewed, to see to it that the proceedings are conducted with solicitude for the essential rights of the accused (cf. People v Moulton,. 43 NY2d 944). They should carefully evaluate serious complaints about counsel (see People v Mason, 22 AD2d 957, 958; United States v Morrissey, 461 F2d 666, 670; cf. United States ex rel. Thomas v Zelker, 332 F Supp 595 [Frankel, J.]).

However, this is far from suggesting that an indigent’s request that a court assign new counsel is to be granted casually (People v Brabson, 9 NY2d 173, cert den 369 US 879; People v Yates, 45 AD2d 778). For, among other things, practical constraints on the administration of a program for providing legal assistance dictate that "as long as assigned counsel are men of ability and integrity, the discretion and responsibility for their selection rest with the court” (People v Brabson, supra, p 181; see, also, People v Jordan, 49 AD2d 660, 661). But this does not gainsay the fact that where "good cause” does exist a court is well advised to effect a change of counsel (e.g., United States v Burkeen, 355 F2d 241, 245, cert den sub nom. Matlock v United States, 384 US 957; United States v Curtiss, 330 F2d 278, 280 [Marshall, J.]; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, § 5.3, p 49).

In deciding whether "good cause” exists, a court must take into account such circumstances as whether present counsel is reasonably likely to afford a defendant effective assistance and whether the defendant has unduly delayed in seeking new assignment. The Commentary to section 5.3 of the ABA Standards (op. cit, p 51) balances these considerations quite nicely: "Since a relationship of mutual confidence between lawyer and client is important to the lawyer’s fulfillment of his professional functions, where good cause is shown by the defendant why that confidence does not exist the court should substitute counsel. Of course, the defendant should not be permitted to use this opportunity as a device to obstruct the orderly processes of the courts. If a last-minute motion for substitution of counsel is made for the purpose of delay, the court can recognize it as such and either refuse to make a new appointment or deny a continuance if one is made.”

So Trial Judges have been found to have abused their discretion by assigning an attorney to represent two defendants where a conflict of interest exists (see, e.g., Glasser v United States, 315 US 60, 75-76; People v Byrne, 17 NY2d 209, 215-216; cf. People v Gomberg, 38 NY2d 307, 313-314) or where they have required a defendant to go to trial with an assigned attorney who has not adequately investigated his client’s history of mental disorder (see, e.g., Brubaker v Dickson, 310 F2d 30, 38; cf. People v Bennett, 29 NY2d 462, supra). But refusal to assign different counsel has been upheld where a defendant was guilty of delaying tactics (United States v Burkeen, 355 F2d 241, supra; United States v Bentvena, 319 F2d 916, cert den sub nom. Ormento v United States, 375 US 940) or where tensions between client and counsel on the eve of trial were the precipitate of differences over strategy (United States v White, 451 F2d 1225; United States v Black, 412 F2d 687, cert den 396 US 1010).

Measured against such criteria, we cannot say that in the case before us, the court abused its discretion in refusing to appoint another lawyer. Not only was Medina’s dissatisfaction first stated and his desire for new counsel first made known at the twelfth hour, but he offered no reason why he could not have done either earlier. Those of his criticisms of counsel which were uttered with sufficient specificity to be evaluated related to matters which would have been known to him long before the day of trial. Indeed, he never attributed the timing of his motion to any of these.

Moreover, it is most doubtful that the criticisms were really for incompetence. Rather, as best as can be gathered from Medina’s statement to the court, his chief plaint was over his lawyer’s failure to agree with his client’s concepts as to appropriate trial tactics, a reason which the court was free to regard as insufficient cause for a cognizable claim of lack of confidence. True it is that appellant urged, for the first time on appeal, that counsel was derelict in failing to obtain the hospital report. But the record does not show that to be the fact. It indicates only that, in his colloquy with the court, Medina asked for a copy of the report. In order to do so, he had to have known of its existence and probably of the potential importance of its contents. Had the lawyer of whom he was then trying to rid himself not taken the report into account in preparing for trial, one would expect that the appellant would have brought that to the attention of the trial court. He never did.

It may also be significant that it had become known by then that the young prosecuting witness, who had left New York to resume residence in her native State and had been brought back specially for the trial, had indicated reluctance to return willingly if the case was adjourned.

Under all these circumstances, the court, in refusing to grant the application for change of counsel and in rejecting the supplementary request for delay, acted within the parameters of its discretion in order to prevent orderly processes from being obstructed without good cause.

Furthermore, when, in the face of the court’s carefully explained ruling denying a change of counsel or an adjournment, Medina, who was not totally unfamiliar with criminal procedure, so determinedly and so unequivocally insisted on rejecting counsel and proceeding pro se, the court had no recourse but to permit him to do so (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10). By then it had had an ample opportunity to observe the appellant’s capacity to make an intelligent choice and had repeatedly warned him of the risks of self-representation. It therefore was in a position to ascertain that the waiver of counsel was "knowing and intelligent” (People v McIntyre, supra, at p 17). Surely, it did not have to go so far as to yield to appellant its power to decide when and if assigned counsel was to be relieved (People v Higgins, 23 AD2d 504, affd 16 NY2d 751; cf. People v Bostic, 34 AD2d 597 [Cooke, J.]). From Medina’s point of view, that it might have been inadvisable for him to act as his own lawyer did not destroy his right to make a calculated decision to do so. (See Maynard v Meachum, 545 F2d 273, 278-279; United States ex rel. Testamark v Vincent, 496 F2d 641, 643-644, cert den 421 US 951.)

Accordingly, we cannot say that, in the manner in which it exercised that authority in this case, the court did not strike a proper balance which took into account both its obligations to this particular defendant and its more general obligations to supervise the conduct of the trial before it (cf. People v Kelly, 44 NY2d 725, affg on opn of Mr. Justice Samuel J. Silverman at 60 AD2d 220). The order of the Appellate Division is therefore to be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke.

Order affirmed.

      . The accomplice was indicted with Medina, but he absconded before trial. The appellant was therefore tried alone.

      . The public record of his admission to the Bar indicates that appellant’s trial attorney had been in practice for 38 years.

