New York Law Review

Tag: 1968

  • Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1968): Right of Publicity and Fictionalization in Biographies

    Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1968)

    A public figure can recover for an unauthorized presentation of their life if the presentation contains material and substantial falsifications, published with knowledge of the falsification or with reckless disregard for the truth.

    Summary

    Warren Spahn, a famous baseball player, sued author Milton Shapiro and publisher Julian Messner, Inc., for publishing an unauthorized biography, “The Warren Spahn Story.” Spahn alleged violations of New York’s Civil Rights Law §§ 50 and 51, concerning the use of his name and likeness for commercial purposes without his consent. The court found that the biography contained significant fictionalizations of Spahn’s life. The New York Court of Appeals affirmed the injunction against publication and the award of damages, holding that the biography contained knowing and substantial falsifications published with reckless disregard for the truth, thus infringing on Spahn’s right to publicity.

    Facts

    Milton Shapiro wrote and Julian Messner, Inc. published “The Warren Spahn Story,” a biography aimed at juvenile readers. Shapiro admitted to using invented dialogue, imaginary incidents, and attributed thoughts and feelings in the book. Shapiro never interviewed Spahn, his family, or any of his baseball colleagues. His research consisted mainly of unverified newspaper and magazine clippings. The biography contained numerous inaccuracies and distortions of Spahn’s life, including false accounts of his childhood, his relationship with his father, his courtship, events during his marriage, and his military service.

    Procedural History

    The trial court found in favor of Spahn, issuing an injunction and awarding damages. The Appellate Division affirmed. The New York Court of Appeals initially affirmed but was subsequently ordered by the U.S. Supreme Court to reconsider in light of Time, Inc. v. Hill. On reargument, the Court of Appeals again affirmed the lower court’s decision.

    Issue(s)

    Whether a public figure can recover damages for an unauthorized biography that contains fictionalized elements, where the fictionalization constitutes knowing falsity or reckless disregard for the truth.

    Holding

    Yes, because the biography contained material and substantial falsifications made with knowledge of their falsity or with reckless disregard for the truth, thus exceeding the permissible bounds of free speech and infringing on Spahn’s right to publicity.

    Court’s Reasoning

    The court acknowledged the need to balance the right of publicity with the constitutional protection of free speech, particularly in the context of biographies. Relying on New York Times Co. v. Sullivan and Time, Inc. v. Hill, the court held that a public figure can recover for an unauthorized presentation of their life only if the presentation contains material and substantial falsifications and was published with knowledge of such falsification or with reckless disregard for the truth. The court found that Shapiro’s biography was replete with invented dialogue, imaginary incidents, and attributed thoughts and feelings, all of which constituted knowing falsification. The court emphasized Shapiro’s minimal research and his failure to verify even readily available information. The court noted that even the defendant’s claimed defense of using standard literary techniques for children’s books failed, as the author had virtually no contact with the subject and made little effort to verify information. The court stated that granting the defendants a license to publish such knowing fictionalizations would be “destructive of an individual’s right…to be free of the commercial exploitation of his name and personality.” The court dismissed the defendant’s argument regarding defective pleading, finding no prejudice because the defense relied on New York Times Co. v. Sullivan at trial. The court emphasized the “all-pervasive” nature of the falsifications, supporting the finding of knowing falsity. The court quoted the lower court’s finding of “all-pervasive distortions, inaccuracies, invented dialogue, and the narration of happenings out of context”.

  • Matter of Koerner v. Prestige Point, Inc., 22 N.Y.2d 540 (1968): Limits to ‘Work Connected’ Injuries for Traveling Employees

    Matter of Koerner v. Prestige Point, Inc., 22 N.Y.2d 540 (1968)

    An injury sustained by a traveling employee is not compensable under workers’ compensation if the injury is solely attributable to the employee’s personal act and not to any environmental factor related to the employment.

    Summary

    Koerner, a traveling salesman, sought worker’s compensation benefits for a back injury sustained while he was on a business trip. The injury occurred in his motel room when he lost his balance while putting on his trousers. The Workmen’s Compensation Board awarded benefits, but the Court of Appeals reversed, holding that the injury was not work-connected because it was solely the result of the claimant’s personal act and not linked to any environmental factor arising from his employment. The court distinguished cases involving household employees and those where the work environment contributed to the injury.

