People ex rel. Valenti v. McCloskey

CourtNew York Court of Appeals
Citation6 N.Y.2d 390,189 N.Y.S.2d 898,160 N.E.2d 647
Parties, 160 N.E.2d 647 PEOPLE of the State of New York ex rel. Frank J. VALENTI, on the Petition of Gilbert S. Rosenthal, Respondent, v. John J. McCLOSKEY, as Sheriff of the City of New York, et al., Appellants. PEOPLE of the State of New York Et rel. Costenze P. VALENTI, on the Petition of Gilbert S. Rosenthal, Appellant, v. John J. McCLOSKEY, as Sheriff of the City of New York, et al., Respondents.
Decision Date08 July 1959

Page 898

189 N.Y.S.2d 898
6 N.Y.2d 390, 160 N.E.2d 647
PEOPLE of the State of New York ex rel. Frank J. VALENTI, on
the Petition of Gilbert S. Rosenthal, Respondent,
John J. McCLOSKEY, as Sheriff of the City of New York, et
al., Appellants.
PEOPLE of the State of New York Et rel. Costenze P. VALENTI,
on the Petition of Gilbert S. Rosenthal, Appellant,
John J. McCLOSKEY, as Sheriff of the City of New York, et
al., Respondents.
Court of Appeals of New York.
July 8, 1959.

Page 899

[6 N.Y.2d 392] Eliot H. Lumbard, Nathan Skolnik, New York City, Arnold M. Weiss, Alfred Donati, Jr., Brooklyn, Joseph Fisch, New York City, for Commission of Investigation, appellant in the first above-entitled proceeding and respondent in the second above-entitled proceeding.

Gilbert S. Rosenthal and Aaron J. Jaffe, New York City, for Frank J. Valenti, respondent in the first above-entitled proceeding,[160 N.E.2d 648] and Costenze P. Valenti, appellant in the second above-entitled proceeding.

[6 N.Y.2d 393] FROESSEL, Judge.

The real question presented on this appeal is whether a witness before the State Commission of Investigation, who answers questions enumerated in a warrant of commitment procured by the commission, may be incarcerated indefinitely until he consents to give a character of testimony which in the opinion of the commission and the courts is not perjured.

Relators, along with others, were subpoenaed to testify before the Commission of Investigation of the State of New York at publi hearings, which commenced during August of 1958, concerning the so-called Apalachin 'meeting' held at the home of Joseph Barbara, Sr., in Apalachin, Tioga County, New York. Relators appeared before the commission and claimed their privilege against self incrimination as to all questions asked other than those directed merely to identifying data. After the commission granted relators complete immunity from prosecution by New York State authorities, they persisted in their refusal to testify and were committed to civil jail, pursuant to subdivision 3 of section 406 of the Civil Practice Act. That statute provides, in pertinent part, that if a person duly subpoenaed to appear before certain officials and nonjudicial bodies specified in subdivision 1 'refuses without reasonable cause * * * to answer a legal and pertinent question', he may, by order and warrant of the court, be committed to jail 'there to remain until he submits to do the act which he was so required to do'.

The orders and warrants committing relators specified 26 questions which relators had refused to answer. This was in [6 N.Y.2d 394] accordance with subdivision 4 of section 406, which provides that 'if the witness is committed

Page 900

for refusing to answer a question, the question must be inserted in the warrant'. The 26 questions were designed to elicit the witnesses' knowledge of Barbara, the circumstances under which they attended the alleged 'meeting', what happened there, and any prior relationship among those who attended. The Appellate Division unanimously affirmed the commitment of relators, along with five other recalcitrant witnesses (Commission of Investigation of State of New York v. Lombardozzi, 7 A.D.2d 48, 180 N.Y.S.2d 496), and we unanimously affirmed 5 N.Y.2d 1026, 185 N.Y.S.2d 550.

Six days after this court's order of affirmance was handed down, the commission convened a hearing, at the request of relators, to give them an opportunity to answer the enumperated questions and obtain their release. Over the repeated objections of counsel, questions far afield of the 26 enumerated in the orders and warrants of commitment were asked; but during the course of the interrogation the 26 specific questions were asked of each witness. The commission concedes that both relators gave 'some sort of answer to each question', but contends that the answers given were 'in varying degrees, false, evasive, and obstructive of its investigation; indeed, in many instances the answers are inherently incredible'.

