author: Meyer, J.

text:
    Ford Motor Credit Company, Plaintiff, v Hickey Ford Sales, Inc., et al., Defendants. In the Matter of James G. Hoehn et al., Respondents-Appellants, v Ford Motor Credit Company, Appellant-Respondent, et al., Respondent. In the Matter of State Bank of Albany, Respondent, v Ford Motor Credit Company, Appellant-Respondent, et al., Respondent.
    Argued May 7, 1984;
    decided June 7, 1984

      POINTS OF COUNSEL

      Karl H. Schrade for appellant-respondent.
    I. The May 12 and September 23, 1977 orders of attachment obtained by Ford Motor Credit Company validly attached personal and real property of Mary I. Hickey. {Zenith Bathing Pavilion v Fair Oaks S. S. Corp., 240 NY 307; Cohn v Children's Furniture Corp., 133 Mise 151; Rehill v Rehill, 202 Mise 865; Empire State Collateral Co. v Cassell Custards, 29 Mise 2d 505; Potter v Rowland, 8 NY 448; Mechanics Exch. Sav. Bank v Chesterfield, 34 AD2d 111.) II. The Hoehns, as privies of Mary I. Hickey, are estopped from collaterally attacking the validity of the orders of attachment. {Schwartz v Public Administrator, 24 NY2d 65; Downey v Seib, 185 NY 427; Hojverhill v International Ry. Co., 217 App Div 521, 244 NY 582; St. Louis Baptist Temple v Federal Deposit Ins. Corp., 605 F2d 1169; Matter of News-day, Inc. v Ross, 80 AD2d 1.) III. Even if the vacatur of the attachment by the court below is affirmed, strict construction of CPLR article 62 requires a determination that respondents are not entitled to damages. {Valentine Dolls v

      McMillan, 25 Mise 2d 551.) IV. The court below properly reversed Special Term’s award of damages to the Hoehns for emotional trauma, because the record failed to support a cause of action for intentional infliction of emotional distress. {Miller v Stern, 262 App Div 5; Lichter v Interwoven Stocking Co., 234 App Div 204; Silverman v Ufa Eastern Div. Distr., 135 Mise 814; Hauser v Bartow, 273 NY 370.) V. If CPLR 6212 (subd [e]) is construed as allowing damages for emotional distress caused by a wrongful attachment, the Hoehns must prove that their claim meets the elements of a cause of action for intentional infliction of emotional distress, or in the alternative, that Ford acted with actual or legal malice. VI. The dicta in Cullen v Nassau County Civ. Serv. Comm. (53 NY2d 429), which permits an award of damages for emotional distress without requiring plaintiff to prove that defendant acted with intent, is inapplicable to the instant case. {Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72; York Inst, of Technology v State Div. of Human Rights, 40 NY2d 316; Gaynor v Rockefeller, 15 NY2d 120; Valentine Dolls v McMillan, 25 Mise 2d 551.)

      Jed B. Wolkenbreit, Scott W. Bush and Hollie Jaffe for James G. Hoehn and another, respondents-appellants.
    I. The May 12, 1977, order of attachment granted by Judge Robert J. Sise was jurisdictionally defective to attach any property then owned by Mary I. Hickey individually. {Zenith Bathing Pavilion vFair Oaks S. S. Corp., 240 NY 307; Packer v Caesars World, 54 AD2d 676; AMF Inc. v Algo Distrs., 48 AD2d 352.) II. The purported levy against this real property performed by the Sheriff on September 9, 1977, and filed on that day by the Sheriff in the Albany County Clerk’s office became invalid by failure to obtain a confirming order. {Nemetsky v Banque de Developpement de la Republique du Niger, 64 AD2d 694.) III. The decision and order of the lower court is based on a material mistake of fact. IV. The Sise order and the levy upon the Sise order are invalid against Mary Hickey on the ground that the statute upon which it appears to be based was unconstitutional. {Sugar v Curtis Circulation Co., 383 F Supp 643; AMF Inc. v Algo Distrs., 48 AD2d 352.) V. The issue of collateral estoppel is not properly before this court. {Flagg v Nichols, 307 NY 96; Slater v Gallman, 38 NY2d 1; Rice v Ritz Assoc., 58 NY2d 923; Troy Auto. Exch. v Home Ins. Co., 221 NY 58; People u Rodriguez y Paz, 58 NY2d 327; Gramatan Home Investors Co. v Lopez, 46 NY2d 481; Schwartz v Public Administrators, 24 NY2d 65; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11.) VI. Cross appellants are entitled to the damages awarded by the trial court. {Fischer v Maloney, 43 NY2d 553; Murphy v American Home Prods. Corp., 58 NY2d 293; Mitchell v Grant Co., 416 US 600; Cullen v Nassau County Civ. Serv. Comm., 53 NY2d 492.)
    I. There was no allegation sufficient to sustain attachment of the realty of Mary I. Hickey. {Zenith Bathing Pavilion v Fair Oaks S. S. Corp., 240 NY 307; Trigo Hnos. v Premium Wholesale Groceries, 424 F Supp 1118; MacMillan, Inc. v Hafner, 42 AD2d 533; AMF Inc. v Algo Distrs., 48 AD2d 352.) II. The ex parte May 12, 1977 order of attachment and notice was never properly served upon Mary I. Hickey. {Shapiro v Loft, Inc., 142 Mise 144.) III. The notice of attachment of the real property filed September 9,1977 based upon the May 12,1977 order was invalid. {Carey v Sugar, 425 US 73; Trigo Hnos. v Premium Wholesale Groceries, 424 F Supp 1118.) IV. The attachment of the realty of codefendant, Mary I. Hickey, was jurisdic-tionally defective and is subject to collateral attack. {Steuben County Bank v Alberger, 75 NY 179, 83 NY 274.) V. The award of attorneys’ fees to respondents Hoehn and State Bank was proper.
   OPINION OF THE COURT

Meyer, J.

To sustain a warrant of attachment against the property of a defendant, the moving papers must establish both a cause of action and a ground for attachment as to that particular defendant. As to an attachment issued without ground, the owner of the property, though not a party to the underlying action, may, in a proceeding pursuant to CPLR 6212 (subd [e]), recover damages for mental distress upon a showing of actual malice. On the appeal by Ford Motor Credit Company (Ford) there should, therefore, be an affirmance of the Appellate Division’s order of February 10,1981, brought up for review by Ford’s appeal from that court’s order of June 3, 1983. We conclude, however, that there is insufficient proof of actual malice and, therefore, on the cross appeal of the property owners (Hoehns) from so much of the latter order as deleted damages for mental distress, we affirm.

I

In May, 1977, Ford commenced an action against Hickey Ford Sales, Inc. (Sales), Hickey Realty, Inc. (Realty), H.M.S. Rotary, Inc., John F. Hickey and Mary I. Hickey. The first cause of action alleged that Sales had received vehicles from Ford under floor plan financing which it thereafter sold without paying to Ford the purchase price of the vehicles. The second cause of action alleged that the other defendants had executed guarantees to Ford of amounts due by Sales under guarantees waiving notice of nonpayment or protest. On May 12,1977, Ford obtained an ex parte order of attachment on the basis of affidavits alleging that Sales had obtained its credit line fraudulently by representing that it owned equipment of a value in excess of $90,000 when in fact it owned no such equipment, that Realty had received some $200,000 on sale of its real estate and that Realty and John F. Hickey were about to depart the State and remove the proceeds of the real estate closing to the State of Florida. The affidavits made no mention of Mary I. Hickey. The attachment order directed the Sheriff of any county to levy at any time before final judgment upon property within its jurisdiction in which the defendants had an interest. The notice to the Sheriff of Albany County -issued by Ford directed only attachment of personal property, consisting of motor parts and funds.

On August 9, 1977, Ford began a special proceeding, entitled against John F. Hickey and Realty only, to require payment of funds to the Sheriff. Mary I. Hickey was not named as a respondent. By order dated September 23, 1977, Realty and John F. Hickey were directed to pay over the funds in quéstion to the Sheriff and the order of attachment was continued “in full force and effect against all of the respondents” (emphasis supplied).

