
    Stephen M. Cowles, Appellant, v Thomas V. N. Brownell, Respondent.
    Argued January 12, 1989;
    decided April 6, 1989
    
      POINTS OF COUNSEL
    
      Richard A. Insogna for appellant.
    I. A motion for summary judgment may not be granted where it appears that there are issues of material fact to be resolved by trial. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Nidds v Procidano, 95 AD2d 912; Stillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Koblenz Jewelers v Insurance Co. of N. Am., 88 AD2d 688; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439.) II. There were material issues of fact presented in the record which require resolution at trial. III. Duress, such as to render the delivery of the release something other than the free and voluntary act of plaintiff, is an issue in this action. (Matter of Ryder, 279 App Div 1131; People v Blakley, 34 NY2d 311; Dziuma v Korvettes, 61 AD2d 677; People v Siragusa, 81 Misc 2d 368; Dunkin’ Donuts v Rovegno, 100 AD2d 532.) IV. Failure of consideration, sufficient to invalidate the release, is an issue in this action. (Ripley v International Rys., 8 NY2d 430; Schram v Cotton, 281 NY 499; Keller v American Chain Co., 255 NY 94; People v Castelo, 24 AD2d 827.) V. The practice of extracting releases or covenants not to sue in exchange for having criminal charges dropped is against public policy and the instrument by which it is sought to be accomplished is void. (Rumery v Town of Newton, 778 F2d 66; Newton v Rumery, 480 US 386; Matter of Doe v Coughlin, 71 NY2d 48; People v Alvarez, 70 NY2d 375; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57; People v P. J. Video, 68 NY2d 296; People v Class, 67 NY2d 431.) VI. The result achieved in the court below is founded upon an incorrect rationale, mistaken facts and inapplicable law and should be reversed. (People v Blakley, 34 NY2d 311; Newton v Rumery, 480 US 386.)
    
      Edward B. Flink and Kevin Laurilliard for respondent.
    I. Release-dismissal agreements are valid and enforceable when the parties voluntarily and knowingly enter into such agreements. (Newton v Rumery, 480 US 386; People v Blakley, 34 NY2d 311; Dziuma v Korvettes, 61 AD2d 677; People v Siragusa, 81 Misc 2d 368; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397.) II. Summary judgment was properly granted. (Willig v Rapaport, 81 AD2d 862; Capelin 
      
      Assocs. v Globe Mfg. Corp., 34 NY2d 338; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255; Bernstein v Freudman, 102 AD2d 805; Martin Delicatessen v Schumacher, 52 NY2d 105; First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397; Finserv Computer Corp. v Bibliographic Retrieval Servs., 125 AD2d 765; Rotuba Extruders v Ceppos, 46 NY2d 223.) III. The New York State Constitution does not invalidate release-dismissal agreements. (People v P. J. Video, 68 NY2d 296; Rivers v Katz, 67 NY2d 485; Bellanca v New York State Liq. Auth., 54 NY2d 228; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511; People v Hobson, 39 NY2d 479; Newton v Rumery, 480 US 386; PruneYard Shopping Center v Robins, 447 US 74; Cooper v California, 386 US 58; People v Fuller, 57 NY2d 152.) IV. Public policy mandates that the release-dismissal agreement be enforced. (Matter of Abramovich v Board of Educ., 46 NY2d 450; Fourth Ocean Putnam Corp. v Suburbia Fed. Sav. & Loan Assn., 124 AD2d 550; Buys v County of Nassau, 133 AD2d 94; Newton v Rumery, 480 US 386.)
   OPINION OF THE COURT

Per Curiam.

The issue before us is whether a release from civil liability of a municipality and two police officers, given by plaintiff as a condition of the District Attorney’s consent to dismissal of criminal harassment charges, should be enforced. We conclude that the release should not be enforced, and therefore deny defendant’s motion to dismiss the complaint.

