People v. Ohrenstein, Babbush, Sanzillo & Montalto , 153 A.D.2d 342 ( 1989 )

OPINION OF THE COURT

Per Curiam.

The People appeal from an order of Justice Harold Roth-wax, Supreme Court, New York County, dated June 15, 1988, which dismissed 265 of the substantive counts, and struck certain language and 89 overt acts from the conspiracy count, from an indictment charging the various defendants with a total of 665 counts (139 Misc 2d 909). The defendants against whom the appeal is taken are Senator Manfred Ohrenstein, the Minority Leader of the New York State Senate, his chief of staff, Francis Sanzillo, Howard Babbush, a State Senator from Brooklyn, and Joseph Montalto, a former State Senator from that borough. In a second order, dated July 27, 1988, Justice Rothwax upheld the balance of the indictment. In what is essentially a cross appeal, defendants seek relief pursuant to CPLR article 78, in the nature of mandamus and prohibition. The petition seeks to prevent the District Attorney of New York County from prosecuting and Justice Harold Rothwax from trying the defendants under that indictment which variously charges them with conspiracy, grand larceny, and offering false instruments for filing.

The indictment is based upon the premise that utilization of legislative aides in State senatorial campaigns prior to 1987 constituted an impermissible use of State employees and that payments of salaries out of the legislative budget for services rendered by such aides in political campaigns constituted violations of general Penal Law provisions relating to theft, fraud and filing of a false instrument. Defendants challenge the applicability of these penal statutes to legislative campaigning. They assert that this prosecution impermissibly intrudes into constitutionally protected areas affecting the separation of powers and responsibilities among the three coordinate branches of the State government and violates the constitutional privileges of the Legislature and its members under the Speech or Debate Clause. Arguments are also raised regarding the lack of clarity and certainty on the issues underlying this prosecution which implicate due process considerations of “notice”.

Contrary to the position taken by the People and the dissent, we find that article 78 relief is available to defendants in this case. Prohibition is allowed when a court acts “ 'without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction’ (Matter of Steingut v Gold, 42 NY2d 311, 315; also see, Matter of Carey v Kitson, 93 AD2d 50, lv denied 60 NY2d 553.) Where one branch of government oversteps another coordinate branch’s functions, a writ of prohibition may be issued. (See, Matter of Vergari v Walsh, 90 AD2d 801.) Moreover, an article 78 proceeding is generally proper to determine whether a statute has been applied in an unconstitutional manner (Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184, 191). In this case where there are issues of separation of powers concerning whether a coordinate branch of government exceeded its authorization, and issues raised as to constitutional violations in the application of various criminal statutes, we conclude that this article 78 proceeding is an appropriate vehicle for seeking relief.

The charges are predicated on allegations that prior to the November 1986 general election, by reason of attempts by New York State Senate Minority Leader Manfred Ohrenstein to secure a Democratic majority in the Senate,¹ there existed a conspiracy among the various defendants and others to commit the felonies of grand larceny and offering a false instrument for filing by using legislative employees paid from the Senate budget to work on election campaigns on behalf of various Democratic candidates while performing either no legislative duties or only some legislative duties. The various substantive charges are based on allegations that the defendants falsely certified that these employees had performed legislative duties entitling them to receive salaries when, in fact, no such services were performed.

To place these charges in perspective a brief description of the way in which the State Senate operates is helpful.

The New York State Senate, in Albany, is presided over by the Majority Leader who is a Senator from the party which holds the majority of the seats in that body and who sets the legislative agenda and controls the legislative commissions. In 1986, the Majority Leader was a Republican chosen from among the 35 Senators from that party. The Minority Leader selected from among the 26 Democratic members was Senator Ohrenstein, who had held that position since the early 1970’s. Regular legislative sessions are held from January to June, and at times a Special Session near the end of the year. A Senator’s working times are erratic, with hours varying according to whether it is the early or latter part of the session. In the early days of the session, activity is relatively slow and Senators may not spend a full week in Albany. In March, extensive activity takes place relating to the budget due to time constraints.² During the final days of the session, Senators and their staffs will often work endless hours and throughout the night with respect to the enactment of legislation.

The Senate budget, which is distributed along party lines, is negotiated between the Minority and Majority Leaders. The Minority Leader then allocates funds to each of the Senators from his party to be used to meet office and administrative expenses including staff salaries and mailing costs. Within the budget he or she has been allocated, each Senator determines the titles, salaries, working hours and vacation time of that Senator’s employees.

A Senator who is assigned to a commission is entitled to additional staff. The appointment of minority Senators to such commissions is made by the Minority Leader, and his office is also responsible for hiring minority staff employees for the commissions and designating their titles. Francis Sanzillo, who had been Senator Ohrenstein’s chief of staff since 1984, was the person charged with reviewing and approving the hiring of these employees from that time on, subject to Senator Ohrenstein’s approval.

Although the Senate has no uniform policy regarding job descriptions or working hours, which are left to the individual Senator, there are procedures for placing a person on the payroll. A person may be employed for a session, or for the year, and it is not uncommon for employees hired on a session basis to change payrolls from one session to the next. At the beginning of every session each Senator must file a form entitled "Recommendation for Employment” for each member of his staff. This form, signed by the Senator, indicates the employee’s name and title and upon its submission to the Senate personnel office, the person is placed on the payroll. For those employees to be paid, the Senator must submit to the Senate payroll office biweekly payroll certification forms. These forms include a payroll list specifying the employees on the Senator’s staff with their titles, biweekly salary amounts and whether the particular employee was hired on a session or annual basis. The payroll list concludes with the certification that the person in the position specified performed the duties of that position.³ The Senator may assign a member of his staff to sign the certification forms so long as the Senator signs at least one certification quarterly.

For minority staff employees on commission payrolls, the Minority Leader or his representative, in this case Sanzillo, prepares the certifications which are sent to the commission chairperson, a Senator of the majority party. The commission chairperson transmits these certifications to the Senate payroll office. The payroll office prepares a master payroll of all Senate employees which is submitted to the State Comptroller who in turn issues the checks. The checks are transmitted to the Senate payroll office for distribution to the named employees on a biweekly basis. These payroll certifications, for particular Senators’ staffs and for commission employees, are the basis of the offering a false instrument for filing counts in the indictment.

As a result of Senator Ohrenstein’s position as Minority Leader, he had by 1986 accumulated a very sizeable staff and his office had become the center for coordinating Democratic strategy with respect to legislation in the Senate. While some of Ohrenstein’s staff worked on research and the drafting of bills and the providing of constituent services to his district, the greater part of his staff served as staff to the Senate Minority Conference. The Conference’s function is to formulate a united and cohesive plan of legislation for the Democratic Senators, and also to aid new Senators in establishing local district offices and in generally familiarizing them with Senate procedures. Often staff employees from the Minority Leader’s office would be permanently assigned to another minority Senator’s individual staff without switching payrolls.

