People v. Di Maria

• Decision Date: 09 October 1984
• Citation: 126 Misc.2d 1,481 N.Y.S.2d 244
• Parties: The PEOPLE of the State of New York v. Leonard Di MARIA, Defendant.
• Court: New York Supreme Court

Page 244

481 N.Y.S.2d 244

126 Misc.2d 1

The PEOPLE of the State of New York v. Leonard Di MARIA, Defendant.

Supreme Court, Criminal Term New York County, Part 50.

Oct. 9, 1984.

Robert M. Morgenthau, Dist. Atty., New York County, New York City (Owen Heimer, New York City, of counsel), for the People.

Norman A. Olch, New York City, for defendant.

HAROLD J. ROTHWAX, Justice:

On December 9, 1983, the defendant was served, in person, with a subpoena commanding him to appear as a witness before the Seventh Special Rackets Grand Jury of New York County. The Grand Jury was investigating suspected organized crime loansharking and extortion. The defendant failed to appear and did not communicate with the Grand Jury on or before the return date for the subpoena. The Grand Jury indicted the defendant for contempt in the second degree (Penal Law § 215.50, subd. 3), a class A misdemeanor. The defendant voluntarily appeared before the court for arraignment on the initial indictment on January 25, 1984. During colloquy a question arose as to whether the defendant acknowledged service of a second subpoena the previous day. Therefore, the defendant was served, in open court, with a third subpoena again commanding him to appear before the Grand Jury, this time on January 27. The defendant was released under bond, after being warned that failure to appear before the Grand Jury on January 27 would result in the court reevaluating the nature and amount of his recognizance. The defendant did not appear or otherwise communicate with the Grand Jury on January 27. His bond was revoked and a bench warrant issued. On January 31 he again voluntarily appeared before the court. He was informed that the Grand Jury had again indicted him for misdemeanor contempt for his second failure to appear pursuant to subpoena. The defendant was once again served with a subpoena to testify before the Grand Jury, forthwith. His attorney stated that defendant would decline to respond to the subpoena on grounds of his privilege against self-incrimination. The court ordered the detective who served the subpoena to take custody of the defendant and to bodily escort him to the Grand Jury room. Upon being produced before the Grand Jury, the defendant refused to be sworn as a witness. He objected to the proceedings on numerous grounds. He returned before the court at the Assistant District Attorney's suggestion and reiterated these objections, which were overruled by the court. He was again ordered to proceed to the Grand Jury to be sworn as a witness and to answer all legal and proper questions. Upon returning to the Grand Jury the defendant persisted in his refusal to be sworn, despite the Assistant District Attorney's explanation of the transactional immunity which he would automatically receive by operation of law when sworn, and despite an admonition that he was subject to indictment for criminal contempt in the first degree, a class E felony (Penal Law § 215.51). The Grand Jury ultimately dismissed the defendant without his having been sworn. He was released from custody and restored to bail. He was subsequently indicted for the felony.

In the course of the proceedings the defendant made numerous objections which he now renews, with some additions, in support of his motion to dismiss these indictments.

Due Process

The defendant contends that he was denied due process of law by having been precluded from contesting the Grand Jury's interest in him to the extent it was based upon electronic surveillance (People v. Einhorn, 35 N.Y.2d 948, 365 N.Y.S.2d 171, 324 N.E.2d 551 ); and by having been compelled to appear before the Grand Jury by the court's custodial order.

In regard to the Einhorn issue, the defendant was not entitled, by virtue of receipt of a Grand Jury subpoena, to make a motion to suppress evidence before the Grand Jury even though obtained through illegal electronic surveillance. (People v. McGrath, 46 N.Y.2d 12, 26, 412 N.Y.S.2d 801, 385 N.E.2d 541 The Einhorn proceeding may be initiated only by a witness before the Grand Jury who "during the Grand Jury proceeding" (People v. Einhorn, supra, p. 949, 412 N.Y.S.2d 801, 385 N.E.2d 541) requests to be brought before the court for an inquiry to determine "whether or not the basis for the questioning of the witness was founded on wiretap evidence." (People v. Einhorn, supra, 35 N.Y.2d at p. 950, 365 N.Y.S.2d 171, 324 N.E.2d 551 The court's inquiry during pendency of the Grand Jury investigation is limited to determining whether "there is an absence of a court order permitting the eavesdropping or the Government concedes the illegality of the surveillance or * * * there has been a prior judicial adjudication of illegality" (People v. McGrath, supra, 46 N.Y.2d at p. 27, 412 N.Y.S.2d 801, 385 N.E.2d 541). If none of these factors exist, then the witness must return to the Grand Jury to answer responsively or suffer indictment for contempt. If either the witness carries his preliminary burden or, upon prosecution for contempt, can show that illegal surveillance was employed (People v. McGrath, supra at p. 23, n. 4, 412 N.Y.S.2d 801, 385 N.E.2d 541), then the court must consider whether the "questioning * * * before the Grand Jury * * * emanated from wiretaps constitutes evidence derived from the use or disclosure of the contents of the intercepted conversations" (People v. De Martino, 71 A.D.2d 477, 484, 422 N.Y.S.2d 949 ). If the government can affirmatively "demonstrate that the questions it used before the Grand Jury in interrogating the defendants are derived from a ... source wholly independent of the electronic surveillance or that the connection * * * is so 'attenuated' as to dissipate the taint" then the examination would be appropriate. (People v. De Martino, supra at p. 484, 422 N.Y.S.2d 949.) It is obvious that no such determination can be made without comparison of the content of the unlawfully obtained conversations and the subject matter of the questions propounded to the witness. A person who refuses to be sworn has not been called upon to respond to any questions and therefore has no standing to challenge the possible derivative use of unlawful surveillance. Any causal relationship between illegal wiretapping and the summons to testify is attenuated by the independently unlawful act of refusing to be sworn. (See People v. McGrath, supra.)