On July 20, 1984, plaintiff and a companion were stopped in a car by two City of Amsterdam police officers — one of them the defendant in the present case. Plaintiff alleges that defendant arrested him without cause and beat him without provocation. Plaintiff was charged with two counts of harassment, a violation (Penal Law § 240.25 [1]). Several months after his arraignment, while the charges were pending, plaintiff filed a notice of claim for injuries sustained in the course of the incident.

Plaintiff’s lawyer and the Assistant District Attorney assigned to the case discussed the possibility of a negotiated disposition of the charges but plaintiff, maintaining that the charges were baseless, refused to accept the offer of an adjournment in contemplation of dismissal. Then, on December 19, 1984, shortly before trial, the prosecutor in open court offered to dismiss the charges provided plaintiff agreed to release the City and the two arresting officers from all civil claims arising from the incident. After discussing the offer with his attorney plaintiff accepted it, stating that he did so reluctantly, as this was the only way the matter could be disposed of without trial. The prosecutor gave no reason for imposing the condition.

After executing the release, plaintiff commenced the present tort action against defendant for malicious prosecution, false arrest, assault and battery. Defendant moved to dismiss the complaint on the ground that plaintiff had previously released all claims against him. In opposition, plaintiff contended that the Assistant District Attorney was aware that defendant had been involved in many similar assaultive incidents leading to civil suits, that the District Attorney’s office made a practice of demanding releases in those cases, that the prosecutor had opined that there was no merit to the charges against plaintiff but had insisted on obtaining a release, and that plaintiff had agreed to that condition because the expense and risk of trial were unacceptable but had been advised by his lawyer that the agreement would prove unenforceable. Supreme Court summarily dismissed the complaint, but the Appellate Division reversed and remitted for further proceedings, concluding that summary judgment had been improperly granted (127 AD2d 325).

At the hearing that followed, plaintiff’s attorney testified that from the beginning, the prosecutor had conveyed to him the view that the criminal charges were unfounded, and that the City had repeatedly been sued over defendant officer’s conduct. The prosecutor, by contrast, testified that he had believed the criminal case against plaintiff to be a good one, based on his conversations with the three police officer eyewitnesses and their reports. The reason proffered by the prosecutor for his ultimate decision was that "constantly being faced with the specter of a [civil] lawsuit, rather than proceed any further, the People decided that the most expedient solution to this case, and one that would be satisfactory to both parties, would be a dismissal, our consideration in return for a release from Mr. Cowles, his consideration.” The prosecutor also testified that an affidavit he had submitted in connection with defendant’s motion to dismiss had been prepared for him by defendant’s attorney. Supreme Court again dismissed the complaint, finding that plaintiff had voluntarily entered into the release-dismissal agreement. The Appellate Division affirmed, concluding that plaintiff was "fully apprised of the rights he was waiving and the benefit he was receiving in exchange therefor.” (138 AD2d 877.) We now reverse and deny the motion to dismiss.

The prosecutor’s decision to condition dismissal of the criminal charges against plaintiff upon relinquishment of his right to seek civil damages for defendant’s alleged misconduct was unrelated to the merits of the People’s case. Consequently, there remain unresolved factual allegations not only regarding defendant’s conduct, but also regarding the District Attorney’s office, which stands accused of routinely demanding such waivers in order to protect a police officer whose misdeeds it knows. The record in this case demonstrates that the practice of requiring the release of civil claims in exchange for dismissal of charges simply to insulate a municipality or its employees from liability can engender at least an appearance of impropriety or conflict of interest. The integrity of the criminal justice system mandates that an agreement made in the circumstances presented not be enforced by the courts.

