People v. Karassik

• Decision Date: 24 June 1977
• Citation: 396 N.Y.S.2d 765,90 Misc.2d 839
• Parties: The PEOPLE of the State of New York v. Irwin KARASSIK, Defendant.
• Court: New York Supreme Court

Page 765

396 N.Y.S.2d 765

90 Misc.2d 839

The PEOPLE of the State of New York v. Irwin KARASSIK, Defendant.

Supreme Court, Trial Term, Bronx County, Part XXVIII.

June 24, 1977.

Russo & Dubin, New York City, for defendant; Stephen A. Russo, Bennett Gershman, New York City, of counsel.

Charles J. Hynes, Deputy Atty. Gen., State of N. Y., New York City, for plaintiff; Edward J. Kuriansky, Alain M. Bourgeois, Kenneth F. McCallion, New York City, of counsel.

LAWRENCE J. TONETTI, Justice:

The defendant, an attorney, indicted for criminal solicitation in the second degree, brings this motion for omnibus relief. This court having read the grand jury minutes and listened to recorded conversations determines this motion as hereinafter indicated.

The Facts

During the course of the investigation into the nursing home industry in Bronx County the Special Prosecutor developed incriminating information concerning the nursing home operator Chaim Zelmanowicz. Mr. Zelmanowicz, in an effort to minimize his own potential liability and that of his wife, agreed to cooperate with the Special Prosecutor by offering information. Zelmanowicz maintained that in the course of the establishment of the Split Rock Home between 1967 and 1969, Mr. Karassik, then his attorney, solicited and received $5,000 in cash from Zelmanowicz. The representation made was that the money would be used in order to expedite approval for the application then pending before the Health and Hospital Planning Council of Southern New York, Inc.

As prosecution of this alleged bribe would be time barred unless extended by the involvement of a public official (CPL 30.10(3)(b)), the Special Prosecutor determined to see if this type of situation was still existent. To this effect Zelmanowicz was wired and a meeting arranged with the defendant. At this meeting Zelmanowicz maintained that he wanted to extend his nursing home facilities and asked the defendant if the same arrangements could be made as had transpired in the past. Although the defendant makes some statements which may be construed as tacit admissions of the 1967 bribe he is unequivocal in telling Zelmanowicz that no possibility exists for any present dealings of this nature and that all nursing home determinations were now based on bed need.

At this point the Special Prosecutor knew that the original transaction was time barred, as to the defendant, and that Karassik had ruled out any potential future arrangements. He did not know, however, if the involvement of a public servant would extend the period for a prosecution. Rather than subpoena Karassik under immunity, however, he chose to send Zelmanowicz back to Karassik's office.

On this instance Zelmanowicz was provided with a subpoena duces tecum commanding him to appear the following day with the records for the establishment of the Split Rock Nursing Home. While it is true that Zelmanowicz was under investigation by the grand jury and thus subject to subpoena, in fact, he was a cooperating witness and the subpoena was a subterfuge used to create the impression that he was being compelled to testify and needed immediate legal advice. During the meeting Karassik allegedly tells Zelmanowicz not to mention the $5000 during his grand jury appearance. The criminal solicitation is allegedly this importuning of perjury in the first degree before the grand jury. It must further be noted that at this meeting Zelmanowicz asked Karassik to whom the money was paid and was told not to ask.

I. SUFFICIENCY OF ENABLING LETTERS

The defendant challenges the authority of the Special Prosecutor alleging that the enabling letters of the Commissioner of Health and Social Services lacked the requisite specificity to trigger the grant of authority by the Attorney General. This court feels, however, that this issue was resolved by the Appellate Division in L & S Hospital and Institutional Supplies Co., Inc. v. Hynes, 51 A.D.2d 515, 378 N.Y.S.2d 78. The Court there stated "The deputy attorney general has authority to appear before the grand jury (Steinman v. Nadjari, 49 A.D.2d 456, 375 N.Y.S.2d 622) and to issue subpoenas on its behalf (People v. Tomasello, 21 N.Y.2d 143, 287 N.Y.S.2d 1, 234 N.E.2d 190 * * * ).

The powers conferred on the Attorney General's office by subdivision 3 of section 63 of the Executive Law were properly activated by the request from the State Commission of Health and of Social Services. " (L & S Hospital, supra, p. 515, 378 N.Y.S.2d p. 79).

