People v. Paperno

• Decision Date: 27 October 1980
• Citation: 432 N.Y.S.2d 499,77 A.D.2d 137
• Parties: The PEOPLE, etc., Respondent, v. Lloyd PAPERNO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 499

432 N.Y.S.2d 499

77 A.D.2d 137

The PEOPLE, etc., Respondent, v. Lloyd PAPERNO, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 27, 1980.

Hoffman, Pollok, Mass & Gasthalter, New York City (John Pollok and Edward Gasthalter, New York City, of counsel), for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Austin V. Campriello and Robert M. Pitler, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, O'CONNOR and WEINSTEIN, JJ.

PER CURIAM.

In May, 1977 Abram Brown, a law assistant employed by the Supreme Court of the State of New York, New York County, was arrested and charged with bribe receiving in the second degree. Shortly thereafter, a New York County Grand Jury commenced an investigation to determine whether public servants had accepted illegal payments of money to influence litigation in the civil term of the Supreme Court. The Grand Jury's inquiry concerned the commission of the crimes of grand larceny by extortion, bribery, bribe receiving, rewarding official misconduct, receiving reward for official misconduct, official misconduct, giving unlawful gratuities, receiving unlawful gratuities, conspiracy and perjury.

The defendant, Lloyd Paperno, was an attorney who, for some 15 years, was employed by the Supreme Court of the State of New York in New York County, first as a law assistant and later as a special referee. On November 30, and December 13 and 14, 1977, the defendant was called to testify before the Grand Jury under a grant of immunity. Before being questioned, the nature of the Grand Jury's inquiry was explained to defendant, the crimes under investigation were listed, and defendant was told that the Grand Jury wanted to find out whether court employees had solicited or accepted benefits in return for influencing litigation and if they had tried to obtain money from lawyers by threatening to damage the lawyers' practices if moneys were not paid. In addition, the Grand Jury sought to ascertain the identities of any persons who had offered benefits to, or conferred benefits upon, court employees to influence litigation.

Defendant had known Abram Brown since defendant first started working in the court. Brown had trained defendant and they shared an office for two years. Assistant District Attorney Anthony J. Ferrara told defendant that the Grand Jury had already heard testimony about Brown's activities and that it wished to know whether Brown had asked judges or other employees of the court to give favorable treatment to certain litigants or employees.

One segment of the questioning of defendant before the Grand Jury sought to ascertain whether defendant and/or Brown had been offered, or had solicited, a payment of money from an attorney named Edward Stahl in return for arranging a favorable decision on a motion and cross motion which had been submitted to a Justice of the Supreme Court in a lawsuit in which Stahl was a defendant. Defendant was asked a number of questions which dealt with conversations he had held with Brown or Stahl in early March, 1977. Tape recordings of conversations between Brown and defendant, which had been obtained as a result of court ordered electronic surveillance, were played for defendant and he was questioned as to the meaning of several passages in these tapes. Defendant testified that he could not recall whether he had ever told Brown that if he drafted an opinion favorable to Stahl, the latter would pay Brown money. Defendant could not recall whether he had ever told Stahl that his contact, Brown, had arranged for a favorable determination of the motion and cross motion in question. He had no recollection of telling Stahl that because of his efforts at the courthouse, Stahl was going to "win" on the motion and cross motion. Defendant could not recall whether he had ever told Stahl that he could arrange a favorable decision if Stahl would agree to pay money to the person who drafted the decision for the court. He could not recall whether he had told Brown that if the case were settled he would get an extra payment of money from Stahl.

On February 15, 1978 the Grand Jury returned an indictment charging defendant with eight counts of criminal contempt in the first degree in that he was alleged to have contumaciously and unlawfully refused to answer legal and proper interrogatories by giving "equivocal, evasive, conspicuously unbelievable and patently false testimony". The first count of the indictment was dismissed by the court prior to trial.

