People ex rel. Valenti v. McCloskey

• Decision Date: 05 May 1959
• Citation: 185 N.Y.S.2d 952,8 A.D.2d 74
• Parties: PEOPLE of the State of New York ex rel. Frank J. VALENTI, on the Petition of Gilbert S. Rosenthal, Relator-Appellant, v. John J. McCLOSKEY, Sheriff of the City of New York, etc., and Commission of Investigation of the State of New York, Defendants-Respondents. PEOPLE of the State of New York ex rel. Costenze P. VALENTI, on the Petition of Gilbert S. Rosenthal, Relator-Appellant, v. John J. McCLOSKEY, Sheriff of the City of New York, etc., and Commission of Investigation of the State of New York, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 952

185 N.Y.S.2d 952

8 A.D.2d 74

PEOPLE of the State of New York ex rel. Frank J. VALENTI, on the Petition of Gilbert S. Rosenthal, Relator-Appellant, v. John J. McCLOSKEY, Sheriff of the City of New York, etc., and Commission of Investigation of the State of

New York, Defendants-Respondents.

PEOPLE of the State of New York ex rel. Costenze P. VALENTI, on the Petition of Gilbert S. Rosenthal, Relator-Appellant, v. John J. McCLOSKEY, Sheriff of the City of New York, etc., and Commission of Investigation of the State of

New York, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

May 5, 1959.

Gilbert S. Rosenthal, New York City (Aaron J. Jaffe, New York City, with him on the brief), for relators-appellants.

Eliot H. Lumbard, Chief Counsel, Commission of Investigation, New York City (Nathan Skolnik, Carl A. Vergari, Arnold M. Weiss, New York City, and Joseph Fisch, New York City, with him on the brief), for respondent, Commission of Investigation.

Before BREITEL, J. P., and M. M. FRANK, VALENTE, McNALLY and STEVENS, JJ.

BREITEL, Justice Presiding.

Relators, two brothers, appeal from the dismissal by Special Term of writs of habeas corpus obtained by them to secure their release from custody. Since August, 1958 they have been held in civil custody under orders of the Supreme Court issued pursuant to Section 406 of the Civil Practice Act.

On November 14, 1957, in the rural town of Apalachin in Tioga County in up-State New York, a group of men, numbering about sixty, assembled at the home of one Joseph Barbara. They came unaccompanied by their wives or other female companions. Indeed, there were no women at the place except, perhaps, for the wife and daughter of the host, Barbara. The bulk of the men had criminal records, some short and some long. Some came from far-away, even foreign, places. Most had been involved in suspect activities at one time or another associated with, to use the vernacular terms, gambling, racketeering and narcotics. Because the State Police in the area became suspicious they entered the premises. Many of the men fled by foot or in their automobiles; the remainder were held and questioned at the Troopers' barracks. A common explanation given for their presence was that they had come to visit Joseph Barbara, a sick friend.

The meeting, which received a great deal of newspaper notoriety, resulted in a number of official investigations to uncover the purpose of the assemblage. Among those investigations was one conducted by the State Commission of Investigation. ¹ Seven of those who attended the meeting were brought before the Commission by subpoena, questioned granted immunity on their claim of constitutional privilege, and then required further to answer on the basis of the immunity granted (Penal Law, § 2447). The seven persisted in their refusal to answer.

In consequence of the seven witnesses' refusal to testify the Commission applied to the Supreme Court for orders under which the men were detained until such time as they should answer the twenty-six questions first propounded to them. These orders were the subject of a prior appeal in this Court, and the orders were sustained as valid. In the opinion of Mr. Justice Bastow rendered on that appeal the circumstances under which these men were held are described in detail, as well as are the several legal grounds asserted by them for their persistent refusal to answer the twenty-six questions (Commission of Investigation of State by Lane v. Lombardozzi, 7 A.D.2d 48, 180 N.Y.S.2d 496, affirmed 5 N.Y.2d 1026, 185 N.Y.S.2d 550).

After the State Court of Appeals ruled, on March 13, 1959, that the seven men had been properly detained, relators alone of the seven applied to the Commission for the opportunity to answer the questions certified in the orders of detention. They purported to answer all the questions. The Commission held their answers, however, not responsive and evasive, and, therefore, a noncompliance with the August, 1958 orders of the court.

