Commission of Investigation of State by Lane v. Lombardozzi
| Decision Date | 09 December 1958 |
| Citation | 180 N.Y.S.2d 496,7 A.D.2d 48 |
| Parties | Application of the COMMISSION OF INVESTIGATION OF THE STATE of New York, by Myles J. LANE, Chairman, Jacob Grumet, John W. Ryan, Jr., Goodman A. Sarachan, Commissioners, Petitioner-Respondent, v. Carmine LOMBARDOZZI, Respondent-Appellant, to Jail, pursuant to Section 406 of the Civil Practice Act. Application of the COMMISSION OF INVESTIGATION OF THE STATE of New York, by Myles J. LANE, Chairman, Jacob Grumet, John W. Ryan, Jr., Goodman, A. Sarachan, Commissioners, Petitioner-Respondent, v. Costenze Peter VALENTI, Respondent-Appellant, to Jail, pursuant to Section 406 of the Civil Practice Act. Application of the COMMISSION OF INVESTIGATION OF THE STATE of New York, by Myles J. LANE, Chairman, Jacob Grumet, John W. Ryan, jr., Goodman A. Sarachan, Commissioners, Petitioner-Respondent, v. Frank Joseph VALENTI, Respondent-Appellant, to Jail, pursuant to Section 406 of the Civil Practice Act. Application of the COMMISSION OF INVESTIGATION OF THE STATE of New York, by Myles J. LANE, Chairman, Jacob Grumet, John W. Ryan, Jr., Goodman A. Sarachan, Commissioners, Petitioner-Respondent, v. Rosario MANCUSO, Respondent-Appellant, to Jail, pursuant to Section 406 of the Civil Practice Act. Application of the COMMISSION OF INVESTIGATION OF THE STATE of New York, by Myles J. LANE, Chairman, Jacob Grumet, John W. Ryan, Jr., Goodman A. Sarachan, Commissioners, Petitioner-Respondent, v. Joseph RICCOBONO, Respondent-Appellant, to Jail, pursuant to Section 406 of the Civil Practice Act. Application of the COMMISSION OF INVESTIGATION OF THE STATE of New York, by Myles J. LANE, Chairman, Jacob Grumet, John W. Ryan, Jr., Goodman A. Sarachan, Commissioners, Petitioner-Respondent, v. Paul CASTELLANO, Respondent-Appellant, to Jail, pursuant to Section 406 of the Civil Practice Act. Application of the COMMISSION OF INVESTIGATION OF THE STATE of New York, by Myles J. LANE, Chairman, Jacob Grumet, John W. Ryan, Jr., Goodman A. Sarachan, Commissioners, Petitioner-Respondent, v. Michele MIRANDA, |
| Court | New York Supreme Court — Appellate Division |
Maurice Edelbaum, New York City, of counsel (Sol Jacobson, New York City, on the brief; Maurice Edelbaum, New York City, attorney), for appellant Carmine Lombardozzi.
Gilbert S. Rosenthal, New York City, of counsel (Aaron J. Jaffe and Samuel DiGaetano, New York City, on the brief; Gilbert S. Rosenthal, New York City, attorney), for appellants Costenze Peter Valenti and Frank Joseph Valenti.
Anthony J. Fernicola, New York City, for appellant Rosario Mancuso.
Joseph E. Brill, New York City, of counsel (Nicholas P. Iannuzzi and Sol Jacobson, New York City, on the brief; Joseph E. Brill and Nicholas P. Iannuzzi, New York City, attorneys), for appellant Joseph Riccobono. Abraham H. Brodsky, New York City, of counsel (Joseph E. Brill, Sol Jacobson and Nicholas P. Iannuzzi, New York City, on the brief; Abraham H. Brodsky, attorney), for appellants Paul Castellano and Michele Miranda.
Eliot H. Lumbard, New York City, of counsel (Nathan Skolnik, New York City, Justin J. Finger, New York City, Arnold M. Weiss and Alfred Donati, Jr., Brooklyn, on the brief; Eliot H. Lumbard, New York City, attorney), for respondent.
Before BREITEL, J. P., and RABIN, FRANK, VALENTE and BASTOW, JJ.
We consider together appeals by seven respondents in separate proceedings seeking a review of orders made at Special Term. Procedural differences in disposing of the applications at Special Term require the preliminary statement that five respondents (Frank Valenti, Mancuso, Riccobono, Castellano and Mirando) appeal from orders made by Spector, J., and two respondents (Lombardozzi and Peter Valenti) appeal from orders by Tilzer, J.
