Altman v. Bradley

• Decision Date: 17 December 1992
• Citation: 591 N.Y.S.2d 403,184 A.D.2d 131
• Parties: In the Matter of the Application of Robert A. ALTMAN, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. The Honorable John A.K. BRADLEY, Justice of the Supreme Court, New York County, and The Honorable Robert M. Morgenthau, the District Attorney for New York County, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 403

591 N.Y.S.2d 403

184 A.D.2d 131

In the Matter of the Application of Robert A. ALTMAN, Petitioner For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. The Honorable John A.K. BRADLEY, Justice of the Supreme Court, New York County, and The Honorable Robert M. Morgenthau, the District Attorney for New York County, Respondents.

Supreme Court, Appellate Division First Department.

Dec. 17, 1992.

Richard A. Greenberg, of counsel (Gustave H. Newman and William Shields, with him on the brief, Newman & Schwartz, attorneys), for petitioner.

Marc Frazier Scholl, of counsel (John W. Moscow, Harold J. Wilson, Veronica Bindrim-MacDevitt and Alan C. Michaels, with him on the brief, Robert M. Morgenthau, attorney), for respondent Dist. Atty.

Before CARRO, J.P., and ELLERIN, KUPFERMAN and KASSAL, JJ.

KASSAL, Justice.

By this proceeding, brought pursuant to Article 78 of the CPLR, petitioner seeks relief in the nature of a writ of prohibition barring his further prosecution under New York County Ind. No. 6994/92. Upon examination of the record, we conclude that petitioner has failed to establish entitlement, either in fact or law, to the extraordinary relief requested and, accordingly, the petition is denied and the proceeding dismissed.

The underlying prosecution in this matter arises out of an investigation into the Bank of Credit and Commerce International (BCCI), which has resulted in four indictments, including the subject of this proceeding, People v. Abedi, Naqvi, Clifford, Altman, and Fulaij. Petitioner, one of the aforenamed defendants, seeks to prohibit a trial currently scheduled to begin on February 15, 1993. The proceeding is brought in this Court in the first instance pursuant to CPLR 506(b)(1) and 7804(b), and we determine, as a threshold procedural issue, that the claims of double jeopardy and immunity are properly raised (see, Kaplan v. Ritter, 71 N.Y.2d 222, 525 N.Y.S.2d 1, 519 N.E.2d 802; Matter of Rush v. Mordue, 68 N.Y.2d 348, 509 N.Y.S.2d 493, 502 N.E.2d 170). Substantively, however, they do not withstand scrutiny.

First, we reject, as devoid of factual basis, petitioner's claim that he was accorded transactional immunity by reason of having been compelled to appear personally, and without waiving immunity, before the grand jury. Petitioner's appearances before the grand jury were made pursuant to four subpoenas duces tecum directed to four separate entities consisting of three corporations and a law firm. Addressed to the "Attn" of petitioner, as a named official of each of the entities, the subpoenas sought the production of certain specified corporate records, and were endorsed as follows:

YOU MAY WAIVE THE PERSONAL PRODUCTION OF THE AFOREMENTIONED RECORDS BEFORE THE GRAND JURY BY MAILING OR DELIVERING THEM TO THE OFFICE OF THE DISTRICT ATTORNEY OF NEW YORK COUNTY AT ONE HOGAN PLACE, NEW YORK, N.Y. 10013, ATTENTION OF ADA JOHN W. MOSCOW ROOM 729.

In accordance with CPL Article 640, certificates were issued in September 1990 by a Justice of the Supreme Court, New York County, requesting enforcement of the four subpoenas by the Superior Court of the District of Columbia. On or about October 9, 1990, Superior Court Judge Eugene Hamilton of the District of Columbia issued an order directing petitioner, in his capacity as "Director or a Custodian of Records" to show cause why said court should not issue process directing the enforcement of the subpoenas.

Following a hearing, Judge Hamilton issued four orders on November 26, 1990, directing petitioner, in his official capacity, to appear before the New York Grand Jury and "produce such documents called for in the attached subpoena as to which [he] has actual or constructive possession, care, custody or control". The record establishes that the prosecutor was amenable to a "modification" for "other custodians of the records" to come in petitioner's place if he were unable to do so.

Upon appearing before the grand jury on March 11 and April 25, 1991, petitioner was read the provisions of CPL 190.40, which state as follows:

1. Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.

2. A witness who gives evidence in a grand jury proceeding receives immunity unless:

(a) He has effectively waived such immunity pursuant to section 190.45; or

(b) Such evidence is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive.

(c) The evidence given by the witness consists only of books, papers, records or other physical evidence of an enterprise, as defined in subdivision one of section 175.00 of the penal law, the production of which is required by a subpoena duces tecum, and the witness does not possess a privilege against self-incrimination with respect to the production of such evidence. Any further evidence given by the witness entitles the witness to immunity except as provided in subdivisions (a) and (b) of this section.

The transcript of the grand jury proceedings establishes that the prosecutor's questioning of petitioner sought solely to elicit whether there had been compliance with the subpoenas duces tecum. Thus, petitioner was asked, for example, to read each item listed in the subpoena, and then to state whether it had been produced. Related or follow-up inquiries concerned whether petitioner desired additional time to produce a specific document. Throughout petitioner's grand jury appearances, the prosecutor not only adhered to questions relating to the production of the records, but scrupulously attempted to confine petitioner's responses to such matters. On occasion, when petitioner attempted to volunteer information or to reply in a manner that was potentially beyond the scope of the inquiry, the prosecutor would immediately caution petitioner against doing so, and re-read the provisions of CPL 190.40(2)(b), supra.

Petitioner, an attorney, was further advised that, "If when I ask a question, you choose to give an answer that is not responsive, I merely inform you that you would not be covered by the immunity statute in New York." Additionally, petitioner was informed that he could step outside of the jury room to seek clarification on a question and/or to consult with his counsel.

In light of this record, we conclude that there is no factual basis for petitioner...