On September 9, 1977, Ford filed with the Sheriff a notice of attachment of real property, entitled in the original action, purporting to levy on premises located at 17 Pheasant Lane, Menands, Albany County, as property of John F. Hickey and Mary I. Hickey, and that notice was recorded on the same day in the Albany County Clerk’s office. In fact the Pheasant Lane property, which had been in the names of both John and Mary Hickey, had been conveyed to Mary I. Hickey alone on July 30,1971. By deed dated June 5, 1978, Mary Hickey conveyed the property to James G. Hoehn and Barbara K. Hoehn. At the closing a mortgage for $163,000 was executed by the Hoehns to State Bank of Albany (Bank). Because the title search failed to turn up Ford’s notice of attachment, the Hoehns and the Bank took without knowledge of it. Both the deed and the mortgage were recorded on August 16, 1978.

In December, 1978, Ford was granted summary judgment in the original action against all defendants and, after an assessment hearing in June, 1979, obtained a judgment in the amount of $397,955.14. It then delivered to the Sheriff an execution on the Pheasant Lane property and on October 22, 1979, the Sheriff issued a notice of sale at public auction of the property. The Hoehns and the Bank then began separate proceedings pursuant to CPLR 6223 to vacate the attachment and notice of sale. Special Term held the attachment valid and directed that the sale proceed, but, upon the filing of notices of appeal and an undertaking, stayed the sale pending the determination of the appeal.

On appeal the Hoehns and the Bank argued that the attachment was invalid because it was directed only against property of defendants other than Mary Hickey, because the affidavits on the basis of which it was granted set forth no ground for attachment of Mary Hickey’s property, and because it had not been confirmed as required by CPLR 6211 (subd [b]), as revised effective September 1, 1977. The Appellate Division by order dated February 10, 1981, vacated the orders of May 12, 1977 and September 23, 1977, insofar as they purported to be orders of attachment against the Menands property, and remitted for determination of damages pursuant to CPLR 6212 (subd [e]), holding that the May order was based upon a petition which, while it named Mary I. Hickey in its caption, did not ask for an attachment against her property and that the September order was made in a proceeding to which Mary I. Hickey was not a party.

At the subsequent hearing, the Hoehns sought damages for their mental distress in addition to attorney’s fees and costs. They testified to a series of distressing incidents including embarrassment upon first learning of the proposed sale of their home from friends who had seen the public notice, and repeated visits and phone calls from people interested in buying the premises. They also presented testimony of an attorney, conceded to be an expert in real estate matters, that he had advised Ford’s counsel in early October, 1979 that he did not think the attachment against Mary Hickey on the Menands property was valid. Ford’s attorney, called as a witness by the Hoehns and questioned concerning his authorization to take the steps he took on behalf of Ford and whether he had been advised that the attachment was invalid, repeatedly invoked the attorney-client privilege.

Ford argued before Special Term that CPLR 6212 (subd [e]) spoke only of defendants and that, therefore, the Bank and the Hoehns, not having been parties to the original action, could recover nothing under that section. It contended also that damages for mental distress were, in any event, unauthorized either by statute or case law. On the first point, Special Term held itself bound by the remitti-tur. As to damages for mental distress, the court noted that there was evidence of legal, though not of actual, malice, but held' Ford not responsible for malicious acts of its agents which it had not approved or ratified. It ruled, however, in reliance on Cullen v Nassau County Civ. Serv. Comm. (53 NY2d 492), that malice need not be proved to recover damages for mental distress. Its judgment of May 16, 1982, therefore, awarded the Hoehns $5,000 each, in addition to fees and costs incurred, and awarded the Bank its fees and costs incurred in invalidating the attachment.

On Ford’s appeal from the judgments fixing damages, the Appellate Division set forth the reasoning supporting its earlier order that damages for the Hoehns and the Bank be assessed in a CPLR 6212 proceeding, but held that damages for mental distress could be awarded only under the outrageous conduct standard declared in Fischer v Maloney (43 NY2d 553). It, therefore, by its order of June 3, 1983, modified the judgment, on the law and the facts, by deleting the awards of damages for mental distress to the Hoehns, and otherwise affirmed. Justice Levine, concurring in the result, reasoned that mental distress damages could be awarded on evidence of legal malice and without proof of outrageous conduct, but found the record devoid of proof of legal malice.

From the June 3, 1983 order Ford appeals, bringing up for review the earlier nonfinal order of February 10, 1981, which to the extent it invalidated the attachment and directed determination of damages pursuant to CPLR 6212 (subd [e]) necessarily affected the final judgment of May 26, 1982. The Hoehns cross-appeal from the Appellate Division’s deletion of the award to each of them of damages for mental distress. Those appeals present three issues: (1) Was there a valid attachment against the Menands property? (2) Does CPLR 6212 (subd [e]) authorize an .award of damages to persons such as the Hoehns and the Bank, who had an interest in the property attached but were not defendants in the action in which the order of attachment was granted? (3) May damages for mental distress be awarded upon the evidence presented at Special Term? For the reasons that follow, we answer the first and third questions in the negative and the second in the affirmative.

II

The Appellate Division held the attachment invalid as to Mary I. Hickey’s property because, although she was named in the caption of the action and the order granting the attachment, and that order directed levy on “property in which the defendants have an interest” (emphasis supplied), the moving papers asked for an order of attachment against the property of John F. Hickey and Realty only. Without pausing to analyze the correctness of that reasoning, we prefer to put our conclusion of invalidity upon what we regard as a more fundamental ground — the absence from the moving papers of any ground for attachment against Mary I. Hickey’s property.

More than 50 years ago, in Zenith Bathing Pavilion Fair Oaks S. S. Corp. (240 NY 307, 312), we held that “At least as to each [of two or more defendants] there must be evidence that would be sufficient to sustain the warrant if each had been sued separately instead of all of them together.” In that case, it is true, we held the warrant of attachment invalid as to all but one of the defendants because plaintiff’s papers failed to demonstrate the existence of a cause of action against any defendant but that one, but the principle applies as well to the establishment of the ground for attachment. That is both the clear implication of the above-quoted sentence from the Zenith Bathing opinion and the specific requirement of CPLR 6212. Subdivision (a) of that section provides that to obtain an attachment plaintiff “shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action, that it is probable that the plaintiff will succeed on the merits, that one or grounds for attachment provided in section 6201 exist and that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff” (emphasis supplied), and subdivision (e) makes the attaching plaintiff liable for all costs and damages “if it is finally decided that the plaintiff was not entitled to an attachment of the defendant’s property” (emphasis supplied), an issue on which plaintiff has the burden of proof (see CPLR 6223, subd [b]). That the plaintiff must show the existence of a ground for attachment as to each defendant against whom he seeks a warrant necessarily follows (Executive House Realty v Hagen, 108 Misc 2d 986, 988; see Maitrejean v Levon Props. Corp., 45 AD2d 1020). Indeed, to hold that the property of defendant A may be attached solely upon proof that as to defendant B there is ground for attachment would raise serious due process questions (cf. Report of Committee to Advise and Consult with Judicial Conference on Civil Practice Law and Rules, Twenty-Second Ann Report of NY Judicial Conference, 1977, p 249).

Ill

Ford argues that the February 10, 1981 order of the Appellate Division incorrectly remitted for determination of damages under CPLR 6212 (subd [e]) because neither the Hoehns nor the Bank was a defendant in the original action and the subdivision speaks only of an attaching plaintiff’s liability “to the defendant” for an attachment to which plaintiff was not entitled. Why the February 10, 1981 order referred to CPLR 6212 rather than CPLR 6221, which entitles any interested party to seek not only an order of vacatur (see, also, CPLR 6223, subd [a]), but damages as well, is not clear. The two sections are as to recovery of damages in pari materia and to be construed consistently (McKinney’s Cons Laws of NY, Book 1, Statutes, § 221). The more particularly is this so in light of the direction in CPLR 104 that the CPLR be liberally construed to secure the just, speedy and inexpensive determination of civil judicial proceedings, and of CPLR 103 (subd [c]) that such a proceeding shall not be dismissed solely because not brought in proper form. Therefore, the direction in the February 10, 1981 order for determination of damages pursuant to CPLR 6212 presents no basis for our disturbance of the order.