      . The rulings on the counsel questions in the present case were made by the trial court at a time before our decision in People v McIntyre (supra).


author: Jasen, J. Wachtler, J.

text:
    Alfred Toker, Respondent-Appellant, v Harry R. Pollak, Respondent, and Henry J. Stern, Appellant-Respondent.
    Argued February 14, 1978;
    decided April 6, 1978

      POINTS OF COUNSEL

      Dale A. Schreiber and Allen G. Schwartz for appellant-respondent.
    Stern’s oral communications to the Commissioner of Investigation and to the District Attorney and the affidavit provided by Stern to the District Attorney following referral by the Mayor’s Committee of its inquiry into the qualifications of plaintiff-respondent for judicial office were absolutely privileged under the circumstances of the instant case as a result of (i) the overriding public interest in unfettered communication with governmental agencies: qualification for judicial office, (ii) the authority of the executive to delegate review of judicial qualifications to the Mayor’s Committee, (iii) the function and quasi-judicial role of the Mayor’s Committee, Commissioner of Investigation and District Attorney, and (iv) the objectivity with which the Mayor’s Committee evaluates information brought to its attention. (New York Times Co. v Sullivan, 376 US 254; Marsh v Ellsworth, 50 NY 309; Youmans v Smith, 153 NY 214; Wiener v Weintraub, 22 NY2d 330; Hyman v Press Pub. Co., 199 App Div 609; Doe v Rosenberry, 255 F2d 118; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 41 NY2d 881; Stukuls v State of New York, 53 AD2d 368; Pecue v West, 233 NY 316.)

      Alfred Toker, pro se, and Darrell Buchbinder and H. Leonard Toker for Alfred Toker, respondent-appellant.
    I. Stern only had a qualified privilege with respect to the defamation he communicated to the committee, the Department of Investigation and the District Attorney’s office. (Pecue v West, 233 NY 316; Andrews v Gardner, 224 NY 440; Stevenson v News Syndicate Co., 276 App Div 614; Foltz v Moore McCormack Lines, 189 F2d 537, 342 US 871; Wiener v Weintraub, 22 NY2d 330; Gregoire v Biddle, 177 F2d 579; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 41 NY2d 881.) II. The court below erred in granting absolute privilege to Stern’s communication to the District Attorney. Similarly, the court below was mistaken as a matter of law in stating that statements to the committee were not made within the Statute of Limitations. (Cheatum v Wehle, 5 NY2d 585; Seltzer v Fields, 20 AD2d 60, 14 NY2d 624; Beggs v McCrea, 62 App Div 39; Campo v Parr, 18 AD2d 364.)

      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan, Charles E. Clayman and Barbara B. Guibord of counsel), for the New York City Commissioner of Investigation, amicus curiae.

    Communications to investigative agencies, whether solicited or volunteered, should be held absolutely privileged. (Pecue v West, 233 NY 316; Wiener v Weintraub, 22 NY2d 330; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 41 NY2d 881.)

      Robert M. Morgenthau, Distrcit Attorney (Peter L. Zimroth and Edward Agnew McDonald of counsel), for New York County, amicus curiae.

    In order to encourage persons with information about criminal activities to communicate with the District Attorney’s office, all such communications must be absolutely privileged in actions for defamation. (Vogel v Gruaz, 110 US 311; Matter of Quarles & Butler, 158 US 532; Roviaro v United States, 353 US 53; Schuster v City of New York, 5 NY2d 75; Lindsey v Normet, 405 US 56; People v Darden, 34 NY2d 177; People v Goggins, 34 NY2d 163; New York Times Co. v Sullivan, 376 US 254; Adams v Williams, 407 US 143.)

      Stuart A. Summit for the Mayor’s Committee on the Judiciary, amicus curiae.

    Communications to the Mayor’s Committee on the Judiciary or to other city agencies acting on its behalf must be granted an absolute privilege in the public interest. (Wiener v Weintraub, 22 NY2d 330; Doe v Rosenberry, 255 F2d 118; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 41 NY2d 881; Stukuls v State of New York, 53 AD2d 368; Sease v Central Greyhound Lines of N. Y, 281 App Div 192, 306 NY 284; Wakefield v Board of Educ., 192 Misc 639, 274 App Div 884.)
   OPINION OF THE COURT

Jasen, J.

The principal issue before us is whether allegedly defamatory oral statements made by the defendant to a District Attorney concerning the possible commission of a crime by the plaintiff, as well as statements made in an affidavit submitted to the District Attorney by the defendant in lieu of an appearance before the Grand Jury are, in an action for libel and slander, protected by an absolute or a qualified privilege.

Plaintiff Toker is an Assistant Corporation Counsel of the City of New York, a position which he has held since 1954. In 1961, defendant Stern’s mother suffered a broken wrist as a result of a fall which occurred on a New York City sidewalk. At the time of the injury, Stern, an attorney, was confidential secretary to a Justice of the Supreme Court, New York County — a position which prohibited him from representing his mother in her personal injury action against the city. He, therefore, retained defendant Poliak, a personal friend, to pursue his mother’s claim. Plaintiff Toker, as Assistant Corporation Counsel representing the city, settled the action in 1963. At that time, Stern alleges Poliak informed him that he had paid Toker a sum of money to settle the claim. Upon learning of this information, Stern took no action to report the purported bribe.

In the spring of 1972, however, Toker became a candidate in the Democratic primary for Judge of the Civil Court for the Municipal Court District in lower Manhattan. Stern, then First Deputy Commissioner in the Department of Consumer Affairs of the City of New York, informed Victor A. Kovner, a member of the Mayor’s Committee on the Judiciary (Mayor’s Committee), of the purported bribe involving Toker. It is Stern’s contention that he informed Kovner that the information he was relating was based upon hearsay rather than personal or direct knowledge; Stern never appeared before the Mayor’s Committee, however, because Kovner advised Stern that the Mayor’s Committee had jurisdiction solely over appointive judicial offices. As chance would have it, Toker was unsuccessful in his election bid.

Subsequently, in January of 1974, Toker’s name was submitted by Mayor Beame to the Mayor’s Committee for a review of his qualifications for appointment to the Criminal Court of the City of New York. At the end of January or beginning of February, Stern received a telephone call from Kovner requesting Stern to reaffirm the information he related to Kovner in 1972 concerning Toker’s involvement in the alleged bribe. At this time, Stern was also informed by Kovner that the Mayor’s Committee had decided to refer this matter to the Department of Investigation of the City of New York. When asked by Kovner whether he would respond to inquiries by the Department of Investigation, Stern contends that he responded affirmatively, but again cautioned that he had no direct or personal knowledge of Toker’s participation in the bribe.

Shortly thereafter, Stern received a telephone call from Nicholas Scoppetta, Commissioner of the Department of Investigation, requesting Stern to meet with him to discuss the Toker incident. Stern complied with this request, but once again disclaimed personal knowledge of the bribery. The matter was then referred by the Department of Investigation to the District Attorney of New York County.

In June of 1974, Stern appeared at the office of the District Attorney, upon the latter’s request, and was informed by the Assistant District Attorney that an investigation had been commenced and that unless he responded to the questions posed, he would be subpoenaed to appear before the Grand Jury. The Assistant District Attorney also requested that Stern submit an affidavit summarizing his testimony in lieu of Grand Jury testimony. He was instructed that absent submission of an affidavit, he would be subpoenaed to appear before the Grand Jury. After again cautioning as to his lack of personal knowledge, Stern submitted the affidavit on June 27, 1974. Finding that there existed no legal evidence of wrongdoing on the part of Toker, the District Attorney concluded that presentment to the Grand Jury was unnecessary.

