author: Bellacosa, J. Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v John Kohl, Appellant.
    Argued March 24, 1988;
    decided June 7, 1988

      POINTS OF COUNSEL

      Clark J. Zimmermann for appellant.
    I. The shift of the burden of proof of insanity effected by Penal Law §40.15 violates the due process provisions of the New York State Constitution. (People v Laietta, 30 NY2d 68; People v Segal, 54 NY2d 58; People v Patterson, 39 NY2d 288; Matter of Lee v County Ct., 27 NY2d 432; People v Schiavi, 64 NY2d 704; People v Singer, 44 NY2d 241; People v Isaacson, 44 NY2d 511; People v McManus, 67 NY2d 541; Martin v Ohio, 480 US 228.) II. The trial court’s finding that appellant failed to establish insanity by a preponderance of the evidence was against the weight of the evidence as a matter of law. III. Appellant’s right to a jury trial was violated by the court’s acceptance of an incomplete form of waiver which was not predicated on an adequate showing that such waiver was knowingly and intelligently made. (People v White, 56 NY2d 110; People v Reason, 37 NY2d 351.) IV. Legal error occurred due to the failure to conduct a charge conference and to consider the lesser included offense of manslaughter, first degree. (People v Moye, 66 NY2d 887; People v Patterson, 39 NY2d 288.) V. The consecutive sentences imposed on the murder and assault convictions were unlawful under Penal Law § 70.25 (2). (People v Brathwaite, 63 NY2d 839.)

      Michael F. Griffith, District Attorney (Valerie Friedlander of counsel), for respondent.
    I. Penal Law § 40.15 does not violate the Due Process Clause of the New York State Constitution. (In re Winship, 397 US 358; People v Patterson, 39 NY2d 288, 432 US 197; Martin v Ohio, 480 US 228; People v Silver, 33 NY2d 475; Brotherton v People, 75 NY 159; People v Lancaster, 69 NY2d 20; People v Isaacson, 44 NY2d 511; People v Nino, 149 NY 317.) II. The court below implicitly found the verdict was not against the weight of the evidence. Therefore, there is no issue of law for this court’s review. (People v Bleakley, 69 NY2d 490; People v Wood, 12 NY2d 69; People v Robertson, 123 AD2d 795; People v Buthy, 38 AD2d 10; People v Jandelli, 118 AD2d 656; People v Bell, 64 AD2d 785.) III. There was no obligation to conduct a charge conference and consider the lesser included offense of manslaughter, first degree. (People v Harris, 109 AD2d 351; People v Chapman, 60 AD2d 584; People v Smith, 77 AD2d 712; People v Pitello, 97 AD2d 801; People v Crimmins, 36 NY2d 230; People v Vicaretti, 54 AD2d 236.) IV. Defendant’s jury trial waiver was knowing and voluntary and the trial court’s inquiry was adequate. (People v Johnson, 51 NY2d 986; People v Davidson, 123 AD2d 782; People v McQueen, 52 NY2d 1025; People v Dominy, 116 AD2d 851; People v Duchin, 16 AD2d 483; People v Logue, 115 AD2d 285; People v Basora, 111 AD2d 248.) V. Consecutive sentences were properly imposed upon defendant’s convictions for intentional murder of Peter Schütz and depraved mind murder of Matthew Schütz. (People v Underwood, 52 NY2d 882; People v Brathwaite, 63 NY2d 839.)
   OPINION OF THE COURT

Bellacosa, J.

The decisive issue is whether Penal Law § 40.15, defining New York’s affirmative defense of mental disease or defect, violates the State constitutional Due Process Clause because Penal Law § 25.00 (2) places the burden of proof by a preponderance of evidence on defendants for all affirmative defenses. We conclude that there is no State constitutional violation because placing this burden on the defendant does not relieve or transform the People’s primary and constant burden of proving, beyond a reasonable doubt, all the elements of the crimes charged, including all components of the applicable culpable mental state element. Thus, we affirm the Appellate Division order upholding the conviction.

Defendant rented a house on a dairy farm in which he resided with his girlfriend and their infant son. On May 13, 1985, Peter Schütz took his two sons, aged 2 and 3, with him to the dairy farm to deliver feed. When the delivery was completed, Schütz lifted his sons into the front seat of his truck and started to leave. Defendant came out of his house and fired shots from a .12 gauge shotgun into the front seat. The initial shots killed one son and wounded the other and Schütz. Returning to his house, defendant told his girlfriend that the man outside had sexually assaulted defendant’s children. Defendant reloaded the gun and ran out screaming, "I got to get him. He’s getting away.” Schütz had staggered to the barn where defendant stalked him, firing two more shots. Schütz was on his hands and knees pleading for his life when defendant fired two final, fatal shots, saying, "Take that, you son of a bitch.” The owner of the farm appeared and yelled, "Why, why did you do this?” Defendant said that Schütz was going to pay one of his sons to sexually assault defendant’s infant son. Before the police arrived, defendant assured his girlfriend, "They can’t hurt me. I’m from another planet.”

Defendant was charged with two counts each of intentional and depraved mind murder, second degree, and one count each of intentional and depraved mind assault, first degree. He waived his right to jury trial (CPL 320.10), and indicated that he would assert the affirmative defense of mental disease or defect (Penal Law § 40.15).

At the bench trial, the prosecution at first concentrated on the factual developments by testimony of the eyewitnesses. The defense then called the defendant’s girlfriend and his mother, who testified defendant frequently complained of severe head pains and exhibited bizarre behavior. Two psychiatrists, as experts for defendant, added that he was suffering from schizophrenia, paranoid type. The People presented two psychiatrists who, after examination of defendant, concluded he was not suffering from any mental disease or defect. Three of these psychiatrists agreed that at the time defendant fired the gun he intended to shoot his victims and that it was reasonable to conclude that defendant knew that firing a gun could kill his victims.

The trial court found defendant guilty of intentional murder of Schütz, depraved mind murder of one son, and depraved mind assault of the other son. The trial court expressly found that "each and every element of those three counts * * * have been proven beyond a reasonable doubt” and that "defendant has failed to prove by a preponderance of the evidence that he should be found not guilty because he lacked criminal responsibility by reason of mental disease or defect”.

In New York, criminal responsibility may be avoided if "as a result of mental disease or defect, [defendant] lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong” (Penal Law § 40.15). Prior to 1984, the so-called insanity defense was catalogued as a traditional defense which the prosecution bore the burden of disproving beyond a reasonable doubt, in addition to its usual burden as to all elements of the crimes charged (Penal Law § 25.00 [1]; and former § 30.05 [2]). The prosecution, of course, enjoyed the presumption that all persons are sane. Thus defendant, even under former law, bore some burden of coming forward with evidence rebutting the presumption of sanity (see, People v Silver, 33 NY2d 475, 480-481; Brotherton v People, 75 NY 159, 162-163). The presumption, however, was rebuttable: "[the] slightest creditable attack * * * even 'non-psychiatric proof alone might overcome the presumption and sustain a verdict of acquittal” (People v Silver, supra, at 481-482). In 1984, after years of intensive study and debate, the Legislature repealed Penal Law § 30.05 and substituted Penal Law § 40.15, which made mental disease or defect an "affirmative” defense (L 1984, ch 668; see also, Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 40.15, at 141-144; McQuillan, Insanity as Affirmative Defense — A Proposed Standard in New York, NYU, June 22, 1987, at 1, col 3; 1981 Report of NY Law Rev Commn, 1981 NY Legis Doc No. 65, reprinted in 1981 McKinney’s Session Laws of NY, at 2251-2293).

The United States Supreme Court has upheld several statutes placing the burden of proof for insanity on a defendant. In Leland v Oregon (343 US 790, reh denied 344 US 848), a murder conviction was challenged on the ground that requiring defendant to prove insanity beyond a reasonable doubt at the time of the murder violated due process under the 14th Amendment. The Supreme Court upheld the Oregon statute, noting that the burden of proving premeditated design — that statute’s mens rea — was on the People initially and at no time shifted to the defendant. Defendant, on the other hand, had the burden of proving insanity — a legally distinct issue. The Supreme Court gave special weight to the fact that the jury was instructed that they first had to consider whether the People had sustained their full burden, and that only if satisfied beyond a reasonable doubt of defendant’s guilt could the jury then turn to the issue of defendant’s insanity and his burden in respect to it (see also, Rivera v Delaware, 429 US 877).

In Mullaney v Wilbur (421 US 684), defendant was charged with murder under a Maine homicide statute. Defendant raised that State’s statutory affirmative defense, which placed on defendant the burden of proving "heat of passion on sudden provocation”. The jury was instructed that the "malice aforethought” component of the Maine statute was an indispensable element of the crime and that "malice” could be implied from a deliberate act committed suddenly, without provocation. Consequently, the prosecution’s burden of proving malice was satisfied by a presumption and the prosecution was never required to come forward with evidence of malice. The instruction emphasized that " 'malice aforethought and heat of passion on sudden provocation are two inconsistent things’ * * * thus by proving the latter the defendant would negate the former” (see, Mullaney v Wilbur, supra, at 686-687). The Supreme Court held that, under this statutory scheme and jury instruction, defendant’s Federal due process rights were transgressed because the prosecution could rest on a presumption of malice throughout the trial, while the defendant was required to negate that very presumption with proof that he acted under the heat of passion, thus causing defendant to disprove directly a presumed essential element of the crime charged.

