People v. Giglio

• Decision Date: 19 May 1980
• Citation: People v. Giglio, 428 N.Y.S.2d 27, 74 A.D.2d 348 (N.Y. App. Div. 1980)
• Parties: The PEOPLE, etc., Respondent, v. Benjamin GIGLIO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 27

428 N.Y.S.2d 27

74 A.D.2d 348

The PEOPLE, etc., Respondent, v. Benjamin GIGLIO, Appellant.

Supreme Court, Appellate Division, Second Department.

May 19, 1980.

Reuss & Ruchala, Bellerose (Richard G. Handler, Bellerose, of counsel; Frederick M. Reuss, Jr., Bellerose, on the brief), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Howard E. Heiss, Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, TITONE and MANGANO, JJ.

HOPKINS, Justice Presiding.

The defendant was convicted of the crime of criminal contempt in the second degree (Penal Law, § 215.50, subd. 3) as the consequence of his disobedience of an order of Criminal Term directing him to provide voice exemplars during a prior trial of the defendant under an indictment for bribery. He contends that the judgment must be reversed, because he did not intend to flout the order of the court, and that, moreover, the order was not a legal mandate, nor commanded him (the defendant) clearly and unequivocally, under pain of contempt, to supply voice exemplars.

We reverse. The record before us does not establish that the defendant was required by a legally enforceable order to provide voice exemplars while on trial.

I

In May, 1978 the defendant was on trial under an indictment for bribe taking. ¹ During the trial the prosecutor asked the court to "instruct the Defendant to stand up in this courtroom and read from a portion of the transcript that's been marked for Identification as People's 3A and 4A for purposes of voice identification." ²

The defendant's counsel objected on the ground that to grant the request would constitute a violation of the defendant's rights under the Sixth Amendment. Criminal Term sustained the objection and denied the request.

Indicating that he had been surprised by the failure of a witness to identify the defendant's voice on a tape of a conversation (the tape and the transcript having been thus rendered inadmissible in evidence as a result of that defect in proof), the prosecutor then moved that the defendant be directed to have his voice recorded outside the courtroom for the purpose of later playing the recording at the trial before the jury, so that, as the prosecutor stated, "the jury can judge for themselves as to the inflections and voice of this Defendant." ³

After considerable discussion, the court said: "At any rate, I have ordered the Defendant to make the exemplar and to make it out of the presence of the jury." Following the court's inquiry whether the equipment was prepared, this colloquy occurred:

"Mr. Rost (Assistant District Attorney): I intend at this time to call the wireroom to bring a man over to make an exemplar.

"The Court: I thought you had him over here. We're wasting a lot of time.

"Mr. Rost: At that time that witness be called to state there was a recording played and then play the recording for the jury.

"The Court: I understand.

"Mr. Rost: Without having identified any voices.

"The Court: I think Mr. Handler wants to add something, your assistant, Mr. Reuss.

"Mr. Reuss (Defendant's attorney): Mr. Handler asked me if Giglio would take the stand, would that be necessary. My immediate answer to him in open court was that's precisely what the District Attorney would like to accomplish to deprive us of the right to remain silent and rely upon our plea of not guilty which is not only a plea but the fact.

"The Court: I understand.

"Mr. Reuss: May we see the exemplar? May we see the confession to be read?

"The Court: What do you request?

"Mr. Rost: Your Honor, I present to the Court People's 3A for identification. I'd ask that a portion, upper most portion on Page 6 be read by Mr. Giglio and People's 4A.

"The Court: Only one. I'm not going to give you two.

"Mr. Rost: Yes, sir. In that case the People would request the reading of Page 6 on People's 4A for identification.

"The Court: 4A. Okay, Page 6 on 4A is a full page in which there is conversation alleged between Mr. Roberto and Mr. Giglio and you are asking for a full page to be read.

"Mr. Rost: Yes, sir, in view of the fact that there are two tapes and your Honor asked me.

"The Court: I'm not going to you see, I think there is sufficient comparison if we have Mr. Giglio's voice read to the jury from a portion, a portion, a half page is enough."

Thereafter, the trial record discloses that the following took place:

"The Court: The wire man I understand is ready to be here any minute?

"Mr. Rost: Yes, sir.

"The Court: Now, we're ready to set up the equipment. Is Mr. Giglio prepared to read that statement that I so order him to do?

"Mr. Reuss: No, he is not, your Honor.

"The Court: On your advice?

