People v. Rao

• Decision Date: 25 February 1980
• Parties: The PEOPLE, etc., Respondent, v. Paul P. RAO, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 122

425 N.Y.S.2d 122

73 A.D.2d 88

The PEOPLE, etc., Respondent, v. Paul P. RAO, Jr., Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 25, 1980.

Saxe, Bacon & Bolan, P.C., New York City (Roy Cohn, Thomas A. Bolan, John F. Lang, Roy R. Kulcsar and Louis Biancone, New York City, of counsel), for appellant

Roderick C. Lankler, Deputy Atty. Gen., New York City (Thomas A. Duffy, Jr., Great Neck, and Vincent Torna, New York City, of counsel), for respondent.

Before MOLLEN, P. J., and TITONE, GIBBONS and COHALAN, JJ.

TITONE, Justice.

Defendant-appellant appeals from a judgment of conviction, after a jury trial, of the crime of perjury in the third degree (one count). However, on appeal, the conduct of the trial and the ensuing conviction are overshadowed by the highly questionable tactics employed by the then Special Prosecutor ^* to obtain a seven-count indictment This case has a long, involved and checkered history. In the latter part of 1974, the three defendants moved in this court to have the charges dismissed upon the grounds of prosecutorial misconduct. While all three accusatory instruments were sustained by a three to two vote, both the majority and the dissenters strongly condemned the tactics employed by the Special Prosecutor to obtain them (see Matter of Nigrone v. Murtagh, 46 A.D.2d 343, 362 N.Y.S.2d 513, affd. 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d 45). In the summer of 1976, this court by a four to one vote, reversed an order of the Extraordinary Special and Trial Term dismissing the indictments and reinstated them solely on the ground that the Special Prosecutor had not been given an opportunity to be heard on the issues considered by that court in arriving at its decision (People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441).

charging appellant, an attorney, with the crime of perjury in the first degree, and similar indictments against two other defendants. The indictments of the other defendants have previously been dismissed.

However, developments in the law which have evolved over the past few years, and additional information imparted to this court relating to this case, not only justify, but mandate, that we review the case from its inception and re-evaluate the validity of appellant's indictment. Amongst the pertinent developments in the law are the following statements contained in two decisions of the Court of Appeals, to wit: (a) the dismissal of defendant's appeal from this court's earlier determination sustaining the validity of his indictment (People v. Rao (decided with Matter of Nigrone v. Murtagh ), 36 N.Y.2d 421, 426, 369 N.Y.S.2d 75, 79, 330 N.E.2d 45, 47, supra, opn per BREITEL, Ch. J.); and (b) the affirmance of this court's determination reversing the conviction and dismissing the indictment of the defendant in People v. Tyler, 46 N.Y.2d 251, 258-259, 413 N.Y.S.2d 295, 299, 385 N.E.2d 1224, 1228.

(a) Matter of Nigrone

(People v. Rao ):

"Finally, no view is expressed on the issue raised by petitioner and relied upon in part by the dissenters at the Appellate Division that a perjury prosecution may not lie validly if the proceeding in which the perjury occurred was designed solely, and for no other valid purpose, than to produce the perjury. Such an issue, apart from anything else, would of necessity involve a question of fact not disposable on papers submitted on motion. In any event, the issue must be raised by defense in the criminal action and presumably would test the issue whether an oath was ever validly administered to petitioner in the proceeding in which he allegedly perjured himself." (Emphasis supplied.)

(b) People v. Tyler :

"The primary function of the Grand Jury is to uncover crimes and misconduct in public office for the purpose of prosecution (see N.Y. Const., art. I, § 6; CPL 190.65, 190.55). False testimony before the Grand Jury, then, especially by the holder of public office, is a grave matter affecting the public interest and the administration of justice. It is not properly a principal aim of the Grand Jury, however, to 'create' new crimes in the course of its proceedings. Thus, where a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie (see Brown v. United States, (8th Cir.) 245 F.2d 549, 554). Since no legitimate investigatory function is discernible in questioning designed primarily or solely to support a perjury prosecution against the witness, it cannot be said that the responsive testimony, albeit false, frustrates any authorized purpose of the Grand Jury." (Emphasis supplied.)

FACTS

A.

