Spector v. Allen

CourtNew York Court of Appeals
Citation281 N.Y. 251,22 N.E.2d 360
PartiesSPECTOR v. ALLEN, Judge.
Decision Date11 July 1939


Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the application of George M. Spector, against the Honorable William Allen, Judge of the Court of General Sessions of the County of New York, to have annulled a determination by the respondent that petitioner was guilty of criminal contempt of court. From an order of the Appellate Division, 256 App.Div. 902, 10 N.Y.S.2d 234, affirming a confirmation of the determination, the petitioner after having obtained leave from the Supreme Court, Appellate Division, 256 App.Div. 921, 10 N.Y.S.2d 864, appeals.

Order of the Appellate Division reversed and determination of the respondent annulled.

FINCH and HUBBS, JJ., dissenting. John T. Dooling, Abner J. Rubien, and Martin W. Littleton, all of New York City, for appellant.

Thomas E. Dewey, Dist. Atty., of New York City (Murray I. Gurfein and Aaron

Benenson, both of New York City, of counsel), for respondent.

LEHMAN, Judge.

The appellant was served on August 23, 1938, with a subpoena duces tecum which commanded him ‘to appear before the grand jury of the County of New York, at the Grand Jury Room, * * * forthwith as a witness in a criminal action prosecuted by the People of the State of New York against John Doe and that you bring with you and produce, at the time and place aforesaid, General Ledgers, General Journals, Cash Receipt Books, Cash Disbursement Books, Cancelled Checks on all banks, Bank Statements, Petty Cash Books, Notes Receivable and Payable Books, Purchase Books, Accounts Receivable and Payable Ledgers, Insurance Record, Copies of Accountants' Reports, from January 1, 1933, to date, now in your custody, and all other deeds, evidences and writings which you have in your custody or power concerning the premises.’ He has been adjudged guilty of a criminal contempt by the Court of General Sessions pursuant to section 750, subdivision 3, of the Judiciary Law (Consol. Laws, c. 30) ‘by reason,’ so the mandate of commitment recites, ‘of his wilful disobedience to the lawful mandate of this Court; and further by reason of his failure to produce his records pursuant to a subpoena duly served upon him and the clarification thereof by the Foreman of the Grand Jury.’

There is no serious controversy in regard to the conduct of the appellant. He willfully refused to produce before the grand jury a paper which the foreman of the grand jury directed him to produce. He deliberately removed that record from the jurisdiction of the court. He so informed the jury and the court. The serious question presented upon this appeal is whether in so doing he disobeyed a lawful mandate of the court to produce that paper.

At the outset we note that the subpoena in a John Doe proceeding commands the appellant forthwith to produce books and ‘other deeds, evidences and writings which you have in your custody or power concerning the premises.’ The appellant, not yet informed of the nature of the proceeding which the grand jury was then investigating or even the name of the person who might be charged with the commission of a crime, proceeded promptly to the office of the district attorney. There he was questioned by an assistant district attorney and was told why he was summoned as a witness and the nature of the evidence the grand jury sought from him in its investigation. Though the record is not clear on that point, perhaps we may infer that he denied having such evidence. At the close of their talk the appellant was directed to appear before the grand jury at ten a. m. on August 25th and the appellant was handed a subpoena to appear before the grand jury at that time, but this subpoena required only the appellant's personal appearance. It did not require him to bring any books or records.

The appellant appeared on August 25th before the grand jury and answered all the questions put to him. He stated that he was engaged in business as an insurance broker and also did ‘a little financing.’ Informed that, in the course of the investigation which the grand jury was then conducting, the appellant's name had been connected in the books of a certain corporation with a loan or payment of $47,000 to that corporation, the appellant produced canceled checks and notes purporting to amount to $47,000 which he said were connected with the transaction shown on the books of the corporation. Questioned in regard to his records and books, he stated that he kept no books or regular records; but he admitted that each month when he received his canceled checks he entered upon a ‘yellow paper’ the amounts owing to him for commissions, premiums advanced, or loans. The foreman of the grand jury then directed him to appear on the following Monday and to produce ‘whatever notes or records or papers or whatever yellow sheets you may have.’ He was asked by the District Attorney: ‘Do you understand what we mean by a yellow paper?’ He said that he understood and would bring it on Monday, August 29th.

On that day he produced a ‘yellow paper’ but stated that he had torn off the names of the persons with whom he did business. He explained that his bank had shown displeasure because it had received a subpoena to produce his accounts and he feared that if he divulged the names of his clients they might be questioned and as a result his business would be ruined. He admitted that he kept a ‘duplicate’ which showed the names. He was ordered by the foreman to bring the duplicate the next morning. He appeared the next morning but stated that he had sent the paper to a friend in Massachusetts. Then the foreman of the grand jury directed the District Attorney to bring proceedings to punish the appellant for contempt.

The appellant was brought before a judge of the Court of General Sessions. There the District Attorney dictated what he said we should call the specifications of this contempt, a copy of which may be served upon counsel for the witness and which will act as the charges under which the witness is here brought.’ Counsel for the appellant then said: ‘I must request the court for an adjournment until tomorrow morning in order to prepare this case, and in order to prepare a brief on the law.’ The District Attorney consented, and the request for an adjournment was granted. Before the court adjourned the District Attorney stated that ‘as a matter of public policy I do not wish to divulge any further at this time’ the details of the investigation by the grand jury. Counsel for the appellant stated that ‘I shall see that he will have these records here by twelve o'clock tomorrow and I will ask at that time that he have an opportunity to purge himself of contempt.’

The court without objection from the appellant's counsel and without request for further adjournment heard the proof the next day. At the close of the hearing he adjudged the appellant guilty of contempt of court and refused to permit the appellant to purge himself of contempt. No complaint may fairly be made of the procedure adopted. It complied with the provisions of section 751 of the Judiciary Law. Though the contempt was not ‘committed in the immediate view and presence of the court (Cf. Matter of Douglas v. Adel, 269 N.Y. 144, 199 N.E. 35), the party charged was ‘notified of the accusation’ and had a ‘reasonable time to make a defense.’ These statutory requirements are intended to protect the right of an accused to appear and defend himself. What constitutes sufficient notice and reasonable time to make a defense depends upon the particular circumstances of each case. The purpose of the requirement must never be lost sight of; the rights of an accused must always receive adequate protection. They were fully protected in this case by the procedure suggested by the District Attorney and approved by the court. The accused and his counsel were fully apprised of the nature of the charge and no further details were requested. Amplification of the charge presented, or more exact definition, might have opened the way for technical objections but would not have facilitated a defense on the merits. The accused was accorded the time requested by counsel to prepare his defense. He was ready then and, even...

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