"Mr. Reuss: Upon my advice and strong advice to that effect, right or wrong. It would not be the first time, I've given wrong advice and I hope that it is one of the many times when I've given correct advice to a client.

"The Court: All right. Then the Court cannot direct that order be carried out because there is no way I can make a man talk if he doesn't want to talk. The only remedy I have that you would have, Mr. Rost, would be a request that he be held in contempt of Court for not complying with my order and that would have to be in writing and probably would have to be done after the trial, I suppose."

The court and the prosecutor then engaged in the following dialogue:

"The Court: Let the record note that after about fifteen minutes of discussions the District Attorney has requested me to delay the trial for a half hour or so, so he can go to his office and continue further discussions.

"I have denied that request and permitted him only to make a phone call to his office to advise his office that I'm directing him to continue on trial. He's now returned to the Court and so I'm putting this all on the record. You have an objection to that procedure and I give you an exception.

"Mr. Rost: Fine.

"The Court: All right. Anything else you want to say?

"Mr. Rost: Just the fact it's the People's position that we will go forth with and ask your Honor to hold this Defendant in contempt and we will submit papers on this, your Honor.

"The Court: That's something else.

"Mr. Rost: You've asked for what the People's position will be and I have just echoed what it is.

"The Court: Do you have another witness?

"Mr. Rost: No, your Honor.

"The Court: You are resting?

"Mr. Rost: Yes, in view of the inability in obtaining an exemplar we would have to rest."

The defendant was subsequently acquitted of the charge of bribery.

II

The defendant was indicted late in 1978 for criminal contempt in the second degree for having engaged in "(i)ntentional disobedience or resistance to the lawful process or other mandate of a court to wit: to submit to a voice exemplar."

At the contempt trial the prosecutor rested on the record of the bribery trial. The defendant called the Trial Judge presiding at the bribery trial as his witness. On direct examination the Judge testified as follows:

"Q (Defendant's attorney) Mr. Justice Booth, your reading of these minutes and insofar as your recollection is concerned and is refreshed by a reading of the minutes, calling your attention to page 21 of the minutes, I wonder if your Honor can tell me whether or not you made an order for a mandate of the Court requiring Benjamin Giglio to give an exemplar of his voice during the course of these proceedings on May 3rd?

"Mr. Kaplan (Assistant District Attorney): I'm going to object to that. The minutes speak for themselves.

"The Court: I will allow the question to be asked.

"A Having read these minutes and particularly page 21, the words are, 'Exemplar ordered.' But then there is something else added: 'I should ask Mr. Giglio, in person, if that is his desire.'

"I said, 'Mr. Giglio, you have heard your lawyer state that on his advice you desire not to read that exemplar, is that right?'

"I intended to give counsel and the defendant a chance to determine whether or not they wanted to stand on their Constitutional rights and that opportunity was given, was taken, and Mr. Giglio and Mr. Reuss told me they did not desire to make that exemplar on Constitutional grounds. I did not press the issue because I felt it would be wrong for me to press them since they did exercise a Constitutional right.

"Q Judge, there was no order or mandate as such?

"A No, there's no order or mandate because that order that was given was hedged, so to speak, by permitting you and Mr. Giglio to determine whether or not you desired to give an exemplar based upon your Constitutional rights. I respect that very much."

On cross-examination, the witness testified that he recalled the colloquies appearing in the trial record set out above. The witness testified on redirect that the defendant had not intended to disrupt the dignity of the law or the courtroom or offend his dignity or the dignity of the law or the dignity of the courtroom.

Criminal Term found the defendant guilty of criminal contempt in the second degree, holding that the defendant had intentionally refused to comply with the order of the court directing him to give a voice exemplar.

III

Section 215.50 of the Penal Law provides that a person is guilty of criminal contempt in the second degree when he engages in intentional disobedience or resistance to the lawful process or other mandate of a court. "The crime is not intended solely to vindicate the authority of the court, but to further the ends of public justice as well" (People v. Leone, 44 N.Y.2d 315, 317, 405 N.Y.S.2d 642, 643, 376 N.E.2d 1287, 1288). "Criminal contempts consist in a violation of the rights of the public, as represented in their judicial tribunals. An element of willfulness exists in them, and they are punished in the interest of public justice, and not in the interest of individual litigants." (People ex rel. Gaynor v. McKane, 78 Hun. 154, 161, 28 N.Y.S. 981, 984.)

Though the defendant pleads that the prosecution failed to establish that he intended to defy...