    Facts

    The claimant, a traveling salesman, was on a business trip in Chicago and was scheduled to travel to Duluth, Minnesota. While dressing in his motel room at 8:30 a.m., he was rushing to get ready and begin driving. He lost his balance and fell while putting on his trousers, resulting in back injuries.

    Procedural History

    The Workmen’s Compensation Board awarded compensation to the claimant. The Appellate Division affirmed the Board’s decision, finding that the injury was work-connected as a question of fact. The employer appealed to the New York Court of Appeals.

    Issue(s)

    Whether a traveling employee’s injury, sustained while performing a personal act (dressing) in a motel room during a business trip, is compensable under workers’ compensation when the injury is not attributable to any environmental factor related to the employment.

    Holding

    No, because the injury was solely attributable to the claimant’s personal act of losing balance while dressing and was not caused by any environmental factor associated with his employment.

    Court’s Reasoning

    The Court of Appeals distinguished this case from prior cases where injuries to traveling employees were deemed compensable because those cases involved an environmental factor related to the employment (e.g., slipping in a bathtub, insect bites in a particular region, or unique risks associated with living at the place of employment). The court emphasized that “for compensation purposes an injury suffered by an employee while out of town on the business of his employer may be ‘work connected’ even where the employee at the time of the accident was not actively engaged in the duties of his employment.” However, the court drew a line, stating, “Where an accident is attributable solely to the personal acts of the claimant, and cannot be attributed in any way to the environment into which the employee has been brought by his employment…such injury or death ought to be held noncompensable.” The court noted that the accident could have occurred anywhere, and the motel room itself did not contribute to the injury. The court also declined to extend the special exception afforded to household employees (where virtually any injury is compensable) to other classes of employees. The court distinguished cases like Matter of Miller v. Bartlett Tree Expert Co., 3 Y 2d 654 (employee slipped in a bathtub) arguing in those cases, the injury was due at least in part, to an environmental factor. In Koerner, the sole cause was the claimant’s loss of balance.

  • Hoffman v. Nashem Motors, Inc., 22 N.Y.2d 513 (1968): Corporate Exception to Usury Laws

    Hoffman v. Nashem Motors, Inc., 22 N.Y.2d 513 (1968)

    A loan to a corporation, even if the corporation is a shell created to avoid usury laws, is valid, but a loan made directly to an individual, even if intended for a corporation, is subject to usury laws.

    Summary

    Hoffman sued Nashem Motors, Inc., and Leland Nashem to recover money owed on three promissory notes. The court addressed whether summary judgment was proper regarding usury claims. The court held that the first note, made to the corporation, was valid even if the loan’s purpose was to circumvent usury laws, aligning with the corporate exception. However, the other two notes raised a triable issue because the loan was made directly to Nashem individually and never reached the corporation. The court reversed the grant of summary judgment on those notes, allowing Hoffman to prove the loans were not usurious or were, in fact, corporate loans.

    Facts

    George Hoffman and Margaretha Wilkens sought to recover funds from Lee Nashem Motors, Inc., (the corporate defendant) and Leland Nashem (the individual defendant) based on three promissory notes. The first note was for $18,250 payable to Hoffman. The second was for $16,000, also payable to Hoffman. The third was for $1,000, payable to Wilkens, Hoffman’s secretary. Nashem claimed the first note was a usurious loan disguised as a corporate loan. He claimed the other two notes were for a separate loan with a usurious interest rate and were made to him as an individual, with the funds not entering the corporate account.

    Procedural History

    The Special Term granted summary judgment to Hoffman. The Appellate Division affirmed this decision. The dissenting Justice at the Appellate Division level prompted an appeal to the New York Court of Appeals.

    Issue(s)

    1. Whether a loan, nominally to a corporation but allegedly intended to circumvent usury laws, is valid under New York law?

    2. Whether a loan made directly to an individual, but allegedly intended for a corporation, is subject to usury laws?

    Holding

    1. Yes, because New York law permits loans to corporations even if the purpose is to avoid usury laws, as established in Leader v. Dinkler Mgt. Corp.

