People v. Breindel

• Decision Date: 16 March 1973
• Citation: 342 N.Y.S.2d 428,73 Misc.2d 734
• Parties: The PEOPLE of the State of New York, v. Robert BREINDEL, Defendant.
• Court: New York Supreme Court

Page 428

342 N.Y.S.2d 428

73 Misc.2d 734

The PEOPLE of the State of New York, v. Robert BREINDEL, Defendant.

Supreme Court, Trial Term, New York County, Part 42.

March 16, 1973.

Frank S. Hogan, Dist. Atty. (Ronald Chester Goldstock, New York City, of counsel), for the People.

Andrew E. Wallach, for defendant.

BURTON B. ROBERTS, Justice:

This three-count criminal contempt (Penal Law § 215.51) indictment was tried before me without a jury upon a series of stipulations and the minutes of defendant's grand jury appearance. The defense rested without presenting any evidence and moves for a dismissal of the indictment or a verdict of acquittal.

The facts, therefore, are not in dispute. On January 28, 1972, Robert Breindel was called before a quorum of a lawfully-constituted grand jury investigating illegal gambling and criminal usury, and he was duly sworn. An assistant district attorney immediately informed him of the nature and scope of the proceedings and told him that by testifying he would receive 'complete, full transactional immunity' as defined in CPL § 50.10(1), which was read to him. Breindel indicated that he understood the scope of the investigation and stated that the concepts of immunity, perjury and contempt had been explained to him by his lawyer, who was present outside the grand jury room. When the substantive examination began, however, he met the first question posed to him with a recitation of three reasons, discussed on their merits below, why his counsel deemed any immunity conferred upon him inadequate to replace his Fifth Amendment privilege. Then he added: 'I also request any information as to whether any conversations of mine have been the subject of wiretapping or any electronic devices'.

Not undertaking to reply to this 'request', the prosecutor repeated the pending question. Breindel refused to answer this and each of the fifteen subsequent interrogatories posed to him, on Fifth Amendment grounds. Three of these questions, conceded by defendant to have been relevant and material to the investigation (Matter of Koota v. Colombo, 17 N.Y.2d 147, 269 N.Y.S.2d 393, 216 N.E.2d 568), form the basis for the counts of the indictment. ¹

Defendant has been permitted to file a written brief. A threshold contention is that the explanation of the immunity grant to him by the assistant district attorney was inadequate. This allegation is difficult to fathom under these facts, where defendant testified in the grand jury that he understood the concepts of immunity, perjury and contempt. (cf. People v. Mulligan, 29 N.Y.2d 20, 23, 323 N.Y.S.2d 681, 683, 272 N.E.2d 62, 63.) While it is true that a witness who is a potential criminal defendant must be advised that he has been granted immunity in displacement of the privilege against self-incrimination and should not be misadvised concerning the scope of the immunity (People v. Masiello, 28 N.Y.2d 287, 291, 321 N.Y.S.2d 577, 581, 270 N.E.2d 305, 308), the prosecutor herein informed Breindel in so many words that he had 'transactional immunity' and read the pertinent statute to him. Nothing more is necessary when the witness is represented and advised by a lawyer. (Id.)

Defendant next submits that the statutes under which immunity was offered to him violate constitutional standards for the three reasons that he articulated before the grand jury:

First, he professes that the use of the word 'conviction' instead of the word 'prosecution' in CPL § 50.10(1) ² leaves him open to the risk of subsequent prosecutorial harassment. Needless to say, such an unlikelihood, which he offers no factual basis to support, is equally (though remotely) possible under either wording of the statute. 'It is well established that the (Fifth Amendment) privilege protects against real dangers, not remote and speculative possibilities.' (Zicarelli v. Investigation Comm'n, 406 U.S. 472 at p. 478, 92 S.Ct. 1670 at p. 1675,32 L.Ed.2d 234.) Nor does the wording complained of otherwise fail to meet Fifth Amendment standards. 'The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted.' (Kastigar v. United States, 406 U.S. 441 at p. 453, 92 S.Ct. 1653 at p. 1661, 32 L.Ed.2d 212.)

