O'Neil v. Kasler

Decision Date12 July 1976
Citation53 A.D.2d 310,385 N.Y.S.2d 684
PartiesApplication of James Jack O'NEIL, Petitioner, v. Hon. Theodore KASLER, Justice of the Supreme Court, Respondent.
CourtNew York Supreme Court — Appellate Division

Philip B. Abramowitz, Buffalo, for petitioner.

Edward C. Cosgrove, Dist. Atty., Buffalo (Judith Manzella, Buffalo, of counsel), for respondent.

Before CARDAMONE, J.P., and MAHONEY, DILLON, GOLDMAN and WITMER, JJ.

GOLDMAN, Justice.

Petitioner, James Jack O'Neil, brings this article 78 proceeding, under authority of Judiciary Law, § 752, to review a mandate of Supreme Court, Erie County, which summarily punished him for criminal contempt. The mandate recites that petitioner, having been sworn as a witness at a criminal trial, refused to answer questions but to him by the prosecutor even though the court had advised him that he had full transactional immunity. The mandate provided that petitioner was to be committed to jail for 30 days unless he should earlier agree to answer the questions.

Petitioner's principal contention is that the court never actually ordered him to answer the prosecutor's questions, as required by CPL, § 50.20, subd. (2), par. (b). That procedural defect, he claims, rendered the purported grant of immunity ineffective. He therefore argues that his refusal to answer was lawful and cannot be the basis for punishment for contempt.

The alleged contempt occurred during the trial of one William Graham upon charges not disclosed in the record before us. Immediately after petitioner was called as a prosecution witness, a conference in chambers was held at the instance of the attorneys for defendant Graham. At that conference petitioner was represented by separate counsel. In the colloquy that ensued, the prosecutor took the position that petitioner could receive immunity only on a piecemeal, question-by-question basis and not by a single immunity grant. Graham's attorneys contended that the law did not require immunity to be granted on such a 'piece by piece' basis, and that the procedure recommended by the prosecutor would cause petitioner to invoke the Fifth Amendment, perhaps repeatedly, in front of the jury, to the prejudice of Graham. They threatened to move for a mistrial if that should occur. The prosecutor eventually suggested a procedure whereby petitioner, in the absence of the jury, would be sworn and instructed as to the scope and extent of immunity allowed him, after which it would be ascertained whether he was willing to answer questions. The prosecutor expressed willingne to accord petitioner immunity to the full extent allowed by law, to encompass even perjury which petitioner may have committed in prior testimony before the grand jury. The court agreed to 'grant that immunity pursuant to the District Attorney's request', but intimated some doubt whether a grant of immuniy from grand jury perjury was legally possible and stated positively that petitioner could not be given immunity from perjury committed during the trial. The court stated that if petitioner 'invokes the Fifth Amendment before this jury, I will summarily punish him for contempt and he will leave this courtroom in custody to the jail'.

Petitioner's attorney, however, stated that he would still advise petitioner to invoke his privilege because the proferred immunity would not be broad enough to protect him from prosecution for perjury. He first expressed doubt that a grant of immunity for grand jury perjury could validly be given, and noted that even if it could, there would certainly be no immunity for perjury upon the trial. Secondly, he contended, in order to convict petitioner of perjury it would be necessary to show only that he made two inconsistent statements under oath, but not necessary to show which was true and which was false. Hence, he concluded that petitioner still ran the risk of 'being charged with committing perjury here for a truthful statement made here inconsistent with his grand jury testimony', so that 'the immunity being granted is not fully coextensive with his privilege against self-incrimination'.

After the court reiterated its position that petitioner 'is not getting any immunity from perjury in this trial', petitioner was sworn in open court, in the jury's absence. He gave his name to the crier, but invoked his privilege when asked his address. The prosecutor then told petitioner that he intended to question him 'relative to any knowledge that you may have with respect to the arrest and subsequent prosecution of Henry Ralph Anderson', and asked if petitioner would 'respond to any questions that I may ask of you'. Petitioner replied, 'I refuse to answer on the grounds it may incriminate me'. He gave the same response when asked if he had been called before the grand jury and granted immunity.

