People v. Riela

• Decision Date: 31 December 1959
• Citation: 9 A.D.2d 481,195 N.Y.S.2d 558
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony Peter RIELA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 558

195 N.Y.S.2d 558

9 A.D.2d 481

The PEOPLE of the State of New York, Respondent, v. Anthony Peter RIELA, Defendant-Appellant.

Supreme Court, Appellate Division, Third Department.

Dec. 31, 1959.

Louis Mansdorf, New York City, for defendant-appellant.

George Boldman, Dist. Atty. of Tioga County, Owego, Eliot H. Lumbard, Chief Counsel, Carl A. Vergari and Joseph Fisch, Asst. Counsel, New York State Commission of Investigation, New York City, for respondent.

Before BERGAN, J. P., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

COON, Justice.

The defendant Riela was one of sixty-two or more men who gathered at the home of Joseph Barbara, Sr., at Apalachin, Tioga County, N. Y., on November 14, 1957, at what is now commonly known as the 'Apalachin meeting'. Thereafter a duly impaneled Grand Jury of Tioga County initiated an investigation to determine whether or not any crime or crimes had been committed or planned at the meeting, and particularly whether the crimes of conspiracy, bribery of public officials or violation of section 340 of the General Business Law, had been committed in Tioga County. Since Riela lived in New Jersey a certificate was issued, pursuant to section 618-a of the Code of Criminal Procedure, stating that Riela was a 'material and necessary' witness in the investigation; a hearing was held thereon in the Superior Court of New Jersey, Essex County, and a subpoena-order issued directing Riela's appearance before the Tioga County Grand Jury.

Upon his appearance before that Grand Jury seventeen questions relevant to the inquiry were propounded to him, and he asserted his privilege of self incrimination under the Fifth Amendment to each of the questions propounded. Thereupon, at the request of the District Attorney of Tioga County, the Grand Jury voted to confer and did confer immunity, pursuant to section 2447 of the Penal Law. Riela was fully informed of the meaning and scope of the immunity granted and warned that failure to answer thereafter might result in a charge of contempt. He was given the privilege from time to time of consulting with his counsel. Each of the seventeen questions was again asked, and in each instance the privilege against self incrimination was asserted and an answer refused. The foreman of the Grand Jury thereupon specifically ordered Riela to answer each question, one by one, and in each instance he refused. The Grand Jury thereupon indicted him for criminal contempt under section 600, subdivision 6, of the Penal Law. The indictment contained seventeen counts, each representing the refusal to answer one of the seventeen questions which Riela refused to answer. A jury trial was waived, and the trial court found Riela guilty upon all seventeen counts and he was sentenced to sixty days in jail upon each count, the sentences to run concurrently, and a fine of $250 was imposed upon each count.

Among other things appellant contends that he was given no opportunity to establish whether or not he was a material witness who could be properly summoned under the provisions of section 618 of the Code of Criminal Procedure. The summoning court certified that Riela's testimony was material, together with a recital of the facts upon which the materiality was based, and thus the materiality was at least prima facie established. The New Jersey court was not bound to order the appearance of Riela if it could be shown that his appearance was not material to the investigation, and when he was brought before the New Jersey court was the time to try out that question. Moreover, the trial for contempt itself provided a full hearing upon that question, and the requirements of due process have been met.

Appellant argues that only the presiding Judge could order the defendant to answer, and that the violation of an order by the Grand Jury, or the foreman of the Grand Jury, to answer, does not constitute criminal contempt. The Grand Jury is an arm of the court, and once it has a witness before it, is expressly authorized by statute to grant immunity and to make an order that the witness answer. The first sentence of section 2447, subdivision 1, of the Penal Law, reads: 'In any investigation or proceeding where, by express provision of statute, a competent authority is authorized to confer immunity, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and, notwithstanding such refusal, an order is made by such competent authority that such person answer the question or produce the evidence, such person shall comply with the order.' (Emphasis supplied.) Subdivision 3 of section 2447 defines 'competent authority' to include: '(c) The grand jury before which a person is called to answer questions or produce evidence, when such grand jury is expressly requested by the prosecuting attorney to order such person to give answer or produce evidence;'.

The only purpose of taking a witness who asserts self incrimination before the judge is for a determination of the question of whether the claim of privilege is justified or not. Where the grand jury is expressly authorized to confer immunity and immunity as broad as the privilege is conferred, the immunity replaces the asserted privilege and there is no necessity for an appearance before the judge. Witnesses (participants in the same Apalachin meeting) have been properly held in contempt for refusal to answer upon the order of the Commission of Investigation of the State of New York under section 2447 of the Penal Law without any court direction to answer. Commission of Investigation of State by Lane v. Lombardozzi, 7 A.D.2d 48, 180 N.Y.S.2d 496, certiorari denied Mancuso v. Comm. of Investigation, 361 U.S. 10, 80 S.Ct. 59, 4 L.Ed.2d 50, affirmed 5 N.Y.2d 1026, 185 N.Y.S.2d 550. Appellant cites People v. Breslin, 306 N.Y. 294, 118 N.E.2d 108; Knapp v. Schweitzer, 2 N.Y.2d 913, 161 N.Y.S.2d 437, and Spector v. Allen, 281 N.Y. 251, 22 N.E.2d 360. In the Breslin case, while the court observed in passing that the witness had been directed to answer by the court, that question was not an issue in the case, and section 2447 of the Penal Law was not in that case at all. In the Knapp case, while the court issued the direction, whether such was a necessity or not was not an issue. In the Spector case it was simply held that a grand jury foreman had no authority to issue a 'mandate' within the meaning of section 750 of...