IV

On the Hoehns’ cross appeal, we agree, though on different reasoning, with Special Term’s conclusion that damages for mental distress may be awarded in an action such as this. Cullen v Nassau County Civ. Serv. Comm. (53 NY2d 492, 496, supra), upon which Special Term relied, was a discrimination case and, as we noted in Batavia Lodge No. 196 v New York State Div. of Human Rights (35 NY2d 143, 146): “The extremely strong statutory policy of eliminating discrimination gives the Commissioner of Human Rights Division more discretion in effecting an appropriate remedy than he would have under strict common-law principles.” No similar statutory policy can be discerned here, the Judicial Conference Committee having noted only that the basis for the damage provision contained in CPLR 6212 (subd [e]) was “the fact that attachment is a drastic remedy to be used with care” (Twenty-Second Ann Report of NY Judicial Conference, 1977, p 256).

The question then becomes whether damages for mental distress can be recovered under common-law principles. Although, as the Appellate Division noted, damages for mental distress are not generally available in tort actions (cf. Bovsun v Sanperi, 61 NY2d 219; Kennedy v McKesson Co., 58 NY2d 500), there are exceptions to that rule, of which intentional infliction of such distress by outrageous conduct is one (Murphy v American Home Prods. Corp., 58 NY2d 293, 303). There, thus, is no question but that damages for an attachment procured through such conduct may include recovery for mental distress. However, recovery for mental distress is not limited to situations involving outrageous conduct.

The award of damages under CPLR 6212 and 6221 is governed by the rules of law relating to an action for wrongful attachment. Where, as here, the attachment is void because the papers on which it was issued establish no ground for its issuance, an action may be maintained. Whether the action be denominated for trespass or conversion (Dyett v Hyman, 129 NY 351; Day v Bach, 87 NY 56; Siegel v Northern Blvd. & 80th St. Corp., 31 AD2d 182; see 30 NY Jur 2d 109, Creditor’s Rights & Remedies, § 204) or for malicious prosecution through the wrongful use of civil proceedings (Chappelle v Gross, 26 AD2d 340; see Metromedia, Inc. v Mandel, 21 AD2d 219, affd 15 NY2d 616; Wiener v Wiener, 84 AD2d 814; Restatement, Torts 2d, § 674; 2 NY PJI 810-814), the action is closely akin to malicious prosecution (see Keller v Butler, 246 NY 249, 255; Willard v Holmes, Booth & Haydens, 142 NY 492; Prosser, Torts [4th ed], § 120, p 853). Damages for emotional distress of a kind normally expected to follow from the wrongful action are recoverable in such an action (Halberstadt v New York Life Ins. Co., 194 NY 1, 7; Restatement, Torts 2d, § 681, subd [e]; Prosser, op. cit., p 856). Recovery requires proof not only of lack of probable cause but also of actual, as distinct from legal malice (Nardelli v Stamberg, 44 NY2d 500), i.e., that the defendant acted with an improper motive. Somewhat more latitude as to proof of malice may be permitted than in a malicious prosecution action based upon criminal proceedings, because the plaintiff in a civil action is motivated solely by his own interests (Prosser, op. cit., p 855). Malice may be inferred from awareness that there is no possibility of success of the action taken (Pangburn v Bull, 1 Wend 345, 355).

The evidence in the record is, however, insufficient to establish actual malice on the part of Ford, for it shows no more than that the attachment was issued on its behalf by its attorney. That it acted through 'an attorney tends to show the absence of malice (Hazzard v Flury, 120 NY 223). There were, moreover, not one but two orders of attachment issued in 1977 upon which the 1979 notice of sale was based. That Ford’s attorney was advised prior to sale that another attorney questioned the validity of the attachment is insufficient to establish malice on the part of Ford. Knowledge of its attorney is not necessarily knowledge of Ford, nor would Ford be bound by the attorney’s direction to the Sheriff to proceed with sale, if not authorized, participated in or ratified by Ford (Bowe v Wilkins, 105 NY 322, 331; Clark v Woodruff, 83 NY 518, 525; Brainerd v Dunning, 30 NY 211, 216; Hill v White, 46 App Div 360, 364).

Accordingly, the Appellate Division’s order of June 3, 1983 and the order of February 10, 1981 brought up for review should be affirmed, without costs.

Judges Jasen, Jones, Wachtler, Simons and Kaye concur; Chief Judge Cooke taking no part.

Order appealed from and prior order of the Appellate Division brought up for review affirmed, without costs.

      . Ford’s appeal as of right from the June 3, 1983 order of the Appellate Division brings up for our review those issues pursuant to CPLR 5601 (subd [d]). Not reviewable by us on Ford’s appeal as of right, however, is so much of the judgment of May 26,1982 as fixed the costs and damages to which the Hoehns and the Bank were entitled, because the Appellate Division’s June 3, 1983 order modified by reducing the damages payable by Ford and, thus, the modification was not one by which Ford was aggrieved (CPLR 5601, subd [a]; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5601.25, p 56-52).

      . Ford also argues for the first time before us that the Hoehns, as privies of Mary I. Hickey, are collaterally estopped from attacking the validity of the attachment. That argument was, however, waived by failure to raise it by motion or in the answer (CPLR 3211, subd [e]; see CPLR 3018, subd [b]) and in any event cannot succeed because, as hereafter indicated, Mary I. Hickey is not foreclosed from attacking the validity of the attachment.

      . That she later appeared to defend the action did not validate the attachment, which was not sought to obtain jurisdiction but to prevent removal of property from the State (Shapiro v Loft, Inc., 142 Misc 144; 11 Carmody-Wait 2d, NY Prac, § 76:158, p 605).

      . Other cases holding that a warrant of attachment must be vacated if plaintiff’s papers fail to establish a prima facie cause of action or establish that plaintiff must ultimately be defeated are: American Reserve Ins. Co. v China Ins. Co. (297 NY 322, 325); Stines v Hertz Corp. (22 AD2d 823, affd 16 NY2d 605); Packer v Caesars World (54 AD2d 676); AMF Inc. v Algo Distrs. (48 AD2d 352).

      . No issue is raised on Ford’s appeal as to the applicability of the concluding sentence of CPLR 6212 (subd [e]), which finds no parallel in CPLR 6221.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Roger C. Smith, Appellant.
    Argued May 9, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      James F. Greenwald for appellant.
    I. Defendant’s right to counsel had attached before his statement was taken. (.Matter of Ella B., 30 NY2d 352; Matter of Vance A., 105 Mise 2d 254; People v Steele, 113 Mise 2d 658; Matter of Madeline G. v David R., 95 Mise 2d 273; Matter of Marilyn H., 106 Mise 2d 972; Matter of Shalom S., 88 AD2d 936; People v Settles, 46 NY2d 154; People v Blake, 35 NY2d 331; Kirby v Illinois, 406 US 682; People v Skinner, 52 NY2d 24.) II. Under the circumstances of this case, defendant did not voluntarily and intelligently waive his right to counsel. CMiranda v Arizona, 384 US 436; People v Woodard, 64 AD2d 517.)

      Richard A. Hennessy, Jr., District Attorney {John A. Cirando and Michael P. Marmor of counsel), for respondent.
    I. The right to counsel did not indelibly attach and the statement was properly deemed admissible. {People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Donovan, 13 NY2d 148; People v Cunningham, 49 NY2d 203; People v Skinner, 52 NY2d 24; People v Hopkins, 58 NY2d 1079; People v Johnson, 55 NY2d 931; People v Claudio, 59 NY2d 556; People v Settles, 46 NY2d 154; People v Wilson, 56 NY2d 692.) II. Defendant’s statement was a result of his knowing and voluntary waiver of his rights. {People v Hopkins, 58 NY2d 1079; People v Anderson, 42 NY2d 35; Clewis v Texas, 386 US 707; People

      v Leonard, 59 AD2d 1; People v Buxton, 44 NY2d 33; Miranda v Arizona, 384 US 436; People v Swift, 32 AD2d 183, 396 US 1018; People v Campbell, 81 AD2d 300; North Carolina v Butler, 441 US 369; People v Norris, 75 AD2d 650.)
   OPINION OF THE COURT

Meyer, J.