Plaintiff Toker commenced this action on December 12, 1974, alleging causes of action in libel and slander against both Poliak and Stern. Both defendants moved for summary judgment on each cause of action. Special Term granted Poliak’s cross motion for summary judgment on the libel cause of action, holding that Toker failed to establish any writing or publication by Poliak within the one-year Statute of Limitations. (CPLR 215.) As to the cause of action against Poliak for slander, Special Term denied Poliak’s cross motion for summary judgment, "without prejudice to renewal upon the completion of Stern’s examination before trial”. With respect to Stern’s motion for summary judgment, Special Term denied it as to each cause of action. It was the court’s opinion that the affidavit upon which the libel cause of action was based was a qualifiedly privileged communication. Although Stern argued that Toker had failed to establish evidentiary facts from which malice could be inferred, Special Term concluded otherwise.

On appeal, taken by Stern, the Appellate Division modified the order of Special Term, holding that the cause of action against Stern for libel should have been dismissed. The court reasoned that the affidavit submitted by Stern to the District Attorney in lieu of testimony before the Grand Jury was an absolutely privileged communication. The Appellate Division agreed, however, with Special Term’s denial of Stern’s motion for summary judgment on the slander cause of action. Although the court believed it arguable that Stern did not repeat his statement to the Mayor’s Committee within the Statute of Limitations and that the oral statements to the District Attorney were absolutely privileged as the affidavit was, it concluded that the oral statements to the Department of Investigation were only qualifiedly privileged.

On these cross appeals, Stern, arguing that all of the communications he made were absolutely privileged, seeks a reversal of the lower court’s denial of his motion for summary judgment on the slander cause of action. Toker seeks reversal of the Appellate Division’s grant of Stern’s motion for summary judgment on the libel cause of action, arguing that none of Stern’s communications, including the affidavit submitted to the District Attorney, were absolutely privileged.

We hold that both the oral statements made by Stern to the District Attorney and the affidavit submitted upon the latter’s request should be afforded a qualified privilege. Similarly, we hold that Stern’s statements to the Department of Investigation should also be afforded a qualified privilege.

Public policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action. (Shenkman v O’Malley, 2 AD2d 567, 572; Restatement, Torts [2d], § 584 et seq.; Prosser, Torts [4th ed], § 114; 35 NY Jur, Libel and Slander, § 91.) Communications falling within this category are deemed privileged, either absolutely or qualifiedly. Shenkman v O'Malley, supra; 35 NY Jur, Libel and Slander, § 91.)

Communications afforded an absolute privilege are perhaps more appropriately thought of as cloaked with an immunity, rather than a privilege against the imposition of liability in a defamation action. (Prosser, Torts [4th ed], § 114, n 66.) This immunity, which protects communications irrespective of the communicant’s motives, has been stringently applied. In general, its protective shield has been granted only to those individuals participating in a public function, such as judicial (Pecue v West, 233 NY 316), legislative (Roberts v Pratt, 174 Misc 585), or executive proceedings (Cheatum v Wehle, 5 NY2d 585). The absolute protection afforded such individuals is designed to ensure that their own personal interests — especially fear of a civil action, whether successful or otherwise— do not have an adverse impact upon the discharge of their public function. (Restatement, Torts [2d], § 584 et seq.)

In contrast, communications protected by a qualified privilege do not provide the communicant with an immunity against the imposition of liability in a defamation action. A qualified privilege does, however, negate any presumption of implied malice flowing from a defamatory statement, and places the burden of proof on this issue upon the plaintiff. (Lovell Co. v Houghton, 116 NY 520, 525; Doyle v Clauss, 190 App Div 838, 842.) A communication is said to be qualifiedly privileged where it "is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned.” (Lovell Co. v Houghton, 116 NY, at p 526, supra.) The interest championed by the communicant, viewed as constituting a somewhat lesser degree of importance than those interests vindicated in communications afforded absolute immunity, must be expressed "in a reasonable manner and for a proper purpose.” (Prosser, Torts [4th ed], § 115, p 786.)

Critical to the determination of the present case is the scope of judicial proceedings to which absolute immunity attaches. In this regard, we stated on a previous occasion that absolute immunity "applies only to a proceeding in court or one before an officer having attributes similar to a court.” (Pecue v West, 233 NY, at p 321, supra.) There is little doubt that a Grand Jury investigation constitutes a judicial proceeding within the contemplation of this definition. (Hastings v Lusk, 22 Wend 410, 417.) Thus, witnesses testifying before a Grand Jury are protected by an absolute immunity. (Restatement, Torts [2d], § 589, Comment f.)

Far removed from a judicial proceeding, however, is a communication made by an individual to a law enforcement officer such as a policeman. The majority of States afford a communication of this nature a qualified privilege, rather than absolute immunity. (See, e.g., Bergman v Hupy, 64 Wis 2d 747; Davenport v Armstead, 255 SW2d 132 [Mo]; Sylvester v D'Ambra, 73 RI 203; Hutchinson v New England Tel. & Tel. Co., 350 Mass 188; Hardway v Sherman Enterprises, 133 Ga App 181, cert den 421 US 1003; Lisowski v Chenenoff, 37 Wis 2d 610; but see Matter of Quarles & Butler, 158 US 532 [communication absolutely privileged].) While every citizen has a duty to report criminal activity to the proper authorities, a policeman is not a judicial officer.

Falling between these extremes is the present case: a communication to a prosecuting attorney. As to the scope of the privilege attaching to these communications, there exists considerable disagreement. (Compare Getchell v Auto Bar Systems Northwest, 73 Wn 2d 831; Jolly v Valley Pub. Co., 63 Wn 2d 537; Cashen v Spann, 125 NJ Super 386, mod 66 NJ 541, cert den 423 US 829 [communication qualifiedly privileged], with Vogel v Gruaz, 110 US 311; Borg v Boas, 231 F2d 788; Bergman v Hupy, 64 Wis 2d 747, supra; Gabriel v McMullin, 127 Iowa 426 [communication absolutely privileged]; see, generally, Defamation — Communication to Police, Ann., 140 ALR 1466, 1474; 50 Am Jur 2d, Libel and Slander, § 214.)

In Pecue v West (233 NY 316, supra), we held that absolute immunity does not attach to a complaint or information given to a District Attorney concerning the alleged commission of a crime. We reaffirm that holding today. As we observed then, the communication of a complaint, without more, to a District Attorney does not constitute or institute a judicial proceeding. Hence, no one would dispute that at this point a District Attorney receiving such information does not act as a judicial or quasi-judicial officer. At this juncture his function is more analogous to that of the police officer than that of the Judge. (Pecue v West, 233 NY, at pp 321-322, supra; see Matter of B. T. Prods. v Barr, 44 NY2d 226 [decided herewith].)

