Second Additional Grand Jury of Kings County, Application of

• Decision Date: 09 May 1960
• Citation: 202 N.Y.S.2d 26,10 A.D.2d 425
• Parties: Application of the SECOND ADDITIONAL GRAND JURY OF THE COUNTY OF KINGS, duly empanelled for the March, 1958 term of this court, as extended, Respondents, for an order adjudging William F. Cioffi and Seymour Stein, Appellants, in criminal contempt of this court, pursuant to subdivision 5, section 750 of the Judiciary Law of the State of New York. In re CIOFFI et al.
• Court: New York Supreme Court — Appellate Division

Page 26

202 N.Y.S.2d 26

10 A.D.2d 425

Application of the SECOND ADDITIONAL GRAND JURY OF THE COUNTY OF KINGS, duly empanelled for the March, 1958 term of this court, as extended, Respondents, for an order adjudging William F. Cioffi and Seymour Stein, Appellants, in criminal contempt of this court, pursuant to subdivision 5, section 750 of the Judiciary Law of the State of New York In re CIOFFI et al.

Supreme Court, Appellate Division, Second Department.

May 9, 1960.

David F. Price, Brooklyn, for appellants.

Edward S. Silver, Dist. Atty., Brooklyn (Aaron E. Koota and William Sonenshine, Brooklyn, of counsel), for respondents.

Before NOLAN, P. J., and BELDOCK, CHRIST, PETTE and BRENNAN, JJ.

BRENNAN, Justice.

The appellants, who are attorneys, have been adjudged guilty of a criminal contempt by the County Court, Kings County, for their failure to answer questions before a Kings County Grand Jury, the respondents herein.

The subjects as to which the Grand Jury inquiry were being prosecuted, and as to which the testimony of the appellants was sought, was whether there had been any unlawful solicitation of legal business in Kings County in violation of article 24 of the Penal Law and as to the existence in Kings County of any criminal conspiracy (Penal Law, art. 54) among certain attorneys and other persons to violate article 24.

When subpoenaed and sworn before the Grand Jury, the appellants were advised of the purpose and scope of the investigation, and, in addition, they were also informed that the Grand Jury was prepared to grant them immunity as permitted by law. Each appellant refused to answer the question propounded and asserted his privilege against self incrimination as preserved by the New York State Constitution (art. I, § 6). Thereupon, each appellant was temporarily excused from the Grand Jury room. Shortly thereafter, he was recalled, and, upon his return to the witness stand, the prosecutor requested the Grand Jury, acting through its foreman, to direct the witness to answer the question which had been propounded. The request was complied with; the direction was given, but the witness still refused to answer upon the ground originally asserted.

Thereafter, an application to adjudge and punish the appellants for criminal contempt of court was made to, and granted by, the County Court. Upon this appeal from the order of the County Court granting said application, the appellants contend: (1) that they were, and are in fact, prospective defendants or targets of the Grand Jury's investigation and that section 2447 of the Penal Law cannot constitutionally be applied to them as such, (2) that having invoked their privilege against self incrimination, they cannot be compelled to testify before the Grand Jury which is investigating certain offenses, including the crime of unlawful solicitation of legal business, for and under which no immunity can be conferred, and (3) that they were not informed that immunity had been conferred upon them by the Grand Jury and, in the absence of such knowledge on their part, that their refusal to testify provided no basis for criminal contempt.

The record herein does not establish that the appellants were in fact prospective defendants or targets of the Grand Jury's investigation (cf. People v. Bermel, 71 Misc. 356, 128 N.Y.S. 524; People v. Freistadt, 6 A.D.2d 1053, 179 N.Y.S.2d 633). Statutory immunity having been conferred upon them, as witnesses, pursuant to sections 584 and 2447 of the Penal Law, and said immunity being as broad as the privilege guaranteed by the Constitution, they were compelled to testify before the Grand Jury inquiry into the aforesaid crime of conspiracy (People v. De Feo, 308 N.Y. 595, 127 N.E.2d 592; People v. Breslin, 306 N.Y. 294, 118 N.E.2d 108). There is no valid objection to a Grand Jury inquiry made in good faith where the alleged offenses of others were being examined into, though the others were co-conspirators with the witness called before the Grand Jury and upon whom immunity had been conferred (People v. Reiss, 255 App.Div. 509, 8 N.Y.S.2d 209, affirmed 280 N.Y. 539, 20 N.E.2d 8).

