author: Jones, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Gioanna La Carrubba, Appellant.
    Argued February 12, 1979;
    decided March 27, 1979

      POINTS OF COUNSEL

      James M. Catterson, Jr., and Richard T. Nolan for appellant.
    I. Since the indictment was fatally flawed, the trial court erred in failing to dismiss it. (People v Case, 42 NY2d 98; People v Clough, 43 AD2d 451; People v Barnes, 44 AD2d 740; People v Guest, 53 AD2d 892; People v McGuire, 5 NY2d 523; People v Douglas, 12 AD2d 194; Oakley v Aspinwall, 3 NY 547; Queens-Nassau Mtge. Co. v Graham, 157 App Div 489; Matter of Schmidt, 31 AD2d 214; People v Capuano, 68 Misc 2d 481.) II. Cumulative prejudicial errors of the trial court and the prosecutor denied appellant a fair trial. (People v Ingram, 49 AD2d 865; People v Carroll, 37 AD2d 1015; People v Palmieri, 12 AD2d 522.) III. The unjustified preindictment delay acted to deprive appellant of rights guaranteed under the due process clause. (United States v Marion, 404 US 307; United States v Lovasco, 431 US 783; Brady v Maryland, 373 US 83; United States v Harmon, 379 F Supp 1349.)

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent.
    I. The indictment sufficiently alleged the crime of official misconduct. (People v Soto, 44 NY2d 683; People v Regina, 19 NY2d 65; People v McCarthy, 250 NY 358; People v Willett, 213 NY 368; People v Wiechers, 179 NY 459; People v Bogdanoff, 254 NY 16; People v D’Arcy, 79 Misc 2d 113; Phelps v People, 72 NY 334; People v Kane, 43 App Div 472, 161 NY 380; Hamling v United States, 418 US 87.) II. The court properly instructed the jury: the prosecutor’s summation was appropriate. (People v Gruttola, 43 NY2d 116; People v Robinson, 36 NY2d 224; People v Simons, 22 NY2d 533; People v Cook, 42 NY2d 204; United States ex rel. Satz v Mancusi, 414 F2d 90; United States v Nasta, 398 F2d 283; People v Dunbar, 58 AD2d 329; People v Jackson, 45 AD2d 828, 39 NY2d 64; People v Brannon, 58 AD2d 34.) III. Appellant was not deprived of her due process rights by reason of any preindictment delay. (People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789; People v Kelly, 38 NY2d 633; People v Imbesi, 38 NY2d 629; People v Simmons, 84 Misc 2d 749; People v Pickens, 85 Misc 2d 170; People v Zelkowitz, 84 Misc 2d 746; United States v Marion, 404 US 307.)
   OPINION OF THE COURT

Jones, J.

An indictment charging a Judge with official misconduct under subdivision 2 of section 195.00 of the Penal Law is insufficient, and accordingly should have been dismissed on timely application, where that indictment, for the purpose of defining the duty "clearly inherent in the nature of his office” which allegedly was violated, only incorporates by reference the provisions of the Code of Judicial Conduct. Moreover, the disciplining of Judges for violation of ethical standards not involving independently criminal conduct has been reserved by the State Constitution to proceedings instituted before the present Commission on Judicial Conduct and prior to that before the Court on the Judiciary.

Appellant, a Suffolk County District Court Judge, was indicted on April 26, 1976 and charged with three counts of official misconduct in violation of section 195.00 of the Penal Law. That section provides:

"A public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit:

"1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or

"2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.”

Two counts of the indictment were dismissed by the court at the close of the People’s case. The remaining count, which was submitted to the jury, charged in pertinent part that appellant: "with the intent to obtain a benefit * * * knowingly refrained from performing a duty which is imposed upon her by law or is clearly inherent in the nature of her office, to wit, on December 24, 1974, in Suffolk County, in her capacity as District Court Judge, she improperly dismissed, for failure to prosecute, a Simplified Traffic Information received by * * * a personal friend, in violation of * * * the Code of Judicial Conduct, Canons 2 and 3.” Submission of this count resulted in a hung jury. On retrial of this count a guilty verdict was returned. The Appellate Division affirmed appellant’s conviction without opinion. We now reverse and dismiss the indictment.

At issue is the permissibility of the enforcement of the provisions of the Code of Judicial Conduct by resort to criminal prosecution. During the course of the proceedings at the first trial, and again prior to the second trial, appellant moved to dismiss the indictment on the ground that an indictment which only charges violations of canons of judicial ethics cannot support a criminal charge of official misconduct — that the "Canons of Ethics cannot be substituted for the Penal Law”. The court denied appellant’s motion, concluding that "[ajssuming a specific mens rea, conduct in violation of the respective Canons constituting the code becomes a violation of law when it is done with intent to gain any benefit or advantage * * *. The inclusion by reference to * * * the Code of Judicial Conduct is accordingly appropriate”. We disagree.

Subdivision 2 of section 195.00 of the Penal Law condemns, and this indictment charges, a breach, with the requisite intent, of a duty that is either imposed by law or clearly inherent in the nature of the office. The only definition or description in the indictment of the duty in question, however, is by cross-reference to Canons 2 and 3 of the Code of Judicial Conduct.

Section 195.00 of the present, revised Penal Law condensed more than 30 separate provisions in the former Penal Law dealing with offenses of malfeasance and nonfeasance by public servants, most of which were very narrow ones involving violations of specific duties by specified public officers (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 195.00). With a single exception, there was no express proscription of judicial misconduct in any of the specific sections, although some of the sections of general application were phrased so broadly as to permit an argument that judicial misconduct would fall within the statutory embrace (e.g., former Penal Law, §§ 854, 1788, 1857). It does not appear, however, that any of these sections was ever used as the basis for proceedings against a Judge to enforce ethical standards or any duty not prescribed by statute.

There is no contention here that the official misconduct with which appellant was charged involved her refraining from performing a duty "imposed upon her by law”. The contention is that she refrained from performing a duty "clearly inherent in the nature of her office”. The canonical provisions are then relied on to define duties inherent in the office.

Our address to this contention begins with noting that "[i]t is for the legislative branch of a state or the federal government to determine, within state or federal constitutional limits, the kind of conduct which shall constitute a crime and the nature and extent of punishment which may be imposed therefor.” (Warton’s Criminal Law [14th ed, 1978], § 10, pp 31-32). Even by explicit provision the Legislature may not delegate the essentially legislative function of definition of a substantive criminal offense (People v Ryan, 267 NY 133; see People v Blanchard, 288 NY 145). In the present instance, however, there has not even been an attempted delegation by the Legislature, for it has neither incorporated nor otherwise adopted the provisions of the Code of Judicial Conduct. Here the attempt is by the District Attorney alone, unaided by any legislative enactment, to import a definition of judicial duty based on ethical standards initially promulgated by the American Bar Association and the New York State Bar Association and then incorporated by reference in the Rules of the Appellate Division, Second Department (§ 700.5, subd [a]; 22 NYCRR 700.5 [a]). While there can be no doubt of the authority of bar associations to promulgate enforceable ethical standards or of the Appellate Division to incorporate such standards in rules of court, neither the bar associations nor the Appellate Division is empowered to discharge the legislative responsibility to define the elements of a crime.

Moreover, the Code of Judicial Conduct and the Penal Law serve discrete, if in some respects complimentary, purposes. The Penal Law is designed to "give fair warning of the nature of the conduct proscribed * * * [and to] define the act or omission * * * which constitute^] each offense” (Penal Law, § 1.05, subds 2, 3). For duly proved violations the sanctions of the Criminal Law are imposed. By contrast, the provisions of the Code of Judicial Conduct were never so intended. Couched in the subjunctive mood, the code is a compilation of ethical objectives and exhortations for the violation of which recourse has traditionally been had to disciplinary rather than criminal proceedings. If in any instance the conduct proscribed by the canons also independently constitutes a criminal offense under the Penal Law (e.g., bribe receiving, Penal Law, § 200.12) then, of course, the sanctions of the Criminal Law are available and the coexistence of ethical impropriety would stand as no barrier to criminal prosecution. Taken alone, however, instances of ethical impropriety, although unquestionably to be condemned, provide no predicate for the imposition of criminal penalties.

In our State this distribution of jurisdiction for the enforcement of the Criminal Law on the one hand and the enforcement of the Code of Judicial Conduct on the other is expressly recognized in the provisions of our State Constitution. In section 22 of article VI of the Constitution (further implemented in article 2-A of the Judiciary Law) detailed and complete provision is made for the initiation, prosecution, determination and appeal of disciplinary proceedings against members of the judiciary — now through proceedings before the Commission on Judicial Conduct; prior to April 1, 1978 through proceedings before the Court on the Judiciary. We view the constitutional and statutory provisions for judicial disciplinary proceedings as a pre-emption with respect to the imposition of sanctions for the violation of ethical standards by Judges — except, of course, as to conduct which, irrespective of the provisions of the Code of Judicial Conduct, is expressly proscribed by the sections of the Penal Law. As to the latter, Judges as other persons are subject to criminal prosecution. In effect, in the performance of their judicial duties members of the judiciary, as distinguished from public servants in general, are exposed to the imposition of sanctions for misconduct undér either, or sometimes both, criminal prosecution (in the event the conduct in question is proscribed by the Penal Law) and disciplinary action (when the conduct is violative of ethical standards). If the particular misconduct transgresses both the Penal Law and the Canons of Ethics, prosecution may be initiated under criminal or disciplinary procedures, or both.

