Gold v. Menna

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: JASEN; FULD
• Citation: Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33 (N.Y. 1969)
• Decision Date: 04 December 1969
• Parties: , 255 N.E.2d 235 In the Matter of Eugene GOLD, District Attorney et the County of Kings, Respondent, v. State MENNA, Appellant. In the Matter of Eugene GOLD, District Attorney of the County of Kings, Respondent, v. Joseph CHILLI, Rocco Matra and George Chilli, Also Known as Gerard Chilli, Appellants. In the Matter of Eugene GOLD, District Attorney of the County of Kings, Respondent, v. Natale EVOLA, Appellant.

Page 33

307 N.Y.S.2d 33

25 N.Y.2d 475, 255 N.E.2d 235

In the Matter of Eugene GOLD, District Attorney et the

County of Kings, Respondent, v. State MENNA, Appellant.

In the Matter of Eugene GOLD, District Attorney of the

County of Kings, Respondent, v. Joseph CHILLI, Rocco Matra and George Chilli, Also Known as

Gerard Chilli, Appellants.

In the Matter of Eugene GOLD, District Attorney of the

County of Kings, Respondent, v. Natale EVOLA, Appellant.

Court of Appeals of New York.

Dec. 4, 1969.

Malvine Nathanson and Milton Adler, New York City, for Steve Menna, appellant.

Joseph Aronstein, New York City, for Joseph Chilli, Rocco Matra, and George Chilli, also known as Gerard Chilli, appellants.

John Nicholas Iannuzzi, New York City, for Natale Evola, appellant.

Eugene Gold, Dist. Atty. (Irving P. Seidman and Mark Gruberg, Brooklyn, of counsel), for respondent.

JASEN, Judge.

The primary issue in this case is whether a witness gains an immunity from prosecution for murder--even though such crime is not one of the offenses specified in the statute for which immunity may be conferred--where the Grand Jury is carrying on an investigation related to conspiracy to commit murder and other crimes.

The Fourth Additional Kings County Grand Jury of May, 1968 was impaneled to conduct an investigation into a conspiracy to commit murder and other crimes in the County of Kings in connection with an effort by unnamed persons to succeed one Joseph Bonanno as head of an organized crime syndicate.

On November 7, 1968, the appellants, having been previously subpoenaed, appeared before the Grand Jury and refused to answer any questions on the ground that their answers might be self incriminatory. The District Attorney, believing that the appellants could give useful evidence bearing on the conspiracy to commit murder and could identify some or all of the co-conspiractors and perpetrators thereof, expressly asked the Grand Jury to grant each appellant immunity pursuant to sections 619--c and 618--d of the Code of Criminal Procedure. Thereafter, on the same date, November 7, 1968, appellants were granted immunity. However, they still refused to answer any questions. When they persisted in their refusal to answer, the District Attorney, by order to show cause, moved in Supreme Court, Kings County, for an order directing each of the appellants to return before the Grand Jury and answer all legal and proper questions propounded; or, in the event of a refusal to obey such direction, to show cause why each should not be punished for contempt pursuant to section 750 of the Judiciary Law, Consol.Laws, c. 30.

Subsequently, in March, 1969, after appearing with counsel, the appellants were ordered by the court to return before the Grand Jury and answer the questions propounded. The witnesses once again refused to answer, and thereupon were adjudged in contempt of court in violation of section 750 of the Judiciary Law. Before being sentenced, they were given an opportunity to purge their contempt, which they refused.

Each appellant was sentenced to the Civil Prison of the City of New York for a term of 30 days and fined $250 (or an additional 30 days in default of payment) with the exception of appellant Menna who only received a 30-day prison term. These appeals have been consolidated as they involve identical questions of law.

On this appeal appellants' primary argument is that the Grand Jury had no power to grant immunity in the pending investigation because the investigation centered on a series of murders and assaults, for which crimes the Grand Jury has no statutory authority to grant immunity.

Section 619--d (subd. 2) of the Code of Criminal Procedure denominates, by reference to specific sections of the Penal Law, the offenses for which a Grand Jury may confer immunity, and murder and assault are not included. However, the statute does specifically provide for the conferring of immunity in the case of a Grand Jury investigation into a Conspiracy to commit murder. (Code Crim.Proc., § 619--d, subd. 2; Penal Law, § 105.15, Consol.Laws, c. 40.)