Those cases were building blocks to People v Patterson (39 NY2d 288, affd 432 US 197), where we and the Supreme Court itself upheld, against a Federal constitutional due process challenge, New York’s affirmative defense of extreme emotional disturbance (Penal Law § 125.25 [1]). We analogized that affirmative defense to the Oregon statute in Leland and distinguished it from the Maine statute in Mullaney, saying: "[The] prosecution is at all times required to prove, beyond a reasonable doubt, the facts bearing [on] the defendant’s intent. That the defendant acted because of an extreme emotional disturbance does not negate intent. The influence of an extreme emotional disturbance explains the defendant’s intentional action, but does not make the action any less intentional” (39 NY2d, supra, at 302). The Supreme Court affirmed (432 US 197) and held: "This affirmative defense * * * does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion” (id., at 206-207; see also, Martin v Ohio, 480 US 228, 235, 236).

Recognizing the high hurdles impeding a successful Federal constitutional challenge, defendant asserts that the New York State Constitution should provide a more stringent due process standard than that allowed by the Supreme Court cases, and that, alternatively, New York’s presumption of sanity renders Penal Law § 40.15 unconstitutional.

In determining whether to exercise independent judgment under the New York State Constitution to provide greater protection than the due process floor set by the Supreme Court, we first look to the texts of the Constitutions. If the provision at issue differs from that of its Federal counterpart, we examine the historical basis for the distinction (People v P. J. Video, 68 NY2d 296, cert denied 479 US 1091; People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557; see also, People v Class, 67 NY2d 431, on remand from New York v Class, 475 US 106). If the rationale for the differing text is not material to the analysis, then we look further to see whether there are fundamental justice and fairness concerns of this State which are left unaddressed under prevailing Federal law and which are therefore warranted under the independent broader State protection (see, People v Alvarez, 70 NY2d 375).

Here, textual difference is not material to our analysis of Penal Law §40.15 (cf., Sharrock v Dell Buick-Cadillac, 45 NY2d 152 [noting that the State due process provision lacks express reference to a State action requirement]). As to the second tier of consideration, we are satisfied independently and on the ground that the Supreme Court rationale in the Leland, Mullaney and Patterson line of cases fully serves New York State’s interest in ensuring fundamental fairness in criminal proceedings affected by the insanity issue. We thus hold that defendant was afforded State due process because New York’s new scheme fits appropriately within sound precedents developed in cases analyzing pertinent statutory schemes under the Federal Constitution, which are also consistent with our own State’s fundamental jurisprudence, values and history in the criminal law.

Our substantive analysis begins with the axiom that in a criminal prosecution due process imposes on the prosecution the unalterable burden of proving beyond a reasonable doubt every element of the crime charged (In re Winship, 397 US 358, 364; People v Patterson, 39 NY2d 288, affd. 432 US 197, supra). Defendant argues that the 1984 amendment violates the State constitutional due process guarantee in that it, in effect, transfers to defendant the legal responsibility of establishing innocence by disproving the culpable mental state — an essential element of the crime charged. The new statute does not do that.

Both the crime-defining statute and the affirmative defense one include consideration of and the production of evidence bearing on the defendant’s mental state and processes at the time of the crime. However, the core of the People’s proof and burden on the issue of criminal culpability established that defendant, at the time he fired the shots with respect to separate victims, "intended” his act, i.e., had a "conscious objective * * * to cause [the] result or to engage in [the] conduct” (Penal Law § 15.05 [1]), and acted "recklessly”, i.e., with "aware[ness of] and consciou[s] disregard] [of] a substantial and unjustifiable risk that [the] result will occur or that [the] circumstance[s] exist” (Penal Law § 15.05 [3]). This was established by eyewitness testimony of defendant’s actions and by his statements during and shortly after the shooting. Defendant, in turn, tried to establish by way of lay and expert testimony that he was "insane”, a precise legal concept not necessarily inconsistent with the culpable mental state of legal intent or recklessness.

We must caution, however, that if one is unable to appreciate the nature and consequences of the conduct (Penal Law § 40.15), it may be difficult to support a finding, at least in some cases, that the person had "conscious objective” to kill the victim (Penal Law § 15.05 [1]; § 125.25 [1]). For this reason, in a case where the concepts defined in those sections factually overlap with one another, it may be legally impossible in a given case for such a person to form a "conscious objective” to commit the crime. Then, the affirmative defense statute suffers the potential of impermissibly shifting to defendant the burden of disproving the formation of conscious objective to kill another human being, and the statute as applied could be unconstitutional.

Thus, in a particular case, this potentiality could sow confusion and erroneous application of rules among juries with respect to the People’s burden of proving the element of intent and defendant’s burden of proving the affirmative defense of insanity (see, Martin v Ohio, 480 US 228, 236-240 [Powell, J., dissenting], supra; McQuillan, Insanity as Affirmative Defense — A Proposed Standard in New York, NYLJ, June 22, 1987, at 1, col 3). This can be reasonably safeguarded by jury instructions which should emphasize the People’s primary, ultimate, and nontransferable burden of proving all the elements of criminal intent beyond a reasonable doubt. Indeed, without transferring any burden to the defendant, the trial court should also, after the primary instructions, sequentially advise the jury that defendant bears a different burden on insanity, and that evidence of insanity relating to whether defendant knew what he was doing must be considered by the jury in its consideration of the People’s nontransferable satisfaction of its burden to prove intent beyond a reasonable doubt. In this bench trial, of course, the Trial Judge served as finder of fact, and the defendant does not argue that the court improperly intermixed the respective burdens of proof.

We note also that the presumption-of-sanity factor (see, People v Silver, 33 NY2d 475, supra) does not affect our interpretation of the new burden of proof statute for the affirmative defense so as to deprive defendant of due process. It has never relieved the People of the burden of establishing beyond a reasonable doubt defendant’s pertinent culpable mental state at the time the crime was committed, including those elements that may overlap with the affirmative defense of mental disease or defect. That was so before 1984 in Penal Law § 30.05 and it remains so afterwards in Penal Law § 40.15.

A point-by-point refutation of the dissenting opinion is not necessary save for these brief comments: The court has not shifted the burden as to any element of any crime charged; the court has not departed or wavered from fundamental principles of criminal jurisprudence either in an historical context, where there has been no such statute, or in the modern evolution and understanding of the insanity problem as it affects criminal responsibility; the court, of course, cannot accept the views of the dissenting opinion which fails to provide an analytic basis for deviating in this case from the modern and sound jurisprudence of the Supreme Court of the United States and of our own Legislature solely on independent State constitutional grounds; and we note finally that People v Schmidt (216 NY 324, 339), in full context and holding, supports the approach we have adopted in this case.

Finally, the term mental disease or defect may have diverse meanings in the field of mental health, but it is for the Legislature, not the courts, to define what constitutes legal insanity in a criminal law context and to ascribe, within constitutional limits, the proper burden of proof for this exculpatory principle (see, People v Patterson, 39 NY2d, supra, at 305-306 [Breitel, Ch. J., concurring], a,ffd 432 US 197). Similarly, it is for the Legislature to define what constitutes a crime in this State, not the judiciary. Under Penal Law § 125.25 (1), the burden on the prosecution is to prove that defendant intended to kill another human being and did kill that person or a third person. The modern statutory definition contains no explicit remnant of the common-law malice aforethought, or evil mind, and the prosecution burden is satisfied in this respect by proving that the defendant was capable of forming the conscious objective of committing the crime. On the other hand, the dissent’s argument that the concept of legal sanity is actually a merged element of the crime of murder is tantamount to saying that the Legislature is without power to define what constitutes legal insanity, and what constitutes murder. This is fundamentally contrary to well-settled criminal law principles (see, Penal Law § 1.05; People v Blanchard, 288 NY 145).

Defendant’s other points relate to issues which are either unpreserved, without merit or involve factual considerations beyond the scope of this court’s review.

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

Hancock, Jr., J.

(dissenting). "Crimes can only be committed by human beings who are in a condition to be responsible for their acts, and upon this general proposition the prosecutor holds the affirmative, and the burden of proof is upon him” (Brotherton v People, 75 NY 159, 162 [Church, Ch. J.]). Derived from fundamental principles in the common law and in the the early decisions of our nation’s leading courts, this rule is basic to the criminal jurisprudence of this State and, I believe, the due process of law guaranteed by the New York Constitution.

In a sharp departure from this basic rule and from the long line of precedents which have recognized and enforced it, the majority holds that legal sanity is not an essential element of the crime of murder, that sanity and murder may be defined as the Legislature chooses, and that mere "conscious objective” — without regard to the capacity to appreciate that one’s conduct is wrong — is all the mental culpability necessary to constitute the crime of murder (see, majority opn, at 200). The majority, therefore, upholds the new section 40.15 of the Penal Law which transforms insanity into an "affirmative defense” (see, Penal Law § 25.00 [2]) and, thereby, relieves the prosecution of the burden of proving a defendant’s mental competency. Under the statute, the prosecution bears no burden of persuasion on the issue whatsoever, even after the defendant has first satisfied the burden of production by raising the issue with clear and substantial evidence of mental disease or defect. In my view, such a rule contravenes fundamental principles of our system of criminal justice and, therefore, violates due process of law under the State Constitution.

Moreover, the statute in question, which the majority acknowledges may be unconstitutional in some applications, is not saved simply because the prosecution must prove the defendant’s statutorily defined "intent” — i.e., that he was conscious of what he was doing (see, Penal Law § 15.05 [1]). Mental competency, which for centuries in Anglo-American law has been essential to criminal culpability, certainly means more than that. I respectfully dissent.

