author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Yohura Jones, Appellant.
    Argued April 27, 1979;
    decided June 14, 1979

      POINTS OF COUNSEL

      Edward S. Kornreich and William E. Hellerstein for appellant.
    Appellant was denied his Sixth and Fourteenth Amendment rights to a public trial by the closing of the courtroom to spectators, over defense objection, during the testimony of an exundercover officer, who had been on uniformed patrol for six months in a precinct distant from that of the alleged sales, without any hearing as to the potential hazards of public testimony. (Matter of Gannett Co. v De Pasquale, 43 NY2d 370; People v Hinton, 31 NY2d 71; Tanksley v United States, 145 F2d 58; United States ex rel. Lloyd v Vincent, 520 F2d 1272; People v Boyd, 59 AD2d 558; Butler v Smith, 416 F Supp 1151; United States v Clark, 475 F2d 240; United States ex rel. Bennett v Rundle, 419 F2d 599; People v Jelke, 308 NY 56.)

      Mario Merola, District Attorney (Cary Sucoff and Steven R. Kartagener of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt by overwhelming evidence. II. The trial court properly exercised its discretion, and appellant was not deprived of his right to a public trial when the courtroom was closed during the testimony of former undercover Police Officer Vincent Brown after that officer had indicated to the prosecutor that he feared for his life. (Matter of Oliver, 333 US 257; People v Jelke, 308 NY 56; People v Hinton, 31 NY2d 71; Matter of Gannett Co. v De Pasquale, 43 NY2d 370; People v Garcia, 51 AD2d 329; United States ex rel. Lloyd v Vincent, 520 F2d 1272; People v Castro, 63 AD2d 891.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal centers on the constitutional guarantee that an "accused shall enjoy the right to a * * * public trial” (US Const, 6th & 14th Arndts; see, also, Civil Rights Law, § 12; Judiciary Law, § 4).

Specifically, the issues presented for our determination are (1) whether the defendant’s right to a public trial was abridged when the Trial Judge without further inquiry acceded to the prosecuting attorney’s request that the court be closed to the public during the testimony of a witness alleged to be an undercover police officer and (2), if it was, whether the defendant’s conviction is reversible on that ground in the absence of a showing of prejudice.

Defendant was convicted of charges arising out of the sale of heroin to two undercover police officers, Brown and Howard, who were the primary witnesses at his trial. Of the two, Howard was the first to take the stand. Midst his testimony, the Trial Judge turned to the prosecutor and, sua sponte, asked whether the courtroom should be closed to the public "because you have an undercover”. The Assistant District Attorney first responded that he had anticipated rejection of such an application because it would "den[y] the defendant’s right to a public trial”, but then went on to assert that Howard was frightened and desired the courtroom closed to spectators. However, before there was a ruling on defense counsel’s objection, Howard, though then still assigned to undercover activity, disclaimed any apprehension about testifying in open court, whereupon the issue was dropped.

Next day, as Brown was about to be called, the prosecutor, now needing no prompting, again applied for closure on his representation that the witness "is in fear of his life”. Over defendant’s protest that no hearing to establish a compelling need for that step had been held, the Judge, without requesting or receiving an iota of supporting information either by way of testimony or colloquy, granted the application summarily. In doing so, he merely announced that he was taking "judicial notice” that "the very nature of the work of the undercover agent in the City of New York involved with narcotics is such as to place him in jeopardy every day he is on the streets because of the high crime incidence in the areas the undercover has worked and, as a matter of fact, where this case arises from. The court is satisfied that there is a real and present danger to his safety”.

The courtroom having been cleared, it was not long before a picture completely at odds with the one portrayed by the prosecutor was unveiled. For Brown himself testified that he no longer was engaged in undercover activity, that indeed he had already been serving in his new assignment as a uniformed patrolman for the last six months, and that his beat was distant from his former theatre of operations. Specifically, he made clear that he was not involved in any ongoing narcotics investigations, whether by way of carry-over from his previous work or otherwise. Even then, the court did not rescind its order.

On its review of the judgment of conviction, the Appellate Division (over Justice Sandler’s dissent) concluded that this episode had not "seriously deprived defendant of the benefit of a public trial”. For the reasons which follow, our view is to the contrary.

At the outset, we observe that the public trial right, the foundations of which are too well catalogued elsewhere to require recapitulation here (see People v Jelke, 308 NY 56, 61-64; Matter of Oliver, 333 US 257, 266-271; Radin, Right to a Public Trial, 6 Temple LQ 381), is neither absolute nor inflexible. But we also note that, though this leaves courts with some leeway in its enforcement, since the concept of a secret trial is anathema to the social and political philosophy which motivates our society, the discretion to limit the public nature of judicial proceedings is to be "sparingly exercised and then, only when unusual circumstances necessitate it” (People v Hinton, 31 NY2d 71, 76).

This caution recognizes that the fundamental and constitutional nature of the right does not permit the making of an uncharted, ungrounded or unjustified exception. Rather, common sense and the more specific principles articulated in prior decisions serve as guides in balancing the defendant’s paramount rights, the need to preserve order in the courtroom while disposing of cases expeditiously, and the likelihood that any particular measure adopted will significantly foster full and truthful testimony (see, generally, Bowers, Judicial Discretion of Trial Courts, § 262, pp 296-297; United States ex rel. Bruno v Herold, 408 F2d 125; People v Byrnes, 84 Cal App 2d 72, cert den 335 US 847).

These considerations in mind, we address the more immediate question — the practical operation of the guarantee in circumstances where those engaged in undercover work on behalf of law enforcement authorities are called upon to give evidence. In this connection, our decision in People v Hinton (31 NY2d 71, supra) left no doubt that trials in our State may be closed during the testimony of agents whose public appearance would endanger their lives or seriously damage other investigations. However, we never suggested that, absent real jeopardy, such an agent’s appearance on the stand, without more, would sanction an exclusion order. Nor did we there have occasion to consider the methodology by which a court was to go about the business of determining whether the facts underlying the application fell within the standards enunciated in the cases.

However, a trial court would not appear to be without discretion to choose among alternative means for determining whether an application to close a courtroom is meritorious (cf. People v Jelke, 308 NY 56, 63, supra).

For instance, there are times when careful inquiry directed at counsel, the witness, or even the spectators present in the courtroom might be enough (see United States ex rel. Smallwood v La Valle, 377 F Supp 1148, 1153). Had the Judge here employed this technique prior to closing, he presumably would have ascertained that the prosecutor had not questioned Brown on the subject for a long time and that the information contained in the District Attorney’s file on this score was stale. No doubt, this would have led him to discover that Brown was no longer engaged in narcotics assignments but was now serving in a capacity in which he literally paraded his identity as a policeman. Though the termination of his undercover work would not necessarily have precluded the court from granting the request to close, it should have made the Judge realize all the more that the prosecutor had to establish that the danger to the witness was still present.

In other cases, the only trustworthy means of establishing grounds for excluding the public may very well be to hold an evidentiary hearing (see United States ex rel. Lloyd v Vincent, 520 F2d 1272, 1275), which, if the need is apparent, might be held behind closed doors (cf. People v Goggins, 34 NY2d 163). In short, while there is no single rule to cover every case, no closing can be tolerated that is not preceded by an inquiry careful enough to assure the court that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons.

As indicated, in the present case, the course adopted by the trial court in response to the all but invited conclusory motion of the prosecutor was not reasonably directed to the ascertainment of whether public testimony by Brown would threaten his safety or the integrity of any other case. There should have been a factual showing that an exception to the norm of a public trial was justified (see People v Castro, 63 AD2d 891; People v Boyd, 59 AD2d 558). Instead, the court was content to rely on its own unparticularized impressions of the vicissitudes of undercover narcotics work in general. That undercover work at times entails serious threats to the safety of agents was by no means sufficient to connect that threat to this witness. And, the court apparently treated the issue with so little appreciation of its place in the hierarchy of constitutional rights that, even when it became apparent, as it did practically at the beginning of Brown’s testimony, that the information upon which the Judge had acted had been totally misleading, the closure was permitted to continue until sometime after the witness had departed.

Our conclusion that defendant’s trial was improvidently closed to the public brings us to the question whether such error is reversible. In contending that it is not, the People rely on the harmless error rule. And it is true that defendant points neither to discrepancies in the testimony of Officer Brown vis-á-vis that of Howard, nor to any exculpatory evidence or other benefit that might have come to him had the entire trial been public. But, in our view, prejudice need not be demonstrated.

This was recognized in People v Jelke (308 NY 56, 67-68, supra), where Judge (later Chief Judge) Fuld wrote, "To the plaint that such a ruling will result in reversal of a conviction of one clearly proved guilty, it is sufficient to say that the decision herein far transcends the issue of [defendant’s] guilt or the disposition of this particular case. As one court has expressed it (People v. Murray, supra, 89 Mich. 276, 286), Tt is for the protection of all persons accused of crime — the innocently accused, that they may not become the victim of an unjust prosecution, as well as the guilty, that they may be awarded a fair trial.’ ”

The continued viability of this pronouncement appeared for a time to have been undermined by People v Hagan (24 NY2d 395, 400), in which, though only as an alternative ratio decidendi, the court held that "[e]ven if there were error in the exclusion [of the public from defendant’s trial], it should be held beyond a reasonable doubt that it was harmless (Chapman v. California, 386 U. S. 18).” On the other hand, resuscitation came when we adopted the Chapman harmless constitutional error rule in People v Crimmins (36 NY2d 230). There, while not expressly treating with public trial, we left no doubt that the right to a fair trial was impervious to harmless error analysis (36 NY2d, at pp 237-238; see, also, People v Williams, 46 NY2d 1070; People v Savvides, 1 NY2d 554).

