People v. La Carrubba

• Decision Date: 27 March 1979
• Citation: 389 N.E.2d 799,46 N.Y.2d 658,416 N.Y.S.2d 203
• Parties: , 389 N.E.2d 799 The PEOPLE of the State of New York, Respondent, v. Gioanna LA CARRUBBA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 203

416 N.Y.S.2d 203

46 N.Y.2d 658, 389 N.E.2d 799

The PEOPLE of the State of New York, Respondent, v. Gioanna LA CARRUBBA, Appellant.

Court of Appeals of New York.

March 27, 1979.

James M. Catterson, Jr., and Richard T. Nolan, Port Jefferson, for appellant

Patrick Henry, Dist. Atty. (Mark D. Cohen, Stony Brook, of counsel), for respondent.

OPINION OF THE COURT

JONES, Judge.

An indictment charging a Judge with official misconduct under subdivision 2 of section 195.00 of the Penal Law is insufficient, and accordingly should have been dismissed on timely application, where that indictment, for the purpose of defining the duty "clearly inherent in the nature of his office" which allegedly was violated, only incorporates by reference the provisions of the Code of Judicial Conduct. Moreover, the disciplining of Judges for violation of ethical standards not involving independently criminal conduct has been reserved by the State Constitution to proceedings instituted before the present Commission on Judicial Conduct and prior to that before the Court on the Judiciary.

Appellant, a Suffolk County District Court Judge, was indicted on April 26, 1976 and charged with three counts of official misconduct in violation of section 195.00 of the Penal Law. That section provides:

"A public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit:

"1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or

"2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office."

Two counts of the indictment were dismissed by the court at the close of the People's case. The remaining count, which was submitted to the jury, charged in pertinent part that appellant: "with the intent to obtain a benefit * * * knowingly refrained from performing a duty which is imposed upon her by law or is clearly inherent in the nature of her office, to wit, on December 24, 1974, in Suffolk County, in her capacity as District Court Judge, she improperly dismissed, for failure to prosecute, a Simplified Traffic Information received by * * * a personal friend, in violation of * * * the Code of Judicial Conduct, Canons 2 and 3." ¹ Submission of this count resulted in a hung jury. On retrial of this count a guilty verdict was returned. The Appellate Division affirmed appellant's conviction without opinion. We now reverse and dismiss the indictment.

At issue is the permissibility of the enforcement of the provisions of the Code of Judicial Conduct by resort to criminal prosecution. During the course of the proceedings at the first trial, and again prior to the second trial, appellant moved to dismiss the indictment on the ground that an indictment which only charges violations of canons of judicial ethics cannot support a criminal charge of official misconduct that the "Canons of Ethics cannot be substituted for the Penal Law". The court denied appellant's motion, concluding that "(a)ssuming a specific Mens rea, conduct in violation of the respective Canons constituting the code becomes a violation of law when it is done with intent to gain any benefit or advantage * * * . The inclusion by reference to * * * the Code of Judicial Conduct is accordingly appropriate". We disagree.

Subdivision 2 of section 195.00 of the Penal Law condemns, and this indictment charges, a breach, with the requisite intent, of a duty that is either imposed by law or clearly inherent in the nature of the office. The only definition or description in the indictment of the duty in question, however, is by cross-reference to Canons 2 and 3 of the Code of Judicial Conduct. ²

Section 195.00 of the present, revised Penal Law condensed more than 30 separate provisions in the former Penal Law dealing with offenses of malfeasance and nonfeasance by public servants, most of which were very narrow ones involving violations of specific duties by specified public officers (Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 195.00). With a single exception, ³ there was no express proscription of judicial misconduct in any of the specific sections, although some of the sections of general application were phrased so broadly as to permit an argument that judicial misconduct would fall within the statutory embrace (e. g., former Penal Law, §§ 854, 1788, 1857). It does not appear, however, that any of these sections was ever used as the basis for proceedings against a Judge to enforce ethical standards or any duty not prescribed by statute.