    2. Yes, because the corporate exception to usury laws only applies when the loan is, in form, made to the corporation.

    Court’s Reasoning

    The court relied on Leader v. Dinkler Mgt. Corp., which held that loans to corporations are valid, even if the corporation is a “dummy” created to accept a usurious loan. The court stated, “[A] loan to a corporation, even a ‘dummy’ corporation formed to avoid the usury laws and to accept the usurious loan, is valid.” Thus, the first note was valid regardless of the alleged usurious intent. However, regarding the second and third notes, the court found that the loan was made directly to Leland Nashem as an individual, and the funds did not reach the corporate account. Therefore, the corporate exception did not apply. The court reasoned that, “To come within the purview of the rule set down in Leader v. Dinkler Mgt. Co.…the loan must be made in form, at least, to the corporation.” Because of this factual distinction, the court held that a trial was necessary to determine whether the loan was usurious or if it could be proven that the loan was, in fact, made to the corporation. The court rejected the argument that the two loans were one transaction, finding no factual support for this claim in the affidavits. The court noted that the loans were made on different dates to different borrowers, and the defendant did not assert this claim in the original filings. Therefore, this claim was without merit.

  • Parker v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 176 (1957): Mitigation of Damages and the Duty to Accept Substitute Employment

    Parker v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 176 (1968)

    An employee wrongfully discharged is not required to mitigate damages by accepting employment of a different or inferior kind.

    Summary

    Shirley MacLaine Parker (Plaintiff) sued Twentieth Century-Fox Film Corp. (Defendant) for breach of contract after Defendant cancelled a film project and offered Plaintiff a role in a different film, which Plaintiff deemed inferior. The key issue was whether Plaintiff’s refusal to accept the substitute role constituted a failure to mitigate damages, thereby barring her recovery. The court held that because the substitute role was different and inferior, Plaintiff was not required to accept it to mitigate damages. This case illustrates the principle that an injured party need not accept substantially different employment to mitigate damages.

    Facts

    Plaintiff contracted with Defendant to star in a musical film titled “Bloomer Girl” for a guaranteed salary of $750,000. Prior to production, Defendant decided not to produce the film. Defendant offered Plaintiff the lead in a western film, “Big Country, Big Man,” with the same guaranteed salary and similar billing and directorial provisions. However, “Big Country, Big Man” was not a musical, and it was to be filmed in Australia, while “Bloomer Girl” was to be filmed in Los Angeles. Plaintiff refused the substitute role and sued for breach of contract, seeking the full contract price.

    Procedural History

    The trial court granted summary judgment in favor of Plaintiff. Defendant appealed, arguing that Plaintiff failed to mitigate damages by refusing the substitute role. The California Supreme Court affirmed the trial court’s decision, holding that the offer of the lead in “Big Country, Big Man” did not have to be accepted as mitigation, and upheld the summary judgment for Parker.

    Issue(s)

    Whether an employee wrongfully discharged is required to mitigate damages by accepting employment of a different or inferior kind.

    Holding

    No, because the substitute employment offered was both different and inferior, the Plaintiff was not required to accept it to mitigate damages.

    Court’s Reasoning

    The court reasoned that the general rule requiring mitigation of damages only applies when the substitute employment is substantially similar to the original employment. The court articulated the rule: “The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.” However, this rule is qualified. The court stated, “before projected earnings from other employment opportunities not sought or accepted are allowable in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.” Here, the substitute role in “Big Country, Big Man” was deemed different and inferior because it was a western rather than a musical, and it involved filming in Australia instead of Los Angeles. Therefore, Plaintiff was not obligated to accept it to mitigate damages. The dissenting opinion argued that the majority’s interpretation of the mitigation principle placed a premium on ignorance of the law. The dissent contended that if the plaintiff knew the exclusive employment provision of the contract was void, she would have sought other work regardless of the defendant’s refusal to release her. The dissent further argued that the case was tried on a different theory than that on which the reversal was sought and granted.

