Tyrone S., Matter of

• Decision Date: 27 September 1977
• Citation: 399 N.Y.S.2d 362,91 Misc.2d 1055
• Parties: In the Matter of TYRONE S., a person alleged to be a juvenile delinquent.
• Court: New York Family Court

Page 362

399 N.Y.S.2d 362

91 Misc.2d 1055

In the Matter of TYRONE S., a person alleged to be a juvenile delinquent.

Family Court, New York County.

Sept. 27, 1977.

Larry K. Schwartzstein, New York City, and Judith B. Levy, for petitioner.

Jerome D. Slate, New York City, for respondent.

Harold Rosen, New York City, for co-perpetrator.

STANLEY GARTENSTEIN, Judge.

The respondent in this proceeding is charged with robbery in the first degree under Penal Law § 160.15, an act defined as a designated felony under the Juvenile Justice Reform Act of 1976. The alleged co-perpetrator is before the adult criminal justice system similarly charged.

During the course of the trial, respondent caused a subpoena to be served upon his co-perpetrator currently being held by the Department of Corrections pending trial. This was done despite a special appearance by the co-perpetrator's attorney during the course of proceedings to represent on record that his client would invoke a blanket privilege against self incrimination under the 5th and 14th Amendments. The co-perpetrator now moves for an order quashing this subpoena in its entirety. Respondent's counsel opposes the motion to quash claiming that the subpoenaed witness must first submit to the court and be sworn before invoking his constitutional privilege against self-incrimination during the course of the trial. It is argued that compulsion to appear and be sworn is not offensive to constitutional protections (citing People v. Jones, 53 Misc.2d 838, 279 N.Y.S.2d 892) and that this court must weigh and rule on the claim of constitutional privilege when specifically invoked.

It is settled law that the right to claim the constitutional privilege against self-incrimination belongs exclusively to the person who seeks to invoke it (Slater v. Slater, 78 Misc.2d 13, 355 N.Y.S.2d 943) and that the prospective witness is in the best position to determine whether or not his testimony may tend to incriminate him (In re Cohen, 9 A.D.2d 436, 195 N.Y.S.2d 990, aff. 7 N.Y.2d 488, 199 N.Y.S.2d 658, 166 N.E.2d 672).

The court notes authority for the proposition that a "target" of investigation or of actual criminal proceedings need not even invoke the constitutional privilege where he has indicated a refusal to waive immunity (cf. People v. Leto, 41 A.D.2d 877, 342 N.Y.S.2d 901; People v. Laino, 10 N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571).

Clearly the co-perpetrator now imprisoned awaiting trial for the same occurrence...