Koota v. Colombo — 17 N.Y.2d 147

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p. 147

In the Matter of Aaron E. Koota, District Attorney of Kings County, on Behalf of the Regular April 1964 Grand Jury of the County of Kings, Respondent, v. Joseph Colombo et al., Appellants.

Argued February 23, 1966;

decided March 24, 1966.

p. 148

Maurice Edelbaum for John Oddo, Joseph Livoti and Salvatore Peritore, appellants.

I. The grand jury lacked jurisdiction to interrogate the witnesses concerning alleged happenings in Sullivan County. (Matter of Murtagh v. Leiboivitz, 303 N. Y. 311 ; People v. Spivak, 237 N. Y. 460 ; People v. Werblow, 241 N. Y. 55 .) II. An incomplete immunity became lodged when the witnesses, being prospective defendants, were sworn by the grand jury. This may well have precluded any subsequent conferral of the complete statutory immunity under section 2447 of the Penal Law. The defectiveness thereby arising in the immunity conferrals subjects appellants to the risk, or at least to the reasonable fear of the risk, of both State and Federal prosecution notwithstanding the ostensible conferrals of State immunity. (People v. De Feo, 308 N. Y. 595 ; Matter of Spector v. Allen, 281 N. Y. 251 ; Sherwin v. People, 100 N. Y. 351 ; Briddon v. Briddon, 229 N. Y. 452 ; People ex rel. Munsell v. Court of Oyer, 101 N. Y. 245 ; Matter of New York County Lawyers’ Assn. v. Lehman, 256 App. Div. 677 ; People v. Laino, 10 N Y 2d 161 ; People v. Steuding, 6 N Y 2d 214 ; Murphy v. Waterfront Comm., 378 U. S. 52 ; United States v. Interborough Delicatessen Dealers Assn., 235 F. Supp. 230 .) III. Appellants were not constitutionally convicted of criminal contempt because they were reasonably entitled to fear that Federal prosecutive officials may decline to be bound by the State conferrals of immunity herein on the ground that such were abortive as having been done by a State grand jury which did not have constitutional jurisdiction of the entire basic investigative subject matter. (Malloy v. Hogan, 378 U. S. 1 ; Murphy v. Waterfront Comm., 378 U. S. 52 .) IV. In the circumstances of this case any conferral of immunity must prove to be constitutionally abortive because the grand jury questions were aimed at eliciting information which in its nature might subject the witnesses (the within appellants) to prosecution for alleged continuing or future crimes as to which “ immunity ” would be intrinsically and ipso facto illusory. V. Appellants should have been given an opportunity to explore the question which they were so insistently putting, of whether this entire grand jury investí

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gation, as it purported to relate to them, was a legitimate exercise of the grand jury’s powers of criminal investigation, or whether instead it was merely a fishing intrusion upon constitutionally protected individual privacy, an exercise in mere suspicion, or, even worse, an unworthy attempt by the prosecutor (using the grand jury) to jail our clients without legal cause by “working up” an immunity-contempt situation against a group of suitable victims. (People v. Steiger, 154 Misc. 538 ; Hale v. Henkel, 201 U. S. 43 ; Matter of Spector v. Allen, 281 N. Y. 251 ; People v. Stern, 3 N Y 2d 658 ; Matter of Morse, 42 Misc. 664 ; Matter of Grand Jury Assn. of N. Y. County v. Schweitzer, 11 A D 2d 761 ; In re Lester, 77 Ga. 143 ; Hobson v. District Ct., 188 Iowa 1062 ; State v. Wilcox, 104 N. C. 847 ; State v. Lee, 87 Tenn. 114 ; United States v. Kilpatrick, 16 F. 765 .) VI. The right to a due process hearing on charges of criminal contempt amounted to a charge of crime and entitled defendant to a trial as for crime. (People ex rel. Barnes v. Court of Sessions, 147 N. Y. 290 ; Matter of Douglas v. Adel, 269 N. Y. 144 ; Matter of Rotwein [Goodman], 291 N. Y. 116 ; United States v. Mine Workers, 330 U. S. 258 ; People v. De Feo, 308 N. Y. 595 ; Matter of Boasberg v. Munson, 286 App. Div. 951 ; Baumgartner v. Baumgartner, 273 App. Div. 411 ; Ditomasso v. Loverro, 242 App. Div. 190 ; Harris v. United States, 382 U. S. 162 .)

David F. Price for remaining appellants.

Aaron E. Koota, District Attorney (Irving P. Seidman and Elliott Golden of counsel), for respondent.