As Minority Leader, Senator Ohrenstein’s staff is composed of essentially four groups: the district office, program, commission, and local coordinating staffs. The district office is the liaison between Ohrenstein and his constituents; the program staff is supervised by the Senate Minority counsel staff to formulate legislative programs for the Minority Conference; commission staff are assigned to the various legislative commissions; the local coordinating staff can be characterized as the "political operation” of the Senate Democrats. The coordinators, usually annual employees, are divided between the upstate and downstate regions. They act as liaisons between the local districts and the Conference. Coordinators are assigned to districts where there is a Republican incumbent or where a Democratic incumbent is weak. The coordinators in these districts try to develop politically beneficial legislative program and assist political campaign strategists by preparing a "profile book” that would be helpful to Democratic candidates. This book contains voting patterns, an incumbent’s history on legislative voting, poll results, the names of local leaders and the like.

The Minority Conference operates in two major areas— legislative and political. These parallel functions are each supervised by a "steering committee” composed of Democratic Senators. Although membership on the steering committees is not identical, the Minority Leader, Senator Ohrenstein, heads both. The legislative steering committee’s efforts are directed to implementing the Democratic Conference’s legislative agenda. It is, however, the political steering committee, which is involved with supervising Democratic senatorial campaigns, that is of particular relevance, in the context of this case.

As indicated, Senator Ohrenstein is the head of the political steering committee and Francis Sanzillo, his deputy, had been in charge of its operations since 1982. The political steering committee oversees Democratic campaigns for the State Senate and targets certain districts for particular attention. When these districts are selected, the political steering committee promulgates campaign strategy and is involved in setting the campaign budget, approving the campaign manager and receiving reports on the progress of the campaign.

In addition to its ability to assign staff to work on specific campaigns, the Minority Conference political steering committee also has control over the funds of the Senate Democratic Campaign Committee (SDCC), a group which is the campaign finance organization of the State Democratic Party relative to State Senate campaigns. Sanzillo, as the person in charge of the Conference political operations during the time in question, determined who received campaign funds from SDCC and how much. The SDCC funds which candidates receive are in addition to those raised by their individual campaigns. Since the inception of the Minority Conference in the 1970’s, Conference staff had regularly participated in campaign and SDCC fund-raising activities.

The majority of the counts in the indictment refer to legislative employees assigned to work on the major campaigns targeted by the Minority Conference political steering committee in 1986. These employees were conveniently grouped by Judge Rothwax as follows:

Category 1—10 people who had been on the Senate payroll prior to the campaign and were loaned out, on a full-time basis, to assist various Democratic candidates during the campaign while remaining on the Senate payroll.

Category 2—8 people placed on the Senate payroll who were hired to work on the 1986 campaign and were thereafter retained to work in the 1987 legislative session.

Category 3—18 people on the Senate payroll who were hired to work on the 1986 campaign and were removed from the payroll at the end of the campaign.

Category 4—3 persons on the payroll who did not render services of any type and who are classified as "no-shows”.

There are individuals included in the foregoing who áre the subject of counts that fall outside of the time periods specified in their categories. Arlene Wolff was placed on the Senate payroll for the period from January 1, 1981 to October 20, 1982 during which she did fund raising for the SDCC. Barbara Zebersky, who was also involved exclusively in fund raising, but for individual campaigns, was hired in April 1984 as part of the Minority Conference staff. The periods of her employment, that are the subject of counts in the indictment, precede and overlap with those in the above-enumerated categories. These periods are April 19, 1984 through January 9, 1985; January 10, 1985 through January 8, 1986 and January 11, 1986 through December 31, 1986.

Individuals also falling outside of the 1986 campaign time period are persons classified as "no-shows” (Category 4). These are persons who were placed on the payroll but did not render any services at all, either campaign or legislative. They include Joseph Walsh, who was placed on the district office payroll for the period of June 2, 1983 to July 9, 1986, and Arnold Smith who was on the payroll from September 19, 1985 to January 8, 1986 and from January 9, 1986 to July 24, 1986. The indictment further alleges that for the period from July 14,1983 to April 18, 1984, Barbara Zebersky fell into this category. She had been working for Senator Babbush, who, in July 1983, told her not to report for work. She reported approximately two times a week until sometime in September, when she ceased attending at all. However, throughout the above time period, Senator Babbush continued to sign payroll certification forms for her.

Carmen Del Priore was not placed in Category 4 by the court because she was hired within the context of the Montalto campaign and therefore was classified in Category 3. However, a review of the Grand Jury testimony demonstrates that she did no work and should be grouped with the other "no-show” employees. When placed on the payroll she was given the title "Administrative Assistant to the Minority”. Her employment, which began August 21, 1986, was terminated effective November 12, 1986.

The original indictment charged the existence of a conspiracy (Penal Law § 105.05) among the defendants between January 1, 1986 and January 1, 1987, to commit the felonies of offering a false instrument for filing in the first degree (Penal Law § 175.35) and grand larceny in the first and second degrees. (Penal Law former §§ 155.35, 155.40.) In addition to the conspiracy count, the original indictment contained 613 substantive counts of offering a false instrument for filing, 44 counts of grand larceny, six counts alleging theft of services (Penal Law § 165.15 [9]) in that the labor of employees was diverted to the use of political candidates. A final count charged all defendants except Senator Quattrociocchi with defrauding the government (Penal Law § 195.20 [eff Nov. 1, 1986]) in that from November 1, 1986 to December 24, 1986, they obtained property from the State by a scheme to defraud.

The conspiracy count generally refers to the 1986 State senatorial campaign, while however, the substantive counts cover time periods between 1981 and 1986.

Senator Ohrenstein was charged in a total of 581 of the false instrument counts. He was charged jointly with Francis Sanzillo in 511 of those counts as well as in 36 counts of grand larceny and in the six counts of theft of services. He and Sanzillo were also charged jointly with Senator Babbush in 12 false instrument counts and in a single count of grand larceny in regard to the employment in 1986 of Clifford Wilson. Additionally, he and Sanzillo were charged together with Joseph Montalto in 12 false instrument counts and in two grand larceny counts in connection with Montalto’s 1986 campaign. Ohrenstein was further charged separately in 46 of the false instrument counts, and in one count of grand larceny in regard to the employment of Arlene Wolff.

In addition to the foregoing, Francis Sanzillo was charged individually in one grand larceny count with regard to the 1986 employment of Glenn Van Brauner, and Senator Babbush was individually charged in 20 false instrument counts and one count of grand larceny with regard to the employment of Barbara Zebersky.

All counts in which Senator Quattrociocchi was charged were dismissed and the People are not appealing the dismissal of the portions of the indictment pertaining to him.

Trial Term granted, in part, defendants’ motion to dismiss the indictment by dismissing 265 of the 665 counts (139 Misc 2d 909). In upholding the remainder of the indictment, the court held that hiring and paying legislative employees to do no work, or to perform only campaign work for a candidate, does not constitute a legislative act within the meaning of the Speech or Debate Clause, nor is a prosecution based on payment of State funds to such employee rendered nonjusticiable under the "political question” doctrine.

