Slater v. Slater
| Decision Date | 01 May 1974 |
| Citation | 355 N.Y.S.2d 943,78 Misc.2d 13 |
| Parties | Sally SLATER, Plaintiff, v. Bert SLATER, Defendant. |
| Court | New York Supreme Court |
Jessel Rothman, Mineola, for plaintiff.
Lubkin, Cohen & Stracher, Lake Success, for defendant; Richard L. Stracher, Lake Success, of counsel.
The rather interesting issue to be decided on this motion is whether the defendant can avail himself of the privilege against self-incrimination at an examination before trial inquiring into the Federal income tax return of the defendant.
The defendant was directed by order of this court to submit to an examination before trial concerning his 'income or financial status' relative to this matrimonial action. Pursuant to the order, the examination was commenced, at which time the defendant produced his income tax return setting forth an amount as and for gross receipts. The examining attorney then inquired:
The defendant witness responded:
'I refuse to answer that question on the basis that the question might tend to incriminate me.'
Defendant witness:
'I refuse to answer that question because the answer might tend to incriminate me.'
As a result of the impasse, the examination was adjourned, subject to the decision of the court on this motion.
The moving examining attorney urges that the questions asked were bona fide and related to the very purpose of the examination ordered by the court. Further, that 'the privilege against self-incrimination cannot be invoked at this time as to those questions.'
In response, the defendant urges that the privilege afforded by the Fifth Amendment to the United States Constitution and by Article 1, section 6 of the New York State Constitution provides a sufficient basis for the refusal of the defendant to respond to the questions asked. He argues that the defendant might be subject to the penalties of perjury under Title 26, section 6065 of the United States Code, were he compelled to answer despite his assertion of the Constitutional privilege.
In support of the motion to compel defendant to answer the questions propounded, the plaintiff relies in part on Thoresen v. Superior Court of State of Arizona, 11 Ariz.App. 62, 461 P.2d 706. In the Thoresen case, the Arizona Court of Appeals addressed itself to interrogatories involving income tax returns and the Constiutional privilege raised therein. The Arizona court, relying upon Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118; United States v. Weisman, 2 Cir., 111 F.2d 260 and Wild v. United States, 9 Cir., 362 F.2d 206, compelled the party to answer questions relating to the aforesaid tax returns, stating that 'in order to effectively invoke the privilege, a witness must establish a factual predicate from which the court can * * * conceive of a sound basis for the claim'. The Thoresen case, in analyzing the federal court decisions on the subject, concluded that:
'While the judiciary is enjoined to be sensitive and imaginative in this area, we cannot either supply a claimant with a tenable factual hypothesis or throw up our hands and abdicate our responsibility to find a sound and realistic legal basis for the privilege claimed.'
In pressing for the proposition that the privilege is available to the defendant, it is argued that Any response to questions asked 'may create the danger of criminal prosecution for commission of the crimes of perjury and/or fraud in the preparation and filing of the joint income tax returns of the party' and that the defendant's refusal to answer is based upon a Real danger of prosecution. In this regard, the court does not quarrel with the body of law set forth in Webb v. Rosenstiel, 66 Misc.2d 29, 319 N.Y.S.2d 877, nor with the authorities cited therein. Indeed, the court is in general agreement with the cases cited in CPLR 4501 to be found in McKinney's Consolidated Laws of New York, Book 7B, 1969--1970 Pocket Part, at pages 175--178. The court is also mindful of Siegel v. Crawford, 292 N.Y. 651, 55 N.E.2d 516, wherein the New York State Court of Appeals held it was error to compel a witness to answer a question at an...
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...from the Supreme Court concerning any invocation of the privilege against self-incrimination by Shankman (see, Slater v. Slater, 78 Misc.2d 13, 16, 355 N.Y.S.2d 943; see also, Matter of Lieb v. Henry, 99 A.D.2d 757, 471 N.Y.S.2d 674; State of New York v. Carey Resources, supra ...
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Tyrone S., Matter of
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