People v. Colombo

Citation302 N.Y.S.2d 488,32 A.D.2d 812
PartiesThe PEOPLE, etc., Appellant, v. Joseph COLOMBO, Respondent. The PEOPLE, etc., Appellant, v. Lawrence GALLO, Respondent. The PEOPLE, etc., Appellant, v. Albert GALLO, Respondent.
Decision Date16 June 1969
CourtNew York Supreme Court Appellate Division

Eugene Gold, Dist. Atty. Kings County, for appellant; Irving P. Seidman, Jay Gregory Horlick, Asst. Dist. Attys., of counsel.

Barry Ivan Slotnick, New York City, for respondent Joseph Colombo.

Price & Iovine, Brooklyn, for respondent Albert Gallo; David F. Price, Joseph A. Iovine, Brooklyn, of counsel.

Before CHRIST, Acting P.J., and BENJAMIN, MUNDER, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT

Appeals from three orders of the Supreme Court, Kings County, each of which respectively granted a separate motion by each defendant to dismiss an indictment against him for criminal contempt of court, the order as to defendant Colombo being dated August 22, 1967 and the orders as to the other defendants being dated July 28, 1967.

Appeal from the order which granted the motion of defendant Lawrence Gallo, now deceased, dismissed (People v. Mintz, 20 N.Y.2d 753, 283 N.Y.S.2d 120, 229 N.E.2d 712).

Orders which granted the motions of defendants Joseph Colombo and Albert Gallo reversed, on the law and the facts, and motions denied.

In our opinion, the evidence before the Grand Jury would, if unexplained or uncontradicted, warrant a conviction for violation of subdivision 6 of section 600 of the Penal Law of 1909 (Code Crim. Pro., § 251). That the refusal to testify was made on advice of counsel and in a pleasant manner is of little relevance (cf. People v. Woodruff, 26 A.D.2d 236, 238--239, 272 N.Y.S.2d 786, 788--790; People v. Zweig, 32 A.D.2d 569, 300 N.Y.S.2d 651 (Dec. Apr. 28, 1969); Matter of Koota v. Colombo, 17 N.Y.2d 147, 151, 269 N.Y.S.2d 393, 395, 216 N.E.2d 568, 569).

We also think that the stipulation of the District Attorney, made on October 20, 1965 with reference to dropping proceedings against defendants willing to testify before the Grand Jury, was necessarily limited in time to December 15, 1965 by the District Attorney at the hearing on December 7, 1965. It is obvious from the conduct of the court and the parties on May 9, 1966 that neither the court nor they considered the October 20 stipulation to be still in effect.

There is no merit in the claim by respondents Colombo and Albert Gallo that these indictments place them twice in jeopardy...

To continue reading

Request your trial
9 cases
  • People v. Dercole
    • United States
    • New York Supreme Court — Appellate Division
    • 4 Febrero 1980
    ...refusing to testify constitutes no defense to a charge of criminal contempt nor is it relevant on the issue of intent (People v. Colombo, 32 A.D.2d 812, 302 N.Y.S.2d 488, affd. 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; Pe......
  • People v. Failla
    • United States
    • New York County Court
    • 19 Julio 1973
    ...Supreme Court, Kings County, on August 22, 1967. (Vincent D. Damiani, J.) The Appellate Division, Second Department, in People v. Colombo, 32 A.D.2d 812, 302 N.Y.S.2d 488, reversed the holding of Mr. Justice Damiani and summarily disposed of the defendant's double jeopardy claim, citing thr......
  • People v. Breindel
    • United States
    • New York Supreme Court
    • 16 Marzo 1973
    ...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. ......
  • People v. Menna
    • United States
    • New York Court of Appeals Court of Appeals
    • 11 Junio 1975
    ...facts to the one here, the indictment was dismissed on the ground of double jeopardy, but reinstated by the Appellate Division (32 A.D.2d 812, 302 N.Y.S.2d 488), whose decision, in turn, was upheld by our court (25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340). Upon certiorari to the United......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT