Special Prosecutor (Onondaga County) v. G. W.

• Citation: 407 N.Y.S.2d 112,95 Misc.2d 298
• Parties: In the Matter of the SPECIAL PROSECUTOR (ONONDAGA COUNTY), Petitioner, v. G. W. (anonymous), Respondent.
• Decision Date: 19 May 1978
• Court: United States State Supreme Court (New York)

Page 112

407 N.Y.S.2d 112

95 Misc.2d 298

In the Matter of the SPECIAL PROSECUTOR (ONONDAGA COUNTY), Petitioner, v. G. W. (anonymous), Respondent.

Supreme Court, Extraordinary Special and Trial Term,Onondaga County.

May 19, 1978.

Peter D. Andreoli, Sp. Prosecutor (Onondaga County), John F. Lang, and [95 Misc.2d 299] Norman S. Hatt, New York City, of counsel, for petitioner.

Sargent, Sargent & Martin, Donald J. Martin, Syracuse, of counsel, for respondent.

MEMORANDUM DECISION

LYMAN H. SMITH, Justice.

The Special Prosecutor of and for the County of Onondaga makes application to this Extraordinary Special and Trial Term of Supreme Court ¹ for an order requiring G. W. Anonymous, a former Onondaga County public official (and, prior to that, an assistant public official), to provide the Special Prosecutor's Office with personal handwriting exemplars. According to the Special Prosecutor's moving papers, evidence has been presented to the Extraordinary Grand Jury of Onondaga County, suggesting respondent's participation in a conspiracy to benefit the Onondaga County Republican Committee by illegal solicitation of political contributions from Onondaga County employees, in particular, members of the respondent's department. The activities under investigation would purportedly violate, inter alia, Civil Service Law § 107(3) and Election Law § 484. ²

The evidence submitted upon this application includes photostatic copies of certain handwritten checks drawn to the order of the Onondaga County Republican Committee (carrying the date, payee, and purported signature of respondent) and also includes purportedly related handwritten documents listing the names of employees within respondent's county department together with certain tickets sold to and sums solicited from the individuals named in such lists. A handwriting analyst on the Special Prosecutor's staff has sworn, by affidavit, that, in his opinion, the same person produced the handwriting in those various documents. Another affiant, familiar with respondent's handwriting, has examined one of the documents, and has stated under oath, that the handwriting appears to be that of respondent. In addition to the documentary evidence suggesting respondent's involvement in the alleged conspiracy, the Special Grand Jury has heard other evidence from an employee of the respondent's department, to the effect that respondent did, in fact, participate in the solicitation of political contributions from members of the respondent's staff.

Respondent has yet to be charged with any offense. It is the contention of the Special Prosecutor that respondent's exemplars are necessary to complete the Grand Jury's investigation. Respondent and his attorney have been made aware of the on-going investigation. He has declined an opportunity to voluntarily furnish the requested exemplars.

The respondent's objection to this special application questions the Court's authority to issue such an order when, in fact and in law, the Special Prosecutor has statutory power to subpoena respondent's appearance before the Grand Jury (CPL § 610.20(2)) for the purpose of obtaining the requested exemplars. He urges that the production of handwriting exemplars falls wholly within the purview of CPL § 50.10(3) and that, accordingly, the Special Prosecutor is limited to the statutorial device of the Grand Jury subpoena as set forth in CPL § 610.20(2).

Obviously, the respondent seeks to avail himself of the protective transactional immunity ³ extended to "(A) witness who gives evidence in a grand jury proceeding . . ." (CPL § 190.40(2)).

The challenge to the application at bar raises the question of whether or not the prosecutor, by seeking a court order for production of evidence outside the process of a Grand Jury subpoena, may properly avoid the resultant cloak of immunity that falls upon a subpoenaed Grand Jury witness by virtue of § 190.40(2).

This challenge is, however, of abstract dimension. It finds neither conceptual, nor historical, foundation in the transactional immunity provisions of CPL § 190.40.

A literal reading of CPL § 190.40 and § 50.10 may suggest to some that anyone "who gives evidence" to a Grand Jury, regardless of type of evidence, i. e., testimonial or physical, and regardless of the import of such evidence on the question of the witness's guilt or innocence, will automatically trigger transactional immunity. The suggestion is illogical. See, e. g., People v. McFarlan, 42 N.Y.2d 896, 397 N.Y.S.2d 1003, 366 N.E.2d 1357 (1977), rev'g 52 A.D.2d 112, 383 N.Y.S.2d 4 (1st Dept. 1976), on opinion below, 89 Misc.2d 905, 909, 396 N.Y.S.2d 559, 561 (Aarons, J.)). Neither public policy, nor logic, support such conclusion.