Public trial and fair trial are not strangers. Hindering concealment of abuses of the judicial process is a significant safeguard against unfair trials. Chief Justice Earl Warren regarded the open courtroom a part of " 'the fundamental conception’ of a fair trial” (Estes v Texas, 381 US 532, 560) and Justice John M. Harlan spoke of it as the "institutional safeguard for attaining [a fair trial]” (Estes v Texas, supra, at p 588).

Moreover, as suggested by the foregoing comments, though the Sixth Amendment speaks of the right as that of the "accused”, it is well recognized that the public at large has an overriding concern with the values thus fostered (see, e.g., Matter of Oliver v Postel, 30 NY2d 171; Nebraska Press Assn. v Stuart, 427 US 539; Judiciary Law, § 4; Comment, The Right to Attend Criminal Hearings, 78 Col L Rev 1308, 1310-1311). For example, public confidence in the administration of justice is enhanced when its doors are open to all, litigants and nonlitigants alike, and wide understanding of its methods moves in the same direction (6 Wigmore, Evidence [Chadbourn rev, 1976], § 1834; Note, 41 NYU L Rev 1138, 1139). The harmless error rule is no way to gauge the great, though intangible, societal loss that flows from the frustration of such a goal.

The practical impossibility of demonstrating prejudice faces an accused as well. Conceptually, a member of the public witnessing a trial may discover that he possesses material information which he will then volunteer to the parties. Or, the presence of the public may have a salutary influence in deterring a witness from perjuring himself in ways that would have been difficult for the defense to counteract. To require the defendant to undertake the well-nigh impossible task of proving prejudice would render the right to a public trial illusory and beyond appellate review on that basis (State v Schmit, 273 Minn 78; Davis v United States, 247 F 394; State v Haskins, 38 NJ Super 250; see, generally, Note, 41 NYU L Rev 1138, 1149; Note, 20 Stanford L Rev 83, 89; cf. People v Felder, 47 NY2d 287).

As a consequence, some courts have found it more comfortable to simply say that a violation of such a fundamental right implies prejudice (People v Byrnes, 84 Cal App 2d 72; Tanksley v United States, 145 F2d 58; State v Keller, 52 Mont 205; see, also, United States ex rel. Bennett v Rundle, 419 F2d 599; United States v Kobli, 172 F2d 919).

For all these reasons, we today make explicit what in Crimmins was implicit and reaffirm the holding in Jelke that a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee. Therefore, the order appealed from should be reversed and a new trial ordered.

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

Order reversed, etc.

      . Although the Sixth Amendment is applicable in State trials by virtue of the due process clause of the Constitution (Duncan v Louisiana, 391 US 145; Estes v Texas, 381 US 532; Matter of Oliver, 333 US 257), most State Constitutions contain identical guarantees (see Note, 41 NYU L Rev 1138, 1140, nn 11-15). New York is among a small minority of States with no specific constitutional provision, but this oversight is compensated by the forthright language of section 12 of the Civil Rights Law ("In all criminal prosecutions, the accused has a right to a * * * public trial”) and section 4 of the Judiciary Law ("The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trial in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court”). The exceptions listed in the Judiciary Law were narrowly limited in People v Jelke (308 NY 56) and would not, in any event, supersede a defendant’s constitutional rights.

      . The right to a public trial is a protagonist in the fair trial/free press controversy, where it is asserted in opposition to the defendant’s claim of prejudice from publicity (see Matter of Gannett Co. v De Pasquale, 43 NY2d 370, affd 443 US — [July 2, 1979]; Matter of United Press Assns. v Valente, 308 NY 71, see, generally, Dorsen, Bender & Neuborne, Political and Civil Rights in the United States [4th ed], pp 493-512; ABA Advisory Committee on Fair Trial and Free Press, Standards Relating to Fair Trial and Free Press [TD, 1966]).


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Robert A. Luongo, Jr., Appellant. The People of the State of New York, Respondent, v Robert A. Luongo, Jr., Appellant.
    Argued March 28, 1979;
    decided June 14, 1979

      POINTS OF COUNSEL

      Stanley L. Shapiro for appellant in the first above-entitled action.
    I. Defendant-appellant’s conviction of the crimes of grand larceny in the second and third degrees must be vacated as a matter of law. (People v Ryan, 41 NY2d 634.) II, Defendant’s constitutional rights were violated and he was denied a fair trial by a jury of his peers because the court systematically excluded prospective jurors because of financial hardship. (Duncan v Louisiana, 391 US 145; People v Dunn, 157 NY 528; People v Cosmo, 205 NY 91; Glasser v United States, 315 US 60; Thiel v Southern Pacific Co., 328 US 217; Smith v Texas, 311 US 128; United States v Anderson, 509 F2d 312.) III. Defendant was denied a fair trial because the trial court in its conduct at the trial was not impartial and that through its questioning of the prosecution’s witnesses and statements to the defense counsel suggested to the jury that it was convinced of defendant’s guilt. (People v Rencher, 49 AD2d 609; People v McLaughlin, 150 NY 365; People v Greenfield Constr. Co., 48 AD2d 765; People v De Jesus, 42 NY2d 519; People v Williamson, 40 NY2d 1073; People v Mendes, 3 NY2d 120; People v Vann, 54 AD2d 356; People v Vasquez, 57 AD2d 1083; People v Sostre, 37 AD2d 574.) IV. The court’s instructions to the jury concerning the definition of an accomplice was incorrect and confused the jury thereby denying defendant a fair trial. (People v Crimmins, 36 NY2d 230.) V. That the sentence even as modified by the court below is illegal and must be set aside as a matter of law. (People v Cox, 286 NY 137; People v Rossi, 5 NY2d 396; People v Schwenk, 92 Misc 2d 331; People v Rohey, 84 Misc 2d 662; People v La Rock, 78 Misc 2d 525; People v Daghita, 276 App Div 20, 301 NY 223.)

      Patrick Henry, District Attorney (Frederick Eisenbud of counsel), for respondent in the first above-entitled action.
    I. The evidence was sufficient to convict appellant on 13 counts of grand larceny in the second degree and 2 counts of grand larceny in the third degree. (People v Ryan, 41 NY2d 634; People v Montanez, 41 NY2d 53; People v Leyra, 1 NY2d 199; People v Kreichman, 37 NY2d 693; People v Yazum, 13 NY2d 302.) II. The court properly excluded prospective jurors who would suffer financial hardship if they had to serve On a protracted trial. (Thiel v Southern Pacific Co., 328 US 217; Taylor v Louisiana, 419 US 522; United States v Kennedy, 548 F2d 608; United States v Anderson, 509 F2d 312, 420 US 991; People v Culhane, 33 NY2d 90; People v West, 38 AD2d 548, 32 NY2d 944.) III. Appellant was not deprived of á fair trial by the conduct of the trial court. (People v Moulton, 43 NY2d 944; People v De Jesus, 42 NY2d 519; People v Crimmins, 36 NY2d 230; People v Gonzalez, 38 NY2d 208; People v Dachille, 14 AD2d 554.) IV. The court properly instructed the jury on the law relating to accomplices. (People v ConsolaziO, 40 NY2d 446; People v Fiore, 12 NY2d 188; People v Morhouse, 21 NY2d 66; People v Mullens, 292 NY 408; People v Kohut, 30 NY2d 183; People v Daniels, 37 NY2d 624; People v Dixon, 231 NY 111; People v Nitzberg, 287 NY 183; People v Leyra, 1 NY2d 199; People v Weiss, 32 AD2d 856, 397 US 1047.) V. The sentencing court properly caused each of appellant’s sentences to run consecutively to each other, and, as modified by the court below, appellant’s sentence may not be reviewed by this court. (People v Tanner, 30 NY2d 102.)

      Stanley L. Shapiro for appellant in the second above-entitled action.
    I. The indictment herein should be dismissed because defendant-appellant was previously prosecuted for the same crime in Suffolk County. (People v Cox, 286 NY 137; People v Hall, 186 Misc 62; Matter of Mack v Court of Gen. Sessions of County of N. Y., 14 AD2d 98; Benton v Maryland, 395 US 784; People v Christman, 23 NY2d 429; People v Repola, 305 NY 740; People v Florio, 301 NY 46; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 43 AD2d 414, 37 NY2d 560; People v Abbamonte, 43 NY2d 74; People ex rel. Flynn v Barr, 259 NY 104.) II. Defendant-appellant’s conviction of the crimes of grand larceny in the second and third degrees must be vacated as a matter of law. (People v Pindar, 159 App Div 12, 210 NY 191; People v Lehrer, 182 Misc 645; People v Pollack, 38 Misc 2d 1075; People v Lofton, 73 Misc 2d 285, 78 Misc 2d 202; People v

      Karp, 298 NY 213; People v Fiske, 19 AD2d 748; People v Baker, 96 NY 340; People v Henning, 42 AD2d 286; People v Leibowitz, 12 Misc 2d 553.) III. Defendant-appellant was denied a fair trial when the trial court permitted an excessive amount of prejudicial testimony to permeate the record. (People v Crimmins, 38 NY2d 407.) IV. That the sentence, even as modified by the court below, is illegal and must be set aside as a matter of law. (People v Cox, 286 NY 137; People v Rossi, 5 NY2d 396; People v Schwenk, 92 Misc 2d 331; People v Rohey, 84 Misc 2d 662; People v La Rock, 78 Misc 2d 525; People v Daghita, 276 App Div 20, 301 NY 223.) V. Pretrial publicity coupled with defendant’s being sentenced in Suffolk County during the Nassau County trial denied defendant a fair trial. (United States v Reid, 12 How [53 US] 361; Rideau v Louisiana, 373 US 723; Estes v Texas, 381 US 532.)