A child abuse or neglect proceeding under article 10 of the Family Court Act is a civil proceeding for the protection of the child alleged to be abused or neglected. Notwithstanding the requirement of section 262 of the Family Court Act that when the person named in such a petition first appears in court the Judge shall before proceeding advise him or her of the right to counsel, the filing of such a petition is neither the initiation of a criminal proceeding nor such significant judicial activity in relation to a criminal proceeding as will trigger the person’s right to counsel with respect to a criminal charge arising from the same facts. When interrogated by police investigating the potential criminal charges, such a person may waive the right to counsel in the absence of counsel, provided that Miranda warnings, if required by the circumstances of the interrogation, are properly given and that the person has not in fact retained counsel in relation to the neglect proceeding. The order of the County Court should, therefore, be affirmed.

I

On October 19, 1982, Donald Corey, stepson of defendant, Roger Smith, and son of Sarah Smith, was removed from the Smith home under an order signed by a Judge of the Family Court, Onondaga County, and placed in the temporary custody of the Department of Social Services, Children’s Division, a child protective agency of the State. The order appears to have been based upon a visit to the Smith home by persons from the Child Protection Division and a policeman on October 18,1982, during which bruises were observed on Donald’s buttocks. On October 20, 1982, a summons was issued requiring Roger Smith to show cause in Family Court on October 27, 1982 why Donald should not be adjudicated a neglected child and Roger Smith should not be dealt with in accordance with article 10 of the Family Court Act, and a neglect petition was filed alleging that Roger Smith had beaten Donald Corey on and about the buttocks, with his hand and a belt, causing numerous bruises. On October 21,1982, Investigator Scott Dunseath of the Syracuse Police Department’s Child Abuse Unit, having been called to the foster home in which Donald had been placed by Child Protective Services, first interviewed Donald and then proceeded to the Smith home.

Roger Smith not being at home, Investigator Dunseath left his card. Before returning Dunseath’s call, Smith called Carolina Miccio, a family counselor in the employ of the county (but having no relation with the Family Court or the Police Department), with whom both parents had previously consulted. Ms. Miccio was present during Officer Dunseath’s interview of Roger Smith and testified that she had told him to tell the truth and went over the statement with him to be sure he understood it. Although Smith was not then in custody, Miranda warnings were administered and he stated that he understood them and was willing to make a statement without an attorney. A statement was then taken by Dunseath in affidavit form, signed by Smith and witnessed by Miccio, in which Smith admitted that on October 13, 1982, he had spanked Donald because he wet himself, but did not think he had done so hard enough to cause bruises, although he admitted seeing a bruise like a handprint on Donald’s buttocks on October 18. After making the statement Smith was charged with assault, third degree, and served with an appearance ticket returnable in the Criminal Division of Syracuse City Court on October 28, 1982.

After a hearing on Smith’s motion to suppress, City Court found the statement to have been made voluntarily but nevertheless granted the motion to suppress, holding the Family Court proceeding and the criminal investigation and charge so interrelated that defendant Smith could not be questioned without counsel once the “accusatory step” of the Family Court proceeding had been taken.

On appeal to the County Court, that court agreed that the statement had been voluntarily made, but reversed on the law and the facts and remitted the matter for trial. It held that the Family Court proceeding being civil in nature, the criminal proceeding not having commenced at the time Smith was questioned, Smith not having at that time obtained counsel in the Family Court proceeding, and Miranda warnings having been administered and understood, there was no violation of defendant Smith’s right to counsel. The matter is before us by leave of a Judge of this court. We agree with County Court that there was no violation of Smith’s right to counsel and, therefore, affirm its order.

II

Indelibly clear from the provisions of article 10 of the Family Court Act are the separate and civil nature of proceedings under that article. Section 1011 declares the purpose of the article to be “to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being” as well as to determine “when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met” (Emphasis supplied.) Subdivision (b) of section 1013 declares that, “For the protection of children, the family court has jurisdiction over proceedings under this article notwithstanding the fact that a criminal court also has or may be exercising jurisdiction over the facts alleged in the petition or complaint.” Subdivisions (a) and (b) of section 1014 permit the transfer of a Family Court proceeding to an appropriate criminal court and the transfer of a criminal complaint to the Family Court, subdivision (c) of that section states explicitly that, “Nothing in this article shall be interpreted to preclude concurrent proceedings in the family court and a criminal court”, and subdivision (d) permits the Family Court in a hearing under the section to grant only use immunity to the respondent or potential respondent (see Matter of Vance A., 105 Misc 2d 254), rather than the transactional immunity which under CPL article 50 may be granted by the court in a criminal proceeding.

The recognition in section 262 of the Family Court Act of the right to counsel of the respondent in an article 10 proceeding does not alter the situation. It is, rather, a recognition that due process and equal protection require the assistance of counsel when rights and interests as fundamental as those involved in the parent-child relationship are at stake (Matter of Ella B., 30 NY2d 352, 356-357). True, both the opinion in Ella B. (id., at p 356) and section 261 of the Family Court Act refer to “the possibility of criminal charges,” but section 262 speaks only to the right to counsel in Family Court proceedings and, although the right to assignment of counsel recognized in Ella B. has since January 1, 1976 been incorporated in its provisions, nothing in it, or elsewhere in the Family Court Act, suggests a legislative intent to impose a statutory requirement that counsel be provided prior to respondent’s appearance in the Family Court proceeding or to affect the investigatory process related to criminal charges arising out of the same facts.

Ill

Defendant fares no better when the matter is examined in light of the right to counsel contained in section 8 of article I of the State Constitution. He does not contend that he did not receive or understand Miranda warnings. Both courts below have, moreover, found his statement to have been given voluntarily, which puts that issue beyond our review, there being support in the record for such a finding (People v Hopkins, 58 NY2d 1079). His rights under our Constitution have not been violated, therefore, unless when the statement was taken his right to counsel in the criminal proceeding had attached and could not be waived in the absence of counsel.

Although Investigator Dunseath concededly was aware of the Family Court proceeding at the time he took defendant’s statement, it is also conceded by defendant that at that time he had not appeared at Family Court and had no attorney, retained or assigned, in relation to that proceeding. This is not a matter, therefore, such as People v Skinner (52 NY2d 24) and People v Steele (113 Misc 2d 658) in which the police questioned a suspect not in custody about an investigation in relation to which the police were aware that he had counsel. It is, rather, closer to People v Kazmarick (52 NY2d 322) in which we held that police knowledge of a pending separate proceeding against the person questioned cannot charge them with any more information than would have been revealed had the police made reasonable inquiry concerning whether the person in fact had counsel on the separate charge.

Defendant would distinguish Kazmarick, as did the City Court Judge, on the ground that it concerned an unrelated charge, whereas in the present case the criminal charge and the Family Court proceeding arise from the same facts and are not only related but “inextricably interwoven.” The quoted phrase comes from People v Townes (41 NY2d 97, 104), which involved a defendant interviewed in a detention facility where he was being held on a criminal charge on which he had been arraigned and indicted and for which he had been assigned counsel. The related proceeding there involved was defendant’s police brutality complaint to the Civilian Complaint Review Board, as to which defendant was interviewed by a police officer assigned to investigate such complaints. There is similarity between that case and this only in that each concerns related criminal and civil proceedings. In all other respects the situations differ. In Townes the statement, although it necessarily involved discussion of the crime with which defendant was charged, was taken in the civil proceeding. It was taken, moreover, after the police were aware that defendant had been arraigned and had an attorney in the criminal proceeding, sufficiently so that the interviewing officer advised defendant of his constitutional rights even though it was his voluntary complaint in the disciplinary proceeding on which his statement was being taken. Here, defendant had no attorney in either proceeding and had only been served with a summons and petition in the civil proceeding when the officer investigating the criminal charge asked to interview him and obtained affirmative responses to Miranda warnings before conducting the interview. The statement taken, thus, would not have been suppressible had no Family Court proceeding been begun at the time Investigator Dunseath took it. That the Family Court summons and petition had been served when the statement was taken, whatever its effect, if any, upon use of the statement in the Family Court proceeding, should not proscribe its use in the criminal proceeding simply because both proceedings arose from the same factual situation.