The counts dismissed by the trial court related to employees who had also performed noncampaign legislative work while assigned to senatorial campaigns or who had been on the Senate payroll prior to the election campaign (Category 1) or who had been hired for the campaign but were thereafter retained for the 1987 legislative session (Category 2). In addition, the court dismissed the count of defrauding the government (Penal Law § 195.20) which was based on the vacation period given to employees after the 1986 election and the six theft of services (Penal Law § 165.15) counts. It is from these dismissals that the People appeal, while the defendants, in their petition, seek dismissal of the balance of the indictment.

The People and the dissent contend that the court erred (1) in holding that, under the Speech or Debate Clause, the performance of some legislative acts by certain Senate employees precluded prosecution of the defendants for what is claimed to be larcenous conduct involving those employees and (2) in ruling that the question of whether certain other legislative employees were improperly engaged in campaign activities is a nonjusticiable political question which cannot be litigated without the judiciary infringing on the prerogatives of a coordinate branch of government. The People essentially argue that the payment to legislative employees for work done in senatorial campaigns was per se illegal and subject to criminal prosecution.

Defendants take the position that the conduct complained of by the People is not criminal and that the People’s contrary assertion requires such a tortured construction of the law that, were it to be adopted, it would defeat the constitutional requirements of certainty and clarity embodied in the due process concept of "notice”. Defendants further claim that, by attempting to criminalize their activities, the People are impermissibly intruding into the Legislature’s affairs in violation of the doctrine of separation of powers and of the Speech or Debate Clause.

We turn first to defendants’ argument that this prosecution in its entirety intrudes into the legislative sphere in violation of the separation of powers and the Speech or Debate Clause.

We conclude, as did the trial court after a careful and thorough analysis, that the latter clause is of limited application to this case. Article III, § 11 of the NY Constitution, commonly referred to as the "Speech or Debate” Clause, states that "For any speech or debate in either house of the legislature, the members shall not be questioned in any other place”. An identical provision is contained in the United States Constitution. (US Const, art I, § 6, cl 1.)

The purpose of the clause is to protect the integrity of the legislative process. A legislator’s speech within the confines of his official duties should not be inhibited because of a fear of litigation. (Oates v Marino, 106 AD2d 289; see, Gravel v United States, 408 US 606.) Legislators are to be protected not only from the consequences of litigation results, but from the burden of defending themselves. (Eastland v United States Servicemen’s Fund, 421 US 491, 503.)

As interpreted by the United States Supreme Court, the provision is not intended to confer a general exemption upon legislators from liability or from process in criminal cases, but is, rather, directed to matters which "must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House”. That court has further indicated that the privilege has been extended by courts "to matters beyond pure speech or debate in either House, but 'only when necessary to prevent indirect impairment of such deliberations’ ”. (Gravel v United States, supra, at 625, citing United States v Doe, 455 F2d 753, 760.)

The privilege has been expanded to include legislative personnel where the employees’ duties are directly related to the due functioning of the legislative process. "Thus, if the employee’s duties are an integral part of the legislative process, such that they are directly assisting members of Congress in the 'discharge of their functions,’ personnel decisions affecting them are correspondingly legislative and shielded from judicial scrutiny.” (Browning v Clerk, U. S. House of Representatives, 789 F2d 923, 929, cert denied 479 US 996.)

While it is recognized that legislators necessarily engage in many activities beyond the purely legislative and that there are many legitimate errands of a political nature that have come to be expected of them such as assisting and working with constituents, meeting with other governmental agencies, obtaining governmental contracts, preparing news releases, making speeches and sending newsletters to constituents, activities of this type have been held not to be covered by the protection afforded by the Speech or Debate Clause. (United States v Brewster, 408 US 501, 512.)

In the instant case, there was evidence presented to the Grand Jury that Senate employees Patrick Prefetti and Ingrid Stettner prepared a report for the Senate Dairy Commission in October 1986, which falls within the period covered by the indictment, and that Mary Rose Stevenson, during September and October 1986, arranged a legislative hearing on tax issues. These activities clearly fall within the ambit of legislative acts that are covered by the Speech or Debate Clause (Gravel v United States, supra, at 624; Hutchinson v Proxmire, 443 US 111, 133).

The indictment cannot be legally sufficient if it is based on Grand Jury testimony which may require inquiry into legislative acts or the motivation for legislative acts. (United States v Brewster, supra.) Although the general rule is to view the Grand Jury evidence in the light most favorable to the People, that rule does not apply where the constitutional rights protected by the Speech or Debate Clause are affected. (United States v Helstoski, 442 US 477, 488-492.) When it is apparent that legislative employees have performed legislative acts, the Speech or Debate Clause prevents inquiries, " 'even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.’ ” (Eastland v United States Servicemen’s Fund, 421 US 491, 510, supra, citing Doe v McMillan, 412 US 306, 312-313.) The obligation is on the prosecutor to show that no privileged legislative act would be implicated, since imposing that obligation on the defendant would violate the intent behind the Speech or Debate Clause of protecting legislators, who are performing legislative acts, from the necessity of defending themselves. (United States v Helstoski, 442 US 477, supra; Eastland v United States Servicemen’s Fund, supra, at 503; Doe v McMillan, supra.)

In this case the trial court properly found that the People failed to meet their obligation of showing that the prosecution with respect to the counts relating to Prefetti, Stettner and Stevenson could proceed without touching upon the specifics of their privileged legislative assignments. Accordingly, the dismissal of those counts, involving Prefetti and Stettner, on speech or debate grounds, is affirmed, no appeal having been taken from the dismissal of counts regarding Stevenson.

While the People and the dissent take issue with the foregoing conclusion, they argue that, in any event, "the Speech or Debate Clause completely meets all of the separation of powers concerns implicated by a prosecution against a legislator”. We disagree. As recognized by the trial court, the separation of powers doctrine is not contiguous with the Speech or Debate Clause but has a far broader reach. The People and dissent’s position ignores the basic policy which requires "the exercise of a proper restraint on the part of the judiciary in responding to invitations to intervene in the internal affairs of the Legislature as a co-ordinate branch of government—'it is not the province of the courts to direct the legislature how to do its work’ ”. (New York Pub. Interest Research Group v Steingut, 40 NY2d 250, 257.) In seeking to restrict and limit the privileged sphere of legislative powers only to those acts covered by the Speech or Debate Clause they ignore prior judicial recognition and acknowledgment that there are many activities of legislators, concededly not covered by the Speech or Debate Clause, which quite properly and necessarily fall within the ambit of a legislator’s work (United States v Brewster, supra, at 512) and which are nonjusticiable (United States ex rel. Joseph v Cannon, 642 F2d 1373, cert denied 455 US 999), as well as prior judicial refusal in this State, dehors the Speech or Debate Clause, to intrude in the internal operations of a coordinate branch of government. (See, e.g., Matter of Gottlieb v Duryea, 38 AD2d 634, affd 30 NY2d 807, cert denied 409 US 1008.)

