People v. Ianniello

• Decision Date: 21 February 1968
• Parties: , 235 N.E.2d 439 The PEOPLE of the State of New York, Appellant, v. Matthew IANNIELLO, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 462

288 N.Y.S.2d 462

21 N.Y.2d 418, 235 N.E.2d 439

The PEOPLE of the State of New York, Appellant, v. Matthew IANNIELLO, Respondent.

Court of Appeals of New York.

Feb. 21, 1968.

Frank S. Hogan, Dist. Atty. (H. Richard Uviller and Frederick P. Hafetz, New York City, of counsel), for appellant.

William Sonenshine, Brooklyn, and Maurice Edelbaum, New York City, for respondent.

BREITEL, Judge.

The People appeal from the dismissal of an indictment for criminal contempt under subdivision 6 of section 600 of the former Penal Law. The indictment in separate counts charged four violations of the statute, based upon defendant's allegedly evasive, equivocal, and false responses to questions asked of him in two appearances before the New York County Grand Jury on June 11 and June 18, 1964. The Supreme Court, New York County, dismissed the indictment on the ground that defendant, while testifying as a witness before the Grand Jury, was denied the right to counsel when he was refused permission to leave the Grand Jury room to discuss the propriety of a question with his lawyer. The Appellate Division, by a divided court, affirmed without reaching the counsel issue on the ground that defendant was immune from prosecution for contempt since he was a 'target' of the inquiry. Two Justices, in dissent, disputed defendant's status as a target, and also concluded that under the circumstances in which defendant sought 'advice,' the refusal to permit defendant to consult with his lawyer did not amount to an improper interference with the right to counsel.

The order should be reversed and the indictment reinstated. Under the rule in People v. Tomasello, 21 N.Y.2d 143, 287 N.Y.S.2d 1, 234 N.E.2d 190, infra, this defendant is subject to prosecution for criminal contempt for evasive testimony before the Grand Jury whether or not he was a possible defendant. Nor was he in fact deprived of any right to consult with his lawyer, although in a proper case a Grand Jury witness has such right.

Defendant, owner of 'two licensed bars and grills' in the sensitive mid-town area, was called before the Grand Jury on June 11, 1964. At the outset, he refused to be sworn on the ground that he was a defendant in a pending misdemeanor prosecution. He was then told by an assistant district attorney that he was called 'solely in the role of a witness' in the Grand Jury's investigation of a bribery conspiracy involving police and officials of the State Liquor Authority. After he was told by the prosecutor, before the Grand Jury, that the 'grand jury is ready to confer immunity upon you should you consider any answers that you might have to give (incriminatory),' and after he had said that he understood the nature of this advice, he consented to being sworn. Defendant was thereafter questioned about conversations concerning investigations of police payoffs, which he allegedly had had with one Benny Cohen in 1963. When he stated that he could not recall such conversations, he was reminded that the Grand Jury had 'voted to confer immunity' upon him, and that he was legally obligated to give truthful testimony. Pressed to affirm or deny that the conversations had taken place, defendant asked: 'Could I excuse myself to see my attorney for a minute? * * * I want to ask him if it's a proper question.' This request was denied and, after defendant persisted in his request, the prosecutor suggested that they 'go in open court * * * and make an application.' This course was not pursued, however. Instead, the Grand Jury foreman, at the prosecutor's request, directed the witness to answer. He thereupon answered that he did not recall the conversations.

The questioning then turned to the subject of defendant's alleged meeting in September, 1963 with one O'Shea, a police sergeant. Although the conversation allegedly involved a confidential investigation pending against defendant's friend, Benny Cohen, defendant persisted in stating that he did not 'recall' the conversation and could not affirm or deny that it had ever occurred. This testimony was the basis for one of the four contempt charges in the indictment.

The other three counts of the indictment dealt with testimony given when defendant was recalled, a week later, on June 18, 1964. They too involved defendant's purported inability to recall conversations in the recent past. Thus, defendant stated that he could not recall whether anyone had, within the previous six months, told him to stay away from Sergeant O'Shea because the officer was under investigation. Nor could he recall having entertained police officers, other than a police captain, at his farm.