We find nothing in section 195.00 of the Penal Law which suggests that by the device of incorporation by reference a prosecutor may initiate and take charge of proceedings to enforce the Code of Judicial Conduct as such. To accept the proposition advanced by respondent District Attorney would be to countenance the institution of criminal proceedings for any alleged violation of the provisions of the code. We perceive no intention on the part of the Legislature to cloak the District Attorney with responsibility for compelling conformity with the Code of Judicial Conduct. Nor does it affect the outcome that section 195.00 requires an "intent to obtain a benefit or to injure or deprive another person of a benefit”. Most unethical conduct falls into the former category, or so it could be found.

Not only does consideration of the relevant provisions of our Constitution and statutes dictate the conclusion that we reach; the result comports with sound principle. As to conduct which falls short of legislative proscription, it. would be awkward and often unseemly for District Attorneys and the Commission on Judicial Conduct to jockey for prosecutorial priority or advantage. It is even more fundamental to recognize the special competence and expertise of the members of the commission— composed of Judges, lawyers and members of the public — to evaluate and judge the merit of complaints against members of the judiciary that do not involve criminal conduct and then, on a determination of guilt, to assess the appropriate penalty.

For the reasons stated, the provisions of the Code of Judicial Conduct which do not come within the ambit of one of the express proscriptions of the Penal Law and which have never been adopted by the Legislature may not be enforced by resort to criminal prosecution. The attempt to achieve this result by incorporation of code provisions in this indictment charging official misconduct under subdivision 2 of section 195.00 fails of accomplishment, and the indictment so drafted should have been dismissed as insufficient.

In view of our conclusion that the indictment must be dismissed, we do not reach or consider appellant’s other assertions of error, either as to the sufficiency of the indictment or as to the conduct of the trial.

Accordingly, the order of the Appellate Division should be reversed, and the remaining count of the indictment dismissed.

Jasen, J.

(dissenting). The majority would hold today that an indictment which incorporates provisions of the Code of Judicial Conduct to define those duties "clearly inherent in the nature of [a public servant’s] office” is legally insufficient insofar as such standards, absent legislative directive, cannot prescribe conduct for Judges, the violation of which would expose a Judge to criminal liability. I must dissent.

Appellant, a Suffolk County District Court Judge, was convicted, after a jury trial, of official misconduct (Penal Law, § 195.00, subd 2). The jury found, as charged in the indictment, that appellant improperly dismissed for failure to prosecute a simplified traffic information received by a close personal friend before its specified return date, a practice commonly termed "ticket fixing”. On appeal, the Appellate Division unanimously affirmed the judgment of conviction. The majority would now reverse the judgment of conviction and dismiss the indictment upon which this conviction rests.

At issue is the sufficiency of the indictment charging appellant with the crime of official misconduct. Section 195.00 of the Penal Law provides, in relevant part: "A public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit * * * 2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.” (Emphasis added.) Special note must be taken of the fact that the Legislature defined the duty embraced by the statute in the disjunctive; thus, a public servant is subject to criminal sanctions for failure to perform a duty unmistakably inherent in the natúre of his office, irrespective of whether the Legislature has chosen to delineate such duties in statutory provisions. The terms of the statute are unequivocal, and tolerate no other construction.

While the duty to act must be "so clear that the public servant is on notice as to the standards that he must meet” (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 195.00, p 387), there is no doubt that this threshold requirement was satisfied in this case. The Code of Judicial Conduct, promulgated by the American Bar Association and adopted, with certain amendments, by the New York State Bar Association, was made binding on appellant by virtue of its incorporation in the Rules of the Appellate Division, Second Department. Section 700.5 of the rules (22 NYCRR 700.5) expressly provides that "[i]n the performance of his duties * * * the judge is in all respects bound by the Canons of Judicial Ethics.” (Emphasis added.) It is difficult to imagine a more compelling example of duties "clearly inherent in the nature of [a public servant’s] office” than those embodied in the code promulgated to govern a Judge’s action so that the integrity of the judiciary may be maintained and the best interests of society safeguarded and fostered.

In so concluding, no violence befalls the indisputable postulate that only the legislative branch of government can determine what conduct shall constitute a crime and the sanctions prescribed, for the Legislature has made it a crime for a public servant, "with intent to obtain a benefit * * * [to] knowingly [refrain] from performing a duty which is * * * clearly inherent in the nature of his office.” Appellant was not indicted, nor convicted, of violating Canons 2 and 3 of the Code of Judicial Conduct in-and-of themselves, but, rather, indicted and convicted for the Penal Law crime of official misconduct. No action was taken by the District Attorney and the Grand Jury, "unaided by any legislative enactment”, to convert the ethical standards set forth in the Code of Judicial Conduct into penal statutes. Rather, the prosecutor was merely performing the obligation for which he is held accountable to the general public to enforce the penal laws as promulgated by the Legislature. Section 195.00 makes express reference to duties "clearly inherent in the nature of [a public servant’s] office”, and it appears almost axiomatic to state that when a Judge is indicted for the Penal Law crime of official misconduct, the rules adopted by the Appellate Division which govern his conduct must define such duties. (See Rules of Appellate Division, Second Department, § 700.5, subd [a], ["the judge is * * * bound by the Canons of Judicial Ethics”].)

Nor does this conclusion impinge upon the majority’s view that the constitutional and statutory provisions for the discipline of Judges pre-empt the imposition of criminal sanctions for the violation of those standards embodied in the Code of Judicial Conduct. The majority qualifies this position by noting that the commencement of criminal proceedings is not barred when the conduct for which the Judge is being charged "is expressly proscribed by the sections of the Penal Law.” Here, section 195.00 of the Penal Law, and not the Code of Judicial Conduct, makes it a crime, in no uncertain terms, for a public servant, "with intent to obtain a benefit * * * [to] knowingly [refrain] from performing a duty which is * * * clearly inherent in the nature of his office.” If we can assume, as indeed simple logic requires us to assume, that the phrase "clearly inherent in the nature of his office” includes those ethical standards and duties which are binding upon a Judge, then there exists no ground for distinguishing the crime of official misconduct from other crimes which constitute an independent criminal offense (e.g., bribe receiving — Penal Law, § 200.12).

To accept the reasoning espoused by the majority, the scope of section 195.00 of the Penal Law would be restricted in an intolerable manner. Section 195.00 is "directed, in broad terms, at all official misconduct by a public servant.” (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, art 195, p 384.) To extract from its coverage transgressions by members of the judiciary clearly in violation of judicial duties would result in insulating Judges from many criminal prosecutions thereunder, a result clearly not intended by the Legislature. Indeed, the majority concedes that "[i]f the particular misconduct transgresses both the Penal Law and the canons of ethics,” both criminal actions and disciplinary proceedings may be commenced.

Insofar as, in our view, the standards of judicial conduct contained in the code constitute duties "clearly inherent in the nature of [a judge’s] office”, within the meaning of subdivision 2 of section 195.00 of the Penal Law, it becomes necessary to now address the issue, not reached by the majority, as to the sufficiency of the indictment viewed in its entirety. The count of the indictment submitted to the jury charged in pertinent part that appellant: "a public servant, namely a District Court Judge in Suffolk County, with the intent to obtain a benefit * * * knowingly refrained from performing a duty which is imposed upon her by law or is clearly inherent in the nature of her office, to wit, on December 24, 1974, in Suffolk County, in her capacity as District Court Judge, she improperly dismissed, for failure to prosecute, a Simplified Traffic Information received by * * * a personal friend, in violation of * * * the Code of Judicial Conduct, Canons 2 and 3.”

Although it could be said that this count was inartfully drafted, this observation does not render the indictment insufficient, for as this court has recently observed, "careful consideration of the realities of criminal practice in New York leads ineluctably to the conclusion that the basic essential function of an indictment qua document is simply to notify the defendant of the crime of which he stands indicted.” (People v Iannone, 45 NY2d 589, 598.) If the indictment serves to inform the defendant of the charges being brought against him and the conduct upon which such charges are predicated so as to enable the defendant to prepare for trial, its purpose is fulfilled and the indictment will not be dismissed. (See People v Iannone, 45 NY2d, at p 599, supra; People v Fitzgerald, 45 NY2d 574, 579-580.)

