Argued April 28, 1976
Decided June 10, 1976
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN M. MURTAGH, J.
Maurice H. Nadjari, Deputy Attorney-General, Special State Prosecutor (Bennett L. Gershman and Allen G. Swan of counsel), for appellant.
Charles S. Desmond and Robert J. McGuire for Thomas J. Mackell and James D. Robertson, respondents.
Allan Sturim for Frank R. Di Paola, respondent.
The defendants were convicted, at an Extraordinary Special and Trial Term of the Supreme Court, of conspiracy in the fourth degree, hindering prosecution in the third degree and official misconduct. On appeal, the Appellate Division, finding that the evidence was legally insufficient, unanimously reversed, expressly stating it did so on the law and the facts, and dismissed the indictment ( 47 A.D.2d 209).
We have previously delineated the issue now before us in the course of deciding a motion made by the defendants to dismiss this appeal on the ground that our court lacks jurisdiction to entertain it. In refusing to dismiss, we said that "[a]lthough the reversals * * * are not appealable * * * the issue of the legality of the corrective action is nonetheless itself an appealable issue (CPL 450.90, subd 2, par [b]), and accordingly appeal lies on that narrow issue alone" (emphasis in the text) ( 36 N.Y.2d 964, 965).
The People now take the position that, in order for us to pass on the legality of the corrective action, we must first review the underlying merits to determine whether the evidence was legally insufficient. The defendants, on the other hand, argue that, even if one were to assume that the evidence was indeed legally insufficient, we are required, because of the Appellate Division's recital that its reversal was on the facts and the law, to determine only the legality of the corrective action.
For the reasons which follow, we hold that we cannot go behind the Appellate Division's order and that, therefore, the dismissal of the indictment was proper.
Our analysis turns particularly on the language of CPL 450.90 (subd 2) which provides:
"An appeal to the court of appeals from an order of an intermediate appellate court reversing or modifying a judgment, sentence or order of a criminal court may be taken only if:
"(a) The intermediate appellate court's order expressly states the determination of reversal or modification to be on the law alone; or
"(b) The appeal is based upon a contention that corrective action, as that term is defined in section 470.10, taken or directed by the intermediate appellate court was illegal." (Emphasis added.)
Manifestly, the order of the Appellate Division does not "expressly state" that the reversal here is "on the law alone" as specified by paragraph (a) of subdivision 2's unambiguous language (cf. People v Pendleton, 35 N.Y.2d 690; People v Williams, 31 N.Y.2d 151, 153; People v Sullivan, 29 N.Y.2d 937, 938).
In these circumstances, as we concluded at the time we denied the motion to dismiss, we must look to paragraph (b) of subdivision 2 as the sole source of our appellate power in the present case. That provision reasonably can be held to establish only one frame of reference for review of the "legality" of the corrective action, i.e., what the intermediate appellate court actually did, not what it might have or should have done. That is the only avenue provided for measuring the permissibleness of the corrective action. And, since the determination of the Appellate Division here is beyond our review under paragraph (a) of subdivision 2, we are confined to testing the legality of its corrective action under paragraph (b) of subdivision 2 by that determination, however we might otherwise assess the determination were we free to review it. (People v Crimmins, 36 N.Y.2d 230, 236.) Were we to hold otherwise, we would be flying in the face of the clear language of the statute by doing indirectly what we cannot do directly. For review of the determination would have to rest on a merger of the concepts of reversal and corrective action and thus would vitiate the undisputed rule that this court can assert jurisdiction on the merits only where the reversal below was based on a question of law alone (CPL 450.90, subd 2, par [a]).
It is also instructive to note how the present statutory pattern contrasts with that which prevailed prior to the adoption of the Criminal Procedure Law, which became effective September 1, 1971. Under its predecessor, the Code of Criminal Procedure, when an intermediate appellate court's reversal was on the facts, a new trial resulted; under those circumstances, it had no power to dismiss the accusatory instrument (People v Klose, 18 N.Y.2d 141, 144; People v Nappi, 18 N.Y.2d 136, 140; People v Bellows, 281 N.Y. 67, 75, 76; People v Peck, 205 N.Y. 554; Cohen and Karger, Powers of the New York Court of Appeals, § 202, p 758). A dismissal by it of an indictment or information had to be based on the law alone, a predicate for review by this court (People v Klose, supra; People v Bellows, supra). And, the only consequence of a recital by the intermediate appellate court that a reversal was based not on the law alone but on the facts as well then was to require, upon reversal by this court, that a new trial be granted; it did not proscribe our review of the law question (People v McCaleb, 25 N.Y.2d 394, 404).
