Falcone, In re
| Decision Date | 08 June 1962 |
| Citation | 34 Misc.2d 729,232 N.Y.S.2d 80 |
| Parties | In re FALCONE. 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, for the issuance of a warrant of attachment of the person of Joseph Falcone, Respondent, pursuant to Section 406, subdivision, 2, of the Civil Practice Act. |
| Court | New York Supreme Court |
Carl A. Vergari, Chief Counsel, New York State Commission of Investigation (Nathan Skolnik, Deputy Commissioner, and Joseph Fisch, New York City, Asst. Counsel, of counsel), for petitioner.
Osmond K. Fraenkel, New York City, for respondent, appearing specially.
The present proceeding had its genesis in the notorious 'Apalachin Meeting' of November 14, 1957, held at the home of Joseph Barbara, Sr., in Apalachin, Tioga County, New York. (See Matter of Barbara, Sr., 14 Misc.2d 223, 180 N.Y.S.2d 924, affd. 7 A.D.2d 340, 183 N.Y.S.2d 147; People of State of New York ex rel. Valenti v. McCloskey, 8 A.D.2d 74, 185 N.Y.S.2d 952, affd. 6 N.Y.2d 390, 189 N.Y.S.2d 898, app. dism. 361 U.S. 534, 80 S.Ct. 585, 4 L.Ed.2d 537; Matter of Commission of Investigation of State of New York v. Castellano, 5 N.Y.2d 1026, 185 N.Y.S.2d 550, 158 N.E.2d 250, app. dism. 361 U.S. 7; Matter of Commission of Investigation of State of New York v. Mancuso, 5 N.Y.2d 1026, 185 N.Y.S.2d 550, 158 N.E.2d 250, app. dism. and cert. den. 361 U.S. 10, 80 S.Ct. 59, 4 L.Ed.2d 50; Matter of Commission of Investigation of State of New York v. Lombardozzi, 7 A.D.2d 48, 180 N.Y.S.2d 496 affd. 5 N.Y.2d 1026, 185 N.Y.S.2d 550, 158 N.E.2d 250; United States of America v. Bufalino, 285 F.2d 408; United States of America v. Bonanno, D.C., 178 F.Supp. 62; United States of America v . Bonanno, D.C., 180 F.Supp. 71).
The State Commission of Investigation undertook an inquiry into that affair. In the course thereof one Joseph Falcone was personally served with a subpoena, issued by the Commission, directing him to appear before it at a specified hour and at a specified courtroom in New York City, there to testify at a public hearing. Falcone failed to appear at the time and place directed in the subpoena, and no one came forward to appear in his behalf or excuse his absence.
On September 18, 1958, upon application of the Commission, as petitioner, an ex parte order was granted by this court, directing Falcone, as respondent, to show cause why a warrant of attachment should not issue to the sheriff commanding that official to apprehend the respondent and bring him before the Commission. The order to show cause permitted substituted service thereof upon the respondent. The state police, after due and abortive effort to effectuate personal service, and ascertaining that no one was at the respondent's home in Utica, New York, served the order to show cause, together with the papers upon which it was based, upon the respondent in the manner provided in the order--by registered mail addressed to the respondent at his residence and by affixing the papers to the outer door thereof (see Civil Practice Act, § 231). On September 26, 1958, the return date of the order to show cause, no one appeared in opposition to the application, and it was granted on default. A warrant was, on said day, ordered to be issued, and it was so issued on that date by the Justice presiding, commanding the sheriff to apprehend the respondent and 'bring him forthwith before the said Commission' at its office in New York City, there 'to be examined and testify'.
From that time to this, all efforts to execute the warrant have been fruitless. Appearing specially, the respondent now moves before me to vacate the order of September 26, 1958, and the warrant of attachment of that date, on the ground that the court was without jurisdiction to make the order or issue the warrant. The foundation of the application is that the respondent was not personally served with the order to show cause of September 18, 1958, and the motion papers upon which it was based. While an expression or two dehors the record were indulged in by counsel in their submission, it is recognized that the issue is to be determined solely on the basis of the record itself.
Section 406(1) of the Civil Practice Act, so far as relevant here, reads as follows:
I hold that section 406(1) includes the present petitioner--although it is officially designated as a 'Commission', and not as 'a board or committee'--and that the subpoena was duly issued and duly made returnable for the time and place therein specified. The State Commission of Investigation has the function, power and duty, among others, to 'conduct investigations * * * in connection with' '[a]ny matter concerning the public peace, public safety and public justice', '[t]he conduct of public officers and public employees' and '[t]he faithful execution and effective enforcement of the laws of the state, with particular reference but not limited to organized crime and racketeering'. It is authorized to 'conduct private and public hearings' and to 'subpoena witnesses, compel their attendance [and to] examine them under oath'. It may 'designate one or more members of the commission or its staff to preside over any such hearings' and 'to exercise any such powers' (ch. 989, Laws of 1958, sec. 2, subds. 2 and 11).
I find--indeed, it is not disputed--that the Commission duly proceeded in accordance with the statute, and that the subpoena was duly issued by it, duly made returnable for the time and place therein specified and duly served upon the respondent accordingly. The fundamental problem before me, then, is at once single and singular--single in the sense that they only basic question is whether the warrant should be vacated since it was expressly based upon an order which was procured by default and the initiating order to show cause (upon which the final order itself was expressly grounded) was not personally served; and singular in the sense that the precise question does not appear to have been the subject of any prior determination.
The respondent relies heavily upon Matter of Barnes (Bayne), 204 N.Y. 108, 97 N.E. 508. In that case, the statute involved provided that, if a person 'subpoenaed and attending or brought * * * before an officer or other person or a body refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, which he was directed to bring by the terms of the subpoena, * * * [then the court or judge] may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain, until he submits to do the act which he was so required to do or is discharged according to law' (section 856 of the Code of Civil Procedure [now subsection 3 of section 406 of the Civil Practice Act]). The court held, in Barnes, that this section may be so construed as to require notice to one charged with contempt and that when read with the provisions of the Judiciary Law relating to criminal contempts its provisions were constitutional and valid. The respondent argues that if notice of the application for the issuance of the warrant is required to validate the Barnes statute, notice is similarly required to render the statute involved in the instant case constitutional.
The statute here applicable, as I have earlier noted, is subdivision 2 of section 406 of the Civil Practice Act. It prescribes the procedure for the enforcement of the subpoena issued by the Commission (or committee). In addition to the application to punish for contempt and other remedies which may be invoked, the statute provides, among other things, that a court of record or a judge thereof, 'upon proof by affidavit of the failure [of the subpoenaed witness] to attend, must issue a warrant to the sheriff of the county commanding him to apprehend the defaulting witness and bring him before the officer, person or body before whom or which his attendance was required'.
In Matter of Union Bank of Brooklyn, Appeal No. 2 [Van Tuyl, Jr., Respondent; Grout, Appellant], 147 App.Div. 593, 133 N.Y.S. 62, (reversed upon another ground, 204 N.Y. 313, 97 N.E. 737), one...
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