Capio v. Justices of Supreme Court, Kings County

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Opinion by SHAPIRO; SHAPIRO
• Citation: 342 N.Y.S.2d 100,41 A.D.2d 235
• Parties: In the Matter of Bruno CAPIO, Petitioner, v. The JUSTICES OF the SUPREME COURT, KINGS COUNTY, and Eugene Gold, District Attorney of Kings County, Respondents.
• Decision Date: 08 March 1973

Page 100

342 N.Y.S.2d 100 41 A.D.2d 235 In the Matter of Bruno CAPIO, Petitioner,
v.
The JUSTICES OF the SUPREME COURT, KINGS COUNTY, and Eugene
Gold, District Attorney of Kings County, Respondents. Supreme Court, Appellate Division, Second Department. March 8, 1973.
As amended April 2, 1973.

Page 101

Michael I. Winter, Brooklyn, for petitioner.

Eugene Gold, Dist. Atty., in pro. per. (Ronald M. Kleinberg, Brooklyn, of counsel).

Louis J. Lefkowitz, Atty. Gen. (Stanley L. Kantor, New York City, of counsel), for respondents Justices.

Before HOPKINS, Acting P.J., and MUNDER, MARTUSCELLO, LATHAM and SHAPIRO, JJ.

ORDER

On the court's own motion, the decision dated March 8, 1973 is amended to real as follows:

'Proceeding pursuant to article 78 of the CPLR to prohibit respondents from proceeding with the trial of indictment No. 1666/1970, charging petitioner with criminal contempt pursuant to subdivision 4 of section 215.50 of the Penal Law.

'Application granted, without costs, and respondents are hereby prohibited from proceeding with said trial.

Opinion by SHAPIRO, J.'

Order dated March 8, 1973 amended accordingly.

HOPKINS, Acting P.J., and MUNDER, MARTUSCELLO and LATHAM, JJ., concur.

OPINION

SHAPIRO, Justice.

In this proceeding pursuant to article 78 of the CPLR the petitioner seeks an order prohibiting the respondents from proceeding with the trial of indictment No. 1666/1970, which charges him with criminal contempt in violation of subdivision 4 of section 215.50 of the Penal Law.

The application should be granted.

In compliance with a subpoena, the petitioner appeared before the Kings County Grand Jury on January 27, 1970. Upon being interrogated before that body, he asserted his constitutional [41 A.D.2d 236] privilege against self-incrimination and refused to answer any of the questions asked of him. He was thereupon given full and complete immunity from

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prosecution by the Grand Jury and was warned of the possible effect of his refusal to answer in the following language:

'Q. Let me again warn you that your refusal to answer in this manner is not substantiated by law and leaves you open for prosecution for the crime of criminal contempt under the judicial law of New York where you can be put in jail for up to thirty days and also, in addition to that, leaves you open for an indictment by this grand jury for the crime of criminal contempt under the penal law of the State of New York whereby you could possibly go to jail for up to a year if you are found guilty. Do you understand?'

He replied that he understood the warning and that he would continue to refuse to answer any questions propounded to him.

Thereafter the petitioner, on March 12, 1970, was directed by the court to return to the Grand Jury and to answer their questions. The petitioner refused to comply with the court's direction. On March 19, 1970 the court adjudged him guilty of criminal contempt of court 'for his contumacious and unlawful refusal after being sworn as a witness to answer any legal and proper interrogatories (before the Grand Jury) And for his wilful disobedience to the lawful mandate of this...