      Denis Dillon, District Attorney (Mark S. Adler and William C. Donnino of counsel), for respondent in the second above-entitled action.
    I. The evidence was sufficient as a matter of law to find appellant guilty of grand larceny beyond a reasonable doubt. (People v Montanez, 41 NY2d 53; People v Consolazio, 40 NY2d 446; United States v Forbes, 515 F2d 676; People v Stiller, 255 App Div 480, 280 NY 519; People v Benevento, 19 AD2d 561; Giannetto v General Exch. Ins. Corp., 10 AD2d 442; People v Miller, 169 NY 339; Ranney v People, 22 NY 413; People v Karp, 298 NY 213.) II. Prosecution in Nassau County was not barred by the principles of double jeopardy. (Benton v Maryland, 395 US 784; Green v United States, 355 US 184; Blockburger v United States, 284 US 299; United States v Kramer, 289 F2d 909; United States v Garner, 529 F2d 962; People v Cox, 286 NY 137, 706; People v Daghita, 276 App Div 20, 301 NY 223; People v Rossi, 5 NY2d 396; People v Thiel, 26 AD2d 897; People v Lofton, 23 Misc 285; People v La Rock, 78 Misc 2d 525.) III. Appellant received a fair trial. (People v Robinson, 36 NY2d 224; People v Broady, 5 NY2d 500; People v Brown, 24 NY2d 168; People v D'Abate, 37 NY2d 922; People v Di Piazza, 24 NY2d 342; People v Schwartzman, 24 NY2d 241, 914, 396 US 846; People v Dales, 309 NY 97.) IV. The lower court’s denial of appellant’s motion to suppress was proper. (People v Huffman, 41 NY2d 29.) V. The sentence as modified by the court below is legal. (People ex rel. Mauer v Jackson, 2 NY2d 259.)
   OPINION OF THE COURT

Chief Judge Cooke.

Defendant was convicted, after a jury trial in Suffolk County Court, of 13 counts of grand larceny in the second degree (Penal Law, § 155.35) and 2 counts of grand larceny in the third degree (Penal Law, § 155.30). Subsequently, he was convicted of 36 counts of grand larceny in the second degree and 4 counts of grand larceny in the third degree in a nonjury trial in County Court, Nassau County. In both cases, the Appellate Division modified the sentences imposed. The convictions were affirmed with the exception that in the Nassau County prosecution one count of second degree grand larceny was reduced to grand larceny in the third degree. Leave to appeal was granted by a Judge of this court in each matter.

On these appeals, defendant contends that the People failed to prove his guilt of the crime of larceny by false promise (Penal Law, § 155.05, subd 2, par [d]), beyond a reasonable doubt. Specifically, he maintains that the People’s proof failed to exclude to a moral certainty every hypothesis but that at the time defendant or his authorized agents induced people to invest money with him by promising them an inordinately high rate of return in a short period, he had no intention of fulfilling his promises. The orders of the Appellate Division should be affirmed. Viewed in a light most favorable to the People, the evidence at the trials established that at the time defendant made each and every promise, he knew as a certainty that each and every investor was in jeopardy, subject to the built-in danger that he would not be repaid, since defendant was engaged in a Ponzi scheme which could subject him to immediate prosecution and was bound at sometime in the future to collapse of its own weight. From inception, each promise was infected with that inevitability, not a mere possibility of collapse — an infection contrary to the promise and to that extent conceived in falsity. Promises, successively made, were certain to result in eventual unfulfillment. At the point when incoming investments would not be sufficient to meet the obligations owed to each investor, the promise could not be performed. Even when the threat of collapse was precipitated by the arrest of one of his agents in Nassau County, defendant nevertheless continued to take in new investments with the future intention that he would soon terminate the plan and flee.

At both trials, the testimony of all of the investors in defendant’s plan was essentially the same. Each of them testified that he or she was induced to invest a minimum of $1,000 with Robert Luongo Associates (hereinafter referred to as Associates) for either a 1-, 3- or 12-week period. At the end of the period, the principal would become due together with interest in the amount of 10, 20 or 30 to 40% of the principal sum invested. Patrons of the plan were given sketchy details as to where their funds were invested. They Were informed, however, that none of the funds were being used to finance any illicit enterprises but rather were being invested in Associates and its affiliated enterprises. Associates, they were told, had interests in aircraft, racing cars, real estate, construction performance bonds, an insurance company, a restaurant, a consultihg firm, business promotion and a host of other concerns. As it later developed, however, these representations proved to be false or grossly exaggerated. Nevertheless, undoubtedly spurred by the allure of such enormous profits, investors eagerly placed their money with defendant with little investigation into the legitimacy of his operations,

The true manner in which defendant obtained possession of the money and the uses to which those funds ware applied was revealed through the testimony of his agents, as well as the statements and actions of the defendant himself. Joseph Merlo, defendant’s chief associate and supervisor of his sales force, testified that when he met the defendant in late 1971 he was immediately impressed with his aura of prosperity. Offered a position as a solicitor of investor funds, Merlo was informed that although Associates and its subsidiaries stood behind the investments, the key to the continued success of the scheme was the constant accretion of new investment funds into the plan. Merlo initially attracted a number of new investors, trading on the appearance of prosperity surrounding Associates and the defendant together with the promise of a large rate of return on a short-term investment.

The mechanics of investment in the plan were essentially constant. In return for their money, depositors were given a promissory note signed by the defendant specifying the date payment was due and the gross amount to be paid. Merlo would collect the money for the new investments on Thursday and bring it to defendant. The following day, defendant would give Merlo the funds needed to distribute to clients withdrawing funds from the program. Merlo was told by defendant that he drove to Philadelphia to invest the money on Thursday evenings where he picked up the funds necessary for distribution the following day. However, aside from his statements, there was no evidence that these trips were made. Thus, in the initial stages of the plan, those investors who wished to withdraw their investments were promptly paid. The effect of such prompt payment, of course, was to convert every investor into a missionary spreading the word of the enormous profits which could be speedily attained with no discernible risk of loss.

Accordingly, over a two-year period, the project expanded with amazing rapidity. In keeping with the production-oriented nature of the plan, new agents were enlisted to collect and distribute investor funds. Defendant instructed the agents to inform investors that for a 12-week investment, 30% interest would be returned by Associates. The agents were told to inform investors that Associates would invest their money in short-term real estate and performance bonds as well as various real or imagined subsidiaries. The agents were to give depositors a promissory note, now in the name of Associates, incorporating the essential terms of the transaction. As the notes matured, the agents were instructed to try and persuade depositors to reinvest but, if they chose not to do so, disbursements on the matured notes were to be paid from the proceeds of incoming investments. Each week, either defendant, Merlo, or Ciro Campos, another key aide, would pick up the excess funds taken in or give the agent enough money to cover the difference.

The plan operated to the apparent satisfaction of all concerned until February 11, 1974 when the Nassau County Police, armed with a warrant, arrested Leonard Shefts, an agent of defendant, searched his home and seized records relating to the operation of the plan. Visibly upset, defendant told Merlo to destroy any records relating to the scheme in his possession and to instruct the other agents to do the same. The following morning, defendant fled to Campos’ home in New Jersey after first burning his own records. At a meeting with Campos and Merlo in that State, defendant informed them that if all depositors who had invested with Shefts were paid when their notes became due, their problems with the law would be obviated. To accomplish this objective, over $90,000 would have to be raised by March 1, 1974. Merlo and Campos were told that all notes coming due during the ensuing 12 weeks would be paid after which the program would be closed.

There then ensued what can best be described as a mad scramble to secure the funds necessary to pay Shefts’ investors. During that period, defendant assured his agents that all investors would be paid and to continue to take in new funds. On February 28, 1974, defendant, Campos and Merlo met at Campos’ home in New Jersey to arrange for the payment of Shefts’ investors. After showing Merlo an article about the life of Charles Ponzi, a notorious swindler, defendant remarked: "If this thing collapses, it will be known as a Luongo scheme and not a Ponzi scheme.”

Shefts’ investors were paid on March 1, 1974. However, the other agents were instructed to "hold off’ their investors whose notes were due on that date. Defendant told Campos and Merlo that payment would be a few days late and arranged to meet them on March 5. On that date, while Merlo and Campos were waiting for defendant who was to give them the funds to distribute to their agents and investors, defendant was somewhere over the Atlantic on his way to Sweden.

After his arrest by Interpol on June 29, 1974, defendant was returned to the United States that October in the custody of detectives from Nassau and Suffolk Counties. On the flight back, he remarked that he was familiar with the life of Charles Ponzi and that when he first started his plan he realized it would grow, but "he never dreamed it would ever catch on and grow like wildfire the way it did”. Luongo also stated that although approximately $12 million flowed into the plan during its short life, if it were allowed to continue for one more year he would have been able to turn Associates and its subsidiaries into profit-making enterprises.

Subsequent investigation revealed that many of defendant’s representations concerning his corporate holdings and investments were at least misleading, and oftentimes simply false. For instance, most of the subsidiaries of Associates were simply shells, having no assets and doing no business. Each of the corporations that were in operation were doing so at a loss and were subsidized by investor funds. A number of the concerns had already gone out of business at the time defendant represented them as viable entities; others never existed at all. Associates, the jewel of defendant’s empire, had never turned a profit and was used as a vehicle through which investor’s money flowed to its subsidiaries. In short, none of defendant’s putatively legitimate enterprises could have returned any funds to investors; in fact, those that did exist were draining investor money simply to stay in business.

As noted, both prosecutions proceeded under the theory that defendant’s conduct constituted the crime of larceny by false promise (Penal Law, § 155.05, subd 2, par [d]). Unknown to the common law, the crime of larceny by false promise is committed when a person "pursuant to a scheme to defraud * * * obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct * * * when he does not intend to engage in such conduct”. The People maintain that to induce his victims to part with their money, defendant falsely promised to invest their funds in certain specified enterprises so as to generate a 30 to 40% return in a 12-week period. There is no real dispute as to whether these promises were made. The People’s cases rested on the proposition that these promises were materially false for, in reality, defendant was engaged in a Ponzi scheme, whereby he took the investments from a subsequent group of individuals and used a portion of those funds to meet his obligations to earlier investors, retaining the difference. As more investors were enticed by the allure of huge profits, it was necessary to enlist more people into the plan to meet the obligations owed to prior investors. Ever rising in a pyramid-like fashion, the scheme served as an illustration of the stark realities of Malthusian economics and, as it was predestined to do, eventually collapsed of its own weight (see People v Consolazio, 40 NY2d 446).

