People ex rel. Fusco v. Ryan

• Decision Date: 16 July 1953
• Citation: 204 Misc. 861
• Parties: The People of the State of New York ex rel. Otto F. Fusco, on Behalf of Anthony Galgano and Michael Galgano, Relators,<BR>v.<BR>Timothy Ryan, as Warden of Bronx City Prison, Defendant.
• Court: New York Supreme Court

204 Misc. 861

The People of the State of New York ex rel. Otto F. Fusco, on Behalf of Anthony Galgano and Michael Galgano, Relators,

v.Timothy Ryan, as Warden of Bronx City Prison, Defendant.

July 16, 1953.

Otto F. Fusco for relators.

George B. De Luca, District Attorney (Milton Altschuler of counsel), for defendant.

MATTHEW M. LEVY, J.

Section 618-b of the Code of Criminal Procedure provides that "Whenever a judge of a court of record in this state is satisfied, by proof on oath, that a person residing or being in this state is a necessary and material witness for the people in a criminal action or proceeding pending in any of the courts of this state, he may, after an opportunity has been given to such person to appear before such judge and be heard in opposition thereto, order such person to enter into a written undertaking, with such sureties and in such sum as he may deem proper, to the effect that he will appear and testify at the court in which such action or proceeding may be heard or tried, and upon his neglect or refusal to comply with the order for that purpose, the judge must commit him to such place, other than a state prison, as he may deem proper, until he comply or be legally discharged. * * * For the purpose of compelling the attendance of any person before him to show cause why he should not be required to enter into such an undertaking to appear as a witness or be committed in default thereof, such judge may at any time upon the proof on oath required as hereinbefore set forth, make an order in the nature of an attachment requiring such person forthwith, or at such time as may be fixed therein, to appear before such judge."

By separate orders of a County Judge of Bronx County, dated July 6, 1953, Anthony Galgano and Michael Galgano were, in pursuance of section 618-b, committed to the New York City prison in Bronx County, there to be detained as necessary and material witnesses in the event of their failure to furnish undertakings in the sum of $50,000 each, conditioned upon their respective appearance and testifying in a certain criminal action in the County Court of Bronx County entitled "The People of The State of New York against John Doe and Richard Roe, Defendants" — the individuals thus specified being unknown. In the proceedings before him, one with respect to Anthony Galgano and the other with respect to Michael Galgano, the County Judge was presented with adequate prima facie proof on oath that, on or about July 5, 1953, one Manzo was murdered; that two unknown persons, acting in concert with each other, had thereafter in the county of The Bronx removed Manzo's body from a certain automobile; that the automobile in question had, prior to June, 1953, been owned by Michael Galgano; that on July 5, 1953, it was owned and controlled by Anthony Galgano, who had had the vehicle registered in the name of one D'Amato; that conflicting statements had been given to the police by the Galganos in regard to the case; that a criminal proceeding was pending before the Grand Jury of the county of The Bronx in respect of the homicide; and that in the official opinion of the police the Galganos were likely to leave the jurisdiction of the criminal court and be unavailable as witnesses for the People when required.

This is a habeas corpus proceeding instituted before me, and heard on July 7, 1953, in behalf of both of the Galganos — whom I shall, for convenience, call the relators. They allege that their imprisonment and restraint are in violation of their constitutional and legal rights. Their principal contentions are that, at the time of the hearings before the County Judge, there was no criminal action or proceeding pending, that the relators are in fact suspects of the murder and not prospective witnesses for the People in the investigation or prosecution, that the present commitment is a subterfuge by the police and the District Attorney to hold the relators as suspects without evidence to name them as such, that their incarceration is punishment and in retaliation for their refusal to co-operate with the authorities, that at the time of the proceedings for commitment or bail before the County Judge, they were not informed of or accorded their right to counsel, that they were not given an opportunity to be heard in opposition to their commitment or the fixation of bail, and that the bail set by the County Judge — $50,000 each — was and is excessive.