The remaining seven counts of the indictment were thereafter moved for trial in the Supreme Court, New York County, before Mr. Justice HAROLD J. ROTHWAX and a jury. At the outset, defendant moved to recuse Assistant District Attorney Anthony Ferrara who had been assigned to try the case. Ferrara had been the chief interrogator of the defendant before the Grand Jury. The reasons behind the motion to disqualify Ferrara were connected with the proposed line of defense. It was defendant's position that his equivocal answers were not intentionally contumacious because they were engendered by a superabundance of caution founded upon the fear that the prosecution was set upon "trapping" him into a contempt or perjury indictment.

Defendant claimed that he believed that he was a target of the investigation which revolved around the activities of Abram Brown. In the summer of 1977 he learned that his bank records had been subpoenaed by the Grand Jury. Stahl had been called to testify before the Grand Jury and in a conversation with defendant before the latter's own appearance, Stahl told defendant of the hostility of the prosecutors and of the relentless and difficult nature of the examination. Sheldon May, the attorney who accompanied defendant to the Grand Jury, advised him that if he was not 100% certain of an answer to respond "I don't recall". Defendant testified that once in the "pit" of the Grand Jury room he felt isolated, confused and intimidated and that during the course of his interrogation, the prosecutor asked questions in rapid succession and his tone often became loud, insistent, hostile and sometimes nasty and threatening. Ferrara treated him abusively and threw rapid fire questions at him without giving him adequate time to answer, told him to stop taking notes which he needed to avoid becoming confused and required defendant to give "yes" or "no" answers without allowing an explanation. Many of the questions dealt with conversations between defendant and Brown or defendant and Stahl which had occurred some nine months before his Grand Jury appearance. Defendant claimed that his memory of these conversations was dim and that because of the hostile nature of the examination he had cautiously stated that he could not recall so as to avoid a misstep that might provide the prosecutor with an excuse to indict him for perjury.

Within the context of this defense, defendant's perception of the actions and motivation of Assistant District Attorney Ferrara became relevant as to his state of mind, causing him to be extremely cautious in giving the answers he did before the Grand Jury for fear that Ferrara was trying to "trap" and "sandbag" him. Defendant's motion to disqualify Ferrara from acting as the prosecutor at trial was based upon two grounds. First, defendant said that he intended to call Ferrara as a witness on the subject of his hostility, tone of voice and framing of questions. Second, defense counsel argued:

"Mr. Fererra (sic) is going to select a jury. Mr. Fererra (sic) is going to open to a jury. Mr. Fererra's (sic) conduct inside the Grand Jury is going to be placed as a question for this jury to evaluate.

"Now to see him as a prosecutor is unfair to the rights of a defendant, for a fair trial."

The court denied the motion, holding, inter alia, that the way in which Ferrara framed his questions was a matter of record found in the Grand Jury minutes, that proof of Ferrara's tone of voice and apparent hostility could better be proved by calling individual Grand Jurors who witnessed defendant's interrogation, and that Ferrara's testimony would presumably be that he was not hostile to defendant.

One of the major pieces of evidence in the trial was the record of the proceedings before the Grand Jury. This matter had to be conveyed to the jurors in some manner and the prosecution proposed to read it into the record with Ferrara reading the questions he had asked and another prosecutor reading the answers. Defense counsel vigorously objected to this procedure, contending that the transcript should be read by two neutral court reporters because a reading by Ferrara would "enhance" his credibility before the jury and permit him to emphasize portions of the transcript by his tone of voice. The court overruled the objection stating in part that "the danger of a District Attorney becoming an advocate * * * seems to me not substantial. So long as he reads the matter properly and neutrally and clearly, it seems to me it is appropriate he reads in that fashion." When he took the stand later in the trial, defendant testified that Ferrara's manner, tone, and speed of questioning were different before the Grand Jury than they were in his rereading before the court.

In summation defendant's counsel argued that Assistant District Attorney Ferrara and his fellow Assistant District Attorney, Wilson, had worked for months and had spent a good deal of money upon the investigation of the bribery of Abram Brown, who died in October, 1977 prior to defendant's appearances before the Grand Jury. Counsel suggested that when Brown died these prosecutors sought to justify their expenditure of time and money by "get(ting) somebody else," namely Paperno. They were not only prosecutors, they were also protagonists who were out to "get", "trap", "trick", and "sandbag" Paperno and so they "contrived" this case. Counsel further suggested that it was unfair...