There is no doubt that the investigation here focused on such a conspiracy. The record discloses that the Grand Jury was investigating a series of incidents following, and possibly related to, the kidnapping of Joseph Bonanno on October 20, 1964, such as a shooting on Troutman Street, in Brooklyn, on January 28, 1966; the shooting of Frank Mari, in Brooklyn, in July, 1966; the murder of Thomas and James D'Angelo and Frank Telleri, in Queens, on November 10, 1967; the shooting of Peter Crociata, in Brooklyn, on March 4, 1968; the murder of Sam Perrone, in Brooklyn, on March 11, 1968; the murder of Michael Consolo, in Queens, on April 1, 1968; the shooting of William Gonzalez, in The Bronx, on April 5, 1968; the shooting of Francisco Crociata, in Brooklyn, on April 17, 1968; the murder of Thomas Zummo, in Queens, on February 5, 1969; and other related crimes.

In addition to the afore-mentioned murders, the Grand Jury was also investigating a number of shootings and assaults where the victims survived. Indeed, in those instances, the crime of conspiracy to commit murder may well have been perpetrated, although the completed crime of murder was not.

It is certainly proper and within the power of a Grand Jury to investigate these series of killings and assaults to determine whether they were committed in furtherance of a conspiracy to assume control of an organized crime syndicate in Kings County. Clearly, the statutory purpose of granting immunity to one person so as to gain evidence against others mandates that the Grand Jury be allowed to grant immunity here.

The fact that a crime, such as murder, which is not included in the statute may be mentioned by a witness testifying with immunity, should not change this conclusion. To be sure, there is always the possibility that in any Grand Jury investigation where immunity is granted, crimes not specifically enumerated in the statute may be revealed. However, to allow this fact to repeatedly void the grant of immunity would be illogical and contrary to the intent of the Legislature.

In Matter of Second Additional Grand Jury of Kings County (Cioffi), 8 N.Y.2d 220, 203 N.Y.S.2d 841, 168 N.E.2d 663 (1960), we rejected a similar contention, stating at pages 225--226, 203 N.Y.S.2d at 843, 168 N.E.2d at 665: '(A) ppellants say that they could not be compelled to testify under these circumstances because the Grand Jury was investigating crimes * * * which are not among the crimes as to which the Penal Law authorizes an express grand of immunity. The answer to that is that * * * appellants would have gotten complete immunity as to any and all crimes to which their testimony related.'

As a subsidiary issue, appellants maintain that the immunity granted by the Grand Jury is limited and is, therefore, not coextensive with their privilege against self incrimination as required by Counselman v. Hitchcock (142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110), where the court declared that 'a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates' (p. 586, 12 S.Ct. at p. 206). Assuming, because of the views expressed in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 and Murphy v. Waterfront Comm., 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 that this may no longer be so, resolution of the issue would not affect the result under the statutes of this State. For, despite the statements to the contrary in People v. La Bello, 24 N.Y.2d 598, 301 N.Y.S.2d 544, 249 N.E.2d 412, the applicable immunity statute provides, in so many words, that a person, upon whom immunity is conferred, 'shall not be prosecuted or subjected to any penalty * * * for or on account of any transaction, matter or thing concerning which * * * he gave answer or produced evidence' (Code Crim.Proc., § 619--c, subd. 2). The court has, indeed, expressly recognized that this Code provision and its identical provision in the former Penal Law ( § 2447), granted a transactional immunity from prosecution for any crime revealed by a witness' testimony before a Grand Jury. (See People v. Ianniello, 21 N.Y.2d 418, 425, 288 N.Y.S.2d 462, 468, 235 N.E.2d 439, 443, cert. den. 393 U.S. 827, 89 S.Ct. 90, 21 L.Ed.2d 98; People v. Tomasello, 21 N.Y.2d 143, 149, 287 N.Y.S.2d 1, 4, 234 N.E.2d 190, 192; see, also, 1942 Report of N....