It has been recognized that the separation of powers in our tripartite form of government gives rise to so-called "political questions”, not to be confused with "political cases”, which are not appropriate for judicial intervention and which are held to be nonjusticiable. While the contours of what constitutes such a "political question” are necessarily flexible, and not always easy of definition, the United States Supreme Court in Baker v Carr (369 US 186) set forth relevant criteria to enable a court to make a determination as to whether a "political question” can be said to exist in a particular situation. That court observed that it is the relationship between the judiciary and the coordinate branches of government which give rise to a "political question” in a particular case and the "nonjusticiability of a political question is primarily a function of the separation of powers” (at 210). To enable a court to determine whether a nonjusticiable "political question” is involved, the following criteria are set forth in that case (at 217):

"[1] A textually demonstrable constitutional commitment of the issue to a coordinate political department; or "[2] a lack of judicially discoverable and manageable standards for resolving it; or

"[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or "[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or "[5] an unusual need for unquestioning adherence to a political decision already made; or "[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question”.

If any one of the foregoing is "inextricable from the case at bar”, the matter can be held to involve a nonjusticiable political question. (Baker v Carr, supra, at 217.)

In arguing that the scope of the duties performed by legislative employees, including those that are of an exclusively political nature, constitute a nonjusticiable issue, defendants rely on three prongs of the Baker v Carr formulation. They are the " 'textually demonstrable commitment’ of appropriation, budgetary and legislative assignment issues to the Legislature, the 'lack of judicially discoverable and manageable standards for resolving’ the case, and the 'impossibility of deciding [the case] without an initial policy determination of a kind clearly for nonjudicial discretion’ ”.

We agree that relevant considerations raised in Baker v Carr (supra) are implicated and inextricably entwined with the facts of the instant case to the extent it relates to the issue of whether the assignment of legislative employees to work on senatorial campaigns falls within the proper duties of such employment.

Our analysis is undertaken within the parameters of the continually reaffirmed precept thát "[t]he object of a written Constitution is to regulate, define and limit the powers of government by assigning to the executive, legislative and judicial branches distinct and independent powers. * * * It is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others”. (People ex rel. Burby v Howland, 155 NY 270, 282; Saxton v Carey, 44 NY2d 545, 549; Matter of County of Oneida v Berle, 49 NY2d 515.)

Under our State Constitution, the Legislature is vested with sole authority to enact laws for the appropriation of funds to be paid out of the State treasury (art VII, § 7; People v Tremaine, 252 NY 27), and to "regulate and fix the wages or salaries and the hours of work or labor * * * of persons employed by the state” (art XIII, § 14). Article VII, § 7 expressly provides that "every such law making a new appropriation * * * shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied”. The legislative budget covering the period here in question included an appropriation for the specific purpose of providing funds for "personal service of employees and for temporary and expert services of legislative and program operations” and "personal service of employees and for temporary and expert services of standing committees”. The appropriation does not further describe the activities within its scope. However, legislative committees have the power to "employ needed assistants and fix their compensation within the amount available to the committee by appropriation.” (Legislative Law § 9.) Similarly, the Senate Minority Leader is allowed to "appoint such employees to assist him in the performance of his duties as may be authorized and provided for in the legislative appropriation bill.” (Legislative Law § 6 [2].)

"[A]s a matter of substantive law every legislative enactment is deemed to be constitutional until its challengers have satisfied the court to the contrary”. (Montgomery v Daniels, 38 NY2d 41, 54.) Here, of course, there has never been any direct attack on the constitutionality of the particular budget appropriation involved, or any part thereof, on the basis that it violates some constitutional provision or otherwise. (Cf., New York Pub. Interest Research Group v Steingut, 40 NY2d 250, supra; Fox v Mohawk & Hudson Riv. Humane Socy., 165 NY 517; Matter of Borup, 182 NY 222.)

Generally, the courts will not interfere with the internal procedural aspects of the legislative process, but judicial review may be undertaken with respect to the budget to determine whether the Legislature has complied with constitutional prescriptions as to legislative procedures (Matter of Board of Educ. v City of New York, 41 NY2d 535, 538; emphasis added) and the courts may intervene in the budgetary process to ensure that the methodology prescribed by the Constitution is properly utilized, as in the case of itemization, but it will not intrude in the degree of itemization which is best left to the Legislature, for it is not something which can be accurately delineated by a court. (Saxton v Carey, supra, at 550; emphasis added.)

The dissent asserts that "[t]he Court of Appeals has repeatedly held that the judiciary not only may, but must, decide whether purportedly 'internal’ legislative procedures comply with State statutes and constitutional provisions” citing Matter of Board of Educ. v City of New York (supra) and Matter of Anderson v Krupsak (40 NY2d 397). Reference to those cases is, indeed, instructive. In Matter of Board of Educ. v City of New York, the issue was whether the Legislature procedurally had properly overridden the Governor’s veto of the StaviskyGoodman Law (L 1976, ch 132) in conformity with both the provisions of the Constitution and the rules of the Senate. In Matter of Anderson v Krupsak, the issue was again concerned with whether specific procedural mandates (of section 202 of the Education Law) were complied with in connection with the election by the Legislature of members of the Board of Regents. Thus, these cases speak to the legality of the procedures by which particular legislation is enacted in distinction to the internal operational and organizational practices of the Legislature itself which are involved in the instant case.

Here, there is no direct challenge to the constitutionality or validity of either the budget or any other particular legislative enactment. The People apparently assert that because the legislative budget enactment did not expressly authorize the payment of salaries to employees who engaged in political or campaign activities, such were ipso facto illegal. It may be noted that the budget allocation in question did not expressly authorize payments to those who operated typewriters, computers or did research on various matters. As already detailed, the bill was drafted in the broadest of terms merely speaking of "funds for personal service of employees”. The dissent’s reliance on Farrington v State of New York (248 NY 112) for the proposition that "whether a legislative expenditure is an unconstitutional gift of public funds masquerading as a legitimate appropriation always gives rise to 'a question of legislative power which must be determined by the courts’ ” is somewhat puzzling in the context of this case. In Farrington, the court dealt with a private legislative enactment conferring jurisdiction on the Court of Claims to determine a claimant’s claim for the recovery of counsel fees expended by reason of his wrongful discharge. While the court found that enactment to be constitutional within the "gift of public money for private purposes” clause, there again the issue was whether a specific statute was valid or violative of a constitutional provision. The issue here is a wholly different one dealing with certain expenditures for salaries pursuant to a broadly drafted budget appropriation that has never ,been directly challenged.

The Constitution textually commits the issue of budget enactment and regulation of wages and hours of State employees to the Legislature, which in this case has exercised that authority by merely broadly directing that a particular allocation be used "for personal services of employees”. The People’s assertion that the extent to which that allocation has been properly used is "a question of law to be determined by the Court” implicates other considerations raised in Baker v Carr (369 US 186, supra) which impact on the question of the justiciability of such issue. Implicit in that undertaking would be the need for the court to exercise its judgment to delineate with some specificity the scope of the particular activities constituting the "proper duties” of a legislative employee during the period covered by the indictment. Crucial to any such determination would be whether there are discoverable and manageable standards that would permit judicial review of that issue, as well as the further consideration of whether intrusion into this area would require a policy resolution that is inappropriate for judicial action. Central to this issue, of course, is the extent to which political activities and working on political campaigns can be said to fall within the ambit of such "proper duties”, particularly in the context of the Minority Leader’s role and function.

