Majority
After trial by jury, defendant Elliot Shapiro was convicted on a consolidated indictment of promoting prostitution in the first degree and endangering the welfare of a minor (under Indictment No. 117), sodomy in the second degree (under Indictment No. 118), and 11 counts of sodomy in the third degree (under Indictment No. 143).[1] In his appeal to us he claims, in the main (1) that, in the circumstances of the case, it was an abuse of discretion as a matter of law for the trial court to have denied his motion to sever Indictment No. 143 from the trial of the other two; (2) that his due process rights were violated when, while his three prospective witnesses were considering whether to persist in the invocation of their privilege against self incrimination, the District Attorney openly, repeatedly and unqualifiedly advised them that testimony on behalf of the defendant would subject them to prosecution for perjury; and (3) that the eavesdropping orders secured by the police were invalid because they exceeded the bounds set by the governing Federal wiretapping statute (US Code, tit 18, § 2516). We find merit in each of these contentions and, therefore, reverse defendant’s conviction and order a new trial.
Pertinent to the analyses on which these conclusions rest are the following:
In Indictment No. 143, Shapiro was accused of engaging repeatedly in a course of homosexual sodomitic acts on various occasions over a 17-month period between July, 1972 and November, 1973 with eight different high school boys each of whom was under the age of 17. Though it developed at trial that each of the youths had received money from the defendant, it was never claimed that force of any kind was employed to obtain their participation. In all, this indictment embraced a total of 64 criminal counts.
The other two indictments (No. 117 and No. 118), unlike No. 143, were not premised on any explicit or implicit claim that the defendant was a frequent actor in sexually aberrant conduct but, centering rather on the far more serious crime of promoting such conduct, confined themselves to a single event
1 His conviction was affirmed by the Appellate Division, although the judgment was modified to reduce the maximum term of imprisonment from 12 to 7 years and to provide that the sentences should run concurrently ( 67 AD2d 958 ).
I
The joinder of the indictments was effected under the authority of CPL 200.20 (subd 4). This section permits a court for trial purposes to consolidate and treat as a single indictment "two or more indictments against the same defendant * * * [which] charge different offenses of a kind that are joinable in a single indictment”. The determination of the application is discretionary (CPL 200.20, subd 5). Defendant does not challenge the joining of the two indictments stemming from the January 31, 1974 incident (see CPL 200.20, subd 2, par [b]), but argues, as he did when the original motion was made, that
If justification for the joinder of the multiple event indictment with the others is to be found it would have to be under the statute’s broadest possible conception of "joinable offenses”, i.e., when two or more "offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20, subd 2, par [c]). But this language does not stand alone. Apparently cognizant of the sweeping compass of this provision, the legislative scheme introduces cautions designed to alleviate the potential for prejudice. Thus, CPL 200.20 (subd 3) declares that, when the joinability of offenses rests solely on the grounds specified in paragraph (c) of subdivision 2, "the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the People, in its discretion order that any one of such offenses or groups of offenses be tried separately from the other or others”. Surely, "the interest of justice” and "good cause shown”, though elastic, are more than resounding phrases.
True, in determining that consolidation was appropriate, the court noted the following points of similarity: the defendant was the sole untried defendant in each of the three indictments; all counts in the indictments referred to sexual acts with boys under the age of 17; all the activities occurred within the same jurisdiction and most occurred in defendant’s home; sodomy or sexual abuse were a focus of all three indictments. Nevertheless, it cannot be gainsaid that these were but the most general of commonalities; without more support, a joinder could hardly be said to serve more than the permissible purpose of judicial economy.
In counterpoint, the thrust of defendant's more particularized objection was that Indictment No. 143, because of the multiplicity of its 64 counts, carried an almost irresistible potential for prejudicing his defense of the charges arising out of the unrelated January 31, 1974 incident, the only one on which promoting was alleged. The inference of an indiscriminate propensity to be a party to the event on which Nos. 117 and 118 were based could be especially unfair in light of the dearth of physical evidence of any act of sodomy with Duane S., admittedly the only individual in whose presence defen
In these unique circumstances, it therefore was foreseeable that the trial of the latter would be compromised by the strongest of suggestions that it was but the inevitable outgrowth of defendant’s untoward sexual predisposition, however sociologically and scientifically tenuous such connection may in fact have been (see Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sex Offenses, 6 Ariz L Rev 212 , esp 231-236). Since prosecutions for sex crimes, particularly ones regarded as deviate, tend in any event to invoke prejudicial preconceptions among jurors, the joinder of the indictments created an impermissible risk.[2] For the superficial closeness of the indictments here, resulting largely from a common focus on the same kind of aberrant sexual practices, was likely to eclipse the very fundamental difference between them. Indictment No. 117 involved the much graver accusation that Shapiro had done more than yield to his irresistible and therefore perhaps compassionately viewed sexual impulses. That wider role, the far more heinous and socially damaging one of influencing others to enter upon a life of submission to sexually aberrant conduct, especially when the proselytizing is said to have been for profit, was almost sure to strongly suggest a need to deter.
