People v. Shapiro

• Citation: 409 N.E.2d 897,50 N.Y.2d 747,431 N.Y.S.2d 422
• Parties: , 409 N.E.2d 897 The PEOPLE of the State of New York, Respondent, v. Elliot SHAPIRO, Appellant.
• Decision Date: 03 July 1980
• Court: New York Court of Appeals

Page 422

431 N.Y.S.2d 422

50 N.Y.2d 747, 409 N.E.2d 897

The PEOPLE of the State of New York, Respondent, v. Elliot SHAPIRO, Appellant.

Court of Appeals of New York.

July 3, 1980.

Joel Martin Aurnou, White Plains, for appellant

Carl A. Vergari, Dist. Atty. (Lois A. Cullen, Gerald D. Reilly and Anthony J. Servino, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

After trial by jury, defendant Elliot Shapiro was convicted on a consolidated indictment of promoting prostitution in the first degree and endangering the welfare of a minor (under Indictment No. 117), sodomy in the second degree (under Indictment No. 118), and 11 counts of sodomy in the third degree (under Indictment No. 143). ¹ In his appeal to us he claims, in the main (1) that, in the circumstances of the case, it was an abuse of discretion as a matter of law for the trial court to have denied his motion to sever Indictment No. 143 from the trial of the other two; (2) that his due process rights were violated when, while his three prospective witnesses were considering whether to persist in the invocation of their privilege against self incrimination, the District Attorney openly, repeatedly and unqualifiedly advised them that testimony on behalf of the defendant would subject them to prosecution for perjury; and (3) that the eavesdropping orders secured by the police were invalid because they exceeded the bounds set by the governing Federal wiretapping statute (U.S.Code, tit. 18, § 2516). We find merit in each of these contentions and, therefore, reverse defendant's conviction and order a new trial.

Pertinent to the analyses on which these conclusions rest are the following:

In Indictment No. 143, Shapiro was accused of engaging repeatedly in a course of homosexual sodomitic acts on various occasions over a 17-month period between July, 1972 and November, 1973 with eight different high school boys each of whom was under the age of 17. Though it developed at trial that each of the youths had received money from the defendant, it was never claimed that force of any kind was employed to obtain their participation. In all, this indictment embraced a total of 64 criminal counts.

The other two indictments (No. 117 and No. 118), unlike No. 143, were not premised on any explicit or implicit claim that the defendant was a frequent actor in sexually aberrant conduct but, centering rather on the far more serious crime of promoting such conduct, confined themselves to a single event occurring on January 31, 1974. That night, members of the New Rochelle Police Department, the Westchester County Sheriff's Department and the District Attorney's office, executing a search warrant based largely on evidence that derived from court-ordered wiretapping of defendant's telephone, gained admission to Shapiro's residence. From the intercepted telephone conversations, the police had learned that two of the defendant's adult friends, Eli Shomer and Ronald Senn, planned to bring two young teen-age male "prostitutes" to Shapiro's home to perform sex acts for hire and that another adult, Brian Dowling, was also to join in these activities. When the police entered, they found Shomer and Senn, attired, in the living room. Making their way to the upper part of the house, the officers then came upon Dowling and 15-year-old Gary F. lying completely unclad in bed together in one bedroom and defendant and 13-year-old Duane S. nude in the other. It was in the first of the two indictments (No. 117) based on this incident that defendant, along with Shomer and Senn, was charged with promoting prostitution as well as endangering the welfare of a minor; its companion indictment (No. 118) charged Shapiro alone with sodomy, sexual misconduct, sexual abuse and endangering the welfare of a minor, all additional legal formulations of the transgressions said to have occurred on the self-same January 31. Thereafter, Shomer's and Senn's cases were severed from that of Shapiro and tried separately. It was later, two years after the original indictments had been voted, that the People, before proceeding to trial against Shapiro, moved to consolidate all three accusatory instruments against him. It is the granting of this motion and the denial of defendant's subsequent application to sever with which we deal first.

