Nigrone v. Murtagh
| Decision Date | 13 December 1974 |
| Parties | In the Matter of Salvatore NIGRONE, Petitioner, v. John M. MURTAGH, New York County Supreme Court Justice Presiding at an Extraordinary Term of the Supreme Court, and Maurice H. Nadjari, Special Prosecutor and Deputy Attorney General, Respondents. The PEOPLE, etc., Plaintiff, v. Paul P. RAO, Defendant. The PEOPLE, etc., Plaintiff, v. Paul P. RAO, Jr., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Herald Price Fahringer, Buffalo (Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, of counsel), for petitioner.
Saxe, Bacon, Bolan & Manley, New York City (Roy M. Cohn and Thomas A. Bolan, New York City, of counsel), for defendants Rao.
Maurice H. Nadjari, New York City (Bennett L. Gershman, New York City, of counsel), pro se and for plaintiff.
Before SHAPIRO, Acting P.J., and COHALAN, CHRIST, BENJAMIN and MUNDER, JJ.
Petitioner Nigrone and defendants Rao have been indicted for perjury in the first degree by a Grand Jury empaneled for an Extraordinary Special and Trial Term of the Supreme Court appointed by Executive Order pursuant to subdivision 1 of section 149 of the Judiciary Law. The Raos have moved in this court to dismiss their respective indictments, and Nigrone (also referred to herein as a defendant) has separately brought a proceeding pursuant to article 78 of the CPLR in the nature of prohibition, in which he also has asked for dismissal of his indictment. Permission for the making of such motions by the Raos and Nigrone has been granted pursuant to subdivision 2 of section 149 of the Judiciary Law.
Dismissal of the indictments is sought primarily upon the ground of prosecutorial misconduct and in the interests of justice. The facts are as follows: Pursuing allegedly specific information about corruption in the criminal justice system, the Special Prosecutor determined to 'infiltrate' the system by setting up a simulated crime. A probationary officer from the Police Academy, using the name 'Vitale', was alleged to have stolen $8,200 from a businessman, with the aid of a gun, on November 1, 1973. Both the 'victim' of this 'armed robbery' and the arresting officer participated in the ruse. A false felony complaint was lodged against Vitale and he was arrested, fingerprinted and placed in jail pending arraignment and the setting of bail. Bail was eventually set at $10,000 by a Judge unaware of the ruse and Vitale was released. The Special Prosecutor's office also fabricated a false criminal record for Vitale, indicating that he had had two prior arrests.
Thereafter, through Vitale, the Special Prosecutor sent a woman, one 'Mrs. Gatti', to contact Judge Paul P. Rao, a Judge of the United States Customs Court. They met on November 12, 1973 and Mrs. Gatti, apparently an old family friend of the Raos who had not seen the Judge in some 40 years, asked his help on behalf of the son of dear friends (Vitale) who was in trouble with the law. Mrs. Gatti, although allegedly unaware of the Vitale hoax, was equipped with a tape recorder. Judge Rao referred Mrs. Gatti to his son, Paul P. Rao, Jr., a practicing attorney. That same day, Mrs. Gatti saw Rao Jr. and arranged to have him meet with Vitale, and such a meeting also took place that day. Rao Jr. agreed to represent Vitale in his pending robbery case.
On November 23, 1973 Vitale was indicted for robbery (two courts) and grand larceny (two counts) by a Kings County Grand Jury. Neither the grand jurors nor the Assistant District Attorney who presented the case knew that the whole thing was a sham and that in fact no such robbery had ever occurred. Vitale failed to appear in the Supreme Court for arraignment on the indictment and his $10,000 cash bail was declared forfeit. (Defendants claim that the nonappearance was caused by the improper removal of Rao Jr.'s notice of appearance from the court files, but the Special Prosecutor denies that any such notice was in the files.) Nevertheless, Rao Jr. was successful in having the bail forfeiture revoked and in staving off a detailed inquiry into whether the bail money was really 'the proceeds' of the 'robbery'. Rao Jr. also procured a return of Vitale's $10,000 cash bail and had the bail reduced to $1,000. Again, none of the Supreme Court Justices before whom the bail matter was presented was aware that the entire case was a hoax.
In March, 1974 Rao Jr. formally withdrew as Vitale's counsel on the stated ground that Vitale was insisting that he, Rao Jr., 'fix' the case for him.