The count of the indictment charged to the jury tracked, prefatorily, the language of subdivision 2 of section 195.00 of the Penal Law, and such procedure, by itself, has been said to be "usually sufficient to charge” the defendant, unless the language of the statute "is too broad.” (See People v Iannone, 45 NY2d, at p 599, supra, citing People v Farson, 244 NY 413, 417.) Further, the count recited the operative facts upon which the charge was predicated (CPL 200.50, subd 7), and specified the duties "clearly inherent in the nature of [the judge’s] office” which she knowingly refrained from performing ("in violation of * * * the Code of Judicial Conduct, Canons 2 and 3”). Given these circumstances, the indictment must be declared legally sufficient.

Further, special mention should be made of the availability of a bill of particulars to supply a defendant with the further, and indeed more detailed, information required in preparing his defense. CPL 200.90 (subd 3) provides, in pertinent part, that "[i]f the court is satisfied that any or all of the items of information requested are necessary to enable the defendant adequately to prepare or conduct his defense, it must grant the motion as to every such necessary item” (emphasis added). Thus, if appellant required greater or more specific information to advise her of the duty she was charged with refraining from performing, she could have invoked the court’s assistance and demanded a bill of particulars which would have supplied her with such information.

In sum, an examination of the count of the indictment submitted to the jury reveals that, under prevailing legal standards, it was legally sufficient. Inasmuch as appellant’s remaining contentions are without merit, the order of the Appellate Division sustaining the judgment of conviction should be affirmed.

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

Order reversed, etc.

APPENDIX

CANON 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

CANON 3

A Judge Should Perform the Duties of His Office Impartially and

Diligently

The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

A. Adjudicative Responsibilities.

(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.

(2) A judge should maintain order and decorum in proceedings before him.

(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control.

(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

(5) A judge should dispose promptly of the business of the court.

(6) A judge should abstain from public comment about a pending or impending proceeding, in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

(7) A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:

(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;

(b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;

(c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:

(i) the means of recording will not distract participants or impair the dignity of the proceedings;

(ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;

(iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and

(iv) the reproduction will be exhibited only for instructional purposes in educational institutions.

B. Administrative Responsibilities.

(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.

(3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

(4) A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered.

C. Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge’s knowledge likely to be a material witness in the proceeding;

(2) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(3) For the purposes of this section:

(a) the degree of relationship is calculated according to the civil law system;

(b) "fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

(c) "financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:

(i) ownership in a mutual or common investment fund that holds securities is not a "financial interest” in such securities unless the judge participates in the management of the fund;

(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest” in securities held by the organization;

(iii) the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) ownership of government securities is a "financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

D. Remittal of Disqualification.

A judge disqualified by the terms of Canon 3C(l)(c) or Canon 3C(l)(d) may, instead of withdrawing from the proceeding, disclose on the record , the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

      . The indictment also included a reference to section 14 of the Judiciary Law ("Disqualification of judge by reason of interest or consanguinity”). The trial court did not charge the jury with respect to that section. Both parties agree that such reference is inapposite, and no reliance is placed on it to sustain the indictment.

      . The text of Canons 2 and 3 is set forth in the appendix to this opinion.

      . Section 1876 — "Misdemeanor for judge, justice or magistrate to permit any but attorneys to practice in his court.”

      . The Penal Law defines "public servant” as "any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state”. (Penal Law, § 10.00, subd 15.)

      . Section 700.1 states that "[t]hese rules shall apply in all actions and proceedings, civil and criminal, in courts subject to the jurisdiction of the Appellate Division of the Supreme Court in the Second Judicial Department.” (Emphasis added.)

      . CPL 200.50 provides, by statute, both the form and content of an indictment.

      . It is most interesting to note, in this regard, that appellant did request a bill of particulars. However, appellant only demanded the following: "Whether there was any wire tap, any interception of telephone communications, or electronic or mechanical eavesdropping with or without a Court order; if with a Court order, to supply defendant with a copy of same.” No such interceptions existed, and appellant requested no further information. Thus, it would appear that appellant was not "left in the dark” regarding the crimes of which she was charged, but, rather, fully understood the charges brought against her and the factual circumstances from which they arose.


source: Caselaw Access Project

author: Jones, J. Fuchsberg, J.

license: Public Domain

text:
    In the Matter of Joseph R. Marro, Appellant, v Richard J. Bartlett, as State Administrator of the Administrative Board of the Judicial Conference, et al., Respondents.
    Argued February 13, 1979;
    decided March 29, 1979

      POINTS OF COUNSEL

      Alfred S. Julien and Stuart A. Schlesinger for appellant.
    I. The board was required to certify petitioner for post-70 service, inasmuch as the two concurrent constitutional requirements for such service had been met: namely, (a) petitioner’s physical and mental ability to perform the duties of a Justice of the Supreme Court, as expressly conceded by respondents, and (b) the need for his services in the business of the court, as confirmed by the express finding that "the necessity of additional judicial manpower is beyond question”, made by the Special Term Justice in reference to the very court on which petitioner had served, and was still serving at the time, and on which he would continue to serve if certified for post-70 service. (Matter of Lefkowitz v Bartlett, 52 AD2d 657, 40 NY2d 1046.) II. The board’s determination may not stand because it does not contain the written findings required by the Judiciary Law, and the law relating to such proceedings, generally. The reasons given by the board to support its determination, contained in its papers in answer to the petition, may not properly be considered by this court, since they were required to be expressed in the determination, but were not. The determination gives no reason in support thereof. The reliance of the court below upon said reasons was, therefore, misplaced. (Matter of Elite Dairy Prods. v Ten Eyck, 271 NY 488; Matter of Barry v O’Connell, 303 NY 46; Matter of Meschino v Lowery, 34 AD2d 255; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Scudder v O’Connell, 272 App Div 251.) III. The board’s determination may not stand because it was made without a hearing. Petitioner was entitled to a hearing, because his right to continue in service beyond the age of 70 was and is a valuable property right. Moreover, petitioner had expressly requested a predetermination hearing. (Matter of Hecht v Monaghan, 307 NY 461.) IV. Since petitioner had a legitimate claim of entitlement to certification, it was improper for the board to deny his application without a hearing. (Perry v Sindermann, 408 US 593.) V. It was improper for the board to deny petitioner’s application for certification without a hearing, because the denial, under the circumstances of the case, stigmatized him, and to such an extent that his good name and reputation, as well as his standing and associations in his community, have been seriously damaged, and his freedom to take advantage of other employment opportunities has been effectively foreclosed. (Board of Regents v Roth, 408 US 564.)

      Michael Colodner and Michael R. Juviler for respondents.
    I. The Administrative Board has discretion to determine whether there is a need for the services of an individual retired Justice before certifying him for additional two-year terms. (People v Carroll, 3 NY2d 686; New York Public Interest Research Group v Steingut, 40 NY2d 250; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Howard v Wyman, 28 NY2d 434.) II. Appellant was not entitled to a hearing or a statement of reasons in order for the Administrative Board to exercise its discretion to select retired Justices for certification. (Board of Regents v Roth, 408 US 564; Rubino v Ghezzi, 515 F2d 431, 423 US 891; Johnson v Lefkowitz, 566 F2d 866; People ex rel. Joyce v Brundage, 78 NY 403; Matter of Doering v Hinrichs, 289 NY 29; Matter of Cassidy v Municipal Civ. Serv. Comm. of City of New Rochelle, 37 NY2d 526; Nurenberg v Ward, 84 Misc 2d 80, 51 AD2d 1022; Bishop

      v Wood, 426 US 341; Matter of Quraishi v Nyquist, 55 AD2d 775.)
   OPINION OF THE COURT

Jones, J.

In the exercise of its responsibility to act on applications of former Supreme Court Justices for certification for additional judicial service beyond retirement at age 70, the Administrative Board of the Judicial Conference has nearly unfettered discretion which is not subject to judicial review in the absence of claims of substance that there has been a violation of constitutional or statutory prescription unrelated to the certification process itself.

After having served as a Judge of the Civil Court of the City of New York, appellant served for six months as an acting Supreme Court Justice pursuant to designation by the Appellate Division, First Department. He was then elected a Justice of the Supreme Court in the First Judicial Department in November, 1973 to a 14-year term of office to begin January 1, 1974. In consequence of his attaining the age of 70 years in March, 1977, however, he was retired as of December 31 of that year pursuant to constitutional mandate (NY Const, art VI, § 25, subd b).

On June 24, 1977, respondent State Administrative Judge informed appellant of his eligibility to apply for certification for a further two-year term as a retired Justice of the Supreme Court, effective January 1, 1978 (NY Const, art VI, § 25, subd b; Judiciary Law, § 115). On July 7, 1977 appellant submitted his application for certification with supporting materials to the Administrative Board of the Judicial Conference. On October 18, 1977 appellant requested the Administrative Board to grant him a predetermination hearing on his application. By letter dated November 29, 1977, the State Administrative Judge advised appellant that the Administrative Board had not approved his application for certification. No hearing had been held and no reasons were given for the board’s action.

