People v. Colombo

• Court: New York Court of Appeals
• Writing for the Court: JASEN; FULD
• Citation: 29 N.Y.2d 1,323 N.Y.S.2d 161,271 N.E.2d 694
• Decision Date: 10 June 1971
• Parties: , 271 N.E.2d 694 The PEOPLE of the State of New York, Respondent, v. Joseph COLOMBO, Appellant.

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323 N.Y.S.2d 161 29 N.Y.2d 1, 271 N.E.2d 694 The PEOPLE of the State of New York, Respondent,
v.
Joseph COLOMBO, Appellant. Court of Appeals of New York. June 10, 1971.

Barry Ivan Slotnick, New York City, and Jacob Kossman, for appellant.

[29 N.Y.2d 2] Eugene Gold, Dist. Atty. (Ronald M. Kleinberg, of counsel), for respondent.

JASEN, Judge.

This case, before us upon remand from the Supreme Court of the United States (400 U.S. 16, 91 S.Ct. 99, 27 L.Ed.2d 16), raises the issue of whether Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 prohibits defendant's conviction for criminal contempt

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(former Penal Law, § 600, subd. 6) for failure to testify before a Kings County Grant Jury after he had previously been cited for judicial contempt (Judiciary Law, § 750, Consol.Laws, c. 30, subd. A, par. 3) for disobeying a court order to testify before that same Grand Jury.

Defendant was called to testify before a Kings County Grand Jury investigating the use of legitimate business enterprises as a cover for various criminal activities. He thereupon refused to testify and continued to maintain his silence after being granted full immunity. Defendant was then taken beofre a Supreme Court Justice and ordered to return before the Grand Jury and testify. After his subsequent refusal to obey the mandate of the court, defendant was adjudged in contempt of court, pursuant to section 750 (subd. A, par. 3) of the Judiciary Law. Our court ultimately affirmed that conviction and defendant served a 30-day jail sentence therefor. (Matter of Koota v. Colombo, 17 N.Y.2d 147, 269 N.Y.S.2d 393, 216 N.E.2d 568, cert. den. 384 U.S. 1001, 86 S.Ct. 1923, 16 L.Ed.2d 1015.)

Thereafter, on October 10, 1966, appellant was indicted for criminal contempt, in violation of section 600 (subd. 6) of the former Penal Law, for failure to testify before the Grand Jury. On his original appeal, appellant argued that this subsequent indictment for criminal contempt, after being previously convicted of judicial [271 N.E.2d 695] contempt, violated the constitutional prohibition against twice being placed in jeopardy for the same offense. We rejected that contention (25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340) upon the authority of People v. Costello, 21 N.Y.2d 967, 290 N.Y.S.2d 194, 237 N.E.2d 356 and section 602 of the former Penal Law, (Penal Law 1965, § 215.55) which stated: 'Punishment for a contempt, as prescribed in article nineteen of the judiciary law, does not bar an indictment for the same offense; but where a person who has been so punished is convicted on such an indictment, the court, in sentencing him, must take into consideration to previous punishment.'

However, the Supreme Court remanded this case to us to reconsider in light of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, decided subsequent to our earlier decision. We conclude that the Waller [29 N.Y.2d 3] case does not affect our holding and that we should adhere to our original decision.

In Waller, the petitioner was one of a number of persons who removed a canvas mural from the City Hall of St. Petersburg, Florida, and carried it through the streets. For this escapade, he was charged by the City of St. Petersburg with destruction of city property and disorderly breach of the peace. Her was found guilty on both counts in the municipal court and sentenced to 180 days' imprisonment. Thereafter, petitioner

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was charged by information by the State of Florida with grand larceny. It was conceded that this information was based upon the same acts as the violation of the two city ordinances. The Supreme Court held that this second prosecution constituted double jeopardy violative of the Fifth and Fourteenth...