A conviction of the crime of larceny by false promise cannot rest on mere probabilities; indeed, the standard of proof the People must satisfy is more burdensome than that of most crimes. Because the failure to perform a promise may ordinarily be redressed in the civil forum, the statute set forth "a high standard of proof for establishment of the defendant’s intent” (People v Ryan, 41 NY2d 634, 639; see, also, People v Churchill, 47 NY2d 151 [history and development of larceny by false promise]). Accordingly, the mere fact that the defendant’s promise was not performed, standing alone, is insufficient to sustain a conviction of larceny by false promise. A finding that the defendant obtained property by means of a promise to perform in the future when he had no intention of doing so at the time the promise was made "may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant’s intention or belief that the promise would not be performed” (Penal Law, § 155.05, subd 2, par [d]).

Only rarely is there any direct proof as to the intent of a defendant at the time the promise was made. Of necessity, criminal intent must be inferred from the actions of a defendant after the promise was made, the nature of the promise and relevant circumstances surrounding it, and the actions of the defendant after his failure to perform (see People v Churchill, supra, at p 158; cf. People v Bollettieri, 9 NY2d 629, cert den 366 US 950). In making this inquiry, however, great care must be exercised by the trier of fact so as to ensure that mere suspicion is not elevated into a finding of larcenous intent (People v Ryan, 41 NY2d 634, 640, supra). Instead, a finding of larcenous intent may be made only where that determination flows naturally and reasonably from the facts in evidence and must exclude to a moral certainty any implication that the defendant has committed a mere civil wrong.

That burden has been met here. The evidence discloses the existence of many circumstances beyond the mere failure of this defendant to perform his promise by his failure to pay his investors. The conclusion that defendant was engaged in a fraudulent Ponzi scheme is inescapable. Defendant represented to his associates, agents and investors that the funds placed with him would be invested in various enterprises whose business would be sufficient to generate an extraordinarily large profit within a brief period of time. As noted, some of these concerns were never owned by defendant or Associates and all of those in which there was an interest had never turned a profit. Indeed, the continued viability of these enterprises was being subsidized by investor funds. Rather than representing simple bad investments, as defendant maintains, these businesses existed in name only, enabling defendant to refer to and project them as viable enterprises to ensnare his victims.

Indeed, the very size of the promised return on investment funds is indicative of larcenous intent. The investment program was not represented as a speculative venture. Instead, investors were guaranteed at the time they gave defendant their money that a large profit would be available to them in a matter of weeks. Typically, investors were promised a 30 to 40% return in 12 weeks. To constitute a viable investment program, the profits from the funds invested by defendant must have been sufficient to return the profits guaranteed to investors, pay out 10% of the principal sum invested to agents as well as cover the losses sustained by Associates and its subsidiaries. Even given the dubious assumption that defendant did not personally profit in his capacity as the moving force behind the plan, the annual yield on the funds invested would have had to have been in excess of 200% simply to meet expenses. Expert testimony, if credited by the trier of fact, established that there were no legitimate investments which would be able to guarantee a return of such magnitude.

Thus, there is simply no other conclusion but that defendant was using funds invested by subsequent investors to meet his prior obligations (see People v Consolazio, 40 NY2d 446, supra; cf. People v Miller, 169 NY 339). Investors who wished to withdraw funds from the plan were paid from funds supplied by incoming investors. Hence, defendant’s ability to fulfill his promises Was premised solely on the illegal continuation and expansion of receiving increased investment funds, which continuation was in jeopardy from the inception. The finding that defendant was conducting a fraudulent Ponzi scheme rather than a legitimate investment program is further bolstered by his boast to Merlo that if his conduct became known, the Ponzi scheme would thereafter be known as the Luongo scheme.

Further evidence of defendant’s fraudulent intent may be inferred from his actions after the arrest of Shefts, one of his Nassau County agents. When the scheme began to fall apart, defendant fled to Campos’ home in New Jersey, stating that he did not want to be bothered by the District Attorney. He destroyed his records relating to the plan and instructed his agents to do likewise. Defendant hoped that by raising the funds necessary to pay back Shefts’ investors he would be able to stave oif any larceny charges. When that strategy appeared doomed to failure, he fled the country. These activities evince defendant’s consciousness of guilt and are relevant to the question of his criminal intent (see People v Leyra, 1 NY2d 199, 208-209). And, of course, defendant’s voluntary statements after his arrest in Sweden destroy any claim that he was merely an overly optimistic investment advisor whose fortunes plunged due to an unexpected downturn in the market.

It is true that defendant’s operations assumed some of the forms of a legitimate business venture. Nevertheless, beneath it all the manner in which he obtained possession of the money of his victims was by means of false promise. No other conclusion can be drawn from the record but that defendant plainly intended from the inception, and at every stage of his operation, to obtain the money of others by means of fraudulent devices and then appropriate that money to his own use. In sum, the evidence in these cases is wholly consistent with guilty intent and excludes to a moral certainty every hypothesis except that defendánt intended to perform (cf. People v Rolchigo, 33 AD2d 1060, 1061, affd 28 NY2d 644).

As an additional ground for reversal, defendant maintains that principles of both statutory and constitutional double jeopardy precluded his trial in Nassau County in connection with charges arising out of the same plan which was the predicate for his prior Suffolk County convictions. The flaw in these arguments lies in the fact that each larceny was an independent criminal transaction which can be prosecuted independently (CPL 40.10, subd 1; 40.20, subd 2, par [e]; People v Rossi, 5 NY2d 396, 400-401; People v Cox, 286 NY 137). Inasmuch as none of the victims named in the Suffolk County indictment were subjects of the subsequent Nassau County prosecution, there was no bar to the second trial.

We have examined defendant’s remaining contentions and find them to be without merit.

Accordingly, in each appeal, the order of the Appellate Division should be affirmed.

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

In each case: Order affirmed.

       In the Nassau County prosecution, it was also found that defendant’s acts were sufficient to support his conviction of the crime of larceny by false pretenses (Penal Law, § 155.05, subd 2, par [a]; see People v Karp, 298 NY 213). In view of our conclusion that both convictions are fully sustainable on larceny by false promise grounds, it is unnecessary for us to comment upon the applicability of this theory of larceny to defendant’s actions.


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v John Ciaccio, Appellant.
    Argued May 2, 1979;
    decided June 14, 1979

      POINTS OF COUNSEL

      Anthony V. Lombardino for appellant.
    I. Communications and improper materials that came to the attention of the jurors outside of the courtroom deprived appellant of his constitutional right to a fair trial. (Allen v United States, 164 US 492; People v Rivera, 26 NY2d 304; People v Winston, 52 AD2d 432.) II. Refusal of the court to grant appellant’s motion to instruct the jurors of their right to stick by their convictions in the course of their deliberations was reversible error. (Allen v United States, 164 US 492; People v Randall, 9 NY2d 413; People v Josey, 19 AD2d 660; People v Sharff, 45 AD2d 666; People v Hill, 44 AD2d 813; United States v Kenner, 354 F2d 780; United States ex rel. Tobe v Bensinger, 492 F2d 232.) III. The failure of the court to instruct the jury on unlawful imprisonment in the first degree and unlawful imprisonment in the second degree was error. (People v Usher, 39 AD2d 459; People v Asan, 22 NY2d 526.) IV. The use of expert testimony to bolster the credibility of the complaining witness was reversible error. (People v Higgins, 5 NY2d 607; People v Graydon, 43 AD2d 842.) V. The attack on the character of appellant by Detective Butler was reversible error. (People v Winston, 52 AD2d 432; People v Hetenyi, 304 NY 80; People v Mari, 49 AD2d 843.)

      John J. Santucci, District Attorney (Joan L. Craig of counsel), for respondent.
    I. The guilt of appellant was proven beyond a reasonable doubt. People v Alamo, 34 NY2d 453; People v Regina, 19 NY2d 65; People v White, 2 NY2d 220; People v Mleczko, 298 NY 153; People v Lytton, 257 NY 310; People v Arata, 255 NY 374; People v Atlas, 183 App Div 595, 230 NY 629.) II. The court properly denied, summarily, appellant’s motion to set aside the verdict on the grounds of alleged improper communication with, and conduct of, the jury, since the moving papers failed to set forth a legal basis for granting the motion. (People v Venable, 46 AD2d 73, 37 NY2d 100; Parker v Gladden, 385 US 363; People v Saccomanno, 25 AD2d 528; People v Krische, 50 AD2d 872; People v Rivera, 26 NY2d 304; People v Sprague, 217 NY 373; People v Tobias, 51 AD2d 654; People v Caputalo, 138 Misc 2d 344; People v De Lucia, 20 NY2d 275; People v Crimmins, 26 NY2d 319.) III. The court’s failure to instruct the jury during deliberations that each juror had the right to stick by his or her convictions was not error. (United States ex rel. Tobe v Bensinger, 492 F2d 232; United States v Kenner, 354 F2d 780; People v Sharff, 45 AD2d 666; People v Albanese, 27 AD2d 820, 29 AD2d 516, 19 NY2d 965; People v Hill, 44 AD2d 813; People v Josey, 19 AD2d 660.) IV. There was neither a request made by appellant to the trial court to submit the crime of unlawful imprisonment to the jury nor an objection made by appellant to the trial court’s failure to do so; accordingly, the alleged error in the failure of the court to submit the crime of unlawful imprisonment to the jury has not been preserved for review in this court. (People v Fonseca, 36 NY2d 133; People v Gladman, 49 AD2d 912; People v Williams, 47 AD2d 262.) V. The defense had opened the door to the prosecution’s hypothetical question to Detective Butler: in any event, Butler’s response was not an expression of his opinion as to complainant’s credibility. (People v Graydon, 43 AD2d 842.) VI. Appellant suffered no prejudice by reason of the testimony of Detective Butler or Officer Walpole.
   OPINION OF THE COURT

Gabrielli, J.