On December 9, 1977 appellant instituted the present proceeding under CPLR article 78 for an order directing the Administrative Board to certify him as a Justice of the Supreme Court pursuant to section 25 of article VI of the State Constitution and section 115 of the Judiciary Law. Supreme Court, New York County, annulled the denial of appellant’s application and directed the Administrative Board to certify appellant as a Justice of the Supreme Court for a two-year period commencing January 1, 1978 unless physical or mental disability was charged against appellant in which event the Administrative Board was directed to give him a prompt evidentiary hearing. The Appellate Division, Third Department, to which the appeal had been transferred, reversed and dismissed the petition. We now affirm.

There are two pertinent provisions, one of the Constitution and the other of statute. Article VI (§ 25, subd b) of our State Constitution provides: "b. Each judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of the county court, judge of the surrogate’s court, judge of the family court, judge of a court for the city of New York established pursuant to section fifteen of this article and judge of the district court shall retire on the last day of December in the year in which he reaches the age of seventy. Each such former judge of the court of appeals and justice of the supreme court may thereafter perform the duties of a justice of the supreme court, with power to hear and determine actions and proceedings, provided, however, that it shall be certificated in the manner provided by law that the services of such judge or justice are necessary to expedite the business of the court and that he is mentally and physically able and competent to perform the full duties of such office. Any such certification shall be valid for a term of two years and may be extended as provided by law for additional terms of two years. A retired judge or justice shall serve no longer than until the last day of December in the year in which he reaches the age of seventy-six. A retired judge or justice shall be subject to assignment by the appellate division of the supreme court of the judicial department of his residence. Any retired justice of the supreme court who had been designated to and served as a justice of any appellate division immediately preceding his reaching the age of seventy shall be eligible for designation by the governor as a temporary or additional justice of the appellate division. A retired judge or justice shall not be counted in determining the number of justices in a judicial district for purposes of section six subdivision d of this article.” Subdivision 1 of section 115 of the Judiciary Law, in implementation of the constitutional provisions, provides: "1. Any justice of the supreme court, retired pursuant to subdivision b of section twenty-five of article six of the constitution, may, upon his application, be certified by the administrative board for service as a retired justice of the supreme court upon findings (a) that he has the mental and physical capacity to perform the duties of such office and (b) that his services are necessary to expedite the business of the supreme court. A copy of such certificate shall be filed with the appellate division of the department in which such retired justice resides and in the office of the secretary of state.”

In substance it is appellant’s contention that if he has the mental and physical capacity to perform the duties of the office of Justice of the Supreme Court and the Administrative Board determines that additional judicial services are necessary to expedite the business of the Supreme Court, he is entitled to automatic certification. He further advances the subsidiary procedural contentions that, under principles of constitutional due process, prior to any action on his application for certification he was entitled to an evidentiary hearing, to written findings by the Administrative Board and to a statement of the reasons for the board’s denial of his application. It should immediately be noted that the Administrative Board has never questioned appellant’s mental or physical competence, and that it has determined, at least impliedly inasmuch as other applicants were certificated, that additional judicial services are necessary to expedite the business of the Supreme Court in the First Judicial Department. It claims, however, that it may determine in its discretion which applicants to certify to meet the need for additional judicial services, and that its exercise of such discretion is not subject to judicial review in the absence of proof that its determination was contrary to law or constitutional mandate, independent of the certification process itself. We agree, and find neither such infirmity in the present instance. Indeed appellant advances no such contentions; his challenges are all to the certification process.

We are confronted with a first instance question involving the interpretation of a provision of our State Constitution and its associated, implementing statutory provision. No counterparts are to be found elsewhere, and there appear to be no authorities available for our guidance.

Our consideration starts with analysis of the applicable constitutional provisions. First comes the mandate that each Justice of the Supreme Court shall retire on the last day of December in the year in which he reaches the age of 70. At that time his entitlement to serve as a Justice terminates irrespective of other considerations, and he becomes a "former justice”. Absent some further constitutional authorization he would be ineligible to serve as a Judge. Such further authorization, however, is found in the provision — "Each such former * * * justice * * * may thereafter perform the duties of a justice of the supreme court * * * provided, however, that it shall be certified”, etc. We interpret the verb, "may”, as a term of enablement but not of entitlement. Rather than connoting some form of continuation of prior judicial service, the Constitution recognizes a complete break — termination of the previous judicial status, and the inauguration by the required certification of a new judicial designation.

We turn then to the process of certification which the Constitution directs shall be made "in the manner provided by law” and shall include two component determinations — "that the services of such judge or justice are necessary to expedite the business of the court” and "that he is mentally and physically able and competent to perform the full duties of such office”. No question is raised with respect to the latter component, a more or less objective requirement, satisfaction of which will depend on individual personal examination and the expression of professional opinion based thereon. Inasmuch as this aspect of certification is not at issue in this case, it will receive no further attention.

The dispute between the parties focuses on the prescription that it be determined "that the services of such judge or justice are necessary to expedite the business of the court” and on the procedure by which that determination shall be made. At the outset we observe that the standard is "the services of such judge or justice” not the services of a Judge or Justice. Thus, there must be a two-pronged determination— that there is a need for additional judicial manpower and that the individual applicant can meet this need at least in part. An individualized evaluation is contemplated, focused more decisively on the applicant than on the need for judicial services.

It becomes appropriate then to look to the statutory implementation of the constitutional provision. For all material purposes section 115 of the Judiciary Law conforms to the substantive constitutional provisions with some difference of diction which no one suggests is significant. As contemplated by the Constitution it is the statute which prescribes the procedure by which the required certification shall be made. The only prescription made by the Legislature is very simple —that the certification shall be "by the administrative board”; no further particulars are specified and no procedures are detailed. In this circumstance, inasmuch as the function of the certification is that of an initiatory action, rather than that of determining a continuing entitlement, due process requirements are virtually nonexistent.

Notwithstanding that a panoply of due process rights does not attach, the question remains as to the standards to be applied by the Administrative Board in making its determinations. In view of the fact that the very essence of the responsibility of certification imports necessity to rely in large part on nonobjective evaluations of the individual Judges and that any attempt at verbalization of objective yardsticks would be inadequate, to require articulation of determination standards would be artificial. We find nothing in the plain language of Constitution or statute which suggests that the Administrative Board was expected to promulgate a set of criteria against which to measure individual applications. The adequate, conscientious discharge of the obligation of the board necessarily demands that it be vested with the very broadest authority for the exercise of responsible judgment. This is an instance in which assurance as to results must depend on the confidence reposed in the individuals making the determinations and their collective probity and wisdom rather than on any predetermination specification of the standards they are to apply or the procedural steps they must follow.

We therefore conclude that the Administrative Board of the Judicial Conference had very nearly unfettered discretion in determining whether to grant applications of former Judges for certification, a discretion which was not subject to judicial review in the absence of claims of substance that there had been violation of statutory proscription or promotion of a constitutionally impermissible purpose, unrelated to the certification process.

Not only is this conclusion dictated by the relevant constitutional and statutory provisions; it makes eminent theoretical and practical common sense. Designation to serve as a Justice of the Supreme Court ranks near the top in the hierarchy of governmental service, and determination whether the services of any individual former Judge are necessary to meet a need for additional judicial manpower must always involve the weighing of what must be personal if not private considerations. It would serve no sufficiently useful purpose, from the standpoint of the validity of the certification process or in the legitimate interests of the former Judges making application, to expose to public scrutiny the potentially sensitive and delicate personnel considerations which must be evaluated and resolved. In these circumstances it cannot be concluded that it was irrational or impermissible to have concluded that the public interest will be better served by relying on the integrity and collective wisdom of a carefully selected, high level certifying authority - endowed with peculiar experience and expertise — the five-member Administrative Board consisting of the Chief Judge and the Presiding Justices of the four Departments of the Appellate Division — than on the structured personnel selection procedures familiarly found at lower levels of governmental service. Indeed, although there are real differences, many of the same considerations of policy and practice which shelter the procedures preliminary to higher executive personnel appointments, e.g., by the Governor, from public view and judicial scrutiny support the present method for certification of former Judges for further judicial service.

In the light of our determination that the certification process constitutes the inauguration of a new designation to judicial office, the claims of appellant to due process rights associated with termination of tenure or denial of continuation of service must be rejected. No property right is involved inasmuch as appellant was already retired by constitutional mandate, and there is no substance to the assertion that "stigma” attaches to the denial of certification, at least in the absence of any public disclosure of the reasons therefor. (Cf. Board of Regents v Roth, 408 US 564.) Specifically, appellant was not entitled to a predetermination hearing or to any statement of the reasons for the action of the Administrative Board.

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

Fuchsberg, J.

