People v. Harris

• Decision Date: 19 July 1945
• Parties: PEOPLE v. HARRIS et al.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 424

63 N.E.2d 17

PEOPLE

v.HARRIS et al.

Court of Appeals of New York.

July 19, 1945.

Appeal from Supreme Court, Appellate Division, Third Department.

Frank S. Harris, James J. McGuiness, and Frank J. Cassidy were charged by indictment with the crime of conspiracy to obstruct and pervert justice and to interfere with the due administration of the laws, in violation of Penal Law, s 580, subd. 6. From an order of the Appellate Division of the Supreme Court, 268 App.Div. 731, 54 N.Y.S.2d 161, which reversed on the law an order of the Supreme Court at Special Term, Murray, J., 182 Misc. 787, 50 N.Y.S.2d 745, entered in Albany County, quashing and setting aside such indictment, dismissing the action, discharging defendants from custody, and exonerating the bail of defendant Frank J. Cassidy, the defendants appeal. The Appellate Division by its order appealed from reinstated the indictment.

The order of the Appellate Division reversed and that of the Special Term affirmed.

LEWIS, J., dissenting. Robert E. Whalen and George Myers, both of Albany, for appellants.

Nathaniel L. Goldstein, Atty. Gen. (Stanley H. Fuld, Harris B. Steinberg, and Herbert Stern, all of New York City and A. Cuyler Ten Eyck, Jr., of Albany, of counsel), for respondent.

THACHER, Judge.

At an Extraordinary and Trial Term of the Supreme Court appointed by the Governor to be held at Albany, Frank J. Cassidy, Commissioner of the Department of Water and Water Supply of the City of Albany, appeared before the Extraordinary Grand Jury pursuant to subpoena in an inquiry into the conduct of his official duties as such Commissioner. He refused to sign a waiver of immunity against subsequent criminal prosecution concerning such matters.

Article I, section 6, of the State Constitution 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 be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.’ It is to be noted that, unlike similar enactments compare, for example, section 903 of the New York City Charter there is no provision that a public officer who refuses to sign a waiver of immunity shall not be eligible to election or appointment to any other office. Accordingly, the only consequence of such refusal is removal from office by the appropriate authority or forfeiture of the office at the suit of the Attorney-General.

The Deputy Attorney-General in charge of the proceedings before the Extraordinary Grand Jury advised Hon. Frank S. Harris, the temporary Mayor of the City of Albany, by letter, that the provisions of article I, section 6, of the Constitution require that in such cases such public official ‘shall be removed from office by the appropriate authority.’ On the following day the Mayor acknowledged this letter and advised the special prosecutor that he had referred it to ‘our Corporation Counsel,’ who was the defendant James F. McGuiness.

Thereafter, on June 2, 1944, the Extra-ordinary Grand Jury returned an indictment charging the defendants Cassidy, Harris and McGuiness with conspiracy to commit acts for the perversion and obstruction of justice and of the due administration of the laws. Penal Law, Consol.Laws, c. 40, s 580, subd. 6. Others designated as conspirators but not as defendants were Andrew D. Kelly, Deputy Commissioner of Water and Water Supply, Lawrence J. Ehrhardt, City Comptroller, and John J. McManus, City Engineer, and persons unknown.

Perversion and obstruction of the due administration of the laws, as alleged in the indictment, is predicated upon refusal to comply with the constitutional mandate to remove the defendant Cassidy from office and upon his appointment to the office of Superintendent of Water Rent Delinquencies when he was known by the conspirators to be unfit and unqualified for appointment to a position of public trust and confidence. Perversion and obstruction of justice, as alleged in the indictment, is predicated upon obstructing and attempting to defeat and set at naught an action brought by the Attorney-General against Cassidy for judgment that he forfeit and vacate his office as Commissioner of the Department of Water and Water Supply, by creating a new office in the same department and with the same salary and procuring the appointment of Cassidy to that office. This indictment was dismissed at Special Term upon the ground, among others, that the evidence taken before the Grand Jury, if unexplained and uncontradicted, was not sufficient to warrant conviction by a trial jury. In the Appellate Division the order of dismissal was reversed, two of the justices dissenting and voting to affirm.

