Lief v. Hynes

• Decision Date: 09 March 1979
• Citation: 98 Misc.2d 817,414 N.Y.S.2d 855
• Parties: In the Matter of Arthur M. LIEF, Petitioner, v. Charles J. HYNES, Deputy Attorney General, Respondent.
• Court: New York Supreme Court

Page 855

414 N.Y.S.2d 855

98 Misc.2d 817

In the Matter of Arthur M. LIEF, Petitioner, v. Charles J. HYNES, Deputy Attorney General, Respondent.

Supreme Court, Criminal Term, Queens County, Part 6.

March 9, 1979.

Obermaier, Movillo & Fitzpatrick, New York City, for petitioner by Robert G. Morvillo, New York City, of counsel

Charles J. Hynes, Deputy Atty. Gen., Respondent by Gregory J. Naclerio, Special Asst. Atty. Gen., New York City.

MEMORANDUM

GEORGE J. BALBACH, Justice.

Petitioner seeks to quash a Grand Jury subpoena or, in the alternative, modify same by permitting counsel to be present with his client in the Grand Jury room despite the absence of a waiver of immunity.

The petitioner herein, allegedly owns a controlling interest in a construction firm which does business with Queens hospitals. On December 22, 1978 a subpoena Ad testificandum was issued by the office of Charles J. Hynes, Deputy Attorney General for Nursing Homes, to petitioner on behalf of a Queens County Grand Jury which is conducting an inquiry into hospital operations in this County.

The petitioner challenges the subpoena on the following grounds:

1. That it is defective in that it makes no provision for permitting an attorney for a non-waiver witness to represent his client before the Grand Jury. Petitioner argues that the newly-enacted section, 190.52 of the Criminal Procedure Law, is unconstitutional in that it denies the witness who does not sign a waiver of immunity equal protection of the law, and

2. Petitioner further alleges that the purpose of the prosecutor in seeking his appearance before the Grand Jury is not to secure information dealing with the Queens hospital industry but, rather, to obtain a perjury indictment. Therefore, he maintains the subpoena should be quashed on the grounds of prosecutorial abuse.

Turning to petitioner's first point, the pertinent portions of the challenged statutes read as follows (section 190.52):

(1) "Any person who appears as a witness and has signed a waiver of immunity in a Grand Jury proceeding, has a (2) "The attorney for such witness may be present with the witness in the Grand Jury room. The attorney may advise the witness, but may not otherwise take any part in the proceeding."

right to an attorney as provided in this section. Such a witness may appear with a retained attorney, or if he is financially unable to obtain counsel, an attorney who shall be assigned by the Superior Court which impaneled the Grand Jury. * * * "

This statute permits a waiver-witness the right to be represented by counsel in the Grand Jury room; conversely, it denies that right to one testifying under a grant of immunity. It is petitioner's contention that since he does not intend to presently waive immunity, he will be denied his right to an attorney in the Grand Jury room and be discriminated against and denied equal treatment under the Fourteenth Amendment.

I

EQUAL PROTECTION STANDARDS

The Fourteenth Amendment of our Federal constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Similar language is found in article 1, section 11, of the New York State Constitution. The concept of equal protection has not been, and is not susceptible, to precise definition. No hard and fast rules have been laid down and each situation must be judged on its own merits. Nor has any test been formulated which is all inclusive (Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770). However, the essence of the right to equal protection of the laws is that all persons similarly situated be treated alike and that no person or class of persons shall be denied the equal protection of the laws which is enjoyed by others in similar circumstances (Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 1112). As stated by our New York Court of Appeals, the rule is that equal protection of the laws is not denied when all persons are "treated alike under like circumstances and conditions, both in the privileges conferred and the liabilities imposed" (Sacharoff v. Corsi, 294 N.Y. 305, 312, 62 N.E.2d 81, 84).

