People v. Didio
| Decision Date | 20 January 1978 |
| Citation | 401 N.Y.S.2d 640,60 A.D.2d 978 |
| Parties | PEOPLE of the State of New York, Appellant, v. Tom DIDIO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lawrence T. Kurlander, Dist. Atty., Melvin Bressler, Rochester, for appellant.
James V. Philippone, Rochester, for respondent.
Before MARSH, P. J., and MOULE, DILLON, HANCOCK and WITMER, JJ.
The People appeal from an order dismissing an indictment which charged the defendant with criminal contempt in the first degree (Penal Law, § 215.51).
The defendant was subpoenaed to appear as a witness before a grand jury which was investigating illegal gambling activities. He was represented by counsel who was present outside the grand jury room during his testimony. The record shows that he was advised that he could consult with his attorney at any time during the interrogation; that he had been granted full immunity from prosecution; that he could be prosecuted for perjury for giving false answers and that he could be prosecuted for contempt for refusing to answer proper questions.
The trial court found that the defendant was properly advised that the grand jury had conferred immunity upon him; that the questions asked of him were proper, lawful and pertinent to the inquiry; and that "the defendant's answers could be found to be equivocal and evasive and, therefore, in effect a refusal to answer." Expressly under constraint of the Second Department's decision in People v. Cutrone, 50 A.D.2d 838, 376 N.Y.S.2d 593, appeal dismissed sua sponte because of defendant's death, 40 N.Y.2d 988, 390 N.Y.S.2d 928, 359 N.E.2d 436, however, the court dismissed the indictment upon its determination that the defendant was not warned during his testimony "that his continued recalcitrance in answering proper questions would expose him to charges of criminal contempt."
While we concur in all of the trial court's findings, we reject the rule in Cutrone requiring that such a warning be given to a grand jury witness as a precondition to his indictment under section 215.51 of the Penal Law. In our view, none of the cases cited in Cutrone is authority for the conclusion there reached. Nor is there any other judicial precedent or statutory mandate establishing such warning as a condition precedent to the indictment returned here.
In People v. Miranda, 31 A.D.2d 657, 296 N.Y.S.2d 804, the Second Department, relying upon People v. Riela, 7 N.Y.2d 571, 200 N.Y.S.2d 43, 166 N.E.2d 840, held that a criminal contempt indictment under subdivision 6 of section 600 of the former Penal Law could not be dismissed on the ground that an immunized defendant had not been directed by a court to answer questions before a grand jury (see also, People v. Alongi, 31 A.D.2d 656, 296 N.Y.S.2d 734; People v. Carillo, 31 A.D.2d 657, 296 N.Y.S.2d 450; People v. Eboli, 31 A.D.2d 657, 296 N.Y.S.2d 530). In People v. Breindel, 73 Misc.2d 734, 342 N.Y.S.2d 428, affd. 45 A.D.2d 691, 356 N.Y.S.2d 626, affd. 35 N.Y.2d 928, 365 N.Y.S.2d 163, 324 N.E.2d 545, the trial court pointedly rejected the defendant's claim that he should not be convicted of criminal contempt because he was not formally directed to answer by the foreman of the grand jury.
True, both Miranda and Breindel dealt with witnesses who flatly refused to answer questions put to them in the grand jury, while here we are concerned with equivocal and evasive answers. The long-established rule, however, is that contempt is committed when a defendant's response is "so false and evasive as to be equivalent to no answer at all" (People ex rel. Valenti v. McCloskey, 6 N.Y.2d 390, 398, 189 N.Y.S.2d 898, 903, 160 N.E.2d 647, 651). Thus, to differentiate the facts here from those which gave rise to the rule of Miranda and Breindel concerns a distinction without legal significance.
Although this precise issue was not before the Court of Appeals in People v. Ianniello, 21 N.Y.2d 418, 288 N.Y.S.2d 462, 235 N.E.2d 439, there the court sustained a criminal contempt indictment (former Penal Law, § 600, subd. 6) premised solely upon evasive answers and it does not appear that the kind of pre-indictment warning required by Cutrone was given to the defendant. We conclude that the contempt is total when a sworn grand jury witness "contumaciously and unlawfully . . . refuses to answer any legal and proper interrogatory" (Penal Law, § 215.51). Here a jury could properly find that the defendant's answers were so equivocal and evasive as to constitute a contumacious refusal to answer (see, People v. Ianniello, supra, at 427, 288 N.Y.S.2d at 470, 235 N.E.2d at 444).
We have considered the other issues raised by the defendant and find them to be without merit.
All concur except Marsh, P. J., and Hancock, J., who dissent and vote to affirm the order in the following Memorandum: Defendant's answers do not demonstrate the willful and deliberate conduct "contrary to the plain directive of the court" which "clearly bespeak(s) of an intent to defy the dignity and authority of the court" (Matter of Sheridan v. Kennedy, 12 A.D.2d 332, 333, 212 N.Y.S.2d 296, 298) necessary to support a felony indictment for criminal contempt in the first degree (Penal Law, § 215.51; 9 N.Y. Jur., Contempt, § 2; Matter of Spector v. Allen, 281 N.Y. 251, 259, 22 N.E.2d 360, 364; People v. Cutrone, 50 A.D.2d 838, 376 N.Y.S.2d 593; People v. Renaghan, 40 A.D.2d 150, 338 N.Y.S.2d 125, affd. 33 N.Y.2d 991, 353 N.Y.S.2d 962, 309 N.E.2d 425; Matter of Second Additional Grand Jury of County Court, Kings County v. Cirillo, 16 A.D.2d 605, 230 N.Y.S.2d 303, affd. 12 N.Y.2d 206, 237 N.Y.S.2d 709, 188 N.E.2d 138; People v. Marinaccio, 90 Misc.2d 128, 393 N.Y.S.2d 904). Criminal contempt is a drastic remedy for willful disobedience of a lawful mandate of the court and the "mandate must be clear before disobedience can subject a person to such punishment" (Matter of Spector v. Allen, supra, 281 N.Y. at 259, 22 N.E.2d at 364). (Matter of Sheridan v. Kennedy, supra, 12 A.D.2d at 334, 212 N.Y.S.2d at 298, see Ketchum v. Edwards, 153 N.Y. 534, 47 N.E. 918.)
Defendant, when examined concerning the details of his alleged receipt of money from Donald Paone repeatedly professed his inability to recall. It is evident from the transcript that he was not a candid and cooperative witness. Some of his answers were equivocal and one may suspect that some of his "I don't recalls" were false. However, he made replies to all of the questions. There is no statement in the record by any member of the grand jury or by the assistant district attorney and nothing in the...
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People v. Rappaport
...People v. Cutrone, 50 A.D.2d 838, 376 N.Y.S.2d 593, app. dsmd. 40 N.Y.2d 988, 390 N.Y.S.2d 928, 359 N.E.2d 436, with People v. Didio, 60 A.D.2d 978, 401 N.Y.S.2d 640; People v. Rappaport, 60 A.D.2d 565, 400 N.Y.S.2d The defendant is an auctioneer who had been assigned to sell certain proper......