I

Before the framing of our State and Federal Constitutions, it was settled Anglo-American law that if " 'a lunatic in the time of his lunacy * * * do kill a man, this is no felonious act’ ” (Moore, M’Naghten is Dead — or is it?, 3 Houston L Rev 58, 62 [quoting William Lambard of Lincolns’ Inn in 1582]; see, United States v Freeman, 357 F2d 606, 615-616 [2d Cir]). Beginning as early as the 13th century, there developed in English law the notion that the state should punish only those who were morally blameworthy. The criminal law was considered inapplicable to the insane on the ground that they were incapable of forming a criminal intent — or "guilty mind”— and, therefore, incapable of culpable behavior. Under this mens rea doctrine, insanity exculpated the defendant because of the absence of the state of mind deemed an inherent element of any criminal responsibility (see, Slovenko, The Insanity Defense in the Wake of the Hinckley Trial, 14 Rutgers LJ, 373, 382; Fritz, The Proposed Federal Insanity Defense: Should the Quality of Mercy Suffer for the Sake of Safety?, 22 Am Crim L Rev 49, 50-52).

The most influential commentators of the common law stated the ancient rule succinctly when they defined criminality. "An unwarrantable act without a vicious will”, wrote Blackstone, "is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will” (4 Blackstone, Commentaries, at 21). His definition mirrored that of Coke who stated that murder could be committed only by "a person of sound memory and discrimination”. This was a principle so basic that it formed the introduction to Coke’s seminal treatment of felonies (see, 3 Coke, Institutes of Laws of England 47, 56 [Coke used the Latin phrase "actus non facit reum nisi mens sit rea”, meaning an act does not make one guilty unless his mind is guilty]; see also, Stokes v People, 53 NY 164, 179).

This compound concept of criminality took deep root in early American law. Our substantive law of crimes was based on a theory of punishing only "free agent[s] confronted with a choice between doing right and doing wrong and choosing freely to do wrong” (Pound, Introduction to Sayre, Cases on Criminal Law [1927]; see, Morissette v United States, 342 US 246, 250-252). Leading state courts in this country early affirmed the common-law rule, stating in various terms that "[s]anity is an ingredient in crime as essential as the overt act, and if sanity is wanting there can be no crime” (Chase v People, 40 Ill 352, 358; see also, e.g., Commonwealth v Rogers, 7 Metc [Mass] 500, 504; People v Garbutt, 17 Mich 9, 22).

The same principle was recognized in this State. Our earliest statute on the subject declared that "[n]o act done by a person in a state of insanity can be punished as an offence” (Rev Stat of 1828, part IV, ch 1, tit 7, § 2). Applying the principle thus codified, the courts of this State regarded it as the "settled law” of New York on the question of "responsibility for criminal acts [emphasis added]”, the "correctness of [which] cannot be questioned” (Flanagan v People, 52 NY 467, 469; Willis v People, 32 NY 715, 719; see also, Walker v People, 88 NY 81, 88; Brotherton v People, 75 NY 159, 162, supra; Freeman v People, 4 Denio 9, and cases cited therein). As we explained in Willis: if a "person was under a delusion, and did not know right from wrong, or that the act was an offense or was wrong, he was insane, and was not responsible for the act” — his conduct was simply not criminal (32 NY, supra, at 719; see also, Brotherton v People, supra, at 162; McKee v People, 36 NY 112, 115; People v McCann, 16 NY 58, 66).

When the criminal laws of this State were revised in the Penal Code of 1881, this rule was explicitly incorporated. While codifying the test for legal insanity from M’Naghten’s Case (10 Clark & Fin 200, 8 Eng Rep 718), the statute provided in unqualified terms that "[a]n act done by a person who is an idiot, imbecile, lunatic or insane, is not a crime [emphasis added]” (Penal Code of 1881 § 20). This provision was retained in the Penal Law of 1909 verbatim (§ 1120) and, when the Penal Law was revised in 1965, the principle was preserved in the corresponding provision which declared that an insane person, within the meaning of the statute, was "not criminally responsible for [his] conduct” (§ 30.05; L 1965, ch 1030). The current statute (Penal Law § 40.15; L 1984, ch 668) employs similar terminology — i.e., "lack of criminal responsibility”. Throughout this period, our court has never wavered in its adherence to the underlying principle thus reflected in our statutes and firmly established in our earliest case law, that mental competency is an essential ingredient of a criminal offense (see, e.g., People v Silver, 33 NY2d 475, 478-479; People v Schmidt, 216 NY 324, 339-340; O’Connell v People, 87 NY 377, 380; Walker v People, 88 NY 81, 88, supra).

The substantive criminal law of New York, as in most American jurisdictions (see, 21 Am Jur 2d, Criminal Law, §§ 46, 48), has historically treated insanity as something quite different from other, ordinary defenses. Rather than an excuse or justification for an otherwise felonious act, the insanity defense is considered to render the actor himself inculpable or unresponsible because of his inability to make a knowing, rational choice (see, Arenella, Reflections on the Current Pro posals to Abolish or Reform the Insanity Defense, 8 Am JL & Med 271, 273; 1 LaFave & Scott, Substantive Criminal Law § 4.1 [a], [b]). For centuries now in Anglo-American jurisprudence, insanity has been recognized as the absence of one of the two fundamental elements of criminal responsibility: the mental state which renders the act culpable (see, Slovenko, The Insanity Defense, op. cit., at 375).

II

Consistent with this basic principle that there can be no crime without a sane mind, the burden of proof on the issue of mental competency must be borne by the state. The "guilty mind”, no less than the act committed, is essential to criminality. Unless it is established by the People whenever sufficiently put into issue by the defendant, it cannot be said that every element of the crime charged has been proven beyond a reasonable doubt. This is not merely abstract theory. It is a realistic conclusion supported by considerations of fairness as well as logic; it has been recognized traditionally by most of the high State and Federal courts, including our own court which, until today, has never wavered since it first decided the issue.

In People v McCann (supra), this court unanimously rejected a trial court’s charge to the jury which placed upon the defendant the burden of proving his insanity beyond a reasonable doubt. While the court apparently did not decide whether the burden had to be borne by the prosecution, Justice Brown, in a concurring opinion, wholly unexcepted to by the other members of the court, reviewed "the just and humane principles of the common law” and concluded that "[sjound memory and discretion * * * are essential elements of the crime, to be established upon the trial as a part of the case of the prosecution” (id., at 64, 67). Justice Brown set forth his position with reasons which were ultimately adopted by the entire court and had significant influence on other jurisdictions as well. "If there be a doubt about the act of killing”, he wrote, "all will concede that the prisoner is entitled to the benefit of it; and if there be any doubt about the will, the faculty of the prisoner to discern between right and wrong, why should he be deprived of the benefit of it, when both the act and the will are necessary to make out the crime? * * * [S]uch doubts and uncertainties shall be removed before there can be a conviction” (16 NY, supra, at 67).

In Brotherton v People (75 NY 159, 162-163, supra), the court was directly confronted with the issue and resolved it unanimously as Justice Brown had argued. The rule was reaffirmed shortly thereafter in O’Connell v People (87 NY 377, 380, supra) and Walker v People (88 NY 81, 88, supra). This court has never since questioned the validity of that rule or its underlying propositions: "the guilt of the prisoner depend[s] upon two questions, viz., whether he committed the act charged, and whether he was in such condition of mind as to be responsible; * * * the burden of proof as to both, [is] upon the prosecution” (88 NY, supra, at 88).

In 1895, when the United States Supreme Court first addressed the issue, it adopted the New York position as a matter of Federal law (Davis v United States, 160 US 469). Expressly relying on the opinions in early New York cases, the Supreme Court asked: "How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?” (Emphasis added.) (160 US, supra, at 488.) The court, speaking through Justice Harlan, Sr., answered without equivocation: it "cannot be” (id.).

The court concluded by addressing the concern that the insanity defense might sometimes be sustained only because difficult to disprove. "But the possibility of such results”, the court said, "must always attend any system devised to ascertain and punish crime, and ought not to induce the courts to depart from the principles fundamental in criminal law, and the recognition and enforcement of which are demanded by every consideration of humanity and justice [emphasis added]” (160 US, supra, at 493).

It is difficult, at best, to reconcile this language with the Supreme Court’s recent retrenchment from the Davis rule (see, e.g., Martin v Ohio, 480 US 228, 235-236; Rivera v Delaware, 429 US 877). The court’s grounding of its Davis holding squarely on "principles fundamental”, "humanity”, and "justice” seems, in all candor, wholly at odds with that court’s current interpretation of this earlier precedent as having stated a mere rule of practice devoid of constitutional implications (see, Rivera v Delaware, supra, at 879 [Brennan, J., dissenting]; Patterson v New York, 432 US 197, 203). In my view, our court ought not to follow suit.

For reasons of both principle and precedent, we have, until today, steadfastly adhered to our long-settled and well-considered view (see, People v Silver, 33 NY2d 475, 479, 483, supra; People v Kelly, 302 NY 512, 517; People v Egnor, 175 NY 419, 428). We have done so, moreover, regardless of the statutory language in which the insanity defense was couched. When our statute was silent on the issue (Rev Stat of 1828, part IV, ch 1, tit 7, § 2), we relied on the elementary propositions underlying the common-law mens rea doctrine to hold that the burden must be placed on the prosecution (see, Brotherton v People, supra, at 162-163). When the statute was changed to provide that "[a] person is not excused from criminal liability” as an insane person "except upon proof’ that he was insane (Penal Code of 1881 § 21; Penal Code of 1909 § 1120), this court construed the provision consistent with the reasoning in our earlier decisions. We explained that the legal presumption of sanity required a defendant to interpose the issue in the first instance by presenting "clear and substantial evidence of insanity”, but that, thereafter, the burden of proof remained with the prosecution (Walker v People, supra, at 90; O’Connell v People, supra, at 380; People v Schmidt, supra, at 342; People v Taylor, 138 NY 398, 406-407). Our construction of these earlier statutes was expressly codified when the Penal Code was revised in 1965 (§ 30.05; L 1965, ch 1030).

