People v. Leo, AP-3

• Decision Date: 18 October 1979
• Docket Number: AP-3
• Citation: 103 Misc.2d 320,425 N.Y.S.2d 709
• Parties: The PEOPLE of the State of New York v. Edmund LEO, Defendant
• Court: New York City Court

Page 709

425 N.Y.S.2d 709

103 Misc.2d 320

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

Criminal Court of the City of New York, New York County, Part AP-3.

Oct. 18, 1979.

Robert M. Morgenthau, Dist. Atty., New York County (Diane Siegal, of counsel), for the People.

Herman Blitz, New York City, for defendant.

SOLOFF, Judge:

Two attempts to assert diplomatic immunity having proved unavailing, defendant moves for the third time to dismiss an information charging him with assault in the third degree (Penal Law § 120.00) and resisting arrest (Penal Law § 205.30). See People v. Leo, 95 Misc.2d 408, 407 N.Y.S.2d 941, rearg. den. Jan. 24, 1979 (Ellerin, J.).

This most recent assertion of immunity from prosecution is based on the position of defendant's wife as an economic adviser with the Permanent Mission of Equatorial Guinea to the United Nations. Defendant claims that his wife's position entitled her to full diplomatic immunity and that he thereby enjoys such immunity derivatively. Defendant acknowledges that his wife has not been issued credentials by the United States as a person entitled to diplomatic immunity but asserts that such acceptance is a mere ministerial act which the United States is bound by treaty and statute to perform. He contends that Mrs. Leo became entitled to full diplomatic immunity at the time she was certified by Equatorial Guinea. However, defendant is not entitled to immunity by operation of law or as a matter of fact. Accordingly, this latest motion is denied.

The status of permanent representatives to the United Nations is governed principally by the Charter of the United Nations, in particular Article 105, paragraph 2 (59 Stat. 1031, 1053) and by the Headquarters Agreement between the United States and the United Nations (22 U.S.C. § 287).

Article 105 of the United Nations Charter provides, essentially, that representatives of member nations in the territory of other member nations are to enjoy only "such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization" (U.N. Charter, Article 105, par. 2). ¹ It has already been established that defendant was not furthering any function of his own when he allegedly committed the acts with which he is charged (People v. Leo, supra). He does not even claim to have been furthering any function of his wife's.

More pertinent to defendant's present claim is the Headquarters Agreement between the United States and the United Nations. Section 15 provides:

ARTICLE V RESIDENT REPRESENTATIVES TO THE UNITED NATIONS

Section 15

(1) Every person designated by a Member as the principal resident representative to the United Nations of such Member or as a resident representative with the rank of ambassador or minister plenipotentiary,

(2) such resident members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the Member concerned,

(3) every person designated by a Member of a specialized agency, as defined in Article 57, paragraph 2, of the Charter, as its principal resident representative, with the rank of ambassador or minister plenipotentiary, at the headquarters of such agency in the United States, and

(4) such other principal resident representatives of members to a specialized agency and such resident members of the staffs of representatives to a specialized agency as may be agreed upon between the principal executive officer of the specialized agency, the Government of the United States and the Government of the Member concerned, shall, whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it. In the case of Members whose governments are not recognized by the United States, such privileges and immunities need be extended to such representatives, or persons on the staff of such representatives, only within the headquarters district, at their residences and offices outside the district, in transit between the district and such residences and offices, and in transit on official business to or from foreign countries.

Defendant suggests that the Vienna Convention on Diplomatic Relations (23 UST 3227) and the Diplomatic Relations Act (22 U.S.C. § 254a) supersede the Charter and the Headquarters Agreement, with the result that Mrs. Leo became entitled to full immunity from the time she was certified by the government of Equatorial Guinea. Neither the Charter nor the Headquarters Agreement has been repudiated or repealed, and defendant cannot act as if they do not exist. The status of representatives to the United Nations continues to be governed by the Charter and Agreement (United States ex rel. Casanova v. Fitzpatrick, 214 F.Supp. 425, 441 (S.D.N.Y.1963)). Only after entitlement to diplomatic immunity is established do the Vienna Convention and the Diplomatic Relations Act become relevant. Their relevance lies in the fact that they define the scope of diplomatic immunity otherwise accorded. They do not supersede prior applicable law. ²

Defendant also suggests that since the certification of his wife by the Government of Equatorial Guinea describes her as a "diplomatic agent," the Vienna Convention immediately applies. The fact remains that she is certified to the United Nations and not to the United States. Accordingly, she must...