Nor is there basis for such proscription in the reasoning upon which our prior right to counsel opinions have been based. True, we have held that the right to counsel attaches when there has been significant judicial activity, even though that activity precedes the formal commencement of criminal prosecution (People v Coleman, 43 NY2d 222 [order requiring a person’s appearance in a lineup]; People v Sugden, 35 NY2d 453 [order authorizing the taking of a person, incarcerated for an unrelated crime, to the scene of a crime]). But those cases as well as those involving more formal procedures such as the filing of a felony complaint (People v Samuels, 49 NY2d 218) or an indictment (People v Blake, 35 NY2d 331) have all concerned “ ‘adversary judicial criminal proceedings’ ” (People v Blake, supra, at p 340, quoting from Kirby v Illinois, 406 US 682, 689 [emphasis supplied]). Defendant points to none, and we have found none, holding that judicial activity civil in nature triggers the right to counsel.

The situation is no different if we assume that defendant’s right to counsel had attached by reason of the Family Court proceeding, for there is a clear distinction between cases in which by reason of the commencement of formal criminal proceedings a defendant’s right to counsel has “indelibly attached” and can be waived only in the presence or with the concurrence of counsel (People v Yut Wai Tom, 53 NY2d 44; People v Samuels, 49 NY2d 218, 222, supra; People v Rogers, 48 NY2d 167; People v Settles, 46 NY2d 154) and those in which significant judicial activity prior to formal commencement of a criminal proceeding establishes a right to counsel which may be waived in the absence of counsel retained with respect to an unrelated charge, provided only the waiver is voluntarily and intelligently made (People v Coleman, 43 NY2d 222, supra; see People v Samuels, 49 NY2d 218, 222, supra; People v Settles, 46 NY2d 154, 166, supra; People v Lloyd Winston G., 45 NY2d 962, 964, n). The distinction turns on the conception that the presence of counsel in the unrelated proceeding does not immunize a suspect from investigation of other criminal activity, as to which he, being unrepresented and not yet formally charged, can waive his right to counsel without the presence or concurrence of counsel (People v Coleman, 43 NY2d, at pp 226-227; People v Samuels, 49 NY2d, at p 222; People v Settles, 46 NY2d, at pp 165-166).

Defendant would distinguish the Coleman line of cases on the ground that the Family Court proceeding and the criminal assault charge are related, being based upon the same facts. Recognizing the factual relationship, we nevertheless conclude that the Coleman rationale applies. Not only is the Family Court proceeding civil in nature and one in which defendant’s statutory right to counsel had not matured by the appointment of counsel when he was interrogated on the criminal charge, but also the two proceedings have wholly different purposes. The Family Court proceeding seeks to protect the infant from future abuse by removing him or her from the parental home; the criminal action, to punish the parent for abuse inflicted in the past. It would unduly limit the investigatory function of the police with respect to a potential criminal charge of child abuse to hold that the parent’s right to counsel on the criminal charge indelibly attaches upon service of the Family Court petition. This is not a situation in which the People have used interrogation in the Family Court proceeding impermissibly to extract admissions concerning the criminal proceeding (cf. People v Miller, 54 NY2d 616; People v Ermo, 47 NY2d 863) or interrogated defendant in the criminal proceeding at a stage of that proceeding or in a manner which infringes his constitutional right to counsel (People v Wilson, 56 NY2d 692). The policy considerations involved in the prompt commencement of Family Court proceedings for the protection of an allegedly abused infant while not unduly restricting the investigation of the possible criminal charge militate against acceptance of the rule for which defendant contends (cf. People v Hawkins, 55 NY2d 474).

For the foregoing reasons, the order of the County Court should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Simons and Kaye concur.

Order affirmed.

      . Lower courts that have considered the question in other contexts have held article 10 proceedings of the Family Court Act to be civil in nature (Matter of Patricia P., 117 Misc 2d 826; Matter of Diane B., 96 Misc 2d 798; see Matter of Maureen G., 103 Misc 2d 109; cf. People v Steele, 113 Misc 2d 658).

      . The giving of Miranda warnings was apparently an excess of caution on Dun-seath’s part, for defendant was not then in custody (see People v Rowell, 59 NY2d 727; Matter of Kwok T., 43 NY2d 213; People v Rodney P., 21 NY2d 1).

      . The importance of the order is underscored by our later holding in People v Hawkins (55 NY2d 474) that the presence of counsel is not required at an investigatory lineup even though the suspect requests counsel and that a lineup need not necessarily be delayed for the presence of counsel even though the authorities are aware that the suspect has counsel.


author: Chief Judge Cooke.

text:
    The People of the State of New York ex rel. Eddie McGee, Respondent, v Wilson E. J. Walters, as Superintendent of the Ossining Correctional Facility, et al, Appellants.
    Submitted March 29, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General {Joyce M. Andren and Peter H. Schiff of counsel), for appellants.
    I. The report of violation of parole was correctly received into evidence under the business records exception to the hearsay rule. {Palmer v Hoffman, 318 US 109; Morrissey v Brewer, 408 US 471; People v Foster, 27 NY2d 47.) II. The record of the final revocation hearing contained sufficient evidence to support the finding that respondent violated his parole.

      Corinne Edelbaum for respondent.
    I. The report of violation of parole is an accusatory instrument and cannot be characterized as a business record. {Morrissey v Brewer, 408 US 471; Lichtenstein u Montefiore Hosp. & Med. Center, 56 AD2d 281.) II. There was insufficient evidence to sustain any violation of parole. {People ex rel. Wallace v State of New York, 70 AD2d 781; People ex rel. Warren v Mancusi, 40 AD2d 279; Morrissey v Brewer, 408 US 471; People ex rel. Gambino v Warden, 43 AD2d 400; People ex rel. Walker v Hammock, 78 AD2d 369; People ex rel. Gaskin v Smith, 55 AD2d 1004.)
   OPINION OF THE COURT

Chief Judge Cooke.

Generally, a parolee has due process and statutory rights to confront adverse witnesses whose statements are offered at a parole revocation hearing. Although these rights embrace a strong preference for face-to-face confrontation and cross-examination, a hearing examiner may, nevertheless, upon a specific finding of good cause, permit the introduction of adverse hearsay statements without affording the parolee an opportunity to confront their declarant. Any determination that dispenses with the need for confrontation requires consideration of the rights’ favored status, the nature of the evidence at issue, the potential utility of cross-examination in the fact-finding process, and the State’s burden in being required to produce the declarant. In the present matter, no reason was proffered that would, in itself, constitute good cause to dispense with relator’s right to confront his parole officer, nor did the hearing examiner engage in this balancing process or make a specific finding of good cause. Therefore, permitting introduction of a parole violation report, under these circumstances, without granting relator an opportunity to cross-examine its author improperly deprived relator of his right to confront adverse witnesses.

Relator’s parole was revoked on the basis of his failure to report to his parole officer, as required under the terms of his parole, on July 9, 1980 and on all subsequent dates up to December 3,1980, the day on which a violation of parole report issued. The report was prepared by relator’s parole officer, but that officer left the employ of the Division of Parole prior to the holding of the parole revocation hearing. The report was introduced and the foundation for it was laid by relator’s then current parole officer, who had no personal knowledge of the matters reported. The hearing officer permitted the report to be admitted, under the business records exception to the hearsay rule. This report formed the sole basis of the administrative determination that relator’s parole should be revoked.

In this proceeding, Supreme Court granted a writ of habeas corpus, holding that the parole violation report was improperly admitted as a business record. The court also found that relator’s due process right was violated because he was accorded no opportunity to cross-examine the officer who prepared the report and who possessed' personal knowledge of the alleged violations. The Appellate Division affirmed on the ground that the report was improperly admitted as a business record.

The courts below erred in holding that the parole violation report was inadmissible as a business record. They reasoned that the report was not made within a reasonable time of the acts recorded: relator first failed to appear before his parole officer in July, 1980 and the report was not prepared until December, 1980. Under CPLR 4518, a document may be admitted as a business record, if it is established that “it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” At issue on this point is only whether the report was made “within a reasonable time” after the alleged failure of relator to appear before his parole officer.

Under the terms of his parole, relator was to report to his parole officer every two weeks. The instant report alleged that relator had failed to report at every required time after and including July 9,1980. Thus, there being a continuing violation of the terms of parole up to the time that the report was prepared, there was substantial evidence in the record to support a conclusion that the report was made within a reasonable time of the occurrence of the violation and the report could, properly, be admitted as a business record.

