People v. Tyler

• Citation: 385 N.E.2d 1224,46 N.Y.2d 251,413 N.Y.S.2d 295
• Parties: , 385 N.E.2d 1224 The PEOPLE of the State of New York, Appellant, v. Andrew R. TYLER, Respondent.
• Decision Date: 20 December 1978
• Court: New York Court of Appeals

Page 295

413 N.Y.S.2d 295

46 N.Y.2d 251, 385 N.E.2d 1224

The PEOPLE of the State of New York, Appellant, v. Andrew R. TYLER, Respondent.

Court of Appeals of New York.

Dec. 20, 1978.

John F. Keenan, Deputy Atty. Gen. (Thomas A. Duffy, Jr., Great Neck, Mark M. Baker, New York City, and Mary H. Smith, Yonkers, of counsel), for appellant

Milton S. Gould, Saul S. Streit and Richard F. Czaja, New York City, for respondent.

OPINION OF THE COURT

BREITEL, Chief Judge.

Based on testimony he gave before a Grand Jury, defendant, a Supreme Court Justice, was convicted after jury trial on three counts of perjury in the first degree (Penal Law, § 210.15). He was sentenced to probation. The Special Prosecutor appeals from the Appellate Division's unanimous reversal and dismissal of the indictment.

There should be an affirmance.

Involved are defendant's false answers to questions limited to the outward details of place and time of a single meeting between defendant and a reputed criminal character. The primary issue is whether a prosecution for perjury may be based on such false answers where the prosecutor, in his questioning, demonstrated no palpable interest in eliciting facts material to the authorized substantive investigation of antecedent crime or official misconduct. A secondary issue is whether the false answers about peripheral details of the single meeting may support a perjury prosecution without the prosecutor laying enough of a foundation to recall to the witness' mind what, without some prodding, may have in truth escaped the witness' recollection. In resolving the issues it is concluded that the conviction may not stand, and the indictment was properly dismissed as a matter of law.

First elected to the Civil Court in 1967, defendant became a Supreme Court Justice in January, 1970. Admitted to the Bar sometime after World War II, for the 18 years before he became a Judge defendant had been a lawyer practicing largely on his own and devoting about 50% Of his time to criminal matters.

In February, 1975 an Extraordinary Grand Jury was charged, among other things, with investigating the relationship of defendant with certain known gambling figures. The inquiry, which included 20 sessions at which 22 witnesses were heard, was not concluded until October, 1976. Among the gamblers was one Raymond Marquez, also known as "Spanish" Raymond, the reputed head of one of the largest illegal gambling operations in New York. The Grand Jury was informed that Marquez, who was released from Federal prison in April, 1975, had been convicted of both Federal and State crimes, including interstate racketeering, gambling policy, and contempt.

Each of the counts charged in the instant indictment for perjury before the Grand Jury arises out of defendant's answers to questions concerning a single meeting with Marquez. According to the acting forewoman of the Grand Jury, the inquiry was aimed at uncovering any bribery, bribe receiving, or official misconduct.

Three police officers involved in an extensive personal surveillance of defendant testified to the Grand Jury that on May 16, 1975, after the Grand Jury had been convened, they saw Marquez in defendant's company. According to the officers, after some activity that suggested he may have been waiting for someone, defendant met Marquez and his wife near Lincoln Center in Manhattan. They drove about 10 blocks in defendant's automobile to Patsy's Restaurant on West 56th Street, and remained there for over an hour. Upon leaving, defendant and Marquez allegedly spoke for 10 minutes, while Mrs. Marquez sat in defendant's automobile. Defendant then drove the two back to where their own automobile was garaged. Substantially the same testimony was given by the officers at trial.

Defendant appeared before the Grand Jury on four occasions, and on two was questioned about Marquez. Other areas of inquiry were defendant's background and how he came to be a Judge, defendant's acquaintance with other reputed gamblers, and bail applications granted by defendant out of the ordinary courtroom setting.

On March 2, 1976, defendant's second appearance, defendant testified that he knew Marquez as a man who had been convicted "some years ago for policy", and recalled representing him as a lawyer "in the fifties" in a case that "had something to do with gambling." When asked about contacts with Marquez since defendant had become a Supreme Court Justice, defendant denied communicating with him. He remembered, however, that as he was going to his courthousechambers one day he saw Marquez being escorted by Marshals to Federal court.