  • Zuckerman v. Greason, 21 N.Y.2d 430 (1968): Scope of Fifth Amendment in Attorney Disciplinary Proceedings

    Zuckerman v. Greason, 21 N.Y.2d 430 (1968)

    The Fifth Amendment’s protection against self-incrimination applies only to criminal cases, not to attorney disciplinary proceedings, and thus does not prevent the use of an attorney’s disclosures in such proceedings, provided those disclosures cannot be used against them in a criminal case.

    Summary

    This case addresses whether an attorney’s disclosures in a disciplinary proceeding, made under the then-existing (but later overruled) precedent that compelled such testimony, can be used against them. The Court of Appeals held that the Fifth Amendment’s protection against self-incrimination applies only to criminal cases, not disciplinary proceedings. Therefore, the disclosures can be used in disciplinary actions, as long as they are not used in subsequent criminal proceedings against the attorney. The court reasoned that lawyers, as officers of the court, are subject to the Appellate Division’s supervisory powers, and the constitutional privilege against self-incrimination is limited to evidence that could be used in a criminal case.

    Facts

    Appellants Zuckerman and Haber, attorneys, were subject to disciplinary proceedings. Charges against them included submitting misleading medical bills to insurance companies, building up medical bills by referring clients to specialists unnecessarily, and using investigators to solicit clients in violation of ethical canons. Initially, Zuckerman was disbarred and Haber was suspended. The Appellate Division sustained several charges, including a charge against Zuckerman for failure to cooperate by invoking the Fifth Amendment regarding his tax records.

    Procedural History

    The Appellate Division initially disbarred Zuckerman and suspended Haber. The U.S. Supreme Court granted certiorari, vacated the Appellate Division’s order, and remanded the case in light of Spevack v. Klein, which overruled Cohen v. Hurley. On remand, the Appellate Division modified its order to dismiss the charge related to Zuckerman’s Fifth Amendment invocation but otherwise reinstated its prior decision. The New York Court of Appeals reversed this decision due to lack of due process (failure to provide notice and an opportunity to be heard) and remanded the matter to the Appellate Division. After a hearing, the Appellate Division reinstated its prior order, leading to this appeal.

    Issue(s)

    Whether disclosures made by attorneys in disciplinary proceedings can be used against them in those proceedings when the disclosures were made under the compulsion of then-existing precedent that has since been overruled, and whether such use violates the Fifth Amendment privilege against self-incrimination.

    Holding

    No, because the Fifth Amendment’s protection against self-incrimination applies only in criminal cases and does not prevent the use of an attorney’s disclosures in a disciplinary proceeding, provided those disclosures cannot be used against them in a criminal case.

    Court’s Reasoning

    The court reasoned that disciplinary proceedings are civil in nature, not criminal. The Fifth Amendment explicitly states that no person “shall be compelled in any criminal case to be a witness against himself” (italics supplied). Therefore, the constitutional privilege only applies to evidence that might be used against the individual in a criminal case. While the attorneys may have believed they were compelled to disclose information under the authority of Cohen v. Hurley, which at the time allowed disbarment for invoking the Fifth Amendment, the subsequent decision in Spevack v. Klein only prevents disbarment *solely* for invoking the Fifth Amendment. It does not create a blanket privilege to withhold evidence in disciplinary proceedings that could not lead to criminal prosecution. The court emphasized that lawyers are officers of the court, subject to the Appellate Division’s supervisory powers. They can choose to reveal their professional conduct for scrutiny. The court distinguished Garrity v. New Jersey, noting it concerned the review of criminal convictions, whereas this case involves disciplinary proceedings. Judge Cardozo’s language from Matter of Rouss was quoted: “But to bring him within the protection of the Constitution, the disclosure asked of him must expose him to punishment for crime.”

  • People v. Rodriguez, 21 N.Y.2d 392 (1968): Probable Cause for Warrantless Search Based on Informant Tip

    People v. Rodriguez, 21 N.Y.2d 392 (1968)

    An informant’s tip, without specific details connecting the suspects to illegal activity at a particular location, and the mere fact that arrestees stated they came from a specific apartment, are insufficient to establish probable cause for a warrantless search of that apartment.

