Piccirillo v. New York

• Decision Date: 25 January 1971
• Docket Number: No. 97,97
• Parties: Ralph PICCIRILLO, Petitioner, v. State of NEW YORK
• Court: U.S. Supreme Court

400 U.S. 548

91 S.Ct. 520

27 L.Ed.2d 596

Ralph PICCIRILLO, Petitioner,

v State of NEW YORK.

No. 97.

Argued Nov. 9, 1970.

Decided Jan. 25, 1971.

Malvine Nathanson, New York City, for petitioner.

Stanley M. Meyer, Brooklyn, N.Y., for respondent.

PER CURIAM.

The occasion for granting the writ in this case was to resolve the important question whether it is necessary to accord 'transactional' immunity, see Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), to compel a witness to give testimony before a state grand jury over his claim of the privilege against self-incrimination, or whether mere 'use' immunity suffices to that end, see, e.g., Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 426 F.2d 619 (CA2 1970).

After considering the briefs and oral arguments of the parties on this writ, we have reached the conclusion that the decision of the New York Court of Appeals in Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33, 225 N.E.2d 235 (1969), which makes clear that transactional immunity is required in New York and also indicates that such court's earlier decision in the case before us, People v. La Bello, 24 N.Y.2d 598, 301 N.Y.S.2d 544, 249 N.E.2d 412 (1969), may have rested on that premise, makes this case an inappropriate vehicle for deciding a question of such far-reaching importance.

With the intervening decision in Gold, no controversy any longer exists between the parties as to the question which impelled us to grant the writ: whether, in the circumstances involved in this case, Piccirillo was entitled to 'use' or 'transactional' immunity. While it is true that, technically speaking, issues remain in the case concerning the kind of immunity required by federal law and, if it be 'transactional' rather than 'use' immunity in such a case as this, the proper scope of such immunity, both issues arise only against the sterile background of agreement between the parties that Piccirillo is entitled to 'transactional' immunity under state law. Thus, our determination upon the fundamental constitutional question underlying this case would be in no sense necessary to its resolution in this instance.

In this posture of affairs, we conclude that the writ of certiorari should be dismissed as improvidently granted.

It is so ordered.

Writ of certiorari dismissed.

Mr. Justice BLACK dissents from the dismissal of this writ as improvidently granted. He would vacate the judgment below and remand the case to the New York Court of Appeals for reconsideration in light of its later opinion in Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33, 255 N.E.2d 235.

Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.

I do not approve dismissal of this writ as improvidently granted.

Petitioner was indicted for assault committed by the use of tire irons. He pleaded guilty and was sentenced to imprisonment. Shortly thereafter a grand jury was impaneled to investigate the assault on the victim and the conspiracies arising in connection with it. Petitioner, while still serving the sentence on the assault conviction, was called to testify before the grand jury.

After refusing to testify, petitioner was granted immunity. He then testified to the assault which he had perpetrated by the use of tire irons. Four days later a police officer testified before the grand jury that after a chase, he had arrested petitioner and another, and thereupon had taken the tire irons from them. The officer also testified that following petitioner's arrest petitioner had offered the officer a bribe to change his testimony. Petitioner was subsequently indicted by the grand jury for bribery, and, following an unsuccessful motion to dismiss based on the grant of immunity, he pleaded guilty to attempted bribery. The New York Court of Appeals held four-to-three that the New York immunity statute only prohibited use of testimony and the fruits of the testimony in a subsequent criminal proceeding and that the police officer's testimony was in no way derived from anything petitioner said. 24 N.Y.2d 598, 301 N.Y.S.2d 544, 249 N.E.2d 412.

Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed.2d 1110, held that once immunity was granted, it protected the witness against prosecution not only for a crime that relates to the precise testimony given but also for the fruits of such testimony. Id., at 564—565, 12 S.Ct., at 198—199. But the Court went further: 'In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates.' Id., at 586, 12 S.Ct., at 206. In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, which involved another federal prosecution, the immunity statute provided that the witness would be protected 'on account of any transaction * * * concerning which he may testify.' Id., at 594, 16 S.Ct., at 645. The Court held that the immunity offered was coterminous with the privilege and that the witness could therefore be compelled to testify. Thus, 'transactional immunity' became part of the fabric of our federal constitutional law. See Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511.

