People v. Torre
| Decision Date | 06 November 1969 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Joseph TORRE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Howard A. Levine, Dist. Atty. of Schenectady County, Schenectady, for respondent.
Ungerman & Harris, Albany (Joseph Harris, Albany, of counsel), for appellant.
Before HERLIHY, P.J., and STALEY, GREENBLOTT and COOKE, JJ.
OPINION FOR AFFIRMANCE
This is an appeal from a judgment of the County Court of Schenectady County, rendered April 2, 1969, upon a jury verdict convicting defendant of criminal contempt in violation of subdivision 4 of section 215.50 of the Penal Law.
Defendant was subpoenaed by the District Attorney of Schenectady County to testify before the May, 1968 Grand Jury of the Supreme Court, Schenectady County, which was conducting an inquiry into gambling activities, and the possible involvement therewith of public officials of the City and County of Schenectady.
Defendant appeared before the Grand Jury on July 10, 1968 and, after being duly sworn, refused to answer any questions and invoked the Fifth Amendment. The Grand Jury then voted to confer immunity to defendant. Defendant was advised of the grant of immunity, and he again refused to answer on the ground that he wanted Federal immunity. The Grand Jury was then recessed to the next day and defendant was ordered to reappear. On the following day, July 11, 1968, defendant again refused to answer 'on the advice of counsel'. A short recess was then taken during which a conference was held between the District Attorney and defendant's counsel. Upon returning to the Grand Jury Room defendant again refused to answer any questions, although he stated that he understood that immunity had been conferred upon him, and that he could not be prosecuted under Federal or State law for anything based upon any evidence given before this Grand Jury.
On October 1, 1968 defendant was indicted and charged with criminal contempt. On October 9, 1968 defendant was arraigned and he entered a plea of not guilty. On January 29, 1969 defendant moved for a dismissal of the indictment alleging that, after the grant of immunity, the District Attorney had promised to limit the scope of his interrogation exclusively to the question of his knowledge of the corruption of public officials; that this promise was breached; and, for that reason, he refused to testify. This motion was denied and the indictment was transferred to the County Court.
On February 7, 1969 a notice was served upon defendant's attorney advising that the case would be moved for trial on February 24, 1969. The District Attorney moved the case for trial on February 24, 1969, whereupon defendant requested an adjournment 'until sometime in July' on the ground that one of his witnesses was out of the country. Since the court was being held by an Acting County Judge due to the unavoidable absence of the County Judge, the case was adjourned by consent to February 27, 1969. On the adjourned date defendant again requested an adjournment by reason of the absent witness stating that this witness was present when the alleged promise of the District Attorney to limit the scope of inquiry was made. Defendant's counsel admitted that he was present when the alleged promise was made, but stated he did not intend to take the witness stand, and that he wanted a disinterested witness. The request for adjournment was denied and the case was set down for trial on March 17, 1969.
On March 14, 1969 defendant filed a written application for a continuance until July 1969, which application consisted of an affidavit by defendant's counsel containing a description of the alleged promise made to him in the presence of the witness, and an affidavit from a third party to the effect that he had received a letter from the witness on January 15, 1969 indicating that the witness was employed as a civilian in Vietnam, and would be resigning from his employment on an unspecified date in June 1969.
On March 17, 1969 the case was moved for trial and the court heard and considered the application for a continuance. After hearing the arguments of counsel and considering the moving papers, the court denied the application and directed the case to proceed to trial. Defense counsel then advised the court that he was not ready to proceed 'in accordance with our Motion previously made', whereupon the court advised him that a ruling had been made on that motion, and directed the parties to select a jury. Thereafter, defendant's counsel stated that 'we're not participating in this trial' and 'with respect to this case--we ask for permission to leave', stating: 'You can have a trial in absentia because that's what it's going to be.' Permission for defendant and his counsel to leave the courtroom was then denied, whereupon the selection of the jury and the trial continued with defense counsel refusing to take any part therein. The jury returned a verdict of guilty, and the court set April 2, 1969 as the date for sentence.
Defendant's counsel then moved for a new trial on the grounds that defendant was deprived of his constitutional and statutory right to have witnesses produced in his behalf...
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People v. Paul
...refusal to grant a continuance to allow the defendant to produce Powell as a witness was within its discretionary power (People v. Torre, 33 A.D.2d 43, 304 N.Y.S.2d 711) which was properly exercised here where there was no showing that the defendant would be able to produce Powell or that h......
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People v. Lattanzio
...Law as charged is unconstitutional, which claim we find groundless. His only request to charge was granted. (Cf. People v. Torre, 33 A.D.2d 43, 46, 304 N.Y.S.2d 711, 715.) The judgment should be Judgment affirmed. REYNOLDS, J.P., and STALEY, GREENBLOTT and SWEENEY, JJ., concur. ...