In April, 1974 Judge Rao, his son Rao Jr., and one of the latter's law partners, Salvatore Nigrone, were requested to appear before the Extraordinary Special Grand Jury which was, in fact, along with its broad study of corruption, investigating whether these individuals had conspired with a Judge of the Civil Court of the City of New York and others to bribe a Kings County Supreme Court Justice in order to influence the proceedings in and the outcome of the Vitale robbery case. This Special Grand Jury was informed and was fully aware that there had been no Vitale robbery and that the case was a sham.
The defendants waived immunity and testified before the Special Grand Jury. The undercover agent Vitale and Mrs. Gatti also testified and tape recordings of conversations between all these individuals, surreptitiously made, were put into evidence.
In May, 1974 Judge Rao was indicted upon two counts of perjury (SPOK No. K--15/74) for denying that he had ever told Mrs. Gatti how to handle her problem in affecting a Judge's actions in a criminal case or that she should handle the bail problem by getting a lawyer who knew the Judge. Rao Jr. was indicted upon seven counts of perjury (SPOK No. K--16/74) for denying that he had ever told Vitale that he would have to get money so that he would 'know how to talk' to other people (who could quash his case); for denying that he had seen a Judge, other than the Judge presiding in the case, about the Vitale matter; for denying that he had ever seen anybody in the court system to obtain assistance in the Vitale matter; for denying that he had ever discussed with Vitale or anyone else whether a 'hook was in' in the Vitale case; for denying that he had helped in creating a 'phony' story or defense; for testifying falsely that, at the time of his first court appearance, he had no knowledge of any of the bail money being the proceeds of the robbery; and for falsely testifying that Vitale had never told him that his parents had not furnished the bail. Nigrone was indicted upon one count of perjury (SPOK No. K--17/74) for testifying falsely that he had never asked Rao Jr. if the 'hook was in' in the Vitale case.
The underlying ground urged for dismissal of the indictments is prosecutorial misconduct. Thus, for example, it is claimed that during the course of his investigation, the Special Prosecutor himself committed numerous crimes, such as suborning perjury before the first Kings County Grand Jury, offering a false instrument for filing, and obstructing governmental administration. Stated in a slightly different light, the argument is that the Special Prosecutor has totally abused the criminal process by making the first Grand Jury and numerous Criminal Court and Supreme Court Judges unwitting players in the Vitale robbery charade.
There is no doubt whatsoever that, upon the facts here presented, the office of the Special Prosecutor has exceeded its proper prosecutorial function. The deception of grand jurors, Judges and Assistant District Attorneys and the filing of false official documents are absolutely intolerable. The criminal justice system operates to protect the individual from both unsubstantiated accusations of guilt and illegal or outrageous conduct by an overreaching prosecutor. It is an impartial arbiter, exercising its judgment, for the most part, after law enforcement authorities have completed their function of detecting crime and apprehending the alleged criminal. When, as here, the criminal justice system is made an unwaitting accomplice of an overzealous prosecutor, before the fact, its impartiality is destroyed and contempt for the law encouraged.
The pernicious effect of the Special Prosecutor's conduct is nowhere better exemplified than in his misuse of the Kings County Grand Jury which indicted Vitale for robbery. The Grand Jury has historically been clothed with the responsibility of determining whether there is probable cause to believe a crime has been committed and protecting citizens against unfounded criminal prosecutions (Branzburg v. Hayes, 408 U.S. 665, 686--687, 92 S.Ct. 2646, 33 L.Ed.2d 626). The Special Prosecutor, however, has used the Grand Jury for an entirely different purpose. The Vitale case was presented to it, not for a determination as to whether Vitale had, in fact, committed a crime for which he should be prosecuted, but rather to legitimize Vitale's undercover role as a criminal facing prosecution and to set in motion the events which would, in the Special Prosecutor's estimation, induce the defendants at bar to attempt to fix the criminal prosecution. The grand jurors and the Assistant District Attorney presenting the case were unwittingly made to play a part in the Special Prosecutor's scheme to induce these defendants to commit a crime. Such a perversion of the criminal justice system by an overzealous prosecutor is illegal, outrageous and intolerable and we condemn it. If the justice system is to have any usefulness, it must be respected and believed. The necessary confidence cannot be preserved when Grand Juries and Judges are duped in charades composed of lies and deceptions fabricated by the law officers of the State.
It is not an answer to say that, in searching out crime, deception is often required to bring offenders to justice. Such deception, however permissible when dealing with suspected criminals, is never justified when dealing with...
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