Now that the Self-Incrimination Clause of the Fifth Amendment is applicable to the States, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the same immunity against state prosecutions must be granted by the States as the Federal Government must grant against federal prosecutions. Id., at 10—11^*, 84 S.Ct., at 1494 1495.

Subsequent to petitioner's case the New York Court of Appeals unanimously concluded that their statute provides transactional immunity. Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33, 255 N.E.2d 235. Nevertheless, that court also concluded that petitioner would not have benefited from the change of law because he gave no testimony which related to the offense for which he was prosecuted. Id., at 481 n. 1, 307 N.Y.S.2d, at 38, 255 N.E.2d at 238. That approach to the problem is not in keeping with the generous interpretations which the Fifth Amendment has heretofore received by this Court.

Petitioner had just testified to the grand jury concerning facts which provided the underlying basis for the bribery charge. The grand jury knew petitioner had assaulted a man with tire irons because petitioner himself told them so. The tire irons were the 'evidence' which according to the police officer petitioner had tried to bribe him 'to get rid of.' They were the same tire irons used in the assault for which he was convicted and sentenced, not tire irons used to commit another assault. Moreover the bribery charge grew out of conversations which petitioner had with the police officer the day of his arraignment on the assault charge. It seems obvious that, if the transactional test is to be honored, this is one of the clearest instances in which to do so.

Accordingly, I would reverse the decision below.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.

This case presents the question of the limitations required by the Fifth Amendment's Self-Incrimination Clause upon subsequent state prosecutions of an individual compelled by the State to answer incriminating questions. Since, in my view, this case presents a record that compels us to decide that question, I cannot agree that the Court may dismiss the writ of certiorari as improvidently granted. I therefore reach the merits and would reverse the judgment of conviction and remand the case with directions to dismiss the indictment.

I

Petitioner and a codefendant were arrested on March 19, 1964, by a New York police officer, William Sewell, for assaulting one Graham, a housing contractor. Patrolman Sewell recovered the tire irons used in the assault from petitioner and the codefendant at the time of the arrest. The following day, the two defendants were arraigned and released on bond. But before leaving the courthouse, they approached Patrolman Sewell and offered him $1,000 or $1,500 to dispose of the seized weapons. The honest Sewell refused the offer and immediately notified the district attorney of the bribe attempt. At the request of the prosecutor, Sewell later attended a meeting with petitioner to confirm the bribe offer. The relevant narrative skips a year during which petitioner and his codefendant were indicted for attempted assault pleaded guilty, and were sentenced to jail. On March 18, 1965, a year after the assault and bribery attempt, petitioner was summoned from jail to appear before a grand jury investigating the possibility of criminal conspiracies in connection with the assault on Graham. The prosecutor, after informing petitioner of the purpose of the investigation, told him that the grand jury was going to vote on whether to give petitioner immunity and explained the meaning of immunity to petitioner as follows:

'I am going to ask this grand jury to vote on the question of giving you immunity and under Penal Law Section 2447 for the testimony that you will give in this grand jury and that means anything that I ask you and any answers that you give in answer to my questions if it connects you with the crime you cannot be prosecuted for it. That's immunity, do you understand that?' App. 33.

When the grand jury voted to grant immunity, the petitioner said that he would answer the prosecutor's questions, but that he would like to consult his lawyer. The prosecutor refused permission, stating:

'Under these circumstances you are not a defendant, you are a witness, you have been given immunity. That means you cannot be prosecuted. Your rights are fully protected and there is no reason for your conferring with your attorney, do you understand that?' App. 34.¹

Petitioner then answered all questions admitting, inter alia, that he and his codefendant had...