Costello, Application of

• Decision Date: 07 May 1957
• Citation: 6 Misc.2d 66,163 N.Y.S.2d 835
• Parties: Matter of the Application of Frank COSTELLO, Petitioner, for an order vacating the contempt mandate dated
• Court: New York Supreme Court

Page 835

163 N.Y.S.2d 835

6 Misc.2d 66

Matter of the Application of Frank COSTELLO, Petitioner, for

an order vacating the contempt mandate dated May 7, 1957;

Jacob Gould Schurman, as Judge of the Court of General

Sessions, and Frank S. Hogan, as District Attorney of New

York County, Respondents.

Supreme Court, Special Term, New York County, Part I.

May 21, 1957.

Morris Shilensky, New York City, Edward Bennett Williams, Washington, D. C., for petitioner.

Frank S. Hogan, Dist. Atty., New York City (Alfred J. Scotti and Richard Denzer, New York City, of counsel), for respondents.

EDGAR J. NATHAN, Justice.

A witness before the Grand Jury who has been committed for criminal contempt of court applies for a certificate of reasonable doubt or, in the alternative (by stipulation made upon the record at the argument), for an order pursuant to article 78 of the Civil Practice Act vacating the mandate of the Court of General Sessions summarily adjudging the witness in contempt and committing him to the workhouse for 30 days. Request is also made for an interim stay of execution of the mandate.

The proceedings arise from an investigation by the Grand Jury of a suspected conspiracy to commit murder. The witness, who was the intended victim, was at no time arrested or charged with any crime or offense in connection with the attempted homicide or the subject of the instant Grand Jury investigation. During the course of his testimony before the Grand Jury, he was confronted with a photostat of a document which had been illegally obtained by police officers in the course of an unlawful search of the witness' clothing while he was being treated at Roosevelt Hospital immediately after the attempt on his life. The original document was returned to him upon his demand. When questioned concerning this document, the witness refused to answer upon the ground that his answers may tend to incriminate him. At the instance of the assistant district attorney conducting the investigation, the foreman of the Grand Jury pressed for answers under a grant of immunity from prosecution pursuant to section 2447 of the Penal Law, as to which the witness had been fully advised. The witness again refused to answer, and he was taken before a judge of the Court of General Sessions where a request by his counsel for further time to consider the matter was denied. The witness was thereupon directed to return to the grand jury room and answer the questions. Upon his continued assertion of constitutional privilege and refusal to answer, he was again brought before the Court of General Sessions where, after pertinent portions of the Grand Jury minutes were read, and after he again refused to answer in response to inquiry by the court, the witness was summarily found guilty of contempt of court and committed to the workhouse for 30 days.

An appeal taken by the witness from the mandate adjudging him in contempt and committing him is pending in the Appellate Division. Meanwhile the witness has been confined in the workhouse.

The primary question presented in this proceeding is whether the grant of immunity is sufficiently broad. The argument that the immunity granted was limited in scope by the assistant district attorney or the foreman of the Grand Jury is untenable. The immunity is statutory and protects a witness from prosecution 'for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence * * *' (Penal Law, § 2447, subd. 2).

The witness further contends that he has been denied his constitutional right against self-incrimination because the immunity does not protect him from prosecution in any foreign jurisdiction, particularly in the Federal courts. Certainly in the absence of special circumstances, that view is not supported by the authorities. It has been expressly held that a witness may not refuse to testify because the immunity granted does not extend to possible prosecution in other jurisdictions (Brown v. Walker, 161 U.S. 591, 608, 16 S.Ct. 644, 40 L.Ed. 819; Feldman v. U. S., 322 U.S. 487, 490-494, 64 S.Ct. 1082, 88 L.Ed. 1408; Dunham v. Ottinger, 243 N.Y. 423, 154 N.E. 298).

Some doubt is cast on the application of this rule, however, by the views expressed by a unanimous court in the Appellate Division, First Department, in the recent case of Knapp v. Schweitzer, 2 A.D.2d 579, 157 N.Y.S.2d 158, affirmed without opinion 2 N.Y.2d 913, 161 N.Y.S.2d 437. After reaffirming the proposition that the validity of the immunity statute does not require a guarantee of freedom from Federal prosecution, the court states in 2 A.D.2d at page 585, 157 N.Y.S.2d at page 165:

'But we cannot in fair compliance with our own Constitution remain insensible to the actual dangers of nonimmunized compulsory incrimination in the United States courts where we compel testimony in the ever-broadening areas and in subjects affected by the criminal laws of both governments. And while we can exercise no control over Federal practice, we can exercise a judicial supervision over State enforcement officers.

'A State prosecuting officer investigating an area in which the criminal laws of both the Federal and State Governments operate together, and requiring immunized testimony in the development of his case, could himself give adequacy to State constitutional safeguards by tendering cooperation with the appropriate United States attorney.

'If the cooperation were accepted by the Federal government we have no doubt that within ...