People v. Pardo
| Citation | 92 Misc.2d 985,401 N.Y.S.2d 981 |
| Parties | PEOPLE of the State of New York v. Ralph PARDO, Defendant. PEOPLE of the State of New York v. Ralph PARDO and Arthur Rambert, Defendants. |
| Decision Date | 01 February 1978 |
| Court | United States State Supreme Court (New York) |
Mario Merola, Dist. Atty., Bronx County by Frederick A. Kerstein, Asst. Dist. Atty., for plaintiff.
Solomon H. Kaplan, New York City, for defendant, Ralph Pardo.
On June 21, 1977, the defendant Ralph Pardo testified under subpoena before the extraordinary and special grand jury of the County of Bronx. Almost three months prior thereto, he had been indicted together with another by the regular Bronx County grand jury charging him in each indictment with one count of promoting gambling in the first degree and a second count of possession of gambling records in the first degree.
Both indictments were filed on March 28, 1977. Indictment # 700/77 concerned an arrest on December 13, 1976. Indictment # 701/77 dealt with a January 10, 1977 arrest.
The defendant Pardo did not execute a waiver of immunity before his testimony on June 21, 1977, nor is it alleged that he made such waiver. As a matter of fact, the Assistant Attorney General representing the office of Special State Prosecutor advised Pardo that by giving testimony before that grand jury, he would automatically receive transactional immunity. The full meaning and import of transactional immunity was explained to him. The defendant then stated that he understood its meaning.
The following questions were then asked of Pardo and he made the following answers:
"Q. Mr. Pardo, how are you employed, sir?
A. Well right now, I gamble.
Q. What do you mean by you gamble? You bet?
A. Collect numbers.
Q. You collect numbers.
A. Right.
Q. Are you self-employed or do you work for someone?
A. Well, I would say self-employed.
Q. And where do you work out of?
A. Well, out of 156 Street, 835 E. 156 Street."
The defendant Pardo now moves for dismissal of the indictments on the ground that under the provisions of CPL § 50.10 and § 190.40, he is cloaked with immunity and can no longer be prosecuted on the indictments herein. He cites People v. McFarlan, 42 N.Y.2d 896, 397 N.Y.S.2d 1003, 366 N.E.2d 1357, as authority. McFarlan has a similar fact pattern. The defendant had been subpoenaed before a grand jury investigating two homicides which occurred between December 4th and 6th of 1974. She had been previously indicted by a New York County grand jury on October 28, 1974 for sale of a controlled substance, totally unrelated to the homicide inquiry. The Assistant District Attorney advised her that questioning would be limited to her knowledge of events on December 4, 5, and 6, and also about her knowledge and relationship with one Freddy Peebles on those days. She was then asked the following questions and gave the following answers:
"Q. What is your occupation?
A. I do not work at all.
Q. How long as it been since you've worked?
A. I never had a job before.
Q. How were you supported?
A. I well, I sold drugs in the past.
Q. How were you supported during November and December of 1974? (Emphasis added).
A. Well, when I got busted on June 4th.
Q. Now, I am not talking about June 4th, I asked you how have you been supported during, etc. etc.?"
The defendant, based on this testimony, moved to dismiss the indictment relating to the sale of the controlled substance on the same immunity theory as Pardo does. The trial court granted the motion. The Appellate Division unanimously reversed (52 A.D.2d 112, 383 N.Y.S.2d 4) on two theories.
The first was based on § 190.40, subd. 2 CPL, which provides that immunity does not apply if the evidence given "is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive." They found that her answers were carefully parsed if not deliberately manipulative. Secondly, they found that her statement, that she was "busted", could not have been deemed self-incriminatory, because an arrest or an indictment is a matter of public record. (See People ex rel. Lewisohn v. Court of General Sessions, 96 App.Div. 201, 89 N.Y.S. 364).
But the gravamen of their decision was that Section 50.10 CPL applies only when a defendant's admission of illegal activity specifically relates to the crime charged. The Court of Appeals reversed and reinstated the dismissal of the indictment on the opinion of the trial judge. In doing so, they chose to adopt his conclusion that her answer did indeed concern and pertain to or tended to show, prove or incriminate her for the sale and possession of drugs on June 4, 1974. The trial judge found that her statements substantially concerned the transaction for which she was indicted and practically constituted a confession to the commission of the crimes for which she was indicted, and that, accordingly, she was entitled to...
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