While the Legislature is constitutionally vested with the authority to "regulate and fix the wages or salaries and the hours of work or labor * * * of persons employed by the state”, the Minority Leader of thé Senate is given the power by statute, to "appoint such employees to assist him in the performance of his duties as may be authorized and provided for in the legislative appropriation bill” (Legislative Law § 6 [2]) and certain other employees to fill specified offices and positions (Legislative Law § 7). As the appointing officer of these various employees, he is given the authority to determine their tenure (Legislative Law § 8) and their compensation (Legislative Law § 10). The duties of the Minority Leader of the Senate are not otherwise defined nor is there any further statutory illumination of the scope or nature of the duties of legislative employees. Clearly, however, these are matters which are singularly within the Legislature’s own purview involving as they do the internal procedures and administration of the functions and peculiar duties of that body, which it has been held should be free from interference from another branch of government. (Matter of Gottlieb v Duryea, 38 AD2d 634, affd 30 NY2d 807, cert denied 409 US 1008, supra; also see, Public Citizen v Simon, 539 F2d 211; Davids v Akers, 549 F2d 120.)

While it is unquestioned that during the time period covered by the indictment there were no legislatively promulgated standards or rules governing the nature or scope of the duties or other terms of employment for Senate employees, there is a long history indicating the Legislature’s awareness of and sensitivity to the interrelationship between political considerations and legislative activity and its failure to take action regarding the issue. In 1945, a New York State Joint Legislative Committee declared that the duties of the Senate Minority Leader included "conducting] legislative program for minority party”, and that the duties of the Minority Leader’s administrative staff included "[p]erform[ing] administrative, research, clerical, [and] publicity services for party program” (Interim Report of NY St Joint Legis Comm on Legis Methods, Practices, Procedures and Expenditures, 1945 NY Legis Doc No. 35, chart 7, at 52). The Joint Committee also recommended against civil service status to legislative employees because, inter alia, "legislative personnel must continue to be recruited from groups sympathetic to a legislator’s program”, "[u]nder our theory of government where party programs have been the basis for legislation, it might hamstring a legislator to surround him with employees unsympathetic to his point of view or to whom party strategy cannot be confided”, and, significantly, "civil service employees would not be free to participate in the political activity generally required of a legislator” (id., at 31, 32).

After the 1982 election, then Assembly Speaker Stanley Fink proposed that the Legislature adopt rules governing the use of legislative employees in legislative campaigns but no action was taken on that proposal and no guidelines adopted although the Minority Leader and his chief of staff did explore the issue in 1982 and 1983 with the Senate counsel Eric Lane and a legal consultant to the Senate, Professor Agata. It was also a topic of discussion at a 1984 Minority Conference steering committee meeting.

In September 1985, the District Attorney of Kings County, Elizabeth Holtzman, after an investigation of then Assemblyman Charles Schumer’s use of legislative staff in his campaign for Congress concluded that there were no guidelines or laws covering the use of State legislative aides for campaigning purposes and therefore no New York State law had been violated. She then referred the matter back to the Legislature with the following statement and recommendation: "there was no basis for criminal prosecution under New York State laws. Our investigation indicated that a need exists for the Legislature to establish controls to prevent the substantial use of state employees and facilities by its members for campaign purposes. In particular, there is a need for specific job descriptions, improved time accountability, and specific rules governing the use of any of state employees and facilities for campaign purposes. Sanctions should also be provided for those individuals who intentionally violate these rules.”

In March 1987, the Joint State-City Commission on Integrity in Government was established focusing on the entire issue of ethics and propriety in all areas of governmental operations.

It was not, however, until April 1987, after the investigation leading to this prosecution was publicized, that the Legislature, in Concurrent Resolution No. 812, finally took steps "to provide guidelines for members and legislative employees with respect to participation of legislative employees in political activity” acknowledging that no guidelines exist "to assist members and legislative employees regarding the participation of such employees in political campaign activity” and that "legislative employees are not prohibited by statute, rule, regulation or otherwise from engaging in political campaign activity”. That resolution established a blue ribbon commission to review the use of legislative employees participating in campaign activities and promulgated the following interim guidelines pending the commission’s report:

"1. That it is the rule of the New York State Legislature that legislative employees of a member, officer, legislative commission or committee of the Legislature are compensated from funds of the New York State treasury for the performance of officials duties on behalf of the member, officer, legislative commission or committee. The official duties of a legislative employee, the adequacy of performance thereof and the compensation therefore are the exclusive prerogatives of the Legislature.

"2. It is hereby established as the rule of the Legislature that no person shall be hired by the Legislature to engage solely in political campaign activity. However, when a legislative employee is not obligated to perform duties assigned to him, or her, the employee is free to engage in political campaign activities.

"3. As to the standards applicable to the duties of legislative employees, although no precise job descriptions are in force for such employees, it is expected that such employees will approach their duties with general ethical standards in mind and use good judgment and common sense.

"4. A legislative employee’s official duties may include, by way of example only, representational activities, such as constituent casework, preparation of news releases and newsletters to constituents, public appearances and other responsibilities which are not political campaign activity:

"5. Legislative employees may properly be engaged in political campaign activity, provided such activity does not cause the employee to neglect his, or her, official duties.”

In August 1987, Governor Cuomo approved both the Ethics in Government Act (L 1987, ch 813) which created the Legislative Ethics Committee, and the companion New York State Governmental Accountability, Audit and Internal Control Act of 1987 (L 1987, ch 814) requiring the Senate to establish internal procedures governing areas such as payroll and personnel.

There is no question, therefore, that prior to April 1987, and particularly during the period covered by the indictment, there were no legislative standards, rules or guidelines in existence detailing the "proper duties” of legislative employees, an issue which was officially addressed for the first time in the 1987 resolution. Essentially, the Legislature declined to act during that period in an area that was its exclusive prerogative—the administration of its own internal affairs— albeit that it has now finally undertaken its responsibilities in that regard.

Notwithstanding the absence of any legislatively enacted guidelines during the relevant period, the trial court held that there was a standard which controlled here, pointing to article VII, § 8 of the NY Constitution referred to as the "No Gift” Clause, which provides that: "The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking”.

