People v. Ohrenstein
| Decision Date | 21 December 1989 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Manfred OHRENSTEIN, Howard Babbush, Francis Sanzillo and Joseph Montalto, Defendants-Respondents. In re Application of Manfred OHRENSTEIN, et al., Petitioners, for an order, etc., v. Honorable Robert M. MORGENTHAU, etc., et al., Respondents. New York State Assembly, New York State Senate, and New York Civil Liberties Union, Amici Curiae. |
| Court | New York Supreme Court — Appellate Division |
Michael G. Cherkasky, of counsel (Mark Dwyer, Daniel J. Castleman, Joseph J. Dawson, New York City, Mary C. Farrington, New York City, and Morrie I. Kleinbart, with him on the briefs; Robert M. Morgenthau, Dist. Atty., New York City, attorney), for appellant on the appeal and for respondent Morgenthau in the Article 78 Proceeding.
Jack S. Hoffinger, of counsel (Leon B. Polsky, Stephen L. Weiner and Mark W. Geisler, with him on the briefs; Hoffinger Friedland Dobrish Bernfeld & Hasen, New York City, attorneys), for Manfred Ohrenstein.
Otto G. Obermaier, of counsel (Obermaier, Morvillo & Abramowitz, P.C., New York City, attorneys), for Francis Sanzillo.
Martin B. Adelman, P.C., New York City, for Joseph Montalto.
Pascarella, DeVito, Clarey & Plutzer, for Howard Babbush.
Edward N. Costikyan, of counsel (Steven E. Landers and Robert Ernst, with him on the brief; Paul, Weiss, Rifkind, Wharton & Garrison, New York City, attorneys), for New York State Assembly, as amicus curiae.
Paul J. Curran, of counsel (Jane W. Parver and Thomas F. Ford, with him on the brief; Kaye, Scholer, Fierman, Hays & Handler, New York City, attorneys), for New York State Senate, as amicus curiae.
Arthur Eisenberg, New York City, for New York Civil Liberties Union, as amicus curiae.
Before MURPHY, P.J., and SULLIVAN, ELLERIN and RUBIN, JJ.
The People appeal from an order of Justice Harold Rothwax, Supreme Court, New York County, dated June 15, 1988, 139 Misc.2d 909, 531 N.Y.S.2d 942, which dismissed 265 of the substantive counts, and struck certain language and 89 overt acts from the conspiracy count, from an indictment charging the various defendants with a total of 665 counts. The defendants against whom the appeal is taken are Senator Manfred Ohrenstein, the Minority Leader of the New York State Senate, his Chief of Staff, Francis Sanzillo, Howard Babbush, a State Senator from Brooklyn and Joseph Montalto, a former State Senator from that borough. In a second order, dated July 27, 1988, Justice Rothwax upheld the balance of the indictment. In what is essentially a cross-appeal, defendants seek relief pursuant to CPLR Article 78, in the nature of mandamus and prohibition. The petition seeks to prevent the District Attorney of New York County from prosecuting and Justice Harold Rothwax from trying the defendants under that indictment which variously charges them with conspiracy, grand larceny, and offering false instruments for filing.
The indictment is based upon the premise that utilization of legislative aides in State Senatorial campaigns prior to 1987 constituted an impermissible use of State employees and that payments of salaries out of the legislative budget for services rendered by such aides in political campaigns constituted violations of general Penal Law provisions relating to theft, fraud and filing of a false instrument. Defendants challenge the applicability of these penal statutes to legislative campaigning. They assert that this prosecution impermissibly intrudes into constitutionally protected areas affecting the separation of powers and responsibilities among the three co-ordinate branches of the State government and violates the constitutional privileges of the Legislature and its members under the Speech or Debate Clause. Arguments are also raised regarding the lack of clarity and certainty on the issues underlying this prosecution which implicate due process considerations of "notice".
