People v. Marinaccio

• Decision Date: 26 April 1977
• Parties: The PEOPLE of the State of New York v. Robert MARINACCIO, Defendant.
• Court: New York Supreme Court

Page 904

393 N.Y.S.2d 904

90 Misc.2d 128

The PEOPLE of the State of New York v. Robert MARINACCIO, Defendant.

Supreme Court, Bronx County, Trial Term, Part 22.

April 26, 1977.

Mario Merola, Dist. Atty. by Kathleen Alberton, Asst. Dist. Atty., for the People.

Evseroff & Sonenshine by Bennett Epstein, Brooklyn, for defendant.

JOEL J. TYLER, Justice:

Defendant belatedly moves on the eve of trial to dismiss the indictment, charging eighteen counts of Criminal Contempt in the First Degree (P.L. § 215.51). There appears no legal impediment to the consideration of this motion now (CPL § 210.20(2)). I am satisfied with the explanation given for the delay in moving sooner. Further, a consideration of this motion now may foreclose an unnecessary and perhaps lengthy trial and the concomitant expense. In any event, a motion to dismiss after the People have put in their proof, would involve the same considerations of fact and law, with which the court must now deal.

The thrust of the defendant's position is that his answers before the Grand Jury given to certain questions of the Assistant District Attorney, were direct and unequivocal and not evasive as to constitute a contempt of the grand jury process. Accordingly, he urges that the indictment, which charges that those answers constituted a contumacious and unlawful refusal to answer proper and legal interrogatories, must be dismissed as a matter of law. The People maintain that the answers given were so evasive and equivocal as to constitute, in effect, a refusal to answer.

I am necessarily constrained to agree with defendant and dismiss the indictment and each of its counts.

Without resort to any extrinsic supporting evidence, as judicial authority mandates, I find, as a matter of law, that the defendant's answers, on their face and in relation to others given, cannot be said to be either inconsistent, evasive, contradictory, absurd, deceptive or obviously untruthful as to render them a deliberate calculation to obstruct the grand jury investigation.

The facts are clear. By a duly issued order, a designated phone at the Rosedale Bar in the Bronx, was tapped in connection with an investigation of an alleged loan shark operation, involving certain persons connected with those premises. The defendant was employed as a part-time bartender at that bar. The indictment arose out of two recorded telephonic conversations had by the defendant on February 25, 1975 with one, 'Tony', and on March 1, 1975 with one, Joe Pizza. Both conversations were heard by the court during an audibility hearing; they were quite short, each about two minutes duration.

On May 28, 1975, about three months after those telephonic conversations, ¹ the defendant appeared before the Grand Jury, was given effective immunity, and questioned relative to such conversations.

Defendant was asked a total of 116 questions, 18 of which the People claom were evasive to the extent that they constitute a refusal to answer. With respect to the remaining 98 answers, concerning which the People do not complain, I find that they too were answered sufficiently in direct, unequivocal and forthright form. It should be noted that a number of times the defendant unequivocally answered that 'payments' were left with him to be delivered to his employer and others and he explained the nature of those payments; and when asked if certain named individuals had left such payments, he answered unequivocally in the affirmative (pp. 3, 5, 7--8, 9, 13 of Grand Jury minutes).

Where the People proceed, as here, upon the theory that the contempt arose out of contumacious evasion, amounting to a refusal to answer, then there may be no examination of the tapes or other extrinsic evidence, but the proof must be found to lie within the confines of the alleged evasive testimony itself.

Judge Learned Hand aptly noted that, in evasive contempt cases 'the only proper test is whether On its mere face, and without inquiry collaterally, the testimony is not a bona fide effort to answer the questions at all.' (United States v. Appel, 2 Cir., 211 F. 495, 496.) (Emphasis supplied.) Unless the record alone (i.e., minutes of testimony before the Grand Jury) and 'without resort to external evidence' demonstrates the evasions and equivocations, 'there is no basis of criminal contempt.' (People v. Renaghan, 40 A.D.2d 150, 152, 338 N.Y.S.2d 125, 128; aff'd 33 N.Y.2d 991, 353 N.Y.S.2d 962, 309 N.E.2d 425). To bring a case within the statute 'mere inspection' of the witness' testimony must demonstrate that 'the witness did not intend his answer to be seriously considered.' (Matter o Finkel v. McCook, 247 App.Div. 57, 67, 286 N.Y.S. 755, 765, aff'd 271 N.Y. 636, 3 N.E.2d 460; People v. Tilotta, 84 Misc.2d 170, 375 N.Y.S.2d 965).

