People v. Leone

• Decision Date: 02 May 1978
• Court: New York Court of Appeals Court of Appeals
• Parties: , 376 N.E.2d 1287 The PEOPLE of the State of New York, Respondent, v. Anthony LEONE, Jr., Appellant.

Page 642

405 N.Y.S.2d 642

44 N.Y.2d 315, 376 N.E.2d 1287

The PEOPLE of the State of New York, Respondent, v. Anthony LEONE, Jr., Appellant.

Court of Appeals of New York.

May 2, 1978.

Harvey L. Greenberg, New York City, for appellant.

Eugene Gold, Dist. Atty. (Michael R. Gore, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

PER CURIAM.

Defendant appeals from an affirmance of his conviction, after indictment and jury trial, of criminal contempt in the first degree (Penal Law, § 215.51). The contempt arose out of his refusal, in violation of a court order, to answer questions before a Grand Jury. Defendant contends that his contempt has been purged and the indictment should be dismissed. He relies on an order made by a Supreme Court Justice, more than a year after defendant's indictment and nearly two years after the contempt, allowing defendant to purge the contempt by testifying before the Grand Jury. At trial no reference to the purge order or defendant's subsequent testimony was permitted.

At issue is the power of a Judge to allow a defendant who has been indicted for criminal contempt under the Penal Law to purge himself of the indictment by complying, belatedly, with a court order earlier disobeyed. Since it is concluded that the purge order could have no effect on the indictment for the crime of contempt, there should be an affirmance. The problem and its resolution are simple and elaboration would be superfluous. Not to be confused with the crime of contempt, as defined in the Penal Law, is summary contempt, either civil or criminal. When the crime of contempt, prosecuted by indictment, is involved, a court may not permit the contempt to be purged.

Indictment for the crime of contempt, as defined in the Penal Law, like any other crime entitles defendant to a plenary trial. The crime is not intended solely to vindicate the authority of the court, but to further the ends of public justice as well. Thus, the crime of contempt must be distinguished from a summary criminal contempt adjudication, or a civil contempt which may undoubtedly be purged (Judiciary Law, §§ 750, 753). As had been said, nearly a century ago: "The two proceedings are wholly independent of each other. One who disobeys the lawful order of a court not only offends against the dignity of the particular tribunal, but also against the public law. The particular court may pass over the contempt and suffer its order to be spurned, but the offense against the people remains. Their authority has been contemned, the administration of public justice assailed, and its power despised" (People ex rel. Sherwin v. Mead, 92 N.Y. 415, 420 (Finch, J.); see, also, People v. Colombo, 29 N.Y.2d 1, 4, 323 N.Y.S.2d 161, 163, 271 N.E.2d 694, 695, vacated and remanded on other grounds sub nom. Colombo v. New York, 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762). Thus, once a contempt goes to indictment and prosecution, forgiveness by an individual Judge or court may not be permitted to frustrate the power to punish for the affront to public justice. Purging of the contempt, therefore, is not permissible, at least in the absence of statutory authority.

Unnecessary to reach, and probably incorrect, is the conclusion that under no circumstances may a "criminal" summary contempt be purged. In fact, this court has concluded, in some circumstances at least, that one summarily adjudged in criminal contempt pursuant to section 750 of the Judiciary Law " 'holds the key to his freedom' " (Colombo v. New York, 29 N.Y.2d 1, 4, 323 N.Y.S.2d 161, 164, 271 N.E.2d 694, 697, supra ; People ex rel. Valenti v. McCloskey, 6 N.Y.2d 390, 399, 189 N.Y.S.2d 898, 904, 160 N.E.2d 647, 651; app. dismd. 361 U.S. 534, 80 S.Ct. 585, 4 L.Ed.2d 537; see, also, Typothetae of City of N. Y. v. Typographical Union No. 6, 138 App.Div. 293, 122 N.Y.S. 975). Arguably, implicit in such a conclusion is the ability to purge some criminal contempts as distinguished from crimes of contempt. As noted already, however, that issue need not be reached.

