People on Complaint of Creasey v. Bloomenstiel

• Decision Date: 28 December 1965
• Citation: 265 N.Y.S.2d 877,48 Misc.2d 771
• Parties: PEOPLE of the State of New York on the complaint of Robert T. CREASEY, Complainant, v. M. Frank BLOOMENSTIEL, Defendant.
• Court: New York City Court

Page 877

265 N.Y.S.2d 877

48 Misc.2d 771

PEOPLE of the State of New York on the complaint of Robert T. CREASEY, Complainant, v. M. Frank BLOOMENSTIEL, Defendant.

Criminal Court of the City of New York, New York County, Part 7B.

Dec. 28, 1965.

No appearance for the People.

Schulman, Abarbanel & Kroner, New York City, Bertram Perkel, New York City, of counsel, for complainant.

Cadwalader, Wickersham & Taft, New York City, Steve C. Dune, New, York City, of counsel, for defendant.

MILTON SHALLECK, Judge:

One of the all-too-few gratifying rewards of judicial life in these lower criminal courts occurs when lawyers submit well-written memoranda which provoke legal novelty. This is one of those times. For counsel for the Complainant and Defendant have briefed their points with good form, good argument and plausible logic. I am appreciative. Their efforts have clarified their respective claims. They have narrowed the present legal conflicts. And by their agreement on the salient facts, simplified factual findings. This is advocacy in its finest sense. With it all, however, the legal question of immunity from criminal process is difficult of resolution.

Defendant, a lawyer in, and a resident of Louisiana, was for a time during 1962 and 1963 president of A. H. Bull Steamship Co. The latter, with related companies, has been for more than two years in Chapter X proceedings (U.S.Code, tit. 11, ch. 10) in the United States District Court for the Southern District of New York. The United States is the largest creditor. It made a motion in those proceedings to consolidate all the pending matters. Because of other creditors' opposition, a trial of that application was required. The Seafarers Welfare and Vacation Plans, a creditor, was one of such objectants.

In June, 1965 two complaints and arrest warrants against this defendant were issued on the application of the complainant on behalf of Seafarers Welfare and Vacation Plans. It is alleged therein that in the period during which defendant was its president, the A. H. Bull Steamship Co. failed to pay welfare and vacation plan contributions, this constituting a misdemeanor under Sec. 962-a of the Penal Law. In July, 1965 defendant received notice of the arrest warrants in Louisiana by mail. In the same month an Assistant United States Attorney by telephone to Baton Rough 'informed him that the United States wanted him to come to New York to testify on behalf of the United States at the hearing' in the bankruptcy proceedings aforementioned. After several long distance telephone calls arrangements were made. Defendant arrived in New York on July 15th and spent about four hours at the United States Attorney's office reviewing the facts. The next day he was served with a subpoena by the U. S. Attorney's office. A New York City police officer had the warrants for defendant's arrest in the court room on July 16, 1965 while defendant was actually testifying.

The warrants were not then served since an immediate application was made before the United States District Court to grant defendant 'immunity from arrest for a period of time sufficient to permit him to return to his residence in Baton Rouge La.'. That court stayed the execution of the arrest warrants from July 16th to July 20th and then denied the motion solely on the ground that his 'relief against the process was in the state courts'. This proceeding was then commenced before me, the warrants never having been served. I rejected defendant's attempt to appear specially (People v. Rockwell, 38 Misc.2d 645, 237 N.Y.S.2d 223) but preserved the defendant's right to contest the validity of 'the attempted service of warrants of arrest' and his right to assert his 'immunity from any such service' under a voluntary appearance, which was then made. He also demurred to the complaint pro forma.

The initial opposition to the present procedure will be disposed of first, since it does not involve the merits of the application. It attacks the method used by defendant to apprise the court of his requested relief. Citing what I said in Rockwell, supra, the attorney for complainant insists that since there is no specific 'provision for such a motion in the Code of Criminal Procedure' this application will not lie. Such contention is a distortion of the holding in that case.