Although the Appellate Division noted the danger of coercion presented by the choice offered plaintiff, it found that plaintiff had voluntarily agreed to execute the release. That finding, having support in the record, is not reviewable by us. We cannot agree with the Appellate Division, however, that voluntariness is the central consideration in determining whether to give effect to the arrangement. Nor do we agree that the release-dismissal agreement entered into here is fundamentally the same as a plea bargain (see, 127 AD2d, at 328; but see, id. [Kane, J., concurring]). In plea bargains, there is an admission of wrongdoing by the defendant and imposition of an agreed punishment; in return for forgoing conviction on the highest charges, the prosecution and defense are spared the burden and risk of trial. The process thus may be advantageous to both sides and to the public as well, not only because of economy, but also because a wrongdoer is punished with speed and certainty.

The same cannot be said of the agreement in this case. Insofar as the integrity of the criminal justice system was concerned — the paramount interest here — on this record there was no benefit, only a loss. Assuming plaintiff to have been guilty of the criminal charges leveled against him (as the prosecutor maintains) the People’s interest in seeing a wrongdoer punished has not been vindicated. Assuming him to have been innocent (as he maintains), or the case against him to have been unprovable, the prosecutor was under an ethical obligation to drop the charges without exacting any price for doing so. In either case, as in a case where the prosecutor simply determines that charges are not worth pursuing, such an agreement leaves unanswered questions about defendant’s conduct in making the arrest and about the motives of the District Attorney’s office. There is no public interest to be advanced by enforcing the agreement here. Rather, the agreement may be viewed as undermining the legitimate interests of the criminal justice system solely to protect against the possibility of civil liability; it surely does not foster public confidence that the justice system operates evenhandedly.

Insulation from civil liability is not the duty of the prosecutor. The prosecutor’s obligation is to represent the People and to that end, to exercise independent judgment in deciding to prosecute or refrain from prosecution. This obligation cannot be fulfilled when the prosecutor undertakes also to represent a police officer for reasons divorced from any criminal justice concern. To enforce a release-dismissal agreement under these circumstances is simply to encourage violation of the prosecutor’s obligation.

In reaching this conclusion, we are aware that a plurality of the United States Supreme Court recently upheld a release-dismissal agreement similar to the one at issue (see, Newton v Rumery, 480 US 386). To the extent that the decision was based on the fact that in Rumery the prosecutor had what was deemed "an independent, legitimate reason * * * directly related to [the County Attorney’s] prosecutorial responsibilities” (id., at 398), we agree that such a reason — if genuine, compelling and legitimately related to the prosecutorial function — might overcome the strong policy considerations disfavoring enforcement of such agreements. We emphasize, however, that absent such reasons, release-dismissal agreements present an unacceptable risk of impairing the integrity of the criminal justice process.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant’s motion to dismiss the complaint denied.

Titone, J.

(concurring). I concur in the majority’s decision to reverse, but I cannot agree with the majority’s case-specific analysis, which purportedly is premised on this record alone and resolves only the enforceability of the agreement at issue here. Like the majority, I conclude that the release is invalid and that the affirmed findings of "voluntariness” by the courts below are not dispositive. I would hold, however, that, as a general proposition, these agreements, in which criminal charges are dismissed in exchange for the defendant’s execution of a release from civil liability, offend public policy and will not be enforced. Accordingly, I write separately to explain my reasons for reversal.