This is how the law of New York has developed. It should not be confused with a somewhat different categorization of summary criminal contempts in cases before the Supreme Court of the United States involving the application of principles of double jeopardy or jury trial (e. g., Colombo v. New York, 405 U.S. 9, 10-11, 92 S.Ct. 756, 30 L.Ed.2d 762, supra ; Shillitani v. United States, 384 U.S. 364, 368-372, 86 S.Ct. 1531, 16 L.Ed.2d 622; Cheff v. Schnackenberg, 384 U.S. 373, 377-380, 86 S.Ct. 1523, 16 L.Ed.2d 629).

Accordingly, the order of the Appellate Division should be affirmed.

FUCHSBERG, Judge (concurring).

This case presents claims (1) that the District Attorney, in bringing appellant before the Grand Jury, acquiesced in the acceptance of a judicial offer of redemption and thus waived any objection to its enforcement and (2) that the unappealed decision of the Judge who granted the defendant's motion to purge himself became the "law of the case" binding on District Attorney and trial court alike. Beyond that, the analytical divergence of the opinions below points up the recurrent confusion in the law of contempt. ¹ I therefore believe more extensive discussion is merited.

Though the power to punish for criminal contempt in New York is now to be found entirely in our statutes, its roots are ancient. In Anglo-Saxon tradition alone this power is traceable at least as far back as the twelfth century (Fox, History of Contempt of Court (1927), p 1). Blackstone later described it as "an inseparable attendant upon every superior tribunal" and "as ancient as the laws themselves" (4 Blackstone, Commentaries, p 282). And American courts, following those leads, have consistently regarded it as inherent and indispensable to their judicial functions (see, e. g., United States v. Hudson, 7 Cranch, (11 U.S.) 32, 34, 3 L.Ed. 259; Thomas, Problems of Contempt of Court, pp 49-53).

Appellant, by his refusal to answer questions posed by the Grand Jury, flouted this power. The dignity of our courts having thus been affronted, its vindication could follow one of two statutory avenues, ² either that prescribed by sections 750 and 751 of the Judiciary Law or the one to be found in sections 215.50 and 215.51 of the Penal Law.

Under the Judiciary Law sections, a court has the power summarily to punish for specified acts, among which is "contumacious and unlawful refusal to be sworn as a witness in any court proceeding; or, after being sworn, to answer any legal and proper interrogatory." While the sanctions which may be imposed under these sections may be expeditious, they are comparatively light, being limited to a $250 fine and 30 days in jail. (This relative leniency has not been without criticism; see the comments of Professor Siegel in McKinney's Cons.Laws of N.Y., Book 7B, Practice Commentary to CPLR 2308, subd. (a).)

In this case, as no summary action was instituted against appellant under the Judiciary Law, the concomitant discretion that a court acting summarily retains to allow a contemnor to purge himself did not come into play (cf. People ex rel. Valenti v. McCloskey, 6 N.Y.2d 390, 399, 189 N.Y.S.2d 898, 904, 160 N.E.2d 647, 651, app. dsmd. 361 U.S. 534, 80 S.Ct. 585, 4 L.Ed.2d 537).

Under the Penal Law sections, while the State may attempt to exact a more severe penalty, it may not proceed summarily. Thus, having chosen to indict the appellant here for criminal contempt in the first degree under section 215.51 of the Penal Law, a class E felony, the People were required to accord him all the safeguards of a plenary trial. Another result of the pursuit of proceedings under the Penal Law rather than the Judiciary Law was that the appellant could not absolve himself of his contemptuous conduct by his subsequent compliance with the commands of the court.

For section 215.51 of the Penal Law made appellant's crime complete when, "after having been sworn * * * before a grand jury, (he) refuse(d) to answer". His belated change of heart could no more excuse him from responsibility for his crime than would an indicted embezzler's disgorgement of the avails of his larceny (cf. People v. Colombo, 29 N.Y.2d 1, 3, 323 N.Y.S.2d 161, 162, 271 N.E.2d 694, 695, vacated and remanded on other grounds 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762). Nor could Leone's subsequent testimony before the Grand Jury eradicate the intent with which he defiantly undertook to obstruct justice two and a half years earlier.

That his ameliorative conduct might be appropriately considered by the sentencing Judge on the limited issue of punishment is besides the point. For that purpose, eventual compliance very well could be a mitigating factor. But it was not a defense. (Yates v. United States, 355 U.S. 66, 72, 78 S.Ct. 128, 2 L.Ed.2d 95.) Consequently, on the issue of...