Stern contends, however, tht his communications to the District Attorney should be afforded absolute immunity because they were given on pain of a threatened subpoena to appear before the Grand Jury. He argues that since he would have been afforded absolute immunity had he testified before the Grand Jury, his affidavit submitted in lieu thereof, as well as his oral statements to the District Attorney, should similarly be afforded absolute immunity. We disagree.

Testimony before a Grand Jury is afforded absolute immunity because, by statute (CPL 190.25, subd 4), Grand Jury proceedings are secret. Disclosure of the nature and substance of testimony elicited before this body is prohibited. No such statutory directive requiring confidentiality exists with respect to communications made to a District Attorney.

Moreover, as a matter of policy, there is little reason to clothe communications to a District Attorney prior to commencement of a criminal proceeding with absolute immunity. A qualified privilege is sufficient to foster the public purpose of encouraging citizens to come forth with information concerning criminal activity. If the information is given in good faith by an individual who believes the information to be true, he is protected against the imposition of liability in a defamation action, notwithstanding that another, perhaps possessed of greater wisdom, would not have reported the information. (Pecue v West, 233 NY, at p 322, supra.) The protection afforded by a qualified privilege should not be cavalierly dismissed as inadequate. On the contrary, while not providing an absolute cloak of protection, a qualified privilege does provide an atmosphere in which a civic-minded citizen may, without fear, convey information which he believes the disclosure of which will redound to the benefit of the public. Only those who act out of malice, rather than public interest, need hesitate before speaking. It is in these latter instances that "[p]roof of such indirect motive will defeat the privilege which would otherwise have attached, for it is not to the convenience and welfare of society that false and injurious communications as to the reputation of others should be made, not for the furtherance of some good object, but for the gratification of an evil and malicious disposition or for any other object than that which gave rise to the privilege.” (Gatley, Libel and Slander [3d ed], p 216.) In our view, to shield communications made to the District Attorney concerning alleged criminal activity with an absolute immunity is unnecessary. Public policy is aptly served by application of a qualified privilege.

Turning to Stern’s communications with the Depart-merit of Investigation, we agree with the Appellate Division’s holding that these communications should be afforded a qualified privilege. Stern maintains, however, that they are absolutely immune on the ground that the Department of Investigation is a quasi-judicial, as opposed to an administrative, body.

Absolute immunity has been afforded to communications made in the course of such proceedings as the filing of a claim before a Workmen’s Compensation Board (Lipton v Friedman, 2 Misc 2d 165), the filing of a complaint before a grievance committee of a Bar Association (Wiener v Weintraub, 22 NY2d 330) and the filing of a complaint before an agency licensing real estate brokers in connection with a license revocation proceeding (Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, affd insofar as appealed from 41 NY2d 881). In each of these proceedings, as well as others held to be quasi-judicial (see, generally, Defamation — Administrative Proceeding, Ann., 45 ALR2d 1296; 50 Am Jur 2d, Libel and Slander, § 234), the administrative body exercised a quasi-judicial function. A hearing was held at which both parties were entitled to participate. The administrative body was empowered, based upon its findings, to take remedial action, whether it be an award of compensation, disbarment, or revocation of a license. In contrast, in the present case, although the Department of Investigation does have the power to subpoena witnesses, no quasi-judicial hearing at which plaintiff Toker was permitted to challenge defendant Stern’s allegations was ever held. Nor does it appear that the Department of Investigation was empowered, based upon its findings, to grant any tangible form of relief reviewable on appeal in the courts. In sum, the proceeding before the Department of Investigation lacked all of the safeguards traditionally associated with a quasi-judicial proceeding. (See Bradley v Hartford Acc. & Ind. Co., 30 Cal App 3d 818; McAfee v Feller, 452 SW2d 56 [Tex].)

To clothe with absolute immunity communications made to a body acting in other than a quasi-judicial capacity — communications which because of the absence of a hearing may often go unheard of, let alone challenged, by their subject — would provide an unchecked vehicle for silent but effective character assassination. While we agree that it is of the utmost importance to select as members of our judiciary persons of unquestioned integrity and ability, a balance must be struck between this objective and the right of an individual to defend himself against attacks upon his character. We believe that the application of a qualified privilege provides the necessary balance by fostering disclosure of information of public import other than that conveyed maliciously.

Finally, although the Appellate Division did not discuss the scope of the privilege attaching to Stern’s communications with the Mayor’s Committee because of their belief that any cause of action premised upon these communications was arguably untimely, we would add that for the same reasons expressed with respect to the Department of Investigation, these communications, should they come within the Statute of Limitations, are entitled to the protection afforded by a qualified privilege.

For the reasons stated, on defendant’s appeal, the order of the Appellate Division should be affirmed, without costs, and the certified question, insofar as applicable to defendant’s appeal, answered in the affirmative. On plaintiff’s cross appeal, the order should be reversed, without costs, and the first cause of action reinstated.

Wachtler, J.

(dissenting). I would dismiss the complaint in its entirety.

The important and novel question on this appeal is whether a person, asked by a judicial screening committee to supply information concerning a bribe allegedly received by a potential candidate for judicial office, should be permitted and encouraged to speak candidly without fear of later being sued for libel or slander by the candidate.

It seems to me that selection of honest Judges is a matter of paramount public interest. Particularly in recent years the establishment of judicial screening committees, such as the Mayor’s Committee, amply demonstrates the growing public awareness of the need to fully investigate the integrity of potential candidates for judicial office. Certainly it would be abhorrent to select an accused bribe taker for judicial office without first conducting a thorough investigation to insure that the charge is in fact unfounded. Thus persons having information concerning the character of potential judicial candidates should be encouraged to make full and candid disclosure to those charged with the responsibility of determining fitness for judicial office.

The courts traditionally and properly have granted an absolute privilege or immunity from civil liability to individuals who furnish information in aid of a proceeding designed to carry out an important public purpose (Prosser, Torts [4th ed], § 114, p 776). Typically this type of immunity has been conferred on those who participate in legislative (Roberts v Pratt, 174 Misc 585), executive (Cheatum v Wehle, 5 NY2d 585) and judicial proceedings (Pecue v West, 233 NY 316).

The need for the absolute privilege has also been recognized in quasi-judicial proceedings (see, e.g., Wiener v Weintraub, 22 NY2d 330) and certain related matters such as Grand Jury investigations, but not, as the majority suggests, because Grand Jury proceedings are secret. On the contrary, the secrecy of the Grand Jury proceedings, and the witnesses’ immunity from civil, and often criminal, liability are all based on the same principle — that is, to assure truth and candor in a proceeding which performs a critical role in the administration of justice (People v Di Napoli, 27 NY2d 229, 235; Denzer, Practice Commentary to CPL 190.40, McKinney’s Cons Laws of NY, Book 11 A, pp 122-128; Pecue v West, supra, at p 320). In short, the absolute privilege applies, and should be applied when, as here, it is necessary to insure that an individual’s personal concerns — especially, as the majority notes, "fear qf a civil action, whether successful or otherwise” — do not inhibit the witness or interfere with the public’s need for unbridled truth in a matter involving significant and legitimate public interest, such as the selection of Judges.