    Summary

    This case concerns the legality of a warrantless search based on an informant’s tip and statements made by arrestees. Police Detective Dorrish received information from a reliable informant and placed an apartment building under surveillance. After arresting two men who stated they came from the building’s basement, Dorrish entered the basement apartment without a warrant, found drugs in plain view, and arrested the defendants. The New York Court of Appeals reversed the conviction, holding that the informant’s tip lacked specificity and the arrestees’ statements did not provide sufficient probable cause to justify the warrantless search.

    Facts

    Detective Dorrish received confidential information from a previously reliable informant regarding possible drug activity at a three-story apartment building.

    Two men were observed entering the building and were arrested upon exiting, charged with heroin possession.

    The arrestees stated they had come from the basement of the building.

    Without obtaining a warrant, Detective Dorrish went to the building, opened the unlocked building door, and entered the basement.

    Hearing a voice inside the basement apartment, he forced open the apartment door and observed drug paraphernalia in plain view, arresting the defendants.

    A search of the defendants revealed glassine envelopes containing heroin.

    Procedural History

    The defendants moved to suppress the evidence, but the motion was denied after a hearing.

    The defendants pleaded guilty to violating Section 3305 of the Public Health Law.

    The Appellate Term affirmed the judgments of the Criminal Court, Kings County.

    The New York Court of Appeals reversed the conviction.

    Issue(s)

    Whether the informant’s tip and the arrestees’ statement provided Detective Dorrish with probable cause to conduct a warrantless search of the basement apartment.

    Holding

    No, because the informant’s tip lacked specific details connecting the defendants to any illegal activity within the apartment, and the arrestees’ statement that they came from the apartment did not, by itself, establish probable cause that the occupants were involved in drug-related crimes.

    Court’s Reasoning

    The Court emphasized that stronger evidence is required for a search conducted without a warrant, citing Johnson v. United States, 333 U.S. 10 (1948), which stresses the importance of having a neutral magistrate determine probable cause.

    The Court distinguished the facts from cases where informants provided specific information about illegal activity occurring at a particular location. Here, the informant did not specify any particular apartment in the building, and the arrestees’ statement that they “came from” the basement was insufficient to infer that the occupants were drug users or dealers.

    The court found the informant’s tip was too general: “Apparently, the informer did not even specify any particular apartment in the building.”

    The Court stated, “Thus, the statement that the arrested men came from the basement simply does not raise, in our view, the reasonable inference that the occupants of the basement are, therefore, drug pushers, users or possessors.”

    The Court distinguished the case from United States ex rel. Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967), where the Second Circuit found a warrant invalid due to a deficient affidavit lacking personal knowledge from the informant. In Rodriguez, the informant’s information was even less specific.

    Because the only evidence against the defendants was illegally seized, the Court reversed the conviction and dismissed the indictment.

  • Matter of Carucci, 22 N.Y.2d 363 (1968): Corporate Disqualification for Officer’s Refusal to Waive Immunity

    Matter of Carucci, 22 N.Y.2d 363 (1968)

    A corporation can be disqualified from bidding on public contracts when its officer refuses to waive immunity before a grand jury, even if the officer resigns shortly before the appearance, especially if the resignation appears designed to avoid the statutory disqualification.

    Summary

    Carucci sought to nullify the New York City Housing Authority’s decision to disqualify it from bidding on future contracts because its former president refused to sign a waiver of immunity before a grand jury investigating bid-rigging, as mandated by Public Authorities Law § 2601. The Court of Appeals upheld the disqualification, finding the statute constitutional and applicable even if the officer resigned shortly before the grand jury appearance. The court reasoned that allowing such resignations to circumvent the statute would undermine its purpose, and the corporation’s remedy was to seek removal of the disqualification under Public Authorities Law § 2603.

    Facts

    The New York City Housing Authority disqualified Carucci, a corporation, from bidding on future contracts.
    The disqualification was based on Public Authorities Law § 2601.
    Carucci’s former president appeared before a grand jury investigating bid-rigging.
    The former president refused to sign a waiver of immunity.
    Carucci argued that because its officer resigned before the grand jury appearance, the disqualification should not apply.

