People v. Mulligan

• Decision Date: 07 July 1971
• Citation: 272 N.E.2d 62,323 N.Y.S.2d 681,29 N.Y.2d 20
• Parties: , 272 N.E.2d 62 The PEOPLE of the State of New York, Appellant, v. Hugh MULLIGAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 681

323 N.Y.S.2d 681

29 N.Y.2d 20, 272 N.E.2d 62

The PEOPLE of the State of New York, Appellant, v. Hugh MULLIGAN, Respondent.

Court of Appeals of New York.

July 7, 1971.

Frank S. Hogan, Dist. Atty. (Lewis R. Friedman and Michael R. Juviler, New York City, of counsel), for appellant.

Herald Price Fahringer, Jr., Philip B. Abramowitz and Lawrence A. Schulz, Buffalo, for respondent.

FULD, Chief Judge.

The defendant Hugh Mulligan was indicted for the crime of criminal contempt (Penal Law, § 215.51) Consol.Laws, c. 40, following his refusal to answer questions, during the course of an investigation by a grand jury, after being advised that the jury had voted to confer immunity upon him. The courts below dismissed the indictment on the ground that he had been granted testimonial rather than transactional immunity.

The law on the subject, clear in principle, was most recently articulated in People v. Masiello, 28 N.Y.2d 287, 321 N.Y.S.2d 577, 270 N.E.2d 305. Declaring that 'Fundamental fairness (not only) required * * * that the witness be advised that he has been granted immunity in displacement of the privilege against self incrimination * * * (but) also suggests that (he) * * * should not be misadvised concerning the scope of immunity if the grant of immunity has been amplified or explained in any way', the court held that the defendant Masiello had not received 'full and fair notice' that he was being granted transactional immunity and would not be prosecuted 'concerning any transaction about which he might be questioned' (28 N.Y.2d, at p. 291, 321 N.Y.S.2d, at p. 581, 270 N.E.2d, at p. 308).

Here, Mulligan was indisputably granted the transactional immunity provided for by section 619--c of the Code of Criminal Procedure (see, e.g., People v. Chestnut, 26 N.Y.2d 481, 485, n. 2, 311 N.Y.S.2d 853, 855, 260 N.E.2d 501, 503), and just as clearly, he was fully advised of the breadth of such immunity. Immediately after he took the stand in the grand jury room, even before he was sworn, Mulligan was informed by an Assistant District Attorney that he was being called 'exclusively in the role of a witness' and unequivocally told that 'this Grand Jury has voted to confer immunity upon you, should you assert your privilege against self-incrimination'. Then, after he had claimed his privilege and refused to testify, he was informed, on several occasions, that 'you can no longer incriminate yourself'; that '(y)our answer to the question will in no way incriminate you because you have been receiving immunity'; and that 'you will be getting immunity from prosecution for whatever crimes your testimony may disclose'. ¹

The prosecutor in the case before us did not, it is true, employ the language of the immunity statute (Code Crim.Proc., § 619--c, subd. 2) or use the term 'transactional immunity' or even 'transaction'. However, we perceive no need for such explicitness as long as the thought itself is expressed, as long as it is brought home to the witness that he has been accorded full and complete immunity and cannot thereafter be prosecuted. It is our conclusion that the District Attorney's statements in this case, considered reasonably and in context, adequately assured Mulligan that he had been granted such an immunity, an immunity which would protect him from prosecution for any and all crimes which might be 'revealed by (his) testimony' or to which his 'testimony might relate'. (Matter of Gold v. Menna, 25 N.Y.2d 475, 481--482, 307 N.Y.S.2d 33, 37--39, 255 N.E.2d 235, 238--239; see, also, Matter of Second Additional Grand Jury of County of Kings (Cioffi), 8 N.Y.2d 220, 224, 203 N.Y.S.2d 841, 843, 168 N.E.2d 663, 664; People v. Riela, 7 N.Y.2d 571, 200 N.Y.S.2d 43, 166 N.E.2d 840; People v. Breslin, 306 N.Y. 294, 118 N.E.2d 108; People v. Brayer, 6 A.D.2d 437, 439, 179 N.Y.S.2d 248, 250.) Since, then, the immunity conferred upon Mulligan was as broad as the constitutional privilege against self incrimination, he could not assert that privilege and refuse to testify. ² It follows, therefore, that there was ample warrant for the indictment charging him with contempt. It should not have been dismissed.