The twenty-six questions, in short, were designed to elicit the witnesses' knowledge of Barbara, the circumstances under which they attended the so-called Apalachin meeting, what happened there, and any prior relationships among those who attended. Because they are of critical significance, one of the orders in which the questions are set forth is attached as an appendix.

Now, having purported to answer the questions, relators contend that they should be freed from further custody.

The primary issue in the case is whether relators are entitled to release merely because they made some answer to the pertinent questions. Relators contend that this is sufficient, while the Commission argues that the answers must be true, or, in any event, at least be credible. Raised directly is the further question whether the standards for the sufficiency of the answers given by relators are the same under Section 406 as in summary proceedings in judicial contempt. Raised, also, incidentally, but nevertheless significantly, is whether in testing the satisfactory character of the answers the Commission could properly address questions to the witnesses other than those specifically set forth in the orders of commitment.

The problems raised by the case are difficult, as they are in all matters involving evasive contempt. For in such cases a fine distinction must be made. Every falsehood is an evasion, and every evasion, of necessity, amounts to some degree of falsehood. Nevertheless, the rule is quite clear that one who is guilty only of false swearing may not be summarily tried and committed. It is also true, however, that if false and evasive testimony is given to obstruct an inquiry and goes beyond the raising of an issue of credibility then summary sanctions are available.

On this view, relators are entitled to release only if they gave proper and responsive answers to the questions. But this does not mean that the answers must satisfy the expectations or wishes of the questioners. Nor does it mean that the answers must be demonstrably truthful; but it does mean that the answers must be more than mere lip service by the utterance of intelligible words. While the distinction is difficult, both to phrase and to apply, it will b emore readily understood from the application to the facts in this case.

As will appear from the application of the appropriate rules, relator Frank J. Valenti is entitled to release on the ground that his answers to the twenty-six questions are not so palpably false and evasive as to be tantamount to the avoidance of giving answers. On the other hand, relator Costenze P. Valenti is not entitled to release because his purported answers are palpably false and evasive, designed to obstruct and having the effect of obstructing the inquiry and avoiding the giving of answers to the Commission. As a consequence, the latter has not purged himself of the persistent definance of the order under which he has been detained.

Needless to say, the right to detain relators depends upon the internal content of their testimony before the Commission. Also, needless to say, each relator is entitled to have his separate testimony examined without reference to the testimony of the other, or to what is known from sources outside the record he has made. The latter statements are true, at least, in this kind of proceeding where the issue is noncompliance with a direction to answer, and the inquisitor's contention is based upon evasion proven by the very purported answers given.

One of the brothers, Frank, asserted that he had been taken to the meeting by his brother, Costenze, and that he had been a quite passive figure in the entire transaction. He said that for several decades he had been a resident of Pittsburgh, Pennsylvania, and had moved only recently to Rochester, New York, where his brother Costenze lived. He said that his brother decided to take his new car for a short trip down to New York City and had asked him, Frank, to join him. They stopped at Syracuse to visit a friend named Sam Scro and stayed overnight at a motel. The next day Costenze suggested that they shoudl drive to Apalachin to visit a sick friend of his before proceeding directly to New York City. Frank asked no particular questions about this, and Costenze provided no additional information. According to Frank, the brothers arrived at Barbara's home in Apalachin about noon and left about 6:00 p. m. after the State Police had intruded. When they arrived there were many men. To Frank's recollection there were about 40, 30 men; there could have been 50, 'tops'. The guests partook of food and drink which was avialable on the grounds and they largely served themselves. There wa sonly casual conversation of no particular moment. No one addressed them. That was the only time Frank had met Barbara in his life. Most of the men there he did not know but there were a few that he recalled meeting on prior occasions.

Costenze, the other brother, gave a similar story in answering the twenty-six questions, with this difference however: since both Frank and he had concurred that it was he who brought Frank to the meeting, he had the heavier burden to explain the happening of the event. Costenze said that he had met Barbara some 4, 5, 6 or 7 years before at a beer convention at a hotel in Syracuse. He had seen him four or five times since; but he had never communicated with him by telephone or writing. He knew that Barbara had been sick--a heart condition--and thought it would be a nice thing to visit him. No one informed him of Barbara's illness and he could not recall when he had last seen him in the last two or three years. He did recall, however, that Barbara had told him at some time that he had been ill, and that he would need an operation. When he got to the Barbara home he was quite surprised by the large crowd.

As Costenze was preseed, he said there could have been 20, 25, maybe...