Second, he states that the limitation of the scope of the immunity under CPL § 190.40 ³ to answers that are 'responsive' violates the Due Process Clause of the Fourteenth Amendment because it is too vague. Zicarelli v. Investigation Comm'n (supra) is a clear statement to the contrary under a similar New Jersey statute which, like its counterpart here, 'is not a penal statute which requires an uncounseled decision by a layman as to what course of action is lawful to pursue (and) is not a trap for the unwary; rather, it is a barrier to those who would intentionally tender information not sought in an effort to frustrate and prevent criminal prosecution'. (406 U.S. at p. 477, 92 S.Ct. at p. 1674.) Breindel expressed no doubts concerning the scope of the investigation; the questions asked were concededly material and he had access to counsel if he thought they were not. His rights in this regard were, therefore, fully protected. (People v. Ianiello, 21 N.Y.2d 418, 425, 288 N.Y.S.2d 462, 468, 235 N.E.2d 439, 443.)

Third, he argues that the existence of a 'use' immunity statute in the Federal jurisdiction justified his refusal to answer questions in this state proceeding under a grant of transactional immunity. This notion was recently re-examined and rejected in Kastigar v. United States (supra), just as it formerly did not survive Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. (See Matter of Gold v. Menna, 25 N.Y.2d 475, 481, 307 N.Y.S.2d 33, 37, 255 N.E.2d 235, 238.)

In the alternative, defendant maintains that even if the above grounds do not avail him on their merits, the fact that he raised them before the grand jury indicates that his stance before that body was not contumacious but rather one of 'forthright and honest' concern over the potential violation of his Fifth Amendment rights, an attitude which, he avers, negates the existence of the requisite intent. CPL § 190.40(1) provides, however, that 'Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or Belief on his part that it may tend to incriminate him' (emphasis added). To accept defendant's argument would be to eliminate the contempt sanction for any witness represented by an imaginative lawyer alert to issues pending in appellate courts. Witness the close similarity between the reasons listed in Breindel's grand jury statement and the points, just discussed, which were Sub judice in Kastigar and in Zicarelli at the time defendant appeared before the grand jury, a circumstance indicating that what defendant now terms a good faith concern over potential prosecutions was at the time a legal gamble in an attempt to thwart the grand jury. Having rolled the dice and lost, he may not now be heard to complain.

In establishing the existence of the requisite intent where the only evidence consists of the contemnor's grand jury testimony (cf. People v. Renaghan, 40 A.D.2d 150, 338 N.Y.S.2d 125), it is sufficient merely to find, as I do, that Breindel's refusal to answer questions was the product of a rational choice (People v. Zweig, 32 A.D.2d 569, 300 N.Y.S.2d 651; People v. Woodruff, 26 A.D.2d 236, 272 N.Y.S.2d 786, aff'd 21 N.Y.2d 848, 288 N.Y.S.2d 1004, 236 N.E.2d 159). The fact that this choice may have been predicated upon the advice of counsel is irrelevant. (People v. Colombo, 32 A.D.2d 812, 302 N.Y.S.2d 488, aff'd 25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340, vac. on other grounds 400 U.S. 16, 91 S.Ct. 99, 27 L.Ed.2d 16; cf. Matter of Grand Jury (Cioffi), 10 A.D.2d 425, 202 N.Y.S.2d 26, aff'd 8 N.Y.2d 220, 203 N.Y.S.2d 841, 168 N.E.2d 663.)

Defendant's next contention is that the failure of the assistant district attorney to answer his inquiry concerning electronic surveillance constitutes a defense to this contempt prosecution, citing Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179. In Gelbard, two Federal grand jury witnesses, one of whom was told by the prosecutor prior to being questioned that he had been the subject of electronic surveillance, and another who, without having...