Marquez was not mentioned when defendant appeared before the Grand Jury for the third time on May 18, 1976. In his final appearance two days later, however, Marquez was again the subject of inquiry. This time, when asked about communications with Marquez, defendant, who later explained at trial that a discussion he had had with his wife following his earlier appearance had refreshed his recollection, recalled the May 16 meeting:

"Q. (Y)ou testified before that you saw him on occasion when he was being transported by federal marshals. You said that was the only time you'd seen him since you'd become a judge. Is that the occasion you're talking about?

"A. No, that's not the occasion I'm talking about.

"Q. What is the occasion that you're talking about?

"A. I saw him on an occasion when he was with his wife on 58th Street in Manhattan.

"Q. When was that?

"A. I couldn't fix the dates. Probably somewhere around May. May of '75, somewhere around there.

"Q. Can you describe that in any more detail, that meeting or encounter or whatever it was on 58th Street?

"A. Yes. It was outside of Patsy's Restaurant. I think that's where it was.

"Q. What were you doing? Were you walking down the street, driving, in the restaurant? What was

"A. I was on my way into Patsy's.

"Q. What happened?

"A. I saw him and his wife.

"Q. What did you do?

"A. We greeted each other, asked him how he was. He asked me how I was. Asked me how things were getting along, and I asked him the same thing.

"Q. This was out on the street?

"A. That was on the street.

"Then they walked into Patsy's and I walked into Patsy's.

"Q. Were you alone or with anyone else?

"A. I was alone. I was waiting for my daughter.

"Q. What happened after you went into Patsy's?

"A. I think I had a drink.

"Q. Was there a bar there, or did you have it at the table?

"A. Sitting right at the entrance of the door, I had a drink at the door.

"Q. Did you have a drink alone?

"A. No. He and his wife sat down.

"Q. How long did that take?

"A. About ten or fifteen minutes.

"Q. What happened then?

"A. I got up and left.

"Q. And they remained in the place?

"A. I believe so.

"Q. Did you have a previous arrangement to meet with Mr. Marquez at that location?

"A. No, sir.

"Q. It was purely chance?

"A. Yes, sir.

"Q. When you arrived there did you withdrawn. What did you discuss during the course of that meeting with Mr. Marquez?

"A. How he was, basically.

"Q. Had he recently come out of prison?

"A. I understood that he had, yes.

"Q. Was that part of the discussion?

"A. Yes.

"Q. Anything else except his health?

"A. That's all. Health and what he planned to do.

"Q. Did he tell you what he planned to do?

"A. He said he intended to take it easy.

"Q. And that was the extent of the conversation?

"A. In substance.

"Q. Can you remember anything else that was discussed?

"A. No, I can't, because it was just chit-chat.

"Q. Did he discuss with you any matters that were in the courts at that time?

"A. No, sir.

"Q. Did you discuss any of the did he discuss the fact that the people in his organization had been arrested?

"A. No, sir."

At this final appearance, defendant also corrected his earlier testimony to reflect that his former representation of Marquez related not to gambling, but to a violation of probation arising out of an assault.

A four-count indictment for perjury in the first degree followed. As noted, the charges are entirely based on defendant's answers to questions about the single meeting with Marquez. The first count charges defendant with falsely stating that he had not "talked to Marquez" since becoming a Supreme Court Justice. That count, presumably because of defendant's later recantation, resulted in an acquittal, but defendant was convicted of the three remaining counts. Count two alleges that "upon being asked where he saw Marquez for the first time on May 16, 1975, (defendant) testified that it was in front of Patsy's Restaurant." Under count three, it is asserted that defendant testified that his meeting with Marquez "had lasted about ten to fifteen minutes." The fourth count alleges that "upon being asked what happened after conversing with Marquez in Patsy's Restaurant, (defendant) testified that * * * he exited the Restaurant and left Marquez inside the premises." The surveillance team, as observed earlier, had testified that defendant, after driving the couple 10 blocks to the restaurant, talked to them there for over an hour, and upon leaving, but before driving them to their garage, spoke to Mr. Marquez while Mrs. Marquez waited in defendant's automobile.

Among the grounds for reversal adopted by the Appellate Division were that in counts two and three the materiality necessary to a conviction for perjury in the first degree was lacking and that in counts two and four the falsity of the statements alleged was insufficiently proved. Since the challenged interrogation amounted, on the whole, to an impermissible "perjury trap", neither ambiguity nor insufficiency of evidence, usually issues of fact resolvable by the jury, need be discussed (see People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, affd. 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432; cf. People v. Goldman, 21 N.Y.2d 152, 160, 287 N.Y.S.2d 7, 13, 234 N.E.2d 194, 198, app. dsmd. 392 U.S. 643, 88 S.Ct. 2280, 20 L.Ed.2d...