The District Attorney asserts that "there is an absolute necessity that the orders committing the aforesaid two material witnesses remain undisturbed". And, from the record, the relators do not at all appear to me to be angelic victims of the claimed diabolic plot they have sought so eloquently to depict, or to be completely unacquainted with the heinous crime properly and vigorously being inquired into by the prosecuting officials. Nevertheless, in consonance with and in protection of our democratic way of life, we must not permit ourselves to be beguiled into acceptance of the guiding thesis of the cynical totalitarian that "the end justifies the means", and that the Galganos "deserve what they got". If the relators have not been accorded their lawful rights, or if their constitutional guarantees have been unlawfully invaded, it is the judicial function of the ancient and powerful writ of habeas corpus, when sued out in this court, to redress such legal wrongs and to maintain such basic safeguards. And this "greatest of all writs" (People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 566) — "cherished by generations of free men" (Hoff v. State of New York, 279 N.Y. 490, 492) and whose aim "by immemorial tradition" "is a justice that is swift and summary" (People ex rel. McCanliss v. McCanliss, 255 N.Y. 456, 459) — may under our law be invoked not only by the good and the pure and the innocent, but by the bad and the guilty and the dishonest (People ex rel. Gross v. Sheriff of City of N. Y., 302 N.Y. 173, 176, dissenting memorandum).

Proof was presented before me by way of the official stenographic minutes of the two separate hearings before the County Judge, both of which were held on July 6, 1953. From those minutes, it appears that those who attended before the County Judge in each case were the assistant district attorney (with perhaps the arresting police officers) and the respective relator in person. The latter was not accompanied or represented by counsel. The procedure adopted was for the assistant district attorney to read from the affidavit of the police detective in charge, and to ask that the court hold the relator as a material and necessary witness. On the issue as to whether the relators were, in those proceedings, "given" "an opportunity" to "be heard in opposition", so that each might respectively "show cause why he should not be required" to give bond or be committed, I quote from the minutes of those proceedings in full: As to Michael Galgano: "The Court [the County Judge]: Have you anything to say why you should not be held as a material witness? Michael Galgano [one of the relators]: I am innocent of the thing. I wasn't even there. The Court: What bail do the People ask? Mr. Altschuler [the Assistant District Attorney]: The People ask $50,000.00 bail and 48 hours notice. Michael Galganos: Your Honor, I think it is no more than right I should have a lawyer. The Court: Have you a lawyer? Michael Galgano: Yes, sir. The Court: Yes, well, you can have your lawyer see you in Bronx County Jail to which you will be committed". And, after the order of commitment and bail was read into the record, the court said to Michael Galgano: "You will be permitted to phone your lawyer from the Bronx County Jail". And as to Anthony Galgano (at another time and in a separate proceeding): "The Court: Have you anything you wish to say, Mr. Galgano? Anthony Galgano: No".

Thus it appears that each relator was privileged to say what he wished. But it is also clear, as of record, that neither was informed that he might confer with an attorney or that he might have an attorney represent him at the hearing; and that in one instance the request of the relator to "have a lawyer" was in effect overruled. Thus the basic controversy before me is — Were, in fact, the instant orders made by the County Judge "after an opportunity [had] been given to such [persons] to appear before such judge and be heard in opposition thereto"? Does that opportunity mean that antecedent information must be given to the witness as to his right to confer with and be represented by counsel? Does it require that preliminary legal consultation and representation by counsel at the hearing — at least, when requested — be not denied? If the "opportunity" to "be heard in opposition" does not as a matter of law envisage any of these matters, then the writ should be dismissed; if it does, the writ should be sustained. The problem is at once as simple and as difficult as that.

The issue is not to be resolved on the basis of a generalization: "Defendants in criminal cases are entitled to have lawyers represent them; these relators are not defendants, but are witnesses only, and witnesses are not entitled to have counsel".

That may be the common thought, but unless understood properly, that thought may lead us into grievous error. It is axiomatic that in general a defendant in a criminal action is entitled, if he wishes, to be represented in that action by an attorney at law (N. Y. Const., art. I, § 6; Code Crim. Pro., §§ 8, 188, 308), and that, on the other hand, a witness — qua witness — is not as a matter of right entitled to counsel (People ex rel. McDonald v. Keeler, 99 N.Y. 463, 484-485). On the basis of these recognized precepts, it is easy to jump to the conclusion that, since the proceedings under section 618-b were not criminal proceedings, and that since the relators here were not defendants in a criminal action before the County Judge, but were merely...