People v. Harris

• Decision Date: 07 March 1945
• Citation: 268 A.D. 731,54 N.Y.S.2d 161
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. FRANK S. HARRIS, JAMES J. MCGUINESS and FRANK J. CASSIDY, Respondents.
• Court: New York Supreme Court

268 A.D. 731

54 N.Y.S.2d 161

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. FRANK S. HARRIS, JAMES J. MCGUINESS and FRANK J. CASSIDY, Respondents.

Supreme Court of New York, Third Department.

March 7, 1945

APPEAL from an order of a Special Term of the Supreme Court (MURRAY J.), entered October 16, 1944, in Albany County which (1) quashed and set aside an indictment filed June 2 1944, at an Extraordinary Term of the Supreme Court held in Albany County charging defendants with the crime of conspiracy, (2) dismissed the action, (3) discharged the defendants from custody, and (4) exonerated the bail of the defendant Frank J. Cassidy.

COUNSEL

Nathaniel L. Goldstein, Attorney-General (George P. Monaghan, Deputy Attorney-General in charge of Albany Investigation, Stanley H. Fuld, Special Assistant Attorney-General, Harris B. Steinberg, Herbert Stern and A. Cuyler Ten Eyck, Jr., Deputy Attorneys-General, of counsel), for appellant.

Robert E. Whalen, attorney (George Myers and M. Michel Dobris of counsel), for respondents.

BREWSTER, J.

One of the grounds upon which the indictment in this cause has been set aside by the court below is that the evidence presented to the Grand Jury which found it is insufficient, though unexplained or uncontradicted, to warrant a conviction of the crime charged. A review of the order appealed from, as made upon such ground, requires a review of the evidence. It has been disclosed by an order granted at Special Term for the inspection of the Grand Jury minutes. It may be recapitulated as follows: On April 27, 1944, the defendant Cassidy had held the office of Commissioner of the Department of Water and Water Supply in the City of Albany for about eight years, and in that department he had been employed for nearly twenty-two years. On said day he was duly summoned before a Grand Jury sitting in connection with an Extraordinary Term of the Supreme Court holden in said city and duly appointed by order and direction of the Governor of the State. He was thus called to testify concerning the conduct of his office and the performance of his official duties and, upon being requested to sign a waiver of immunity against subsequent criminal prosecution on account of any matter or thing concerning which he might be called upon to testify or produce evidence, he declined to do so. Thereupon he was not sworn as a witness but was excused from further attendance. Later that day a Deputy Attorney-General in charge of the Grand Jury's investigation, by letter, informed the defendant Harris, as Acting Mayor of the City of Albany, of Cassidy's refusal to execute the waiver and directed attention to the pertinent constitutional provision, which is as follows '* * * 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.' (State Const., art. I, § 6.) To this notification the Acting Mayor replied the following day advising that he had referred the matter to the Corporation Counsel of the City, defendant McGuiness. The Acting Mayor's letter bears an Albany postmark of 7:00 P.M. of said day, which was a Friday, and it appears to have been received by the Deputy Attorney-General on the following Monday, May 1st. On the latter day the summons in an action against said Cassidy was dated in a suit by the Attorney-General commenced for the forfeiture of his office, the complaint therein having been verified the day following, or May 2, 1944. On the twelfth day following, the Board of Estimate and Apportionment of the City of Albany met and, following prior conferences upon the subject which had taken place between the Corporation Counsel and the other members present at said meeting, the former offered a resolution which was unanimously adopted by all present, the terms and effect whereof were to create a new office or position in the Department of Water and Water Supply of said city, effective as of May 15, 1944, viz., Superintendent of Water Rent Delinquencies, and it fixed the salary of said position and generally defined its duties, the creation or establishment of which was authorized by law. (Second Class Cities Law, § § 16, 74, 95; Local Laws, 1935, No. 2 of City of Albany.) There is evidence that this was in culmination of a plan which had been discussed and advocated by the Mayor of the City and other officials over a period of some two years. A day or two thereafter and after consulting with the defendant McGuiness as Corporation Counsel, the Acting Mayor determined to bring about the appointment of the defendant Cassidy to the new position. This, the evidence is, was accomplished in the following manner: On May 19th, and while the defendant Cassidy was absent from the City and County of Albany on a brief visit to New York City, one Andrew V. Kelly, Deputy Commissioner of Water and Water Supply, after being advised by the Acting Mayor of his wishes, and being authorized so to do by section 5 of Local Law No. 2, 1935, of the City of Albany, made the appointment, and the following day upon Cassidy's return to the City of Albany he accepted and qualified in said new position, and in doing so, by virtue of section 19 of the Second Class Cities Law, he thereupon vacated his former office of Commissioner of Water and Water Supply. Two days later Cassidy answered in the Attorney-General's forfeiture suit and, among other things, denied that he held the office, the forfeiture of which was sued for. On July 20, 1944, on motion of Cassidy's counsel, the Attorney-General's suit against him was dismissed at an Albany Special Term. It was substantially upon such evidence that the defendants have been charged with a criminal conspiracy to commit acts ' for the perversion or obstruction of justice, or of the due administration of the laws,' in violation of subdivision 6 of section 580 of the Penal Law. It is for us to determine whether this evidence, together with all reasonable inferences which may be drawn therefrom, is sufficient in law to support defendants' conviction of the crime charged.

When defendant Cassidy refused to execute the waiver of immunity upon being called to testify, it is plain that he then incurred liability to removal from his office by 'appropriate authority' and, in the alternative to its loss by forfeiture at the suit of the Attorney-General. What concept or form of 'justice' and what 'due administration of the laws' was it, then, and from then on, we may ask, which was susceptible of perversion or obstruction? Here the indictment makes answer, viz., the effectuation of the constitutional provision by Cassidy's removal from office by the defendant Harris who, as Acting Mayor, had power to remove him at his pleasure (Local Laws, 1935, No. 2 of City of Albany, § 4), and the continuance to judgment of the suit for forfeiture commenced by the Attorney-General.

The constitutional provision above cited has a purpose beyond that of the mere imposition of liability to the penalty it prescribes. Paramount is the objective of facilitating a grand jury inquiry into the affairs of public office and official conduct. Without the testimony of the officer himself the investigation could ofttimes be hampered or rendered ineffectual. Since such a witness' reliance upon constitutional rights and privileges could bar recourse to such assistance, and other legal guaranties give him immunity from prosecution, the liability to the penalty of loss of office has been prescribed in the given...