Although this evidence would be sufficient to sustain the determination to revoke relator’s parole, habeas corpus relief was properly granted to relator based on the alternative ground found by the Supreme Court. In his petition for a writ, there were alleged “violations of relator’s fundamental constitutional and statutory procedural rights” at the final revocation hearing. In the affirmation accompanying the petition, relator’s attorney noted that, although the parole officer who had prepared the report was not present at the hearing, no finding was made that he was unavailable to testify; it was stated only that he was no longer employed by the Division of Parole. At the hearing itself, an objection was made to the admission of the report because its author was “not subject to cross-examination as to those statements.”

The United States Supreme Court, in Morrissey v Brewer (408 US 471, 488-489), set forth the “minimum requirements of due process” that must be accorded a parolee at a final parole revocation hearing. Included is “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)” {id., at p 489 [emphasis supplied]). This right has been codified in this State (see Executive Law, § 259-i, subd 3, par [f], cl [v]).

The right to confrontation is not absolute, however, even in a criminal trial (see Ohio v Roberts, 448 US 56, 62-63; Mancusi v Stubbs, 408 US 204, 213-216). In Morrissey, the Supreme Court took pains to emphasize that “there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense” (408 US, at p 489). In a parole revocation hearing “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial” (Morrissey v Brewer, 408 US, at p 489).

The importance of the right to confront adverse witnesses at parole revocation hearings should, nevertheless, not be underestimated or ignored. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” (Goldberg v Kelly, 397 US 254, 269.) A rule securing a parolee’s right at a parole revocation hearing to confront witnesses who would relate adverse information is grounded in part on the principle that the fact-finding process is enhanced when the recollections of the witness may be tested and his or her demeanor may be evaluated through cross-examination (cf. Ohio v Roberts, 448 US 56, 63-65, supra).

In deciding whether confrontation is required, a hearing officer should consider not only the preference for confrontation, but also whether, under the circumstances, confrontation would aid the fact-finding process, and the burden which would be placed on the State in producing the witness. When, for example, otherwise admissible evidence is merely cumulative or its substance is objective factual material compiled under circumstances indicating it to be inherently reliable, no undue burden should be placed on the State by requiring it to produce the declarant. No precise formula may be devised to determine when the State should be permitted to introduce statements in the absence of the declarant. Rather, a careful weighing is required in each case, and any finding of good cause to dispense with the need for confrontation must be specifically stated so that it may be subjected to meaningful appellate review.

In the matter now under review, the State’s only proffered reason for dispensing with the need to produce the officer who had prepared the subject report was that he was no longer employed by the Division of Parole. In determining that the report would be admitted notwithstanding the preparer’s absence, the hearing officer did not consider general policies favoring confrontation, the objective or subjective nature of the contents of the particular report, the potential assistance that cross-examination of the parole officer would lend to the fact-finding process, whether the evidence was cumulative, or what burden would be entailed in requiring that the parole officer be made available to testify. Indeed, the hearing officer made no specific finding of good cause to dispense with the production of the witness whose statements comprised the only evidence offered by the State. In the absence of such a specific finding, as is required by Morrissey, a due process violation must be presumed.

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

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, without costs.


text:
    In the Matter of Grand Jury Subpoena Served Upon Bekins Record Storage Co., Inc. Petitioner A et al., Appellants; Robert M. Morgenthau, as District Attorney of New York County, Respondent.
    Argued May 8, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      Andrew M. Lawler, Adam B. Gilbert, Milton S. Gould, Andrea B. Feller and Anne T. Vitale for appellants.
    I. The courts below erred in holding that Document Nos. 17, 93, 95, 99, 102, 103, 104 and 152, created and/or executed by petitioners and given to an attorney for the purpose of obtaining legal advice, are not within the scope of the Fifth Amendment privilege against self-incrimination. (Schmer-ber v California, 384 US 757; Fisher u United States, 425 US 391; Beilis v United States, 417 US 85; United States v White, 322 US 694; Boyd u United States, 116 US 616; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66; United States v Davis, 636 F2d 1028, 454 US 862; Wilson v United States, 221 US 361; Matter of Katz, 623 F2d 122.) II. Document Nos. 36, 98, 121 and 148 are immune from compelled disclosure under the attorney-client privilege. (Upjohn Co. v United States, 449 US 383; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Horowitz, 482 F2d 72,414 US 867,1052; United States v Kovel, 296 F2d 918; Matter of Jacqueline F., 47 NY2d 215; People v Beige, 59 AD2d 307; Matter of Vanderbilt [Rosner — Hickey], 57 MY2d 66.)

      se.

    I. The courts below correctly ruled that Document Nos. 17, 93, 95, 99, 102, 103, 104 and 152 must be produced. Document No. 93 would not even have been privileged by the Fifth Amendment in an appellant’s hands, and all of the documents were transferred to the attorney outside the scope of the attorney-client privilege. (Fisher v United States, 425 US 391; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66; United States v White, 322 US 694; Matter of Jacqueline F., 47 NY2d 215; Matter of Priest v Hennessy, 51 NY2d 62; Rosseau v Bleau, 131 NY 177; People v Beige, 59 AD2d 307; Finn v Morgan, 46 AD2d 229; United States v McDonald, 313 F2d 832; Matter of Levin-sky, 23 AD2d 25.) II. The court below correctly ruled that Document Nos. 36, 98,121 and 148 must be produced; none of these documents is protected by the attorney-client privilege. (People v Burrows, 46 NY2d 957; Matter of Priest v Hennessy, 51 NY2d 62; United States v Kovel, 296 F2d 918.)
   OPINION OF THE COURT

Chief Judge Cooke.

A client cannot assert the attorney-client privilege as to documents in the lawyer’s possession if they were not prepared for litigation or for the purpose of seeking or imparting legal advice and they are not otherwise subject to a privilege against disclosure. The mere circumstance that the documents were revealed in confidence to a lawyer does not of itself transform the papers into privileged communications. Thus, with the exception of one document, the courts below correctly refused to quash the Grand Jury subpoena as to the documents now before this court.

In 1982, a New York County Grand Jury was impaneled to investigate allegations of fraud in the negotiation of multimillion dollar loans made by a major New York bank. Among the targets of the Grand Jury’s investigation were two individuals, identified here as petitioners “A” and “B”. The Grand Jury eventually issued a subpoena to Bekins Record Storage Co., which was the repository of files of a law firm, identified here as “C & D,” which had represented the petitioners. The subpoena directed the production of all files relating to the firm’s representation of petitioners A and B.

The law firm and the individuals were notified of the subpoena and given an opportunity to review the files before they were examined by the Grand Jury or persons in respondent’s office. Petitioners moved to quash the subpoena, asserting that the papers were variously immune from disclosure as attorney’s work product, as protected by the attorney-client privilege, or as subject to the Fifth Amendment protection against self-incrimination. While the matter was pending, the parties attempted to work out their differences, which resulted in petitioners’ withdrawal of their objections to a large number of documents.

The remaining papers were submitted to Supreme Court for an in camera examination. After this review, petitioners’ motion was granted as to the documents in 19 files and the remainder were ordered disclosed. Petitioners appealed, focusing on 18 documents only. The Appellate Division quashed the subpoena as to two documents and otherwise affirmed.

On this appeal, petitioners have further restricted their opposition to disclosure to 12 documents. Eight of the documents are assertedly protected from disclosure because, if they were still in the clients’ possession, their surrender would implicate the Fifth Amendment protection against self-incrimination. The remainder are claimed to be exempt from disclosure under the attorney-client privilege.

Petitioners’ first argument derives from the general rule that documents, which would be protected from disclosure while in a client’s possession, will not be subject to release if they are transferred to a lawyer under circumstances giving rise to an attorney-client relationship (see Fisher v United States, 425 US 391, 403-405; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66, 76; 3 Jones, Evidence [6th ed], § 21:16, p 789; McCormick, Evidence [2d ed], § 89, pp 184-185; 8 Wigmore, Evidence [McNaughton rev, 1961], § 2307, pp 591-594). Petitioners claim that the contents of Document Nos. 17, 93, 95, 99, 102, 103, 104, and 152 would tend to incriminate them and thus are privileged, and, by virtue of the documents having been passed to their attorney in confidence for legal advice, this privilege may be asserted by the C & D law firm.

Petitioners assert only their Federal right against self-incrimination. The Supreme Court has recently ruled that this right does not extend to the contents of business papers that were not created under government compulsion (United States v Doe, 465 US _, 104 S Ct 1237). Of course, we are bound by that interpretation and, hence, petitioners’ Fifth Amendment claim must fail.