There, George Lincoln Rockwell had absented himself from New York's jurisdiction for a protracted time, fearful of the service of warrants should he appear personally in New York. While he remained without the State of New York, he authorized an attorney to appear for him specially and to move to dismiss the complaint on the ground that no offense or crime had been spelled out in the complaint. Thus his special appearance was attempted in connection with a contest of the merits of the information (the affidavit) alleging this violation of the law. It was then, and under such circumstances, that I held improper a special appearance, saying that a general appearance according to the Code would not thwart Rockwell's right to challenge the validity of the charges. (Rockwell, supra, p. 650, 237 N.Y.S.2d p. 229)

But that situation is not here extant. Defendant is challenging by motion not the merits of the accusations but asserting his immunity from being forced to appear generally for purposes of trial. His immunity from process, if there be immunity, is not lessened by his general appearance upon my insistence. Defendant did not accede to this procedure in order to deny or admit his guilt as to the charges against him; he did so in order to say in effect: 'You have no right to have me here, whether by legal or illegal means, for I am immune from any kind of process since I came into this state voluntarily in an unrelated matter.'

I hold that jurisdiction over his person does not preclude his claim of immunity. This, regardless of what we label the motion or procedure by which the matter is brought to judicial attention. And by so doing, we do no violence to the Code of Criminal Procedure or to People v. Rockwell.

There was once a short-lived time in the development of our common law when, if there was no form which could encompass a complaint, there was no remedy. We have gone far beyond such limited view. The law is not retrogressive. We shall never return to it. Today the law is elastic enough to afford remedy wherever needed. Defendant is properly before me with a proper challenge, the United States District Court Judge having declined to pass upon it finally.

This matter can be disposed of on other grounds than that proposed by the complainant and defendant. For instance, the statute which gave rise to the arrest warrants has never had appellate sanction as to constitutionality. And with due deference and admiration for my able colleague, Judge Bloom, whose opinion in People v. Doundoulakis, 38 Misc.2d 984, 239 N.Y.S.2d 452, was followed only by another lower court, (People v. Trapp, 46 Misc.2d 642, 260 N.Y.S.2d 305) I can find ample ground on which cogent argument can be based that Section 962-a of the Penal Law is unconstitutional. For after all, the statute gives to a favored group of persons the right to enforce criminally a purely civil obligation--a modern way of imprisoning for debt long since believed to be outlawed. And the guilt under said section constraining the finding of crime: 'Where such employer is a corporation, the president, secretary, treasurer or officers exercising corresponding functions shall each be guilty of a misdemeanor' does not depend upon intent, knowledge or even awareness on the parts of the guilty ones.

'Ordinarily' said our Second Circuit in United States v. Crimmins, 2 Cir., 123 F.2d 271, 272, 'one is not guilty of a crime unless he is aware of the existence of all those facts which make his conduct criminal. That awareness is all that is meant by the mens rea, the 'criminal intent' necessary to guilt. * * *' Since the statute by its words abjures the complications of modern life and relationships--not only between contracting parties but between the governments (from local to Federal) and its citizens--it must be based upon a malum prohibitum concept.

In these days a statute based upon such ideas is anachronistic. It has had its place in the simpler days of life; but courts should be wary in the application of malum prohibitum principles when, with the myriad of unknown and ununderstandable laws in this space age of ours, the mere act of walking on a public highway may involve some obscure legislation relegating its victim to criminal proceedings.

So, if I were to find Section 962-a unconstitutional the arrest warrants would fall and defendant exonerated from jurisdictional compulsion to stand trial. But such result would avert the basic question of immunity argued by both complainant and defendant ¹.

I shall, therefore, address myself to the main arguments. I am hopeful that the old legal saw that hard cases make bad law will be averted here ².

I begin with my basic belief that the long arm of the law should encompass any defendant, legally accused, and should compel him to defend on the merits. The rule that the People must prove him guilty beyond a reasonable doubt, together with other constitutional safeguards, should ordinarily suffice to protect him (Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541).

There would be less difficulty in making that basic belief apply here, if the misdemeanor were one transcending the alleged act which, but for the last sentence of Section 962-a, would give rise at most to a civil action--a remedy still available. Conversely, the impulsion to deny this application would be greater if the basic misdemeanor were one borne of immoral intent: an assault, an unlawful entry, compounding a crime, a conspiracy, a larceny, malicious mischief and the like. But for the purposes of this motion I can make no distinction. A misdemeanor is a misdemeanor. Whether I agree...