To hold, as the majority does, that persons responding to this need are only entitled to a qualified privilege demeans the importance of judicial screening committees. The qualified privilege which, as in this case often subjects the witness to expensive litigation, inhibits free communication and is only appropriate when the information sought is of "intermediate importance” to the public (Prosser, op. cit., § 113, pp 776-777, 785-786). But resolving a claim that a potential candidate for judicial office has previously received or solicited a bribe is not a matter of limited public interest. Insuring the integrity of Judges is no less important than insuring the integrity of the proceedings at which they preside.

For similar reasons I would hold that the defendant should be immune from suit for communicating information regarding the bribe to the District Attorney and the Department of Investigation. The public of course has an interest in prosecuting criminal acts and it has been suggested that "the better rule seems to be that an informal complaint to a prosecuting attorney or a magistrate is to be regarded as an initial step in a judicial proceeding, and so entitled to an absolute, rather than a qualified immunity” (Prosser, op. cit., § 114, p 781). The majority however has chosen to treat the defendant as one who simply conveys to a prosecutor the unqualified suspicions of a disgruntled neighbor (Pecue v West, 233 NY 316, supra). In addition they have completely ignored the fact that the bribe alleged here did not only involve a possible criminal act, but corruption by a public employee, seeking higher office, where the public need to prosecute or bar from a position of public trust far outweighs the possibility of harassment of the innocent.

Those who hold public positions have always been held to a higher standard of conduct and public scrutiny. Members of the public who are instrumental in initiating inquiries into the conduct of government employees should not be treated like disgruntled neighbors acting out of private pique. Unfortunately, at a time when the courts should be seeking to encourage the public to come forward with information of possible or potential corruption in public office, particularly the judiciary, today’s decision can only be viewed as counsel to the cautious.

Chief Judge Breitel and Judges Gabrielli, Jones and Cooke concur with Judge Jasen; Judge Wachtler dissents and votes to reverse and dismiss the second cause of action on defendant Stern’s appeal and to affirm on plaintiffs cross appeal in a separate opinion; Judge Fuchsberg taking no part.

On defendant Stern’s appeal: Order, insofar as appealed from, affirmed, etc.

On plaintiffs cross appeal: Order, insofar as appealed from, reversed, etc.


author: Gabrielli, J. Jasen, J.

text:
    In the Matter of B. T. Productions, Inc., Doing Business as Town & Country Dinner Theatre, et al., Respondents, v Culver K. Barr, as Judge of the Monroe County Court, et al., Appellants.
    Argued February 9, 1978;
    decided April 6, 1978

      POINTS OF COUNSEL

      Maxwell B. Spoont, Acting Deputy Attorney-General (James H. Sweeny of counsel), for appellants.
    I. The writ of prohibition was improvidently granted. (United States v Hoffman, 4 Wall [71 US] 158; People ex rel. Livingston v Wyatt, 186 NY 383; Matter of Hogan v Court of Gen. Sessions of County of N. Y, 296 NY 1; Quimbo Appo v People, 20 NY 531; Thomson v Tracy, 60 NY 31; Matter of Almroth, 171 Misc 314, 258 App Div 378; People ex rel. Childs v Extraordinary Trial Term of Supreme Ct., 228 NY 463; People ex rel. Hummel v Trial Term, Part I, 184 NY 30; Matter of Lee v County Ct. of Erie County, 27 NY2d 432.) II. A State Police investigator has independent authority as a police officer to apply for a search warrant. (Matter of Agnello v Armer, 56 AD2d 712.) III. Prior approval of the Governor and District Attorney is not required for search warrant applications. (People v Rallo, 39 NY2d 217; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227.) IV. The court below lacked jurisdiction over this proceeding. (Matter of Green v Judges of County Ct. of Nassau County, 51 AD2d 968; Matter of Wapnick v County Ct., County of Queens, 34 Misc 2d 673; Matter of Snee v County Ct. of County of Cayuga, 31 AD2d 303; Matter of Nolan v Court of Gen. Sessions of County of N. Y, 15 AD2d 78, 11 NY2d 114; Matter of Zelter v Nash, 285 App Div 1214; Board of Higher Educ. v Carter, 16 AD2d 443, 14 NY2d 138.)

      Norman A. Palmiere for respondents.
    I. The court below properly exercised its discretion in granting the writ of prohibition under the facts of the instant case. (La Rocca v Lane, 37 NY2d 575; Matter of Nigrone v Murtagh, 36 NY2d 421; Matter of Steingut v Gold, 42 NY2d 311; Matter of State of New York v King, 36 NY2d 59; Matter of Dondi v Jones, 40 NY2d 8; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; People v Ruth, 250 App Div 819; People v Gold, 65 Misc 2d 873; Matter of Lee v County Ct. of Erie County, 27 NY2d 432; Matter of Kaney v New York State Civ. Serv. Comm., 190 Misc 944.) II. A search warrant is by common-law tradition and by statute designed to aid in a public prosecution and is therefore antithetical to the concept of the investigative powers of the Deputy Attorney-General pursuant to section 70-a (subd 4) of the Executive Law. (People ex rel. McDonald v Keeler, 99 NY 463; Dunham v Ottinger, 243 NY 423; Matter of Di Brizzi [Proskauer], 303 NY 206; Ward Baking Co. v Western Union Tel. Co., 205 App Div 723; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; People v Pastore, 50 AD2d 1088; People v Mitchell, 40 AD2d 117; Matter of Sigety v Hynes, 38 NY2d 260; Burger v New York, 388 US 41; Matter of Greenthal & Co. v Lefkowitz, 32 NY2d 457.) III. The use of search warrants by administrative investigating agencies conducting a general inquiry would result in a violation of due process of law. (Lynch v Household Fin. Corp., 405 US 538; Fuentes v Shevin, 407 US 67; Lee v Thornton, 538 F2d 27.) IV. Organized Crime Task Force’s authorization to apply for a judicially issued search warrant which constitutionally and by statute must be directed against a particular person, place and thing, must emanate as an adjunct to its prosecutorial power from section 70-a (subd 7) of the Executive Law and is conferred only with the approval of the Governor and local District Attorney. (People ex rel. Simpson Co. v Kempner, 208 NY 16; People v Rallo, 39 NY2d 217; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; Matter of Alphonso C., 38 NY2d 923.) V. Neither the County nor Supreme Court has the authority and jurisdiction to issue a search warrant upon the application of the Organized Crime Task Force without a demonstration of compliance with section 70-a (subd 7) of the Executive Law, i.e., the approval of the Governor and local District Attorney. VI. A State Police investigator when assigned pursuant to section 70-a (subd 3) of the Executive Law to the office of the Task Force as an Organized Crime Task Force investigator, has no independent authority to apply for a search warrant. VII. The court below was correct in concluding that it had subject matter jurisdiction over this proceeding.
   OPINION OF THE COURT

Gabrielli, J.