I. The grand jury is conducting a lawful and proper investigation and an investigation by a grand jury involves all the powers necessary to a complete inquiry. (People ex rel. Karlin v. Culkin, 248 N. Y. 465 ; People v. Stern, 3 N Y 2d 658 ; Matter of Edge Ho Holding Corp., 256 N. Y. 374 ; Matter of Manning v. Valente, 272 App. Div. 358 , 297 N. Y. 681 ; Blair v. United States, 250 U. S. 273 ; Hendricks v. United States, 223 U. S. 178 ; Hale v. Henkel, 201 U. S. 43 ; People v. Riela, 9 A D 2d 481 , 7 N Y 2d 571 , 364 U. S. 915 ; Giancana v. United States, 352 F. 2d 921 .) II. The witnesses have not been deprived of due process of law guaranteed by the Fourteenth Amendment of the Constitution of the United States. (Murphy v. Waterfront Comm., 378 U. S. 52 ; Matter of

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Ushkowitz v. Helfand, 15 N Y 2d 713 ; People ex rel. Cirillo v. Warden of City Prison, 11 N Y 2d 51 .)

The appellants, although granted the complete immunity provided for by section 2447 of the Penal Law, refused to testify before a Kings County Grand Jury and were adjudged guilty of criminal contempt (Judiciary Law, § 750, subd. A, par. 3). The Appellate Division unanimously affirmed, and this court granted leave to consider, primarily, two grounds urged by the appellants for reversal, namely, (1) that the testimony sought from them was not relevant to the inquiry being conducted by the grand jury and (2) that they were denied due process at the hearing accorded them.

It has long been the rule in New York that “ there can be no punishment for contempt for * * * [refusing to testify before the grand jury] unless the court is shown that the evidence demanded may be relevant and proper”. (Matter of Spector v. Allen, 281 N. Y. 251 , 258; see Matter of Manning v. Valente, 272 App. Div. 358 , affd. 297 N. Y. 681 ; People v. Doe [Byk], 247 App. Div. 324 , affd. 272 N. Y. 473 ; Matter of Greenleaf v. Goldstein, 176 Misc. 566 , affd. 266 App. Div. 658 , affd. 291 N. Y. 690 .) However, although the court must be apprised of " the nature of the evidence demanded and of its relation to the subject of the investigation” (Matter of Spector v. Allen, 281 N. Y. 251 , 258, supra), the relevancy of the questions need not be conclusively established. It is enough if the “bearing [of the questions] on the subject of the investigation was susceptible of intelligent estimate ” (Matter of Spector v. Allen, 281 N. Y. 251 , 258, supra) or if there was a " justifiable suspicion that the former is related to the latter.” (People v. Doe [Byk], 247 App. Div. 324 , 326, affd. 272 N. Y. 473 , supra.)

Applying this test to the record before us, we find no basis for countenancing appellants’ refusals to answer the questions put to them. The grand jury was, and still is, seeking to determine whether criminals have infiltrated into legitimate businesses in Kings County and are now using them as covers for further illicit activities. Far from being summoned “ in a spirit of meddlesome inquiry ” (Hale v. Henkel, 201 U. S. 43 , 63), the appellants were subpoenaed to testify because, according to the district attorney, they are all associated, either directly or through each other, with two Kings County corporations that are

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among the enterprises under investigation. The relevancy of the testimony sought from these witnesses is, therefore, clearly “susceptible of intelligent estimate”.

The appellants complain that they were subjected to “ summary” treatment at trial, depriving them of due process by denying them an adequate opportunity to contest the propriety of the questions. However — putting to one side the question whether the court could have acted summarily (see People ex rel. Hackley v. Kelly, 24 N. Y. 74 , 79-80)—the record establishes that the proceedings below were neither ‘ ‘ summary ’ ’ nor lacking in “ due process ”. (See People ex rel. Cirillo v. Warden, 11 N Y 2d 51 , 53.)

Section 751 of the Judiciary Law provides that, in other than summary proceedings, ‘ ‘ the party charged [with contempt] must be notified of the accusation, and have a reasonable time to make a defense.” Here, the appellants were afforded ample notice of the proceedings; they were represented by counsel, apprised of the relationship between their testimony and the purposes of the grand jury inquiry and given every opportunity to explain their contumacious behavior. Moreover, each lawyer was supplied with the grand jury minutes covering the appearance of his client and given permission to submit a brief after the proceedings were adjourned. Six weeks later, when the trial judge had given full and thorough consideration to the appellants’ contentions, they were afforded additional opportunities to justify their silence or to purge themselves of contempt. At no time did they offer any evidence to support the charge that the district attorney was acting in bad faith. In short, the appellants were accorded every procedural safeguard to which they were constitutionally entitled. (See Matter of Ushkowitz v. Helfand, 15 N Y 2d 713 ; People ex rel. Cirillo v. Warden, 11 N Y 2d 51 , supra; see, also, Murphy v. Waterfront Comm., 378 U. S. 52 .)