(dissenting). The issue here is sharply etched. To quote the majority, "the Administrative Board has never questioned appellant’s mental or physical competence and it has determined at least impliedly * * * that additional judicial services are necessary to expedite the business of the Supreme Court in the First Judicial Department”. Having thus met both constitutional requirements for continued post-retirement service as a Justice of the Supreme Court, says the petitioner, he is entitled without more to certification pursuant to article VI (§ 25, subd b) of the New York Constitution. But no, insists the Administrative Board (and this court today agrees), his continuance in office is within its unfettered discretion, to be exercised essentially free from public view and judicial accountability, no matter that it is based on undisclosed "non-objective evaluations” and "personal if not private considerations”.

I would reject the assertion of this untrammeled authority and would support the petitioner in his resistance to what I conceive to be an unconstitutional arrogation of power.

It is common knowledge that, when article VI (§ 25, subd b) was adopted by the people in 1962, it was intended to accomplish a well-defined purpose — the removal of the 70 year age bar that compelled the automatic retirement of experienced Judges whom time had not deprived of mental acuity and physical vigor and who, at little more than the cost of the pensions they would otherwise receive, could help meet the mounting litigation pressures facing our courts. Though the proposal was bruited about for the better part of a decade — in our legislative halls, in the press, at public hearings, and in reports of special studies — the only qualifications for post-70 continuation ever contemplated were the need for judicial manpower and the Judge’s good health. Specifically, there was no hint that discretion to serve would rest with anyone but the eligible Supreme Court Justice. In short, the net result, for those who met the two delineated conditions, was that retirement would be optional rather than compulsory. Not surprisingly, then, we have searched high and low without turning up any evidence of any contrary intent (see, e.g., New York State Temporary Commission on the Courts, Public Hearing on Methods of Selection and Qualifications, Tenure and Retirement of the Judiciary [1955]; Judicial Conference of the State of New York, Recommendations for Modernization of the Court Structure in the State of New York [Nov. 10, 1958]; NY Legis Ann, 1962, p 372).

Significantly, aside from designating the board to handle the program’s administration, the implementing statute, section 115 of the Judiciary Law, does no more than track the twin requirements of court need and judicial health. Apparently recognizing that the clear and simple mandate of the amendment invited no legislative or judicial leeway and paying due deference to this expression of public will, the Legislature neither added to nor subtracted from it.

This view of the amendment and the statute also comports with the reality of things. As the majority puts it, a Justice of the New York State Supreme Court, our court of broadest jurisdiction, stands "near the top of the hierarchy of governmental service”. The office is elective. It is protected by the security of a 14-year term. In the main, as in the present case, if he served beyond age 70, a Judge would still be within the term for which he was elected. Nothing, in or out of the amendment, lends credence to the idea that the electorate ever intended to turn over the process of choosing its Judges to the Administrative Board. Surely such a transfer or dilution of the power to select those who play leading roles in our government is not to be the product of easy inference. Is it conceivable that such a fundamental privilege was to be surrendered as an unexpected adjunct to what was no more than an extension of retirement age?

It is also hard to believe that the amendment was seen as a way to back into a system of recall, or as a means whereby the voters’ choice could be rescinded, or a method by which a Judge, even one with a blameless record, would be subjected to ex parte grading. Yet, one or all of these are potential consequences of the expansive power the board would take unto itself — the absolute and, for all practical purposes, final right to say whether a particular Judge should stay or go. For, as the majority agrees, the certification process constitutes the "inauguration of a new designation to judicial office”. Still worse, whether the "new designation” is to be or not to be is to hang over the head of every "certified” Judge every two years.

Which brings me to an overriding concern, the imperative for an independent judiciary. Henceforth, it now appears that a Judge serving a preretirement term and for each ensuing two-year stint that follows is to be ever conscious of the fact that his or her tenure may be forfeit to unpopularity or nonconformity, be it the result of doctrinal differences, a lack of. gregariousness, or any other expression of personality, ideology or style. Or, perhaps, just whim or caprice. After all, the board, in its well-nigh unlimited, unrestrained power to choose among its old judicial colleagues, will need to consult no one and, when it does, its informants’ identities will not need to be revealed. So, in the present case, while the board in its briefs on appeal advises that it had sought the opinions of Judges and others, it does not disclose the names of those it solicited or the contents of their communications and, needless to say, permits no opportunity for confrontation or for reply. By way of contrast, it should not be lost on us that, as Special Term pointed out, in enacting section 115 of the Judiciary Law, the Legislature gave consideration to the provisions for continuation of Federal Judges who have reached retirement age, a model laying great stress on judicial independence.

For these reasons, I would reverse the order of the Appellate Division and reinstate the judgment of Special Term, which directed the board to certify the appellant.

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

Order affirmed.

      . It appears that the State Administrative Judge had made a telephone call to appellant on June 28, 1977 suggesting that appellant might expect to encounter some difficulty in obtaining certification. In view of our analysis and disposition of this appeal, neither the fact nor particulars of that conversation are material.

      . In view of this holding it is unnecessary to address or comment on the broad guidelines adopted by the Administrative Board for its own use in processing applications for certification made to it. These involve internal procedures of the Administrative Board beyond the reach of judicial scrutiny.

       Because the need for judicial services is unquestioned in this case, it is unnecessary at this time to treat with the not at all insoluble situation that would arise if the number of eligible Judges should exceed the number that are needed.


author: Fuchsberg, J. Gabrielli, J.

text:
    In the Matter of 303 West 42nd Street Corporation, Appellant, v Joseph B. Klein, as Chairman of the Board of Standards and Appeals, et al., Respondents.
    Argued February 13, 1979;
    decided April 3, 1979

      POINTS OF COUNSEL

      Herald Price Fahringer and Ralph J. Schwarz, Jr., for appellant.
    I. Where substantial constitutional claims are raised in an article 78 proceeding, creating issues of fact, an evidentiary hearing should be conducted to resolve those important issues. (Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507; Show-World Center v Walsh, 438 F Supp 642; Younger v Harris, 401 US 37; Bantam Books v Sullivan, 372 US 58; Doran v Salem Inn, 422 US 922; 414 Theater Corp. v Murphy, 499 F2d 1155; Black Jack Distrs. v Beame, 433 F Supp 1297.) II. The board’s retroactive application of the code provisions to require sprinklering of the Show-World area where there has been a demonstration of a vested right is an abuse of discretion and constitutes a denial of procedural due process. (People v Miller, 304 NY 105; People ex rel. Ortenberg v Bales, 224 App Div 87, 250 NY 598; New York State Investing Co. v Brady, 214 App Div 592; Matter of Caponi v Walsh, 228 App Div 86; Matter of Glenel Realty Corp. v Worthington, 4 AD2d 702, 3 NY2d 924; Matter of Rogers v Department of Housing & Bldgs. of City of N. Y., 208 Misc 785, 5 AD2d 784; Matter of Humble Oil & Refining Co. v Worthington, 49 Misc 2d 432; Matter of Milmic Realty Corp. v Board of Stds. & Appeals of City of N. Y, 35 Misc 2d 30; Rodgers v Village of Tarrytown, 302 NY 115.) III. There was insufficient evidence in the record upon which to support the finding that full sprinklering of the Show-World area was required; therefore, the basis of the finding (smoke through communicating door) was unjustified and a decision upon these grounds denies petitioner procedural due process. (Matter of Community Synagogue v Bates, 1 NY2d 445; Matter of Carnat Realty v Barnett, 33 AD2d 772; Matter of Shane v Kern, 31 AD2d 654; Matter of Shell Oil Co. v Farrington, 21 AD2d 794; Goldberg v Kelly, 397 US 254; Matter of Erdman v Ingraham, 28 AD2d 5; Matter of Hecht v Monaghan, 307 NY 461.) IV. Respondents’ ordering full sprinklering of the upper floors, after total silence of 47 years and in view of vested rights, and where feasible alternatives are available, is unreasonable on the record, thus amounting to a denial of due process. (La Porto v Village of Philmont, 39 NY2d 7; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Matter of Boardwalk & Seashore Corp. v Murdock, 175 Misc 208.) V. Since Show-World constitutes a separate area of the building with occupancy different from the upper floors, Show-World exit requirements must be determined separately. Because Show-World complied with the special exit conditions for its own area, the board’s determination is erroneous as a matter of law. VI. The refusal to permit petitioner to present evidence on reasonable alternatives to the ordered full sprinklering amounted to a denial of procedural due process, made further evident by the fact that every other building in New York County is accorded this opportunity.