In August, 1976, pursuant to a search warrant issued by Monroe County Court Judge Culver Barr, agents of the New York State Organized Crime Task Force (Task Force) entered into petitioners’ business premises and seized the bulk of all their business records for the previous two years. Today, almost two years later, the Task Force still has those records. The Task Force has never explained to petitioners the reason for the seizure, the nature of the Task Force’s interest in petitioners, nor the use the Task Force intends to make of the records. The seizure has not resulted in any indictments or prosecutions nor, indeed, the presentation of any evidence to any accusatory authority against or concerning these petitioners, and there is nothing to indicate that such will be the case. In short, the petitioners have now been deprived of their property for a substantial period without any explanation or any prior opportunity to object to the seizure.

Immediately following the execution of the warrant, the petitioners made several unsuccessful attempts in both State and Federal courts to regain their property, or at least to obtain an explanation of the seizure. Finally, in desperation, they commenced this article 78 proceeding in the nature of prohibition seeking to compel Judge Barr and the Task Force from acting in excess of their jurisdiction by retaining custody of the records pursuant to a search warrant the issuance of which involved an excess of jurisdiction. The Appellate Division granted the application for the writ of prohibition, and the Task Force and Judge Barr appeal from that judgment. For the reasons discussed below, we sustain the writ and affirm the judgment appealed from.

Whenever a court is presented with an application for a writ of prohibition, it must first determine whether that extraordinary remedy will lie in the particular case. In recent years we have had considerable opportunity to discuss the origins and nature of the writ (see, e.g., Matter of Steingut v Gold, 42 NY2d 311, 315-316; Matter of Dondi v Jones, 40 NY2d 8; La Rocca v Lane, 37 NY2d 575; Matter of State of New York v King, 36 NY2d 59; see, generally, Note, Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76), and there is now no need to reiterate what we have previously stated in considerable detail. It is enough to note that "the extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer 'acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction’ * * * It must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from legislative, executive or ministerial action. * * * A public prosecutor is a quasi-judicial officer, who performs important duties within our judicial system, and is subject to prohibition under proper circumstances” (Matter of Dondi v Jones, 40 NY2d, at p 13, supra).

The present case falls within these bounds. The petitioners contend that the Task Force is without authority to obtain a search warrant, and thus it was an excess of jurisdiction for the court to issue the warrant at the behest of the Task Force and to entrust the seized material to the Task Force’s custody purportedly pursuant to CPL 690.55 (subd 1, par [b]). If this contention is correct, the court and the Task Force have indeed exceeded their respective jurisdiction. Clearly the writ of prohibition may run against the court. With respect to the Deputy and Assistant Attorneys-General who comprise the Task Force, it is sufficient to note that we have held public prosecutors to be quasi-judicial officers for purposes of the writ of prohibition, declaring them to be subject to the writ in a proper case (see Matter of Dondi v Jones, 40 NY2d, at p 13, supra; cf. Toker v Pollack, 44 NY2d 211, decided herewith). The same is true of these officials. It should be noted, moreover, that the seized property is still in the custody of the Task Force pursuant to court order, and thus the evil complained of has not yet run its course.

Essentially, petitioners contend that they have been improperly and illegally deprived of their property pursuant to court order, that this deprivation continues and is likely to continue indefinitely, and that there exists no other adequate remedy. As we have previously declared, "the extraordinary remedy of prohibition has not developed as a linguistic exercise but as a response in language and concept to the recognized needs and accommodations in a society governed by the rule of law. There is a larger logic than that delineated by etymology. To eliminate or minimize the concept of an excess of power, on presumed verbalistic grounds, would undermine a common-law principle of ancient standing and the continuods statutory statement of that principle” (La Rocca v Lane, 37 NY2d, at p 581, supra).

In most cases, prohibition will not be available to challenge the validity of a search warrant. For one thing, it will lie only if the challenge, as in the present case, goes to jurisdiction rather than simply to the existence of probable cause in a particular situation. Of equal significance is the fact that in the typical case there will exist an adequate alternative remedy. A search warrant is most often used to obtain evidence in the course of a criminal investigation of a particular crime, an investigation which will soon eventuate in a criminal proceeding. In such cases, the validity of the search warrant will of course be subject to challenge by means of a motion to suppress, the denial of which is appealable in the context of an appeal from the resultant conviction. Here, however, there is no prosecution, and there is no indication that there ever will be a prosecution, and thus there is no opportunity for a motion to suppress. To allow the failure to prosecute, a failure which may well be due to the absence of sufficient grounds to prosecute, to serve as a shield for the allegedly illegal seizure and retention of private property by government agents would be to make a mockery of justice. This is indeed a proper case for application of the just and ancient writ of prohibition.

Before proceeding to the merits of petitioners’ claim, it is necessary to deal with one other procedural question: that is, whether this proceeding was properly commenced in the Appellate Division rather than at Special Term. Normally, article 78 proceedings are commenced at Special Term. When such a proceeding is initiated against a Supreme Court Justice or a Judge of a County Court, however, it must be commenced in the Appellate Division (CPLR 506, subd [b], par 1). Since one of the respondents in this proceeding is a County Court Judge, the proceeding, as required by statute, was properly commenced in the Appellate Division. Respondents contend that this was improper. They note that a search warrant can only be issued by a local criminal court (CPL 690.05), and that a County Court is not a local criminal court. Pursuant to CPL 10.10, a County Court Judge can sit as a local criminal court, but only for the limited purpose of dealing with preliminary matters in criminal proceedings, including search warrant applications. Respondents argue that since Judge Barr was sitting as a local criminal court when he issued the search warrant, he was not a County Court Judge with respect to the search warrant, and thus CPLR 506 is inapplicable and the proceeding should have been commenced at Special Term. We find this argument unpersuasive. Although it is true that Judge Barr was sitting as a local criminal court when he issued the search warrant, it is equally true that he is nonetheless still a County Court Judge. Indeed, his power to sit as a local criminal court is derived from his position as a County Court Judge and is thus a part of his authority as a County Court Judge. Hence, this proceeding was properly commenced in the Appellate Division.

Turning next to the merits of this case, the question before us is whether the Task Force has the authority to obtain a search warrant. CPL 690.05 provides that a search warrant may be issued to "a police officer, a district attorney or other public servant acting in the course of his official duties”. The penultimate issue, then, is whether the power to obtain a search warrant is within the official duties of an agent of the Task Force. If it is not, this absence of authority may not be overcome by the simple stratagem of using a State Police officer to obtain the warrant on behalf of the Task Force. While a State Police officer qua police officer does indeed have the authority to apply for a search warrant in pursuance of his police duties, he does not have such power when he is acting solely as an agent of a State agency which does not itself have that authority.