The evidence given by relators in answer to the 26 and directly related questions was virtually the same. On November 13, 1957, Costenze, who was suffering from lead poisoning and not feeling well, decided while at Rochester to take a pleasure and rest trip to New York City for a few days, and asked Frank to join him. Frank agreed to accompany him if they would later go on to Pittsburgh, where frank was arranging the sale of his house. He had recently moved from Pittsburgh to Rochester, where Costenze resided, but had not yet disposed of his Pittsburgh home. Costenze agreed to the Pittsburgh trip, and on their way to New York they stopped at Syracuse to visit a friend named Sam Scro. They spent the night of the 13th in a motel on the outskirts of Syracuse.

The following morning, during breakfast, Costenze suggested that before proceeding[160 N.E.2d 649] to New York they drive to Apalachin to visit a friend who was ill. Frank had never before met this friend, one Barbara, but, without eliciting or obtaining any [6 N.Y.2d 395] additional information, agreed to the detour since he had no definite appointment in Pittsburgh and his brother was killing 'three or four days anyway'. Costenze had met Barbara some 5 to 7 years previously at a beer convention in Rochester, and had met him some 3 or 4 times since once at a wedding, though he did not recall the details, and once at Barbara's Apalachin home, when he also dropped in unannounced to inquire after Barbara's health. During the years he had known Barbara they never corresponded, spoke on the

Page 901

telephone, or had any business dealings, and Barbara had never visited Costenze at the latter's home. As to his knowledge of Barbara's illness, Costenze testified that when he had first met Barbara at the convention Barbara told him that he was not feeling well and held lost a tremendous amount of weight. He subsequently learned that Barbara was about to undergo a heart operation, but he could not recall when or where he had learned this.

When they arrived at Barbara's home they were both surprised to see such a large gathering there, which they estimated to be anywhere from 25 to 70 people. Frank testified: 'I didn't go over there and visit a guy and go over and count how many people there was there. I don't know. how many was there. There could have been 30, 20, 40; I don't know. Three or four guys here with a sandwich, drinking; four or five guys at one end of the yard and at the other end of the yard', and then in answer to question 14, which called for the appoximate number of persons present, stated: 'To the best of my knowledge, I'd say I saw about 30 or 40 or 50 people, tops.' Costenze testified that he 'honestly and truthfully' did not remember how many people were there, as he did not count them, but later, in specific answer to question 14, answered: 'Approximately 30, 25.'

When they arrived on the premises they proceeded directly to the house and met their host in the living room. Costenze introduced Frank to Barbara, and Frank said he 'was glad to meet him and that was it. To me he was a stranger'. Costenze inquired after Barbara's health; Barbara said he 'wasn't feeling like he should and that he had to take it easy', and 5 or 10 minutes of casual conversation ensued, 'All pertaining to his, more or less, you'd say, medical report'. Barbara then invited them to partake of food and drink, which was [6 N.Y.2d 396] available in the yard on a self-service basis, and to 'walk around, make yourself right at home'. Neither Frank nor Costenze saw Barbara again until they said their goodbyes some 6 hours later.

Both Frank and Costenze testified that they met a number of friends and acquaintances on the premises, whom they identified by name, and their conversation was only casual. There were no public officials present, to their knowledge, and neither had had any business dealings with any of the persons present. Frank testified that he did not ask Barbara or any of the other persons he met why they had come, or what the occasion for such a large gathering was, as it was not his home and he did not think it was any of his business. Costenze testified likewise, except as to a conversation he had with a friend named Jimmy La Duca, whom he met on the premises. He had no discussion with La Duca as to why so many people were there, since 'That wasn't my home. I don't think it was up to me to ask anything. I went to see a sick friend and I don't

Page 902

see where it's any of my business to go around asking people 'What are you doing here?' It's not my house.'

During the 6 hours they were there they wandered around admiring the premises and the surrounding countryside, sat down on chairs in the yard, and partook of the refreshments. They did not return to the house, and both repeatedly testified that there was no 'meeting' and that no one addressed the gathering. Frank testified [160 N.E.2d 650] that Costenze 'was with me, practically all the time', and Costenze testified likewise. They left at about 6:00 p. m., and, according to Costenze, Barbara 'didn't say nothing outside of goodbye. He was glad to see me. I was glad to see him. I told him to take care of himself and to do what the doctor tells him to do, and that was it.'

Upon leaving the premise they were stopped by the State Police and taken to the State Police Barracks at Vestal, where they were stripped, frisked and questioned. After they were released, they decided to curtail their trip and return to Rochester. Frank testified that he 'was disgusted with the whole thing' and decided to make his Pittsburgh trip alone at a later date. Costenze testified that he 'didn't know why I was stopped or why I was frisked, or any of this, why it [6 N.Y.2d 397] went on' and 'thought it would be best to go home and stay with my wife', who was expecting a child.

At the conclusion of Frank's questioning, counsel sought the consent of the commission...

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