Sarisohn v. Appellate Division of Supreme Court, Second Judicial Dept.

• Decision Date: 07 December 1967
• Citation: 286 N.Y.S.2d 255,21 N.Y.2d 36,233 N.E.2d 276
• Court: New York Court of Appeals Court of Appeals
• Parties: , 233 N.E.2d 276 . APPELLATE DIVISION OF the SUPREME COURT of the State of New York, SECONDJUDICIAL DEPARTMENT, Respondent. Court of Appeals of New York

Page 255

286 N.Y.S.2d 255

21 N.Y.2d 36, 233 N.E.2d 276

In the Matter of Proceedings against Suffolk County District Court Judge Floyd SARISOHN, Appellant, v. APPELLATE DIVISION OF the SUPREME COURT of the State of New York, SECONDJUDICIAL DEPARTMENT, Respondent.

Court of Appeals of New York.

Dec. 7, 1967.

Frederic Block, Centereach, for appellant.

Solomon A. Klein, Brooklyn, for respondent.

BREITEL, Judge.

Floyd Sarisohn, elected as a Suffolk County District Court Judge for a term commencing January 1, 1964, appeals from an order of the Appellate Division, Second Department, entered May 15, 1967. That court, pursuant to section 132 of the Code of Criminal Procedure, removed him from office and prohibited him from thereafter holding any judicial office, appointive or elective (27 A.D.2d 466, 280 N.Y.S.2d 237, Per Curiam).

The removal followed a series of intermediate motions, appellate applications to this court, and a full hearing before the Appellate Division. Some, and one of the more serious, of the charges sustained involved conduct by Judge SARISOHN before he was elected to the District Court and while he was serving as a town Justice of the Peace. The Appellate Division, after conducting the proceedings with meticulous fairness, dismissed a number of other charges and in view of the dismissal there will be no occasion to discuss them.

Appellant appeals as of right, and a preliminary question is whether an appeal lies. In Matter of Droege, 197 N.Y. 44, 48--50, 90 N.E. 340, 343, a like proceeding affecting a New York City Magistrate, it was held that an appeal would not lie on the ground that a removal proceeding was not a special proceeding within the statutes then regulating appeals to this court. Since then, however, the practice statutes have been broadened with the expressed purpose of embracing within an 'action or special proceeding' any civil judicial proceeding (CPLR 103, subd. (b); 105 subd. (d); 1 Weinstein-Korn-Miller, N.Y.Civ.Prac., pars. 103.02--103.06, 105.05; cf. Matter of Friedman, 19 A.D.2d 120, 122--124, 241 N.Y.S.2d 793--796, app. dsmd. 375 U.S. 10, 84 S.Ct. 70 11 L.Ed.2d 40, decided before CPLR was effective). The statute is sufficient to broaden the basis for appealability because the Constitution does not contain any restrictive definition of an action or special proceeding (art. VI, § 3). Moreover, there is some hypothetical basis for at least a threshold review in removal proceedings of this nature even when full reviewability is not available (Matter of Droege, supra, p. 52, 90 N.E. p. 343; Matter of Friedman, supra, pp. 122--123, 241 N.Y.S.2d p. 796). Consequently, it is concluded that an appeal lies.

Of course, appealability does not mean that the reviewability of the issues is broad. On the contrary, the scope of review is narrow. As this court observed in the Droege case (supra), the Appellate Division 'is vested with the power of removal 'for cause.' Neither the Constitution nor the statutes have attempted to define what that 'cause' shall be. If this court should undertake to decide upon the sufficiency or insufficiency of a 'cause' passed upon by the Appellate Division in such a case, it would be an assumption of power by this court, which the Constitution and the statutes have granted exclusively to the Appellate Divisions' (p. 51, 90 N.E. p. 343). It also observed, however, that if the court had power to review, its power would extend to seeing if there was 'a real and substantial cause, as distinguished from a futile or frivolous prosecution, and when once that question is decided in the affirmative it is the end of the appeal' (p. 52, 90 N.E. p. 343). This is recognizable as roughly the equivalent to the substantial evidence rule in administrative law.

It is now appropriate to turn to the first of the charges sustained. This charge accused appellant of having advised and consulted with a prostitute on how she should conduct herself in a pending criminal prosecution against her in another court and how she could with impunity continue to practice her illicit trade. The events occurred while appellant was still a Justice of the Peace and, although the prostitute was a former client, he told her that he was not then advising her as her lawyer. As a Justice of the Peace he was entitled to practice law, and this is the basis for his self-contradictory assertion that his conversations with the prostitute were privileged as between attorney and client. The sole source of the evidence consists of telephone conversations between appellant and the prostitute, all of which were intercepted under eavesdropping orders obtained to survey the telephone of the prostitute.

