United States v. Warden of Wallkill Prison

Decision Date25 August 1965
Citation246 F. Supp. 72
PartiesUNITED STATES of America, ex rel. Frank LAINO, Relator, v. WARDEN OF WALLKILL PRISON, Ulster County, New York, Respondent.
CourtU.S. District Court — Southern District of New York

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John R. Davison, Albany, N. Y., Stephen D. Finale, New York City, of counsel, for relator.

Louis J. Lefkowitz, Atty. Gen. for State of New York, Twining & Fischer, Binghamton, N. Y., Robert E. Fischer, Sp. Asst. Atty. Gen., of counsel, for respondent.

TENNEY, District Judge.

Relator is presently incarcerated in Wallkill Prison, Wallkill, New York, pursuant to a judgment of conviction entered December 1, 1961, after a trial by jury at an Extraordinary Special and Trial Term of the Supreme Court, Oneida County in Rome, New York, at which time he was sentenced to a term of five to ten years for each of the crimes of bribery and grand larceny in the first degree and to a term of three and one-half to seven years for the crime of fraudulently presenting bills or claims to public officers for payment, all sentences to run concurrently.

The judgment of conviction was affirmed without opinion by the Appellate Division, Fourth Department, 17 A.D.2d 1029 (4th Dep't 1962), and leave to appeal to the New York Court of Appeals was denied on January 3, 1963 by Associate Judge Stanley H. Fuld. Relator's appeal to the United States Supreme Court was dismissed in a per curiam opinion, and after treating his papers as a petition for a writ of certiorari, the petition was denied by the Court, two Justices being of the opinion that probable jurisdiction should be noted. Laino v. New York, 374 U.S. 104, 83 S.Ct. 1687, 10 L.Ed.2d 1027 (1963).

On January 28, 1964, a motion by relator in the New York Court of Appeals, addressed to Judge Fuld, for reargument of the prior denial of his motion for leave to appeal, was denied. Thereafter relator petitioned this Court for a writ of habeas corpus, which petition was dismissed by the Honorable Wilfred Feinberg with leave to renew after disposition of an application to be made by relator for reargument in the New York Court of Appeals. United States ex rel. Laino v. Wallack, 231 F.Supp. 733 (S.D.N.Y. 1964). This determination was predicated on two Supreme Court decisions rendered after January of 1964, involving the scope of the privilege against self-incrimination and its application to state procedure. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). In view of those decisions, Judge Feinberg was of the opinion that the New York State courts should have an opportunity to reexamine their prior decisions in the light of the Supreme Court pronouncements.

On July 10, 1964, relator once again applied to Judge Fuld for reargument of the latter's decision of January 28, 1964, which had denied the motion to reargue the prior denial of leave to appeal to the Court of Appeals. In a letter decision of October 14, 1964, Judge Fuld denied relator's application, setting forth therein his reasons for such denial.

Relator now reapplies to this Court for the requested relief, contending that his present incarceration is in violation of his federally-protected rights.

The general historical background does not appear to be in dispute and will be concisely set forth as culled from the papers submitted herein and Judge Feinberg's prior decision. 231 F.Supp. 734-735.

Relator, previous to the proceeding in question, had been convicted in July 1960 after a non-jury trial at an Extraordinary Special and Trial Term of the Supreme Court, Oneida County, of income tax evasion in violation of the Tax Law of the State of New York. This conviction was reversed by the Court of Appeals on July 7, 1961, on the ground that testimony of relator before the Extraordinary Grand Jury (see 231 F.Supp. at 734 n. 3) which had indicted him on the tax evasion counts had been obtained under compulsion of subpoena and used against him at the trial in violation of his privilege against self-incrimination under the New York Constitution (art 1 § 6). People v. Laino, 10 N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571 (1962). The Court further held that, since relator failed to comply with the procedural requirements of the New York immunity statute (Section 2447 of the Penal Law, McKinney's Consol.Laws, c. 40), he could be reindicted "if sufficient evidence, independent of the evidence, links, or leads furnished by relator * * * is adduced to support it * * *." 10 N.Y.2d at 173, 218 N.Y.S.2d at 657, 176 N.E.2d at 578.