It concluded categorically that payment to legislative staff for work on political campaigns was "an unconstitutional private application of public revenue” which provided a sufficient predicate for criminal prosecution. Significantly, no authority is offered to support the ultimate conclusion that a violation of the provision, assuming, arguendo, that such exists, is subject to penal sanctions. The provision itself specifies no penalty for its violation, nor is any statute pointed to which so provides. Moreover, none of the authorities relied upon by the court arose in the context of a criminal prosecution. For example, Stem v Kramarsky (84 Misc 2d 447) and Matter of Phillips v Maurer (67 NY2d 672) both involve injunctions against administrative agencies enjoining their expenditures of funds for the promotion of, in one case the Equal Rights Amendment, and in the other a budget and bond issue. As administrative agencies, in distinction to the legislative branch, they were limited merely to providing information in a neutral, rather than a partisan, vein. Moreover, Matter of Phillips v Maurer (supra) dealt with expenditures under particular sections of the State Education Law rather than within the context of this constitutional provision.

We do not find that this provision, standing alone, would provide the kind of clear and unambiguous guidance necessary to enable appropriate judicial resolution of the issue at hand which involves not an individual case determination but, rather, a wide-scale particularization of the propriety of the specific activities and terms and conditions of employment of numerous employees working in a broad range of categories. This would require precisely the kind of "itemization” which has been held not to be a court’s function. (Saxton v Carey, 44 NY2d 545, supra.) The failure of the Legislature to act in promulgating appropriate standards governing the duties and assignments of its employees, a matter within its sphere of authority, does not entitle another branch of government, "to fill the vacuum and impose a solution of its own”, as the People have here attempted. (Boreali v Axelrod, 71 NY2d 1, 13.)

Moreover, for a court to attempt to determine the proper scope of the duties of legislative employees in the absence of manageable guidelines or standards would require the kind of policy determination which in our view is not suited for judicial discretion.

Any such determination would involve an underlying policy consideration as to the extent to which activities of a political nature may appropriately be engaged in by legislative employees. This necessarily requires an exploration of the unique role which politics plays in the legislative arena in distinction to the other two branches of government. Once elected, executive branch officials assume the titles of their offices without any partisan party characterization. Judicial officers, whether elected or appointed, upon taking office must become wholly apolitical. It is only in the legislative branch that the partisan political party affiliations of elected representatives continue to cloak their official activities. The terms Majority Leader and Minority Leader are incorporated in the Legislative Law which delineates the Senate’s hierarchy. As a consequence, the ability to effectively accomplish particular legislative goals is in great measure predicated upon such partisan party affiliations. Enactment of legislation cannot be separated from political involvement and, realistically, political party platforms are the basis for legislation under our system of government. The wide range of activities performed outside the purely legislative sphere which have grown over the years in part because they are a means of developing continuing support for future elections have been held to be entirely legitimate activities. (United States v Brewster, 408 US 501, supra.) It can be argued that politics historically has been an integral part of the legislative process and is intimately related to, and intertwined with, the legislator’s public role in attempting to garner public support for the legislative programs which he or she espouses; and, the record indicates that the use of legislative staff for a broad spectrum of political duties, including partisan campaigns, is not a new phenomenon. That this practice may be personally distasteful or offensive to us is, however, not the barometer. The question is whether it is appropriate for a court to attempt to legislate the precise terms and conditions of employment which, in its judgment, constitute "the proper duties” for employees of another coequal branch of government, whose character and operations are in so many ways at variance with the judicial format both in its partisan character and activities as well as in the irregularity and seasonal vagaries of its work schedule.

We find persuasive the decision in United States ex rel. Joseph v Cannon (642 F2d 1373 [DC Cir], cert denied 455 US 999) where the court was presented with precisely the same issue. There, in a suit under the Federal False Claims Act, it was alleged that Senator Cannon had defrauded the United States by authorizing regular salary payments to an aide who for 20 months had worked "extensively and exclusively” on the Senator’s reelection campaign (at 1375). The moneys in question had been appropriated to the United States Senate solely to compensate senatorial employees for performance of official duties. The court declined to answer or analyze the "insurmountable dilemma” of whether campaign w;ork is an official activity, stating that it could not review the case " 'without an initial policy determination of a kind clearly for nonjudicial discretion’ ” (642 F2d, at 1379, quoting Baker v Carr, 369 US 186, 217). The court initially looked to the Senate rules and practices for assistance in determining the issue. Noting that the United States Senate had been unable to formulate guidelines, the court held that: "[T]he inability of the Senate—a body constitutionally authorized and institutionally equipped to formulate national policies and internal rules of conduct—to solve the problem demonstrates 'the impossibility of deciding’ the issue appellant poses 'without an initial policy determination of a kind clearly for nonjudicial discretion.’ Indeed, the interpretation of the False Claims Act suggested by appellant would license the courts to monitor every action taken by a Senator and his aide in an effort to determine whether it is sufficiently 'official’ or too 'political.’ ” (Supra, 642 F2d, at 1384.)

The court further observed that in the absence of any discernible legal standard, or even of a congressional policy, that would aid consideration and decision of the question, it was loathe to give the act an interpretation "that would require the judiciary to develop rules of behavior for the Legislative Branch. We are unwilling to conclude that Congress gave the courts a free hand to deal with so sensitive and controversial a problem, or invited them to assume the role of political overseer of the other branches of Government.” (Supra, 642 F2d, at 1385.)

The attempt by the People and the dissent to distinguish the Cannon case (supra) on the ground that the United States Senate had unsuccessfully tried to promulgate guidelines is somewhat puzzling in light of the State Legislature’s similar failure to do so prior to 1987.

The trial court itself very articulately and perceptively delineated the special characteristics of legislative-political interaction which render inappropriate judicial intrusion, as follows: "Certainly, there is nothing illegitimate about the role of the Senate Minority Leader as coordinator of the minority party’s political and legislative strategy within the Senate. Nothing could be clearer * * * than that the function of the Senate Minority Leader’s office, the delegation of duties by the Minority Leader, and the execution of those duties by the Leader’s staff are beyond the power of courts to examine, much less to dictate. * * * Neither may the executive nor this court arrogate to itself the authority to prohibit the Minority Leader from assigning staff to coordinate with Democratic Party leaders in developing a legislative strategy, to poll constituents to determine their views of the Senate minority’s program, or to engage in the myriad political activities through which constituents may influence and legislators may explain or garner support for legislation. * * * It is a basic tenet of our system of government that legislation and legislators should reflect the popular will, which is primarily manifested through the competitive political process. Therefore, the line between partisan political action and constituent representation is and should be elastic, and is not subject to judicial or executive fiat. Whether and to what extent the process of forging a popular consensus in support of a legislative agency may be distinguished from the promotion of a party’s or an individual’s political aspirations is a difficult issue, requiring factual determinations and policy decisions that are beyond the competence of courts to decide within the limits of a particular controversy.” (Supra, 139 Misc 2d, at 943-944.)

We are in agreement with Justice Rothwax’s conclusion that insofar as this indictment relates to legislative employees who performed services during the period in question, whether of a legislative or of a political nature, it constitutes an inappropriate attempt by the People to regulate the internal affairs of the Legislature and deals with nonjusticiable questions (Matter of Gottlieb v Duryea, supra; cf., Public Citizen v Simon, 539 F2d 211, supra), and we affirm his dismissal of the counts predicated upon the activities of those employee^.