In so ruling, this court is aware of the concern that responding to a subpoena and authenticating documents may itself be compelled, incriminating testimony. That, however, is essentially a factual determination (see id., 465 US, at p _, 104 S Ct, at pp 1242-1243; Fisher v United States, 425 US 391, 410, supra; People v Copicotto, 50 NY2d 222, 228-229). Except for one conclusory comment in an affidavit describing certain documents that “the statements below may have the effect of authenticating certain documents,” nothing in the record reflects that petitioners raised the claim that merely responding to the subpoena would involve a violation of the Fifth Amendment. Thus, were the issue argued here by petitioners, it would be deemed unproven or, alternatively, resolved against them as an affirmed finding of fact. No other ground for holding the documents privileged in petitioners’ hands having been presented, the motion to quash as to these first eight documents was properly denied as no greater protection could be obtained by turning the documents over to their attorney.

As to the remaining four documents, petitioners claim these are communications protected by the attorney-client privilege. The essence of that privilege is that “evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment” shall not be disclosed without the client’s permission (CPLR 4503, subd [a]). The communication must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose (see Matter of Priest v Hennessy, 51 NY2d 62, 68-69; People v Belge, 59 AD2d 307, 308-309). Conversely, one who seeks out an attorney for business or personal advice may not assert a privilege as to those communications (see People v Belge, supra; 3 Jones, Evidence [6th ed], § 21:10; McCormick, Evidence [2d ed], § 88, pp 179-181).

The disposition as to two of the documents before the court is arrived at readily. There is an affirmed finding of fact, which has record support, that the information in Document No. 36 was conveyed to an attorney at C & D law firm while he was acting in a capacity as a commercial consultant. Similarly, there is such an affirmed finding that Document No. 148 was a communication unrelated to legal advice. As such, these are not communications made to the lawyer in the course of his “professional employment” and fall outside the scope of the privilege.

Document No. 98 is a contract executed by petitioners on behalf of two corporations. Supreme Court declined to hold this and others privileged on the ground that “an executed legal document purports to establish rights or to impose liabilities enforceable in the public domain”, so that “[t]he parties * * * have waived any continued expectation of confidentiality with respect to the contents thereof” (118 Misc 2d 173, 184). This is an intriguing concept that this court need not reach, for the absence of any privilege can be determined according to settled principles.

Petitioners contend that Document No. 98 is privileged because it was negotiated in confidence with their mutual attorney at C & D law firm and the contract has never been revealed to outsiders. Although superficially attractive, this. contention overlooks a fundamental point. A completed contract is a communication between the contracting parties — the clients. Whatever privilege may attach to a party’s discussions with the attorney during negotiations (see Root v Wright, 84 NY 72, 76), the contract itself is not a confidential communication made by client to attorney and cannot come within the privilege.

Document No. 121 is a letter from petitioner A to his attorney, relating the results of settlement negotiations that the client had been pursuing. This letter, which has not been revealed outside the attorney-client relationship, is the classic situation of the discussion by a person of a matter under litigation with his or her attorney. This document, therefore, should be protected from disclosure.

Accordingly, the order of the Appellate Division should be modified by quashing the subpoena as to Document No. 121 and, except as so modified, affirmed, with costs to respondent.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to respondent.


author: Simons, J.

text:
    In the Matter of Gerald Stern, as Administrator of the State Commission on Judicial Conduct, Appellant, v Robert M. Morgenthau, as District Attorney of New York County, Respondent.
    Argued April 30, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      Gerald Stern, pro se, and Jean M. Savanyu for Gerald Stern, appellant.
    Section 45 of the Judiciary Law requires that Commission records requested by a Grand Jury’s subpoena duces tecum remain confidential and not be provided to the Grand Jury. (United States v Calandra, 414 US 338; Matter of New York State Dept, of Taxation & Fin. vNew York State Dept, of Law, Statewide Organized Crime Task Force, 44 NY2d 575; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Investigation of Criminal Abortions in Kings County [Magelaner], 286 App Div 270, 309 NY 1031; People v McAlpin, 50 Mise 2d 579; Matter of Grand Jury Investigation, 59 NY2d 130; People v Wedelstaedt, 77 Mise 2d 918; Matter of Wood v Hughes, 9 NY2d 144; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66.)

      The Grand Jury has broad investigative powers, particularly with respect to the misconduct of public servants, and there is no reason to believe that the Legislature intended to limit that power by enacting subdivision 10 of section 44 and section 45 of the Judiciary Law. CPeople v Stern, 3 NY2d 658; Virag v Hynes, 54 NY2d 437; People ex rel. Livingston v Wyatt, 186 NY 383; Branzburg v Hayes, 408 US 665; Blair v United States, 250 US 273; People v Ryback, 3 NY2d 467; Matter of New York State Dept, of Taxation & Fin. v New York State Dept, of Law, Statewide Organized Crime Task Force, 44 NY2d 575; Matter of Grand Jury Subpoenas [Morgenthau], 58 AD2d 1; People v Doe, 84 AD2d 182; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66.)
   OPINION OF THE COURT

Simons, J.

The issue presented is whether a Grand Jury, acting in furtherance of a lawful investigation involving two Judges, may subpoena confidential records of the State Commission on Judicial Conduct developed during an investigation into conduct of the Judges. Petitioner, the Administrator of the Commission, received such a subpoena from respondent, the District Attorney of New York County, and moved to quash it. Supreme Court denied the motion and the Appellate Division affirmed, without opinion. There should be a reversal. The Legislature has the power to exempt certain records from Grand Jury scrutiny notwithstanding the nonimpairment clause of the Constitution (see Matter of Beach v Shanley, 62 NY2d 241) and it has exercised that power with respect to confidential records of the State Commission on Judicial Conduct (Judiciary Law, § 44 et seq.).

This proceeding arose after a Grand Jury was convened in 1983 to investigate whether the crimes of bribery, bribe receiving and conspiracy had occurred during the course of a civil action in New York County. Upon learning that the Commission was also investigating the incident, the District Attorney requested its files. To assist the Commission, he obtained an order pursuant to CPL 190.25 (subd 4) and provided the Commission with a summary of that evidence to aid in its assessment of his request. After examining the summary and reviewing its files, the Commission denied the request, advising him that it had no reasonable basis to determine that any allegation or other matter in its files warranted criminal proceedings (see Judiciary Law, § 44, subd 10). The District Attorney then issued a subpoena addressed to petitioner demanding production of all complaints,- correspondence, letters, investigative reports and transcripts, in sum, the Commission’s entire file on the matter. This proceeding followed.

It is important to note at the outset that the Grand Jury and the State Commission on Judicial Conduct are both constitutional investigative bodies (NY Const, art I, § 6; art VI, § 22). They serve quite different purposes, however. The Grand Jury is drawn from the population at large and charged with the duty of investigating and preferring charges against those suspected of criminal conduct while the Commission is composed of members appointed for fixed terms as defined in the Constitution and charged with the duty of investigating misconduct in the judicial branch of government and imposing discipline if misconduct is found. Thus, while the two bodies serve similar functions, they are separate and independent. One is responsible for investigating crime; the other for disciplining Judges. The Grand Jury may indict a Judge for. criminal conduct, but it may not directly remove him from office, no matter how serious the misconduct may be. A Commission investigation, however, may result in charges and a finding of misconduct based upon specific cause or for persistent failure to perform duties, habitual intemperance, physical disability or for conduct on or off the Bench prejudicial to the administration of justice, i.e., the appearance of impropriety (see NY Const, art VI, § 22, subd a; Judiciary Law, § 44; and see Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279; Matter of Shilling, 51 NY2d 397; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462). The sanction, once misconduct is established, is admonishment, censure or removal from office. Commission proceedings are not intended to take the place of criminal proceedings but if the Commission obtains evidence in the course of investigating a Judge which appears to warrant criminal prosecution, it may refer the evidence to the District Attorney for that purpose (Judiciary Law, § 44, subd 10).