Release/dismissal agreements discharging public officials and government agencies from civil liability as a quid pro quo for the dismissal of pending criminal charges against the releasor have been the subject of considerable debate in recent years (see generally, Fielkow, 42 USC § 1983 — Buying Justice: The Role of Release-Dismissal Agreements in the Criminal Justice System, 78 J of Grim L & Criminology 1119). Although the lower courts of this State have focused principally upon the potentially coercive aspects of these agreements (see, Dziuma v Korvettes, 61 AD2d 677; see also, Matter of City of Cohoes v Spizowski, 72 AD2d 847, 848 [Greenblott, J., concurring]; People v Siragusa, 81 Misc 2d 368), courts of other jurisdictions have looked beyond the private concerns of the litigants and considered their public policy implications (see, Boyd v Adams, 513 F2d 83, 88; MacDonald v Musick, 425 F2d 373, cert denied 400 US 852; Dixon v District of Columbia, 394 F2d 966, 969; Gray v City of Galesburg, 71 Mich App 161, 247 NW2d 338). The leading exposition on the subject to date is Newton v Rumery (480 US 386), in which a closely divided Supreme Court declined to adopt a per se rule of invalidity and upheld the particular release/dismissal agreement before it on the ground that it was voluntary and supported by what the majority deemed "an independent, legitimate reason * * * directly related to [the County Attorney’s] prosecutorial responsibilities” (id., at 398). Significantly, despite the deep divisions within the Rumery court, all of the Justices agreed that, regardless of their voluntary or involuntary character, release/dismissal agreements carry a serious potential for public mischief (id., at 394-395 [plurality opn per Powell, J.]; id., at 400-401 [O’Connor, J., concurring]; id., at 410-415 [Stevens, J., dissenting]).

First, as noted by the United States Court of Appeals and acknowledged by the Supreme Court majority in Rumery, such agreements " 'tempt prosecutors to trump up charges in reaction to a defendant’s [civil] claims, suppress evidence of police misconduct, and leave unremedied deprivations of constitutional rights’ ” (480 US, at 394, supra, quoting 778 F2d 66, 69). Second, the availability of such agreements creates a troublesome conflict of interest for prosecutors, who are called upon to balance the private concerns of witnesses and public servants against the legitimate concerns of their primary client, the People of the State of New York, in the enforcement of the criminal laws (see, 480 US, at 412-414 [Stevens, J., dissenting]). Third, they give rise to a serious risk that the societal interest in the prosecution of meritorious criminal charges will be compromised in an effort to protect local law enforcement personnel from the embarrassment and expense that attends civil litigation (see, id., at 400 [O’Connor, J., concurring]). Finally, by providing potential private litigants with a powerful incentive to forgo arguably meritorious claims, these release/dismissal arrangements interfere with an important mechanism for vindicating individual rights and holding public servants accountable, much "to the detriment * * * of society as a whole” (id.).

As is evident even from this very limited list of concerns, the reasons for objecting to release/dismissal agreements extend far beyond their potential for coercion. In addition to their potential for impairing the integrity of criminal justice process, such agreements encourage prosecutors to violate ethical rules which forbid attorneys from pressing criminal charges "solely to obtain an advantage in a civil matter” (Code of Professional Responsibility DR 7-105) and caution against using the criminal process to force settlement of private claims (Code of Professional Responsibility EC 7-21). Even more seriously, by permitting prosecutors to utilize their considerable discretion over the decision to prosecute in the service of goals unrelated to any legitimate law enforcement concerns, they breed cynicism and deprive the public of the independent, disinterested prosecutorial judgment to which it is entitled.

Weighed against this very real potential for harm, the reasons that are most often cited in support of permitting release/dismissal agreements are insubstantial. The benefits of insulating municipalities and law enforcement officers from the burdens of defending against civil claims, however frivolous or lacking in legal merit, are simply not, without more, proper factors for prosecutors to consider in exercising their discretion to prosecute or withhold prosecution of particular crimes. Moreover, while reducing court congestion and promoting judicial economy are generally worthy goals, they cannot justify judicial approval of a quid pro quo arrangement that undermines the fundamental integrity of the criminal justice system. As this court has recently observed, "[t]he first order of business of the criminal courts * * * is justice, not economy or convenience” (People v Ricardo B., 73 NY2d 228, 235). Similarly, the "first order of business” of the State’s prosecutors, who have been accorded considerable discretion within their own sphere of responsibility (see, Matter of Schumer v Holtzman, 60 NY2d 46; People v Zimmer, 51 NY2d 390, 394; People v Di Falco, 44 NY2d 482, 486-487; People v Mackell, 47 AD2d 209, affd 40 NY2d 59), is not to contribute to the improvement of the court system as a whole, but rather to ensure that, within the practical limits of the State’s resources, the people are zealously and ethically represented in the criminal courts.