We find without merit the other points made by the defendant in support of his position that there should be an affirmance.

The contention that it was constitutionally impermissible for the grand jury, before which the contempt was assertedly committed, to indict him, was considered and rejected by our court in People v. Chestnut, 26 N.Y.2d 481, 311 N.Y.S.2d 853, 260 N.E.2d 501, Supra. There is not the slightest similarity between this case and In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, upon which the defendant relies. Murchison was a case in which a judge acted as a one-man grand jury and later tried for contempt witnesses who had refused to answer questions put to them by such 'judge-grand jury.' The Supreme Court held that, since the judge was part of the accusatory process he 'cannot be, in the nature of things, wholly disinterested in the conviction or acquittal of those accused' (349 U.S. at p. 137, 75 S.Ct. at p. 626). In the case before us, the grand jury which initiated the prosecution has no part in the trial and adjudicatory process.

As to the further contention that the indictment is 'duplicitous,' we need but note that, if the argument has merit, the result will be not dismissal of that indictment but, rather, a limitation on the quantum of punishment to be imposed if the defendant is convicted after trial. (See, e.g., People v. Chestnut, 26 N.Y.2d 481, 491--492, 311 N.Y.S.2d 853, 860--862, 260 N.E.2d 501, 507, Supra; People v. Riela, 7 N.Y.2d 571, 578, 200 N.Y.S.2d 43, 47, 166 N.E.2d 840, 843, Supra.)

The order appealed from should be reversed and the indictment reinstated.

BREITEL, Judge (dissenting).

As with the defendant in People v. Masiello, 28 N.Y.2d 287, 321 N.Y.S.2d 577, 270 N.E.2d 305 I have no doubt that the defendant in this case would have refused to testify even if granted full transactional immunity. In each case the defendant was advised by a competent lawyer and was not misled. Be that as it may, that it not the issue, as explained in the Masiello case, under requirements laid down in People v. De Feo, 308 N.Y. 595, 127 N.E.2d 592 and by the United States Supreme Court.

The Masiello case restated two old rules, and applied a third one. The first was that the immunity statutes were not self-executing, following the mandate of the De Feo case (supra) which reversed the Appellate Division for holding otherwise (see 284 App.Div. 622, 629--630, 131 N.Y.S.2d 806, 813--815). The second rule was that in granting immunity the prosecutor or granting authority must unequivocally advise the witness that 'he may not be prosecuted criminally concerning any transaction about which he might be questioned' (28 N.Y.2d, at p. 291, 321 N.Y.S.2d, at p. 581, 270 N.E.2d, at p. 308). Repetitively, and also by italics, it was emphasized that these words of their unambiguous equivalent would suffice. A third rule required by the United States Supreme Court, and suggested in some New York cases, was that the state of mind of the witness was irrelevant.

With this preliminary it is necessary only to disclose from the record the advice or directions given to the defendant in this case when he was a witness before the Grand Jury. After refusing to testify, and the Grand Jury having voted to grant him immunity, defendant was instructed as follows:

'Q. Now you can no longer incriminate yourself. This Grand Jury is ready to confer immunity upon you, which means that, as your attorney undoubtedly explained to you, that whatever answers you may make to this question will immunize you from prosecution For whatever crime or crimes your answers might disclose. You can no longer incriminate yourself and therefore you are legally obligated to answer the question. Refusal to answer the question after having been offered immunity or being directed through the Grand Jury by the Foreman pursuant to the District Attorney's request might provide a basis for prosecution for the crime of criminal contempt.'

'Mr. Mulligan, you appreciate from that question put to you by Mr. Yasgur (one of the assistant district attorneys present before the grand jury) that this Grand Jury is extremely desirous of obtaining information or testimony from you concerning certain corrupt police officials. Your answer to the question will in no way incriminate you because you have been receiving immunity, should you answer the question. Do you still refuse to answer the question?'

'You appreciate your answer can no longer incriminate you because you will be getting Immunity from prosecution for whatever crimes your testimony may disclose? Do you still refuse to answer?' (Emphasis supplied.)

More was said but it was...