People v. McGrath

Decision Date26 February 1976
Citation380 N.Y.S.2d 976,86 Misc.2d 249
PartiesThe PEOPLE of the State of New York v. Edward McGRATH, Defendant.
CourtNew York Supreme Court

Robert M. Morgenthau, Dist. Atty. (Austin Campriello, New York City, of counsel), for People.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Herald P. Fahringer, Buffalo, of counsel), for defendant.

BURTON B. ROBERTS, Justice:

This motion raises the novel question of whether a Grand Jury witness who has been indicted for criminal contempt (Penal Law, § 215.51) based upon the allegation of 'conspicuously unbelievable, evasive, equivocal and patently false answers' (see People ex rel. Valenti v. McCloskey, 6 N.Y.2d 390, 398, 189 N.Y.S.2d 898, 903, 160 N.E.2d 647, 650, app. dism. 361 U.S. 534, 80 S.Ct. 585, 4 L.Ed. 537; Matter of Finkel v. McCook, 247 App.Div. 57, 62, 286 N.Y.S.2d 755, affd. 271 N.Y. 636, 3 N.E.2d 460) may have his Grand Jury testimony suppressed and the indictment dismissed on the ground that the questioning was the product of improperly issued electronic surveillance orders.

The facts may be briefly summarized. On February 20, 1973 the defendant, Edward McGrath, appeared before a Grand Jury of New York County pursuant to subpoena and was sworn. He was immediately advised by an assistant district attorney that his presence was exclusively that of a witness in an investigation, the scope of which was defined for him. He was also informed that he would receive full and complete transactional immunity pursuant to section 50.10 of the Criminal Procedure Law, which was read and explained. Mr. McGrath was then told, in response to an inquiry made by him, that some of the questions about to be propounded were based upon court-ordered electronic surveillance. His ensuing request to be taken before the Court was honored by the assistant district attorney. In court, Mr. McGrath's lawyer argued that his client was entitled to a full suppression hearing. The Justice presiding called for the production of the eavesdropping applications, and reserved decision overnight. The following morning the Justice announced that he had examined the eavesdropping orders and that 'each appears on its face to be valid'. The Justice then ruled that '(w)hatever rights a witness may have in defense of a contempt proceeding, he cannot move to suppress evidence before a Grand Jury', citing People v. Costello (21 N.Y.2d 967, 290 N.Y.S.2d 194, 237 N.E.2d 356). Mr. McGrath was therefore directed to return to the Grand Jury and answer all relevant questions. Reappearing before the Grand Jury, he stated that he had been advised by his attorney that he was not legally obligated to testify without a 'judicial hearing' and that he was doing so 'under protest'. He then proceeded to answer questions for approximately 180 pages of Grand Jury transcript. A portion of this testimony, pertaining to one facet of the multi-faceted inquiry, constitutes the basis for the single count of contempt now before the Court. 1

In this Court, the People concede that all relevant questioning of the defendant was based upon the eavesdropping alleged to be improperly authorized. A threshold issue, then, is the legality of this eavesdropping, which was undertaken pursuant to a series of some thirteen orders, signed by Justices of the Supreme Court in New York County between May, 1969 and March, 1970. Since each subsequent order was based upon information derived from its predecessors, the defendant, who was overheard in conversation pursuant to the progenitor of the series, the order dated May 7, 1969, has standing to object to evidence derived from the entire series (Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441). It follows, then, that the illegality of the first order would be dispositive of the entire issue of legality, and that is, in fact, the case here. The offenses designated as the subject matter of the May 7, 1969 order are bribery, gambling and conspiracy. The application for the order recounts police observations of repeated meetings between men with extensive criminal records for gambling and other crimes, and several meetings between one such individual, Hugh Mulligan, and various police officers. While these meetings are highly suspicious, their subject matter is purely speculative. Mere suspicion that something nefarious is afoot is not probable cause (People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526). The Fourth Amendment, as it applies to eavesdropping, requires probable cause to believe that a specific crime has been or is being committed and that particularly described conversations constituting evidence of that crime will be obtained through electronic surveillance at a specific location (Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040; see CPL § 700.15). The facts set forth in support of the May 7th order, if trust, leave little doubt about the good faith of the investigators in attempting to pursue criminal activity, but they do not permit a probable cause conclusion with regard to the nature of any crime being committed or the use of the telephone by participants in criminal activity. 2

Given the legal insufficiency of the eavesdropping in this case and the defendant's standing to attack it, attention is ready to be turned to the effect on the defendant's Grand Jury testimony and the instant contempt indictment. A summary of the applicable law follows.

