People v. De Salvo

• Decision Date: 15 March 1973
• Citation: 295 N.E.2d 750,32 N.Y.2d 12,343 N.Y.S.2d 65
• Parties: , 295 N.E.2d 750 The PEOPLE of the State of New York, Respondent, v. Vito De SALVO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 65

343 N.Y.S.2d 65

32 N.Y.2d 12, 295 N.E.2d 750

The PEOPLE of the State of New York, Respondent, v. Vito De SALVO, Appellant.

Court of Appeals of New York.

March 15, 1973.

Richard G. Lyon and Paul Chevigny, New York City, for appellant.

Mario Merola, Dist. Atty. (Daniel J. Sullivan, New York City, of counsel), for respondent.

BREITEL, Judge.

Defendant, convicted of criminal contempt (Penal Law, § 215.50) for refusal to answer questions before a Grand Jury despite having been granted transactional and testimonial immunity, appeals. He contends that the Grand Jury proceeding was entirely illegal because, concededly, he would not have been subpoenaed as a witness before it except for an illegal search and seizure which revealed his availability as a witness and the relevancy of his testimony in a gambling investigation.

Following denial of defendant's motion to dismiss the indictment against him on the ground already noted, 60 Misc.2d 860, 304 N.Y.S.2d 310, he was tried in Supreme Court without a jury and convicted on 21 counts and sentenced to imprisonment of three months and a fine of $500. The Appellate Division affirmed, 36 A.D.2d 795, 319 N.Y.S.2d 582.

At no time while defendant was before the Grand Jury did he urge the illegality of the proceeding or of the antecedent search as a ground for refusing to testify, although he was given opportunities to and did consult with counsel. Instead, he asserted only his privilege against self incrimination. Because of his limited objection he was granted immunity in due course before the Grand Jury. Thus he waived any other ground he may have had for refusing to testify and such omitted ground may not now be availed of by way of defense to the prosecution for contempt. Consequently, the order of the Appellate Division should be affirmed.

In November, 1968, the police executed a warrant to search a restaurant in the Bronx in New York City and to apprehend and search certain individuals, not including De Salvo, for gambling records. The police found De Salvo in the restaurant, searched him and his automobile parked outside, uncovering a loaded revolver wager slips, and eavesdropping devices. De Salvo contends that the search warrant and the ensuing search were ineffective and illegal as to him.

In March, 1969, De Salvo was called before a Grand Jury investigating gambling activities. De Salvo refused to answer any question on grounds of possible self incrimination. He consulted a lawyer, who was available to him from time to time during his Grand Jury appearance, and was then granted transactional and testimonial immunity pursuant to then section 619--c of the Code of Criminal Procedure (now CPL 50.10, 50.20). De Salvo continued, however, to refuse to answer questions on the ground of self incrimination. At one point, he was again permitted to consult his lawyer. His refusals to answer are the gravamen for this prosecution.

On August 26, 1969, about five months, later, De Salvo moved to dismiss the indictment on the ground that his appearance before the Grand Jury was prompted solely by an illegal search. For purposes of the motion, the People conceded that the search was illegal and that De Salvo would not have been called before the Grand Jury but for the illegal search. The motion was denied on the ground that defendant had refused to testify solely because of possible self incrimination and that the grant of immunity precluded any challenge to the contempt charges based on an illegal search.

On this appeal De Salvo relies primarily on Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179. It was there held that Federal Grand Jury witnesses could invoke the illegality of an electronic eavesdropping as a defense to a contempt charge for refusal to testify on the ground of the illegality of the inquiry spurred by the illegal eavesdropping. That case, however, involved the application of the Comnibus Crime Control and Safe Streets Act of 1968 (U.S.Code, tit. 18, §§ 2510--2520, esp. § 2515) which prohibited use of illegal wiretaps before a Grand Jury. The court never reached the question whether the Fourth Amendment would shield a Grand Jury witness from a contempt charge for conduct before the Grand Jury (see concurring opn. by Mr. Justice Douglas, who would so hold (408 U.S., at p. 62, 92 S.Ct. 2357)). Moreover, in the Gelbard case, and this, it is suggested, is even more critical, the witnesses expressly refused to testify on the ground that the inquiry was based on illegal wiretaps and electronic surveillance (Id., at pp. 44--45, 92 S.Ct. 2357). In the instant case, on the contrary, the refusal to testify was never made on that ground.

In Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384, the court affirmed a conviction for contempt of a State legislative committee where the defendant had urged that the questions were based on illegally-intercepted conversations. The court, however, did not reach the issue whether a Grand Jury witness could be convicted for contempt for refusal to answer questions based on an illegal search because it found that at least two of the questions were not the product of the illegally-intercepted conversations. Significantly, however, the court went on to state: 'To hold that the petitioner could not constitutionally be convicted for refusing to answer such questions simply because they related to a conversation which had been unlawfully overheard by other state officials would thus be a completely unprecedented step.' (370 U.S., at p. 145, 82 S.Ct., at p. 1222). Thus, if the cases are read together as they should...