People v. Saperstein, 2 N.Y.2d 210, 159 N.Y.S.2d 160, is not contrary. There the defendant denied that he had taken any part in the telephonic conversations because he could not recall them or the voices. Accordingly, the trial court permitted the tapes to be played, because 'of the form which defendant's contempt here took it was proper to show the trial jury that defendant must have recognized the voices because he had had such numerous and important transactions with those persons.' (at p. 217, 159 N.Y.S.2d at p. 166) However, the court recognized that the unusual circumstances there justified the introduction of extrinsic evidence, the tapes, but restricted its ruling to that case by noting that 'on this particular record' the tapes should be played to the jury, 'without suggesting that the same practice would be valid in another case.' (at p. 217, 159 N.Y.S.2d at p. 166) Such unusual circumstances are not here present.

As we examine the questions and answers contained in Counts 2, 3, 4, 11, 14, 17 and 18, we consider also the full testimony before the Grand Jury, as we must. Each of those questions commenced or ended with the words 'Do you remember' or 'Do you recall', to which the defendant answered 'No' or 'No, I don't' or 'I don't remember'. These questions sought to ascertain whether he recalled the two conversations in question, the particulars thereof and their meaning. The defendant essentially denied memory of such conversations or particulars in connection therewith. The defendant maintains that considering all of the testimony, those answers were not equivocations but constituted direct replies to the questions, in the light of their form. The People insist that 'don't remember' or 'I don't recall' answers, by their very nature, are evasive and not sufficiently unequivocal, citing In re Epstein, 43 Misc.2d 987, 252 N.Y.S.2d 771 and People v. Martin, 47 A.D.2d 883, 367 N.Y.S.2d 8.

Reliance on those cases here are unavailing to the prosecution. Epstein is support only for the proposition, not relevant here, that one standing accused of criminal contempt, not committed in the court's immediate view and presence, is entitled, as a matter of due process, to receive notice and specifications of the charges embracing the contempt and a hearing to test them. What the court said there, merely by way of dicta, was to the effect that if the required hearing revealed that defendant's responses were so evasive, equivocal and false as to be equivalent to no answer at all, such defendant could be punished for contempt. To illustrate its meaning the court there stated that 'such a case is where the witness persists in giving 'don't remember' answers to questions which he is obviously in a position to answer unequivocally', citing People ex rel. Cirillo v. Warden, 11 N.Y.2d 51, 56, 226 N.Y.S.2d 398, 401, 181 N.E.2d 424, 426. Of course, no where did the court indicate that 'I don't remember' answers, in and of themselves, are contemptuous.

In Cirillo, supra, we find a situation, unlike here, where the defendant appeared to have a good memory as to almost all of his activity on the morning of a specified date, 70 days prior to his Grand Jury testimony, but had a lapse of memory with 'I don't remember' responses as to where he was and what he did on the afternoon of that day, a time critical to the investigation. Similarly, in Martin, supra, 47 A.D.2d --- p. 884, 367 N.Y.S.2d p. 10, the reluctant defendant denied any meetings with Hugh Mulligan in 1969 and then at one point retreated to 'I don't recall seeing him any time during the year 1969', and 'when asked about specific meetings on dates certain' again he failed to deny them but resorted to 'I don't recall' or 'I don't recall it at all'. Finally, when confronted with the transcripts of telephone calls and particularized facts, was forced to admit several meetings with Mulligan in 1969, but resorted to 'I don't remember' when questioned about those meetings. ²

Equivocation and evasion are poignantly apparent in Cirillo and Martin.

Cirillo would remember, in detail, long past innocuous activity, clearly, and most suspiciously hedged markedly in a failed memory as to matters occurring on the same day but vitally relevant to the inquiry, while Mr. Martin modulated between denial, admission and a failed memory, all with respect to the same circumstances.

Under the peculiar circumstances in Cirillo and Martin, the 'I don't remember' answers, viewed in the light of all their Grand Jury testimony, could be said to be wilful and intentional evasions, amounting to a contemptuous refusal to answer. We have no such patent evasiveness here. Nor do we find a like or approximate measure of improbability and obvious untruthfulness as manifest in Matter of Ruskin v. Detkin, 32 N.Y.2d 293, 344 N.Y.S.2d 933, 298 N.E.2d 101 and People v. Tilotta, 84 Misc.2d 170, 375 N.Y.S.2d 965; or 'persistent equivocation * * * despite earlier formal, unqualified denials' which the dissenting judges found in People v. Renaghan, supra, 33 N.Y.2d 991, 993, 353 N.Y.S.2d 962, 963, 309 N.E.2d 425, 426, or a transaction of such magnitude and significance and of such recent date, that a failure to...