The role of the Task Force is delineated in section 70-a of the Executive Law; and the duties of the Task Force are as follows (Executive Law, § 70-a, subd 1, pars [a], [b]):

"(a) To conduct investigations and prosecutions of organized crime activities carried on either between two or more counties of this state or between this state and another jurisdiction;
"(b) To cooperate with and assist district attorneys and other local law enforcement officials in their efforts against organized crime.”

In order to fulfill these duties, the Task Force is given certain powers, which may be classified as either investigatorial or prosecutorial. To aid in its investigation of organized crime activities, the Task Force has broad authority to subpoena witnesses and to require the production of "books, records, documents or other evidence” (Executive Law, § 70-a, subd 4; see Matter, of Sussman v New York State Organized Crime Task Force, 39 NY2d 227), and to impound such exhibits (Executive Law, § 70-a, subd 5). Additionally, in an appropriate case, the Task Force may grant immunity to witnesses (Executive Law, § 70-a, subd 6). Nowhere in this broad grant of investigatory power, however, is there any mention of the power to obtain or apply for a search warrant.

The Task Force also has certain prosecutorial powers in an appropriate case (see People v Rallo, 39 NY2d 217). The exercise of this prosecutorial power, however, is contingent upon prior authorization by the Governor together with the approval of the local District Attorney (Executive Law, § 70-a, subd 7). Once such approval is obtained, the Task Force is given the authority of the District Attorney, which would presumably include the power to obtain a search warrant in the course of preparing the authorized prosecution. These provisions, however, are not applicable to the present case, in light of the conceded failure to obtain the requisite approval of the Governor and the District Attorney. Since the prosecutorial powers of the Task Force are not available, the question before us is whether the purely investigatory powers of the Task Force include the power to apply for a search warrant. We hold that they do not.

As is noted above, the powers of the Task Force are established, by statute. The Task Force, as a creature of the State, has no power other than that given it by the Legislature, either explicitly or by necessary implication (see, generally, Matter of Pooler v Public Serv. Comm., 43 NY2d 750, affg 58 AD2d 940). The investigatory authority provided by section .70-a of the Executive Law clearly does not include the power to obtain a search warrant, and such power is not to be implied in light of the limited specific powers which are given. Indeed, the existence of the broad subpoena power which is provided the Task Force militates against a finding of any implied power to obtain a search warrant as well. We would note that in the present case there appears to be no reason why the Task Force could not have obtained the records by subpoena rather than via the more intrusive and less readily challenged mechanism of a search warrant.

In view of the absence of any statutory authority to obtain a search warrant, it is clear that the Task Force lacked the power to make such an application, and thus the court exceeded its jurisdiction in issuing the warrant. Accordingly, the writ of prohibition was properly granted by the Appellate Division. Although it is not necessary for the proper disposition of this case, we would note that the use of a search warrant rather than a subpoena as a part of an investigation not aimed at a particular criminal prosecution would raise questions of constitutional magnitude.

One of the basic rights and values of our society is the right of a free individual to be secure in his or her privacy from unwarranted government intrusion. Such intrusion is exemplified by an unconsented-to entry into one’s home or business and the seizure of one’s property. To limit such intrusions to the greatest possible extent, while at the same time recognizing that the needs of society will at times outweigh the interest of the individual, the Fourth Amendment to the United States Constitution specifically proscribes unreasonable searches and seizures. Thus, any search and seizure must be based on probable cause, and, absent certain exceptional circumstances, must be made pursuant to a warrant issued by a neutral and detached Magistrate (see Coolidge v New Hampshire, 403 US 443). While the question of probable cause is not before us today, we note that no court other than the issuing court has as yet had the privilege of inspecting the application for the search warrant involved in this case. Indeed, the Task Force has resisted petitioners’ attempts to examine the application for the warrant.

Another method of obtaining private and business records is to be found in the subpoena duces tecum. It is somewhat less intrusive than the search warrant, in that it does not authorize the bearer to enter and seize, but instead requires the owner of the sought after property to produce it. Thus, unlike a search warrant, which has immediate and unavoidable coercive power, a subpoena provides an opportunity to challenge it by a motion to quash prior to submitting to the demand of the subpoena. Since a search warrant is a greater intrusion than a subpoena, it has been held by some Federal courts that it is improper to obtain a search warrant when the same result could be obtained by subpoena (Stanford Daily v Zurcher, 353 F Supp 124, affd 550 F2d 464, cert granted 434 US 816), or to use a subpoena as a means of coercing immediate entry and seizure (Matter of Nwamu, 421 F Supp 1361).

Of some interest here is the fact that the material seized was not contraband, nor does it appear to be the fruits or instrumentalities of crime, but rather would at most seem to be some claimed. evidence. Prior to 1966, the Supreme Court had held that a search warrant could not be used to obtain mere evidence (see Gouled v United States, 255 US 298, 309). That doctrine was overruled, however, in Warden v Hayden (387 US 294). In reaching its decision, the Hayden court emphasized the relation between evidence and the government’s interest in convicting criminals (387 US, at p 306, n 11). Indeed, the court declared that "in the case of 'mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction” (387 US, at p 307; cf. CPL 690.10; see Cook, Constitutional Rights of the Accused, Pretrial Rights, § 41). This emphasis on a particular criminal prosecution throws some doubt upon the validity of using a search warrant to obtain material not in conjunction with a particular criminal investigation aimed at prosecution, but rather as a part of a more generalized investigation of alleged organized crime activities. This doubt would seem even greater if a subpoena could be used to obtain the required material.

These questions, however, need not be decided today, in light of our determination that the Task Force lacks the authority to obtain a search warrant as a part of its general investigatory authority.

The judgment appealed from should be affirmed.

Jasen, J.

(dissenting). I cannot agree with the majority’s characterization of the Deputy and Assistant Attorneys-General comprising the Task Force as quasi-judicial officers against whom the extraordinary remedy of prohibition will lie. In reaching its conclusion, the majority relies upon Matter of Dondi v Jones (40 NY2d 8), in which we held that a public prosecutor is a quasi-judicial officer who "under proper circumstances” is subject to prohibition. (Id., at p 13.) In my view, Dondi does not support the broad proposition that a prosecutor is a quasi-judicial officer per se. Rather, it merely recognizes that in exercising his prosecutorial function, a prosecutor, as an officer of the court, acts in a quasi-judicial capacity. This does not mean, however, that a prosecutor acts in a quasi-judicial capacity in exercising all aspects of his office.