In applying the equal protection clause, it has been consistently recognized that this amendment does not deny to states the power to treat different classes of persons in different ways. What it does deny the states is "the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute" (Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225). In short a "classification must be reasonable, not arbitrary, and (it) must rest upon some ground of difference having a fair and substantial relation to the object of the legislation" (Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561-2, 64 L.Ed. 989). To determine then whether the distinction between Grand Jury witnesses in this case is reasonable, this court must evaluate the classification in light of well established constitutional principles. Within the scope of the Fourteenth Amendment, three standards have evolved in determining the validity of equal protection under the law. Hence the first task of the court is to determine which test is applicable to our present statute.

These tests are:

(1) The "rational basis" standard or minimal rationality which requires only "that the State's action be rationally based." (Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491)

(2) A "strict scrutiny" test which applies to "suspect" statutes. Representative "suspect" statutes would be those which discriminate on the basis of "race, alienage and national origin" (Frontiero v. Richardson, 411 U.S. 677, 682, 93 S.Ct. 1764, 36 L.Ed.2d 583).

(3) Finally, a third "sliding scale" or middle ground test is evolving which heretofore has focused only on the question of "a substantial state interest" (San Antonio School District v. Rodriguez, 411 U.S. 1, p. 98, 93 S.Ct. 1278, 36 L.Ed.2d 16).

In determining the proper standard, this court first discards the middle ground test. This is a speculative doctrine which so far seems to have been applied only in educational discrimination areas (see San Antonio Independent School District v. Rodriguez, supra; see, also University of California Regents v. Bakke, --- U.S. ----, 98 S.Ct. 2733, 57 L.Ed.2d 750; Opinion of Mr. Justice Brennan, fn. 30.

This leads to the rational basis test. As was pointed out in Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 332, 384 N.Y.S.2d 82, 87, 348 N.E.2d 537, 542:

" * * * Most classifications are subject to the lax standard of rationality which tests whether the challenged classification bears a Reasonable relationship to some legitimate legislative objective. The test has been applied with great indulgence, especially in the area of economics and social welfare, where, for example, it has been said that "(i)f the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality' ".

This is the test most frequently utilized in cases dealing with equal protection and it is this standard that the respondent urges should be applied in this case.

Petitioner, however, advances the theory that the "strict scrutiny" test is the proper one under the circumstances in this case. As Justice Gabrielli further pointed out in Alevy v. Downstate Medical Center, supra, p. 332, 384 N.Y.S.2d p. 87-88, 348 N.E.2d p. 543:

"Where, however, a statute affects a 'fundamental interest' or employs a 'suspect' classification, the strict scrutiny test has been applied. That test requires that the legislative purpose be so compelling as to justify the means utilized. Identified as suspect are classifications based on alienage (Matter of Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910; Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853; Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534), national origin (Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Takahashi v. Fish & Game Comm., 334 U.S. 410, 418-420, 68 S.Ct. 1138, 92 L.Ed. 1478), and race (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, supra; McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, supra). Fundamental interests include voting (Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169), travel (Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600), procreation (Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655), the right of free speech (Police Dept. of Chicago v. Mosely, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed. 212), the right of a criminal defendant to appeal (Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891)."

The issue is thus reduced to which test is applicable. This question can be resolved by the process of elimination, that is, if the statute does not fall under the narrow guidelines advanced in the strict scrutiny test, then it must fall under the broader rational analysis. As has been indicated previously, the "strict scrutiny" test must affect either a "suspect classification" or a "fundamental interest".

Justice Jones, in Matter of Malpica-Orsini, 36 N.Y.2d 568, 581, 370 N.Y.S.2d 511, 524, 331 N.E.2d 486, 495 (footnote), gives the following concise analysis of what constitutes a "suspect" area. He writes:

"2. Those classifications considered 'suspect' in the constitutional sense include race (see, e. g., Loving v. Virginia Since the witness statute in the present case does not involve race, national origin, sex or alienage, it would appear that the...