Not until the enactment, in 1984, of the statute here in question, did the written or decisional law of this State provide otherwise. The statute flatly contravenes the well-established jurisprudence of New York and, I believe, basic tenets of constitutionally protected due process. We should reject it.

III

This court’s decision in People v Patterson (39 NY2d 288, affd 432 US 197) does not support a different conclusion. In that case, we upheld the statutory provision making “extreme emotional disturbance” an affirmative defense to be proven by the defendant by a preponderance of the evidence (Penal Law § 125.25 [1] [a]; § 25.00 [2]). Writing for the majority, Judge Jasen explained that the prosecution must still “prove, beyond a reasonable doubt, the facts bearing [on] the defendant’s intent”; but “extreme emotional disturbance does not negate intent” (39 NY2d, supra, at 302). The purpose of that affirmative defense, he continued, "is to permit the defendant to show that his actions were caused by a mental infirmity not rising to the level of insanity, and that he is less culpable for having committed them” (emphasis added) (id.). That is a far cry from insanity, which does negate intent and thus renders the defendant entirely nonculpable for his actions.

In affirming our decision in Patterson, the Supreme Court articulated a due process test which we had not applied and which we have never embraced. That court said that due process merely requires the prosecution to prove "the elements included in the definition” (emphasis added) of the crime charged (432 US, supra, at 210). As the dissenting Justices noted, this test would permit a shifting of the burden of proof with respect to virtually any factor in a criminal case, so long as “any references to the factor be confined to those [statutory] sections that provide for an affirmative defense” (432 US, supra, at 223 [Powell, J., dissenting]). That is just what the Supreme Court has permitted in subsequent decisions (see, e.g., Martin v Ohio, 480 US 228, 236-242, supra [Powell, J., dissenting] [justification; contrast with, People v McManus, 67 NY2d 541]; McMillan v Pennsylvania, 477 US 79, 96 [Stevens, J., dissenting] [visible possession of a firearm]; Rivera v Delaware, 429 US 877, 880 [Brennan, J., dissenting] [insanity], supra).

By sharp contrast to the Supreme Court’s majority holding, the opinion of our court in Patterson had reaffirmed the rule that the burden is on the prosecution to establish the defendant’s criminal "design to effect death” in a murder case, even though the statutory definition of that crime only requires that the killing be intentional — i.e., that it be committed with a mere "conscious objective” (People v Patterson, supra, at 299, 302; Penal Law § 125.25 [1]; § 15.05 [1]). Critical to our decision in Patterson was the principle that there could be no shifting to the defendant of the burden of proof on any essential element of the crime or of criminal responsibility itself (39 NY2d, supra, at 301-302). We have not since, until today, permitted it.

Moreover, the majority of this court goes beyond what the Supreme Court has ever approved. That court has always insisted that the burden remain on the prosecution to prove any essential element of the crime charged, and that a shifting of the burden to the defendant with regard to any such element would violate due process (see, e.g., Martin v Ohio, 480 US, at 231-234, supra; Patterson v New York, 432 US, supra, at 210; Mullaney v Wilbur, 421 US 684, 698-699; Leland v Oregon, 343 US 790, 795). Even when the Supreme Court has upheld affirmative defenses relating to the defendant’s mental state, it has been sure to point out that the state, in each of those cases, did not relieve the prosecution of proving, beyond a reasonable doubt, certain elements necessary to mental responsibility. Hence, in Patterson (432 US, at 206, quoting 39 NY2d, at 302, supra), the court quoted approvingly from the opinion of our court that the burden had not been shifted to the defendant to prove " 'a mental infirmity * * * arising to the level of insanity’ ”. In Leland v Oregon (343 US, supra, at 794), the court emphasized that the state statute required the prosecution to prove "premeditation, deliberation, malice and intent”. Recently, in Martin v Ohio (480 US, at 231-234, supra), it noted that, though the state had made self-defense an affirmative defense, the prosecution still had the burden of proving "specific purpose and intent to cause * * * death [and] prior calculation and design” (cf., Mullaney v Wilbur, 421 US 684, 686, supra [even though the statute required the prosecution to prove that homicide was "both intentional and unlawful”, due process was violated because "malice aforethought” was presumed and the burden of disproving it was on the defendant]).

The statute upheld today relieves the prosecution of the burden of proving any mental state other than "conscious objective”. Neither malice, deliberation, specific purpose, nor any other culpable mentality need be demonstrated to obtain a murder conviction. Instead, the statute places the burden of disproving any such culpability on the defendant. On the one hand, Penal Law § 40.15 explicitly recognizes that there can be no "criminal responsibility” without substantial capacity to appreciate the nature of one’s conduct and that such conduct was wrong. On the other hand, it places the burden of proof on that critical issue entirely on the defendant. The prosecution thus bears no burden of proof on an element essential to criminality itself, let alone to the specific crime of murder. This, in my view, is abhorrent to principles grounded in the traditions and conscience of this State and its law (cf., Martin v Ohio, 480 US, at 241-244 [Powell, J., dissenting], supra).

IV

Let there be no mistake. The present statute, by making insanity an affirmative defense and, thereby, shifting the burden of proof on that issue to the defendant (Penal Law § 25.00 [2]), cannot be cured merely by holding that the People must still prove a defendant’s awareness of his actions. That is hardly the mental competency essential to criminal responsibility. Indeed, it adds nothing to the current statutory definition of "intentionally” — i.e., with a "conscious objective” (Penal Law § 15.05 [1]) — which is clearly not the equivalent of the mental condition necessary for criminal culpability.

At the very least, mental responsibility in criminal law, however phrased in our cases and statutes (including the present one), has always required the capacity to appreciate that one’s conduct is wrong (see, People v Taylor, 138 NY 398, 407, supra; Flanagan v People, 52 NY 467, 469, supra; compare, Penal Law § 40.15, with Penal Code of 1881 § 21). This very point was underscored by our unanimous court in People v Schmidt (216 NY 324, 339, supra). Speaking through then Judge Cardozo, we disapproved the trial judge’s instruction that, regardless of the defendant’s delusions, he could still be found mentally competent if he knew what he was doing and knew that his conduct was prohibited by law (id., at 330). As Cardozo explained in an illustration particularly apropros to the present case: "A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong” (id., at 339; see also, People v Nino, 149 NY 317, 323-324; Willis v People, 32 NY 715, 718, supra). To hold that such a person was "responsible for the crime”, our court concluded, would be "abhorrent” (id., at 339).

Here, the evidence of insane delusions, as we explained in Schmidt and elsewhere, was probative of defendant’s lack of capacity to understand the wrongful nature of his conduct and, therefore, his lack of culpability under our criminal law. The resolution of this issue, not simply whether defendant was conscious of what he was doing, is essential to a finding of criminal responsibility under inviolable principles of due process in New York. The burden of proof on this issue, consistent with these principles, ought to remain with the prosecution.

Finally, when interpreting State law, this court , need not excuse its differences with the Supreme Court’s interpretation of corresponding Federal law. The guarantees of the Federal Constitution, as construed by the Supreme Court, represent only the minimum level of individual rights which no state may disregard. The protections provided by the New York Constitution may well be broader, and this court need not depend on textual distinctions or peculiarities of history or original legislative intention to decide that this is so (see, Cooper v Morin, 49 NY2d 69, 79; Linde, E Pluribus — Constitutional Theory and State Courts, 18 Ga L Rev 165, 176, 181). We must honor our independent duty to render a sound analysis of our own law, giving due consideration, of course, to all the relevant factors such as history, policy, logic and text (see, e.g., People v P. J. Video, 68 NY2d 296, 302-303).

When the Supreme Court has addressed an issue under Federal law, we may, of course, find that its decision provides the level of protection guaranteed by our State Constitution. On the other hand, we may disagree with the reasoning of the Supreme Court majority or conclude that the minimal guarantees of the Federal Constitution, as interpreted by them, simply do not satisfy the requirements of our State law. Finally, there may be occasions when the analysis and the position set forth by the dissenters at the Supreme Court fully comport with the basic principles inherent in our State Constitution.

This is the situation here. The current majority of the Supreme Court has embraced a rule (explicitly adopted — and, in my view, extended — today by the majority of this court) which is a complete reversal of the court’s earlier position in Davis v United States (160 US 469, supra). That decision was fully in accord with, and indeed, heavily influenced by the decisions of this court (see, Davis v United States, supra, at 488-489, citing People v McCann, 16 NY 58, supra; Brotherton v People, 75 NY 159, supra; O’Connell v People, 87 NY 377, supra; and Walker v People, 88 NY 81, supra). The established New York rule, enunciated in those early decisions but now abandoned by the majority of this court, embodies the historic common-law principle inherent in the criminal due process guaranteed in our State Constitution: the People must prove each and every element of the crime beyond a reasonable doubt, including, when defendant’s mental capacity has fairly been placed in issue, his ability, not merely to know what he was doing, but to appreciate that what he was doing was wrong.