The prosecutor then explained the immunity he was prepared to request the court to grant petitioner, as follows:

'Q. I state to you, Mr. O' Neil, that any questions that I may ask of you during the course of this proceeding, that you have full transactional immunity which encompasses, I will define immuni for you. A person who has been a witness in a legal proceeding and who cannot, except as otherwise provided in this subdivision be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he gave evidence, therein possesses immunity from such conviction, penalty or forfeiture. A person who possesses such immunity may nevertheless be convicted of perjury as a result of having give false testimony in such legal proceeding, and may be convicted of or adjudged in contempt as a result of having contumaciously refused to give evidence therein. I state to you, Mr. O'Neil, in the presence of the Court that any question during the course of this proceeding that the Court deems a relevant and material question, whether on direct examination or on cross examination, I am prepared to recommend to the Court, to have the Court direct you to answer that question, and in answering it, sir, I advise you that the law of the State of New York will convey to you complete immunity with respect to your response, during this proceeding, with the exception of perjury during this proceeding. That encompasses any perjury that would have--or, that encompasses any perjury that may have been committed before the grand jury upon your appearance on November 4, 1975. With that understanding of the immunity grant that I am prepared to direct the Court to direct you to answer any question relevant to this proceeding, both on direct examination and on cross examination. Will you respond to the questions that I may ask of you, or Mr. Condon will ask of you?'

Petitioner responded 'I refuse to answer on the grounds it may incriminate me'. At that point, petitioner's counsel reiterated his reason for advising petitioner to invoke his privilege, which was that the proferred immunity 'is not coextensive with his privilege against self-incrimination'.

Then the following occurred:

'THE COURT: All right. Mr. Witness you have heard the statement of your attorney, Mr. Gary Forsyth. You have heard the statement of the District Attorney, Mr. Joseph McCarthy who specifically read to you the extent of the immunity that he is requesting this Court to grant to you pursuant to Section 50.10, Section 50.20 and Section 50.30 of the Criminal Procedure Law. And, I, as a competent authority to grant such immunity pursuant to Section 50.20, subdivision 2A and B, hereby state to you, that I hereby give you full transactional immunity as stated by the District Attorney, with the exception of any perjury, as a result of having given false testimony in this legal proceeding. If you still insist on asserting your Fifth Amendment privilege, I will punish you immediately, in contempt of this Court, and I shall sentence you to thirty days in the Erie County Penitentiary, forthwith. If you testify to the extent of the transactional immunity granted--requested by the District Attorney, and which I hereby grant you, no such sanctions will be applied. Have you heard my statement? (emphasis supplied)

THE WITNESS: Yes, sir.

THE COURT: All right. I hereby grant you full transactional immunity concerning your testimony in this case. You will testify?

THE WITNESS: No, your Honor.

THE COURT: You will not? You will assert your privilege?

THE WITNESS: I plead the Fifth.

THE COURT: You plead the Fifth. All right. The Court hereby sentences you to thirty days in the Erie County Penitentiary.'

Respondent's answer raises two objections in point of law: first, that the affidavit-petition is not properly verified; and secondly, that it is signed not by petitioner but by his attorney, who is not the real party in interest.

An article 78 petition is required to be verified (CPLR 7804, subd. (d)), and the verification of a pleading must ordinarily be made by the party, but may be made by his attorney 'if all the material allegations of the pleading are within the personal knowledge of * * * the attorney' (CPLR 3020, subd. (d), par. (3)). However, if the verification is made by one other than the party, 'he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party' (CPLR 3021). Because all of the material facts here are contained in the mandate of commitment and the pertinent parts of the trial transcript, all of which are annexed to the petition as exhibits, it seems fair to conclude that the petition's material allegations are upon the attorney's personal knowledge. However, the petition does not allege that they are, nor does it explain why the verification is not made by petitioner himself. To that extent, the petition does violate the requirements of CPLR 3021.

Nevertheless, we overrule respondent's objections in point of law on the ground that he waived them by not...

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    ... ... "Due diligence has been held to mean within twenty-four hours. " O'Neil v. Kasler, 53 A.D.2d 310, 385 N.Y.S.2d 684 (4th Dept.1976) citing Westchester Life v. Westchester Magazine Co., 85 N.Y.S.2d 34 (1948). "A party who waits ... ...
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1 books & journal articles
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    • Cardozo Public Law, Policy and Ethics Journal No. I-1, May 2003
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