Defendant stands convicted of the crime of robbery, first degree, arising out of an alleged hijacking of a truck containing a shipment of sweaters. The Appellate Division affirmed the conviction, without opinion (60 AD2d 894) and, for the reasons that follow we are required to reverse that order and direct that a new trial be held.

While defendant assigns several errors in urging a reversal, we address but two of them. The first, and crucial, error concerns an unauthorized communication by the court clerk to the jury during their deliberations on the guilt or innocence of the defendant. The jury began deliberations at 2:00 p.m. on the seventh day of trial. That same evening the jury was sequestered without having agreed upon a verdict. Deliberations continued the next day and, after lunch, two messages were sent by the jury to the Trial Judge. The first stated that the jury was deadlocked with seven jurors supporting a guilty verdict and five who supported a finding of not guilty. The second note was a complaint by one of the jurors that one of their number was refusing to participate in intelligent discussions of the case. At this point the court instructed the jurors that they should continue to deliberate with all jurors participating, and once again the jury retired to attempt to reach a verdict. Shortly after midnight the jury again informed the court that they were deadlocked, although upon this occasion 11 jurors felt the defendant was guilty. It does not appear that the court gave them any further or additional instructions, but because the jury had indicated a desire to get some sleep and resume deliberations in the morning, the jurors were again sequestered at 1:00 a.m. With commendable persistence they resumed further deliberations after breakfast; and, following another full day, the jury returned a guilty verdict during the late afternoon.

The alleged serious error for our review concerns advice and instruction given by the court clerk while the jurors were deliberating. Based on this episode and following the verdict, and upon being advised by members of the jury that the court clerk had indeed spoken with them in the absence of the court, the defendant moved to set aside the verdict, claiming improper conduct by a person in relation to the jury (CPL 330.30, subd 2) and requested an immediate hearing. This motion was based upon uncontroverted sworn affidavits made by two members of the jury to the effect that during their deliberations, the court clerk entered the jury room and told the assembled jurors that the Judge had stated that a lot of time and money are invested in the case and they shoiild keep on deliberating. Obviously, neither defendant nor his counsel knew of this and, most importantly, the jurors wéte not in a position to know whether the Judge had in fact sent the message (it appears uncontroverted that he had not), but they were unequivocal in stating that it had in fact been delivered,

Significantly, upon the motion to set aside the verdict, the District Attorney did not question the veracity of the affidavits, nor did he seek to show that the events had not in fact occurred as described. Instead he took the position that the sworn allegations, even if true, were not grounds for vacating the verdict. The court agreed and denied the motion without making any inquiry into the factual basis for the sworn statements of the jurors.

In every criminal proceeding, a defendant has an absolute right to be present, with counsel, "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” (Snyder v Massachusetts, 291 US 97, 105-106; People ex rel. Bartlam v Murphy, 9 NY2d 550, 553; People v Tyler, 14 AD2d 609; NY Const, art I, § 6). This necessarily includes all proceedings had in impaneling the jury, receiving evidence, the summations of counsel, receiving the verdict (People v Mullen, 44 NY2d 1; Maurer v People, 43 NY 1), and of equal importance, all proceedings dealing with the court’s charge, admonishments and instructions to the jury, where the court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts (People v Mullen, supra; Maurer v People, supra; see, also, CPL 300.10).

Where the court’s instructions are supplemental, coming after the jury has already once retired, they may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves. As such, the presence of the defendant and his counsel is constitutionally required whenever supplemental instructions are given, and failure to notify them is a fundamental error (US Const, 6th Arndt; NY Const, art I, § 6).

Nor has the problem escaped the notice of the Legislature, When the court communicates with a jury, they must be returned to the courtroom, the prosecutor and counsel for the defendant must be notified, and the defendant must be present (CPL 310.30; see, also, Rogers v United States, 422 US 35). The statutory requirements insure that the rights of the defendant will be safeguarded at this crucial step in a criminal proceeding.

In this case we do not, of course, intimate that the Trial Judge in fact instructed the court clerk to convey the fatal message to the jury; our assumption is quite the contrary. On the record before us we must assume that the clerk gave his Qvvn personal instructions to the jury in response to some misguided notion of what the important influences on their decision should be. This does not, however, make the communication any less an error, since court officers are specifically prohibited from communicating with jurors or permitting others to do so except when so authorized by the court or when performing purely administrative duties such as, for example, to inquire if the jury has reached a verdict (CPL 310.10). Quite apart from this statutory prohibition, the Supreme Court has held that an ex parte statement or communication regarding the case made by a bailiff to the jurors during a recess, was reversible error (Parker v Gladden, 385 US 363).

Under ordinary circumstances a court, confronted with charges and allegations of an impropriety such as occurred in this case, should hold a hearing to inquire into the truth of the factual averments (CPL 330.40). In fact the District Attorney now belatedly asks that in the event we find the communication was error we should remand for a determination of whether it was actually given. This is, to say the least, an interesting counterpoise to the position taken by the prosecutor when the motion to set aside the verdict was argued, at which time he contended vehemently that a hearing was unnecessary.

In his motion papers defense counsel alleged a legal basis for granting the requested relief (CPL 330.40, subd 2, par [d], cl [i]) and submitted uncontroverted sworn affidavits of two jurors containing all facts essential to support the grounds for setting aside the verdicts (CPL 330.40, subd 2, par [d], cl [ii]). The People did not dispute any of these facts, and although they have not expressly conceded them, they have impliedly done so by failing even to allege their untruthfulness (see People v Gruden, 42 NY2d 214, 216, where, in a case involving motions to dismiss, we held that "[njormally what is not disputed is deemed to be conceded”). Under these circumstances we hold that it is proper for a court to grant the defendant’s motion without the necessity of holding a hearing (People v Gruden, supra; see, also, Mares v United States, 383 F2d 805, 809, cert den 394 US 963). In the latter case the Tenth Circuit Court of Appeals was confronted with speculation that jurors might have been exposed to a highly prejudicial newspaper article during the trial. Although the trial court held no hearing to explore the truth of the speculation, the Court of Appeals ordered a new trial, holding that during the 11 months since the trial the jurors have separated and their memories have probably dimmed, and therefore no good purpose would be served by a hearing. We note that in the instant case over 28 months have elapsed since the trial.

Because of our disposition of this case we need not pass upon all the other alleged trial errors assigned by the defendant as grounds for reversal. One, however, merits our attention because of the possibility that it might recur upon a retrial. We hold that it was error for the court to receive certain so-called "expert” testimony.

The victim of the robbery testified at trial that two men had forced their way into his truck and instructed him to drive off. One of them allegedly offered him $100 provided he would not reveal what actually happened and, instead, when queried, to place the blame for the hijacking on two Blacks. Later, the victim testified that a hijacker also offered to buy him breakfast or lunch while the other drove off in the truck. A detective was called and testified on behalf of the People that he had been with the Safe and Loft Squad of the New York City Police Department for 10 years and had investigated approximately 300 hijacking robberies. He then testified in response to a hypothetical question that it was not unusual for hijackers to offer to give the driver of the truck $100 for his co-operation in reporting to the police that two Blacks had done the robbery and that it is usual for hijackers to take their victim, while in "custody”, out to lunch.

This "opinion” evidence was the precise equivalent of affirming the credibility of the People’s witness through the vehicle of an opinion that many hijackings occur as the victim had related. It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not. The jurors were fully capable of using their ordinary experience to test the credibility of the victim-witness; and the receipt of the detective’s testimony in this regard was improper and indeed constituted usurpation of the function of the jury (People v Barber, 115 NY 475, 492; see, also, Fisch, Evidence, § 413). Where, as here, the sole reason for questioning the "expert” witness is to bolster the testimony of another witness (here the victim) by explaining that his version of the events is more believable than the defendant’s, the "expert’s” testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23; People v Higgins, 5 NY2d 607, 627-628; People v Gradon, 43 AD2d 842, 843).

Accordingly, the order of the Appellate Division should be reversed, the conviction vacated and set aside, and a new trial ordered.

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

Order reversed, etc.

      . The actual text of what the court clerk told the jury, as recited by two of the jurors in their affidavits is as follows: One affirmed that "the Judge said that a lot of time and money was invested in this cáse and he wants them to keep deliberating”; the other juror affirmed that "the Judge feels that a lot of time and money was involved in this case and we should keep deliberating”.

      . CPL 310.10 provides that: "Following the court’s charge, the jury must retire to deliberate upon its verdict in a place outside the courtroom. It must be providéd with suitable accommodations therefor and must be continuously kept together under the supervision of a court officer or court officers. In the event such court officer or court officers are not available, the jury shall be under the supervision of am appropriate public servant or public servants. Except when so authorized by the court or when performing administerial duties with respect to the jurors, such court officers or public servants, as the case may be, may not speak to or communicate with them or permit any other person to do so.” (Emphasis supplied.)


author: Jasen, J. Wachtler, J.

text:
    Edward Donohue, Appellant, v Copiague Union Free School District, Respondent.
    Argued May 2, 1979;
    decided June 14, 1979

      POINTS OF COUNSEL

      Bernard M. Rosen and Sidney R. Siben for appellant.
    I. Defendant was under a duty and obligation to adequately teach and educate its students. (Steitz v City of Beacon, 295 NY 51; Moch Co. v Rensselaer Water Co., 247 NY 160; Riss v City of New York, 22 NY2d 579.) II. Defendant breached this duty and obligation to plaintiff, a student in defendant’s school. III. This breach of duty and obligation is actionable. IV. Whether the pleaded facts are sufficient, within the framework of the complaint, is a fact question requiring a trial.