It was against that background that the Legislature, presumably motivated by concern over whether there was fairness in affording the People more than one opportunity to prove their case (Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 470.20, pp 608-609), in enacting the Criminal Procedure Law introduced the present requirement for dismissal of an accusatory instrument where a reversal is stated to be predicated on factual considerations (CPL 470.20, subds 2, 3, 4, 5). As already indicated, that unequivocal requirement, combined with the plain wording of CPL 450.90 (subd 2, par [a]), operates, as in the present case, to preclude this court, simply because of the wording of the order, from reaching the merits of what may be in fact purely legal questions (e.g., People v Pendleton, 35 N.Y.2d 690, supra).
Such a policy would be consonant with the one expressed by the United States Supreme Court in the following language: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty" (Green v United States, 355 U.S. 184, 187).
Even before the statutory change was adopted, the intended result of its language was clearly perceived and expressed by its critics. (See Association of Bar of City of NY, Committee on Criminal Courts, Law and Procedure, Special Report on Proposed Criminal Procedure Law [1969 Bill], p 54 et seq.)
Needless to say, a procedural law, adopted after careful legislative consideration of competing public policy considerations, is not to be disregarded at will simply because its impact on a particular case precludes additional appellate review after both parties have already enjoyed the advantages of a full and lengthy trial and of an equally exhaustive appeal. Absent a constitutional question, even the State's highest court may not refuse, as the dissent would have us do, to apply the plain import of an applicable statute, which, until and unless amended or repealed, must be respected as the law for all our people, no matter where positioned.
Accordingly, since the corrective action taken by the Appellate Division is precisely that mandated for its stated determination by CPL 470.20 (subd 2), which directs that when the evidence fails to establish a prima facie case an accusatory instrument "must" be dismissed, the order so directing was legal and must be affirmed.
A reading of the opinion by the Appellate Division, let alone of the record in the case, demonstrates that the basis for that court's view in overturning the judgments of conviction was the Trial Justice's grave errors, gross prosecutorial misconduct, and legal insufficiency of evidence. The opinion says as much. It could have hardly said anything on the weight of the evidence in view of the quantity and quality of the evidence received on the trial. If that were all to the matter there would be no question that these issues, constituting exclusively issues of law, are reviewable by this court. The Appellate Division, however, in its order reversed the convictions "on the law and the facts" and dismissed the indictment.
By including "the facts" in its order, the Appellate Division barred this court from review of the issue of legal insufficiency, concerning which one or more might come to a contrary conclusion. But by reason of the recital in the order of the Appellate Division, inconsistent with the language used by it in its extensive opinion, all but one of us considers the court barred from review of the real and substantial legal issues in the case.
Obviously, this produces an unfortunate and undesirable condition. Oddly enough, before the enactment of CPL, in the manner discussed by the majority opinion, there would have been no such bar to this court's review of the issue of the legal sufficiency of the evidence effected by two little words "the facts" (see People v McCaleb, 25 N.Y.2d 394, 396, 404).
In the time-honored tradition for courts or their members to suggest legislative change when the cases before them seem to so require, it would appear to be eminently desirable to retrace the legislative step and restore to this court the power to review questions of law following a conviction for a crime, despite a recital that the reversal is also on the facts. Of course, such a revision would not and could not constitutionally confer upon this court the power to evaluate, under the guise of determining whether the intermediate appellate court has "really" made factual determinations, the weight of the evidence, a question of fact (NY Const, art VI, § 3). Instead, under such a revision the court would review only questions of law. The result of course could never be more than to direct a new trial as had been the rule under the former Code of Criminal Procedure. On this there is no disagreement. As the statute now reads, however, a mistaken order by a court, or an intended frustration of appellate review (a situation definitely not present in this case as a reading of the Appellate Division opinion demonstrates) is effective to bar salutary review despite the presence of real issues of law.
Related to the problem discussed, it is the plan of CPL to mandate dismissal of an indictment where the intermediate appellate court concludes that there has been a verdict against the weight of the credible evidence (CPL 470.20, subd 5). In such a case, under the former Code of Criminal Procedure only a new trial could be directed (see, e.g., People v Klose, 18 N.Y.2d 141, 144; People v Nappi, 18 N.Y.2d 136, 140; Cohen and Karger, Powers of the New York Court of Appeals, § 202, p 758). With the change in CPL the only corrective action available to the Appellate Division would be to dismiss the indictment (CPL 470.20, subd 2). Hence, however the evidence is viewed, on the narrow issue now presented to the court there must be a dismissal.