In an analogous case, dealing with Executive Law section 63(8) the Court of Appeals also approved the enabling letters (Matter of Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518).

II. JURISDICTION OVER THIS OFFENSE

The jurisdictional basis for the instant indictment derives from the Executive Law section 63(3). This section states that the Attorney General shall:

"Upon request of * * * the head of any * * * department, authority, division or agency of the state, investigate the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department, and to prosecute the person or persons believed to have committed the same and any crime or offense arising out of such investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury."

Pursuant to letters requesting an investigation submitted by the Commissioners of Health and Social Services, the Attorney General, in a letter dated January 10, 1975, specifically delegated to the Special Prosecutor the "authority to perform as my Deputy any and all functions and to exercise any and all powers conferred upon the Attorney General." Thus, the sum of the Special Prosecutor's powers entail investigation and prosecution of indictable offenses in the Nursing Home industry and any offenses arising from such investigation. What constitutes offenses in the Nursing Home industry can be further defined by reference to the activating letters of the Commissioners as "offenses in violation of the Public Health Law or in relation to any matter connected with the New York State Department of Health" and "offenses in violation of the Social Services Law or in relation to any matters connected with the New York State Department of Social Services" (see letters, both dated December 19, 1974, from the Commissioners of Health and Social Services to Attorney General Lefkowitz).

The investigation of Karassik commenced with the information provided by Zelmanowicz that $5,000. had been used to expedite approval of a nursing home establishment. The investigation of this type of activity is clearly within the purview of the Special Prosecutor grant of authority. He was charged with the investigation and prosecution of any offenses in violation of the Public Health Law or in relation to the State Health Department. One of the principal tasks of the Department of Health, and its subordinate bodies, the Public Health Council and the State and Regional Planning Council, is to supervise the approval of health facilities (see Public Health Law, Sections 2801-a et seq.). As such is the case, an investigation of the proprieties of the approval of a facility is without doubt a matter connected with the New York State Department of Health and thus a valid subject for investigation by the nursing home prosecutor.

At the time Zelmanowicz's information came to the attention of the Special Prosecutor it was apparent that the Statute of Limitations would bar an indictment against either Karassik or Zelmanowicz. This fact, however, does not preclude a continuation of the investigation for two reasons. First, the investigation could lead to evidence of more current similar conduct which could be the subject of an indictment (U. S. v. Cohn, (2 Cir.), 452 F.2d 881). Second, although a valid indictment could not be returned against Zelmanowicz or Karassik, it was evident that if the alleged bribe was passed on to a public servant he might still be subject to criminal liability (CPL 30.10(3)(b)). The fact that the Criminal Procedure Law, incorporating the above section, was enacted subsequent to the alleged misconduct would not be of consequence as the Legislature may extend the applicable period at anytime before it vests (Peo. v. Pfitzmayer, 72 Misc.2d 739, 340 N.Y.S.2d 85; Peo. v. Glowa, 87 Misc.2d 471, 384 N.Y.S.2d 673).

The first time Zelmanowicz was sent to Karassik's office the Special Prosecutor's principal motivation was to determine if the conduct which Zelmanowicz had related was continuing. To accomplish this end, a scheme was devised whereby Zelmanowicz would offer money to obtain an expansion of the facilities at one of his homes. This plan was rejected by Karassik who unequivocally stated that nursing home extensions were now based solely on bed need. There are, however, tacit admissions of the original transfer of $5,000. contained within the recorded conversation.

The second visit to Karassik's office is more difficult to justify. At this point the Special Prosecutor knew that he could not prosecute Karassik for the original alleged bribery and that any future criminality in this area had been ruled out by Karassik himself. However, the Special Prosecutor still had a legitimate interest in determining the possible involvement of a public servant who could be prosecuted. Also, it must be remembered that the Special Prosecutor's jurisdiction extends to crimes arising out of his investigation (Executive Law (63(3)). Here, as there was a valid reason for investigating the alleged bribery, if Karassik's actions can be construed as an attempt to impede that investigation then the Special Prosecutor would have jurisdiction to prosecute that attempt as a crime arising from his investigation. While this court may question the Special Prosecutor's sense of priorities...