I

The joinder of the indictments was effected under the authority of CPL 200.20 (subd. 4). This section permits a court for trial purposes to consolidate and treat as a single indictment "two or more indictments against the same defendant * * * (which) charge different offenses of a kind that are joinable in a single indictment". The determination of the application is discretionary (CPL 200.20, subd. 5). Defendant does not challenge the joining of the two indictments stemming from the January 31, 1974 incident (see CPL 200.20, subd. 2, par (b)), but argues, as he did when the original motion was made, that it was improper to try these with the indictment featuring the long train of sodomies which took place in so much of the two previous years, on the ground that the latter counts would prejudice his ability to defend on the former.

If justification for the joinder of the multiple event indictment with the others is to be found it would have to be under the statute's broadest possible conception of "joinable offenses", i. e., when two or more "offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law" (CPL 200.20, subd. 2, par. (c)). But this language does not stand alone. Apparently cognizant of the sweeping compass of this provision, the legislative scheme introduces cautions designed to alleviate the potential for prejudice. Thus, CPL 200.20 (subd. 3) declares that, when the joinability of offenses rests solely on the grounds specified in paragraph (c), of subdivision 3, "the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion order that any one of such offenses or groups of offenses be tried separately from the other or others". Surely, "the interest of justice" and "good cause shown", though elastic, are more than resounding phrases.

True, in determining that consolidation was appropriate, the court noted the following points of similarity: the defendant was the sole untried defendant in each of the three indictments; all counts in the indictments referred to sexual acts with boys under the age of 17; all the activities occurred within the same jurisdiction and most occurred in defendant's home; sodomy or sexual abuse were a focus of all three indictments. Nevertheless, it cannot be gainsaid that these were but the most general of commonalities; without more support, a joiner could hardly be said to serve more than the permissible purpose of judicial economy.

In counterpoint, the thrust of defendant's more particularized objection was that Indictment No. 143, because of the multiplicity of its 64 counts, carried an almost irresistible potential for prejudicing his defense of the charges arising out of the unrelated January 31, 1974 incident, the only one on which promoting was alleged. The inference of an indiscriminate propensity to be a party to the event on which Nos. 117 and 118 were based could be especially unfair in light of the dearth of physical evidence of any act of sodomy with Duane S., admittedly the only individual in whose presence defendant was found at the time the police broke in. As the proof at trial unfolded, the cumulative effect of the repetitive recitations of the eight high school students on whom the People depended to describe the defendant's numerous depredations during the 18-month period covered by No. 143 was bound to come across as a pointed prologue to the January 31 episode from which Nos. 117 and 118 alone were derived.

In these unique circumstances, it therefore was foreseeable that the trial of the latter would be compromised by the strongest of suggestions that it was but the inevitable outgrowth of defendant's untoward sexual predisposition, however sociologically and scientifically tenuous such connection may in fact have been (see Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sex Offenses, 6 Ariz. L. Rev. 212, esp. 231-236). Since prosecutions for sex crimes, particularly ones regarded as deviate, tend in any event to invoke prejudicial preconceptions among jurors, the joinder of the indictments created an impermissible risk. ² For the superficial closeness of the indictments here, resulting largely from a common focus on the same kind of aberrant sexual practices, was likely to eclipse the very fundamental difference between them. Indictment No. 117 involved the much graver accusation that Shapiro had done more than yield to his irresistible and therefore perhaps compassionately viewed sexual impulses. That wider role, the far more heinous and socially damaging one of influencing others to enter upon a life of submission to sexually aberrant conduct, especially when the proselytizing is said to have been for profit, was almost sure to strongly suggest a need to deter.

In this connection, it is of course easy to say that jurors, like Judges, may have had the intellectual capacity and emotional control to sort out the separate roles in which the defendant was being portrayed so that one would not be merged into the other. Indeed, I believe we all recognize that intelligence is no more the monopoly of Judges than it is of jurors. But it is equally true, as any practitioner of the trial process or of life who has moved from initiate to sophisticate can tell, that the average layman, astute and restrained as she or he may be, and though advantaged by the freshness of such a juror's venture into the legal arena, cannot hope to share the appreciation of the subtleties of prejudice in such a context gained by...