Accordingly, by constraint of statute, I agree with and concur in the majority opinion that while the judgments at bar are appealable, the issues the prosecution would have the court reach are not reviewable.
I am unable to agree with the disposition of this case.
The defendants, Thomas J. Mackell, the former District Attorney of Queens County, James D. Robertson, former Chief Assistant District Attorney and Mackell's son-in-law, and Frank R. Di Paola, an investigator in the District Attorney's office and a close associate of Mackell, were each convicted, after a jury trial, of two counts of conspiracy in the fourth degree, two counts of hindering prosecution in the third degree, and two counts of official misconduct. The Appellate Division reversed the convictions and dismissed the indictment principally upon the ground that the requisite elements of each of these three offenses had not been established by the prosecution as a matter of law. ( 47 A.D.2d 209.) In my opinion, this determination was wrong, egregiously wrong, and in a world more concerned with substance and reality than form and technicality, would be set aside. Yet today our court, the highest tribunal in the State, refuses to examine the merits of the case because the Appellate Division, ruling upon a law question with the knowledge that this court may review law questions and law questions only, included three little words in its order, "on the facts". The majority today holds that the use of these three technical words divests the court of jurisdiction to review the merits, even though the Appellate Division's reversal was undoubtedly solely on the law. I cannot accept the proposition that the jurisdiction of the Court of Appeals can be so easily frustrated, either through inadvertence or by deliberate design. In my view, the decision of the Appellate Division cannot withstand the careful scrutiny dictated by a fair sense of public justice, particularly since these three defendants have held positions of public trust in the criminal justice system, positions which require a special rectitude and a fierce devotion and dedication to both the law and to fundamental justice, and the acts they have indisputably committed were in patent violation of their official responsibilities. The decision of this court is no less regrettable as it sanctions, upon the basis of a technicality totally unsupported by the record, what can only be termed a miscarriage of justice, in the truest sense of the term. At a time when public confidence in the courts and in lawyers is at an exceedingly low ebb, this court refuses to review a fundamental wrong because there are three special lawyer's words, words which have meaning only to members of the bar, in the technical language of the Appellate Division's order of disposition. Of equal significance and perhaps of greater long-range import, the majority's decision threatens the efficacy and vitality of the appellate process itself since the court will now honor recitals in Appellate Division orders designed to insulate law decisions from further review. For the reasons which follow, I believe that this court may properly take jurisdiction of the entirety of this case and I decline to concur in a decision which incorrectly refuses to review an erroneous determination of law, thereby frustrating the very purpose for which the people of this State created the Court of Appeals.
The State Constitution limits the jurisdiction of the Court of Appeals in criminal cases, other than where the judgment is of death, to the review of questions of law. (NY Const, art VI, § 3, subd a.) The general preclusion of review of the underlying factual basis for convictions is the sole limitation that is imposed by the Constitution. In every other respect, the Legislature may regulate the manner in which appeals in criminal cases are taken to this court. (NY Const, art VI, § 3, subd b.) Until 1971, the criminal jurisdiction of the Court of Appeals was governed by the Code of Criminal Procedure, first enacted in 1881. Under the code any aggrieved party could appeal from an order of an intermediate appellate court which affirmed or reversed a judgment of conviction or which affirmed or reversed a judgment for the defendant on a demurrer to an indictment, provided that a certificate granting permission to appeal was obtained. (Code Crim Pro, § 519, subds 1, 2.) It was recognized, in light of the Appellate Division's plenary power to review the facts and to make determinations based upon the weight of the evidence or in the interest of justice, that not all such appeals would involve purely questions of law. In order to guard against the possibility that the Court of Appeals might review an order reversing a conviction and ordering a new trial because the verdict was against the weight of the evidence or otherwise "on the facts", our court developed a rule requiring the Appellate Division order to recite that the facts had been reviewed but that the reversal was solely predicated upon a question of law. In the absence of this recital, the appeal would be dismissed because of the remaining possibility that the determination was based upon the facts. (People v Redmond, 225 N.Y. 206, 209; People v Bergman, 252 N.Y. 346; People v O'Brien, 164 N.Y. 57, 58.) If the order recited that the reversal was based both upon the facts and upon the law, the appeal had to be dismissed. (People v Tomlin, 2 N.Y.2d 758, 759.) Even if there were indications in the opinion of the appellate court that the reversal was on the law and the opinion was embodied in the order, we held that the recital in the order itself was controlling and, thus, not appealable. (People v Moskowitz, 289 N.Y. 69; People v Rossi, 11 N.Y.2d 787, 788; see, also, Spies v Lockwood, 165 N.Y. 481, 483; but see People v Rainey, 27 N.Y.2d 748 . ) The rule requiring obedience to the recital has been described as a "self-imposed limitation" and is of judicial, not legislative, origin. (Cohen and Karger, Powers of the New York Court of Appeals, § 201, p 754.)