The logic of the statutorial immunity provisions is that the prospective Grand Jury witness exchanges his otherwise privileged evidence for immunity from prosecution. Or, to put it another way, the Legislature exchanges its grant of immunity only for evidence that the witness is privileged to withhold. This principle is reflected in the statutes (CPL § 190.40, 50.10) and is firmly embedded in our law. See, People v. Steuding,6 N.Y.2d 214, 216-217, 189 N.Y.S.2d 166, 167-168, 160 N.E.2d 468, 469-470 (1959); People v. Laino, 10 N.Y.2d 161, 171-73, 218 N.Y.S.2d 647, 655-657, 176 N.E.2d 571, 577-578 (1961); Matter of Gold v. Menna, 25 N.Y.2d 475, 481, 307 N.Y.S.2d 33, 37, 255 N.E.2d 235, 238 (1969); Matter of Anonymous Attorneys, 41 N.Y.2d 506, 507, 508-10, 393 N.Y.S.2d 961, 962-964, 362 N.E.2d 592, 594, 596, see also, Immunity Statutes and the Constitution, 68 Columbia L.Rev. 959 (1968). To put it simply, our immunity statutes were never intended to give a gift of immunity for non-privileged evidence. See, e. g., Shapiro v. United States, 335 U.S. 1, 16, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). If the evidence sought by the People be not privileged, then the right to invoke the protective statutory immunity (of CPL § 190.40(2)) disappears. See, e. g., People v. De Feo, 308 N.Y. 595, 127 N.E.2d 592 (1955); Matter of Gold v. Menna, supra; People v. Pardo, 92 Misc.2d 985, 401 N.Y.S.2d 981 (1978).

Query then: Do our constitutional inhibitions against self-incrimination, i. e., the Fifth Amendment (U.S.Const.) and Art. 1 § 6 (N.Y.Const.), protect one against court-ordered compulsion to submit handwriting samples?

The answer is "no".

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) teaches that, "(B)oth federal and state courts have usually held that (the privilege) offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk or to make a particular gesture." (Supra, p. 764, 86 S.Ct. p. 1832.) In simplest terms, the "Fifth Amendment privilege" is confined to "communications" or "testimony" and the privilege is not applicable to a compelled display of physical characteristics.

The landmark trilogy of Wade-Gilbert-Stovall (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199), decided in the following year (1967) flowed naturally from Schmerber. While fixing the scope, dimension and limits of constitutionally permissible procedures surrounding identification of those suspected of criminal conduct, these decisions left undisturbed the principle that properly compelled display of identifiable physical characteristics infringes upon no interest protected by the privilege against compulsory self-incrimination. Thus, the Gilbert court, with specific reference to handwriting samples, unequivocally stated, "The taking of the exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination. * * * A mere handwriting exemplar, in contrast to the content of what is written, like the voice or (the) body itself, is an identifying physical characteristic outside (the Fifth Amendment's) protection." (Supra, 388 U.S. pp. 266-67, 87 S.Ct. p. 1953.)

Reaffirmation of the principle, that compelled display of personal physical characteristics (including both handwriting and voice exemplars) will not infringe on Fifth Amendment privileges, may be found in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

Similarly, our State courts have consistently supported the proposition that a person may be ordered to display non-testimonial physical characteristics, including handwriting, without infringement of Fifth Amendment privileges. See, People v. Goldberg, 19 N.Y.2d 460, 465-66, 280 N.Y.S.2d 646, 649-50, 227 N.E.2d 575, 578 (1967); People v. Craft, 28 N.Y.2d 274, 276-77, 321 N.Y.S.2d 566, 567-568, 270 N.E.2d 297, 298-299 (1971); Erlbaum v. Gold, 49 A.D.2d 594, 371 N.Y.S.2d 1, 35 (2nd Dept. 1975); People v. Rogers, 86 Misc.2d 868, 385 N.Y.S.2d 228 (1976); People v. Sanders, 58 A.D.2d 525, 395 N.Y.S.2d 190 (1st Dept. 1977); People v. Evans, 90 Misc.2d 195, 393 N.Y.S.2d 674 (1977); People v. Schwartz, N.Y.L.J., April 14, 1976, p. 9, col. 1; People v. Sims, N.Y.L.J., April 27, 1976, p. 6, col. 4.

By his present application (for court-ordered appearance and submission of handwriting samples) the Special Prosecutor has not stripped the respondent of any constitutional privilege against self-incrimination, nor of any protective immunity which might otherwise be available to him. ⁴

Having disposed of the contention that the request at bar could result, in effect, in any impermissible deprivation of respondent's inchoate right to transactional immunity, we next consider whether the requested court-ordered appearance and directive to provide handwriting exemplars may constitute an unreasonable "seizure" within the meaning of the Fourth Amendment (U.S.Const.) and Art. 1 § 12 (N.Y.Const.).

Again, both federal and state decisions dictate that this...