People v. O'Dowd

• Decision Date: 14 July 1959
• Citation: 8 A.D.2d 468,188 N.Y.S.2d 651
• Parties: PEOPLE of the State of New York v. Dennis P. O'DOWD, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 651

188 N.Y.S.2d 651

8 A.D.2d 468

PEOPLE of the State of New York v. Dennis P. O'DOWD, Defendant.

Supreme Court, Appellate Division, Fourth Department.

July 14, 1959.

LouisJ. Lefkowitz, Atty. Gen. of the State of New York, by Robert E. Fischer, Special Asst. Atty. Gen.

Eugene M. Hanson, Utica, for defendant.

Before McCURN, P. J., and KIMBALL, WILLIAMS, BASTOW and HALPERN, JJ.

WILLIAMS, Justice.

This action has been instituted by the Attorney General under Section 1210 of the Civil Practice Act to remove the defendant from public office because of alleged violations of Section 6 of Article 1 of the Constitution of the State of New York.

We have before us for decision motions of both plaintiff and defendant addressed to the pleadings. They come to us originally and not upon appeal, under the provisions of Section 149, Subd. 2 of the Judiciary Law, which states:

'A motion involving a matter pending before such extraordinary special or trial term shall be made returnable at such term, or, at the option of the moving party, at a term of the appellate division of the supreme court in the department in which such extraordinary special or trial term is being held.'

Inasmuch as the motions involve a matter pending before an extraordinary special and trial term appointed by the Governor, pursuant to Subd. 1 of said Section 149, and the parties have chosen to present these motions to this court in the first instance, they are properly before us (People v. Leary, 282 App.Div. 476, 124 N.Y.S.2d 875; People v. Doyle, 286 App.Div. 276, 143 N.Y.S.2d 289 affirmed 1 N.Y.2d 732, 151 N.Y.S.2d 939).

The motion of the defendant, under Rule 106, Rules of Civil Practice, is on the ground that the complaint does not state facts sufficient to constitute a cause of action. The cross motion of the plaintiff is addressed to the answer and is based in part on Rule 109, Subd. 6, Rules of Civil Practice, and in part on Rule 103, on the grounds that the defenses consisting of new matter are insufficient in law and that in any event such matter is 'frivolous, irrelevant, and/or redundant.'

The complaint contains three separate causes of action which seek to remove defendant from his office because of his failure to answer questions put to him before a grand jury in alleged violation of said section 6 of Art. 1 of the Constitution, which provides in part:

'No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years, and shall be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.'

The three causes of action are substantially the same. They state that the defendant is a public officer, to wit, General Manager of the Board of Water Supply of the City of Utica, State of New York, and is a public officer within the meaning of the constitutional provision; that the extraordinary special and trial term in question was appointed by the Governor and that a grand jury was duly impanelled to serve in connection with said extraordinary special and trial term; that the defendant signed a limited waiver of immunity pertaining to an inquiry as to the conduct of his office and the performance of his duties as such General Manager; and that after the execution of the waiver, he was asked certain questions before said grand jury by a Special Assistant Attorney General which were relevant to the conduct of defendant's office and the performance of his official duties. The questions are set out in full and then it is alleged as to each:

'That the defendant refused to answer the aforesaid question.'

There are other allegations, but we have outlined those which are material. There is nothing stated as to the reasons, if any, why the defendant refused to answer. There are merely allegations of relevance and refusal.

The full text of defendant's limited waiver is annexed to the complaint. Defendant agreed to waive immunity as to all testimony that he might give relating 'to the conduct of my office and the performance of my official duties as General Manager of the Board of Water Supply, Utica, New York.' This is in form generally approved in People v. Doyle, supra, 286 App.Div. 276, 143 N.Y.S.2d 939, affirmed 1 N.Y.2d 732, 151 N.Y.S.2d 289.

We shall address ourselves first to defendant's motion under Rule 106. Of course, in analyzing this complaint, we must accept the allegations as true and we must draw reasonable inferences in its favor (Schwartz v. Heffernan, 304 N.Y. 474, 482, 109 N.E.2d 68, 71; Hegeman v. Conrad, 3 A.D.2d 667, 158 N.Y.S.2d 372).

The defendant strongly urges that he is not a public officer as defined and contemplated in the Constitution We think that the allegation to the effect that he is a public officer, coupled with the description of his office as contained in his title, is sufficient for the purpose of a motion such as this (Canteline v. McClellan, 282 N.Y. 166, 25 N.E.2d 972).

Inasmuch as the form of the questions is criticized, we set them forth as they appear in causes of action one to three, respectively:

'Q. All right. Now in connection with your conferences or meetings with other public officials, did you ever have occasion to discuss prostitution with any public official in the City of Utica?'

'Q. Mr. O'Dowd, have you at any time delayed or denied water service to any individual, partnership, or corporation at the request of, or upon the order of, any public officer, individual or political organization?'

'Q. Have you ever assessed political contributions against employees of the water board?'

Although the form and content of these questions are somewhat dubious from the standpoint of clarity and relevance (particularly question 1), we cannot say that they are irrelevant or improper as a matter of law, and we conclude that the complaint is sufficient to bring the issues of relevance and propriety before the trier of the facts. We are concerned primarily with the question of whether the allegation of defendant's refusal, standing alone, is sufficient to support a cause of action brought under the constitutional provision. We are dealing only with the allegations appearing on the face of the complaint. It does not appear that the defendant gave any reason for refusing to answer the questions before the grand jury. So far as...