Occasionally, the same rule was applied to orders of appellate courts which reversed and dismissed indictments and informations. (People v Kuland, 266 N.Y. 1, 3; People v Mitchell, 142 N.Y. 639.) However, the sounder and more well-established principle was that an order reversing and dismissing an indictment though recited to be upon the facts as well as on the law, presented a case within this court's jurisdiction — i.e., whether the indictment was sufficient as a matter of law. (People v Peck, 205 N.Y. 554; People v Bellows, 281 N.Y. 67, 74-75; People v Scheinman, 295 N.Y. 142; Cohen and Karger, Powers of the New York Court of Appeals, § 202, pp 757-758.)
A fundamental corollary to the recital rule permitting the Court of Appeals to search the record behind the recital in cases where the order mistakenly recited that the reversal was on the facts developed as a necessary protective device. Benjamin Cardozo, then a lawyer practicing in New York City, reported, in his work on the Court of Appeals, that: "Cases have, however, arisen where the Appellate Division of the Supreme Court has certified in its order that it had reversed a judgment on the facts, though there were no controverted facts in the cause, nor conflicting inferences to be drawn from conceded facts, nor uncontroverted facts not found in the decision, and hence a reversal on the facts was impossible. In such cases, the Court of Appeals has refused to permit its jurisdiction to be defeated, but has examined the record for the purpose of ascertaining whether any question of fact existed on which a reversal could have been founded. If it finds no such question, it treats the reversal, notwithstanding the recital, as upon the law, and entertains the appeal. If, however, the record discloses any question of fact on which a reversal could have been founded, the court gives effect to the recital, and without considering whether a reversal was in its judgment proper or improper, dismisses the appeal." (Cardozo, Jurisdiction of the Court of Appeals [2d ed], § 9, pp 15-16.) During his later service on this court, Judge CARDOZO wrote that the Court of Appeals may review an order of the Appellate Division reversing a lower court judgment on the facts if "there was no question of fact on which the reversal could be based". (Ga Nun v Palmer, 216 N.Y. 603, 611.) The court may properly "look into the case for the purpose of determining whether there are controverted facts or inferences to be drawn from conceded facts upon which a reversal upon the facts could be based." (Hirschfeld v Fitzgerald, 157 N.Y. 166, 176; see People v Caverio, 1 N.Y.2d 657, 659; Otten v Manhattan Ry. Co., 150 N.Y. 395, 401.) Thus, the rule was that if the Appellate Division recited that it had reversed on the facts in a case in which it might plausibly have done so, this court was bound by the recital. If, however, the Appellate Division did not actually base its determination upon a review of the facts, this court, in the interest of protecting the integrity of its jurisdiction, would look beyond the bare recital.
In 1935, the Legislature, for the first time, codified the recital rule by adding section 543-a to the Code of Criminal Procedure. An intermediate appellate court was required in an order reversing or modifying a judgment of the trial court to state whether its determination was based upon the law, or upon the facts, or upon both the law and the facts (subd 1). If the determination was based upon the law alone, the order had to specify whether the findings of fact below had been reviewed (subd 2). An opinion could not supply deficiencies in the order itself, if the opinion was not referred to in the order (subd 3). (See People v Mendola, 2 N.Y.2d 270, 274.) If the order did not comply with the statutory requirements, the Court of Appeals was to presume that questions of fact had not been passed upon by the appellate court (subd 4).