    Procedural History

    The lower court upheld the Housing Authority’s decision.
    The Appellate Division affirmed the lower court’s ruling.
    Carucci appealed to the New York Court of Appeals.

    Issue(s)

    Whether Public Authorities Law § 2601 is constitutional.
    Whether the disqualification imposed on Carucci is valid, considering its officer resigned before refusing to sign the waiver of immunity.
    Whether a resignation tendered to avoid statutory disqualification changes the applicability of the law.

    Holding

    Yes, Public Authorities Law § 2601 is constitutional because it serves a legitimate public interest in preventing corruption in public contracting.
    Yes, the disqualification is valid because the officer’s resignation, occurring almost simultaneously with the refusal to waive immunity, did not negate the applicability of the statute. The court reasoned that allowing resignations to circumvent the law would undermine its purpose.

    Court’s Reasoning

    The court relied on its decision in Matter of Gardner v. Broderick, decided the same day, which upheld the constitutionality of similar statutes.
    The court emphasized that the timing of the officer’s resignation was critical. If the resignation occurred almost simultaneously with the refusal to sign the waiver or was clearly intended to avoid the statutory disqualification, the officer’s actions would still be attributed to the corporation.
    The court recognized that the statute might penalize cooperative corporations but noted that Public Authorities Law § 2603 provided a procedure for removing the disqualification under such circumstances, representing the appellant’s exclusive remedy.
    The court stated, “Where the termination of the relationship of the individual officer with the corporation occurs almost contemporaneously with his refusal to sign a waiver of immunity or where it is obvious that the resignation was tendered and accepted solely for the purpose of avoiding the statutory disqualification, the person so resigning or otherwise departing shall be deemed to have acted in his capacity as a corporate officer when he refused to sign the waiver.”
    The court acknowledged that the statute may, at times, “operate to penalize a corporation which had severed its connection with the recalcitrant officer and which has otherwise been co-operative”, but affirmed that the legislatively prescribed remedy was the procedure outlined in Public Authorities Law § 2603 to remove the disqualification.

  • Matter of Barone v. Waterfront Commission, 22 N.Y.2d 47 (1968): Consequences of Lying to Government Agencies

    Matter of Barone v. Waterfront Commission, 22 N.Y.2d 47 (1968)

    Deliberately providing false statements to a government agency justifies administrative discipline, even if the misrepresentation is immaterial or the individual could have initially withheld the information.

    Summary

    Barone, a longshoreman, was questioned by the Waterfront Commission regarding alleged subversive activities during his youth. He denied any involvement. The Commission, believing he committed “fraud, deceit and misrepresentation,” revoked his registration. The New York Court of Appeals held that while Barone might have been privileged to refuse to answer questions about past activities, he chose to answer and therefore could be disciplined for lying. The court clarified that discipline was for the deception itself, not the past activities, and modified the penalty from permanent revocation to a suspension, deeming the former too harsh given the circumstances.

    Facts

    Barone worked as a longshoreman since 1952. In 1960, he applied for registration as a checker with the Waterfront Commission. During interviews related to his application, he was questioned about his involvement with the Young Progressives of America (YPA) and the American Youth for Democracy (AYD) during the late 1940s, when he was a teenager. He denied or claimed he could not recall any affiliation. The Waterfront Commission presented evidence that Barone had been an active member of AYD, attending meetings and participating in its activities.

    Procedural History

    The Waterfront Commission revoked Barone’s registration as a longshoreman and denied his application to be a checker, finding him guilty of “fraud, deceit, and misrepresentation.” Barone initiated an Article 78 proceeding in the Supreme Court to annul the Commission’s order and restore his registration. The Appellate Division confirmed the Commission’s determination. Barone appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the Waterfront Commission was justified in revoking Barone’s registration as a longshoreman based on his false statements during the interviews.
    2. Whether permanent revocation of Barone’s registration was an excessive penalty.

    Holding

    1. Yes, because Barone chose to answer the questions posed by the Commission and, in doing so, lied under oath.
    2. Yes, because the Court deemed permanent revocation too harsh, considering the circumstances of Barone’s deception and his prior work history.