To be sure, there are many instances in which a legitimate prosecutorial purpose might exist for dismissing seemingly meritorious criminal charges.* * For example, dismissal might well be deemed an appropriate course where the District Attorney’s resources are overtaxed, the crime is not a serious one, the defendant does not pose a serious ongoing threat to society or a witness wishes to avoid public exposure. In such cases, however, the prosecutor already has an independent motive for seeking dismissal, and the decision to exact a civil release in addition would therefore constitute prosecutorial overreaching. On the other hand, where these or similar considerations are not present, an agreement by the prosecutor to dismiss meritorious charges in exchange for a civil release would be difficult to justify.

For all of these reasons, I conclude that release/dismissal agreements are violative of public policy and should not be given judicial recognition. A promise is ordinarily deemed unenforceable when the interests favoring enforcement are "clearly outweighed in the circumstances” by strong public policies militating against enforcement (see, Restatement [Second] of Contracts § 178 [1]). The substantial potential for corruption of the system that is inherent in these agreements, coupled with the potential for misuse of prosecutorial authority and the dubious societal benefits they confer, counsels against the adoption of any rule that would sanction, or even merely encourage, their use.

It is on this point that the majority and I part company. Although the majority Per Curiam opinion contains much dictum suggesting its disapproval of these release/dismissal agreements, the majority has pointedly stopped short of holding that release agreements obtained in exchange for dismissal of criminal charges should generally not be enforced. In fact, one must search the majority Per Curiam with great care in order to find a legal principle that has some application beyond "the circumstances presented” (majority opn, at 386). Apparently, and without acknowledging as much, the majority has opted for an approach similar to that adopted by both the plurality and the concurrer in Newton v Rumery (480 US, at 392 [plurality opn per Powell, J.], 399 [O’Connor, J., concurring], supra), which involves analyzing the validity of release/dismissal agreements on a case-by-case basis. I have several serious objections to this approach — both in principle and as the majority has applied it here.

First, although it has invoked "the record” and indicated that its finding of unenforceability is limited to the circumstances presented in this particular case, the majority has made factual assumptions that are not actually based on what was established below. The dispositive fact for the majority appears to be that the District Attorney entered into the challenged agreement "solely to protect against the possibility of civil liability” (majority opn, at 387). In fact, although plaintiff has made that claim at various points in this litigation, defendant has disputed it. Moreover, the Assistant District Attorney who actually obtained the release explained at the evidentiary hearing held on defendant’s motion that he did so because it was his "understanding from dealing with [plaintiffs trial attorney] that he [the attorney] would always blame the police” and because he (the Assistant District Attorney) simply "got tired of fighting with [plaintiffs trial attorney].” Thus, it is far from established that the people’s primary goal in trading a dismissal for a civil release was, in reality, to insulate the police or any other government officer from exposure to civil liability.

The majority’s effort to wrestle the disputed facts presented here into manageable form points up some of the more fundamental difficulties with its insistence on a case-specific approach to determining the validity of these release/dismissal agreements. Obviously, any inquiry into the motives of parties to a prior agreement is problematic, since it invites post hoc rationalizations and, in some instances, testimony that is tailored to the contours of the case law. Further, the case-by-case approach is unsatisfactory because it would require the courts to second-guess the soundness, legitimacy and probity of the prosecutor’s expressed rationale, bringing the courts into direct conflict with the well-established rule that, as elected law enforcement officials, prosecutors have virtually unreviewable discretion to act within the proper sphere of their authority (see, Matter of Schumer v Holtzman, supra; People v Zimmer, supra; People v Di Falco, supra; People v Mackell, supra).