Contrary to the assertions in the majority opinion (p 62) as well as in Chief Judge BREITEL'S concurrence (p 64), the enactment of the Criminal Procedure Law in 1971 did not work any substantive change in the appellate jurisdiction of the Court of Appeals. A party adversely affected by an order of an intermediate appellate court may appeal the order to the Court of Appeals, provided a certificate granting leave to appeal is obtained. (CPL 450.90, subd 1.) The order appealed from, however, must "expressly" state that a reversal or modification of a lower court order is "on the law alone". (CPL 450.90, subd 2, par [a]; see CPL 470.10, 470.15.) The requirement of the express statement can hardly be described as a new one. (See, e.g., People v Conroy, 97 N.Y. 62, 72 [RUGER, Ch. J.]; People v Mitchell, 142 N.Y. 639, supra; People v Calabur, 178 N.Y. 463.) Indeed, the Practice Commentary, which was derived from the comments of the Staff to the Temporary Commission on Revision of the Penal Law and Criminal Code, itself notes that the principle is a "familiar" one. (Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 450.90, pp 396-397.) Thus, it cannot be that the Legislature, by enacting the Criminal Procedure Law, changed the law or even intended to do so, to preclude this court from examining the record in order to prevent a bare recital in an intermediate court order from depriving an appellant of a rightful appeal. The majority's reliance on the bare wording of the statute ignores and overlooks the history, development and purpose of this legislation. The issue before us "cannot be answered by closing our eyes to everything except the naked words of the [statute]. The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification." (United States v Monia, 317 U.S. 424, 431 [FRANKFURTER, J., dissenting]; see People v Brooks, 34 N.Y.2d 475, 478 [JONES, J.].) The majority draws from one word what it considers to be the "plain import" of the statute (p 63). In doing so, it ignores the century of experience and precedent upon which the statute is based. Contrary to the assertion in Judge FUCHSBERG'S opinion, I do not ignore the statute; I seek to apply it as it was meant to be applied and as similar statutes were applied by our court for years past.
As the majority opinion notes, we have on several recent occasions dismissed appeals from orders of the Appellate Division which recited that the determinations involved were based on the law and the facts. (See People v Crimmins, 36 N.Y.2d 230, 236; People v Pendleton, 35 N.Y.2d 690.) On the other hand, it was held that where an order states that the determination was on the law alone, this court could examine the record and inquire into the bona fides of that recital. (People v Williams, 31 N.Y.2d 151, 153.) In Williams we noted, in dicta, that "where there is a recital as to a factual or discretionary decisional predicate, we do not look beyond the order". (At p 153, citing People v Sullivan, 29 N.Y.2d 937, 938.) Aside from the fact that this statement was not necessary for the decision, it is plain that neither the Williams case nor any of the other cases cited by the majority involve the same practical danger as posed by the decision in this case. I would agree that, generally, it is better practice not to search beyond the recital. A short writing by the intermediate appellate court may not express the entire reasoning of the court. Moreover, the result may have been concurred in by some of the Judges based upon their own view of the facts. (See Harris v Burdett, 73 N.Y. 136, 138.) But these considerations do not obtain where, as here, the Appellate Division filed a lengthy opinion, detailing its own views on purely legal issues. Given the highly charged political atmosphere surrounding this case and its controversial prosecutor, we should view the recital for what it is: an effort to deprive the People of a rightful appeal, and to insulate the decision from review by the highest tribunal in the State. In such cases, we have never before declined to accept jurisdiction. The court should not now countenance so guileful an affront to this court's jurisdiction.
In sum, the majority's reliance on the bare language of CPL 450.90 (subd 2, par [a]) and, in turn, upon the bare wording of the Appellate Division recital, is misplaced. The statute and its words did not spring forth suddenly from the Legislature in 1970. Rather, the statute is based upon and incorporates rules pronounced by this court in decisions over the course of nearly one hundred years. Never before in our decisions have we permitted an intermediate appellate court to insulate its decision from our review by adding any number of magic words. We should not do so now. The integrity of the administration of justice and of our court's jurisdiction are far too important to be given so cavalier a treatment.
Review of this case would not violate the constitutional limitations on our jurisdiction. The legal sufficiency of the evidence presents only a question of law and no questions of fact. As the Chief Judge correctly states, the only issues discussed by the Appellate Division in its opinion were purely legal issues (p 64). Thus, while we should be ever mindful of the constitutional limitations on our jurisdiction, reviewing this case on the merits in accordance with our long-standing rules does not in any measure threaten a violation of the constitutional principles. I do not urge that we review questions of fact; I say only that the Appellate Division cannot create questions of fact where there are none and should not by so stating divest this court of jurisdiction to review a substantial, important question of law. (Otten v Manhattan Ry. Co., 150 N.Y. 395, 401, supra.) Indeed, the view I adopt serves to respect the careful delineation of powers made in the Constitution between the Court of Appeals and the Appellate Divisions. I would only encourage others to be so circumspect.