    Court’s Reasoning

    The Court of Appeals reasoned that while Barone might have had the right to remain silent based on the privilege against self-incrimination or the lack of pertinency of the questions to the topic under inquiry, he chose to answer and, in doing so, lied. Citing Communications Comm. v. WOKO, the court emphasized, “The fact of concealment may be more significant than the facts concealed. The willingness to deceive a regulatory body may be disclosed by immaterial and useless deceptions as well as by material and persuasive ones.” The court determined that Barone’s registration was revoked for his “willingness to deceive” the Commission.

    Regarding the severity of the penalty, the court acknowledged Barone’s wrongdoing but noted that his deception likely stemmed from ignorance and misplaced fears. The court also considered his ten years of prior service as a longshoreman without any indication of unlawful activities. Therefore, the court found the permanent revocation too severe and modified the penalty to a suspension, which, given the time elapsed since the initial revocation, was deemed to have already been served.

    The court also addressed the constitutionality of the statute authorizing the Commission to discipline longshoremen for subversive activities, acknowledging recent Supreme Court decisions invalidating similar state statutes for “impermissible overbreadth.” However, the court construed the statute narrowly, requiring that advocacy of overthrowing the government be intended to incite action and present a “clear and present danger.” Membership in a group advocating such overthrow must be “active” with a specific intent to further the unlawful goals.

  • People v. Tennyson, 21 N.Y.2d 573 (1968): Sufficiency of Hearsay Information for Arrest

    People v. Tennyson, 21 N.Y.2d 573 (1968)

    An information based on hearsay is sufficient for an arrest if it sets forth the source of the affiant’s knowledge and grounds for belief, particularly when the source is the victim of the alleged crime, creating a reasonable inference that the defendant was accused of the crime.

    Summary

    Tennyson was convicted of assault based on an information sworn by a police officer who relied on a conversation with the victim. The New York Court of Appeals affirmed the conviction, holding that the information was sufficient because it indicated the source of the officer’s knowledge (the victim). The court reasoned that referencing the victim as the source implies the victim accused Tennyson of the crime, subject to perjury if false. The court also addressed the issue of sentencing, noting that imposing imprisonment exceeding one year for a misdemeanor due to indigency violates equal protection and constitutional bans against excessive fines, but allowed Tennyson to apply for resentencing based on indigency.

    Facts

    In the early morning, Tennyson allegedly opened the car door of a parked vehicle, shined a light inside, and ordered the male occupant out. He then threatened the occupant with a knife. When another car approached, Tennyson fled. The victim flagged down the passing car, which was a police vehicle, leading to Tennyson’s arrest. The arresting officer swore to an information for third-degree assault based on “conversations had” with the victim.

    Procedural History

    Tennyson was convicted of misdemeanor assault in the third degree. He was sentenced to a year in prison and a $500 fine, with additional imprisonment possible for non-payment of the fine. Tennyson appealed the conviction. While the appeal was pending, the Court of Appeals decided People v. Saffore, concerning excessive imprisonment for indigents unable to pay fines.

    Issue(s)

    1. Whether an information based on hearsay is sufficient when the source is identified as the victim of the alleged crime.
    2. Whether a sentence imposing imprisonment exceeding one year for a misdemeanor, due to the defendant’s indigency and inability to pay a fine, violates equal protection and the constitutional ban against excessive fines.

    Holding

    1. Yes, because referencing the victim as the source of the information creates a reasonable inference that the victim accused the defendant of committing the crime.
    2. The court did not directly rule on this, but indicated that if Tennyson could prove indigency, he would be entitled to modification of the sentence based on the precedent set in People v. Saffore.