The proposition that a claim of illegal eavesdropping may be raised in defense of a Grand Jury witness charged with refusing to answer questions derived from such eavesdropping was first recognized in Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.E.2d 179. In Gelbard, Grand Jury witnesses claiming to be the victims of illegal eavesdropping sought to invoke the prohibition contained in 18 U.S.C., § 2515 in defense to summary civil contempt charges brought for refusal to obey court orders compelling them to testify before the Grand Jury. Section 2515, which was enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968, provides as follows:

'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

The narrow question decided by the Court in Gelbard was whether section 2515 provided the defense of illegal eavesdropping at the Grand Jury state to a witness facing a civil contempt charge. In answering this narrow question in the affirmative, the Court assumed for purposes of its decision that the witness' potential testimony would be, under the language of section 2515, 'evidence derived' from intercepted communications, and assumed further that such testimony would be 'disclosure' in violation of the Omnibus Crime Control Act, citing 18 U.S.C., § 2511(1), which provides criminal sanctions for willful violations. (408 U.S. at p. 47, 92 S.Ct. at 2360, 33 N.E.2d at 186.) The Court then based its decision on the premise that unauthorized interceptions and the desclosure or use of information obtained through unauthorized interceptions are crimes, and the victim of such interception, disclosure, or use is entitled to recover civil damages (18 U.S.C., § 2520). Reasoned the Court (408 U.S. at p. 52, 92 S.Ct. at 2363, 33 L.Ed.2d at 189):

Title III makes illegal not only unauthorized interceptions, but also the disclosure and use of information obtained through such interceptions. 18 U.S.C. § 2511(1); see 18 U.S.C. § 2520. Hence, if the prohibition of § 2515 is not available as a defense to the contempt charge, disclosure through compelled testimony makes the witness the victim, once again, of a federal crime. Finally, recognition of § 2515 as a defense 'relieves judges of the anomalous duty of finding a person in civil contempt for failing to cooperate with the prosecutor in a course of conduct which, if pursued unchecked, could subject the prosecutor himself to heavy civil and criminal penalties.' In re Grand Jury Proceedings, Harrisburg, Pennsylvania (Egan), 450 F.2d 199, at 220 (Rosenn, J., concurring). 'And for a court, on petition of the executive department, to sentence a witness, who is herself the victim of the illegal wiretapping, to jail for refusal to participate in the exploitation of that crime in violation of the explicit command of Section 2515 is to stand our whole system of criminal justice on its head.' In re Evans, 146 U.S.App.D.C. 310, 323, 452 F.2d 1239, 1252 (1971) (Wright, J., concurring).

The Court specifically did not decide whether the remedy of immediate suppression would be available if the interception had been done pursuant to an improperly issued court order, good faith reliance upon which constitutes under 18 U.S.C. § 2520, a 'complete defense to any civil or criminal action'. Since the facts pertaining to the possible existence of a court order were not before it, the Court left this question open to the District Court on remand for further proceedings (408 U.S. at p. 61, n. 22, 92 S.Ct. at 2367, 33 L.Ed.2d at 194). It is clear, however, that at least five of the Justices would not have required suppression proceedings at the Grand Jury stage where the government produces a court order for the eavesdropping. Wrote Mr. Justice White, who supplied the decisive vote of the 5--4 majority, in a concurring opinion (408 U.S. at p. 70, 92 S.Ct. at 2372, 33 L.Ed.2d at 200):

Where the Government produces a court order for the interception, however, and the witness nevertheless demands a full-blown...

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3 cases
  • Stewart v. Stewart, 91-CA-01062
    • United States
    • Mississippi Supreme Court
    • 17 Noviembre 1994
    ...State v. Mayes, 39 Md.App. 635, 387 A.2d 794 (1978); People v. Amsden, 82 Misc.2d 91, 368 N.Y.S.2d 433 (1975); People v. McGrath, 86 Misc.2d 249, 380 N.Y.S.2d 976 (1976). In re Marriage of Lopp, 268 Ind. 690, 378 N.E.2d 414 (1978), is the sole case found that reasoned that issues of federal......
  • People v. Marinaccio
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    ...of a 'distinctive intent to both mislead and obstruct the grand jury in the performance of its function,' (People v. McGrath, 86 Misc.2d 249, 257, 380 N.Y.S.2d 976, 985) or 'the nature of the testimony was such that the record itself shows it to be false on its face without the necessity of......
  • People v. Ruggiano
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    ...Criminal Contempt in the First Degree. Neither People v. Cianciola, 86 Misc.2d 976, 978, 383 N.Y.S.2d 159, 161, or People v. McGrath, 86 Misc.2d 249, 380 N.Y.S.2d 976, cited by defendant support a contrary The reference in the subpoena to P.L. 215.50(3) does not preclude prosecution under P......

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