The Criminal Procedure Law did effect one major change in the law. Under the code it was uniformly held that a reversal of a conviction on the facts, predicated on the weight of the evidence, did not authorize dismissal of the accusatory instrument. (See, e.g., People v Klose, 18 N.Y.2d 141; People v Nappi, 18 N.Y.2d 136.) However, section 470.20 (subd 5) of the Criminal Procedure Law mandates that an intermediate appellate court dismiss the charge as to any count on which a conviction is reversed on the facts. Another subdivision of the same section continues the traditional rule requiring dismissal of the charge where a judgment of conviction is reversed for legal insufficiency of trial evidence. (CPL 470.20, subd 2.) The effect of this section was to add an additional ground for dismissing the accusatory instrument. This did not, however, change the law respecting the appealability of such dismissals. It was and is the law that a dismissal of an indictment for legal insufficiency presents a question of law which the Court of Appeals may review, "even though the Appellate Division may have specified that its reversal was on the facts or on the law and the facts." (See Cohen and Karger, Powers of the New York Court of Appeals, § 202, p 758; People v Bellows, 281 N.Y. 67, 75, supra; People v Peck, 205 N.Y. 554, supra.)
Indeed, the Legislature strengthened the appealability sections by expressly permitting appeals where the corrective action by the intermediate appellate court is alleged to be illegal. (CPL 450.90, subd 2, par [b].) In this case, the majority concedes, as it must, that this court may review the corrective action taken by the Appellate Division — i.e., the dismissal of the indictment. Although the Appellate Division addressed itself principally to the issue of the legal sufficiency of the indictment, the court also expressed the view that the trial court and the prosecutor had committed prejudicial error during the course of the trial. Of course, if these claims of error were the basis for the Appellate Division's order, the appropriate remedy would be the granting of a new trial, not the dismissal of the indictment. (CPL 470.20, subd 1.) Thus, there is a significant question as to the propriety of the Appellate Division's action in directing dismissal of the indictment. If the Appellate Division erred in its resolution of the legal issues it considered, its corrective action would be illegal and appealable. (Pitler, New York Criminal Practice Under the CPL, 1975 Supp, p 336, n 89.) Thus, under subdivision 2 (par [b]) of section 450.90 there is no question that an appeal may properly be taken. Once the appeal is properly before us, we should not, as the majority insists, put on blinders and refuse to review all the issues in the case.
In my view, our prior decision on the motion to dismiss in this case does not preclude our reviewing the entire appeal on the merits. Our decisions on preliminary motions, while entitled to great weight, are not binding law of the case where the appeal continues before us. For example, in People ex rel. Uviller v Luger, we denied a motion to dismiss the appeal for lack of substantial constitutional issues. ( 36 N.Y.2d 873.) However, after hearing oral argument, we transferred the case to the Appellate Division for that very reason. ( 38 N.Y.2d 854.) The conclusion to be drawn is that where a case is retained, as against a motion to dismiss, the preliminary decision denying the motion does not preclude later reconsideration when the case is before us on the merits. The traditional rule is that litigated issues are finally adjudicated only by a final judgment on the merits. Although the form of the decision is not determinative, if the proceeding before the court is limited in scope and particular questions are resolved only provisionally, a decision in any form must be given effect only within the same limitations. (Bannon v Bannon, 270 N.Y. 484, 491.) Since we elected to retain this appeal and did not dismiss it, we may review the entire case, notwithstanding our prior determination.
I note that the Chief Judge, joined by two of my colleagues, recommends a change in the Criminal Procedure Law to explicitly authorize this court to review questions of law following a conviction for a crime, even though the order would provide that the conviction was reversed on the law and on the facts. (Concurring opn of BREITEL, Ch. J., p 64.) In my view, a statutory revision is not necessary for us to review the merits of this case since the authority to do so is inherent in our decisions for the past hundred years. The majority not having agreed with me, the issue is settled and I believe the need for legislative action is all the more acute. Since our court will now be bound by the conditions of the recital, express authority to review law questions despite the technicalities of recitals is essential to the continued vitality of our criminal jurisdiction. On this basis alone, I concur in the suggestion of the Chief Judge and respectfully urge prompt legislative action.
Upon the merits of these appeals, I conclude, after a review of the record, that there was sufficient evidence, indeed overwhelming evidence, not only to support the indictment, but to support the convictions as well. The contrary conclusion drawn by the Appellate Division can only be described as wrong.