Our point of departure from his decision is his conclusion that employees assigned to work only on campaigns were engaged exclusively in private activity that was per se illegal and therefore constituted an appropriate basis for a criminal prosecution. This, in effect, constitutes a form of judicial legislation which simultaneously makes the same conduct both legal and illegal—justiciable and nonjusticiable, based on a vague quantitative guideline rather than the nature of the activity itself. We reject that interpretation and find that the very considerations which render nonjusticiable the activities of the employees in Category 1 and Category 2 are equally applicable to those in Category 3. As he observed, "[w]hether and to what extent the process of forging a popular consensus in support of a legislative agenda may be distinguished from the promotion of a party’s or an individual’s political aspirations is a difficult issue, requiring factual determinations and policy decisions that are beyond the competence of courts to decide within the limits of a particular controversy.” (Supra, 139 Misc 2d, at 943-944.) The inextricable relationship between the legislative and the political is no less with respect to those employees. It cannot categorically be said that they did not perform services to some extent reasonably related to their legislative employment, in distinction to legislative employees who have been used solely for the personal business or pecuniary interests of their legislative employers, as in United States v Diggs (613 F2d 988, cert denied 446 US 982), where the court expressly noted that it was not dealing with a Congressman’s discretion to define the duties of an employee.

The assignment of some employees to campaign work only, was as much a legislative personnel judgment, in an area wholly within the Legislature’s purview, as was the part-time assignment of others to similar activities. That it was a questionable judgment that may evoke disapproval and justifiable criticism does not, in our view, render it subject to judicial or prosecutorial oversight. For the abysmal failure of the Legislature, and particular legislators, to fulfill their responsibilities in not adopting appropriate guidelines governing the assignments and duties of their employees, "the remedy lies not in the courtroom, but in the voting booth”. (Saxton v Carey, supra, at 551.)

Particularly apt in this regard is former Chief Judge Breitel’s conclusion in Rapp v Carey (44 NY2d 157) which declared unconstitutional a Governor’s Executive Order requiring a wide range of State employees within the Executive branch to inter alia abstain from various political and business activities. He pointedly observed: "The restriction on political activities is particularly troublesome. While the restriction on the merits would be supported by many or even most, it involves a broad question of policy, hardly resolvable by other than the representatively elected lawmaking branch of government, the Legislature.” (Supra, 44 NY2d, at 165.)

Separate and apart from separation of powers considerations, we also find that the instant prosecution violates the defendants’ due process rights with respect to the manner in which the various Penal Law provisions have been applied to them insofar as the charges relate to employees in any of the three categories that performed services.

It is a fundamental principle of due process "that no [person] shall be held criminally responsible for conduct which he [or she] could not reasonably understand to be proscribed.” (United States v Harriss, 347 US 612, 617; see also, Lanzetta v New Jersey, 306 US 451, 453.)

This principle was recently reaffirmed by our Court of Appeals which observed that: "Consistent with our concept of basic fairness, due process requires that a penal statute be sufficiently definite by its terms so as 'to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’ ”. (People v Bright, 71 NY2d 376, 382-383, quoting United States v Harriss, 347 US 612, 617, supra.)

In this case in order for defendants to be charged under the various larceny and false filing counts of the indictment which are based on the activities of employees who performed services, either legislative and campaign or campaign alone, there must be some penal proscription which rendered wrongful the assignment of legislative employees to political or campaign duties during the period covered by the indictment.

The People can point to no statute, or other rule or regulation, that proscribed such conduct during the time periods set forth in the indictment, or that provided that it was illegal. The People now point to the "No-Gift” Clause of the Constitution as a standard of "illegality”. Even if it were to be assumed that the activities in question fall within the constitutional proscription, and our prior discussion indicates our view to the contrary, there is no penalty specified in that constitutional provision for its violation nor is there any statute which has been enacted which renders its violation criminal. It has been held that the duty and responsibility of determining the method of compliance with constitutional mandates is peculiarly within the legislative sphere. (Felder v Fullen, 27 NYS2d 699, affd 263 App Div 986, affd 289 NY 658.) Here, of course, no penal statute has been enacted to obtain compliance with this section of the Constitution and the absence of penal legislative action in this regard would preclude use of that provision as the basis for criminal action. (See, People ex rel. Blumke v Foster, 300 NY 431; cf., People v Freres, 5 AD2d 868; former Penal Law § 22, incorporated in current Penal Law § 5.05 [1], [3]; see, Derivation and Disposition Tables, L 1965, ch 1030, at 2483, 2492.)

It is not insignificant that every case cited with respect to a violation of this provision is in a civil, not a criminal context and in most instances the issue involved is the validity of a particular statute. (See, e.g., Stern v Kramarsky, 84 Misc 2d 447, supra; Corning v Village of Laurel Hollow, 48 NY2d 348; Matter of Boyd v Collins, 11 NY2d 228; Matter of Borup, 182 NY 222; People v Westchester County Natl. Bank, 231 NY 465; Fox v Mohawk & Hudson Riv. Humane Socy., 165 NY 517, supra; see also, Fair Political Practices Commn. v Suitt, 90 Cal App 3d 125, 153 Cal Rptr 311.) The courts have been careful not to "elevate civil wrongs to the level of criminal larceny”. (People v Foster, 73 NY2d 596, 604; cf., People v Keeffe, 50 NY2d 149.) Moreover, in deciding whether there is a due process violation the courts are more tolerant of ambiguities in civil cases than in criminal matters because the "consequences of imprecision are qualitatively less severe”. (Hoffman Estates v Flipside Hoffman Estates, 455 US 489, 499.) Indeed, in New York Pub. Interest Research Group v Steingut (40 NY2d 250, supra) where the court found that particular allowances under a supplemental budget bill exceeded constitutionally specified limits, it rejected a demand for restitution of such unauthorized funds.

Notwithstanding the People’s emphasis on NY Constitution, article VII, § 8, and the trial court’s embrace of that provision, it is essentially irrelevant because it was never submitted to the Grand Jury as a basis for finding that the conduct complained of was illegal or improper.

In his presentation to the Grand Jury, the prosecutor continually referred to false certification by defendants that the employees had performed "legislative” duties. But that is not what the certification form itself stated. That form provides that the employee "actually performed the proper duties of the position” (emphasis supplied). The distinction between "legislative duties” and the various other duties and activities engaged in by legislative employees which are proper (United States v Brewster, supra) is extremely significant, particularly where, as here, there were no guidelines or standards, during the period in question, which defined the parameters of the "proper duties” of legislative employees.

The fatal deficiency in the. instant prosecution was the failure, or inability, of the People to provide the grand jurors with some specific statutory provision, or other appropriate guideline, from which they could find that the specified conduct was proscribed or fell outside of the "proper duties” of a legislative employee. To advise the Grand Jury to consider whether the conduct was "right” or "proper” as a basis for a criminal prosecution is hardly consistent with due process requirements that a person of ordinary intelligence be given notice that his contemplated conduct is forbidden by the statute (United States v Harriss, supra) and that explicit standards be provided for those who apply a statute in order to avoid arbitrary enforcement (Smith v Goguen, 415 US 566).