Finally, the majority’s case-specific approach, which provides little guidance for District Attorneys, future criminal defendants and their attorneys, is unsound from the standpoint of judicial policy, because it will lead to uncertainty as to the enforceability of these agreements in other cases. Such uncertainty is a particularly undesirable result in this context, since it creates the risk that a prosecutor entering into a release/dismissal agreement will discharge his side of the bargain by dismissing the criminal charges, only to discover after litigation in a subsequent civil proceeding — to which he is not a party — that the defendant’s side of the bargain, the release, is unenforceable. Manifestly, such a degree of unpredictability would not be tolerated in the law governing commercial contracts. I find it difficult to understand why the majority is willing to tolerate it in this specialized area of release/ dismissal agreements, in which the public interest is so directly implicated.

I do not suggest that there could never be a set of facts in which both parties’ reasons for entering into a particular release/dismissal agreement are so clear and compelling that they would outweigh the strong public policies that generally preclude enforcement of such agreements. However, in this case of first impression in our court, there is no need to speculate about the type of circumstances that might warrant creating an exception to a general rule against enforcement. The common-law process is sufficiently flexible to accommodate and account for special situations as they arise. Accordingly, unlike my colleagues in the majority, I have no reluctance to reach the conclusion that, as a general matter, these agreements violate public policy, while reserving the possibility that some novel fact pattern that is not now readily apparent might subsequently suggest itself as an exception.

In this case, it is sufficient to note that there are no special circumstances and no compelling reasons to give judicial recognition to the release/dismissal agreement that is proffered as a defense to plaintiff’s claims. Accordingly, I agree that the release is invalid and that, consequently, the motion to dismiss the complaint should be denied.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Titone concurs in result in a separate opinion.

Order reversed, etc. 
      
      . This is not to suggest that the coercive aspects of these agreements are insignificant. To the contrary, in most instances, the circumstances surrounding these agreements are inherently coercive, since they are made at a time when the civil claimant is facing the prospect of a criminal trial, with all of its accompanying risk, expense and embarrassment. Under such circumstances, even an intelligent and informed defendant, whether innocent or guilty of the charges, would be hard-pressed to resist an offer permitting him to walk away without further consequence in exchange for relinquishing a civil claim which might ultimately prove unsuccessful anyway.
     
      
      . It would be naive not to recognize that law enforcement personnel occasionally file preemptive disorderly conduct, obstructing governmental administration and harassment charges in order to obtain bargaining leverage when they anticipate that an unpleasant encounter between police and a private citizen will lead to a civil lawsuit. As was noted in Boyd v Adams (513 F2d 83, 89), " 'the danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest.’ ”
     
      
      . I note that the majority’s Per Curiam opinion does not seem to take this possibility into account.
     
      
      . To be distinguished are ordinary plea bargains in which the defendant relinquishes his right to a trial on pending criminal charges in exchange for more lenient penal treatment. In plea bargaining situations, the defendant admits his guilt and the societal interest in punishing wrongdoing is, at least in some measure, fulfilled (see, Newton v Rumery, 480 US 386, 393, n 3 [plurality opn]). In contrast, when criminal charges are disposed of through release/dismissal agreements, the only interest that is satisfied is that of those who wish to see the civil litigation finally resolved. Further, as Justice Stevens noted in his dissenting opinion in Newton v Rumery (supra, at 411), unlike plea bargains in which some penal sanction is imposed, these agreements "exact[] a price unrelated to the character of the defendant’s own conduct.” Thus, conventional plea bargains represent compromises that are consistent with the purposes of the governing penal statutes, while release/ dismissal agreements do not.
     
      
      . At an earlier point in its Per Curiam opinion, the majority notes that "there remain unresolved factual allegations” and "unanswered questions” regarding defendant’s conduct, the practices of the District Attorney’s office in general and the motives of that office in entering into this particular agreement (majority opn, at 386, 387). These acknowledgements make it even more difficult to understand the basis for the majority’s assumption that the purpose of the challenged agreement was to protect the police.
     