Joseph Ferdinando operated an illegal "Ponzi" swindle in the backroom of a Queens bar owned by defendant Frank Di Paola. Ferdinando would inform potential investors that he was an agent for factors, "shylocks", persons who would loan money at usurious interest to others with poor credit ratings who could not obtain loans from legitimate lending institutions. These transactions were entirely in cash, for the ostensible purpose of avoiding detection by the Internal Revenue Service. According to Ferdinando's testimony, he simply collected the money from one investor in order to have money to turn over as "interest" to another investor. "I collected from Peter and gave it back to Paul in interest. And it mounted and mounted. I couldn't stop. I had to continue." Eventually, Di Paola, at the time an assistant to then State Senator Thomas Mackell, approached Ferdinando and sought to invest in Ferdinando's "factoring" business. Between 1968 and December, 1970, Di Paola invested $75,100 in the scheme and took back $99,883 in profits, in addition to the return of his investment. Of the over 400 persons who invested in Ferdinando's scheme, at least 17 were employed at the District Attorney's office. After Mackell's election as District Attorney, Di Paola also served as Ferdinando's "collector" in the District Attorney's office. Di Paola and an associate would skim off some of the "interest" intended for the investor, retaining it for themselves. Di Paola also invested some money in the scheme for the benefit of Thomas Mackell. The notes to evidence the transactions were first placed in Mackell's name, but the original notes were later destroyed and replaced with notes in the name of Mr. and Mrs. James Robertson. Eventually $5,000 was invested in Mackell's name, with a net profit of $7,000 resulting from the investment. James Robertson personally invested $21,500 in 13 separate transactions, receiving a net gain of $11,475.
The scheme began to unravel on March 13, 1971, when Ferdinando was robbed in his apartment, at gunpoint, of approximately $84,000 in cash receipts. After the gunmen had left, Ferdinando called Di Paola to advise him of the robbery. Di Paola, now a detective employed by the Queens District Attorney, told Ferdinando to meet him at the bar, advising him, "Don't tell anyone about this, we'll take care of it." Ferdinando was met at the bar by Di Paola and another detective. They again advised him not to tell anyone about the robbery, "Just keep your mouth shut. Because if you go to the cops, it's trouble."
Two days later, Ferdinando fled New York for San Francisco and did not tell anyone of his intended destination. Di Paola advised Ferdinando's wife not to report the disappearance to the police: "Don't report it to the police. Don't do nothing. A lot of people can get in trouble over this here."
In May, 1971, one of Ferdinando's investors filed a complaint with the Bronx District Attorney, advising that personnel in the Queens District Attorney's office were involved in the scheme. An Assistant District Attorney was assigned to the case and, after investigation, concluded that the allegation of such involvement had been mere "puffing" on Ferdinando's part. Bronx District Attorney Burton Roberts telephoned Mackell and advised him of the investigation. Mackell told Roberts that it was better to refer the case to the Queens District Attorney's office than to the State Investigation Commission. Roberts had no objection, but noted that "it might be wise to be circumspect about who was assigned to the case so that the whole office wouldn't know that the investigation was proceeding." Although Mackell, by his own Grand Jury testimony, had been aware of the scheme since 1968, he never reported this information to Roberts. Moreover, he proceeded to assign his son-in-law Robertson to head the investigation, despite his knowledge that Robertson had been an investor in the scheme. During subsequent conversations with an Assistant District Attorney from Bronx County, Robertson at first stated that he did not know of anyone on the Queens District Attorney's staff by the name of "Frank" (Di Paola). Later, Robertson advised that no such person was on the staff.
In March, 1972, two private citizens who had invested with Ferdinando learned of his whereabouts and met with him. He agreed to return to New York where he was arrested. At the time of the arrest Mackell and Robertson were out of town. Mackell subsequently telephoned his office and told a deputy that the case was "to be handled carefully and not to be the subject of press releases". The deputy was informed, in substance, that there were office personnel involved, that the case had to be handled delicately, that no one was to be embarrassed by any notoriety and that persons involved in the scheme, whoever they were, should not work on the case.
While the Ferdinando case was being presented to a Grand Jury, the deputy advised Mackell that Di Paola had been more than a simple investor, but had been a collector of investments. When the question arose as to whether the transactions were a violation of the usury laws, Mackell replied that the scheme "was a joint venture and outside the jurisdiction of the usury laws". Moreover, Mackell told his deputy that "he knew a lot more about this case than I did."
Later, Federal authorities sought to obtain Ferdinando's custody and served a habeas corpus writ upon the Warden of the Queens House of Detention. Mackell advised his deputy to resist the Federal warrant because "it would cause trouble" for the District Attorney. When later interviewed by a Federal prosecutor, Mackell refused to co-operate or provide assistance, at one point stating, "when is it going to stop? We're the most investigated office in the country!"
From even this summary recital of the massive amount of evidence, it is plain that there was, manifestly, sufficient evidence for the jury to find, as it did, that the charges against the defendants were sustained.
The crime of official misconduct is committed when a public servant, with the intent to obtain a benefit or deprive another person of a benefit, either engages in an unauthorized exercise of his official functions or knowingly refrains from performing a duty imposed by law or which is clearly inherent in the nature of his office. (Penal Law, § 195.00.) There is not the slightest doubt that all three defendants were public servants. (Penal Law, § 10.00, subd 15.)