      Henry A. Weinstein and Charles D. Maurer for respondent.
    I. The assumed failure to educate appellant is not an actionable wrong. No legal duty exists to sustain liability. (Pulka v Edelman, 40 NY2d 781.) II. No special relationship existed which created a legal duty to use due care to protect appellant’s individual interests as opposed to the interests of the general public. (Steitz v City of Beacon, 295 NY 51; Moch Co. v Rensselaer Water Co., 247 NY 160; Lawrence v Fox, 20 NY 268; Hoffman v Board of Educ., 64 AD2d 369.) III. Neither a constitutional nor a statutory duty exists to sustain liability. (San Antonio School Dist. v Rodriguez, 411 US 1; Jones v

      Beame, 45 NY2d 402.) IV. It is a practical impossibility for plaintiff to demonstrate that a breach of an alleged duty was the proximate cause of his failure to learn. V. There is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability based on a claim of a student that he was inadequately educated by the public schools. (Board of Educ. v Areman, 41 NY2d 527; Matter of Vetere v Allen, 15 NY2d 259; Riss v City of New York, 22 NY2d 579.)
   OPINION OF THE COURT

Jasen, J.

This appeal poses the question whether a complaint seeking monetary damages for "educational malpractice” states a cause of action cognizable in the courts.

Appellant entered Copiague Senior High School in September, 1972 and graduated in June, 1976. The thrust of appellant’s claim is that notwithstanding his receipt of a certificate of graduation he lacks even the rudimentary ability to comprehend written English on a level sufficient to enable him to complete applications for employment. His complaint attributes this deficiency to the failure of respondent to perform its duties and obligations to educate appellant. To be more specific, appellant alleges in his complaint that respondent through its employees "gave to [appellant] passing grades and/or minimal or failing grades in various subjects; failed to evaluate [appellant’s] mental ability and capacity to comprehend the subjects being taught to him at said school; failed to take proper means and precautions that they reasonably should have taken under the circumstances; failed to interview, discuss, evaluate and/or psychologically test [appellant] in order to ascertain his ability to comprehend and understand such matter; failed to provide adequate school facilities, teachers, administrators, psychologists, and other personnel trained to take the necessary steps in testing and evaluation processes insofar as [appellant] is cdncerned in order to ascertain the learning capacity, intelligénce and intellectual absorption on the part of [appellant]”.

Based upon these acts of commission and omission, appellant frames two causes of action, the first of which sounds in "educational malpractice” and the second of which alleges the negligent breach of a constitutionally imposed duty to educate. To redress his injury, appellant seeks the sum of $5,000,000. Upon respondent’s motion, Special Term dismissed appellant’s complaint for failure to state a cause of action. (CPLR 3211, subd [a], par 7.) The Appellate Division affirmed, with one Justice dissenting. There should be an affirmance.

The second cause of action need not detain us long. The State Constitution (art XI, § 1) commands that "[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” Even a terse reading of this provision reveals that the Constitution places the obligation of maintaining and supporting a system of public schools upon the Legislature. To be sure, this general directive was never intended to impose a duty flowing directly from a local school district to individual pupils to ensure that each pupil receives a minimum level of education, the breach of which duty would entitle a pupil to compensatory damages. (See Steitz v City of Beacon, 295 NY 51, 57; Moch Co. v Rensselaer Water Co., 247 NY 160, 169.)

Appellant’s first cause of action bears closer scrutiny. It may very well be that even within the strictures of a traditional negligence or malpractice action, a complaint sounding in "educational malpractice” may be formally pleaded. Thus, the imagination need not be overly taxed to envision allegations of a legal duty of care flowing from educators, if viewed as professionals, to their students. If doctors, lawyers, architects, engineers and other professionals are charged with a duty owing to the public whom they serve, it could be said that nothing in the law precludes similar treatment of professional educators. Nor would creation of a standard with which to judge an educator’s performance of that duty necessarily pose an insurmountable obstacle. (See, generally, Elson, A Common Law Remedy for the Educational Harms Caused by Incompetent or Careless Teaching, 73 NW L Rev 641, 693-744.) As for proximate causation, while this element might indeed be difficult, if not impossible, to prove in view of the many collateral factors involved in the learning process, it perhaps assumes too much to conclude that it could never be established. This would leave only the element of injury and who can in good faith deny that a student who upon graduation from high school cannot comprehend simple English — a deficiency allegedly attributable to the negligence of his educators— has not in some fashion been "injured”.

The fact that a complaint alleging “educational malpractice” might on the pleadings state a cause of action within traditional notions of tort law does not, however, require that it be sustained. The heart of the matter is whether, assuming that such a cause of action may be stated, the courts should, as a matter of public policy, entertain such claims. We believe they should not.

Control and management of educational aifairs is vested in the Board of Regents and the Commissioner of Education (NY Const, art V, § 4; art XI, § 2; Education Law, §§ 207, 305; see Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 116; Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 23 NY2d 483, 485). We have only recently observed: "The general legislative and constitutional system for the maintenance of public schools secures review by the board of education and, on the State level, by the Commissioner of Education. The purpose of these provisions 'is to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same so far as practicable and possible from controversies in the courts.’ (Bullock v Cooley, 225 NY 566, 576-577; see, also, People ex rel. Board of Educ. v Finley, 211 NY 51, 57.)” (James v Board of Educ., 42 NY2d 357, 366.)

In James, we refused to entertain an action to enjoin the administration to pupils in the New York City school system of comprehensive reading and mathematical exams the validity of which had allegedly been compromised. Notwithstanding the existence of a statutory duty (Education Law, § 2590-j, subd 5, par [a]), on the part of the Chancellor of the City School District of the City of New York to administer comprehensive examinations annually, we held that the question whether these examinations had been compromised depriving them of their validity as a gauge of academic achievement rested in the professional judgment and discretion of the chancellor, the board of education and, ultimately that of the Commissioner of Education, rather than in the courts. (James v Board of Educ., 42 NY2d, at p 366, supra; see, also, Matter of Bokhair v Board of Educ., 43 NY2d 855, 856; Matter of Vetere v Allen, 15 NY2d 259, 267, cert den 382 US 825; Bullock v Cooley, 225 NY 566, 576-577, supra; cf. Jones v Beame, 45 NY2d 402, 407.)

This principle applies all the more to the case at hand. To entertain a cause of action for "educational malpractice” would require the courts not merely to make judgments as to the validity of broad educational policies — a course we have unalteringly eschewed in the past-Jbui^-more-importantly, to sit in review of the day-to-day implementation of these policies. Recognition in the courts of this cause of action would constitute blatant interference with the responsibility for the administration of the public school system lodged by Constitution and statute in school administrative agencies. (James v Board of Educ., 42 NY2d, at p 367, supra.) Of course, “[t]his is not to say that there may never be gross violations of defined public policy which the courts would be obliged to recognize and correct.” (Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d, at p 121, supra.)

Finally, not to be overlooked in today’s holding is the right of students presently enrolled in public schools, and their parents, to take advantage of the administrative processes provided by statute to enlist the aid of the Commissioner of Education in ensuring that such students receive a proper education. The Education Law (§ 310, subd 7) permits any person aggrieved by an "official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools” to seek review of such act or decision by the commissioner.

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

Wachtler, J.

(concurring). I agree that complaints of "educational malpractice” are for school administrative agencies, rather than the courts, to resolve.

There is, however, another even more fundamental objection to entertaining plaintiffs cause of action alleging educational malpractice. It is a basic principle that the law does not provide a remedy for every injury (Howard v Lecher, 42 NY2d 109, 113). As the majority notes, the decision of whether a new cause of action should be recognized at law is largely a question of policy. Critical to such a determination is whether the cause of action sought to be pleaded would be reasonably manageable within our legal system. The practical problems raised by a cause of action sounding in educational malpractice are so formidable that I would conclude that such a legal theory should not be cognizable in our courts. These problems, clearly articulated at the Appellate Division, include the practical impossibility of proving that the alleged malpractice of the teacher proximately caused the learning deficiency of the plaintiff student. Factors such as the student’s attitude, motivation, temperament, past experience and home environment may all play an essential and immeasurable role in learning. Indeed as the majority observes proximate cause might "be difficult, if not impossible, to prove”.

I would, therefore, affirm the order of the Appellate Division on the ground that educational malpractice, as here pleaded, is not a cognizable cause of action.

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

Order affirmed.


author:
Chief Judge Cooke.
      Jones, J.

text:
    Helen C. Greene, Respondent, v Theodore J. Greene, Individually and as a Partner of Finley, Kumble, Wagner, Heine & Underberg, et al., Defendants and Third-Party Plaintiffs-Appellants. Norman R. Grutman et al., Third-Party Defendants-Respondents.
    Argued May 3, 1979;
    decided June 14, 1979

      POINTS OF COUNSEL

      Alan M. Gelb and Philip S. Kaufman for Finley, Kumble, Wagner, Heine & Underberg, defendant and third-party plaintiff-appellant, and Charles M. McCaghey and Joseph M. Burke for Theodore J. Greene, defendant and third-party plaintiff-appellant.
    I. The appearance of the same attorneys on opposite sides of a case presents a conflict of interest and creates the unavoidable appearance of impropriety which require their disqualification. (Rotante v Lawrence Hosp., 46 AD2d 199; Matter of Kelly, 23 NY2d 368; Meinhard v Salmon, 249 NY 458; Cinema 5 v Cinerama, Inc., 528 F2d 1384; Penn Aluminum v Aetna Cas. & Sur. Co., 61 AD2d 1119; Lavin v Ehrlich, 80 Misc 2d 247; Cardinale v Golinello, 43 NY2d 288.) II. The principles at issue here are not based upon the lawyer-client privilege and its purported waiver is thus no guide to disposition of this appeal. (Edelman v Levy, 42 AD2d 758; Marco v Dulles, 169 F Supp 622; NCK Organization v Bregman, 542 F2d 128; Cord v Smith, 338 F2d 516.) III. Since third-party defendants must be witnesses in this action, their law firm must be disqualified. (Tru-Brite Labs. v Ashman, 54 AD2d 345.) IV. There is no warrant for the creation of a double standard of ethical behavior for Judges and lawyers.

