People v. Lev
| Decision Date | 28 April 1977 |
| Citation | 91 Misc.2d 241,398 N.Y.S.2d 593 |
| Parties | The PEOPLE of the State of New York, v. David LEV, Defendant. |
| Court | New York Supreme Court |
Michael B. Pollack, Elliott H. Pollack, New York City, for defendant.
Charles J. Hynes, Deputy Atty. Gen., New York City, for plaintiff; Philip H. Stern, New York City, of counsel.
The defendant brings this omnibus motion for dismissal of the indictment, discovery and inspection and a bill of particulars. This court, having carefully read the Grand Jury minutes, decides the motion as hereinafter indicated.
The defendant, a vendor of meat and produce, stands indicted for two counts of perjury committed while testifying before the Nursing Home Grand Jury of Bronx County on April 30, 1976. Prior to this date on July 15, 1975, the defendant had engaged in a conversation with one Ira Feinberg in Emerson, New Jersey, during which conversation Mr. Feinberg was wired to record its contents. The Special Prosecutor's office had informed local officials in New Jersey that a wiring would occur in their jurisdiction although no informati was transferred concerning either subject matter or the individual involved.
The defendant was brought before the Grand Jury and informed that the scope of its investigation dealt with possible abuses in the nursing home system in New York. Further, he was told that he would be receiving full transactional immunity (CPL 50.10) and would be immune from prosecution for all offenses encompassed in his testimony so long as he did not commit perjury.
Questioning before the Grand Jury concerned defendant's business transactions; first, in the various jurisdictions of this State, and then moved on to cover his dealings with nursing home operators in Connecticut, New Hampshire and finally New Jersey. When the questioning began dealing with New Jersey, the defendant asked to and was allowed to consult with his lawyer outside the Grand Jury room. When he returned he objected to the questioning on the grounds that it was not relevant to the Grand Jury's inquiry. He was then told by the Special Prosecutor that it was not his function to determine what was relevant and he subsequently continued to answer. It is these answers juxtaposed against the tape recording that form the basis of the perjury indictment.
The defendant alleges several grounds for dismissal of the indictment, some of which may be handled summarily and some requiring thorough analysis.
This Court has read the Grand Jury minutes and finds sufficient evidence to support an indictment (CPL 210.20, subd. 1(b)). Further, the Grand Jury was given adequate recorded instructions on the law to determine if an indictment was warranted (CPL 190.25(6)).
At the outset it must be noted that if the defendant committed perjury he did so before the Bronx County Grand Jury which would therefore clearly have jurisdiction to return an indictment. Secondly, the tape recording made prior to the Grand Jury appearance indicated that the defendant had been involved in kickback schemes in this State. Given this fact, it cannot be maintained that the Grand Jury was on a fishing expedition or interested solely in a perjury indictment (see Brown v. U.S., 8 Cir., 245 F.2d 549). Evidence had been developed to indicate nursing home misconduct in this jurisdiction and inquiry regarding such misconduct was certainly within the purview of this Grand Jury's investigative scope.
The defendant also contends that the indictment should be dismissed because the questions asked were not material to that body's investigation. However, materiality is not determined solely by the effect the question and answer may have in determining guilt or innocence. A question may be material to a subject under investigation even if it relates to some collateral or circumstantial element in the case (Peo. v. Perna, 20 A.D.2d 323, 246 N.Y.S.2d 920; Wood v. Peo., 59 N.Y. 117). Here the questions relating to New Jersey may be material to the Grand Jury's assessment of the defendant's credibility with regard to his statements concerning New York nursing homes. In any event, the courts of this State have consistently held that materiality in a perjury prosecution is a jury question (Peo. v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500; Peo. v. Perna, supra). Finally, the issue of materiality is being raised here prematurely. The CPL (210.20, subd. 1(b)) allows for dismissal of an indictment only where the evidence fails to establish the crime charged or any lesser included offense. As perjury in the third degree does not require a showing of materiality, a failure of evidence in this area would not constitute a valid ground for dismissal.
This Court has examined the recitation of materiality in the preamble to the indictment and finds that it suffices to comply with CPL 200.50(7).
The defendant contends first that he was a target of the investigation and compelling his testimony violates his privilege against self-incrimination. Secondly, he contends that his Fifth Amendment rights were violated because the immunity offered was not coextensive with the privilege waived (Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110).
The first point is easily resolved. This Court concludes factually that the defendant was not a target at the time of his Grand Jury appearance. He was called and given immunity in order to develop evidence concerning the nursing homes he served as a vendor. Even assuming, arguendo, that he was a target, this is no protection from an indictment for perjury before a grand jury (Peo. v. Tomasello, 21 N.Y.2d 143, 287 N.Y.S.2d 1, 234 N.E.2d 190).
The second point requires fuller analysis. The defendant argues that while the immunity given would protect him from a New York prosecution, by compelling testimony concerning his actions in New Jersey, the Grand Jury forced him to make statements which could be used to prosecute him in New Jersey, regardless of any grant of immunity given here. Consequently, the defendant contends that the immunity given was not coextensive with his privilege against self-incrimination, and his Fifth Amendment rights were violated (Counselman v. Hitchcock, supra.).
Cases dealing with multi-jurisdictional immunity issues emanate universally from the Federal Courts logically because multistate prosecutions are generally lodged in that forum. The lead case in the area is Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. There, both New York and New Jersey granted immunity through the Port Authority, and entity having bi-state authority. The defendant still refused to answer questions, maintaining that the immunity granted would not protect him from a federal prosecution based on his testimony and thus his Fifth Amendment right against self-incrimination was being violated. Prior to Murphy, the rule was that a non-immunizing sovereign could use the testimony compelled by another jurisdiction. The Murphy case changed this result. The court stated:
"The foregoing makes it clear that there is not continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction. (Murphy, supra at p. 77, 84 S.Ct. at p. 1608).
We hold that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law. (Murphy, supra at page 77-8, 84 S.Ct. at page 1609).
* * * We hold the constitutional rule to be that a state witness may not be compelled to given testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclud moreover, that in order to implement this constitutional rule and accommodate the interest of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of the compelled testimony and its fruits. This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity" (Murphy, supra at p. 79, 84 S.Ct. at p. 1610).
In Kastigar v. U.S., 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, Chief Justice Burger summarized the holding in Murphy :
(at page 456, 92 S.Ct. at page 1663)
The Murphy decision deals explicitly with federal to state jurisdiction and no case known to this court, or located by counsel after extensive briefs, deals directly with a state to state immunity question. However, it is this Court's opinion that Murphy implicitly guarantees Fifth Amendment protection from compelled testimony in all jurisdictions in our federal structure (In Re Bianchi, 1 Cir., 542 F.2d 98). The proscriptions contained in the Fifth Amendment apply with equal force to state as well as federal pro...
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People v. Pomerantz
...decision directly on the point which would bind the several states. Judicial authority on the matter is sparse (see People v. Lev, 91 Misc.2d 241, 398 N.Y.S.2d 593). In People v. Lev (supra), on facts nearly identical to those before us, the Supreme Court, Bronx County, took the position th......