The official misconduct charges filed by the Grand Jury alleged that the defendants failed to prosecute Ferdinando for various crimes, until his arrest was brought about by private citizens. Secondly, it was charged that the defendants failed to assign a fair and impartial prosecutor to the Ferdinando investigation. These charges were established by competent proof. There is evidence that, commencing immediately after the robbery of Ferdinando, Di Paola, despite his employment as a detective, attempted to discourage witnesses. Each of these defendants knew of Ferdinando's scheme for nearly three years prior to his actual arrest and yet failed to investigate it or prosecute him. The Appellate Division excused this dereliction of duty on the grounds that the District Attorney's office would have to investigate its own staff and that in any event no usury was involved. (47 A.D.2d, at p 218.) With this view, I cannot concur. First, the District Attorney is charged with the responsibility of prosecuting all crimes committed within his jurisdiction, regardless of who commits them. (See County Law, § 700, subd 1.) It cannot be seriously contended that members of a District Attorney's staff are immune from the sweep of the criminal law. Nor can it be that the District Attorney may permit his office to become rife with persons engaging in a variety of crimes. Secondly, it is equally unavailing to contend that the scheme was not, in fact, usurious. If it was not, the scheme was an out and out fraud and those participating in it were liable for larceny. (See Penal Law, § 155.05.) In short, there is overwhelming proof that the three defendants deliberately failed to investigate and prosecute this scheme in order to disguise their own involvement with it. This, surely, is official misconduct.
The charges of hindering prosecution in the third degree were also sustained. This crime is committed when a person renders criminal assistance to a person who has committed a felony. (Penal Law, § 205.55.) Joseph Ferdinando had, of course, committed at least one felony, most notably, grand larceny. Frank Di Paola was subject to accessorial liability for his role as "collector". The Grand Jury charged that defendant committed this crime by deceiving the Bronx District Attorney's office and hindering that investigation and then by advising certain witnesses that the matter was already under investigation, when, in fact, there was an attempt to cover it up. Again, the record discloses that these charges are supported by substantial evidence. The defendants rendered criminal assistance to Ferdinando by numerous acts, each designed to obstruct others from discovering, apprehending and prosecuting Ferdinando and the others involved in his felonious enterprise. (See Penal Law, § 205.50, subd 4.)
The final set of charges involve the crime of conspiracy. Conspiracy in the fourth degree is committed when, with intent that conduct constituting a crime be performed, a person agrees with others to engage in or cause the performance of such conduct. (Penal Law, § 105.00.) The Grand Jury charged that the defendants had committed this crime by agreeing to render criminal assistance to Ferdinando and by agreeing, between themselves, not to investigate and prosecute these charges. There was substantial evidence from which the jury could find that there was a criminal agreement between the three defendants. Since neither the agreement nor the criminal intent need be proved by direct evidence, they may be proved inferentially. (People v Flack, 125 N.Y. 324; People v Silverman, 252 App. Div. 149. ) Both Mackell and Robertson had participated through Di Paola in Ferdinando's scheme and obtained, thereby, substantial financial benefits. An obvious part of this arrangement was the tacit understanding that Ferdinando's activities, while even on the surface suspicious, would not be investigated too closely. Moreover, once the scheme broke down, each of the defendants attempted to hinder prosecutions and to obstruct a detailed investigation. Thus, the jury could reasonably find that this activity was conducted pursuant to a continuing criminal agreement.
One further point requires discussion. The concurring Justice at the Appellate Division indicated his view that the subsequent prosecution of Ferdinando indicates that the defendants did not commit any nonfeasance in office. (47 A.D.2d, at pp 222-223 [BENJAMIN, J., concurring].) This, of course, begs the question. It is readily apparent that the three defendants were not, in the slightest, concerned with the best interests of Joseph Ferdinando. Their concern was that a full-scale investigation would reveal that they, while holding public offices, had reaped massive financial benefits from a patently illegal scheme. It avails the defendants nothing to argue that their prosecution of Ferdinando was vigorous once their hand was forced. The record discloses that, like certain other public figures in the recent past, the defendants sought to contain the investigation before their own participation was revealed.
For the reasons stated, I would reverse the order of the Appellate Division and reinstate the judgments of conviction.
Judges GABRIELLI, JONES and WACHTLER concur with Judge FUCHSBERG; Chief Judge BREITEL concurs in a separate opinion in which Judges FUCHSBERG and COOKE also concur; Judge JASEN dissents and votes to reverse in another separate opinion.