People v. Weiner, AP--17

• Decision Date: 19 January 1976
• Docket Number: AP--17
• Citation: 378 N.Y.S.2d 966,85 Misc.2d 161
• Parties: The PEOPLE of the State of New York v. Mark S. WEINER, Defendant. : Part
• Court: New York City Court

Page 966

378 N.Y.S.2d 966

85 Misc.2d 161

The PEOPLE of the State of New York v. Mark S. WEINER, Defendant.

Criminal Court of the City of New York, New York County:

Part AP--17.

Jan. 19, 1976.

Robert M. Morgenthau, Dist. Atty., New York County, for the people.

Murray Mayer, New York City, for defendant.

HOWARD E. GOLDFLUSS, Judge:

The issues presented to the court involve the balance between the rights of the United Nations as an international entity and the individual rights of a citizen of the United States.

The defendant, Mark Weiner, is charged with violation of 145.00 of the Penal Law, criminal mischief, in that on or about the fourteenth day of November, 1975 at about 3:10 A.M., he sprayed red paint on the outside wall of the United Nations headquarters, located at First Avenue and 43rd Street, in the County, City and State of New York. The complaint alleges, as required by the statute, that the defendant had no right to so act, nor any reasonable grounds to believe that he had such right.

The misdemeanor complaint is executed by Security Officer Gudmundur Sigurdsson, employed by and representing the United Nations. There is no question that the property alleged damaged by the acts of the defendant is owned by the United Nations.

Section 145.00 of the Penal Law concerns itself with the traditional concept of 'malicious mischief,' i.e., the 'intentional infliction of damage to the tangible property of another person without honest claim of privilege' (see Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 145.00).

Defendant, by this motion, moves to dismiss the instant complaint on the grounds that this court has no jurisdiction of the person of the defendant or of the subject matter. In the alternative, if the court finds it has jurisdiction, the defendant seeks to testify at the preliminary hearing and present evidence towards the issuance of a cross complaint charging the complainant Sigurdsson with assault and Quoting directly from the letter,

harassment. The United Nations has advised this court by letter dated January 8, 1976 that if the evidence caused such complaint to be issued, the prospective defendant, Sigurdsson, would claim immunity under the specific provisions of the Charter of the United Nations, Articles 104, 105, 59 Stat. 1053, and the 'Headquarters Agreement' of 1947 (61 U.S.Stat. 756) in which the United States and the United Nations established permanent headquarters in the United States, and other statutory authority.

'Mr. Sigurdsson is an official of the United Nations in the sense of section 17 of the Convention on the Privileges and Immunities of the United Nations and therefore enjoys the privileges and immunities specified in section 18 of the Convention. Of particular relevance is section 18 subdivision (a) which states that United Nations officials shall

'(a) be immune from legal process in respect of words spoken or written and all acts performed by them in an official capacity."

After referring to the fact that similar language appears in the International Immunities Act, Title 22 U.S.C.A. section 288, Public Law 291, 79th Congress, the letter states:

'It is therefore clear that being an officer and employee of the United Nations Secretariat, Mr. Sigurdsson enjoys immunity from suit and legal process regarding all acts performed by him in his official capacity as an officer in the Security Service of the Secretariat.'

Therefore the two issues of jurisdiction and immunity are presented to this court.

JURISDICTION

The United Nations is an organization created by an international agreement in 1945, to which the United States was a party (59 U.S.Stat. Part 2, p. 1035 et seq.). It was in effect a treaty entered into by the President of the United States pursuant to that specific power vested in him by Article II, section 2, subdivision 2 of the Constitution of the United States.

Thus the defendant takes the position that because the United Nations and/or its representative is the complainant in this case, and the fact that the property involved is internationally owned, the court does not have the jurisdiction nor is it empowered to hear this case.

