People v. Dercole

Decision Date04 February 1980
Citation72 A.D.2d 318,424 N.Y.S.2d 459
PartiesThe PEOPLE, etc., Respondent, v. Dominick DERCOLE, William Lungarelli, and Julius Cianciola, Appellants.
CourtNew York Supreme Court — Appellate Division

Weinberger, Weinberg, Kert & Weinberger, Roslyn Heights (Gary L. Schoer, Kew Gardens, of counsel), for appellants.

Roderick C. Lankler, Deputy Atty. Gen., New York City (Vincent J. Torna and Mark M. Baker, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, COHALAN and MARTUSCELLO, JJ.

LAZER, Justice.

These appeals are from judgments which, after a nonjury trial, convicted the defendants of the crime of criminal contempt in the first degree (Penal Law, § 215.51) and sentenced each of them to five years probation. The defendants contend that (1) the trial court erred in refusing to dismiss the indictments as a matter of law when it determined defendants were denied effective assistance of counsel; (2) the defendants' guilt was not proven beyond a reasonable doubt; (3) the verdicts were repugnant; (4) the trial court erroneously shifted the burden of proof to the defendants; and (5) the failure to dismiss the second count of each indictment was error because that count was based upon an improper and illegal interrogatory. We conclude that the verdicts rendered were repugnant and that reversal of the convicting judgments and dismissal of the indictments is mandated.

On December 18, 1974 the defendants first appeared before an Extraordinary and Special Grand Jury, Queens County, impaneled to investigate illegal gambling activities and bribery of officials of the New York City Police Department. After being given full immunity, the defendants were sworn as witnesses but refused to answer any questions until they could consult with counsel. They were granted an adjournment to do so.

On January 8, 1975, January 15, 1975 and January 22, 1975, the defendants again appeared before the Grand Jury and each time were granted full immunity, given a detailed explanation of the meaning of such a grant, and advised that in light of the grant of full immunity, refusals to answer any questions posed by the prosecutor could lead to a criminal contempt indictment. On each occasion, the defendants invoked their Fifth Amendment rights and refused to answer each and every one of the numerous questions put.

In October, 1975 indictments were filed by the Office of the Special State Prosecutor charging Dercole and Cianciola with eight and Lungarelli with nine counts of criminal contempt in the first degree. The gravamen of the indictments is that after having been sworn as witnesses the defendants contumaciously and unlawfully refused to answer proper and legal questions put to them. The first count of each indictment charges that the defendant charged refused to answer concerning his knowledge of pending bribery indictments, while the second count alleges that the accused refused to answer questions concerning his acquaintance with individuals against whom bribery indictments were pending.

As to the remaining counts of the indictment against the defendant Dominick Dercole, the third and fifth relate to his refusal to answer questions concerning attempts to influence or fix pending criminal cases; the fourth relates to his refusal to answer questions concerning loansharking activities; the sixth relates to his refusal to answer a question concerning illegal activities of members of the judiciary; and counts seven and eight relate to his refusal to answer questions concerning payments made to police officers.

In the indictment against the defendant William Lungarelli, the third and fourth counts relate to his refusal to answer questions concerning the payment of bribes to police officers, district attorneys or members of the judiciary; the sixth relates to his refusal to answer a question concerning loansharking activities; the fifth, eighth and ninth relate to his refusal to answer questions pertaining to attempts to fix pending criminal cases; and count seven relates to his refusal to answer a question concerning the involvement of members of the judiciary in criminal activities.

The third count of the indictment against defendant Julius Cianciola relates to his refusal to answer questions concerning bribes paid to police officers; the fourth, seventh and eighth relate to his refusal to answer questions concerning payments made to lawyers and judges for the purpose of influencing pending criminal cases; and counts five and six relate to his refusal to answer questions concerning loansharking activities.

In October of 1976, Cianciola pleaded guilty to the fourth count of his indictment.

