People v. Steuding

• Decision Date: 08 July 1959
• Citation: 6 N.Y.2d 214,160 N.E.2d 468,189 N.Y.S.2d 166
• Parties: , 160 N.E.2d 468 PEOPLE of the State of New York, Appellant, v. Ernest A. STEUDING, Defendant, and Morgan D. Ryan, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 166

189 N.Y.S.2d 166

6 N.Y.2d 214, 160 N.E.2d 468

PEOPLE of the State of New York, Appellant, v. Ernest A. STEUDING, Defendant, and Morgan D. Ryan, Respondent.

Court of Appeals of New York.

July 8, 1959.

Bernard Tompkins, Sp. Asst. Atty. Gen. (Leonard E. Reisman, New York City, Wilfred R. Caron, Kingston, and Robert Orseck, Liberty, of counsel), for appellant.

Edward S. Silver, Dist. Atty., Brooklyn (William Sonenshine, Brooklyn, and Aaron E. Koota, New York City, of counsel), for New York State District Attorneys' Ass'n, amicus curiae, in support of appellant's position.

N. Le Van Haver and John E. Egan, Kingston, for respondent.

FULD, Judge.

By virtue of the Constitution of this State (art. I, § 6) and it is solely the Constitution of New York with which we are now concerned a prospective defendant or one who is a target of an investigation may not be called and examined before a Grand Jury and, if he is, his constitutionally-conferred privilege against self incrimination is deemed violated even though he does not claim or assert the privilege. See, e. g., People v. De Feo, 308 N.Y. 595, 603, 127 N.E.2d 592, 595; People v. Ferola, 215 N.Y. 285, 289-290, 109 N.E. 500, 501-502; People v. Gillette, 126 App.Div. 665, 667 et seq., 111 N.Y.S. 133, 134; People v. Bermel, 71 Misc. 356, 359 et seq., 128 N.Y.S. 524, 526. An automatic result of the violation of this constitutional privilege is that the defendant is protected not only from indictment based on any incriminating testimony which he may have given, but also from use of such evidence. And the right and protection thus accorded by the Constitution may not be taken away or cut down by statute. ¹ Section 2447 of the Penal Law, Consol.Laws, c. 40, which prescribes the method by which an 'immunity' may be conferred upon 'witnesses,' is unquestionably constitutional and valid, insofar as it is applied to witnesses who are, in truth and fact, witnesses. The statute does not apply in terms to a defendant or to one who is in the shoes of a defendant, insofar as it provides that the burden is cast upon him of claiming privilege, and any attempt to invoke it against such a person would offend against the constitutional provision to which we have referred above. In other words, since the right granted by the Constitution is automatically conferred, section 2447 is ineffectual to destroy or curtail it and any attempt to do so must be stricken as unconstitutional.

A violation of the constitutional privilege carries with it a dismissal of the indictment returned by the Grand Jury before which the defendant testified. Whether, however, it also cloaks him with an immunity, a freedom from prosecution for the crime for which he has been indicted, is a question with which we are not now concerned. Its answer must await a case in which it is presented.

The order appealed from should be affirmed.

DYE, Judge (concurring).

I concur with what has been said by FULD, J. I would like to add that the refusal of the defendant witness to sign a general waiver of immunity was tantamount to a claim of privilege against self incrimination for, under the facts of this case, he was the target of the investigation, or close to it (N.Y.Const. art. I, § 6). It cannot reasonably be said that the defendant witness waived his constitutional privilege within the provisions of section 2447 of the Penal Law because he was warned in advance of interrogation and, after his request for an adjournment to consult counsel had been denied, that his answers would be used against him and that there would be 'consequences'. On this record then it may not be said that defendant witness waived his constitutional privilege or that he did not gain immunity when required to testify under compulsion of the subpoena. When properly applied, section 2447 is not constitutionally defective. I vote to affirm.

BURKE, Judge (dissenting).

On October 23, 1958 Morgan D. Ryan, Esq., a public official, was called as a witness to appear pursuant to subpoena before the Extraordinary Grand Jury which is investigating official corruption in Ulster County.