Reference to the Grand Jury proceedings clearly demonstrates that the basis on which the People proceeded herein was directly violative of these due process considerations. Its theory was to allow the Grand Jury itself to set the standard as to whether campaign activities by legislative employees should be criminalized. Thus, the prosecutor advised the Grand Jury:

"I did not ask * * * whether it was proper to do campaign work. And that is going to be a question for you, ladies and gentlemen of the jury, to answer.

"But the second question was whether there were state laws which regulated the work of the legislative employees. And that’s something that we’re going to get into when we instruct you as to the law in this case.” (Grand Jury minutes, at 3172.)

Thereafter, while the Grand Jury was voting on various counts, the following colloquy took place:

"Grand Juror: At some point, will you be giving us some indication as to what the action is regarding campaigns. I know it’s very complex and very vague. Not this minute.

"[ADA] Mr. Cherkasky: I know the fact—There is specific questions. I will—What we have presented to you are—there is no one statute that states use or there’s no specific statute addressed to the use of political workers in campaigns just that title. What we ask you to consider are the larceny statutes, the documents statutes, the theft of service statutes, the governmental fraud statutes to see whether in fact that conduct is illegal, the use of government workers is illegal under those statutes.” (Grand Jury minutes, at 4316.)

An indictment based on such noninformative and amorphous instructions fails to comport with the due process principles, codified in section 1.05 of the Penal Law, which require the giving of "fair warning of the nature of the conduct proscribed” and defining "the act or omission * * * which constitute^] each offense”, and is also at variance with the express direction which states that "Acts otherwise innocent and lawful do not become penal unless there is a clear and positive expression of intent to make them criminal” (McKinney’s Cons Laws of NY, Book 1, Statutes § 271 [d]).

"Due process requires that all 'be informed as to what the State commands or forbids’ * * * and that 'men of common intelligence’ not be forced to guess at the meaning of the criminal law.” (Smith v Goguen, supra, at 574.) " 'The dividing line between what is lawful and unlawful cannot be left to conjecture. * * * The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another’ ”. (Connally v General Constr. Co., 269 US 385, 393 [emphasis added], citing United States v Capital Traction Co., 34 DC App 592.)

It can hardly be said that the premise upon which the People have here proceeded meets that standard. When presented with the same issue of whether use of a legislative employee in campaign activities constituted a criminal act, Elizabeth Holtzman, the District Attorney of Kings County, a prosecutor of coordinate jurisdiction, found no criminal violation. The Trial Judge herein refused to criminalize such activities where the employee, in addition, performed some other noncampaign services, no matter how minimal. The Legislature has acknowledged that until April 1987 no standards or guidelines had ever been promulgated to define the "proper duties” of its employees, that no rules or statutes had ever been enacted proscribing campaign or political activities by Senate employees and that some such activities had long been an accepted practice. The District Attorney of New York County, alternatively, takes the position that all political campaign activities engaged in by legislative employees are subject to criminal prosecution.

Where people of common intelligence differ so markedly as to the meaning of the law in relation to the conduct involved, it must be held that this prosecution fails to meet requisite due process standards. (See, United States v Harriss, supra, at 628 [Douglas, J., dissenting].)

"[T]he laws and policies of this State are established by the law making powers, not by ’officers acting on their own ideas of sound policy however excellent such ideas may be’ ” (Matter of County of Oneida v Berle, supra, 49 NY2d, at 523, citing Matter of Picone v Commissioner of Licenses of City of N. Y., 241 NY 157,162).

Accordingly, since we find that the counts in the indictment predicated on the activities of campaign only employees (Category 3) were returned in violation of the defendants’ due process rights, those counts are dismissed on this ground as well as on the basis of prudential concerns leading to nonjusticiability. In light of these dismissals, the conspiracy count is rendered meaningless and is, therefore, also dismissed.

We turn, finally, to those persons denominated "No-Shows” who performed no services whatsoever. Our prior holdings both as to nonjusticiability and due process have no application to this group. The preceding discussion focused upon the scope of services that could properly be rendered by legislative employees. Implicit in the Senate certification forms is that the employee has rendered some services. If the defendants certified payroll forms knowing that a person was not in fact performing any services, their conduct would fall within the proscription of the offering a false instrument for filing statute. (Penal Law § 175.35.)

As was held in People v Hochberg (87 Misc 2d 1024, 1030-1031, later appeal 62 AD2d 239, lv denied 44 NY2d 953) with respect to such a hiring, "One who recommends a person for public employment and causes him to be hired by the State of New York is by inescapable inference representing that he will perform the work for which the salary is paid. The word, earn, is defined to mean 'to receive * * * for one’s labor or service’ (Webster’s New World Dictionary [Coll ed, 1966]). If the defendant caused the State to employ Mr. Johnson * * * then defendant led the State to believe that he would earn the salary; and if he knew that this was not true, he was guilty of attempting to steal money from the State”. (See also, People v Riccio, 91 AD2d 693.)

The evidence before the Grand Jury showed that four employees—Joseph Walsh, Carmen Del Priore, Arnold Smith and Barbara Zebersky—performed no services whatsoever during specified periods, but received salaries from the Senate payroll during those periods. The defendants had these employees placed on the payroll to be paid for performing services. If defendants knew that these persons were doing no work then they could be guilty of larceny by false pretenses— i.e., that the particular defendant made a false representation of a past or existing fact knowing that the representation was false when made with intent to deprive and defraud the State of moneys. (Penal Law former §§ 155.35, 155.40.) The relevant issues including those of intent and knowledge are questions of fact for a jury to decide.

Accordingly, the defendants-petitioners’ article 78 petition is granted to the extent that respondents are prohibited from prosecuting defendants-petitioners under New York County indictment No. 10173/87 as to those counts that relate to Category 3 employees, and is otherwise denied. The prosecution may continue with respect to the 119 counts (listed in Appendix A attached hereto) which relate to the four employees who performed no services whatsoever—Joseph Walsh, Carmen Del Priore, Arnold Smith and Barbara Zebersky.

The order of the trial court, Supreme Court, New York County (Harold Rothwax, J.), dated June 15, 1988, which dismissed 265 substantive counts, and struck certain language and 89 overt acts from the conspiracy count of the indictment is affirmed.

APPENDIX A

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1 . A Democratic majority would likely have resulted in Ohrenstein becoming Majority Leader.

2 . Article VII, §2 of the NY Constitution requires the Governor to submit a proposed budget at specified times prior to the end of the fiscal year. March 31st ends the fiscal year. (State Finance Law § 3.)

3 . Content of payroll certification:

"To the Senate Majority Leader: This is to certify that the persons named in the payroll listed above are employed by the New York State Senate in the position specified and have actually performed the proper duties of the position for the period described. I further authorize the mailing of checks to employees listed under Mailing Authorization. I affirm that the certification is correct.

Senator/Dept. Head’s Signature Date” (emphasis added).