Nowhere is the rule more clearly expressed then by Justice Harlan, Sr., in Davis v United States (160 US, supra, at 488): "As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts. How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?”

Accordingly, I would reverse the order of the Appellate Division, invalidate the statutory provision making insanity an affirmative defense, and remit for a new trial.

Chief Judge Wachtler and Judges Simons, Alexander and Titone concur with Judge Bellacosa; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judge Kaye concurs.

Order affirmed.

      . Although the Supreme Court has not addressed the issue in a case directly presenting it, the court has nevertheless dismissed an appeal that raised the identical issue for want of substantial Federal question (Rivera v Delaware, 429 US 877), and has subsequently been explicit, albeit in dicta, that the Federal Constitution does not require that the burden of proof be on the prosecution (Martin v Ohio, 480 US 228, 236; but see, id., at 236-242 [Powell, J., dissenting]; Rivera v Delaware, supra, at 877 [Brennan, J., dissenting]). Hence, our court must consider the issue to be resolved as a matter of Federal law. For reasons which follow, however, I strongly believe that the issue should be decided differently under our State Constitution. Moreover, I believe that the majority of this court goes even further than the Supreme Court has ever permitted under the Federal Constitution (see, infra).

      . The legislative history reveals that the new statute was expected to operate within a procedural scheme consistent with the basic principles enunciated in our prior cases.
      The existing statute was characterized as "plac[ing] no burden on the one party most able to produce evidence of the defendant’s state of mind — the defendant himself.” The new statute was believed to change the adjudication of the insanity issue, as follows: "a defendant who contends that he was not responsible for his actions has the initial burden of proving his contention by a preponderance of the evidence. If the defendant meets that burden, the People must disprove the defense beyond a reasonable doubt. As a result, genuine claims of lack of criminal responsibility will be fully and fairly litigated, and specious claims will be discouraged.” (Emphasis added.) (Executive Mem of approval, L 1984, ch 668, 1984 McKinney’s Session Laws of NY, at 3626.)
      If the insanity defense were actually to operate in such a manner, the statute would not suffer what I perceive to be its fundamental due process infirmity. The burden of production on the issue would be on the defendant and, if that burden of proof were first met, the burden of persuasion would have to be satisfied by the prosecution. But Penal Law § 40.15 specifically makes insanity an "affirmative defense”. Thus, the entire burden of proof, both production and persuasion, is placed on the defendant; it never shifts to the prosecution (compare, Penal Law § 25.00 [1] [defense], with §25.00 [2] [affirmative defense]).


source: Caselaw Access Project

author: Hancock, Jr., J. Simons, J.

license: Public Domain

text:
    Jorge Arteaga, Appellant, v State of New York, Respondent. Michael Treacy, Appellant, v State of New York, Respondent.
    Argued April 26, 1988;
    decided June 9, 1988

      POINTS OF COUNSEL

      John D. Charles and David C. Leven for appellants.
    I. The State has waived its sovereign immunity in such actions. (Jones v State of New York, 33 NY2d 275; Kelly v State of New York, 57 AD2d 320; Davis v State of New York, 84 Misc 2d 597; Poysa v State of New York, 102 Misc 2d 269; Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34; Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Weiss v Fote, 7 NY2d 579; Santangelo v State of New York, 101 AD2d 20.) II. The case may proceed on a malicious prosecution theory. (Broughton v State of New York, 37 NY2d 451; Groat v Town Bd., 73 AD2d 426; Wilkinson v Skinner, 34 NY2d 53; Freeman v Rideout, 808 F2d 949.) III. The case may proceed to trial on a false imprisonment theory. (Broughton v State of New York, 37 NY2d 451; Gittens v State of New York, 132 Misc 2d 399; Wolff v McDonnell, 418 US 539; Murray v Brancato, 290 NY 52; Cunningham v State of New York, 71 AD2d 181; Tarter v State of New York, 68 NY2d 511; Jones v State of New York, 33 NY2d 275; Cleavinger v Saxner, 474 US 193; Butz v Economou, 438 US 478.) IV. Correction Law § 24 (1) was not designed to leave inmates without remedies. (Cepeda v Coughlin, 128 AD2d 995; Matter of Thomas v New York Temporary State Commn. on Regulation of Lobbying, 83 AD2d 723; Riviello v Waldron, 47 NY2d 297.)

      Robert Abrams, Attorney-General (Peter H. Schiff, O. Peter Sherwood and Vernon Stuart of counsel), for respondent.
    I. The courts below properly dismissed the inmates’ claims for money damages. (Tango v Tulevech, 61 NY2d 34; Tarter v State of New York, 68 NY2d 511; Bivens v Six Unknown Named Agents, 456 F2d 1339; Lee v State of New York, 124 AD2d 305; Hewitt v Helms, 459 US 460; Bolden v Alston, 810 F2d 353; Waters of Saratoga Springs v State of New York, 68 NY2d 777; Williams v State of New York, 90 AD2d 861; Abruzzo v State of New York, 84 AD2d 876; Bellows v State of New York, 37 AD2d 342.) II. Section 24 (1) of the Correction Law does not alter the scope of liability.
   OPINION OF THE COURT

Hancock, Jr., J.

Claimants, inmates in a State correctional facility, seek damages from the State for unlawful confinement and loss of privileges resulting from the prosecution of disciplinary charges against them. Their appeals from an order affirming the dismissal of their claims present a common issue: whether the State is immune from liability for the actions of employees of the Department of Correctional Services in commencing and conducting formal disciplinary proceedings. We hold that where, as here, the employees act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity (see, Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34).

I

On February 13, 1985, claimant Arteaga was confined to a cell and charged in a misbehavior report with conspiracy to escape from the Great Meadow Correctional Facility and with possession of a weapon found in the soap factory warehouse where he worked. Following a timely Superintendent’s hearing, the Hearing Officer found Arteaga guilty and imposed a punishment of 90 days in the special housing unit or in keeplock status and the loss of certain privileges. It appears from the record that the charge was based, in part, on a statement of a confidential informant made to the officer who filed the misbehavior report. On administrative appeal, the Department of Correctional Services reversed for lack of substantiating evidence and the proceeding against claimant Arteaga was terminated. For reasons of safety and to preserve the "viability” of the informant, his testimony was not presented on the appeal.

Claimant Treacy, while an inmate at Great Meadow on October 13, 1983, was charged with possession of escape paraphernalia and contraband. He was confined to his cell pending a Superintendent’s hearing after which he was found guilty, given 180 days in special housing and deprived of six months’ good behavior allowance. It appears that the misbehavior report was based in part on escape paraphernalia found in the prerelease room where Treacy worked and on information from a confidential informant who had identified claimant from a photograph as an inmate involved in an escape plan. The Department Review Board affirmed the Superintendent’s disposition on administrative appeal. Subsequently, after claimant Treacy commenced a CPLR article 78 proceeding challenging the determination, the Commissioner reversed the disposition administratively, restored claimant’s good behavior allowance, and expunged references to the charge from his records.

After the dismissal of the proceedings against them, claimants — contending that the sanctions imposed had been unlawful — commenced separate damage actions in the Court of Claims pleading causes of action for malicious prosecution, false imprisonment, and violation of statutory rights. Claimant Treacy also included a cause of action for negligent investigation. The Arteaga court dismissed that action on motion as barred by the doctrine of sovereign immunity. In Treacy, the court granted a dismissal but did so without addressing the question of immunity (131 Mise 2d 849). It found no legal basis for any of the causes of action because of claimant’s status as an inmate and the fact that his confinement followed a Superintendent’s hearing held in accordance with departmental regulations. In a consolidated appeal, the Appellate Division unanimously affirmed, adverting to the broad discretion vested by the Legislature in the Department of Correctional Services in the disciplining of inmates and holding that such activity is not one "with regard to which the State has waived its sovereign immunity” (125 AD2d 916, 917). We granted leave to appeal and now affirm for the reasons which follow.

II

With the enactment of the Court of Claims Act §8, the State waived that immunity which it had enjoyed solely by reason of its sovereign character (see, Weiss v Fote, 7 NY2d 579, 585-586; Bernardine v City of New York, 294 NY 361). While assuming liability under the rules applicable to corporations and individuals for the actions of its officers and employees in the everyday operations of government (see, e.g., Wingerter v State of New York, 79 AD2d 817, affd 58 NY2d 848; McCrink v City of New York, 296 NY 99; Bernardine v City of New York, supra), the State retained its immunity for those governmental actions requiring expert judgment or the exercise of discretion (see, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, supra). This immunity, we have held, is absolute when the action involves the conscious exercise of discretion of a judicial or quasi-judicial nature (see, Tarter v State of New York, 68 NY2d 511, supra; Tango v Tulevech, 61 NY2d 34, supra).

The absolute immunity for quasi-judicial discretionary actions is founded on public policy and is generally said to reflect the value judgment that the public interest in having officials free to exercise their discretion unhampered by the fear of retaliatory lawsuits outweighs the benefits to be had from imposing liability (see, Rottkamp v Young, 21 AD2d 373, 376, affd 15 NY2d 831; Gregoire v Biddle, 177 F2d 579 [2d Cir], cert denied 339 US 949; 2 Harper and James, Law of Torts § 29.10, at 1641). Not all discretionary actions, however, are accorded absolute immunity (see, Tarter v State of New York, supra, at 519).