    Court’s Reasoning

    The court distinguished this case from People v. Jeffries, where the hearsay source was vague. Here, the source was the victim, leading to the inference that the victim accused Tennyson. The court stated that the information sworn to by the police officer sufficiently sets forth the sources of his knowledge, as well as the grounds for his belief, that the defendant had committed a crime. The court reasoned that “the source of the hearsay was the very victim of the assault and the only possible inference is that, during the conversation described, the defendant was accused of having committed the crime.” The court emphasized that a false statement by the officer about the conversation with the victim would amount to perjury. Regarding the sentence, the court cited People v. Saffore, stating that “imprisonment to work out the fine, if it results in a total imprisonment of more than a year for a misdemeanor, is unauthorized… and violates the defendant’s right to equal protection of the law, and the constitutional ban against excessive fines.” Therefore, Tennyson’s conviction was affirmed, but he was given leave to apply for resentencing based on indigency. Judges Burke, Scileppi, and Breitel concurred in the result based on the reasoning in the dissenting opinion in People v. Jeffries.

  • Matter of Del Bello, 22 N.Y.2d 466 (1968): Attorney Misconduct and Use of Incompetent’s Funds

    Matter of Del Bello, 22 N.Y.2d 466 (1968)

    An attorney acting as a committee for an incompetent person must prioritize the incompetent’s needs and welfare, and must not use the incompetent’s funds for the attorney’s own benefit or to the detriment of the incompetent’s estate plan.

    Summary

    This case concerns the disbarment of an attorney, Del Bello, who served as the committee for an incompetent woman, Ellen Snyder. Del Bello was accused of misusing funds from a Totten trust account established by Snyder for the benefit of David Gorfinkel. The court found that Del Bello had been surcharged for improperly using the Totten trust funds when other assets were available to care for Snyder and because he had a conflict of interest related to real property transactions with Snyder before she was declared incompetent. While the court acknowledged Del Bello’s questionable conduct, it reversed the disbarment order, finding insufficient evidence that he misappropriated the funds for personal use, and remanded for reconsideration of discipline based on other charges of misconduct.

    Facts

    Ellen Snyder created a Totten trust bank account for David Gorfinkel. Snyder later became Del Bello’s client in 1953, and he was appointed as her committee in 1955 after she was declared incompetent. Del Bello transferred the funds from Snyder’s Totten trust account into an account under his name as her committee without a court order. After Snyder’s death, Gorfinkel’s estate successfully sued to recover the Totten trust funds. The bank, in turn, sued Del Bello to recover what they paid out to Gorfinkel. Prior to her incompetency, Del Bello had also prepared wills for Snyder that favored him and arranged for her to deed him the remainder interest in her real property.

    Procedural History

    The Appellate Division disbarred Del Bello based on findings related to the Gorfinkel case and the misuse of the Totten trust funds. The Appellate Division cited Del Bello’s conflict of interest stemming from spending $5,302.86 withdrawn from the Totten trust to repair real property of which he was the owner. Del Bello appealed to the New York Court of Appeals.

    Issue(s)

    Whether the attorney misappropriated the funds for personal gain instead of using the funds for the care of the incompetent, and therefore should be disbarred.

    Holding

    No, because the court found that the Appellate Division’s finding that Del Bello misappropriated $5,302.86 from the Totten trust was not supported by evidence and the record indicates the funds were used for the ward’s maintenance and support. The matter was remanded to the Appellate Division to impose discipline based on other charges.

    Court’s Reasoning

    The Court of Appeals found that Del Bello’s actions in managing Snyder’s assets were questionable, particularly his handling of the Totten trust account and the real property transactions. The court emphasized that a committee’s primary duty is to act in the best interest of the incompetent person. “Unless the proceeds of such a bank account are necessarily or properly required for the support or welfare of the incompetent, neither the committee nor the court whose arm the committee is can alter the devolution, upon death, of the property of an incompetent”. The court found that Del Bello should not have been accused of spending the Totten trust account on real estate improvements of which he owned the remainder. However, the court criticized Del Bello for drafting wills in his favor and obtaining a deed for the remainder interest in Snyder’s property, creating a conflict of interest. The court also noted that he should have disclosed his remainder interest when the welfare authorities advanced money on a mortgage given by Snyder. The court decided that the Appellate Division’s determination to disbar Del Bello was inappropriate in light of the lack of evidence that he had misappropriated the trust funds for personal use. The court stated: “It is one thing for the committee of an incompetent to misappropriate her funds by devoting them to his own private use; it is quite another matter to become liable to a surcharge for resorting to one particular asset of an incompetent rather than to another in order to provide for her support.”