United States ex rel. Buonoraba v. COMMISSIONER OF COR., CITY OF NY

• Citation: 316 F. Supp. 556
• Decision Date: 11 August 1970
• Docket Number: No. 70 Civ. 3013.,70 Civ. 3013.
• Parties: UNITED STATES of America ex rel. John BUONORABA, Dominick D'Amico, Dominick Pilotta, Joseph Sarcinella, John Varone, Leonard Vento, Rudolph Santabello and Alfred Mauriello, Petitioners-Relators, v. COMMISSIONER OF CORRECTION, CITY OF NEW YORK, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

316 F. Supp. 556

UNITED STATES of America ex rel. John BUONORABA, Dominick D'Amico, Dominick Pilotta, Joseph Sarcinella, John Varone, Leonard Vento, Rudolph Santabello and Alfred Mauriello, Petitioners-Relators, v. COMMISSIONER OF CORRECTION, CITY OF NEW YORK, Respondent.

No. 70 Civ. 3013.

United States District Court, S. D. New York.

August 11, 1970.

COPYRIGHT MATERIAL OMITTED

Irving Anolik, New York City, for petitioners-relators.

Frank S. Hogan, Dist. Atty., New York County, for respondent; Lewis R. Friedman, Asst. Dist. Atty., of counsel.

OPINION

MacMAHON, District Judge.

Each of the petitioners is currently serving a ninety-day sentence for contempt following indictment, trial and conviction before three judges in the Criminal Court of the City of New York for violation of former New York Penal Law § 600(6) (McKinney's Consol.Laws. c. 40, 1944), for refusing to answer questions before a grand jury after being granted immunity under former New York Penal Law § 2447 (McKinney 1966). Each challenges the validity of his conviction under the Fifth, Sixth and Fourteenth Amendments on the grounds that: (1) he was never brought before a judge and directed to answer the prosecutor's questions after he had invoked the Fifth Amendment; (2) he was neither permitted, nor advised of his right, to leave the grand jury room and consult with his lawyer who was present outside and (3) he was denied his right to a jury trial.

The convictions were affirmed by the Appellate Term, First Department. Leave to appeal to the Court of Appeals was granted, and the claims made here were urged and unanimously rejected there without opinion. Application for a stay pending filing of a petition for certiorari was denied on June 29, 1970 by Mr. Justice Harlan.

There are no issues of fact so we proceed at once to the merits.

Lack of Judicial Direction to Answer

During the course of an investigation into a conspiracy to bribe labor representatives and related crimes, the New York County grand jury subpoenaed petitioners, among other witnesses. Each was accompanied by an attorney who waited outside the grand jury room. An Assistant District Attorney explained the purposes of the proceeding and advised each petitioner that he could refuse to answer questions on the ground of possible self-incrimination and that, if he refused to answer on that ground and the Assistant asked the Foreman to direct him to answer and he were so directed, the witness would be granted immunity from prosecution. The Assistant further explained the scope of the immunity and stated that once it was granted no prosecution could be had for any crimes disclosed as a result of an answer except for perjury, or, if the witness persisted in his refusal, contempt.

Petitioners Sarcinella, Pilotta and Coppabianca said their attorney had explained their rights to them and that they understood the Assistant's explanation; Mauriello said his attorney had not explained his rights to him but acknowledged that he understood the Assistant's explanation; the remaining petitioners, claiming possible self-incrimination, refused to answer whether they had been advised of their rights or whether they understood the Assistant's explanation.

Each petitioner was then asked at least four questions as to whether he was employed by Service Loading Corporation or had been paid for working for that company when in fact he had performed no services. Each refused to answer. The Foreman of the grand jury, upon the Assistant's request, in accordance with a vote previously taken, directed each petitioner to answer. Each persisted in his refusal. After these refusals, the fact that immunity had been tendered was again explained by the Assistant.

No petitioner raised any question about the scope of his privilege or of the immunity to be conferred. Nor was any claim made of lack of understanding of the question; nor of its relevance or materiality. None asked to be brought before a judge for any reason; nor to leave the grand jury room to consult with his counsel; nor were any advised of their right to do so by the Assistant.

The grand jury and the Assistant had satisfied all the procedural prerequisites for conferral of immunity under former Penal Law § 2447.¹ If a petitioner had answered, he would have acquired immunity from prosecution "for or on account of any transaction, matter or thing concerning which * * * he gave answer or produced evidence."² Each would thus have "obtained an immunity from prosecution for any and all crimes to which their testimony might relate and accordingly could not assert the privilege against self incrimination and refuse to testify."³ There can be no question that each petitioner, "after being sworn, refused to answer any legal and proper interrogatory."⁴

Petitioners now claim that they were deprived of due process because, after they refused to comply with the Foreman's directions to answer, they were not taken before a judge to have their rights explained to them and to be directed to return to the grand jury room and answer the questions.

The Applicable Statutes

Former Penal Law § 600(6) provides:

"A person who commits a contempt of court, of any one of the following kinds, is guilty of a misdemeanor:

* * * * * *

Contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal or proper interrogatory; * * *"

Former Penal Law § 2447 provides:

"1. In any investigation or proceeding where, by express provision of statute, a competent authority is authorized to confer immunity, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and, notwithstanding such refusal, an order is made by such competent authority that such person answer the question or produce the evidence, such person shall comply with the order. If such person complies with the order, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided for herein.

2. `Immunity' as used in this section means that such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence, in accordance with the order, and any such answer given or evidence produced shall be admissible against him upon any criminal proceeding concerning such perjury or contempt.

3. `Competent authority' as used in this section means:

* * * * * *

(c) The grand jury before which a person is called to answer questions or produce evidence, when such grand jury is expressly requested by the prosecuting attorney to order such person to give answer or produce evidence; * * *"

In affirming petitioners' convictions, the New York Court of Appeals followed earlier New York cases construing these statutes, which have consistently held that as long as the statutory formula for conferring immunity under former Penal Law § 2447 is followed, as it was here, the grand jury has power to order the witness to respond to "any legal or proper" question under pain of contempt without a further directive or order from the court.⁵ This construction of the New York statutes by the highest court of the state raises the question of whether petitioners were deprived of due process when they were indicted, tried and convicted of criminal contempt, although no court ever ordered or directed them to answer the grand jury's questions.

We note at the outset that the state procedure differs from federal practice, which entitles a witness before a grand jury to persist in his refusal free from contempt until the court orders him to answer.⁶ States, however, have wide latitude to fashion their own rules of criminal procedure. The Due Process Clause of the Fourteenth Amendment requires that these procedures be fundamentally fair in all respects, but it does not impose on the states the rules that may be in force in the federal courts, except where such rules are also found to be essential to basic fairness.⁷ As Mr. Justice Cardozo observed, a state rule of law "does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar."⁸

The Fourteenth Amendment denies the states the power to "deprive any person of life, liberty or property without due process of law." Many of the rights guaranteed by the first eight amendments to the Constitution have been held to be protected against state action by the Due Process Clause, including the Sixth Amendment's right to counsel, to a speedy and public trial, to confrontation of opposing witnesses and to compulsory process for obtaining witnesses.⁹

The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways. Federal courts seek to determine whether a right is among those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,"¹⁰ whether it is "basic in our system of jurisprudence,"¹¹ and whether it is "a fundamental right, essential to a fair trial."¹²

Petitioners fail to demonstrate how they have been deprived of any of these essential rights or how there is anything fundamentally unfair in New York's procedures for initiating prosecutions for criminal contempt when...