The Motion for Dismissal

On November 22, 1976, Dercole and Lungarelli moved to dismiss the indictments against them on the ground that the attorney they retained to represent them before the Grand Jury and who advised them to invoke their Fifth Amendment privilege was himself a target of the Grand Jury investigation. They contended that they had been denied effective assistance of counsel and were misled and tricked into invoking their Fifth Amendment rights. Because the issues raised on the motion affected Cianciola's constitutional rights, he was invited to participate in the dismissal hearing without prejudice to his rights to withdraw his plea, if any. He accepted the offer and joined in the motion to dismiss.

At the hearing on the motion, the defendants called as a witness Martin Stewart, the attorney who they claimed had given them the advice concerning their Grand Jury appearances. According to Stewart's testimony, he knew Cianciola through two long-time friends, Frank Altimari and Nick Bonina, two of the indicted individuals about whom the defendants were questioned before the Grand Jury, but he never told the defendants of his relationship with Altimari and Bonina. In August of 1974 he was contacted by two agents from the Federal Bureau of Investigation who showed him a group of 10 to 12 photographs which included pictures of Altimari, Bonina, Cianciola, Dercole and Lungarelli and who asked if he knew any of the persons in the pictures. One of the agents also suggested that Stewart himself was involved in the "shylocking" business. Stewart denied any such involvement to the F.B.I. agents, but at no time prior to or during his representation of defendants did he advise them of the visit from the agents.

According to Stewart, upon his arrival at the Grand Jury in January, 1975 he had a conversation with Carl Soller, the special prosecutor in charge of the investigation. Soller informed him that the Grand Jury was investigating corruption, gambling and shylocking; that there were lawyers involved; and that Altimari, Bonina and a lawyer were targets of the investigation. Stewart stated to the court that he informed the defendants that the thrust of the investigation was corruption of public officials, gambling and shylocking but he did not recall discussing anything about the involvement of lawyers in these activities.

Stewart also said that he advised the defendants that they should invoke their Fifth Amendment privilege rather than testify before the Grand Jury even though they might possibly be subjecting themselves to contempt charges by their refusal to answer questions. He gave this advice because he believed that although the defendants had been granted immunity they might still be subject to Federal prosecution and, therefore, they would have a defense to any contempt charges brought against them. Stewart then testified that at the time of his representation of the defendants he felt that it was in their interests to invoke their privilege against self-incrimination, but since then he had time to reflect on the situation and came to a realization that his advice to the defendants was motivated by a subconscious feeling that he was a target of the Grand Jury. While he indicated that some indecision existed in his own mind as to whether he was, in fact, a target, he concluded that under the circumstances it was in his own best interest to have the defendants refuse to testify and that he believed a conflict of interest existed subconsciously. Finally, Stewart revealed that in February, 1975 Cianciola had been called before a special Federal Grand Jury and that he represented him there. At that time, Cianciola was granted immunity, but refused to testify. It is unclear from the record whether the refusal was based on Stewart's advice.

After considering the evidence presented at the hearing, the trial court denied the motion to dismiss the indictments. While finding that the defendants were denied effective legal representation, the court held that under the circumstances the denial of such representation was not so severely prejudicial as to warrant dismissal of the indictments. The court also found that there was no showing in the record that the defendants had relied on advice of counsel.

The Trial

The trial of the indictments against Dercole and Lungarelli subsequently commenced with the introduction of their Grand Jury testimony and a number of stipulations between the People and counsel for the defendants. Under these stipulations, it was agreed, Inter alia, that the transcripts of the defendants' Grand Jury testimony were properly prepared and accurately reflected what was said in the Grand Jury by the defendants; that the Grand Jury was conducting an investigation to determine whether officials of the New York City Police Department were repeatedly bribed by the defendants and others involved in organized crime activities for the purpose of obstructing pending investigations; that on December 18, 1974, January 8, 1975, January 15, 1975 and January 22, 1975, respectively, the defendants, Lungarelli and Dercole, appeared before the Grand Jury as witnesses, were granted immunity, and were questioned concerning the matter under investigation; and that the questions which were...

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