      Allen G. Schwartz, Corporation Counsel (Leonard Olarsch and L. Kevin Sheridan of counsel), for respondents.
    I. Under the circumstances of this case, appellant is not entitled to an evidentiary hearing to explore the issue of alleged selective enforcement. (People v Utica Daw’s Drug Co., 16 AD2d 12; People v Goodman, 31 NY2d 262; Matter of Di Maggio v Brown, 19 NY2d 283; Oyler v Boles, 368 US 448; People v Walker, 14 NY2d 901; People v Acme Markets, 37 NY2d 326; United States v Sacco, 428 F2d 264; Black Jack Distrs. v Beame, 433 F Supp 1297; Show-World Center v Walsh, 438 F Supp 642; Ah Sin v Wittman, 198 US 500.) II. The record amply supports the determination that sprinklering throughout this 12-story building was a required safety measure and not a "pretext” to close down the first floor tenant’s "adult” business. (Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507; People ex rel. Schwab v Grant, 126 NY 473; Matter of Levy v Board of Stds. & Appeals of City of N. Y., 267 NY 347; People ex rel. Fordham Manor Reformed Church v Walsh, 244 NY 280; Matter of Community Synagogue v Bates, 1 NY2d 445; Matter of Donegan v Griffin, 270 App Div 937.) III. The requirement that a sprinkler system be installed to protect the public from fire is permissible exercise of the police power and is not violative of any vested right of appellant. (Queenside Hills Realty Co. v Wilson, 294 NY 917, affd sub nom. Queenside Hills Co. v Saxl, 328 US 80; Matter of Aron Manor Nursing Home v Board of Stds. & Appeals of City of N. Y, 35 Misc 2d 1044; Matter of Milmic Realty Corp. v Board of Stds. & Appeals of City of N. Y., 35 Misc 2d 30; People v Kaye, 212 NY 407; Cockcroft v Mitchell, 187 App Div 189; Birchwood Towers No. 1 Assoc. v Lowery, 39 AD2d 838, 31 NY2d 641; Matter of Nicolby, Inc. v Board of Stds. & Appeals of City of N. Y, 36 AD2d 793; People v Miller, 304 NY 105; People ex rel. Ortenberg v Bales, 224 App Div 87.)
   OPINION OF THE COURT

Fuchsberg, J.

In this article 78 proceeding we must define the measure of proof required to make out a prima facie case of unconstitutional discrimination in the administering of admittedly valid laws. We hold that this burden is met and, hence, an evidentiary hearing before a judicial tribunal is mandated whenever one asserting such a violation can demonstrate a reasonable probability of success on the merits of his claim.

Petitioner corporation is the owner of a 12-story, L-shaped office building located at Eighth Avenue and Forty-Second Street in the Times Square area of New York City. In March, 1974, the corporation, in contemplation of a lease negotiated between it and Show-World, Inc., a prospective tenant, applied to the city’s department of buildings for a permit to reconstruct the cellar, first and mezzanine floors to accommodate the tenant’s intended use of these premises to house an "adult” bookstore and two "adult” theatres. Because the renovations were to be confined to the bottommost floors, petitioner was able to take advantage of an expedited procedure whereby only the altered portions and not the entire building required a certificate of occupancy. The department issued the necessary permit in July, 1974.

In April, 1975, while the alterations were in progress, the Manhattan Borough Superintendent of the Department of Buildings notified petitioner’s architect that "the 2nd to 12th floors * * * do not comply with the egress provisions of either the old [1938] code or the new [1968] code, and is [sic] in apparent violation of Par. C26-600.3 of the new code.” Aside from elevators, the building, constructed in 1926 of fireproof steel and concrete, contains a single staircase or fire tower that leads to an exit on 42nd Street for use of all occupants of the building above the mezzanine floor. Since its construction, no fire or safety problems had ever been reported and, despite the department’s review of the adequacy of the building in that regard in 1951 and again in 1963, this was the first hint petitioner had of such a deficiency. Although the superintendent insisted upon the installation of sprinklers in the two exits to the Show-World premises, he served no notice of violation or gave any other indication that the remainder of the building could not continue in status quo. After further revisions in the alteration plans acceptable to the authorities, the renovations in the premises leased to Show-World were completed at a cost of over $200,000 and, in July, 1975, a temporary amended certificate of occupancy was issued.

Between July and October, 1975, however, the department changed its position. These months bore witness to one of the well-publicized periodic efforts by city officials to "clean up” the Times Square area by driving out of business purveyors of sexually explicit material. And, by what petitioner claims was not a coincidence but inspired by the so-called Midtown Task Force which the Mayor had created to engineer his antismut campaign, the commissioner of buildings during this period decided to take a fresh look at the adequacy of the plans in terms of fire safety. He then used that to persuade the Board of Standards and Appeals to issue a modification of both the original and temporary certificates of occupancy so as to order full sprinklerization of the entire building.* **

At the hearing on his application, the commissioner, contending that the fire tower and exit were inadequate means of egress for the tenants of the other 11 floors in the event of a fire, reiterated the superintendent’s objection that this limited exit complied neither with the pre-existing nor the current code requirements. In addition, the commissioner asserted that, while the exits from the Show-World premises conformed to the code, because he believed it possible that smoke could travel throughout the building via a reception window in the lobby, the sprinklers should also be installed in the three floors occupied by Show-World; however, counsel for the commissioner appears later to have abandoned that contention before the board.

For its part, the petitioner protested that the original certificate of occupancy had been issued in 1928 only after objections by the city that at least two stairwells were required had been officially considered and disregarded. Taking the position that it did not seek to avoid making all expenditures necessary to meet its fire safety obligations, and evincing a willingness to make any reasonable accommodation for that purpose, it urged that less expensive alternatives would achieve the same level of protection. In this regard, it asserted that other buildings, similarly constructed, had only been required to undertake partial sprinklering in satisfaction of their nonconformance under section C26-600.3. Full compliance with the commissioner’s order, according to the petitioner, would be confiscatory, costing over $250,000. On top of the $200,000 it had already expended for the renovations fully approved by the city only two months earlier, these costs, petitioner claimed, would push it into bankruptcy.

Alleging that the continued existence of the building’s purportedly inadequate fire exits for 47 years coupled with the superintendent’s recent approval of the Show-World alterations belied any legitimate concern by the department for fire safety, petitioner argued that the code provisions were being discriminatorily enforced against it as part of the crackdown on businesses catering sexually explicit material. But the board did not allow the petitioner to present any evidence in support of its discrimination argument, confining itself instead to the merits of the commissioner’s requested modification. On March 9, 1976, the board granted the commissioner’s application. The commissioner thereupon issued a violation notice requiring the entire building to be sprinklered. This proceeding followed.

Special Term found warrant in the record for the board’s decision and, further, dismissed petitioner’s discriminatory enforcement claim, concluding that petitioner had made no showing that the action was arbitrary, capricious or contrary to law. A divided Appellate Division affirmed by a vote of three to two. We reverse and remit because, on the basis of the showing before Special Term, the decision to dismiss the petitioner without an evidentiary hearing on the claim of discriminatory enforcement constituted an abuse of discretion as a matter of law.

The underlying right, asserted by petitioner is to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution (art I, § 11), one of the governing principles of our society. As enunciated more than a century ago in Yick Wo v Hopkins (118 US 356, 373-374), it forbids a public authority from applying or enforcing an admittedly valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances”. We have recognized the principle in cases involving the enforcement of the criminal laws (see People v Acme Markets, 37 NY2d 326; People v Goodman, 31 NY2d 262) and the administrative regulation of public health, safety and morals (see Matter of Di Maggio v Brown, 19 NY2d 283; Matter of Bell v New York State Liq. Auth., 48 AD2d 83). To invoke the right successfully, however, both the "unequal hand” and the "evil eye” requirements must be proven — to wit, there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification (Matter of Di Maggio v Brown, supra, pp 290-291; Oyler v Boles, 368 US 448, 456; Snowden v Hughes, 321 US 1, 8).

In particular, in our State, the claim of unequal protection is treated not as an affirmative defense to criminal prosecution or the imposition of a regulatory sanction but rather as a motion to dismiss or quash the official action (People v Goodman, supra, pp 268-269; People v Utica Daw’s Drug Co., 16 AD2d 12, 15-18). And, in its consideration of the merits of such a claim, as it would on a suppression motion, a court must conduct a hearing if, on the papers before it, a strong showing of selective enforcement, invidiously motivated, appears (People v Utica Daw’s Drug Co., supra, pp 16-19).

The theory is that conscious discrimination by public authorities taints the integrity of the legal process to the degree that no court should lend itself to adjudicate the merits of the enforcement action. This, even though the party raising the unequal protection claim may well have been guilty of violating the law (see People v Acme Markets, 37 NY2d 326, supra [violation of Sunday closing law]; Matter of Di Maggio v Brown, 19 NY2d 283, supra [violation of Condon-Wadlin Act forbidding strikes by public employees]; People v Solkoff, 53 Mise 2d 137 [violation of zoning ordinance]). Such a claim, of course, should not result in immunization from a new prosecution when and if the public authorities cure the defects in their enforcement methods. Thus, we see no reason here to prohibit the petitioner from invoking the constitutional right to defeat the commissioner’s enforcement of the building code against it (see English v Town of Huntington, 448 F2d 319, 323 [Friendly, Ch. J.]).