The custodial order pursuant to which defendant was compelled to appear before the Grand Jury was authorized by CPLR 2308, which permits a court to "issue a warrant directing a sheriff to bring witness into court" or "before the person or body requiring his appearance" (CPLR 2308, subds. a, b). Since it is a limited process which does no more than compel a witness to appear to respond to a subpoena which he has previously ignored, it does not offend due process in the manner of a forthwith subpoena duces tecum used as a search warrant (cf. Interfaith Hospital v. People, 71 Misc.2d 910, 912-913, 337 N.Y.S.2d 358 ) or of a warrant of attachment by which proceedings for civil contempt were formerly initiated. (Compare Judiciary Law, § 756 with former Judiciary Law, § 757 see Long Island Trust Co. v. Rosenberg, 82 A.D.2d 591, 594-595, 442 N.Y.S.2d 563 Nor is the warrant to appear, a warrant of commitment. Any further proceedings to compel compliance with the subpoena by fine or imprisonment or to summarily punish noncompliance, depend upon the subpoenaed person's conduct subsequent to his appearance, and must comply with the statutory provisions of notice and a hearing. (CPLR 2308; Judiciary Law, §§ 755, 756.) The civil warrant to appear is not unlike a bench warrant issued by a court in context of a criminal proceeding "to achieve the court appearance of a defendant ... for some purpose other than his initial arraignment", by directing a police officer to take the defendant into custody. (CPL 1.20, subd. 30; 530.70.)

In the instant case, the defendant's nonappearance before the Grand Jury on January 27, violated an express condition of his recognizance upon an indictment based upon identical conduct. It amounted, moreover, to a disregard of judicial process indicative of a predisposition to disobey the further mandate to return to court to answer the pending charge. It was a change of circumstances justifying a review of the preexisting bail conditions. (See, e.g., People v. Gruttola, 72 Misc.2d 295, 339 N.Y.S.2d 178 Therefore, a bench warrant properly issued, pursuant to a proceeding to review the defendant's bail. (CPL 530.60, subd. 1.)

When the defendant voluntarily appeared before the court in response to the bench warrant, was again served with a Grand Jury subpoena commanding his presence forthwith, and indicated through counsel that he would not respond to the subpoena, he was subject to a custodial order "to bring the witness before the ... body requiring his appearance" (CPLR 2308 see State of New York ex rel. Headley v. Connor, 87 A.D.2d 511, 512, 447 N.Y.S.2d 485 cf. Drake v. City of Rochester, 96 Misc.2d 86, 98-99, 408 N.Y.S.2d 847 ). The Civil Practice Law and Rules, and specifically section 2308 is applicable, in the pre-accusatory stages of a criminal proceeding, to litigation involving Grand Jury subpoenas. (See Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 317, 383 N.Y.S.2d 590, 347 N.E.2d 915 Matter of Hynes v. Sigety, 60 A.D.2d 808, 401 N.Y.S.2d 749 app. dsmd. 43 N.Y.2d 947, 403 N.Y.S.2d 896, 374 N.E.2d 1247; Matter of Hynes v. Sloma, 59 A.D.2d 1014, 1015, 399 N.Y.S.2d 745 Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 1.10, p. 10; cf. Matter of Davis 88 Misc.2d 938, 939, 389 N.Y.S.2d 1015 [Crim.Ct. of the City of N.Y., 1976].)

Nor is there any merit to defendant's arguments that the proceedings subjected him to multiple jeopardy based upon the same conduct or that the procedures were orchestrated by the...