Contrary to the position taken by the People and the dissent, we find that Article 78 relief is available to defendants in this case. Prohibition is allowed when a court acts "without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction." (Matter of Steingut v. Gold, 42 N.Y.2d 311, 315, 397 N.Y.S.2d 765, 366 N.E.2d 854; also see, Matter of Carey v. Kitson, 93 A.D.2d 50, 461 N.Y.S.2d 876, lv. to app. den. 60 N.Y.2d 553, 467 N.Y.S.2d 1028, 454 N.E.2d 1317.) Where one branch of government oversteps another coordinate branch's functions, a writ of prohibition may be issued. (See, Matter of Vergari v. Walsh, 90 A.D.2d 801, 455 N.Y.S.2d 673.) Moreover, an Article 78 proceeding is generally proper to determine whether a statute has been applied in an unconstitutional manner (Matter of Kovarsky v. Housing & Development Administration, 31 N.Y.2d 184, 191, 335 N.Y.S.2d 383, 286 N.E.2d 882). In this case where there are issues of separation of powers concerning whether a coordinate branch of government exceeded its authorization, and issues raised as to constitutional violations in the application of various criminal statutes, we conclude that this Article 78 proceeding is an appropriate vehicle for seeking relief.
The charges are predicated on allegations that prior to the November 1986 general election, by reason of attempts by New York State Senate Minority Leader Manfred Ohrenstein to secure a Democratic majority in the Senate 1, there existed a conspiracy among the various defendants and others to commit the felonies of Grand Larceny and Offering a False Instrument for Filing by using legislative employees paid from the Senate budget to work on election campaigns on behalf of various Democratic candidates while performing either no legislative duties or only some legislative duties. The various substantive charges are based on allegations that the defendants falsely certified that these employees had performed legislative duties entitling them to receive salaries when, in fact, no such services were performed.
To place these charges in perspective a brief description of the way in which the State Senate operates is helpful.
The New York State Senate, in Albany, is presided over by the Majority Leader who is a Senator from the party which holds the majority of the seats in that Body and who sets the legislative agenda and controls the legislative commissions. In 1986, the Majority Leader was a Republican chosen from among the thirty five (35) Senators from that party. The Minority Leader selected from among the twenty-six (26) Democratic members was Senator Ohrenstein, who had held that position since the early 1970s. Regular legislative sessions are held from January to June, and at times a Special Session near the end of the year. A Senator's working times are erratic, with hours varying according to whether it is the early or latter part of the session. In the early days of the session, activity is relatively slow and Senators may not spend a full week in Albany. In March, extensive activity takes place relating to the budget due to time constraints. 2 During the final days of the session, Senators and their staffs will often work endless hours and throughout the night with respect to the enactment of legislation.
The Senate budget, which is distributed along party lines, is negotiated between the Minority and Majority Leaders. The Minority leader then allocates funds to each of the Senators from his party to be used to meet office and administrative expenses including staff salaries and mailing costs. Within the budget he or she has been allocated, each Senator determines the titles, salaries, working hours and vacation time of that Senator's employees.
A Senator who is assigned to a commission is entitled to additional staff. The appointment of minority Senators to such commissions is made by the Minority Leader, and his office is also responsible for hiring minority staff employees for the commissions and designating their titles. Francis Sanzillo, who had been Senator Ohrenstein's Chief of Staff since 1984 was the person charged with reviewing and approving the hiring of these employees from that time on, subject to Senator Ohrenstein's approval.
Although the Senate has no uniform policy regarding job descriptions or working hours, which are left to the individual Senator, there are procedures for placing a person on the payroll. A person may be employed for a session, or for the year, and it is not uncommon for employees hired on a session basis to change payrolls from one session to the next. At the beginning of every session each Senator must file a form entitled "Recommendation for Employment" for each member of his staff. This form, signed by the Senator, indicates the employee's name and title and upon its submission to the Senate personnel office the person is placed on the payroll. For those employees to be paid, the Senator must submit to the Senate payroll office bi-weekly payroll certification forms. These forms include a payroll list specifying the employees on the Senator's staff with their titles, bi-weekly salary amounts and whether the particular employee was hired on a session or annual basis. The payroll list concludes with the certification that the person in the position specified performed the duties of that position. 3 The Senator may assign a member of his staff to sign the certification forms so long as the Senator signs at least one certification quarterly.
For minority staff employees on commission payrolls, the Minority Leader or his representative, in this case Sanzillo, prepares the certifications which are sent to the commission chairperson, a Senator of the majority party. The commission chairperson transmits these certifications to the Senate payroll office. The payroll office prepares a master payroll of all Senate employees which is submitted to the State...
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