      Samuel N. Greenspoon and Richard E. Hahn for respondent.
    I. The refusal of the courts below to disqualify plaintiffs attorneys was in the proper exercise of discretion and should not be disturbed by this court. (Cardinale v Golinello, 43 NY2d 288; Silver Chrysler Plymouth v Chrysler Motors Corp., 518 F2d 751.) II. There is no conflict of interest nor is there any impropriety. (Helmsley v Cohen, 56 AD2d 519; Mandell v Moses, 209 App Div 531, 239 NY 555; People v Gomberg, 38 NY2d 307; Greenebaum-Mountain Mtge. Co. v Pioneer Nat. Tit. Ins. Co., 421 F Supp 1348; United States v Onassis, 133 F Supp 327; Reno v Bull, 226 NY 546.) III. There is no attorney-client relationship between the Grutmans and Finley, Kumble or Theodore J. Greene and defendants have no standing to assert plaintiffs rights. (American Can Co. v Citrus Feed Co., 436 F2d 1125; Celanese Corp. v Leesona Corp., 530 F2d 83.) IV. There is no "appearance of impropriety” which would justify the disqualification of plaintiffs attorneys. (International Electronics Corp. v Flanzer, 527 F2d 1288.) V. Defendants can not cause plaintiffs attorneys to withdraw by raising the spectre that the Grutmans will be called as witnesses. (Wolk v Wolk, 70 Misc 2d 620; Greenebaum-Mountain Mtge. Co. v Pioneer Nat. Tit. Ins. Co., 421 F Supp 1348.) VI. The cases relied on by defendants and cited in the dissenting opinion below are inapposite. (Cardinale v Golinello, 43 NY2d 288; Rotante v Lawrence Hosp., 46 AD2d 199; Consolidated Theatres v Warner Bros. Circuit Mgt. Corp., 216 F2d 920; Cinema 5 v Cinerama, Inc., 528 F2d 1384.) VII. The fact that three Justices of the Appellate Division disqualified themselves is legally irrelevant.
   OPINION OF THE COURT

Chief Judge Cooke.

The issue presented for review is whether plaintiffs counsel, the law firm of Eaton, Van Winkle, Greenspoon & Grutman, should be disqualified because two of the members of the firm were formerly partners in defendant law firm, Finley, Kumble, Wagner, Heine & Underberg. For divers reasons the Eaton firm should be disqualified.

In the action underlying this controversy, plaintiff, Helen Greene, alleges that the firm of Finley, Kumble and one of its partners, Theodore Greene, committed a breach of fiduciary duties, fraud, and a host of other wrongs in connection with the creation and management of an inter vivos trust established in 1969. Plaintiff was the settlor, sole beneficiary, and cotrustee of the trust. The two third-party defendants, Grutman and Bjork, are former members of the Finley, Kumble law firm. Grutman was affiliated with defendant firm from 1970 to 1976, during which time he acted as a managing partner of the firm and directed its litigation department. Bjork, Grutman’s wife, joined Finley, Kumble as an associate in 1974, and became a member of the firm in 1975. She departed with her husband in 1976. Apparently, both joined the Eaton firm soon after leaving Finley, Kumble.

In August, 1977 plaintiff retained the Eaton firm to represent her and this action was instituted some four months later. According to plaintiff, she was fully advised that Grutman and Bjork, as former members of defendant firm, might be jointly and severally liable for any wrongdoing. She was further informed that since Grutman and Bjork had become members of Eaton, there might be "at least the appearance of a conflict of interest between [their] position as members of the firm representing [her] and their possible liability”. Nonetheless, plaintiff expressed her desire that the Eaton firm represent her.

Defendants moved at Special Term for the disqualification of plaintiff’s counsel on conflict of interest grounds. Special Term denied the motion, and the Appellate Division affirmed, with two Justices dissenting. That court subsequently granted leave to appeal, certifying the following question for our review: "Was the order of Supreme Court, as affirmed by this Court, properly made?” We now modify the order of the Appellate Division and grant defendants’ motion insofar as it sought to disqualify Eaton, Van Winkle, Greenspoon and Grutman from acting as plaintiff’s counsel.

It is a long-standing precept of the legal profession that an attorney is duty bound to pursue his client’s interests diligently and vigorously within the limits of the law (Code of Professional Responsibility, canon 7). For this reason, a lawyer may not undertake representation where his independent professional judgment is likely to be impaired by extraneous considerations. Thus, attorneys historically have been strictly forbidden from placing themselves in a position where they must advance, or even appear to advance, conflicting interests (see, e.g., Cardinale v Golinello, 43 NY2d 288, 296; Eisemann v Hazard, 218 NY 155, 159; Code of Professional Responsibility, DR 5-105). This prohibition was designed to safeguard against not only violation of the duty of loyalty owed the client, but also against abuse of the adversary system and resulting harm to the public at large.

Perhaps the clearest instance of impermissible conflict occurs when a lawyer represents two adverse parties in a legal proceeding. In such a case, the lawyer owes a duty to each client to advocate the client’s interests zealously. Yet, to properly represent either one of the parties, he must forsake his obligation to the other. Because dual representation is fraught with the potential for irreconcilable conflict, it will rarely be sanctioned even after full disclosure has been made and the consent of the clients obtained (Matter of Kelly, 23 NY2d 368, 376, 378; Eisemann v Hazard, 218 NY 155, 159, supra; Matter of Gilchrist, 208 App Div 497; see, also, Matter of Cohn, 46 NJ 202). Particularly is this so when the public interest is implicated (see, e.g., Matter of A & B, 44 NJ 331), or where the conflict extends to the very subject matter of the litigation (Matter of Kelly, supra, at p 378; see Matter of Gilchrist, supra, at pp 497-498).

By the same token, where it is the lawyer who possesses a personal, business or financial interest at odds with that of his client, these prohibitions apply with equal force (Code of Professional Responsibility, DR 5-101, subd [A]). Viewed from the standpoint of a client, as well as that of society, it would be egregious to permit an attorney to act on behalf of the client in an action where the attorney has a direct interest in the subject matter of the suit. As in the dual representation situation, the conflict is too substantial, and the possibility of adverse impact upon the client and the adversary system too great, to allow the representation. In short, a lawyer who possesses a financial interest in a lawsuit akin to that of a defendant may not, as a general rule, represent the plaintiff in the same action.

Aptly illustrating these problems are the circumstances of the present case. Plaintiff’s counsel, the Eaton firm, has strong interests on both sides of the litigation. It has undertaken to represent plaintiff, owing her the highest duty of loyalty and professional skill in carrying on the legal action. At the same time, Grutman and Bjork, members of the firm, are manifestly liable, jointly and severally, for all tortious conduct which might have occurred during their tenure with defendant, Finley, Kumble (Partnership Law, §§ 24-26). That a possibility of their being cast in damages exists is demonstrated by their status as third-party defendants in this lawsuit. Hence, the firm representing plaintiff has a direct and substantial stake in the outcome of the litigation. Whether this conflict may be effectively waived by the client need not now be addressed, as there are additional considerations which dictate disqualification.

An attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer’s former client (e.g., Hatch v Fogerty, 40 How Pr 492, 503). Underlying this rule is the notion that an attorney, as part of his fiduciary obligation, owes a continuing duty to a former client — broader in scope than the attorney-client evidentiary privilege — not to reveal confidences learned in the course of the professional relationship (see Watson v Watson, 171 Misc 175, 176). To obtain disqualification of the attorney, the former client need not show that confidential information necessarily will be disclosed in the course of the litigation; rather, a reasonable probability of disclosure should suffice (see Sheffield v State Bar of California, 22 Cal 2d 627; Galbraith v State Bar of California, 218 Cal 329).

As former partners in defendant law firm, Grutman and Bjork owe a fiduciary obligation similar to that owed by an attorney to his client (see, e.g., Meinhard v Salmon, 249 NY 458, 463-464). This is especially so with respect to Grutman, a former managing partner of the firm (id., at p 468). Defendant relates, in its affidavits, that Grutman and Bjork gained confidential information in their capacity as members of the firm. Indeed, it is alleged that one or both of them were privy to partnership discussions concerning the firm’s potential liability for its management of plaintiff’s trust. In view of these allegations, we cannot discount the possibility that information obtained by Grutman and Bjork in their role as fiduciaries will be used in the pending lawsuit.

Although it is usually recognized that a party to litigation may select an attorney of his or her choosing, this general right is not limitless. The attorney may not accept employment in violation of a fiduciary relationship and may not allow his own interests to conflict with those of his client. To hold otherwise would be to ignore the overriding public interest in the integrity of our adversary system.

For these reasons, the Eaton firm should be disqualified from representing plaintiff in this matter. Accordingly, the order of the Appellate Division should be modified in accordance with this opinion, with costs to appellants, and, as so modified, affirmed. The certified question is answered in the negative.

Jones, J.

(concurring). I agree that the Eaton, Van Winkle firm must be disqualified, but I reach this conclusion on a slightly different analysis than does the majority and without reliance on obligations which attach when there is an attorney-client relationship. Indeed, in my view, the core issue here is whether in view of the legitimate interests of third parties — the defendants in this action — the present attorney-client relationship between the Eaton, Van Winkle firm and Mrs. Greene may properly be allowed to continue. This case presents for resolution "the potentially difficult problem of balancing the interests of a client [here Mrs. Greene] desirous of retaining an attorney of [her] personal choice and preference against the interests of the opposing litigant to be free from the risks of opposition by a lawyer once privy to that litigant’s confidences”. (Cardinale v Golinello, 43 NY2d 288, 294.)