The recent case of Harris v. United States ( 382 U. S. 162 ), upon which the appellants rely, is not in point. There, a recalcitrant witness before a Federal grand jury was summarily convicted of contempt. The Supreme Court reversed in order to permit virtually the same sort of hearing held in the present case (382 U. S., at pp. 165-167; see Fed. Rules of Crim. Pro., rule 42 [b]).

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We have considered the other arguments advanced by the petitioners and conclude that they too are without merit.

The orders of the Appellate Division should be affirmed, without costs.

Chief Judge Desmond and Judges Van Voorhis, Burke, Scileppi, Bergan and Keating concur.

Orders affirmed.

Cases cited

Murtagh v. Leibowitz 303 N. Y. 311 N.Y. 1951-10-18 p. 148
People v. Werblow 241 N. Y. 55 N.Y. 1925-07-15 p. 148
People v. De Feo 308 N. Y. 595 N.Y. 1955-06-09 p. 148, p. 149
Spector v. Allen 281 N. Y. 251 N.Y. 1939-07-11 at 258 p. 148, p. 149, p. 150
Sherwin v. People 100 N. Y. 351 N.Y. 1885-11-24 p. 148
Briddon v. Briddon 229 N. Y. 452 N.Y. 1920-10-19 p. 148
People ex rel. v. Court of Oyer & Terminer 101 N. Y. 245 N.Y. 1886-01-19 p. 148
People v. Laino 10 N Y 2d 161 N.Y. 1961-07-07 p. 148
People v. Steuding 6 N Y 2d 214 N.Y. 1959-07-08 p. 148
Murphy v. Waterfront Commission of New York Harbor 378 U. S. 52 SCOTUS 1964-06-15 p. 148, p. 149, p. 151
Malloy v. Hogan 378 U. S. 1 SCOTUS 1964-06-15 p. 148
People v. Steiger 154 Misc. 538 N.Y. Ct. Gen. Sess. 1935-02-18 p. 149
Hale v. Henkel 201 U. S. 43 SCOTUS 1906-03-12 at 63 p. 149, p. 150
People v. Stern 3 N Y 2d 658 N.Y. 1958-02-20 p. 149
In re Morse 42 Misc. 664 N.Y. Ct. Gen. Sess. p. 149
Grand Jury Ass'n of New York County, Inc. v. Schweitzer 11 A D 2d 761 N.Y. App. Div. 1960-07-06 p. 149
People ex rel. Barnes v. Court of Sessions of Albany County 147 N. Y. 290 N.Y. 1895-10-29 p. 149
Douglas v. Adel 269 N. Y. 144 N.Y. 1935-11-19 p. 149
In re Rotwein 291 N. Y. 116 N.Y. 1943-10-14 p. 149
United States v. United Mine Workers of America 330 U. S. 258 SCOTUS 1947-03-06 p. 149
Harris v. United States 382 U. S. 162 SCOTUS 1965-12-06 p. 149, p. 151
People ex rel. Karlin v. Culkin 248 N. Y. 465 N.Y. 1928-07-19 p. 149
In re Edge Ho Holding Corp. 256 N. Y. 374 N.Y. 1931-06-02 p. 149
Manning v. Valente 297 N. Y. 681 N.Y. 1947-11-13 p. 149, p. 150
Blair v. United States 250 U. S. 273 SCOTUS 1919-06-02 p. 149
Hendricks v. United States 223 U. S. 178 SCOTUS 1912-02-19 p. 149
People v. Riela 9 A D 2d 481 N.Y. App. Div. 1959-12-31 p. 149
People v. Riela 7 N Y 2d 571 N.Y. 1960-04-21 p. 149
Ushkowitz v. Helfand 15 N Y 2d 713 N.Y. 1965-01-07 p. 150, p. 151
People ex rel. Cirillo v. Warden of City Prison 11 N Y 2d 51 N.Y. 1962-02-22 at 53 p. 150, p. 151
People v. Doe 272 N. Y. 473 N.Y. 1936-07-08 p. 150
In re Greenleaf 176 Misc. 566 N.Y. Ct. Gen. Sess. 1941-05-03 p. 150
Greenleaf v. Goldstein 291 N. Y. 690 N.Y. 1943-11-18 p. 150
People ex rel. Hackley v. Kelly 24 N. Y. 74 N.Y. at 79-80 p. 151

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Cases cited

Statutes and regulations cited