People v. Feinberg
| Decision Date | 10 December 1959 |
| Citation | 19 Misc.2d 433,193 N.Y.S.2d 937 |
| Parties | PEOPLE of State of New York v. Melvin FEINBERG, Defendant. |
| Court | New York Court of General Sessions |
Frank S. Hogan, Dist. Atty., New York County, Francis X. Clark, Asst. Dist. Atty., New York City, for the People.
William W. Kleinman, Brooklyn, Eugene Gold, Brooklyn, of counsel, for defendant.
Defendant stands accused in a 21-count indictment of the crimes of perjury and contempt. Although he testified under a grant of immunity, he now moves to dismiss the indictment on the ground that the Fourth Grand Jury for the November 1957 Term Continued violated his rights under Article 1, § 6 of the New York State Constitution and the Fourteenth Amendment of the United States Constitution when it subpoenaed him and administered the oath to him, since he was a potential defendant or a target of its investigation.
Defendant, in response to a subpoena, testified before the Grand Jury on twelve separate occasions beginning on November 13, 1958. On that date he was sworn, and, before and questions were put to him, he was advised by the Assistant District Attorney that the Grand Jury was then investigating 'whether there has existed in the past a conspiracy of a criminal nature between officials of the Building Department and others to commit the crimes of bribery and taking of unlawful fees.'
The Assistant District Attorney thereupon warned him that he could be a defendant in criminal proceedings resulting from the investigation, carefully advised and instructed him on his right to exercise his constitutional privilege against self-incrimination, and stated that if the defendant did exercise that privilege, he would be given immunity from prosecution for any crime that may be disclosed by his testimony, except perjury and contempt.
Following these preliminary remarks by the Assistant District Attorney, the defendant answered a number of questions, some of them dealing with his relations with certain employees of the Department of Buildings. The defendant then invoked his privilege, was granted immunity (except for perjury and contempt) by the Grand Jury, at the request of the Assistant District Attorney and in conformity with the statute (Penal Law, §§ 584, 2447), and continued testifying. The crimes of perjury and contempt with which defendant is charged in this indictment arise from testimony given by him before the Grand Jury and are alleged to have been committed on dates subsequent to the grant of immunity on November 13, 1958.
According to defendant's testimony before the Grand Jury, he was then the sole officer and manager of Property Owners Service Corporation, Inc., which was an organization of landlords whose purpose, inter alia, was to assist its members with problems with official agencies such as the Department of Buildings. As such, he was implicated in the transactions being investigated by the Grand Jury and, but for the grant of immunity, could have been characterized as a potential defendant.
Despite the fact that he was granted full immunity by the Grand Jury, defendant now vigorously contends that the indictment must be dismissed because, since he was a potential defendant or a target of the investigation, the Grand Jury was powerless to compel his attendance before it and to administer the oath to him. He relies for this proposition principally on People v. Gillette, 126 App.Div. 665, 111 N.Y.S. 133; People v. De Feo, 308 N.Y. 595, 127 N.E.2d 592, and People v. Steuding, 6 N.Y.2d 214, 189 N.Y.S.2d 166. The court, after careful consideration of these and other applicable decisions, finds that they do not support defendant's contention.
The New York State Constitution provides that no person shall 'be compelled in any criminal case to be a witness against himself, * * *.' (Art. 1, § 6) A Grand Jury investigation is a criminal proceeding within the purview of this provision. People ex rel. Taylor v. Forbes, 143 N.Y. 219, 38 N.E. 303. Consequently, in the absence of an immunity statute, it is a violation of the constitutional provision to subpoena a potential defendant or a target of the Grand Jury's investigation (as distinguished from an ordinary witness) and to administer the oath to him. The legal consequence flowing from such violation is dismissal of the indictment found by that Grand Jury for any substantive crime disclosed by that person's testimony as well as for perjury and criminal contempt. As the court said in People v. Gillette, 126 App.Div. 665, at page 668, 111 N.Y.S. 133, at page 135, supra:
However, he does not gain immunity from prosecution for the substantive crimes, because these could be resubmitted to another Grand Jury before which he is not subpoenaed and examined. People v. Freistadt, 6 A.D.2d 1053, 179 N.Y.S.2d 633; People ex rel. Coyle v. Truesdell, 259 App.Div. 282, 18 N.Y.S.2d 947; People v. Bermel, 71 Misc. 356, 128 N.Y.S. 524; but cf. People v. Steuding, supra, 6 N.Y.2d 214, 189 N.Y.S.2d 166, where this question was expressly left open.