There is no contention here that the official misconduct with which appellant was charged involved her refraining from performing a duty "imposed upon her by law". The contention is that she refrained from performing a duty "clearly inherent in the nature of her office". The canonical provisions are then relied on to define duties inherent in the office.

Our address to this contention begins with noting that "(i)t is for the legislative branch of a state or the federal government to determine, within state or federal Moreover, the Code of Judicial Conduct and the Penal Law serve discrete, if in some respects complimentary, purposes. The Penal Law is designed to "give fair warning of the nature of the conduct proscribed * * * (and to) define the act or omission * * * which constitute(s) each offense" (Penal Law, § 1.05, subds. 2, 3). For duly proved violations the sanctions of the Criminal Law are imposed. By contrast, the provisions of the Code of Judicial Conduct were never so intended. Couched in the subjunctive mood, the code is a compilation of ethical objectives and exhortations for the violation of which recourse has traditionally been had to disciplinary rather than criminal proceedings. If in any instance the conduct proscribed by the canons also independently constitutes a criminal offense under the Penal Law (e. g., bribe receiving, Penal Law, § 200.12) then, of course, the sanctions of the Criminal Law are available and the coexistence of ethical impropriety would stand as no barrier to criminal prosecution. Taken alone, however, instances of ethical impropriety, although unquestionably to be condemned, provide no predicate for the imposition of criminal penalties.

constitutional limits, the kind of conduct which shall constitute a crime and the nature and extent of punishment which may be imposed therefor." (Wharton's Criminal Law (14th ed., 1978), § 10, pp. 31-32). Even by explicit provision the Legislature may not delegate the essentially legislative function of definition of a substantive criminal offense (People v. Ryan, 267 N.Y. 133, 195 N.E. 822; see People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7). In the present instance, however, there has not even been an attempted delegation by the Legislature, for it has neither incorporated nor otherwise adopted the provisions of the Code of Judicial Conduct. Here the attempt is by the District Attorney alone, unaided by any legislative enactment, to import a definition of judicial duty based on ethical standards initially promulgated by the American Bar Association and the New York State Bar Association and then incorporated by reference in the Rules of the Appellate Division, Second Department ( § 700.5, subd. (a); 22 NYCRR 700.5(a)). While there can be no doubt of the authority of bar associations to promulgate enforceable ethical standards or of the Appellate Division to incorporate such standards in rules of court, neither the bar associations nor the Appellate Division is empowered to discharge the legislative responsibility to define the elements of a crime.

In our State this distribution of jurisdiction for the enforcement of the Criminal Law on the one hand and the enforcement of the Code of Judicial Conduct on the other is expressly recognized in the provisions of our State Constitution. In section 22 of article VI of the Constitution (further implemented in article 2-A of the Judiciary Law) detailed and complete provision is made for the initiation, prosecution, determination and appeal of disciplinary proceedings against members of the judiciary now through proceedings before the Commission on Judicial Conduct; prior to April 1, 1978 through proceedings before the Court on the Judiciary. We view the constitutional and statutory provisions for judicial disciplinary proceedings as a pre-emption with respect to the imposition of sanctions for the violation of ethical standards by Judges except, of course, as to conduct which, irrespective of the provisions of the Code of Judicial Conduct, is expressly proscribed by the sections of the Penal Law. As to the latter, Judges as other persons are subject to criminal prosecution. In effect, in the performance of their judicial duties members of the judiciary, as distinguished from public servants in general, are exposed to the imposition of sanctions for misconduct under either, or sometimes both, criminal prosecution (in the event the conduct in question is proscribed by the Penal Law) and disciplinary action (when the conduct is violative of ethical standards). If the particular misconduct transgresses both the Penal Law and the Canons of Ethics, prosecution may be initiated under criminal or disciplinary procedures, or both.

We find nothing in section 195.00 of the Penal Law which suggests that by the device of incorporation by reference a prosecutor may initiate and take charge of proceedings to enforce the Code of Judicial Conduct as such. To accept the proposition advanced by respondent District Attorney would be to countenance the institution of criminal proceedings for any alleged violation of the provisions of the code. We perceive no intention on the part of the Legislature to cloak the District Attorney with responsibility for compelling...