The burden of proving a claim of discriminatory enforcement is a weighty one. Common sense and public policy dictate that it be so. The presumption is that the enforcement of laws is undertaken in good faith and without discrimination (see, e.g., United States v Falk, 479 F2d 616, 620). Moreover, latitude must be accorded authorities charged with making decisions related to legitimate law enforcement interests, at times permitting them to proceed with an unequal hand. For example, it has been held that, in order to bring an appropriate case to test a new regulation or statute, or because of limited manpower or other resource inadequacies, or for the purpose of deterring other potential transgressors, certain violators may be selected for prosecution out of the class of all known violators (see People v Utica Daw’s Drug Co., 16 AD2d 12, 21, supra; Comment, 61 Col L Rev 1103, 1119-1133). Such an enforcement strategy may also permissibly be directed at only serious violations (see English v Town of Huntington, supra, p 323 [enforcement of building and zoning codes only against buildings where fire and sanitary hazards had gone far beyond tolerable limits]) or those occurring in a geographic area where the probability or rate of violations is high (see, generally, Tieger, Police Discretion and Discriminatory Enforcement, 1971 Duke LJ 717). The reasoning goes that these instances of legitimate law enforcement should not be hampered by requiring that a hearing be held every time one subject to a regulatory or criminal penalty feels he has been unfairly singled out.

A mere showing of selective enforcement is, therefore, not enough. As indicated, the disparate impact must be shown as well to have been the product of an "evil eye”. When officials acknowledge uneven enforcement against a class that has been selected for some reason apart from effective regulation, an impermissible animus has been shown (see Betty-June School v Young, 25 Misc 2d 909, 912).

Ordinarily, however, a strong inference of illicit motive will be all that can be expected because admission of intentional discrimination is likely to be rare; law enforcement officials are unlikely to avow that their intent was to practice constitutionally proscribed discrimination. Proof of intent nevertheless may appear from a convincing showing of a grossly disproportionate incidence of nonenforcement against others similarly situated in all relevant respects save for that which furnishes the basis of the claimed discrimination (cf. Gomillion v Lightfoot, 364 US 339; Yick Wo v Hopkins, 118 US 356, supra). For history teaches that it is by no means to be assumed that motive and disproportionality have to be discrete. The more convincing is the demonstration of the "unequal hand” — the grosser the disparity of enforcement and the greater the similarity between those prosecuted and those not prosecuted —the stronger will be the inference of illicit motive, since conscious discrimination may then stand out as the only reasonable explanation for the pattern of enforcement.

Nevertheless, as a practical matter, difficulties in obtaining detailed knowledge of unprosecuted violators in order to meet the burden of demonstrating similarity are likely to be great. Therefore, because the importance of the right to be free from impermissible selective enforcement must be of more than theoretical value, the burden of demonstrating a violation, albeit- heavy, must not be so heavy as to preclude any realistic opportunity for success. "Latitude should be allowed in this complex area of proof’ (People v Walker, 14 NY2d 901, 902).

Consequently, the threshold showing needed to make out a colorable claim must mediate between our reluctance to impugn legitimate law enforcement methods and our desire to safeguard constitutional rights. To establish enough of a case to trigger an evidentiary hearing as of right, a petitioner must show, on the strength of sworn affidavits and other proof supplying factual detail, that he is more likely than not to succeed on the merits. In formulating this test we draw rough guidance from the principles governing the issuance of a preliminary injunction (see, e.g., Siegel, New York Practice, § 328, p 399), since, in essence, the relief sought in petitioner’s claim will enjoin the authorities from enforcing the commissioner’s order against it. Only the meaningful showing to which we have alluded will enable a court to infer the reasonable probability of success (cf. Show-World. Center v Walsh, 438 F Supp 642, 651 ["strong likelihood”]). The interdependence of evidence relating to uneven enforcement and motivation, on which we have already commented, is a factor which, of course, is to be considered when determining whether this standard has been met (cf. United States v Oaks, 508 F2d 1403, 1404; United States v Berrios, 501 F2d 1207, 1209-1210; United States v Falk, 479 F2d 616, 623, supra).

Here petitioner met the test. It is clear that it made a_ prima facie showing of the merits of its assertions that both disparate impact and invidious motive exist. It alleged different treatment based solely on the nature of its tenant Show-World’s business. Although the transcript of the hearing before the board discloses that the commissioner stated that he had "readily available” a list of other buildings against which similar action had been taken, the list actually furnished to petitioner contained but three addresses without further description of any kind. In contrast, as the petitioners point out on the basis of public record, a hearing could very well have disclosed that, in at least 21 other buildings having a single means of egress, less costly partial sprinkerlization was all the commissioner required to provide adequate fire protection (see Black Jack Distrs. v Beame, 433 F Supp 1297, 1301). This evidence of unequal treatment may be all the more compelling because the code section applied against petitioner (§ C26-600.3) vests discretion in the commissioner to formulate remedies for inadequate exit facilities.

Further, the demonstration of illegitimate motive was direct as well as indirect. As previously noted, at approximately the same time that the commissioner requested modification of petitioner’s certificates of occupancy, city officials, and in particular the Mayor’s assistant in charge of the Midtown Task Force, were unabashedly trumpeting: "[d]espite all the constitutional limitations, we stop at nothing when we try to put one of these places out of business.” Consistent with that public statement, petitioner pleads that the Midtown Task Force had directed the department of buildings to strictly enforce the building code in aid of its campaign. However great may have been the city’s frustration at its inability to reduce the number of sex-related businesses (see, generally, Project, 52 NYU L Rev 810, esp p 881, and n 343; pp 894-900; but cf. Lopate, 42d Street You Ain’t No Sodom, NY Times, March 8, 1979), the existence of this motivation could suffice to taint the commissioner’s enforcement of the building regulations (see People v Acme Markets, 37 NY2d 326, 330, supra; People v Tornatore, 46 Misc 2d 908). It requires no indorsement or rejection of the task force’s goals to recognize how readily it could be found that they were in fact unrelated to legitimate fire prevention.

But petitioner did not rest solely on his presentation of the official’s statement to show motive. Despite the fact that the building had been under the department’s active scrutiny for nearly two years in connection with the reconstruction of its lower floors, no action was taken until the antipornography drive was undertaken. More than this, the record indicates that two previous submissions of the building’s plans for department approval of alterations to higher floors — beyond question entailing review of the fire tower and exit facilities— had not generated an unfavorable administrative response. All this could undermine the commissioner’s claimed motivation, suggesting as it does more than the possibility that his finding of unsafe conditions was but a post hoc justification. Of course, at this point we acknowledge that the commissioner may, upon our remitting this matter, establish that his actions were in fact undertaken in good faith or that his full sprinkerlization order was not an unreasonably excessive measure in this context. In fact, it may turn out that the dangers here are of such magnitude that the police power can only be vindicated by nothing short of the drastic cure for which the city presses. At this stage, though, taken as a whole, the nature and quantum of petitioner’s proposed proofs were more than adequate to justify a judicial hearing, all the more so because the alleged discrimination involved the exercise of 1st Amendment rights (cf. United States v Oaks, 508 F2d 1403, supra; United States v Falk, 479 F2d 616, supra).

In sum, petitioner, having been improperly deprived of an opportunity to present and develop additional proof in support of its constitutional claim, should now have the chance to do so. We should, therefore, reverse and remit this matter to Special Term for a hearing on the merits of the discriminatory enforcement issue.

Gabrielli, J.

(dissenting). Neither law nor conscience will permit me to agree that petitioner has made out a plausible claim of impermissible discriminatory enforcement of the law, as claimed by four Judges of this court. I am thoroughly convinced that the determinations made by the Appellate Division and the Supreme Court at Special Term were entirely correct.

This proceeding involves a desperate attempt by the owner of a large unsafe building in midtown Manhattan to avoid, or at least delay, the expense of certain modifications necessary to make the building safe not only for the public but also for the several hundred people who are required to work therein. It is estimated that some 800 people are involved. Ignored by the majority of this court is the fact that the building is concededly in violation of an admittedly valid safety provision, and yet the owner has sought to oppose any modification on the basis of several meritless legal arguments, one of which the majority of this court has, in my opinion, incorrectly and unfortunately accepted. Petitioner suggests that its building has been improperly selected and required to obey the safety provision simply because it contains certain facilities catering to the erotic tastes of some citizens. The majority of this court today concludes that petitioner has made out a sufficient claim to warrant a hearing. I disagree.

Careful examination of petitioner’s complaint and its brief in this court as well as the record, reveals certain facts interesting in the extreme. Petitioner’s original selective enforcement claim was based on an unsupported allegation that respondents were taking no action against other buildings with similar defects even after the safety violations were brought to the attention of the appropriate officials. During the pendency of this proceeding, however, petitioner apparently learned that respondents had in fact taken action to enforce the law against other buildings. As a result, petitioner has now changed the focus of its claim. Rather than arguing that respondents are discriminatorily enforcing the law only against buildings containing adult movie houses and pornographic bookshops, petitioner now argues that the particular corrective action demanded by respondents in this instance is more costly than the type of corrective measures ordered in other buildings with similar defects.

