People v. Ohrenstein

• Citation: 77 N.Y.2d 38,563 N.Y.S.2d 744,565 N.E.2d 493
• Parties: , 565 N.E.2d 493 The PEOPLE of the State of New York, Appellant, v. Manfred OHRENSTEIN, Howard Babbush, Francis Sanzillo and Joseph Montalto, Respondents. In the Matter of Manfred OHRENSTEIN et al., Respondents-Appellants, v. Robert M. MORGENTHAU, as District Attorney, New York County, et al., Appellants-Respondents.
• Decision Date: 27 November 1990
• Court: New York Court of Appeals

Page 744

563 N.Y.S.2d 744

77 N.Y.2d 38, 565 N.E.2d 493

The PEOPLE of the State of New York, Appellant, v. Manfred OHRENSTEIN, Howard Babbush, Francis Sanzillo and Joseph Montalto, Respondents.

In the Matter of Manfred OHRENSTEIN et al., Respondents-Appellants, v. Robert M. MORGENTHAU, as District Attorney, New York County,

et al., Appellants-Respondents.

Court of Appeals of New York.

Nov. 27, 1990.

[77 N.Y.2d 40] [565 N.E.2d 494] Robert M. Morgenthau, Dist. Atty. (Michael G. Cherkasky, Mark Dwyer, Daniel J. Castleman and Joseph J. Dawson, of counsel), for appellant in the first above-entitled action and for Robert M. Morgenthau, pro se, and others, appellants-respondents in the second above-entitled proceeding.

[77 N.Y.2d 41] Jack S. Hoffinger, Martin B. Adelman, James A. Pascarella, Leon B. Polsky, Mark W. Geisler, Stephen L. Weiner and Barry Bohrer, for respondents in the first above-entitled action and respondents-appellants in the second above-entitled proceeding.

[77 N.Y.2d 42] Edward N. Costikyan, Steven E. Landers, Robert Ernst, Paul J. Curran and Thomas F. Ford, for New York State Legislature, amicus curiae.

Arthur Eisenberg and Michael Arthur Simon, for the New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

The primary question on this appeal is whether the Minority Leader of the State Senate may be prosecuted criminally for having assigned employees of his Senate staff, largely during the year 1986, to work on political campaigns for members of his party seeking election or reelection to the Senate. The case also presents the question whether defendants may be prosecuted criminally for having placed on the Senate payroll, during that same period, "no-show" employees--persons who did no work and were not expected to do anything to earn their salaries.

The trial court dismissed hundreds of counts relating to the use of Senate staff employees in political campaigns, and the Appellate Division precluded the prosecutor from proceeding on the remaining counts in that category. However, both courts sustained the counts relating to the "no-show" employees. The prosecutor and the defendants have cross-appealed. We now affirm, emphasizing that we are not dealing here with a civil action to enjoin the expenditure of funds or to recover funds already expended. Nor do we condone the challenged expenditures. Our focus is solely on whether defendants' acts subjected them to criminal prosecution under the circumstances of this case.

I. The Facts

The facts are thoroughly set forth in the opinions of the courts below and need only be summarized briefly here.

The defendant Manfred Ohrenstein is a Democratic Senator and the Minority Leader of the State Senate. The indictment alleges that in 1986 he conspired with his chief of staff, defendant Francis Sanzillo, and Senator Howard Babbush to use Senate employees from their staffs in seven campaigns for the Senate in which the incumbents were considered vulnerable. In two of the campaigns Democratic Senators were seeking reelection; in the others Democratic candidates challenged Republican incumbents.

Defendant Joseph Montalto, who was attempting to regain his Senate seat, was allegedly one of the beneficiaries of this plan and actively sought the assistance. Senator Babbush allegedly contributed one campaign worker from his staff, but most of the employees involved were supplied by Senator Ohrenstein from his staff or commissions containing his appointees. The trial court found that these employees fell into three categories. Some were regular legislative aides who were temporarily assigned to work on the campaigns (Category 1). Others were hired for the campaigns and retained afterwards (Category 2) or let go when the campaigns were over (Category 3). These employees received regular salaries biweekly from the Senate payroll. In each instance the Senator or his designee certified that the employee was on the Senate staff and had performed "proper duties" during the relevant period. If the campaign efforts had been wholly successful, it is likely that the Democrats would have obtained a majority in the Senate and that Senator Ohrenstein would have become the Majority Leader. But the efforts did not succeed entirely; in all seven of the targeted campaigns the incumbents, including the two Democratic incumbents, were reelected.