In the spring of 1973, the Special Prosecutor concocted a simulated robbery for the ostensible purpose of infiltrating the criminal justice system in Kings County. The scenario called for an undercover officer, one Stephen Wilkowski, who assumed the name of Stephen Vitale, to be arrested for the armed robbery of a businessman of approximately $8,200. A false felony complaint was lodged against Vitale. He was fingerprinted, arraigned, and bail was set at $10,000 by a Judge in Supreme Court, Criminal Term. The latter was unaware that the "crime" and ensuing proceedings were all a ruse. The Special Prosecutor's office also fabricated a false criminal record for Vitale which indicated that he had two prior arrests.

Thereafter, the Special Prosecutor directed Loretta Errico to contact appellant's father, Judge Paul P. Rao of the United States Customs Court. Mrs. Errico, who had been arrested for bribery, and who thereafter agreed to cooperate with the Special Prosecutor, was an old acquaintance of Judge Rao, but had not seen him in 40 years. She visited Judge Rao in his chambers on November 12, 1973. She urgently requested Judge Rao to help Vitale with respect to his trouble with the law. At the suggestion of the Special Prosecutor, she falsely told Judge Rao that Vitale was a son of two friends of hers. Although apparently unaware of the "Vitale" hoax, she was equipped with a concealed tape recorder by the Special Prosecutor's office for her visit to Judge Rao's office. (She was likewise so equipped on later occasions when she visited appellant at his law office.) Judge Rao referred her to his son, appellant Paul P. Rao, Jr., a practicing attorney.

The scenario then changed and the Special Prosecutor's efforts focused on appellant. Upon leaving Judge Rao's chambers, Mrs. Errico proceeded to appellant's law office and arranged to have Vitale meet him later that day. At the ensuing meeting appellant agreed to represent Vitale in the pending "robbery" case. Vitale was wired with a recorder both on that occasion and at subsequent meetings he had with appellant in connection with the matter.

On November 23, 1973 Vitale was indicted for robbery (two counts) and grand larceny (two counts) by a Kings County Grand Jury. The Grand Jury members and the Assistant District Attorney who presented the case were unaware of the contrived nature of the events unveiled at the proceeding. When Vitale failed to appear for arraignment on the indictment the cash bail posted by him was declared forfeit. Through appellant's efforts the forfeiture was revoked, the bail money was returned, new bail was fixed at a lesser amount than originally set and meaningful inquiry into whether the bail money was the proceeds of the manufactured robbery was avoided. The Supreme Court Justices before whom the bail issue was presented likewise did not know that the "Vitale" robbery case was a charade. Appellant withdrew from the case as Vitale's attorney in March, 1974. In doing so he at that time advised both the District Attorney's office and a Supreme Court Justice that Vitale was seeking to have the case "fixed."

In April, 1974 Judge Rao, appellant, and the latter's law partner or associate, Salvatore Nigrone, appeared before the Extraordinary Special Grand Jury, at the Special Prosecutor's request. At the time that body was purportedly investigating whether they had conspired with a Judge of the New York City Civil Court and others to bribe a Kings County Supreme Court Justice to influence the outcome of the Vitale case. Unlike the situation in the Kings County Grand Jury where that body was unaware of the bogus nature of the Vitale case, the Special Grand Jury was made aware it was a sham.

Each of the three defendants testified before the Special Grand Jury under a waiver of immunity. The undercover agent, Wilkowski (Vitale), and Mrs. Errico also testified. In addition, surreptitiously made tape recordings of conversations engaged in by all three defendants were placed in evidence.

In May, 1974, Judge Rao was indicted and charged with two counts of perjury, appellant was charged with seven counts of perjury, and Nigrone, with one count of perjury. In 1977 the indictments against Judge Rao and Nigrone were dismissed. No appeal was taken by the Special Prosecutor's office from either order of dismissal.

On August 12, 1977 the trial court (POLSKY, J.), dismissed the fourth count against appellant on the ground that the information giving rise to the alleged perjury was derived from the unlawful use of information obtained from an unsealed tape which had previously been suppressed. As a result counts five, six and seven were renumbered four, five and six, respectively. In addition, recital of facts in each of the remaining six counts pertaining to the "hook" conversation were deleted. Appellant was found guilty, after a jury trial, of perjury in the first degree under count four of the indictment. In that count appellant was charged with testifying falsely before the Extraordinary Grand Jury that he did not help Vitale in creating a "phony" story or defense in connection with the bogus robbery case. On March 22, 1978, the trial court reduced the verdict to perjury in the third...