The focus, as it seems to me, must be on the right of defendants in the lawsuit brought against them by Mrs. Greene not to have her represented by a law firm which includes, or until very recently did include, two lawyers who were members of the defendant law firm and allegedly privy to its affairs at the time of the transactions which form the basis of Mrs. Greene’s claims. It appears that Grutman and Bjork, husband and wife, were partners in the Finley, Kumble firm (defendants herein), and, if not actual participants in rendering the professional services of which Mrs. Greene complains, at least had access to the inner workings of that firm when those services were being rendered to her. To permit another law firm with which Grutman and Bjork subsequently became affiliated to represent Mrs. Greene in her lawsuit against their former firm would be inappropriate, at least when there is tendered no special reason why Mrs. Greene selected the Eaton, Van Winkle firm over others to represent her. The information and any documents and records which Bjork and Grutman might have acquired while in the inner councils of defendants’ affairs should not be made available to Mrs. Greene other than by discovery or on trial in the action. From the perspective of defendants they are entitled to be protected from having their adversary represented by an attorney who was directly or indirectly an inside participant on their side of the transactions on which the lawsuit is based. And in this instance any primary disqualification of Grutman and Bjork on this ground must be extended vicariously to any law firm of which either of them is a member.

From the opposing point of view of Mrs. Greene, the client, it may surely be said that, absent any countervailing considerations, she should be entitled to an attorney or law firm of her preferential choice. In this instance, however, the substantive rights of defendants do countervail and must be held sufficient to require Mrs. Greene to seek legal representation elsewhere. Conceivably the result might be different with recourse had to other means adequately to protect the legitimate rights of defendants not to have one of their former members sit in the councils of the enemy if there were special reasons, such as prior association, personal confidence or relationship, or singular experience and competence, supporting the client’s initial desire to be represented by the particular law firm or lawyer. In this case, however, it does not appear that the Eaton, Van Winkle firm or any of its members had ever previously represented Mrs. Greene, nor does she now advance any reason why she could not be as adequately, competently and satisfactorily represented by some other firm. Indeed, no explanation is offered as to why she chose the Greene firm in the first place.

Nor does it seem to me that the predicament is significantly altered by reason of the fact that Grutman and Bjork have recently severed all affiliation with the Eaton, Van Winkle firm. There has been opportunity for, even if not the fact of, disclosure by Grutman and Bjork (while members of the Eaton, Van Winkle firm and allegedly participating in the preparation of Mrs. Greene’s complaint in the present action) of information or writings either of them may have obtained while they were part of the Finley, Kumble firm. The necessity for disqualification of the Eaton, Van Winkle firm continues, only slightly diminished, even after Grutman and Bjork have left. (Cf. Cardinale v Golinello, 43 NY2d 288, 296, supra.)

Because the presence of Grutman and Bjork has operated to disqualify the Eaton, Van Winkle firm, however, does not mean that plaintiffs lawsuit must be dismissed, as defendants urge. Mrs. Greene is not to be penalized because she retained the Eaton, Van Winkle firm with knowledge of the Grutman and Bjork involvement but apparently without comprehension that the firm might be disqualified to serve her should objection thereto be raised by defendants. She is now free to engage other counsel to represent her in the prosecution of her lawsuit against the Finley, Kumble firm and its members. I would be confident that in turning over Mrs. Greene’s files to a successor law firm or attorney, the Eaton, Van Winkle firm will remove any writings or documentary evidence which might have found their way into those files from Grutman or Bjork.

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

Order modified, etc.

      . In the motion, defendants sought other relief, including dismissal of the complaint, but the motion was denied in its entirety.

      . Even if the third-party claim is not pursued, the defendants may later obtain contribution in a separate action (CPLR 1403).

      . Of course, we apply here the familiar principle that a conflict of interest involving even one lawyer in a firm taints the entire firm (e.g., Cardinale v Golinello, 43 NY2d 288, 296, supra),

      . Any prejudice to which Mrs. Greene, the client, might be exposed is not pertinent to the present application, and indeed appears in any event to have been effectively waived by her.

      . It appears from the record that Mrs. Greene selected the Eaton, Van Winkle firm from among six firms recommended to her by two New York City banks.

      . A motion by plaintiff to dismiss the appeal on the ground of mootness because of such severance was denied on April 5, 1979. (46 NY2d 1072.)


author: Per Curiam.

text:
    In the Matter of Edward M. Petix, Appellant, v William G. Connelie, as Superintendent of the Division of the New York State Police, et al., Respondents. In the Matter of James N. Wilkinson, Appellant, v William G. Connelie, as Superintendent of the Division of the New York State Police, et al., Respondents. In the Matter of Richard H. Hampson, Appellant, v William G. Connelie, as Superintendent of the Division of the New York State Police, et al., Respondents.
    Argued June 5, 1979;
    decided June 28, 1979

      POINTS OF COUNSEL

      Peter L. Rupert and Bernard J. Malone, Jr. for appellants.
    I. Respondent’s own disciplinary rules require that petitioner-appellants receive a hearing consistent with due process. (People ex rel. Davie v Lynch, 164 App Div 517; Matter of De Cecca v Thacher, 25 Misc 2d 425.) II. The nature of the charges against petitioner-appellants impair their "liberty” within the meaning of the due process clause of the State and Federal Constitutions and required that they be afforded a due process hearing. (Board of Regents v Roth, 408 US 564; Matter of Perry v Blair, 49 AD2d 309; Matter of Reeves v Golar, 45 AD2d 163; Matter of Civil Serv. Employees Assn. v Wallach,
      48 AD2d 923; Bishop v Wood, 426 US 341.) III. This court is not bound by the holding of Bishop v Wood and may interpret the due process clause of the State Constitution as requiring a hearing on the facts of this case. (People v Isaacson, 44 NY2d 511.)

      Robert Abrams, Attorney-General (Michael F. Colligan, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for respondents.
    Petitioners did not acquire a property right in their assignment to the BCI and no rights were violated in ending such assignment. A due process hearing was not required. (Board of Regents v Roth, 408 US 564; Bishop v Wood, 426 US 341; Matter of Lawson v Cornelius, 38 Misc 2d 431; Matter of Masi v Kirwan, 60 Misc 2d 103; Matter of Bal v Murphy, 55 AD2d 26; Codd v Velger, 429 US 624; Antinore v State of New York, 49 AD2d 6, 40 NY2d 921.)
   OPINION OF THE COURT

Per Curiam.

At issue is whether petitioners were entitled to a due process hearing either concerning their reassignment from work in the Bureau of Criminal Investigation to work as a uniformed State trooper, or in order to clear their names of any stigma arising from the incidents upon which the reassignment was predicated.

Since the regulations pursuant to which petitioners were assigned to the bureau state that one so appointed is "eligible for reassignment to the Uniform Force” (New York State Police Manual, art 11.11) and that "assignment to a noncompetitive position shall be during the pleasure of the Superintendent” (art 11.13), it is clear that petitioners had no "property right” which entitled them to a due process hearing before reassignment (Bishop v Wood, 426 US 341, 347; Board of Regents v Roth, 408 US 564, 578).

While the question whether petitioners were entitled to a hearing to clear their names of any stigma, in vindication of their "liberty interest”, is a closer question, we conclude, as did the Appellate Division, that they were . not. Petitioners base their claim of right to a hearing on statements made by State Police officials reported in two newspaper articles, the first of which appeared just before their reassignment and the second just after. The first acknowledged that an investigation was under way of reports that some troopers had been buying clothes from shoplifters and selling them for a profit, and that the division would have to determine if there were grounds for criminal charges or whether the matter should be handled internally. The second, which is headlined "3 trooper detectives demoted”, stated that three detectives in the Rochester area had been demoted for "using poor judgment in handling stolen merchandise” and quoted the first deputy superintendent as saying "We found nothing that could substantiate any criminal charges. You might say it was a case of poor judgment — maybe stupid, but not criminal”, and made clear that reports that the individuals were dealing in stolen property were "erroneous”. Neither article identified petitioners by name.

Since petitioners were detectives assigned to the Rochester area and would in the customary use of language (cf. Weston v Commercial Advertiser Assn., 184 NY 479, 482) be understood to have been "demoted” from detective to uniformed service (rather than as is more technically correct, to have been "reassigned”), and since the State Police officials quoted in the newspaper articles may be presumed to have spoken for publication, the quoted language sufficiently concerned petitioners and was sufficiently published to warrant a hearing, where, as here, each petitioner expressly denies involvement in stolen merchandise sales (Codd v Velger, 429 US 624; Bishop v Wood, 426 US 341, supra; Board of Regents v Roth, 408 US 564, supra) provided only that the language used could properly be deemed "stigmatizing” in nature.

To be borne in mind, however, is that a "stigma” hearing is required "solely 'to provide the person an opportunity to clear his name’ ” (Codd v Velger, supra, at p 627; Board of Regents v Roth, supra, at p 573, n 12). When, as here, the statement as disseminated includes language which clears the employee of conduct that could be regarded as stigmatizing, there is no constitutional necessity for a hearing (Codd v Velger, supra, at pp 628-629). Since the deputy superintendent’s statement made clear that there was no criminal conduct and since petitioners’ retention in the uniformed force emphasizes that fact, there is left nothing more than that they were demoted for "using bad judgment in an association”. While petitioners may take umbrage at the "bad judgment” characterization, it is not a stigma of constitutional proportions.

There need only be added that while an entry in a personnel record may in some circumstances so stigmatize an individual as to require a hearing even though not immediately disseminated (cf. Codd v Velger, supra; Stukuls v State of New York, 42 NY2d 272, 282), there is no showing that the reason for reassigning petitioners appeared in their respective files until they requested reasons pursuant to applicable grievance procedures, or of whether all, or if not what portion, of the grievance material would be available to a future employer (see Public Officers Law, ■ § 89, subd 2, par [b], cl i), nor can it be said, for the reasons indicated above, that the file material considered as a whole constitutes a stigma of constitutional proportions.

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Orders affirmed.