In 1988, the defendants and others were indicted by a Manhattan Grand Jury. The indictment contains 665 counts charging the defendants, individually or in various combinations, with felonies and misdemeanors generally related to theft allegedly committed between 1981 and 1986. The bulk of the charges concern the use of Senate staff in political campaigns and most of these charges relate to the 1986 election. The defendants were also charged with placing four persons on the payroll who performed no services of any kind. It is alleged that the defendants knew that these employees did nothing and, in fact, had no duties but that the Senators or their designees nevertheless certified that the employees had performed "proper duties."

The defendants moved to dismiss the entire indictment on a variety of grounds. They argued that Senators and Senate employees may legitimately engage in political activities and that no statute, rule or regulation declared it an improper practice or a crime for a Senator to use staff members in political campaigns. Alternatively, they contended that they were denied due process because the law did not provide fair notice that the acts were prohibited. They claimed legislative immunity under the Speech or Debate Clause of the State Constitution, and further urged that the attempt by the prosecutor to define or limit the proper duties of legislative assistants constituted an unconstitutional intrusion by the executive branch of government into the Legislature's affairs in violation of the separation of powers doctrine. They also contended that there were defects in the Grand Jury proceeding and asserted other grounds for dismissal.

The trial court granted the motion in part. The court dismissed all those counts relating to Senate employees who participated in political campaigns but who also performed other assignments while on the Senate payroll (Categories 1 and 2). The court held that prosecution of these counts was prohibited by the separation of powers doctrine and the legislative immunity provided by the State Constitution. But the court denied the motion with respect to those counts alleging that certain Senate aides worked exclusively on political campaigns (Category 3), as well as those counts relating to the "no-show" employees.

The prosecutor appealed to the Appellate Division with respect to the dismissed counts. The defendants applied to the Appellate Division to prohibit trial of the counts which had not been dismissed, claiming primarily that the indictment constituted an unwarranted intrusion by the executive into legislative affairs and that legislative immunity was applicable.

The Appellate Division affirmed on the prosecutor's appeal. On the defendants' prohibition application the court concluded that prosecution of the remaining counts relating to the campaign workers (Category 3) was also precluded by separation of powers concerns and legislative immunity. The court additionally found that the law did not give the defendants fair warning that this was criminally prohibited as is required by due process. Finally, the Appellate Division agreed with the trial court that the prosecution could proceed on the counts relating to the "no-show" employees. As noted, both sides have appealed to our Court.

II. The Campaign Worker Counts

On the prosecutor's appeal to our Court, it is urged that all counts relating to use of staff employees by these defendants for campaign work should be restored and that there is no constitutional impediment to prosecution. However, there is a threshold question as to whether the acts alleged were subject to criminal prosecution. We have concluded that they were not and therefore find it unnecessary to reach the constitutional questions with respect to these counts.

The indictment charges the defendants with violating various generic sections of the Penal Law dealing with theft, but all of the charges relating to the campaign workers rest on a single prosecutorial premise: political campaign activities were not a "proper duty" of a legislative staff member. Based on this premise the defendants are charged with filing false instruments (Penal Law § 175.35) for certifying that members of the staff active in political campaigns performed "proper duties," and are further charged with committing larceny by false pretenses (Penal Law former §§ 155.35, 155.40) for inducing the State to pay the salaries in reliance on the allegedly false statements. The defendants are also charged with theft of services (Penal Law § 165.15[9] on the theory that legislative employees assigned to campaign work have been diverted from their "proper duties". Counts charging the defendants with engaging in a conspiracy (Penal Law § 105.05) and a scheme to defraud the government (Penal Law § 195.20) rest on the same premise.

It is important to emphasize that we are not dealing here with broad policy and ethics questions concerning the propriety of permitting State employees generally to participate in political campaign activities. This case focuses narrowly on alleged criminal activities of legislative employees who are unique in several respects because of the nature of the Legislature's function.

Under the State Constitution, the Legislature alone has the power to authorize expenditures from the State treasury, and to "regulate and fix the wages or salaries and the hours of work or labor * * * of persons employed by the state" (N.Y. Const., art. XIII, § 14). The Legislative Law delegates to the Minority Leader the power to "appoint such...