People v. Failla

• Decision Date: 19 July 1973
• Parties: PEOPLE of the State of New York, Plaintiff v. James FAILLA, Defendant.
• Court: New York County Court

Page 502

347 N.Y.S.2d 502

74 Misc.2d 979

PEOPLE of the State of New York, Plaintiff v. James FAILLA, Defendant.

Nassau County Court, Special Term, Nassau County.

July 19, 1973.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

Gulotta, Tully & Clavin, Mineola, for defendant.

RAYMOND L. WILKES, Judge.

Are two contempts worth the price of one? Now there's a question with which to conjure. Stir that gently--add a touch of double jeopardy--and ergo, the following:

The defendant's motion to dismiss this indictment presents the opportunity as well as the responsibility to assay the application of the recent decisions of the Supreme Court of the United States and the New York Court of Appeals in People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247, and one of their most recent progeny, Matter of Capio, 41 A.D.2d 235, 342 N.Y.S.2d 100, Appellate Division, Second Department, all of which bear upon the foregoing question.

The defendant requests relief upon the following grounds:

1. that this prosecution would place the defendant twice in jeopardy for the same acts; (CPL § 210.20(1e))

2. that this prosecution has been unduly delayed to the detriment and prejudice of the defendant; (CPL § 210.20(1g))

3. that the indictment is defective. (CPL § 210.20(1a))

On April 17, 1970, in compliance with a subpoena, the defendant James Failla appeared before the October, 1969 Holdover Nassau County Grand Jury. After being duly sworn, he refused to answer questions put to him by that body, and even after immunity was conferred upon him by the Grand Jury, persisted in his refusal to answer lawful and proper interrogatories.

Thereafter, on May 15, 1970, the defendant appeared before the Hon. Paul Kelly, then County Judge (now Justice of the Supreme Court) of Nassau County. Judge Kelly directed him to return to the Grand Jury and answer questions put to him, but the defendant indicated that he would not obey this directive of the Court.

Consequently, in an order dated May 19, 1970, Judge Kelly adjudged that the defendant had committed a criminal contempt under Judiciary Law § 750 in the immediate view and presence of the Court for his 'contumacious and unlawful refusal, after being sworn, as a witness, to answer any legal and proper interrogatories, and for his wilful disobedience to the lawful mandate of this Court.' The defendant was then sentenced to thirty days in the Nassau County Jail.

Subsequently, on May 22, 1970, the defendant was indicated on two counts of criminal contempt under Penal Law § 215.50. The first count, based upon Penal Law § 215.50(4) alleged that the defendant 'did contumaciously and unlawfully refuse to answer legal and proper questions and interrogatories directed and asked of him' when he appeared before the Grand Jury on April 17, 1970. The second count, based upon Penal Law § 215.50(1) alleged that the defendant 'did contumaciously and insolently conduct himself so as to: interrupt the proceedings of; and impair the respect due the authority of the said Judge Paul Kelly and the County Court of Nassau County sitting in official session, and in its immediate view, by refusing to answer legal and proper interrogatories and questions before the aforesaid Grand Jury . . .'

In sum then, it must be borne in mind that the defendant was first held in contempt by Judge Kelly pursuant to Judiciary Law § 750 and later indicted under Penal Law § 215.50 for his conduct in (1) refusing to answer Grand Jury questions after having had immunity conferred upon him; and (2) for refusing to obey Judge Kelly's lawful mandate.

The defendant was arraigned on June 30, 1970 pursuant to the aforementioned indictment and entered a Plea of Not Guilty. Thereafter, he requested and received several adjournments from the time of his arraignment until March 21, 1972 to await a decision in the Matter of People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247 (1972), a case believed to have a significant bearing upon relevant areas of the law. Subsequent to March 21, 1973 several additional adjournments and transfers were effected for a variety of reasons, and eventually, on May 10, 1973 this case appeared upon the calendar of the undersigned. On May 21, 1973 the defendant applied for and was granted the right to renew a prior motion to dismiss the indictment, and on May 29, 1973 he made the instant application, to which the People filed an Affidavit in Opposition on June 14, 1973. In essence, the defendant contends that identical actions, to wit, his initial refusal to answer Grand Jury interrogatories on April 19, 1970 and his subsequent refusal to answer such interrogatories on May 15, 1970 in disobedience of Judge Kelly's directive, served as the basis for both his thirty day sentence under Judiciary Law § 750 as well as his subsequent indictment under Penal Law § 215.50. He relies upon two recent New York cases: People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247 (1972) and Matter of Capio v. Justices of Supreme Court, Kings County, 41 A.D.2d 235, 342 N.Y.S.2d 100 (1973), and because of the similarity of the facts in each of those cases to the matter at bar, it is worth examining each such cited case in detail.