In August, 1958, the appellants were served with subpoenas issued by the Commission of Investigation of the State of New York commanding them to appear at a public hearing being conducted by the Commission in New York City. At the first hearing on August 12, 1958 the chairman announced that the hearing was being held in connection with what is now known as the Apalachin meeting in November, 1957, at the residence of one Joseph Barbara in Tioga County. The purposes of the hearing were stated to be, among other things, 'Whether the crimes of conspiracy, violation of section 340 of the General Business Law which pertains to monopoly or restraint of trade statutes, and bribery of public officials or any other crimes were committed or planned at this meeting.' There followed individual hearings for each of the appellants commencing on August 12 and ending on August 19. Each was represented by one or more counsel at the hearings and in the subsequent court proceedings.
The pattern of the proceedings when each appellant appeared before the Commission was much the same. Each was asked a series of questions numbering between 30 and 40. Responsive answers to these questions would have been relevant to one of the subjects of the investigation as stated in each subpoena to be 'the organization, purposes and participants of, and discussions had and decisions made at' the Apalachin meeting. Other than identifying themselves, appellants refused to answer all questions. Such refusals were based on the privilege against self incrimination and other grounds, most of which are presented upon this appeal and will be hereinafter considered. Following the respective refusals to answer questions, the members of the Commission purporting to act under statutory authority (L.1958, ch. 989, § 7) voted to and did purport to confer immunity upon each appellant in accordance with section 2447 of the Penal Law. Each witness was then informed that he had immunity 'from prosecution by the New York State authorities on account of any transaction, matter or thing of a criminal nature which may be revealed by your truthful and responsive answers to the particular questions which this Commission * * * may now direct you to answer.' Thereafter, each appellant was asked some 26 questions which were among those previously propounded. Again each witness refused to answer the questions upon stated grounds. The direction was made that the questions be answered but each appellant persisted in his refusal.
We consider first the ensuing court proceedings relating to the five appellants who appeared before the Commission on August 12, 13 and 15. As to each, individual orders were obtained directing the named witness to show cause, either forthwith or upon the same day that he had testified, why a warrant should not issue for his apprehension and commitment forthwith to jail there to remain until he answered the questions. The show cause order was supported by an affidavit of the Commission chairman and a copy of the subpoena. Following a hearing in each case, and to which we shall advert subsequently, the applications were granted and warrants issued for the imprisonment of the five appellants until each answered the questions set forth in the warrant.
The other two appellants were brought before Special Term the day after the Commission's hearing. In the interim, transcripts of the Commission's hearing were forwarded to the court and counsel. Upon request of these appellants an adjournment of two days was granted. At that time appellants produced certain witnesses and while they complain of erroneous rulings in the course of the examination of these witnesses, it does not appear from either record or briefs that they attack the validity of the court hearings upon the ground that there was a summary determination without an adequate hearing. At the conclusion of this combined hearing the applications were granted and similar warrants issued for the imprisonment of the witnesses.
It is against this background that we consider the various contentions of the appellants. It is claimed that the act (L.1958, ch. 989) creating the respondent Commission is unconstitutional and in violation of the State constitutional provision (art. V, § 3). To place in focus this contention it is necessary to point out that section 2 of article V of the Constitution provides for nineteen civil departments in the state government. Section 3 then provides in part that 'No new departments shall be created hereafter, but this shall not prevent the legislature from creating temporary commissions for special purposes.' Turning to the enactment (L.1958, ch. 989) under attack we find in section 1 the provision that 'There is hereby created a temporary state commission of investigation.' The four commissioners are to be appointed for a term of five years (§ 2) and the act is to remain in effect for five years (§ 13). Judged by any standards the commission is a temporary one and so at least one appellant concedes in his brief. It is unnecessary to recite in detail the functions, powers and duties set forth in the eleven subdivisions of section 2 of the act. We construe them as being 'special purposes' within the meaning of the language set forth in the exception to the constitutional prohibition against the creating of new state civil departments.
One of the landmark decisions construing this constitutional provision is Matter of People (Westchester Title & Trust Co.), 268 N.Y. 432, 198 N.E. 19. There is was held that an act creating a Mortgage Commission and transferring to it the powers vested in the Superintendent of Insurance to control and administer mortgage investments of guarantee companies came within the plain intendment of the constitutional provision. The court placed emphasis upon the abnormal if not emergency conditions that existed. The court stated (268 N.Y. at page 443, 198 N.E. at page 22) that such conditions ...
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