Preliminarily, I note that the particular corrective action proper in a particular building will of necessity vary with the size, occupancy level, age, and condition of the building. The evaluation of such factors is best left to the expertise of the agencies charged with the enforcement of safety regulations and ordinances, as is the final determination of just what improvement is needed in a particular building. Such decisions should not be made by courts which are ill-equipped for them, not normally being composed of engineers.

More significant, however, is the unquestionable fact that in this instance petitioner made no attempt whatsoever to convince the appropriate public officials that the remedy proposed by respondents, namely, installation of a full sprinklering system, was in fact unnecessary, and that some other method would serve equally well. During the course of a long and exhaustive hearing before the Board of Standards and Appeals, before whom petitioner was afforded an opportunity to present any and all relevant information on the safety issue, petitioner unwisely took an "all or nothing” position, arguing first, and almost facetiously, that the city could not enforce its safety regulations against the building now since it had not done so before, and second that even though the building was in violation of the applicable provisions of the code, it was nonetheless safe. The prior argument has, of course, been rejected by every Judge and court faced with it; the latter is singularly unpersuasive, especially in light of the fact that one of petitioner’s own experts, when asked directly whether the building, as it presently exists is safe, at first sought to evade the issue by characterizing the query as "a loaded question” and then responding that he would not build such a building today. He nevertheless stated that it was safe, mainly because there had as yet been no fires in the building. No one has, or ought to have, a so-called vested right in what is concededly a "fire trap” — just as no one has a vested right in a nuisance.

In any event, having failed to propose to the board alternative, less costly methods of remedying the admitted violation covering the entire building, petitioner may not now be heard to complain that the particular corrective measure finally decided upon was excessive. Possibly some less costly method would in fact be adequate. That determination, however, is one for the appropriate agencies and may not be made for the first time in the courts within the context of and as the proof of a claim of discriminatory enforcement.

The majority of this court suggests that a different result is warranted on the theory that the question whether full sprinklerization was necessary was not properly before the board. Apparently this is based on the belief that the only function of the board at that hearing was to determine whether some modification of the certificate of occupancy was necessary, without determining what modification. Then, presumably, it would be for the commissioner to make such a determination subsequent to the board granting him permission to modify the certificate in, apparently, some manner completely unknown to the board. Assuming arguendo that this rather convoluted procedure does express the proper interrelationship of the board and the commissioner, then it would appear certain that after the commissioner issued the order requiring full sprinklerization, it was necessary for petitioner, if it wished to challenge that order, to follow the appropriate route of administrative review by taking an appeal to the board. Having failed to do so, and thus having precluded consideration of its claims by the board, the group best equipped to deal with them, petitioner should be precluded from now seeking, as the majority candidly admits, to assert those claims for the first time in this proceeding. In either case the result is the same. Either petitioner had an opportunity to present its claims to the board at the hearing, and failed to do so, or petitioner failed to appeal to the board from the order of the commissioner requiring full sprinklerization; in either case, petitioner is precluded from now asserting those claims in court.

When all is said and done, the simple fact remains that petitioner owns and is operating an unsafe office building. The danger is a real one; at any time the building could catch fire and in that case there would simply be insufficient means of escape for persons trapped in the building. In such a case I cannot countenance this court’s decision to reward petitioner’s delaying tactics and to overlook its failure to have made its objections in the proper forum at the proper time. Accordingly, I vote to affirm the order appealed from.

Judges Jasen, Jones and Wachtler concur with Judge Fuchsberg; Judge Gabrielu dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

Order reversed, with costs, and the matter remitted to Supreme Court, New York County, for a hearing in accordance with the opinion herein.

      . Subdivision (b) of section C26-121.5 of the Administrative Code of the City of New York provides that if the alteration affects less than 20% of a building taller than three stories, a new certificate of occupancy for the entire building need not be obtained.

      . Section C26-600.3 of the Administrative Code provides the commissioner with discretion in determining the appropriate corrective measures that must be implemented where exit facilities do not conform to the code requirements: "Inadequate exits for existing structures. — Every structure existing on the effective date of this code which is not provided with exit facilities as prescribed in this code, and in which the exit facilities are, in the opinion of the commissioner, inadequate for the safety of the occupants, shall be provided with such means of egress or fire protection as the commissioner shall direct.”

      . Section D26-1.07 (subd a, par 42) of the Administrative Code defines a fire tower as "a fireproof stair, enclosed in fireproof walls, without access to the building from which it affords egress other than by a fireproof self-closing door opening on a communicating balcony or other outside platform at each floor level.”

      . The commissioner acted pursuant to section 1804 (subd [4], par [c], cl [6]) of the New York City Charter, which provides: "no order, direction or requirement affecting or at variance with any matter set forth in any certificate of occupancy shall be made or issued by any agency or officer of the city * * * unless and until the certificate is set aside, vacated or modified by the board of standards and appeals or a court of competent jurisdiction upon the application of the agency, department, commission, or officer or member thereof, seeking to make or issue such order, direction or requirement. All such applications shall be made in writing and filed with the board or court for hearing thereon”.

      . The hearing accorded petitioner before the board, as we have noted, did not consider the merits of the discrimination claim. Such an argument was properly brought only before a judicial tribunal (see Matter of Di Maggio v Brown, supra, p 292).

      . Judicial notice may be taken of certain events subsequent to Special Term’s decision that may bear on the discrimination claim. Thus, we observe that in March, 1977 the commissioner issued a vacate order against the entire building but enforced it only against Show-World, which had two sprinklered exits, despite the claimed inadequacy of the fire tower that served the other 11 floors.

      . As indicated earlier, the Board of Standards and Appeals granted the commissioner’s request for modification of the petitioner’s certificates of occupancy. It was only thereafter that the commissioner could issue his full sprinklerization order. In any event, the board’s determination countenanced the fact, if not yet the manner, of the discrimination of which the petitioner complains. Petitioner therefore should not be limited, as the penultimate paragraph of the dissent suggests, to an appeal to the very board that had sanctioned the unequal protection. Instead, it was entitled to an impartial evaluation of the action in which the board and the commissioner in effect joined. (See, generally, 3 Davis, Administrative Law Treatise, § 20.07 [exhaustion not required where administrative remedies may be futile]; 1 NY Jur, Administrative Law, § 171, p 575.) And, most significantly, the city itself at no place has raised any exhaustion of remedies point, in recognition, we assume, of the fact that the exahustion rule in any event does not apply where, as here, the challenge to administrative action is on constitutional grounds (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57-58).


text:
    Benderson Development Company, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 53632.)
    Argued October 26, 1978;
    decided November 30, 1978

      APPEARANCES OF COUNSEL

      Harold M. Halpern for appellant.

      Louis J. Lefkowitz, Attorney-General (Dennis Hurley and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (60 AD2d 986).

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


text:
    Ann B. Molier, Respondent, v John Molier, Jr., Appellant.
    Argued October 17, 1978;
    decided November 30, 1978

      APPEARANCES OF COUNSEL

      Andrew F. Capoccia for appellant.

      J. R. Hoover and Steven L. Barcus for respondent.
   OPINION OF THE COURT

Order modified, without costs, and the matter remitted to Family Court, Chemung County, for a further hearing limited exclusively to the statements of fact made in the Law Guardian’s report, which were supported solely by ex parte investigation. On the basis of the further hearing the court may take such action as its findings may require. As so modified, order affirmed.

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


text:
    Stephen Fisher, Appellant, v Marvin Schur et al., Respondents.
    Submitted October 26, 1978;
    decided November 30, 1978

      APPEARANCES OF COUNSEL

      Stephen Fisher, appellant pro se.

      Laurence Greenwald and Karen Marcuvitz Levy for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (61 AD2d 780).

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


text:
    The People of the State of New York, Appellant, v Donald Jackson, Respondent.
    Submitted September 14, 1978;
    decided November 30,1978

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Stephanie Mary Mahon and Anthony Joseph Servino of counsel), for appellant.

      John M. Perone for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court (CPL 470.40, subd 2, par [b]).

Although inartfully drawn, the indictment does contain all the elements of the crime and therefore is not defective. Any ambiguity with respect to the precise nature of the deviate sexual intercourse alleged could be, and was in this case, clarified by the bill of particulars (see, People v Iannone, 45 NY2d 589).

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

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of the Claim of Marjory A. Boyd, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted October 24,1978;
    decided November 30,1978

      APPEARANCES OF COUNSEL

      William D. Schultz for appellant.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz, Murray Sylvester and Grace A. Brannigan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 804).

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


text:
    In the Matter of the Arbitration between Yonkers Federation of Teachers, Respondent, and Board of Education of the Yonkers City School District, Appellant.
    Argued October 16,1978;
    decided November 30,1978

      APPEARANCES OF COUNSEL

      Eugene F. Fox, Corporation Counsel (Arthur J. Doran, Jr., of counsel), for appellant.

      David N. Stein and James R. Sandner for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (60 AD2d 583). Moreover, the objection was never raised by respondent board of education under CPLR article 75 in advance of the arbitration.

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