If it be assumed, arguendo, that these appellants are in fact prospective defendants or targets, it then becomes necessary to determine whether section 2447 of the Penal Law was properly and constitutionally applied to them. In considering this question, it is important to remember the essential difference which exists in the nature and extent of the constitutional privilege provided for and conferred by section 6 of article I of our State Constitution and the statutory immunity which is provided for, and which may be conferred, pursuant to section 584 of the Penal Law, as amended, and section 2447 of the Penal Law. Section 6 of article I of the State Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. In the event that this constitutional privilege is violated, the witness is protected not only from indictment based upon any incriminating testimony which he may have given before the Grand Jury, but he is also protected from the use of such evidence. However, by the violation of his aforesaid constitutional privilege, a prospective defendant does not gain absolute immunity from prosecution for the crimes concerning which he may have testified, because these alleged crimes may be resubmitted, for consideration, to another Grand Jury before which the said prospective defendant is not subpoenaed and examined. (People v. Freistadt, 6 A.D.2d 1053, 179 N.Y.S.2d 633, supra; People ex rel. Coyle v. Truesdell, 259 App.Div. 282, 18 N.Y.S.2d 947; People v. Bermel, 71 Misc. 356, 128 N.Y.S. 524, supra; cf. People v. Steuding, 6 N.Y.2d 214, 189 N.Y.S.2d 166, where this question was expressly left open.) On the other hand, where statutory immunity has been conferred pursuant to, and in accordance with, the grants and procedure contained in the Penal Law, such immunity is full, absolute, and complete in that the incriminating matters disclosed may not be resubmitted to another Grand Jury or otherwise received or considered against the immunized witness or prospective defendant upon any criminal prosecution in this State for any crime disclosed or revealed by the testimony of said immunized witness or prospective defendant. People v. Breslin, 306 N.Y. 294, 118 N.E.2d 108, supra; Matter of Grand Jury of the County of Kings (Nicastro-Chadeayne), 279 App.Div. 915, 110 N.Y.S.2d 532, affirmed 303 N.Y. 983, 106 N.E.2d 63. Thus it may be said that the immunity resulting from the violation of the constitutional privilege contained in section 6 of article I of the State Constitution is a limited immunity, whereas the statutory immunity conferred pursuant to the grant and procedure contained in the pertinent sections of the Penal Law, is a broad or absolute immunity. Appellants, in support of their contention that the aforesaid section 2447 cannot constitutionally be applied to them as such defendants or targets, rely upon the recent rulings in the case of People v. Steuding, 6 N.Y.2d 214, 189 N.Y.S.2d 166, supra, and in the case of People v. DeFeo, 308 N.Y. 595, 127 N.E.2d 592, supra. In our opinion, these cases do not support appellants' contention. People v. Steuding (supra) arose out of the recent Grand Jury inquiry in Ulster County. Although the case is commonly referred to as People v. Steuding, the opinions in the Appellate Division, Third Department, and in the Court of Appeals are concerned entirely with the difficulties of Steuding's co-defendant, Morgan D. Ryan. Ryan had been indicted by the Grand Jury for the crime of conspiring to bribe public officers in violation of section 378 of the Penal Law, and of giving an officer bribes in violation of section 1822 of the Penal Law. He claimed (and it was not disputed) that he was a prospective defendant when he was summoned to appear and give testimony before the Grand Jury. He refused to sign a general waiver of immunity and was then examined concerning the matters for which he was thereafter indicted. At no time was Ryan granted immunity by the Grand Jury. He contended that the indictment obtained against him was invalid in that he had been compelled to be a witness against himself in violation of the constitutional privilege afforded him by section 6 of article I of the State Constitution. The Appellate Division sustained his contention and dismissed the indictment against him, and the Court of Appeals affirmed. This determination was reached upon the theory: (1) that section 6 of article I of the State Constitution directly and automatically grants and confers, upon a prospective defendant or target of an investigation, the privilege against self incrimination, (2) that it is not necessary for such a defendant or target to claim or assert his said constitutional privilege against self incrimination in order that he may enjoy the benefits of said privilege, (3) that as a result of any violation of said constitutional privilege, the prospective defendant or target is protected from indictment based on any incriminating testimony which he may have given and he is also protected from the use of such evidence, (4) that it is beyond the power of the Legislature to destroy, curtail, whittle down, or impair, in any manner or in any degree, the aforementioned constitutional privilege against self incrimination, and (5) that to the extent that section 2447 requires and places upon any prospective defendant or target of an investigation the burden of being required to claim or assert his privilege, or for that matter, to do any act or thing on the part of said defendant or target, section 2447 is unconstitutional as constituting an interference with the constitutional privilege against self incrimination which has been directly conferred by the Constitution upon a defendant or one who is in the shoes of a defendant.

A careful reading and consideration...