The Colombo case involved a claim of double jeopardy by a defendant challenging an indictment brought under the former Penal Law for the same conduct for which he had previously been punished under the Judiciary Law. As in the instant case, Colombo refused to answer Grand Jury interrogatories after he had been afforded immunity from prosecution. Thereafter, he too was brought before a judge (December 8, 1965) who directed him to answer, and he likewise refused to obey the order of the Court. On December 15, 1965 the Supreme Court, Kings County, stated that 'by his contumacious and unlawful refusal after being sworn as a witness to answer any legal and proper interrogatories and for his wilful disobedience to the lawful mandate of this Court, defendant had committed a criminal contempt of Court in the immediate view and presence of the Court.' These are virtually the identical words used by Judge Kelly in holding the defendant Failla in contempt. In each case, the contempt citation recited two grounds--refusal to answer Grand Jury questions and refusal to obey the Court's lawful order. In Colombo, after appellate proceedings proved fruitless, the defendant offered to testify, but his offer was refused, and he served his thirty day sentence and paid his $250.00 fine.

In yet another parallel to the instant case, Colombo was then indicted on October 10, 1966 under former Penal Law § 600(6) 'for his contumacious and unlawful refusal, after being duly sworn as a witness, to answer legal and proper interrogatories,' and a motion to dismiss his indictment on the ground of double jeopardy was granted by the 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 three cases: Matter of Marangelo v. Criminal Court of City of New York, 49 Misc.2d 414, 267 N.Y.S.2d 791; People v. Costello, 21 N.Y.2d 967, 290 N.Y.S.2d 194, 237 N.E.2d 356; and People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264, 159 N.Y.S.2d 203, 206, 140 N.E.2d 282, 284.

The facts in Costello and Marangelo, supra, were identical and both cases wended their way through the courts in tandem (officially reported in 49 Misc.2d 414, 267 N.Y.S.2d 791 and 21 N.Y.2d 967, 290 N.Y.S.2d 194, 237 N.E.2d 356). The defendants Costello and Marangelo had refused to answer Grand Jury questions after having been afforded immunity from prosecution. They, too, had declined to obey the order of the Court to return and answer the questions which had been put to them, and they were each held in contempt for refusal to obey the directive of the Court.

Subsequently, the Grand Jury directed that the New York County District Attorney file informations charging both Costello and Marangelo with criminal contempt in violation of former Penal Law § 600(6) which provides:

'a person who commits a contempt of court, of any one of the following kinds, is guilty of a misdemeanor:

6. Contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal and proper interrogatories;'

and defendants challenged the legality of the informations upon the grand of double jeopardy.

Hon. Louis J. Capozzoli, Justice of the Supreme Court, New York County, in dismissing the Article 78 Proceeding initiated by Louis Costello and Louis Marangelo held that their double jeopardy contentions were without merit and drew a distinction between the purposes of punishment under the Judiciary Law and the Penal Law. In his view, § 750 of the Judiciary Law 'embodies the inherent power of the court to punish summarily for an offense against the dignity of the court', (supra, 49 Misc.2d p. 41l, 267 N.Y.S.2d p. 793) whereas subdivision 6 of § 600 of the former Penal Law deals with 'an offense against the Penal of the State of New York'. (supra, p. 416, 267 N.Y.S.2d p. 793) Mr. Justice Capozzoli saw a clear distinction between punishment for refusal to obey the Court's mandate under Judiciary Law § 750 and punishment for refusal to answer questions before a Grand Jury under former Penal Law § 600(6). In addition, he noted that Penal Law § 602 stated that punishment for contempt under Judiciary Law § 750 does not bar an indictment under the Penal Law for the same offense.

The convictions of Costello and Marangelo were affirmed by the Appellate Term of the Supreme Court, First Department, and ultimately by the Court of Appeals in 21 N.Y.2d 967, 290 N.Y.S.2d 194, 237 N.E.2d 356--in each instance without opinion. It would therefore appear that the rationale which Mr. Justice Capozzoli enunciated was...