People v. Birnberg

• Decision Date: 18 December 1981
• Citation: 112 Misc.2d 870,447 N.Y.S.2d 597
• Parties: The PEOPLE of the State of New York v. Bruce A. BIRNBERG, Defendant.
• Court: New York City Court

Page 597

447 N.Y.S.2d 597

112 Misc.2d 870

The PEOPLE of the State of New York v. Bruce A. BIRNBERG, Defendant.

Criminal Court of the City of New York,

New York County.

Dec. 18, 1981.

Elliot Carlin, Regional Counsel, U. S. Internal Revenue Service, for complainant.

Caesar Cirigliano, Legal Aid Society, New York City (James Roth, of counsel), for defendant.

STANLEY GARTENSTEIN, Judge:

The enduring popularity of the Internal Revenue Service as a focus of protest during tax season highlights an intriguing issue of first impression: viz., when the appropriate District Attorney or Attorney General declines to prosecute, does judicial approval of private prosecution confer prerogatives usually attached to representation of the People, including, as in this instance, the right to consent or withhold consent to an adjournment in contemplation of dismissal? We hold in the affirmative.

THE FACTS:

Defendant is one of a group of tax protesters all of whom were issued universal summonses on April 9, 1981 for trespassing upon the facilities of the United States Internal Revenue Service at 120 Church Street in the County of New York. Because certain favorite targets for protest are seasonably overcrowded (viz., Internal Revenue Service during tax season; Pentagon on Veteran's Day; White House during visits of foreign heads of state), procedures have been formulated to insure the exercise of free speech and assembly, while reasonably protecting public order and the safety of the general public, including that of the protestors. The reasonableness of these regulations is not contested herein by the defense and the constitutional rights of free speech and assembly are not in issue.

The processes issued as aforesaid have been made returnable in the Summons Part of the Criminal Court, a part in which the District Attorney's Office traditionally elects not to appear. Because of this fact, Regional Counsel to the Internal Revenue Service has appeared during all proceedings to date despite the fact that his standing to do so has not as yet been settled by judicial holding.

Because these prosecutions as a group present fascinating issues not ordinarily raised in the criminal courts, the case before us has been severed for trial and counsel have come to an informal understanding that the court's rulings in the matter at bar will be dispositive of the other matters still sub judice.

PRIVATE PROSECUTIONS:

The practice of allowing individuals to commence private prosecutions in the name of the state is a vestige of the English origins of American justice. (cf. Sidman, The Outmoded Concept of Private Prosecution, 25 American University Law Review 754). English Common Law rested on the notion that the best way to bring a public wrong to satisfactory resolution could be realized by vesting in the family of the wronged individual the right to pursue its own concept of vengeance. This practice pre-dating the Norman Conquest of 1066 was rooted in a belief that criminals were best punished through private warfare (cf. 2F. Pollock and F. Maitland, The History of English Law 449 ). The foreseeable arising necessity of regulating private revenge--of placing a restraint upon the avenging party--ultimately led to the true beginnings of Anglo-American criminal procedure by establishing some civilized test to determine innocence or guilt (Sidman, supra, p. 758). Not until the mid-Nineteenth Century agitation of the Reformers, a development in England which occurred after American jurisprudence was independently launched, did dissatisfaction with private prosecutors ¹ lead to establishment of the Office of Director of Public Prosecutions (Prosecution of Offenses Act, 42243 Vict. c. 22) in 1879. This development in English Law served the dual purpose of paying lip service to the concept of private prosecutions, while so severely curtailing its practice as to make it virtually academic (cf. Edwards, The Law Officers of the Crown, 340 cited n. 41 Sidman, supra).

American courts vary in their holdings on this question. Points of view range from a complete prohibition against private prosecutions (McKay v. State, 90 Neb. 63, 132 N.W. 741 ) to reluctantly permitting them (State v. Scott, 72 Idaho 202, 239 P.2d 258 ). In New York, there has always existed, by tradition, a summons part presided over by a judge, in which private individuals may petition the court for a complaint commencing a private prosecution (People v. Vlasto, 78 Misc.2d 419, 355 N.Y.S.2d 983). At the same time, this practice traditionally looked to the discretion of the trial court on the question of whether or not the private prosecution could continue as such (People ex rel. Luceno v. Cuozzo, 97 Misc.2d 871, 876, 412 N.Y.S.2d 748). Neither of these practices appears to have any basis under the Criminal Procedure Law. Additionally, prosecutions for petty offenses and minor crimes commenced by the issuance of a universal summons by police or other law enforcement personnel which are ordinarily not prosecuted by a District Attorney, are treated as private prosecutions under the law. There appears to exist an implicit recognition of these traditions with stare decisis limited to the validity of any conviction thus rendered in the light of the prosecutor's responsibility as a public official for enforcement of some statutory scheme and the fairness of the trial itself vis a vis the self-restraints usually expected of the prosecutor as a quasi-judicial officer. (People v. Czajka, 11 N.Y.2d 253, 228 N.Y.S.2d 809, 183 N.E.2d 216 People v. DeLeyden, 10 N.Y.2d 293, 220 N.Y.S.2d 961, 177 N.E.2d 924 People v. Leombruno, 10 N.Y.2d 900, 223 N.Y.S.2d 516, 179 N.E.2d 517 People v. Schildhaus, 4 N.Y.2d 883, 174 N.Y.S.2d 465, 150 N.E.2d 768 ). Noteworthy of these cases is the fact that prosecutions by a public official were conducted with the implicit consent of the District Attorney albeit without his actual participation. As stated by Chief Justice Desmond, speaking for the majority in People v. Van Sickle, 13 N.Y.2d 61, 62, 242 N.Y.S.2d 34, 192 N.E.2d 9:

"If there was before us for decision the much broader question as to the District Attorney's rights and duties I would say that the courts as well as the District Attorney himself must obey the plain, clear mandate of subdivision 1 of section 700 of the County Law, Consol.Laws c. 11. That statute does not necessarily mean that the District Attorney or his deputy must be physically present at every criminal hearing in the county. However, it means at least that the District Attorney, as the elected representative of the People and charged with this responsibility, must carry the responsibility and must set up a system whereby he knows of all the criminal prosecutions in his county and either appears therein in person or by assistant or consents to appearance on his behalf by other public officers or private attorneys." (Emphasis added)

It has been held that by electing not to appear in the summons part, the District Attorney necessarily...