On December 21, 1960, and January 12, 1961, subsequent to the income tax conviction but prior to its reversal, relator appeared before the original Extraordinary Grand Jury and after executing a limited waiver of immunity testified inter alia with respect to the sales by the Laino-Fisk Tire Service to the City of Utica. On January 30, 1961, an additional Grand Jury that had been inquiring into these tire sales and before whom relator never testified handed down the indictment which is the basis of the conviction presently being attacked.

Relator's manifold assertions can be condensed to two main points of reference: (a) the 1959 appearance before the Grand Jury (hereinafter at times referred to as "first Grand Jury appearance"), from which sprang his income tax conviction and reversal by the Court of Appeals; (b) his appearances in 1960 and 1961 before the Grand Jury (hereinafter at times referred to as "second and third appearances" respectively), and the signing of the limited waiver from which sprang the conviction now under attack.

The first point of reference involves not only his first Grand Jury appearance, but also (1) his assertion that his present conviction was obtained as a result of links and leads resulting therefrom; and (2) his further assertion that at trial the trial court improperly placed upon him the burden of proving that links and leads from his prior tainted testimony were used to secure the present indictment rather than placing on the People the burden of disproving this.

Insofar as the second and third appearances are concerned, relator contends that his testimony on those occasions violated his federal and state constitutional right in that the waiver of immunity was improperly obtained, and that the statute upon which it is based is unconstitutional. He apparently further contends that after his first appearance he acquired absolute immunity from prosecution.

The thrust of relator's contentions, as they relate to the 1959 appearance and all that allegedly flows therefrom, do not rise to the level of constitutional violation even if we assume, arguendo, that his factual assertions find support in the record. Moreover, on the merits I find that his assertions are not factually tenable in the light of the record submitted herein and the prior decisions by the New York courts.

Under New York law, as applied in the reversal of relator's prior conviction, "a prospective defendant or one who is a target of an investigation may not be called and examined before a Grand Jury, and, if he is, his constitutionally-conferred privilege against self incrimination New York Const. art. I § 6 is deemed violated even though he does not claim or assert the privilege." People v. Steuding, 6 N.Y.2d 214, 216-217, 189 N.Y.S.2d 166, 167, 160 N.E.2d 468, 469 (1959).

In his first appearance in 1959, relator was subpoenaed to appear before the Grand Jury, and it was the subpoena which provided the compulsion necessary to automatically raise the constitutional privilege. Accordingly, the Court held that "in such a case where a prospective defendant is subpoenaed to appear before a Grand Jury the subpoena is deemed to be a form of compulsion, and the testimony thus compelled may not be used as the basis for an indictment, or for any other purpose." People v. Laino, supra, 10 N.Y.2d at 171, 218 N.Y.S.2d at 655, 176 N.E.2d at 577. In view of this expanded scope of the self-incrimination privilege which is applied in New York,1 relator's first conviction which resulted from testimony adduced after he was subpoenaed to appear, was held violative of this right and no use could be made of the testimony.

While this may very well be the law in New York, it is clear beyond dispute that such is not the law in the federal courts, nor is such an expanded privilege within the scope of the Fifth Amendment as encompassed in the due process clause of the Fourteenth Amendment. Thus, under the Federal Constitution, the mere fact that a prospective defendant is subpoenaed to appear before a Grand Jury does not, without more, violate any federally-protected rights, nor is the testimony given at such time in any way constitutionally tainted. United States v. Winter, 348 F.2d 204 (2d Cir. July 2, 1965) petition for cert. filed, 8/26/65, 34 U.S.L. Week 3081 (9/14/65) (see cases cited therein at n. 5 and n. 6). Accordingly, though the New York Court of Appeals found relator's forced appearance to have violated the New York Constitution, it did not find, nor could it have found, this appearance to have violated the Federal Constitution. Thus there was no abrogation of relator's rights against self-incrimination under the Federal Constitution by reason of the first appearance.

This broadened state standard of the self-incrimination privilege and its violation is "of course not proscribed by Malloy v. Hogan. A State may grant to its citizens greater (but not lesser) standards than those required by the Fifth Amendment's privilege via the Due Process Clause of the Fourteenth." Sobel, The Privilege Against Self-Incrimination "Federalized", 31 Brooklyn L. Rev. 1, 41 (1964); see also id. at 26, 27. However, by the same token, an abrogation of the broader state protection, which is not violative of the narrower federal protection, cannot be held to constitute a violation of the...

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