Whether an action receives only qualified immunity, shielding the government except when there is bad faith or the action taken is without a reasonable basis (see, e.g., Friedman v State of New York, supra, at 283-285; Southworth v State of New York, 62 AD2d 731, affd 47 NY2d 874; Weiss v Fote, supra, at 585, 587; Ufnal v Cattaraugus County, 93 AD2d 521, 524-525) or absolute immunity, where reasonableness or bad faith is irrelevant (see, Tango v Tulevech, supra, at 42), requires an analysis of the functions and duties of the particular governmental official or employee whose conduct is in issue (see, Tarter v State of New York, supra, at 518-519). The question depends not so much on the importance of the actor’s position or its title as on the scope of the delegated discretion and whether the position entails making decisions of a judicial nature — i.e., decisions requiring the application of governing rules to particular facts, an "exercise of reasoned judgment which could typically produce different acceptable results” (Tango v Tulevech, supra, at 41; see, Tarter v State of New York, supra, at 518-519).

Thus, in Tarter, in evaluating the functions of the Board of Parole under Executive Law article 12-B, we concluded that parole release decisions were "classically judicial” in nature and deserving of full immunity (68 NY2d, supra, at 518). Similarly, we have held that the discretionary action of a county probation officer in making a judgment concerning custody of a child (Tango v Tulevech, supra), the acts of correction officials and parole supervisors in establishing the level of restrictions on and the degree of supervision for a released inmate (Eiseman v State of New York, 70 NY2d 175, 184), and the decision of a building inspector in refusing to grant a building permit (Rottkamp v Young, 15 NY2d 831, supra) sufficiently evinced the attributes of judicial decision making to merit full immunity (see also, Santangelo v State of New York, 101 AD2d 20, 28-29 [determination of the Temporary Release Committee and the Superintendent of correctional facility granting a weekend furlough warranted quasi-judicial immunity]; Schanbarger v Kellogg, 35 AD2d 902, appeal dismissed 29 NY2d 649, cert denied 405 US 919 [District Attorney’s action in prosecuting crime entitled to quasi-judicial immunity]).

We next consider the application of these principles to the correction officers involved in the investigation and prosecution of the charges against claimants.

III

To carry out the "formidable tasks” of maintaining order and security in correctional facilities and protecting the safety of inmates and employees, the Legislature has granted the Commissioner of Correctional Services broad discretion in the formulation and implementation of policies relating to security and to the disciplining of inmates (Matter of Rivera v Smith, 63 NY2d 501, 513). Pursuant to this grant of authority (Correction Law §§ 112, 137), the Commissioner has adopted detailed Procedures for Implementing Standards of Inmate Behavior (7 NYCRR parts 250-254) which include rules and regulations pertaining specifically to the filing and content of reports of misbehavior (§§251-1.4, 251-3.1), confinement of inmates (§ 251-1.6), requirements for timely hearings (§ 251-5.1), the designation of authorized Hearing Officers (§253.1), and procedures for conducting Superintendent’s hearings (part 254). There is no question that the officers and employees responsible for filing the misbehavior reports against claimants, conducting the hearings, and confining them before and after the hearing determinations acted entirely within their authority and in compliance with the applicable rules and regulations. The question is whether their actions involved the exercise of discretion of a quasi-judicial nature.

In filing a report of misbehavior (§251-1.4), confining an inmate to his cell or housing area when there are reasonable grounds to believe that the inmate represents an immediate threat to the safety, security, or order of the facility (§251-1.6), and in conducting hearings, the officers and employees of the department are enjoined, as they are with any disciplinary action, to follow the general policies on discipline of inmates (§250.2). These statements of policy express the general departmental philosophy on discipline and include basic guidelines and directives to the effect that disciplinary action must not be overly severe (§ 250.2 [e]), must be administered "in a completely fair, impersonal and impartial manner” (§250.2 [d]), be appropriately varied to fit such factors as the particular circumstances involved, the behavior pattern of the inmate and the present atmosphere of the facility (§ 250.2 [b] [1], [2], [3]), and must be taken only to the extent necessary to regulate an inmate’s behavior within acceptable limits (§ 250.2 [c] [1]) and to "assist in achieving compliance by the entire inmate population with required standards of behavior” (§ 250.2 [c] [2]). In these departmental rules and regulations (7 NYCRR parts 250-254), it is evident that the Commissioner has made an extensive delegation of his statutory authority relating to security, discipline, and inmate behavior to the employees and officers present in the facilities. It is to them that the day-by-day responsibility for such matters is entrusted.

Because of the problems of maintaining security and discipline within correctional facilities, the discretion delegated to the employees and officers is necessarily comprehensive and calls for the exercise of judgment under widely varying conditions. What, if any, disciplinary action to take in a given situation is a matter requiring consideration of broad policies and general objectives in the application of the governing rules and regulations to the particular circumstances. Where some correction officers might think it necessary to confine an inmate, others, because they considered the infraction to be less serious or evaluated the inmate’s behavior pattern differently, could reasonably conclude otherwise. Similarly, what some Hearing Officers might regard as barely enough proof to warrant a finding of guilt in a Superintendent’s hearing, others might reasonably reject as insufficient.

Like the decisions of the Board of Parole in Tarter v State of New York (supra), and of the probation officer in Tango v Tulevech (supra), the actions of Correction Department employees in preparing and filing misbehavior reports, confining inmates, and making dispositions following Superintendents’ hearings entail discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results (see, Tango v Tulevech, supra, at 41). We conclude, then, that actions of correction employees, in circumstances such as those here, are quasi-judicial in nature and deserving of absolute immunity. In carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison environment, correction employees, like other officials with quasi-judicial responsibilities, should not be inhibited because their conduct could be the basis of a damage claim (see, Tarter v State of New York, supra, at 518; Butz v Economou, 438 US 478, 514).

We cannot accept the view of the dissent that actions of correction officers "are comparable to the actions of police officers, who under established law are entitled only to qualified immunity.” (Dissenting opn, at 222.) The duties of police officers and the correction officers involved here are not comparable in the nature of their functions, their role in society, or in the underlying policy considerations. Correction officers, unlike police officers, are responsible "for the safety, security and control of correctional facilities” (Correction Law § 137 [2]) in the tense environment of prisons, where proper discipline is essential for the maintenance of order and control. In determining whether there are reasonable grounds to believe that an inmate represents an immediate threat to the safety, security or order of the facility (7 NYCRR 251-1.6) and that they should, therefore, confine the inmate for up to three days, correction officers fulfill a role that is in a sense judicial. In investigating, preparing, and reviewing reports of misbehavior, weighing evidence, and deciding whether to institute disciplinary proceedings (7 NYCRR 251-1.4, 251-2.2) they perform duties which are essentially prosecutorial.

Because of the unquestioned risks to inmates, employees, and the public from a breakdown in order and discipline in correctional facilities and the potentially tragic consequences of such occurrences (see, Jones v State of New York, 33 NY2d 275, 280), it is particularly important that correction officers not be dissuaded by the possibility of litigation from making the difficult decisions which their duties demand. Nor should correction personnel acting as reviewing officers feel reluctant to reverse hearing determinations because doing so might expose the State to liability. These policy considerations dictate the need for quasi-judicial immunity for correction officers who must maintain control and security in the closed setting of a correctional facility where inmates are involuntarily confined by decree of the State. These same considerations do not exist for police officers who ordinarily have neither the duty nor the authority to exert control or discipline over the people in society at large, where the right of the individual to be free from unwarranted police regulation and interference is fundamental.

There is no basis for the contention that giving full immunity to the conduct of correction employees in taking authorized disciplinary measures will deprive inmates of all rights to recover damages against the State in the Court of Claims (Correction Law § 24 [2]) for unlawful actions of employees taken beyond their authority or in violation of the governing rules and regulations (see, Riviello v Waldron, 47 NY2d 297, 303; Cepeda v Coughlin, 128 AD2d 995, 996, 997; see also, Della Pietra v State of New York, 71 NY2d 792). Thus, actions of correction personnel in physically abusing inmates (see, Correction Law § 137 [5]) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254) would not receive immunity (cf., Wilkinson v Skinner, 34 NY2d 53 [cause of action stated where an inmate was maliciously placed in segregated confinement without any hearing and in violation of his constitutional rights]). In addition, although inmates are precluded by statute from suing Correction Department employees in their personal capacity in State courts (see, Correction Law § 24 [1]; Cepeda v Coughlin, supra), they may, contrary to claimants’ assertion, bring actions in Federal court pursuant to 42 USC § 1983 where correction officers have violated their constitutional rights (see, Redding v Fairman, 717 F2d 1105 [7th Cir], cert denied 465 US 1025; Chavis v Rowe, 643 F2d 1281 [7th Cir], cert denied sub nom. Boles v Chavis, 454 US 907; Mary & Crystal v Ramsden, 635 F2d 590 [7th Cir]; cf., Freeman v Rideout, 808 F2d 949 [2d Cir]).

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

Simons, J.

(dissenting). The inmate claimants before the court were kept in punitive confinement by correction officials, for 107 and 120 days respectively, on charges of misconduct which were subsequently dismissed. They allege that the charges against them were trumped up, that they were the victims of intentional and malicious wrongs by State employees. The issue before the court is whether, assuming their claims are true, they may recover money damages for the wrongs done them. The majority hold that they may not, that correction officials are absolutely immune from tort liability for such wrongs.

