People v. McGrath

Decision Date30 November 1978
Parties, 385 N.E.2d 541 The PEOPLE of the State of New York, Appellant, v. Edward McGRATH, Respondent. In the Matter of Ugo MANCINI, Respondent, v. Michael J. CODD, as Police Commissioner of the City of New York, Appellant.
CourtNew York Court of Appeals Court of Appeals

Robert M. Morgenthau, Dist. Atty. (Peter L. Zimroth and Edward Agnew McDonald, New York City, of counsel), for appellant in the first above-entitled case.

Herald Price Fahringer, Paul J. Cambria and Barbara J. Davies, Buffalo, for respondent in the first above-entitled case.

Allen G. Schwartz, Corp. Counsel (L. Kevin Sheridan and Laurence B. Jones, New York City, of counsel), for appellant in the second above-entitled case.

Robert A. Goldschlag and Jack S. Hoffinger, New York City, for respondent in the second above-entitled case.

OPINION OF THE COURT

JASEN, Judge.

Today, this court finds itself engaged in the not altogether foreign task of attempting to demarcate the seemingly inexhaustible reach of the exclusionary rule. More specifically, in the first of two cases. People v. McGrath, 57 A.D.2d 405, 394 N.Y.S.2d 885 the question presented is whether in a criminal contempt proceeding the Fourth Amendment requires suppression of a defendant's testimony before the Grand Jury as the fruit of an illegal wiretap. In the companion case, Matter of Mancini v. Codd, 57 A.D.2d 803, 395 N.Y.S.2d 3 the issue posed is whether, in a civil disciplinary proceeding in which a policeman is charged with perjury, the Fourth Amendment requires the suppression of his testimony before the Grand Jury, as well as the testimony of witnesses at the subsequent disciplinary hearing, as fruit of an illegal wiretap.

I

In determining whether, in a particular case, illegally obtained evidence and the fruits thereof must be suppressed, we are guided by the realization that the exclusionary rule functions as a judicially created tool for the effectuation of constitutionally guaranteed rights. (Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 49 L.Ed.2d 1067; United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561; Matter of Finn's Liq. Shop v. State Liq. Auth., 24 N.Y.2d 647, 653, 301 N.Y.S.2d 584, 586, 249 N.E.2d 440, 442, cert. den. 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91.) Formulated as a pragmatic response to law enforcement procedures violative of individual liberties, the exclusionary rule has never enjoyed the stature of an end in itself, but, rather, has served solely as a means to an end: a remedial device operating essentially upon a principle of deterrence. At no time has the exclusionary rule been construed as a personal remedial right of a party aggrieved by conduct violative of a constitutional right. (United States v. Calandra, 414 U.S., at p. 347, 94 S.Ct. 613, Supra.) Thus, we view the applicability of the exclusionary rule to the cases at bar as dependent upon a balancing of its probable deterrent effect against its detrimental impact upon the truth-finding process.

While the applicability of the exclusionary rule to administrative as well as criminal proceedings in New York can no longer be disputed (see Matter of Finn's Liq. Shop v. State Liq. Auth., 24 N.Y.2d 647, 301 N.Y.S.2d 584, 249 N.E.2d 440, Supra ; Matter of McPherson v. New York City Housing Auth., 47 A.D.2d 828, 365 N.Y.S.2d 862, see, also, CPLR 4506), we note that the Supreme Court has acknowledged the inapplicability of the exclusionary rule to preclude the "use of illegally seized evidence in all proceedings or against all persons." (United States v. Calandra, 414 U.S., at p. 348, 94 S.Ct. at p. 620, Supra.) Employing a balancing approach, the court has declined to apply the exclusionary rule in those areas where the ultimate effectuation of its remedial objectives is only tenuously demonstrable. For example, although a defendant's incriminating statements elicited by the police in violation of Miranda v. Arizona, 384 U.S. 436, 96 S.Ct. 1602, 16 L.Ed.2d 694 cannot be used by the prosecution as evidence-in-chief, they may be used to impeach his credibility if he decides to take the stand and testify. Once a defendant voluntarily takes the stand, he has an obligation to testify truthfully. As Chief Justice Burger cogently stated: "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." (Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1.) In such a case, any deterrent effect which application of the exclusionary rule may work upon police conduct is furnished by the exclusion of the defendant's incriminating statement from the prosecution's evidence-in-chief. To hypothesize that exclusion of these statements for impeachment purposes provides an additional meaningful deterrent to proscribed police conduct assumes too much. (Id., at p. 225, 91 S.Ct. 643; Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570; Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503; People v. Rothschild, 35 N.Y.2d 355, 361 N.Y.S.2d 901, 320 N.E.2d 639; see, also, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, Supra (deterrent effect of exclusionary rule too insubstantial to permit consideration of search-and-seizure claim on petition for habeas corpus review of State conviction); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561, Supra (deterrent effect of exclusionary rule too insubstantial to apply to proceedings before the Grand Jury); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (deterrent effect of exclusionary rule too insubstantial to afford standing to challenge search-and-seizure beyond those whose rights were violated by the search-and-seizure).)

