People v. Leo

• Decision Date: 21 April 1978
• Citation: 407 N.Y.S.2d 941,95 Misc.2d 408
• Court: New York City Court
• Parties: The PEOPLE of the State of New York v. Edmund LEO, Defendant.

Page 941

407 N.Y.S.2d 941

95 Misc.2d 408

The PEOPLE of the State of New York v. Edmund LEO, Defendant.

Criminal Court of the City of New York, New York County, Part AP3.

April 21, 1978.

Herman Blitz, New York City, for defendant.

Gabrielle Rhodes, New York City, for plaintiff.

BETTY WEINBERG ELLERIN, Judge:

Defendant moves for dismissal of the complaint charging him with assault in the third degree (Penal Law § 120.00) and resisting arrest (Penal Law § 205.30) on the ground that he "is a person who has international diplomatic immunity and as such the court lacks jurisdiction".

The relevant facts underlying the charges arose on July 29, 1977, when defendant, who was then working at his office in the United Nations Building at about 10 P.M., received a telephone call from his wife advising him of the uninvited presence of complainant in their apartment and her refusal to leave despite requests that she do so. Defendant then left his office and returned home where a scuffle with complainant ensued resulting in the arrival of the police to place defendant under arrest for assault and his resistance to such arrest.

Defendant contends that a dismissal is mandated in this case because he is insulated from prosecution by the cloak of diplomatic immunity and, further, because this court lacks jurisdiction over the subject matter which, according to defendant, constitutes the commission of a federal crime by the complainant. In regard to the latter argument, it may be noted that defendant has pressed a cross-complaint against complainant in this court and has also made a formal complaint to the U.S. Attorney's office against her apparently under Title 18, Sect. 112 of the United States Code.

At the outset, it is essential to establish the precise status occupied by defendant in this country. It is uncontradicted that he is a Tanzanian national who is employed by the United Nations at its headquarters in New York in the capacity of Economic Affairs Officer, Economic Affairs Section, Centre for Natural Resources, Energy, and Transportation. While defendant is concededly sponsored for this position by the government of Tanzania, he holds no other diplomatic position on behalf of the government of Tanzania, has never been issued a diplomatic passport and he resides in the United States under a G4 visa which is issued to international civil servants. Thus, it is clear that defendant's status is solely that of an employee of the United Nations with whatever rights and immunities may inure to him by virtue of that position.

The controlling authorities are set forth in Article 105 of the United Nations Charter (59 Stat. 1053), of which the United States is a signatory, and in the International Organizations Immunities Act (22 U.S.C. 288d(b)) which was enacted in 1945 to implement the immunities provisions embodied in the United Nations Charter and was made applicable to that organization by Executive Order No. 9698 of February 19, 1946.

Article 105 of the United Nations Charter, provides that:

"1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

"2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities As are necessary for the independent exercise of their functions in connection with the Organization."

Section 288d, sub-paragraph (b) of Title 22 states that "Representatives of foreign governments in or to international organizations and officers and employees of such organization Shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their function as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned." (underscoring added)

The underscored language clearly delineates the perimeters of the immunity applicable to defendant, as an employee of the United Nations. It is limited in scope and purpose to protection for acts committed by United Nations officials in the course of accomplishing their functions as United Nations' employees in distinction to the unlimited form of immunity traditionally accorded to diplomats. (See U. S. v. Melekh, 190 F.Supp. 67 (S.D.N.Y. 1960); People v. Weiner, 85 Misc.2d 161, 378 N.Y.S.2d 966.)

While defendant asserts that the statutory immunity under Section 288d(b) applies in this instance because complainant did in fact obstruct him "in the performance of his duties", an analysis of the facts in this case, in the most liberal perspective possible, fails to demonstrate any basis whatsoever upon which to conclude that defendant was acting in his official capacity or that there was some reasonable relationship between the alleged altercation and defendant's United Nations employment. On the contrary, the acts underlying the charges took place away from defendant's office when he returned home in response to his...