After Ryan was initially sworn, he agreed to execute a written waiver of any immunity or privilege concerning all interrogations bearing on his official conduct as Resource Assistant in the Welfare Department (as required by N.Y.Const. art. I, § 6, which provides that a refusal to sign the waiver will result in a discharge from public employment). Thereupon, he was fully advised that all testimony that he might give on any other matter may be used against him and that the Grand Jury was not conferring any immunity on him. Ryan was further informed that he had a right under the Constitution of the State of New York and the Federal Constitution to refuse to answer any question if he believed the answers would incriminate him.

Not only did Ryan expressly declare that he understood the admonitions, but he also evidenced his familiarity with the legal implications of these statements by stating that he had discussed and been advised on the matter of his constitutional privilege, and on the questions of waiver and immunity, on a previous occasion in the presence of his attorney.

Ryan was thereupon questioned and gave testimony, which occupies 101 printed pages of the record before us, without refusing to answer on the grounds of self incrimination.

Ryan returned to the Grand Jury room on October 27 and requested additional time to prepare certain financial data, stating that if the request was refused he would invoke his constitutional privileges on the advice of counsel. The examination of Ryan was deferred until November 6 when he returned and handed the foreman a letter stating that on the advice of counsel he declined to testify on the ground of self incrimination. Then Ryan was cited for contempt.

The Grand Jury after hearing testimony given by other witnesses, and after receiving instructions to disregard Ryan's testimony, indicted him for conspiracy to bribe public officers and of giving a bribe to such officers.

The questions raised are: (1) Did Ryan receive complete immunity by reason of the subpoena to appear before the Extraordinary Grand Jury? (2) Is the testimony which Ryan gave without invoking his privilege deemed 'compelled' so that the indictment against him must be dismissed?

By its plain language, section 2447 of the Penal Law only confers immunity after a witness (or a prospective defendant) invokes his privilege against self incrimination and is then directed to answer the questions propounded. There is no dispute that the immunity so offered is as broad as the privilege. Hence, after the grant of immunity, the invocation of the privilege against self incrimination is not legally possible, and further refusal to answer is contumacious.

In this regard the comparatively new section 2447 does not deny to anyone who might deem himself incriminated the right to invoke the privilege nor does it in any way limit the immunity that was granted under the former procedure. The difference between section 2447 and its predecessor statute is that the prior statute granted complete immunity in advance to any witness subpoenaed, and, in order to preclude any immunity, a written waiver was required. The wisdom of this procedure was examined by the New York State Crime Commission, and, upon its recommendation, the entire concept of immunity statutes was revised in order to preclude hasty and possibly unjustified grants of immunity. In this regard the distinction or difference between section 2447 and the previous section is merely one of procedure and not of substance. The applicability of the privilege is not limited nor is the immunity, when offered, any less than the immunity that was offered previously.

We believe that the Legislature may change the procedural rules as to when and how immunity should be granted if in doing so the rules do not impair any of the constitutional rights of a witness or prospective defendant.

The Act of Congress of February 11, 1893, chapter 83 (27 U.S.Stat. 443; now U.S.Code, tit. 49, § 46, ^* of the United States (like the rule which obtained prior to the enactment of section 2447 (see L.1953, chs. 891, 892, Panal Law, § 2443)) provided for a complete immunity at the outset of the hearing which prevented the invocation of any privilege against self incrimination since there no longer was anything that could be incriminating. The constitutionality of the Act of Congress of February 11, 1893 of the United States was upheld by the Supreme Court in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.E. 819.

A similar Federal statute (U.S.Code, tit. 18, § 3486) gave immunity to subpoenaed witnesses (or prospective defendants) before congressional investigating committees or Federal Grand Juries at the outset so that they could not rely upon the Fifth Amendment privilege. The constitutionality of this section was upheld and interpreted to preclude even State prosecutions based upon the testimony of the witness that was obtained in such a manner (Adams v. State of Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608).

However, section 3486 of title 18 of the United States Code was amended in 1954 by Congress. It is apparent that this statute does not give complete immunity to a subpoenaed witness (or prospective defendant) at the outset but requires him to invoke his constitutional privilege in order to prevent the Government from using the evidence obtained against him in any subsequent proceeding. After the privilege is invoked the Grand Jury or the United States Attorney may make an application for a court order directing the witness to answer and any evidence obtained therefrom cannot be used against the defendant. The statute grants complete immunity which precludes the further invocation of the privilege.

Section 3486 of title 18 of the United States Code is substantially the same as section 2447 of the Penal...