
    The People of the State of New York, Appellant, v Francis R. Belge, Respondent.
    Argued November 23, 1976;
    decided December 20, 1976
    
      
      Jon K. Holcombe, District Attorney (John A. Cirando and David E. Peebles of counsel), Syracuse, for appellant.
    
      Francis R. Belge, pro se, and George T. Mahshie, Syracuse, for Francis R. Belge, respondent.
    
      Melvin B. Lewis, Chicago, Illinois, Stuart Kinard, Houston, Texas, and Mary Beeman, Houston, Texas, for The National Association of Criminal Defense Lawyers, amicus curiae.
    
   Per Curiam.

County Court dismissed the indictment in this case on two grounds, the existence of the client-attorney privilege of confidentiality, a ground constituting a legal basis under CPL 210.20 (subd 1, par [h]), and, alternatively, in the interest of justice pursuant to CPL 210.20 (subd 1, par [i]) and 210.40. The Appellate Division affirmed the order of dismissal. The present appeal, pursuant to leave granted by a Judge of our court (CPL 460.20), is from the order of the Appellate Division.

There can be no doubt that the order affirming the dismissal of the indictment is appealable to us (CPL 450.90, subd 1; 450.20, subd 1). We are obliged to conclude, however, that in this case it is not reviewable in our court. To the extent that the dismissal, affirmed by the Appellate Division, was granted in the interest of justice, only questions with respect to the exercise of discretion would be tendered for appellate review. Our court’s jurisdiction, however, with exceptions not material here, is limited to review of questions of law (NY Const, art VI, § 3, subd a). Consequently, insofar as the dismissal of this indictment was granted in the interest of justice it is outside the scope of our review, unless it could be said that there was an abuse of discretion as a matter of law. There is no predicate for any such contention in the record now before us. Since we are required to affirm on the basis of one of the alternative grounds on which the disposition of County Court was based, we proceed no further to review the actions of the court below.

Without intending to reflect on the dismissal in this case, we are also obliged to take this opportunity to express discomfiture with CPL 210.40 in its present form. To the extent that the section now fails to prescribe specific criteria for the responsible exercise of the discretion granted by the section and fails to require the court to articulate the manner and extent to which the particular case meets such criteria, it is open to misuse and effective appellate review is made difficult, if not impossible. In our view while efforts of the judiciary to fill the void are commendable (cf. People v Clayton, 41 AD2d 204), the issue involves policy of a dimension more appropriate for legislative resolution. Most important, the history of criminal procedure in this State has been to add safeguards against misuse or abuse of authority in criminal courts of first instance. Those safeguards, experience has demonstrated, are most effective if there be appellate review, possible only if there are standards. Justice for victim and defendant merits no less. We invite the attention of the Legislature to this predicament.

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J. (concurring).

I unhesitantly agree with the court’s disposition of this case and with its reasoning, but I cannot join completely in the reflections on CPL 210.40 with which it concludes its opinion.

That statute constitutes the current codification of earlier enactments which expressed the need for a residuum of inherent discretion to act in the unusual case that cries out for fundamental justice beyond the confines of conventional considerations of "legal or factual merits of the charge or even on the guilt or innocence of the defendant” (People v Clayton, 41 AD2d 204, 206; see, also, People v Quill, 11 Misc 2d 512; People v McLeod, 25 Wend 483; State v McDonald, 10 Okla Cr 413, 415). I might add that the case before us is an excellent example.

While a requirement for adequate expression of the reasons supporting the exercise of such discretion and appellate review to safeguard against its abuse would indeed be salutary, I believe that a prescription of "specific criteria” would tend to undermine the flexibility called for to meet the needs of the very cases in which freedom to exercise discretion is most urgently required.

Jasen, J. (dissenting).

It is true, as the majority puts it, that there is no predicate for a holding that the County Court abused its discretion as a matter of law. The reason is that there is no predicate at all for the action taken in this case. The court never set forth its reasons as required by statute, for its dismissal of the indictment in the interest of justice. Since the reasons why justice required dismissal were never stated, it is impossible as a matter of law to review the grounds for dismissal.

An indictment may be dismissed in the interest of justice where "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.” (CPL 210.40, subd 1.) However, a court, in dismissing an indictment on this ground, "must set forth its reasons therefor upon the record.” (CPL 210.40, subd 2.) The statute is an old one and the writing requirement was designed as a "wholesome restraint” on an otherwise untrammeled discretion. (Code of Criminal Procedure, Reported Complete by the Commissioners on Practice and Pleading, Assembly Doc No. 18 [1850], p 341.)

In this case, the County Court issued an opinion which discussed the legal issue involved: namely, whether the actions of the defendant were protected by the relationship of attorney and client. The court stated that it was necessary to balance "the importance of the general privilege of confidentiality in the performance of the defendant’s duties as an attorney, against the inroads of such a privilege on the fair administration of criminal justice as well as the heart tearing that went on in the victim’s family by reason of their uncertainty as to the whereabouts of Alicia Hauck.” (83 Misc 2d 186, 190.) The court concluded that the client-attorney privilege outweighed the interest in "the trivia of a pseudo-criminal statute” (p 191). The court took note of the fact that the Grand Jury chose to indict the defendant and did not indict his cocounsel. From this, it was stated that the Grand Jury appeared to be "grasping at straws” (p 191). The court stated its conclusion in two sentences: "It is the decision of this court that Francis R Beige conducted himself as an officer of the court with all the zeal at his command to protect the constitutional rights of his client. Both on the grounds of a privileged communication and in the interests of justice the indictment is dismissed” (p 191).

Aside from the conclusory statement that the indictment should be dismissed in the interest of justice, the court never discussed "justice” principles. In my view, a discussion of "law” principles cannot camouflage an unreasoned interest of justice of dismissal. To overlook the absence of specific reasons, as the majority does, is to remove a "wholesome restraint” and to encourage instead broad and potentially abusive employment of what should be narrowly confined, rarely exercised judicial remedy.

Moreover, the criticism of the present statute is not appropriate. The statute is over 120 years old and has appeared in three separate versions, having been enacted by at least three separate Legislatures. Although some Judges may not approve of it, it is the judicial function to apply the statute as it was meant to be applied and not to put on blinders in the hope that someday the Legislature will repeal it. Moreover, the Legislature specifically left the justice standards open-ended, recognizing the futility of developing all-encompassing rules to cover all situations of injustice. However, it is justice that requires dismissal and here we have been given no reasons why justice demands the dismissal of this indictment.

I would reverse the order of the Appellate Division and remit the case to County Court for further consideration, particularly for the full statement of reasons required by statute.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur in Per Curiam opinion; Judge Fuchs-berg concurs in result in a separate opinion; Judge Jasen dissents and votes to reverse in another opinion.

Order affirmed.  