In a similar vein, the court has recently refused to apply the exclusionary rule to preclude the use of evidence obtained illegally by a State Police officer in a Federal civil tax proceeding (United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046), reasoning that the exclusion of such evidence in both State and Federal criminal proceedings furnished a sufficient deterrent effect, rendering insubstantial any additional deterrent effect flowing from exclusion of the evidence in the Federal civil proceeding. (Id., at p. 448, 96 S.Ct. 3021.) With this background in mind, we proceed to an analysis of the merits of the instant appeals.

II

In People v. McGrath, the defendant was called to testify before the New York County Grand Jury, which included within the scope of its investigation an alleged conspiracy between individuals by the names of Hugh Mulligan and Thomas Callahan to murder a witness in a Federal robbery prosecution against Callahan. After having been granted transactional immunity, the defendant inquired whether any questions to be asked of him would be based upon information obtained through electronic surveillance. When informed by the Assistant District Attorney that some of the questions asked might be based upon such information, the defendant declined to answer any questions until the legality of the electronic surveillance was determined by a Judge.

Upon appearing before the Presiding Justice, the defendant maintained that he was entitled to a full suppression hearing to determine the legality of the surveillance. While the court refused to conduct a full hearing, it did examine the eavesdropping orders, concluding that they were facially valid and directing the defendant to return to the Grand Jury and answer all proper questions.

Although the defendant complied with this order, he answered all questions "under protest". On the basis of his testimony before the Grand Jury, the defendant was indicted and charged with two counts of criminal contempt in the first degree. (Penal Law, § 215.51.) The indictment alleged that the defendant's answers were evasive, equivocal and patently false, such that they amounted to no answers at all.

Prior to trial, the second count of the indictment was dismissed for legal insufficiency in that the defendant's answers supporting that count were not considered sufficiently evasive and equivocal to constitute criminal contempt. As to the first count, although the court, upon the defendant's motion to suppress, held the eavesdropping orders legally defective, * it nonetheless refused to suppress the defendant's testimony given in response to questions based upon information derived through the wiretap, viewing the defendant's testimony as an independent act calculated to obstruct the investigation of the murder conspiracy conducted by the Grand Jury, rather than as fruit of the illegal surveillance.

At the conclusion of the defendant's trial, the jury returned a verdict finding him guilty of criminal contempt. The Appellate Division reversed and dismissed the indictment, however, concluding that the defendant's Grand Jury testimony constituted fruit of the illegal wiretap and, therefore, should have been suppressed. The People now appeal to this court. There should be a reversal.

III

In Matter of Mancini v. Codd, the police, during the course of a narcotics investigation, placed a wiretap upon the telephone of Sylvestro Nanfro, respondent Ugo Mancini's cousin, through which they overheard conversations participated in by respondent indicating that the latter was involved in loansharking and bookmaking operations. Based upon the information obtained through the wiretap, the District Attorney subpoenaed respondent and a fellow policeman, Joseph Cembrale, to testify before the Bronx County Grand Jury.

Upon appearing before the Grand Jury, respondent was asked whether he knew Cembrale, to which he responded by inquiring whether he, Mancini, was the target of the police investigation. The District Attorney informed respondent that his role before the Grand Jury was one of a witness, rather than a target of the investigation....

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