The District Attorney asserts that whether the Commission volunteers the information or not, the Grand Jury has the power to require turnover of the Commission’s files containing evidence of the crime. He rests his claim on the constitutional provision which states that “[t]he power of grand juries to inquire into the willful misconduct in office of public officers * * * shall never be suspended or impaired by law” (NY Const, art I, § 6) and on the broad power of the Grand Jury to investigate criminal activity and to compel people to appear before it (Virag v Hynes, 54 NY2d 437; accord Branzburg v Hayes, 408 US 665, 701-702). He reminds us that “[traditionally, our courts have afforded the Grand Jury the widest possible latitude in the exercise of their powers and insisted that in the absence of a clear constitutional or legislative expression they may not be curtailed” (People v Stern, 3 NY2d 658, 661).

We have recently examined the language contained in section 6 of article I and how it relates to the power of the Grand Jury in a case involving the reporter’s privilege (see Matter of Beach v Shanley, 62 NY2d 241, supra). In that decision we noted that the Grand Jury investigation might well result in the discovery of misconduct by a public official, but we nevertheless held that the “Shield Law” (Civil Rights Law, § 79-h) was a lawful legislative restraint on the Grand Jury’s power to compel disclosure of a reporter’s sources of information obtained in the news gathering process. Moreover, we did so prior to the reporter’s appearance before the Grand Jury though it might have been possible to recognize the privilege and still permit the inquiry to proceed sufficiently to determine whether misconduct by a public official was involved in the disclosure of the contents of the Grand Jury minutes. The dissenters suggested such a procedure but we recognized that the privilege applied whether the investigation involved misconduct by a public official or by a private citizen. In doing so we interpreted the anti-impairment clause as the court did in Matter of Wood v Hughes (9 NY2d 144, 150), holding that it was intended to prohibit legislation “that directly restricts a grand jury’s right to inquire or that, although facially neutral, would have its primary impact by limiting investigations of public officers” (Matter of Beach v Shanley, 62 NY2d 241, 254, supra). The distinction made was between legislation that removed the Grand Jury’s áuthority to investigate public officials, which is unconstitutional, and legislation which might impede the Grand Jury in its efforts to obtain certain evidence during the cause of an investigation of a public official, which is not. Here, the legislation creating the Commission and defining its powers was not designed to thwart the powers of the Grand Jury, but instead established an independent investigatory body to maintain the integrity of the judiciary (see Matter of Nicholson u State Comm, on Judicial Conduct, 50 NY2d 597, 611). While the Commission’s power may indirectly result in a diminution of the scope of the Grand Jury’s inquiry, it does not deprive the Grand Jury of its power to investigate a Judge or any other public official and therefore does not constitute a violation of the anti-impairment clause.

Insofar as the Grand Jury’s ability to subpoena these records as an exercise of its traditional investigative powers is concerned, those powers although extensive, are not unlimited. For example, it may not violate a valid privilege, whether derived from the Constitution, statutes or the common law (Branzburg v Hayes, 408 US 665, supra; Matter of Priest v Hennessy, 51 NY2d 62 [attorney-client privilege]; Matter of Keenan v Gigante, 47 NY2d 160, cert den 444 US 887 [priest-penitent privilege]; Matter of Grand Jury Investigation, 59 NY2d 130 [physician-patient privilege]; Civil Rights Law, § 79-h [newsman’s privilege]). Additionally, its powers to compel testimony and the production of evidence must “be exercised in accordance with the procedural and evidentiary rules laid down in the Criminal Procedure Law and other statutes” (Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, Statewide Organized Crime Task Force, 44 NY2d 575, 582). Some of these general procedural rules place geographical and durational limits on the powers of the Grand Jury (CPL 190.05, 190.15), and others limit the reception of evidence to material which is competent and relevant (CPL 190.30, subd 1; People v De Martino, 71 AD2d 477). In those cases in which the Legislature has the authority to limit the powers of the Grand Jury, it may do so explicitly or by implication (see Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, Statewide Organized Crime Task Force, supra). In this case, we must determine whether the general statutory provisions establishing the confidentiality of Commission records were intended to prohibit disclosure to the Grand Jury or whether a specific provision prohibiting disclosure to the Grand Jury was required to accomplish that purpose.

The relevant statutes, sections 44, 45 and 46 of the Judiciary Law, establish a legislative scheme to insure the confidentiality of Commission records. Section 45 provides broadly that “all complaints, correspondence, commission proceedings and transcripts thereof, other papers and data and records of the commission shall be confidential”. The Legislature has indicated in the statute where it intended to modify this general confidentiality requirement and grant access to Commission records. For example, the section permits the release to the public of certain information at the request of the Judge under investigation after the deletion of the names of the persons who may have been sources of information but who did not participate in the hearing. The section also expressly provides that designated staff personnel shall have access to confidential material in the performance of their powers and duties, although one could reasonably imply that they would have access to it notwithstanding the broad sweep of the confidentiality requirement it contains. The statute was amended in 1983 to permit disclosure also of some records with the consent of the applicant to the Commission on Judicial Nomination, the Governor and certain officers of the Senate considering nominees for the Court of Appeals. The amendment is notable for two reasons: first, the Legislature, in reviewing the statutory requirement of confidentiality and the few exceptions to it, apparently thought amendment was necessary even when the information was sought for consideration of a candidate’s qualifications for appointment to the Court of Appeals, and second, the disclosure permitted by the amendment as adopted is less than requested, suggesting that confidentiality was given a high priority even when the information was required for such legitimate and important purposes (see Bill Jacket, L 1983, ch 35, § 1, Summary of Position of State Commission on Judicial Conduct). Neither the original nor the amended version of section 45, however, provides for release of Commission files to the Grand Jury.

The only statutory provision referrable to criminal prosecution is subdivision 10 of section 44 of the Judiciary Law. It provides that “[i]f * * * the commission determines that the complaint or any allegation thereof” warrants other or further action, the Commission may turn over the complaint or appropriate allegation thereof and any evidence relating to it to a person having administrative jurisdiction over the Judge involved, an Appellate Division or the Presiding Justice of an Appellate Division, the Chief Judge of the Court of Appeals, the Governor or a District Attorney or other prosecuting officer. Thus, although the Commission records may be disclosed in some circumstances, the section empowers the Commission to decide whether they will be and if so what part of them. Although the Legislature obviously anticipated disclosure for possible criminal prosecution by this section, it provided for disclosure to the District Attorney, not to the Grand Jury. The legislative history is not helpful in determining why this is so, but there is at least one possible reason for it; if the records are delivered to the Grand Jury, they could well become public on report or indictment and trial. If they are delivered to the District Attorney, he may be able to use them to develop evidence without further impairing their confidentiality.

Finally, section 46 of the Judiciary Law provides a procedure for punishing any staff member, employee or agent of the Commission who breaches the confidentiality of its proceedings. The sanction may be reprimand, fine, suspension or removal. By these provisions the Legislature recognized the Commission’s need for confidentiality and protected it. It was not required to specifically prohibit disclosure to the Grand Jury.

It is obvious that Judges are not exempt from criminal prosecution for their conduct. The law binds all men equally, the Judges no less than the judged. The responsibilities of the Commission, however, transcend the criminal prosecution of individuals. Its concern is institutional, to protect the integrity of the judiciary and thereby preserve and enhance the public’s confidence in its courts. Experience teaches that the effective performance of that function necessarily requires the free flow of information to the Commission and the confidentiality of its proceedings until wrongdoing is established. The classic formulation of the necessity for the confidentiality of Grand Jury proceedings is found in People v Di Napoli (27 NY2d 229, 235). It applies with equal force to the Commission’s proceedings. In Di Napoli former Chief Judge Fuld noted that confidentiality was important to (1) protect members of the investigative body from outside pressures, (2) protect against subornation and perjury by witnesses, (3) protect the reputations of innocent defendants and (4) assure the confidentiality of witnesses. While the Commission may have little necessity for the benefit of a fifth consideration he listed, to prevent flight by a party expecting charges, there is in the case of the Commission the overriding constitutional concern to protect the standards of the judicial system as a whole and to insure that none but qualified Judges remain a part of it. We hold that the Legislature, by the provisions of the Judiciary Law, has provided that the traditional powers of the Grand Jury must yield to these concerns.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the motion to quash the subpoena granted.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur with Judge Simons; Judges Jasen and Meyer on constraint of Matter of Beach v Shartley (62 NY2d 241).

Order reversed, etc.