Although I agree that the Hearing Officers are entitled to absolute immunity for common-law torts, I do not agree that the correction officers who investigate inmate misbehavior and institute disciplinary proceeding by preparing and filing misconduct reports are similarly immune. The protection afforded Hearing Officers may be warranted because of the quasi-judicial nature of their duties but there is little to commend a rule of law that insulates the State and its investigative officials from liability for damage caused by deliberate wrongdoing. Nor is there any need to establish absolute immunity in this case for correction officers enjoy the benefits of a unique statute protecting them against personal liability for their wrongs (see, Correction Law §24). In my view, the officers’ actions are comparable to the actions of police officers, who under established law are entitled only to qualified immunity. Accordingly, I dissent and I would reverse the order of the Appellate Division and reinstate the claims seeking to hold the State vicariously liable for the actions of the investigating correction officers.

I

Under traditional legal doctrine, the State is not liable for torts committed in its service by officers or employees unless it consents to such liability. New York waived its sovereign immunity by enacting section 8 of the Court of Claims Act and consented to have its liability determined generally in accordance with the same rules of law that apply against individuals and corporations (see, Jones v State of New York, 33 NY2d 275, rearg dismissed 55 NY2d 878). Nevertheless, not all conduct by public officials is actionable; the State may assert that claims against it are barred because the acts of its servants are immune from suit notwithstanding its waiver of sovereign immunity generally. The defense of immunity is available to public officers and employees charged with making decisions and of acting in accordance with them so that they will not be unduly hampered in the discharge of their duties. It is recognized, as a matter of policy, because the operations of government would be impeded if those who act improperly or exceed the authority given them were not protected in some reasonable degree by being relieved from private liability. The basis of the immunity has been not so much a desire to protect an erring officer as it has been a recognized need to preserve independence of action, undeterred by the fear of personal liability and vexatious suits, which could substantially impair the effective performance of a discretionary function.

New York has granted immunity more broadly than most jurisdictions, drawing the line generally between discretionary acts which are immune from suit and ministerial acts, which are not (see, Rottkamp v Young, 15 NY2d 831, 833 [dissenting opn of Burke, J.]). The distinction is an unfortunate one, derived from the old rules governing injunctions and prerogative writs (see, 5 Harper, James and Gray, Torts § 29.10, at 668-669 [2d ed]). Under those rules, the court avoided interfering with discretionary acts of the executive branch of government but would entertain proceedings involving ministerial functions of executive officers. That rule has little bearing in tort claims but unfortunately it has been the source of much New York law, oversimplifying the analysis to one of affixing the appropriate label on the officials’ actions rather than examining the factors upon which a sound policy decision can be made. Immunity should be based on such factors as (1) the function the officer is performing, (2) the extent to which review of that judgment will involve the court in passing judgment on a coordinate branch of government, (3) the extent to which judicial review will impair free exercise of discretion, (4) the extent to which ultimate financial responsibility will fall on the officer, (5) the likelihood that harm will result to members of the public if the action is taken, (6) the nature and seriousness of the harm which may result and (7) the availability of other remedies to the injured party (see, Restatement [Second] of Torts § 895D, comment f). Under this analysis, even if the act is considered "discretionary”, and therefore entitled to some protection, the immunity extended may properly be limited as a matter of sound public policy.

An official receiving absolute immunity is not liable to another, regardless of his motives and whether or not he tried to exercise his judgment in good faith, so long as he acts within the general scope of his authority (cf., Della Pietra v State of New York, 71 NY2d 792). Typical is the rule shielding a Judge from liability no matter how erroneously, corruptly, or maliciously he is alleged to have acted (see, Sweeney v O’Dwyer, 197 NY 499, 504; Lange v Benedict, 73 NY 12, 25; Pierson v Ray, 386 US 547; and see, Tarter v State of New York, 68 NY2d 511, 518). The immunity is granted because of the Judge’s neutral position and the need to insure absolute independence injudicial office. We have extended this protection to administrative officials and others performing quasi-judicial duties if they are truly "neutrally positioned government officials” (Tarter v State of New York, 68 NY2d 511, 518, supra).

As our opinion in Tarter made clear, however, not "every official act involving discretion will be considered a judicial function conferring absolute immunity” (id., at 519). Qualified, not absolute, immunity is the norm and the burden rests on the official seeking absolute freedom from liability to demonstrate that public policy requires an exemption of that scope (Cleavinger v Saxner, 474 US 193, 201; Harlow v Fitzgerald, 457 US 800, 807).

The Supreme Court considered what immunity should be afforded prison officials for wrongs arising from disciplinary proceedings in Cleavinger v Saxner (474 US 193, 203-204, supra; see also, Procunier v Navarette, 434 US 555) and held that they were entitled to only qualified immunity in actions seeking damages for violations of an inmate’s constitutional rights. Even in claims against Hearing Officers it found them entitled to no more than limited protection because they are not neutral and independent adjudicatory officers but prison employees temporarily diverted from their regular duties and amenable to prison administrators and staff. Despite this authority I concur with the majority’s conclusion that, for purposes of common-law tort actions in New York, prison Hearing Officers should be entitled to absolute immunity because they perform a function that is adjudicatory in the broad sense of the term and they do so under conditions of extreme intimacy and tension which require that they be insulated from harassment by inmates. I would but add that granting full immunity under State law does not eliminate all avenues of relief because inmates may maintain an action in the Federal courts for the unconstitutional actions of Hearing Officers (see, Cleavinger v Saxner, supra).

The function of the correction officers who investigate and prefer charges differs substantially from those of the Hearing Officers, however, and analysis is not aided by the conclusory assertion that their work also requires the use of discretion. As we noted in Tango v Tulevech, "almost any act admits some discretion in the manner of performance, even driving a nail” (61 NY2d 34, 41, quoting Prosser, Torts § 132, at 990 [4th ed]; and see, Restatement [Second] of Torts § 895D, comment h [ministerial acts — including care of prisoners as a ministerial act]). The task is to identify those functions which the courts are willing to recognize as entitled to the protection afforded by absolute immunity. As the Second Circuit Court of Appeals observed when deciding that police officers who make arrests and conduct searches are not entitled to absolute immunity, "the real question to be asked is whether or not federal officers performing police duties warrant the protection of the [absolute] immunity defense” (Bivens v Six Unknown Named Agents, 456 F2d 1339, 1346). The question is one of policy for while "it is true that a police officer must exercise some discretion in making an arrest, the fiction that this act is not discretionary is maintained because of the belief that the benefit to society derived from the protection of personal liberties outweighs the detriment of perhaps deterring vigorous police action” (id). The Bivens court resolved the policy question against absolute immunity.

New York has treated police officers similarly, even under our broader immunity rules. Our decision in Jones v State of New York (supra) recites State law fully consistent with Bivens. In Jones we held by a divided court that the State could be held liable vicariously for the acts of an agent who intentionally assaulted claimant’s decedent during the effort to retake the Attica Correctional Facility after the 1971 uprising. The two opinions cite extensive authority for the proposition that the State and its municipalities may be held liable for actions of its police officers (see, Jones v State of New York, supra). Indeed the dissent recognized the historical "destruction of immunity for police torts” (id., at 282), but believed that the State was immune because the claim challenged a policy decision of the executive branch of government, how to regain control of the facility after the uprising, not an action by an individual police officer. Observing that it is difficult to define with precision what is a discretionary function for immunity purposes, the dissent noted that it would have found no immunity if Jones were "a simple police tort case” (id., at 286). And this was so notwithstanding the role of discretion, perhaps a high degree of discretion, in effecting an arrest (id., at 285; see, Bivens v Six Unknown Named Agents, 456 F2d 1339, 1346, supra; Jaffe, Suits against Governments and Officers: Damage Actions, 77 Harv L Rev 209, 218-219). Thus, all seven members of the Jones court agreed that if a police officer commits an intentional tort during an arrest situation, similar to the allegations here, the law does not recognize the conduct as a discretionary act entitled to absolute immunity. A majority of the court also applied that rule to officers acting in the explosive setting which surrounded the retaking of Attica Prison.

Thus, these officials who investigate and file disciplinary charges performed a function analogous to police officers making an arrest or conducting a search or in retaking the prison in Jones and they should receive no greater protection than the qualified immunity applicable to police officers under Federal law (see, 42 USC § 1983; Bivens v Six Unknown Fed. Narcotics Agents, 403 US 388; Pierson v Ray, 386 US 547, 555-557) or, in the context of a State tort action for false arrest or othe^ intentional tort, the corresponding defense of privilege, shielding the officer from liability for objectively reasonable but mistaken exercises of judgment (see, Broughton v State of New York, 37 NY2d 451, 457-458; Smith v County of Nassau, 34 NY2d 18, 23-24; see also, Pierson v Ray, 386 US 547, 555-557, supra). Indeed, even if it be urged, as the majority does, that the investigation functions of the correction officers are more analogous to similar functions performed by prosecutorial officials they would be entitled to no more than limited protection (see, Drake v City of Rochester, 96 Misc 2d 86, 100-101, affd 74 AD2d 996; cf., Imbler v Pachtman, 424 US 409).

