People v. Perri
| Decision Date | 14 January 1980 |
| Parties | The PEOPLE, etc., Appellant, v. Joseph PERRI, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Brooklyn (Lionel Rene Saporta, Asst. Dist. Atty., Brooklyn, of counsel), for appellant.
Rhodes & Fisher, Brooklyn (Barry Gene Rhodes, Brooklyn, of counsel), for respondent.
HOPKINS, J. P., and LAZER, MARGETT and O'CONNOR, JJ.
In a case of novel impression, the question is whether Criminal Term erred in finding that the involuntary production by the defendant of handwriting exemplars, before the Grand Jury pursuant to a subpoena Ad testificandum, was sufficient to inadvertently confer immunity pursuant to CPL 190.40.
The genesis of this appeal lies in the power blackout of July, 1977, and the consequent looting of numerous Brooklyn businesses. Because of the financial devastation suffered by some merchants, the Economic Development Administration of the City of New York made funds available to those businesses which had been ransacked. Some of the claims for assistance proved to be fraudulent, and in the autumn of 1977, the District Attorney's office commenced the investigation of various suspicious claims. Among those under investigation were claims made by the defendant-respondent Joseph Perri.
On October 20, 1977 defendant was telephoned and asked to appear for questioning at the office of the District Attorney, Kings County. Defendant complied and, after being informed of his constitutional rights, he was told that he was the target of an investigation into fraudulent applications for emergency aid allegedly made with respect to three Brooklyn laundromats. On the advice of his counsel, who was present, he refused to make a statement.
At this time defense counsel was informed that the investigation had reached a stage where submission to the Grand Jury would be appropriate unless the information already gathered was contradicted by some new evidence. The defense offered to present exculpatory evidence and requested an opportunity to appear before the Grand Jury.
At a January 4, 1978 meeting between defense counsel and a representative of the District Attorney's office, the defense proffered nine addresses of witnesses who would offer evidence of an "exculpatory" nature. The People attempted to contact and interview the witnesses in question. Of these, at least two were unavailable, and at least one appeared to be actively avoiding the District Attorney's detective. Four were interviewed and stated that they saw nothing on the night of the blackout and that they were not aware of any damage sustained by respondent's property.
Only one, an employee of a lumber yard situated near one of respondent's properties, gave exculpatory testimony to the effect that an employee of the defendant purchased plywood to board up a window which was not broken prior to the blackout. That witness' testimony was, immediately upon its discovery, submitted to the Grand Jury, which was instructed that the testimony was exculpatory in nature and in possible contradiction of the testimony of other witnesses.
At the January 4, 1978 meeting, the prosecution also requested that Perri voluntarily provide a handwriting exemplar. Defendant refused "to cooperate further." In response, the District Attorney moved, by order to show cause returnable January 17, 1978, to require defendant to provide exemplars of his handwriting.
In the District Attorney's supporting affirmation, it was alleged that "(t)he purpose of requiring a handwriting exemplar is to determine whether Joseph Perri did in fact sign an application * * * which requested aid for businesses owned by Joseph Perri". However, in opposition, defense counsel indicated that the prosecutor "was given names of witnesses who could substantiate that the laundromats had been entered and damaged on the night of the blackout" and that the prosecutor had failed to provide probable cause for the handwriting exemplars. By order dated January 25, 1978, Criminal Term denied the District Attorney's application without prejudice to renewal upon a proper showing of, Inter alia, probable cause to believe a crime was committed by defendant. Instead of resubmitting its motion, the prosecution opted to present its evidence to the Grand Jury. Defendant was offered the opportunity of appearing before the Grand Jury, but he withdrew his previous request in writing. Nevertheless, defendant was served with a subpoena Ad testificandum, directing him to appear before the Grand Jury.
On February 14, 1978 Perri appeared at the Grand Jury accompanied by counsel. At that time, the District Attorney stated that defendant would only be asked to provide exemplars of his handwriting. Defendant was also informed that he would not receive immunity by virtue of merely supplying such handwriting exemplars.
In the Grand Jury room, the Assistant District Attorney presenting the case again advised defendant that he would not be asked to give testimony, but only to provide "examples of (his) handwriting." Respondent agreed that he had neither waived immunity nor been asked to do so. He further admitted having discussed the issue of immunity with his attorney. After defendant was informed of the scope of the Grand Jury's inquiry and the transactions it was investigating, he was asked to, and did, write his name on 20 index cards. Defendant was then excused.
At the close of the Grand Jury investigation, Joseph Perri was indicted, by instrument dated February 27, 1978, for: (a) attempted grand larceny in the second degree (three counts); (b) offering a false instrument for filing in the first degree (three counts); and (c) making a punishable false written statement (three counts). He was arraigned on March 1, 1978, the factual accusation being that he had falsely claimed more than $100,000 in looter damage with respect to three different locations.
On April 18, 1978 defendant moved to dismiss the indictment against him on the ground that he had received immunity before the Grand Jury. On August 25, 1978 a decision granting the defense motion was rendered.
Criminal Term construed sections 50.10 and 190.40 of the CPL as bestowing immunity upon a Grand Jury witness who furnishes "physical evidence" in the form of a handwriting exemplar. According to Criminal Term, by virtue of "the cavalier feat of compelling a target witness to furnish handwriting exemplars before a Grand Jury", the prosecutor had inadvertently triggered the immunity statute (People v. Perri, 95 Misc.2d 767, 776, 408 N.Y.S.2d 709, 715). Criminal Term found its conclusion to be further strengthened by the 1975 amendment to CPL 190.40, whereby a new paragraph (c) of subdivision 2 was added with respect to the production of books, records and documents before the Grand Jury (95 Misc.2d at p. 774, 408 N.Y.S.2d at p. 714). An order dismissing the indictment was entered on October 4, 1978. The People appeal from said order.
We affirm and hold that the motion was properly granted. CPL 50.10 (subd. 1) grants immunity with respect to "any transaction, matter or thing concerning which (a person gives) evidence" before a Grand Jury. CPL 50.10 (subd. 3) defines "give(s) evidence" as testimony or the production of physical evidence. CPL 190.35 makes the definitions in section 50.10 applicable to section 190.40. CPL 190.40 (subd. 2) provides generally (with three exceptions) that "(a) witness who gives evidence in a grand jury proceeding receives immunity". The three exceptions are: (1) where the witness has effectively waived immunity (CPL 190.40, subd. 2, par. (a)); (2) where the evidence given is not responsive to any inquiry and is gratuitously volunteered with knowledge that it is not responsive (CPL 190.40, subd. 2, par. (b)); and (3) where the evidence "consists only of books, papers, records or other physical evidence of an enterprise * * * the production of which is required by a subpoena duces tecum" (CPL 190.40, subd. 2, par. (c)).
At bar, the furnishing of handwriting exemplars constituted the giving of physical evidence. None of the three exceptions contained in CPL 190.40 (subd. 2) apply in this case. There is no merit to the People's contention that the legislative history connected with the enactment of CPL 190.40 (subd. 2, par. (c)) in 1975 evinces an intent on the Legislature's part to grant immunity only in those cases where the witness possesses a privilege "co-extensive" with the Fifth Amendment. The Memorandum of the State Executive Department (McKinney's Session Laws of N.Y., 1975, p. 1650) states the following:
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