In Dondi, prohibition was granted to restrain a Justice of the Extraordinary and Trial Term of the Supreme Court and a Special Prosecutor from trying an indictment accusing the petitioner of criminal conduct. The writ, addressed to both the court and the prosecutor, issued to prohibit the prosecution of the indictment. It was the trial of the indictment — a judicial proceeding — which was restrained, and not a criminal investigation, as here. Significantly, in those instances in which prohibition has been held to lie against a prosecutor, the writ has been addressed to both the court and the prosecutor, and issued to prohibit a criminal prosecution. (See, e.g., Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; Matter of Cirillo v Justices of Supreme Ct., 34 NY2d 990; Matter of Simonson v Cahn, 27 NY2d 1; Matter of Nolan v Court of Gen. Sessions, 15 AD2d 78, affd 11 NY2d 114; but see People ex rel. Luetje v Ketcham, 45 Misc 2d 802 [prohibition issued against District Attorney to prohibit prosecution].)

Today’s case is a far cry from the conduct of the prosecutor prohibited in Dondi. Here, officers of the Task Force, as part of their investigation of petitioner and upon a showing of probable cause, obtained a search warrant for the purpose of obtaining evidence of criminal activity. In investigating whether the petitioners were engaged in criminal activity, prosecutors in the Task Force were not acting in a quasi-judicial capacity, but, rather, in an executive capacity (cf. Toker v Pollak, 44 NY2d 211 [decided herewith]), much the same as a police officer who obtains a search warrant in conjunction with an investigation. Would one classify a police officer under these circumstances as a quasi-judicial officer against whom prohibition would lie? Certainly not. Similarly, until a prosecutor has commenced a criminal prosecution, we should not characterize him as a quasi-judicial officer. Hence, I would hold that the extraordinary remedy of prohibition does not lie to challenge the authority of the Task Force prosecutors in the course of their investigation of criminal activity.

To hold the extraordinary writ unavailable to prohibit the continued custody of petitioners’ records by the Task Force does not deprive petitioners of a remedy to secure the return of their records. The peculiar factual context in which this case comes before us — that is the expiration of almost two years since the Task Force’s seizure of petitioners’ records and the absence of’the commencement of any criminal prosecution against petitioners based upon the records obtained — suggests the applicability of an action in replevin.

As a general rule, replevin cannot be utilized to obtain property seized and held in the custody of the law for the purpose of its introduction at the trial of a pending criminal prosecution. The return of such property cannot be secured until legal custody ceases on the happening of either the conviction or acquittal of the defendant. (Simpson v St. John, 93 NY 363; Lynch v St. John, 8 Daly 142.) Similarly, the legal sufficiency of affidavits upon which issuance of a search warrant is premised cannot be collaterally attacked by means of a replevin action during the pendency of a criminal prosecution. (Meegan v Tracy, 220 App Div 600.)

Designed to prevent interference with a criminal court’s jurisdiction over criminal prosecutions, these limitations on the availability of a replevin action should not be blindly applied. In the present case, an action in replevin would not constitute a collateral attack waged against the sufficiency of the search warrant during the pendency of a criminal prosecution. No interference with the jurisdiction of the criminal courts would result. (Cf. Boyle v Kelley, 42 NY2d 88.)

Critical to my belief that an action in replevin constitutes an appropriate remedy to secure the return of petitioners’ records is the Task Force’s failure, in almost two years since the seizure of petitioners’ records, to have commenced a criminal prosecution against petitioners. Admittedly, replevin should not serve as a device to force prosecutors to make a hasty decision either to commence a criminal proceeding or return property seized pursuant to a search warrant. To the same extent, however, prosecutors should not be permitted to seize property pursuant to a search warrant, review the material, and after the expiration of a reasonable amount of time, neither commence a criminal proceeding nor return the property to the rightful owner. Particularly in a case such as this where the property seized consisted of the petitioners’ business records, the right of the prosecutor to investigate criminal activity must, absent prosecution within a reasonable period of time, give way to the owner’s right to possession of his property.

This is not to say that replevin would have been available to secure the return of petitioners’ records on the date of the commencement of the instant proceeding. Certainly, the expiration of 22 days after the seizure of petitioners’ records by the Task Force is not an unreasonable period to retain property pending a determination whether to prosecute. Nevertheless, because of my belief that prohibition does not lie, as well as the peculiar factual context presented by this case, I am of the opinion that replevin presently constitutes an appropriate procedural vehicle to secure the return of petitioners’ records. I would add further only that, in my view, replevin should be deemed an appropriate remedy in any case in which after the expiration of a reasonable period of time the prosecutor has neither commenced a criminal proceeding nor returned the seized property.

Concerning the inappropriateness of replevin alleged by the majority to exist because of the ability of the Task Force to post an undertaking permitting its retention of petitioners’ business records, I would suggest that this procedure provides the Task Force with no greater right than it would possess in an article 78 proceeding — that is, custody of the records during the pendency of the action.

For these reasons, I would reverse the jugment of the Appellate Division and dismiss the petition.

Chief Judge Breitel and Judges Jones, Wachtler, Fuchs-berg and Cooke concur with Judge Gabrielli; Judge Jasen, dissents and votes to reverse in a separate opinion.

Judgment affirmed, with costs.

      . We would note that in the instant case, the writ is addressed to both the Task Force and to the Judge who issued the initial search warrant as well as the continuing custody order pursuant to which the Task Force retains the seized papers. Moreover, it must be emphasized that the Task Force is a unique organization, one with broad investigatory powers which in some instances exceed the authority of a District Attorney, and which are certainly much greater than a policeman investigating a particular crime. As our subsequent discussion will indicate, the difficulty with the search warrant in this case stems in large part from the fact that the Task Force is not exercising the power exercised by a policeman who investigates a particular crime in the hope of making an arrest which will culminate in a conviction.

      . It is suggested by the dissent that prohibition does not lie in this case because there exists an adequate alternative remedy, namely, replevin. We reject that suggestion for the very reasons given by the dissent in stating that in the typical case replevin would not be an appropriate remedy since it would constitute an unjustified and unacceptable interference with a pending or potential criminal prosecution. The dissent suggests that the present case is distinguishable because the Task Force has had possession of the seized papers for almost two years, and yet no actual criminal prosecution has as yet been commenced, and thus it is unlikely that replevin would interfere with any such action. We note that at the time the present proceeding was commenced, and the plaintiff was faced with the necessity of determining what remedy was available, the seized property had been in the possession of the Task Force for a total of 22 days. Indeed, the attorneys for the Task Force have stated that in light of this proceeding, and the possibility that the search warrant would be deemed invalid, the Task Force has not yet attempted to utilize the papers seized. Thus, applying the reasoning expressed by the dissent, it would clearly appear that replevin was not a proper remedy at the time this proceeding was commenced. We hardly think that the passage of time while the controversy made its way through the judicial system could have an effect on the validity of the underlying proceeding. Additionally, to further illustrate the inappropriateness of the suggested remedy is the fact that the posting of a bond by one holding the property as provided by CPLR 7103, would permit the Task Force to continue to retain possession for some time.