Nor do I find that the decisions the majority cites support its claim that investigating officers are entitled to absolute immunity. It relies principally on Eiseman v State of New York (70 NY2d 175, 184); Tarter v State of New York (supra) and Tango v Tulevech (supra). Those decisions are distinguishable on two grounds: first because they involve attempts to hold officers liable for quasi-judicial acts and under established law the investigation and arrest of offenders by the police are not quasi-judicial acts and second, because they were negligence claims not claims for intentional tort as alleged here. Moreover, the "need”, in the policy sense, for immunity was greater in those cases because the officials did not take the direct action which caused the plaintiffs’ injuries themselves; they created only a risk of harm. The actual injury was caused by a third party. In effect, the doctrine of immunity was used to define the scope of duty owed to members of the general public (see, Crosland v New York City Tr. Auth., 68 NY2d 165, 170; see, Prosser and Keeton, Torts § 132, at 1062-1063 [5th ed]). Moreover, the majority’s reliance on Schanbarger v Kellogg (35 AD2d 902, appeal dismissed 29 NY2d 649, lv denied 29 NY2d 485, cert denied 405 US 919) is erroneous, for in Schanbarger the police officer making the initial arrest was held liable for the tort of false imprisonment (Schanbarger v Kellogg, 37 NY2d 451, cert denied 423 US 929).

The majority finds that "the problems of maintaining security and discipline within correctional facilities” (majority opn, at 218) requires affording all correction personnel absolute immunity. Correction officials undoubtedly confront unique problems but several reasons indicate that qualified immunity or the common-law defense of privilege provides the desired balance, permitting prison officials to perform their tasks effectively and recognizing the right of inmates to be free from harm maliciously inflicted by prison personnel.

First, misconduct by prison officials presents a potential for harm which may not be deterred or subject to redress unless inmates have a common-law remedy. This is so because prison disciplinary proceedings may be commenced with the filing of an inmate misbehavior report any time an employee suspects but is not reasonably sure that an inmate was involved in an incident (7 NYCRR 251-1.4 [d]). A correction officer may place an inmate in punitive confinement when the officer has reasonable grounds to believe that there is an immediate threat to the safety, or order of the facility or in an immediate danger to other persons or to property (7 NYCRR 251-1.6). Thus, inmates may be confined for 14 days, or longer upon approval of the Commissioner’s designee, on the sole authority of the officer preparing the misbehavior report before guilt or innocence is resolved or before any judicial or quasi-judicial assessment of its validity is made. These powers may easily be abused with little risk of public scrutiny because, unlike police stations and courtrooms, the public and press have little access to prisons.

Second, inmates have no adequate remedy other than an action for damages. Notwithstanding the majority’s statements about liability generally, its holding results in barring these claimants from relief in both State and Federal courts and the majority does not claim otherwise. Correction Law § 24 (1) prevents an inmate from suing a correction officer in his personal capacity in State court for either State common-law or constitutional violations (see, Cepeda v Coughlin, 128 AD2d 995, lv denied 70 NY2d 602). But more importantly, a recent ruling of the Second Circuit Court of Appeals holds that an inmate has no constitutional claim for being falsely or wrongly accused of conduct that has resulted in a deprivation of a constitutionally protected liberty interest by being placed in a special housing unit or solitary confinement provided the inmate is afforded with the minimum requirements of due process required for prison disciplinary matters (Freeman v Rideout, 808 F2d 949). Thus, inmates such as these, who do not claim that they have been denied procedural due process but allege that they have been wrongfully and maliciously placed in punitive confinement, have no forum, either State or Federal, to seek money damages to redress the wrong. That we may disagree with the Second Circuit is little comfort to New York prisoners. Under current law, we will never be able to address the question because Correction Law §24 (1) prevents an inmate from bringing a section 1983 action against a correction officer in State court.

Moreover, the majority’s ruling is not necessary to achieve the underlying purpose of the official immunity doctrine. These prison officials will not be exposed to financial liability, even if qualified immunity is the rule, because Correction Law § 24 (1) provides them with even greater protection than other public officials receive. It does more than indemnify the official against personal liability; it forecloses inmate suits against the officers completely (cf., Public Officers Law §§ 17, 18). At best, the action could be maintained against the State for vicarious liability and now the majority has foreclosed even that avenue of relief.

The majority contends that notwithstanding the lack of a tort remedy, administrative review and article 78 relief inhibit unlawful and malicious actions by prison officials. These remedies offer no realistic deterrent to correction officers acting in bad faith, however, and little solace to inmates who have already served their sentence in special housing. The officer may still confine inmates until resolution of the pending charges and even if the charges are dismissed by the prison Hearing Officer or the courts, the inmate is the worse for the experience, not the correction officer.

In sum, and applying the criteria listed above (dissenting opn, at 222), the correction officers are performing what is essentially a police function, one which the courts routinely review, and the availability of relief against the State will not inhibit them in the performance of those duties or result in financial risk because of statutory protection afforded to them. But most important the absence of a remedy, under these circumstances which permit extraordinary opportunities for abuse because of the broad powers given the officers and the lack of public oversight mandate that some remedy be available to these claimants and others similarly situated and the majority’s decision ensures that none is. The common-law doctrine of privilege, which is the functional equivalent of qualified immunity as used in Federal decisions (Pierson v Ray, 386 US 547, 555, supra; Prosser and Keeton, Torts § 131, at 1032 [5th ed]; Restatement [Second] of Torts § 895D, comment e) adequately protects the State’s interest without foreclosing all avenues of relief for wrongful confinement and it should be available here. Applying that doctrine to the cases before us, claimants have stated a cause of action and their claims should not have been dismissed.

II

On this appeal claimants have confined their arguments to the causes of action alleging malicious prosecution and false imprisonment.

Whether an administrative hearing is a "judicial proceeding”, and therefore will support a cause of action for malicious prosecution, appears to be an open question in this court although other courts have considered the subject (see, e.g., Groat v Town Bd., 73 AD2d 426, and cases cited therein; Gittens v State of New York, 132 Misc 2d 399; Treacy v State of New York, 131 Misc 2d 849). The question need not be resolved in this dissenting opinion, however, for claimants have stated a valid cause of action in the nature of false imprisonment or, as one court has termed it in the prison context, "wrongful excessive confinement” (see, Gittens v State of New York, supra, at 407). For that reason, if no other, their claims should not have been dismissed.

Claimants have alleged that the State intended to confine them, that they were conscious of the confinement and did not consent to it and that the confinement was not privileged. Those allegations sufficiently plead a claim for damages arising from false imprisonment (Broughton v State of New York, 37 NY2d 451, supra, citing Restatement [Second] of Torts § 35). The only element of the cause of action in doubt is the element of privilege. The majority’s analysis implicitly concludes that a correction officer’s actions in confining an inmate to a special housing unit is privileged simply because the party bringing suit is an inmate, an individual whose freedom of movement is already restrained to a significant degree, and because the State provides procedural due process to the inmates. An inmate has a constitutionally protected liberty interest to remain in the general prison population, however, by virtue of New York’s statutes and regulations (see, Deane v Dunbar, 777 F2d 871) and even though this may not be actionable in a 1983 action in Federal court, inmates should have a common-law remedy to protect this liberty interest (compare, Freeman v Rideout, 808 F2d 949, supra, with opns of Oakes and Newman, JJ., dissenting from denial of petition for rehearing en banc 826 F2d 194). Claimants have alleged that they were intentionally and maliciously placed in punitive segregation for no legitimate reason. We held years ago, in Wilkinson v Skinner (34 NY2d 53), that such allegations state a cause of action which if proved will entitle an inmate to recover damages attributable to the segregation but the majority neither distinguishes nor expressly overrules that decision.

I perceive no policy reasons why such a remedy should be foreclosed. Certainly, requiring the courts to pass on the merits of an inmate’s claim of wrongful punitive confinement will not impose a crushing burden upon the State, nor should it inhibit prison officials in the proper performance of their duties. Public officials currently enjoy complete freedom from personal liability for acts performed in the performance of their duties (Correction Law § 24 [1]; Cepeda v Coughlin, 128 AD2d 995, supra) and the rule of qualified immunity, insulating the State from liability for the reasonable acts of correction officials performed in the exercise of their duties provides the State with ample protection.

Accordingly, I dissent.

Judges Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Judge Simons dissents and votes to reverse in a separate opinion in which Chief Judge Wachtler and Judge Bellacosa concur.

Order affirmed, without costs.

      . Schanbarger v Kellogg (37 NY2d 451, cited in the dissenting opn, at 226) and Jones v State of New York (33 NY2d 275, cited in the dissenting opn, at 225) both deal with actions of police officers. Because the claims based on police misconduct involve different considerations and are not analogous to claims based on the actions of correction officers, neither Schanbarger nor Jones is in point. We have cited a different Schanbarger decision (35 AD2d 902) simply for the proposition that both the Assistant District Attorney and the medical examiner were performing quasi-judicial functions and, as such, entitled to absolute immunity.

      . Despite the dissent’s attempts to distinguish our decisions in Eiseman, Tarter, and Tango (see, dissenting opn, at 226), it does not suggest that our decision is inconsistent with the general rule stated in Tango v Tulevech: that "discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” (61 NY2d 34, 41). In addition, the dissent’s statement that these cases are not controlling because they involved negligence claims (dissenting opn, at 226), fails to recognize that Tarter v State of New York restated the well-settled principle that absolute immunity protects quasi-judicial decisions even when tainted by improper motives or malice (68 NY2d 511, 518; Murray v Brancato, 290 NY 52, 55).

      . The same would not be true for an action against the investigative officers under the facts in these cases because under the law existing in the Second Circuit the investigative officials did not deprive claimants of their constitutional due process rights (see, Freeman v Rideout, 808 F2d 949, reh denied 826 F2d 194, cert denied — US —, 108 S Ct 1273).

        . For a general discussion of immunity and privilege and the confusion in terms in this area, see, Restatement (Second) of Torts § 895D, comment e; Prosser and Keeton, Torts §§ 131, 132, at 1032-1033, 1043-1051, 1056-1069 (5th ed).