Two years after the Gillette decision (supra), the Legislature adopted an immunity statute covering the crime of conspiracy (L.1910, c. 395; Penal Law, § 584). That statute (Section 584) gave broad immunity from prosecution 'for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence * * *'. (See, also, Penal Law, §§ 381, 996.) Statutory immunity, as already indicated, gave a witness broader freedom from prosecution than did the constitutional protection enunciated in the Gillette case (supra), for the incriminating matters disclosed by the immunized witness could not be resubmitted to another Grand Jury or otherwise received against him upon any criminal prosecution.
Section 584 gave a witness what has been characterized as 'automatic immunity' if he gave self-incriminating testimony. People v. De Feo, supra, 308 N.Y. 595, at page 602, 127 N.E.2d 592, at page 595. In receiving automatic immunity, the witness was not required to plead his privilege nor was the Grand Jury required, verbally or otherwise, to 'confer' immunity in order for the witness to obtain it. He received it for any self-incriminating testimony by the mere giving of such testimony. Where an immunity statute was in effect, a potential defendant or a target of investigation could not refuse to testify because of privilege and accordingly there was 'no longer a distinction between the status of a witness about to be accused and one called as an incident to a general investigation.' People ex rel. Coyle v. Truesdell, supra, 259 App.Div. at page 284, 18 N.Y.S.2d at page 950; People v. Reiss, 255 App.Div. 509, 8 N.Y.S.2d 209, affirmed 280 N.Y. 539, 20 N.E.2d 8. Of course, where an immunity statute was not in effect, a target still had the protection of the aforementioned rule in the Gillette case (supra).
In 1953 the Legislature, upon the recommendation of the New York State Crime Commission, enacted the present § 2447 (L.1953, c. 891, § 1) which established a new procedural scheme for the granting of immunity. The purpose and effect of this provision is to eliminate automatic and sometimes unjustified 'immunity baths,' so-called, which accrued to persons summoned before investigative bodies. At the same time, Penal Law, § 584 was amended so that immunity thereunder is no longer conferred automatically, but only pursuant to the procedures set forth in § 2447.
Section 2447 of the Penal Law provides in part as follows:
§ 2447. Witnesses' immunity
'1. In any investigation or proceeding where, by express provision of statute, a competent authority is authorized to confer immunity, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and, notwithstanding such refusal, an order is made by such competent authority that such person answer the question or produce the evidence, such person shall comply with the order. If such person complies with the order, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided for herein.
'2. 'Immunity' as used in this section means that such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence in accordance with the order, and any such answer given or evidence produced shall be admissible against him upon any criminal proceeding concerning such perjury or contempt.
'3. 'Competent authority' as used in this section means:
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'(c) The grand jury before which a person is called to answer questions or produce evidence, when such grand jury is expressly requested by the prosecuting attorney to order such person to give answer or produce evidence;
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Thus, in order for a witness to obtain immunity...
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... ... as to the transactions as to which he refused to testify (Matter of Prensky v. Geller, 22 A.D.2d 559, 257 N.Y.S.2d 492, leave to appeal denied 16 N.Y.2d 486, cert. denied 384 U.S. 101). Similarly, an indictment for perjury will lie where the answers are false (People v. Feinberg, 19 Misc.2d 433, 193 N.Y.S.2d 937). To this there has always been an exception, that the person against whom the grand jury inquiry is directed may not be prosecuted for any dereliction in regard to his testimony. This is not on the ground that he enjoys immunity, but because it is illegal to ... ...
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