People v. Paperno

• Court: United States State Supreme Court (New York)
• Citation: 413 N.Y.S.2d 975,98 Misc.2d 99
• Parties: The PEOPLE of the State of New York v. Lloyd I. PAPERNO, Defendant.
• Decision Date: 15 January 1979

Page 975

413 N.Y.S.2d 975 98 Misc.2d 99 The PEOPLE of the State of New York
v.
Lloyd I. PAPERNO, Defendant. Supreme Court, Trial Term, New York County, Part 35. Jan. 15, 1979.

Page 978

Robert M. Morgenthau, Dist. Atty., New York County, Harold J. Wilson, Anthony Ferrara, New York City, of counsel, for the People.

Arnold D. Roseman, New York City, for defendant.

HAROLD J. ROTHWAX, Judge:

The defendant, Lloyd Paperno, has been indicted, in eight counts, for criminal contempt in the first degree. The indictment alleges that the defendant gave evasive, equivocal, conspicuously unbelievable and patently false testimony in three appearances before the Sixth June 1977 Grand Jury. The defendant testified as an immunized witness. The grand jury was investigating allegations of official misconduct in the Supreme Court Civil Term, at 60 Centre Street.

The defendant has filed an omnibus motion to dismiss the indictment. He contends that the statute (Penal Law § 215.51) was not directed at contempt of the evasive sort. He maintains that the statute, as applied to evasive contempt, is unconstitutionally vague. He also asserts that the grand jury proceedings were marred by numerous prejudicial procedural and substantive errors.

Constitutionality of Penal Law § 215.51

The defendant was indicted under that section of the statute which declares:

"A person is guilty of criminal contempt in the first degree . . . when after having been sworn as a witness, before a grand jury, he refuses to answer any legal and proper interrogatory" (Penal Law § 215.51, L.1970, ch. 734).

The refusal to answer, which is punishable as criminal contempt, has never been limited to absolute silence, as the defendant contends. A witness's answers which are deliberately uninformative may be as contemptuous as silence (People v. Ianniello, 36 N.Y.2d 137, 142, 365 N.Y.S.2d 821, 824, 325 N.E.2d 146, 147 (1975); 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 (1959)). This has always been the law. Blackstone noted that among the acts punishable as criminal contempt at common law were "Those committed by witnesses: by making default when summoned, refusing to be sworn or examined, or Prevaricating in their evidence when sworn." The witness who "willfully and obstinately refuses to answer, or answers in an Evasive manner" was "clearly guilty" of contempt at common law (Blackstone's Commentaries, 2d Chase ed., pp. 993-994). (Emphasis added.)

This principle was codified in the earliest penal code of New York State, by the phrase "unlawful refusal to answer any legal and proper interrogatory" (2 Rev.Stat. ch. 278 § 10(5), L.1830; Code Civ.Proc., ch. 1 tit. 1 art. 2 § 8(5), L.1830). This phrase has been retained in every subsequent revision of the Penal Law (former Penal Code § 143(6), L.1881 ch. 676; former Penal Law § 600(6), L.1909; Penal Law §§ 215.50(4), 215.51 L.1970; see also Judiciary Law, § 750, subd. A(5)). These statutes have been applied with equal force to grand jury proceedings as well as to proceedings before a court or a petit jury (People v. Hackley, 24 N.Y. 74, 78 (1861); Henry Berg's Case, 16 Abb. Prac. (N.S.) 266 (1875); People ex rel. Phelps v. Fancher, 4 Thomp. & C. 468, 470 (1st Dept. 1874)).

There is no evidence that the legislature intended to modify a century and a half of statutory and case precedent when it enacted Penal Law section 215.51 in 1970. The legislative purpose in enacting this section was to conform the penal law to the new Criminal Procedure Law, by omitting reference to grants of immunity. The Criminal Procedure Law replaced the selective immunity

Page 979

provisions of the former Code of Criminal Procedure § 619d(2)) with an automatic grant of immunity by statute, for all grand jury witnesses (CPL 190.40(2), L.1970, ch. 996). Section 215.51 was derived from Penal Law § 215.50(4), which punished "(The) contumacious and unlawful refusal . . . (of) a witness in any court proceeding . . . to answer any legal and proper interrogatory," as a misdemeanor. The legislature elevated testimonial contempt of the grand jury to a felony, to dissuade those who might otherwise seek the benefit of automatic immunity without assisting the grand jury's investigation (see Governor's Memo of Approval, May 11, 1970).

Our courts have recently and expressly upheld the constitutionality of section 215.51, as applied to evasive contempt (People v. Gross, 58 A.D.2d 963, 397 N.Y.S.2d 188 (3d Dept. 1977)). The defendant bears a heavy burden when he seeks to rebut the statute's presumptive constitutionality (see, e. g., People v. Davis, 43 N.Y.2d 17, 30, 400 N.Y.S.2d 735, 741, 371 N.E.2d 456, 462 (1977)). Due process requires that a criminal statute meet two criteria of specificity. First, the statute must give "fair notice" to a person "of ordinary intelligence" that his conduct is proscribed (United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1953)). Second, the statute must avoid "resolution on an Ad hoc and subjective basis" of the cases that fall within it, by providing "explicit standards" for those who are charged with enforcing it (Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972); People v. Smith, 44 N.Y.2d 613, 407 N.Y.S.2d 462, 378 N.E.2d 1032). In applying these criteria, a court must read the challenged statute with the full content of previous judicial interpretation (United States v. Harriss, supra, 347 U.S. at 618, 74 S.Ct.).

It is clear that a witness's "primary duty" is " 'to speak the truth, the whole truth and nothing but the truth' touching the subject-matter" of his testimony (People ex rel. Jones v. Davidson, 35 Hun 471, 475 (1st Dept. 1885)). As Judge Learned Hand noted, in United States v. Appel, 211 F. 495 (1913):

"It is indeed impossible logically to distinguish between the case of a downright refusal to testify and that of evasion by obvious subterfuge and mere formal compliance."

In either case, the witness has not "discuss(ed) his knowledge of the subject under investigation" (People v. Hicks, 15 Bar. 153, 165 (Sup. Ct. N.Y. County 1853)), which is the plain meaning of the phrase "to answer" in a court of law.

In addition to the plain meaning of the statute, the defendant here received actual notice of his rights and duties as a witness. Prior to any questioning, the prosecutor explained to the defendant that he testified under a statutory grant of immunity (CPL 190.40(2); 50.10). The transactional immunity thus conferred was explained to the defendant correctly and in simple terms. The immunity was fully coextensive with the defendant's privilege against self-incrimination (Matter of Anonymous Attorneys, 41 N.Y.2d 506, 510, 393 N.Y.S.2d 961, 964, 362 N.E.2d 592, 595 (1977)). The defendant was further advised that his immunity did not extend to prosecution for perjury or contempt. The crimes of perjury and of contempt by silence and by evasion were clearly explained to the defendant. Examples were given. The defendant testified that he understood the scope of his immunity and his continued liability for perjury and contempt. These warnings were repeated periodically when the defendant seemed to equivocate (People v. Rappaport, 60 A.D.2d 565, ...