Under the recent holding in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, the statute under which the eavesdropping orders were obtained was condemned as unconstitutional. It has been a matter of considerable concern whether any part of the statute survives as to telephone interceptions away from the premises as distinguished from trespassory intrusions by electronic listening devices. (See Berger v. New York, 388 U.S. 41, 51--52, 64, 87 S.Ct. 1873, 1879--1880 1886 (DOUGLAS, J., concurring) 81--82, 87 S.Ct. 1894--1895 (BLACK, J., dissenting).)

But, in any event, the orders in this case were not obtained in accordance with the requirements of the statute. The standard-form affidavits submitted to the court were concededly insufficient in that they failed to specify facts 'on which the Judge exercising a discretion could act' (People v. McCall, 17 N.Y.2d 152, 157, 269 N.Y.S.2d 396, 400, 216 N.E.2d 570, 573 (which also dealt with the sufficiency of the proof supplied for an order issued under the applicable statute, Code Crim.Pro., § 813--a); compare the proof in People v. Kaiser, decided herewith). It is true that the police officer who procured the orders on the several occasions made supplementary oral statements under oath to the issuing Justices. These statements, however, were not recorded and, hence, did not become 'part of the record basis of the order' (People v. McCall, 17 N.Y.2d 152, 158, 269 N.Y.S.2d 396, 401, 216 N.E.2d 570, 574). The McCall case indicated that 'as in the case of search warrants, there is a significant need for an adequate factual basis on which the Judge will be able to decide whether or not the order or warrant (pursuant to § 810--a) will issue' (17 N.Y.2d p. 159, 269 N.Y.S.2d p. 402, 216 N.E.2d p. 574). In another but analogous context this court has held that oral testimony, taken pursuant to section 794 in support of the grant of a search warrant, 'should' be 'recorded' (People v. Schnitzler, 18 N.Y.2d 457, 461, 276 N.Y.S.2d 616, 618, 223 N.E.2d 28, 30). On this basis alone, it is concluded, without the necessity of reaching the issue raised under the Berger case (supra), that the wiretaps in this case were illegal and, therefore, the evidence obtained therefrom unusable.

The first charge is thus undermined if appellant has standing to object to the illegality of the wiretaps. True, appellant was not the subscriber but he was the other conversationalist.

In Goldstein v. United States (316 U.S. 114, 120, 62 S.Ct. 1000, 86 L.Ed. 1312) a similar issue arose in a Federal prosecution and the court noted that constitutional limitations against search and seizure under the Fourth Amendment were not involved. It held, however, that the intercepted telephone conversations would be excludable as in violation of section 605 of the Federal Communications Act, but not as to nonparties to the conversations. (See, to the same effect, United States ex rel. Ross v. La Vallee, 341 F.2d 823, 824 (2d Cir. 1965), cert. den. 382 U.S. 867, 86 S.Ct. 137, 15 L.Ed.2d 105.) And in United States v. Tane (329 F.2d 848, 852) the Second Circuit held, after citing the Goldstein case, that 'The word 'sender' is perhaps more appropriately ascribed to one who starts a telegram or letter on its way. In a telephone conversation, the caller and the receiver alternately exchange information and both parties are senders within the meaning of § 605. See United States v. Polakoff, 112 F.2d 888, 889 (2 Cir. 1940), cert. denied 311 U.S. 653, 61 S.Ct. 41, 85 L.Ed. 418 (1940). Cf. Rathbun v. United States, 355 U.S. 107, 113, 78 S.Ct. 161, 165, 2 L.Ed.2d 134 (1957), where Mr. Justice Frankfurter's dissent states explicitly the implicit basis of the majority opinion--that the Court read "sender' to mean one of the parties to the communication, whether sender or receiver."

It would serve no good purpose and only introduce hopeless confusion if the test for standing to object were different under the State statute, assuming that it has survived the onslaught of the ruling in the Berger case (supra) from that applied to violations of the Federal statute. To be sure, People v. McDonnell, 18 N.Y.2d 509, 277 N.Y.S.2d 257, 223 N.E.2d 785, does not require such identity of standards, although appellant so argues. In the McDonnell case it was held that defendant had standing to object to an illegal wiretapping because he was charged with conspiring to have the telephone in another's name when in fact it was for his benefit. On this basis the case may be distinguished from this one in which there is no claim that the telephone was other than the prostitute's.

On the other hand, no ruling in this State precludes recognizing standing in the other party to a telephone conversation to object to its admission on the ground of illegality. Consequently, the test should be the same as that in the Federal cases, especially as it involves an instrumentality subject to Federal regulation. Moreover, it would be a very tenuous distinction which would respect the privacy of the telephone subscriber but not of the person speaking to him (regardless of who telephoned the other) over a private telephone believed to be secure from unlawful interception.

On this analysis the first charge cannot be...