The question raised in People v. Prior, 294 N.Y. 405, 63 N.E.2d 8, decided this day, as to whether the Grand Jury which returned the indictment was legally constituted, was also raised in this case. Having held in the Prior case that the Grand Jury was validly constituted, we make similar disposition of the question here and proceed to the consideration of the defendant's contention that the evidence before the Grand Jury was not sufficient to sustain the indictment.

Following the reference of the special prosecutor's letter to the Mayor to the Corporation Counsel, the Corporation Counsel did nothing except to give out a statement to the press to the effect that he thought that the City of Albany and the officials thereof were abundantly capable of running the affairs of the City of Albany without assistance from outside sources. The Attorney-General's action was commenced on May 2, 1944. On May 22, 1944, the last day to answer the complaint, Cassidy served his answer denying that he was Commissioner, whereupon the Grand Jury commenced an investigation and later returned the indictment herein. The evidence upon which the indictment was found may be summarized as follows:

The defendant Harris, temporary Mayor of Albany, testified that, having learned from the Deputy Attorney-General's letter that Cassidy could not remain in office, he did not nothing except to turn over the letter to the defendant McGuiness and wait for the latter to tell him what he would have to do. McGuiness gave the Mayor no advice and Harris later learned that the Attorney-General had started a suit to remove Cassidy. He was present at the Board of Estimate and Apportionment when McGuiness introduced a resolution creating a new position ‘Superintendent of Walter Rent Delinquencies' effective May 15, 1944, at an annual salary of $5,000, which was unanimously adopted without discussion. The defendant McGuiness and also the City Comptroller Ehrhardt and the City Engineer McManus were present in addition to the defendant Harris, who was presiding. At this meeting it was resolved that the person appointed to the position should, under the direction of the Commissioner of Wester and Water Supply or his deputies, have the duty of compiling a list of delinquent water rents and rates and should formulate rates and methods and means of collecting the same. The witness testified that the problem of delinquent water rents had been discussed with Mayor Corning before he went into service leaving Harris in his office as acting Mayor. In justification of the creation of this position and the appointment of Cassidy, the Mayor testified that this was necessary for the safety of Albany; that it was essential to keep Mr. Cassidy in the City's service so as to have his advice and counsel in connection with the water supply; that no one understands every detail of this service as Mr. Cassidy does and that he thought it would be a dangerous thing to lose his services with the manpower shortage and the trouble they were having in all departments of the City. Harris frankly admitted that this job of Superintendent of Water Rent Delinquencies at $5,000 a year was created specially for Cassidy and that in fact it was a ‘tailor-made’ job for him, and that he, the acting Mayor, participated in the ‘subterfuge’ of keeping him in the City employ at the same salary.

Andrew V. Kelly, Deputy Commissioner of Water of the City of Albany, testified that he had been connected with the Water Department of the City of Albany for about twenty-two years and had been Deputy Commissioner for eight years; that he had recently appointed Cassidy as a Superintendent of a new department of Water Rent Delinquencies at a salary of $5,000 a year, his salary being only $3,600 and the second deputy's only $2,700, all other salaries in the department being less than that. He said he first heard that there was to be a new department shortly before giving his testimony, when he was called to the Mayor's office. The Mayor told him the department was to be formed and he gave him Cassidy's name and asked him to appoint him for that department. Cassidy being out of town, Kelly was acting Commissioner. He had little knowledge of the duties of the office and in making the appointment took his orders from his superior without discussion, understanding that upon accepting the order job Cassidy would go out as Commissioner.

John J. McManus, City Engineer, testified that there was some discussion of the new position and the appointment of Cassidy at a meeting of the Board of Estimate at which the defendants Harris and McGuiness and Ehrhardt, the City Comptroller, were present but said he did not know who was to be appointed.

The defendant Frank J. Cassidy, upon being called, signed a waiver of immunity and testified that he had been with the Water Department of the City of...