Epstein, In re

• Decision Date: 15 May 1964
• Citation: 43 Misc.2d 987,252 N.Y.S.2d 771
• Court: New York Supreme Court
• Parties: . Supreme Court, Special and Trial Term, New York County, Part XXX

Page 771

252 N.Y.S.2d 771

43 Misc.2d 987

In the Matter of Application for Direction to Roselyn

EPSTEIN to Testify Before the 4th January 1964

Grand Jury or be adjudged in Contempt of

Court for Refusal to Testify.

Supreme Court, Special and Trial Term, New York County, Part XXX.

May 15, 1964.

Frank S. Hogan, Dist. Atty., by David Goldstein, Asst. Dist. Atty., for the People.

Maurice Edelbaum, New York City, for defendant.

MITCHELL D. SCHWEITZER, Justice.

On January 13, 1964, the respondent, Roselyn Epstein, was adjudged guilty of criminal contempt by this court and sentenced to imprisonment for thirty days. The contempt was her refusal, in the presence of the court, to answer questions put to her as a witness before the 4th day of January 1964 Grand Jury, after a direction by the court to do so. This is regarded traditionally as a contempt committed in the presence of the court and such as the sole basis of the adjudication then made.

Respondent's aforementioned refusal to answer questions was predicated on the claim that while the Grand Jury had informed her that she would be accorded immunity from prosecution in accordance with New York Law, (§ 2447, Penal Law), the immunity offered was not coextensive with the jeopardy to which she was exposed since the Grand Jury, a state agency, could not grant her immunity from possible federal prosecution. This court, on the basis of Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393, ¹ rejected her contention as invalid. Respondent applied to the Appellate Division for a stay of execution of the mandate of commitment. The application was denied on February 25, 1964.

Respondent thereupon appeared before this court on March 10, 1964. Her counsel advised the court that she was prepared to go before the Grand Jury and answer all legal and proper questions. The District Attorney, at the time, stated that he would urge execution of the previously imposed thirty-day sentence if the respondent should resort to 'obviously evasive [or] equivocal tactics' before the Grand Jury.

Respondent then appeared before the Grand Jury that same day and again on March 16th. She answered all questions asked of her. At no time during those two sessions did the District Attorney seek any rulings from the court relating to any refusal on her part to answer any questions.

Nevertheless, the District Attorney has now moved this court to direct the execution of the original thirty-day sentence. He urges that respondent's answers were so evasive and equivocal and 'inherently preposterous and incredible' as to 'tax * * * credulity' and thus constitute such bad faith on her part as to justify a direction that the original judgment be executed.

Respondent has, in turn, made application that she be furnished with a transcript of her Grand Jury testimony, to enable her to answer and defend against the District Attorney's present motion. The District Attorney opposes that application on the ground that there is no warrant for releasing grand jury testimony where the matter pertains to the execution of a previously imposed contempt sentence rather than original proceedings to determine charges of comtempt. The issue thus squarely presented to the court is whether, in connection with the relief now sought by the District Attorney, the court may proceed summarily or must first require that respondent be served with a notice and specification of the charges said to embrace the contempt, which would in effect call for a disclosure of respondent's most recent testimony before the Grand Jury.

It is settled that 'under certain circumstances a response to a question may be so [inherently] false and evasive as to be equivalent to no answer at all,' and, thus, subject the witness to punishment for contempt. (People ex rel. Valenti v. McCloskey, 6 N.Y.2d 390, 398, 189 N.Y.S2d 898, 903, 160 N.E.2d 647, 651; Matter of Finkel v. McCook, 247 App.Div. 57, 286 N.Y.S. 755, affd. 271 N.Y. 636, 3 N.E.2d 460.) An illustration of such a case is where the witness persists in giving "don't remember' answer' to questions which he is obviously in a position to answer unequivocally. (People ex rel. Cirillo v. Warden of City Prison, Brooklyn, 11 N.Y.2d 51, 56, 226 N.Y.S.2d 398, 401, 181 N.E.2d 424, 426.) It is equally well settled that 'if the witness directly responds with unequivocal answers which are clear enough to subject him to a perjury indictment,' then, even though it may be urged that the answers are 'incredible,' 'the sanction is by prosecution for perjury or the crime of contempt, and not by summary contempt.' (People ex rel. Valenti v. McCloskey, supra, 6 N.Y.2d 390, at 403, 404, 189 N.Y.S.2d 898, at 907, 908, 160 N.E.2d 647, at 654, 655; id., 8 A.D.2d 74, 82, 185 N.Y.S.2d 952, 961, emphasis added.) Indeed, within the protection against summary contempt are answers which, while highly improbable, yet are still within the area of possible truthfulness (see Matter of Steingut v. Imrie, 270 App.Div. 34, 58 N.Y.S.2d 775).

Had respondent, on her initial appearance before the Grand Jury, instead of refusing to answer, given the same answers as she gave on her two subsequent appearances, it is indisputable that, upon the authorities already cited herein, even if the answers were grossly evasive, the District Attorney, to commence proceedings for the punishment of a contempt, would first be required to comply with the statutory requisites of notice and hearing. (Judiciary Law, § 751.) This is for the reason that the answers thus given by respondent before the Grand Jury could in no sense be regarded as acts committed in the immediate 'view and presence of the court' permitting invocation of the discretionary summary procedure authorized by statute (Judiciary Law, § 751). See Matter of Douglas v. Adel, 269 N.Y. 144, 147, 199 N.E. 35, 37; Matter of Spector v. Allen, 281 N.Y. 251, 256, 22 N.E.2d 360, 363. Thus, in this connection, it is specifically provided for by statute, that 'the party charged must be notified of the accusation, and have a reasonable time to make a defense' (Judiciary Law, § 751). Further, the notice thus provided for must be such that the accused is 'fully apprised of the nature of the charge.' (See Matter of Spector v. Allen, supra, 281 N.Y. 251, at 257, 22 N.E.2d 360, at 363.)

Beyond this, and quite apart from...