In setting forth jurisdictional perimeters of the Criminal Court of the City of New York, the New York Criminal Court Act, Article 3 gives that court and its judges jurisdiction to hear, try, and determine all misdemeanors (except libel) and all offenses of a grade less than misdemeanor. Jurisdictional definition is repeated in the Criminal Procedure Law, Title B, Article 10, section 10.30, adding that the local The defendant opts for federal jurisdiction and relies upon Article III, section 2 of the Constitution of the United States, which provides as applicable to the issue here

criminal courts have preliminary jurisdiction of all offenses subject to divestiture by a superior court or a grand jury.

'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls.'

It would appear that after examining precedent, the defendant would be hard pressed to extend federal jurisdiction by way of the 'Headquarter's Agreement.' He would have to satisfy the 'arising under' concept;--that his situation arose directly from the 'Agreement' between the United States and the United Nations (see sec. 3562, Fed.Practice and Procedure, Wright). The test for federal jurisdiction is 'the federal nature of the right to be established * * * not the source of the authority to establish it' (see Gully v. First National City Bank, 299 U.S. 109, 114, 57 S.Ct. 96, 81 L.Ed. 70; and Buechold v. Ortiz, 9 Cir., 401 F.2d 371).

The international treaty known as the Headquarters Agreement confers certain powers on the United Nations, and since the United States is a party, its courts are bound to accept, enforce and protect such powers. The Constitution of the United States in clause 2 of Article VI makes this unmistakably clear.

'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and all Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'

Therefore this court is constrained to abide by the following pertinent sections of the Headquarters Agreement as contained in Article III, entitled 'Law and Authority in the Headquarters District' (61 U.S.Stat. 760).

Section 7, subdivision b--'Except as otherwise provided in this agreement or in the General Convention, the federal, state, and local law of the United States shall apply within the headquarters district'; and this is implemented in subdivision c by, 'the federal, state, and local courts of the United States shall have jurisdiction over acts done and transactions taking place in the headquarters district as provided in applicable federal, state and local laws.'

Finally, section 10 states (61 U.S.Stat. 761): 'The United Nations may expel or exclude persons from the headquarters district for violation of its regulations adopted under Section 8 or for other cause. Persons who This latter section makes available to the United Nations two options for infractions on the property of the Headquarters District. Either the United Nations may deal with the problem by simple expulsion or exclusion, or it may deem the problem more expeditiously handled by the 'appropriate American authorities.' This latter course of action in effect would strip the mantle and aura from the international body and cause the instant offense, for jurisdictional purposes, to be considered solely as a crime committed against property located in New York County.

violate such regulations shall be subject to other penalties or to detention under arrest only in accordance with the provisions of such laws or regulations as may be adopted by the appropriate American authorities.'

In this context, the court has received a letter from the legal counsel to the United Nations dated December 9, 1975, setting forth the official policy of the United Nations Headquarters as to criminal offenses.

He states in part:

'I am authorized to state that no regulati in the field of, or affecting the application of, criminal law has been adopted by the United Nations.'

and further,

'In this connexion (sic) it is important to observe that the United Nations has no criminal jurisdiction or tribunals under any law or treaty. Therefore if the court were to treat acts of a criminal nature committed within the Headquarters District as excluded from the jurisdiction of the federal, state or local courts of the United States, the consequence would be to create a jurisdictional vacuum in the sense that there would be no courts before which crimes could be tried. Such a situation would be to the advantage neither of the United Nations nor of the people of the State of New York.'

The treaty in no way deprives the United Nations or its representatives of a forum for legal redress, whether it be civil or criminal in nature. The proper forum is the criminal court for reasons stated heretofore. In addition thereto, in the absence of an objection from the Secretary-General of the United Nations, and in absence of any rules or regulations of the United Nations in conflict with the local law, the local law applies (see People v. Coumatos, 32 Misc.2d 1085, 224 N.Y.S.2d 507).

Included in this court's determination of jurisdiction in this case is the issue of the propriety of the District Attorney of New York County to prosecute this defendant. The question is raised by reason of the fact that the situs of the crime was United Nations property Section 700 of the County Law, in defining the...