The basis for the Appellate Division's opinion--the immunity enjoyed by a prospective defendant or target of investigation from prosecution for contempt on the basis of his Grand Jury testimony--was recently undermined by this court in People v. Tomasello, 21 N.Y.2d 143, 287 N.Y.S.2d 1, 234 N.E.2d 190, supra. In the Tomasello case, the court held that a Grand Jury witness who is a possible defendant or target and who has not received transactional immunity for a previously committed substantive offense under section 2447 of the former Penal Law could nevertheless be prosecuted for perjury on the basis of his current testimony. The court reasoned that such a witness enjoys the benefits of an exclusionary rule, often referred to as an 'immunity,' forbidding use of his compelled statements and any derivative evidence ('fruits') in a prosecution for a previously committed substantive crime. It held, therefore, that he is not also endowed "with a license to commit perjury." Of course, this reasoning extends as well to prosecutions for contempt committed before the Grand Jury, particularly when (as here) the contempt involves answers '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). The 'use' of testimony to establish contempt or perjury, where the current testimony itself constitutes the contempt or perjury, has been contrasted with the use of testimony to establish commission of a prior, substantive offense (8 Wigmore, Evidence (McNaughton rev. ed.), § 2282, pp. 511--512, cited in People v. Tomasello, supra; former Penal Law § 2447, subd. 2). Hence, even if defendant Ianniello was a target of the investigation, under the reasoning of the Tomasello case, he may nevertheless be punished for contempt for his delinquency in testifying. When a witness is not a target, of course, the propriety of subjecting him to the contempt sanction has never been questioned.

This case also raises a novel question concerning the existence and scope of the Grand Jury witness' right to consult with counsel. It is, of course, a familiar proposition that the lawyer for a witness is not entitled to be present in the Grand Jury room (see, e.g., Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 292, 79 S.Ct. 1157, 3 L.Ed.2d 1234; Matter of Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376; United States v. Scully, 2 Cir., 225 F.2d 113, 115--116, cert. den. 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788; Matter of Black, 2 Cir., 47 F.2d 542, 543; cf. People ex rel. McDonald v. Keeler, 99 N.Y. 463, 484--485, 2 N.E. 615, 625--627; Matter of Anonymous v. Arkwright, 5 A.D.2d 790, 791, 170 N.Y.S.2d 535, 536, mot. for lv. to app. den. 4 N.Y.2d 676, 173 N.Y.S.2d 1025). This rule rests upon the statutory exclusion of all except certain authorized persons before the Grand Jury and the need to preserve the secrecy of Grand Jury proceedings (Code Crim.Proc., §§ 255--259). There remains, however, the further question whether the witness should not be entitled to leave the Grand Jury room to consult with his lawyer (see United States v. Leighton, D.C., 265 F.Supp. 27, 38; United States v. Kane, D.C., 243 F.Supp. 746; United States v. Grunewald, D.C., 164 F.Supp. 640, all indicating that the procedure in the Southern District of New York is to exclude the lawyer but to permit the witness to leave the Grand Jury room and consult with him; this is also done in State Grand Jury proceedings (see, e.g., People v. De Feo, 284 App.Div. 622, 627, 131 N.Y.S.2d 806, 812, revd. on other grounds 308 N.Y. 595, 127 N.E.2d 592)). Such conduct by the witness does not violate the statutory policy of secrecy, for it has always been understood that the witness is at all times free to discuss his testimony outside the Grand Jury room. Whether and to what extent the witness ought to have a right to consult with his lawyer depends upon an analysis of the proper role of counsel in these circumstances, and the need to avoid procedural strictures which would impair the effectiveness of Grand Jury investigation.

Since a Grand Jury proceeding is properly an investigation rather than a prosecution directed against the witness, the witness has no right to be 'represented' by counsel, in the technical sense (see, e.g. Matter of Groban, 352 U.S. 330, 332--333, 77 S.Ct. 510, 1 L.Ed.2d 376, supra). However, in light of current recognition of the importance of counsel in providing effective notice of rights, it is difficult to maintain that the witness is not entitled to the advice of his lawyer (cf. Miranda v. State of Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694; Escobedo v. State of Illinois, 378 U.S. 478, 486, 84 S.Ct. 1758, 12 L.Ed. 977; People v. Donovan, 13 N.Y.2d 148, 153, 243 N.Y.S.2d 841, 844, 193 N.E.2d 628, 630). As a matter of fairness, government ought not compel individuals to make binding decisions concerning their legal rights in the enforced absence of counsel (see Matter of Conlon v. Murphy, 24 A.D.2d 737, 263 N.Y.S.2d 360 (patrolman could not be dismissed, without notice or hearing, on the basis of his refusal to give further Grand Jury testimony, after he had asked for and been denied an opportunity to consult counsel)). Courts have a particular responsibility to...