In this connection, it is of course easy to say that jurors, like Judges, may have had the intellectual capacity and emotional control to sort out the separate roles in which the defendant was being portrayed so that one would not be merged into the other. Indeed, I believe we all recognize that intelligence is no more the monopoly of Judges than it is of
2 That commonly held behavioral prejudices about those who perpetrate sex crimes, mistakingly assuming that the commission of one type of sex crime predisposes to another kind, are often unfounded has been well documented (see, generally, Best, Crime and Criminal Law in the United States, pp 283-288; Leppmann, Essential Difference between Sex Offenders, 32 J Grim L and Criminology 366, 374-380; De River, The Sexual Criminal, A Psychoanalytical Study, pp 274, 277; Report of Mayor’s Special Committee for the Study of Sex Offenders, pp 91-92 [New York City, 1941]; State Department of Mental Hygiene, Report of Study of 102 Sex Offenders at Sing Sing Prison [New York State, 1950]).
We do not suggest that Judges do not have latitude in evaluating the likelihood and gravity of prejudice when consolidation of several indictments is sought. As we have observed, the statute confers discretion upon the court (CPL 200.20, subd 2, par [c]). But in the peculiar circumstances of this case, that discretion was abused. Significantly, the trial court’s response to defendant’s contention that he would be sorely prejudiced by the joinder manifested a failure to weigh any of the relevant, and here critical, considerations. For the court merely opined that, given the testimony of the eight other youths, anything added by either Duane S. or Gary F., necessarily confined to January 31 alone, would have limited, if any, bearing on propensity. But this was to view the problem from the wrong end. The chief cause for concern, of course, was not the effect of the single charge of promoting on the fairness of the trial for the numerous sodomies set out in No. 143, but the massive impact of the latter on the solitary promoting count. In short, it does not appear that the court even considered the risk that a joint trial would expose the defendant to the possibility of being convicted on 117 and 118 for reasons other than those legally relevant to the specific crimes these two indictments charged. (See Matter of William S., 70 Misc 2d 320 , 324; People v Reingold, 44 AD2d 191 , 195; People v Forest, 50 AD2d 260 .)
Moreover, the claim of prejudice, renewed in defendant’s subsequent motion under CPL 200.20 (subd 3) to sever Nos. 117-118 from No. 143, assumed even more substantial proportion. Shapiro swore that, though he did not plan to take the stand in No. 143, presumably electing to rely instead on his legal defenses,[3] he desired to do so in Nos. 117-118 because he was "the only person in a position” to deny any intention to promote or advance prostitution.
3 Indeed, at the conclusion of the People’s case, the Trial Judge dismissed 31 of the counts on the ground that there had been no corroboration of the victims’ testimony (see Penal Law, § 130.16).
II
The prejudicial impact of the consolidation was only enhanced when the other witnesses whom Shapiro had expected to call to the stand in his defense of the charges emanating from the events of January 31, after initially raising the privilege against self incrimination, persisted in their refusal to testify. This followed directly after the District Attorney issued repeated and unequivocal warnings the sense of which was that the witnesses would subject themselves to prosecution for perjury if their testimony was favorable to the defendant.
The prosecution’s chief witness to the activities of January 31 was the young male "prostitute” Duane S., who testified that on that date, after Shomer and Senn had driven him and Gary F. from Boston to Shapiro’s home for the purpose of having them take part, for a consideration, in deviate sexual conduct with two men, the defendant engaged in anal intercourse with him. Shapiro’s defense to the accusation that cast
Despite these assurances, when defendant sought to call them at trial, each witness, appearing in chambers in the company of his own counsel, invoked his privilege against self incrimination. However, from the colloquy that ensued, it soon became apparent that the protection the witnesses sought was not from disclosure of any past criminal activities but solely from the possibility that any testimony they would give on behalf of Shapiro would precipitate their prosecution for perjury.[5] All three of these prospective witnesses had testified previously: Shomer and Dowling at their own trial, Gary F. before the Grand Jury under immunity, at a CPL 660.10 proceeding and, again, at the joint trial of Shomer and Senn.
4 The only other eyewitnesses to the evening’s events were defendant himself, who elected not to take the stand, and Senn, who, it is conceded, at the time of trial was confined to a mental institution with a condition that made him unavailable to either side.
5 By the time of Shapiro’s trial, Shomer had been convicted, for his participation in the January 31 episode, of promoting prostitution and endangering the welfare of a minor, and had exhausted all appeals. Dowling, for his part, had been convicted of endangering the welfare of a minor but acquitted of all other charges and took no appeal. As for Gary F., his testimony at the Grand Jury had conferred upon him transactional immunity (see CPL 190.40, subd 2), and because of his age, he could not be criminally liable for any of the charges (see Penal Law, § 30.00).
Faced with these unveiled threats, each of the prospective witnesses insisted that he would not testify unless he were first given immunity by the prosecutor. Despite the urging of the trial court, which denied defendant’s application that it direct the prosecutor to do so, the District Attorney refused. The ultimate effect was to deprive defendant of any direct witnesses to his side of the story,[7] leaving Duane S., who could not be prosecuted because of his youth (Penal Law, § 30.00) and because of the prosecutor’s own election to call him before the Grand Jury (see CPL 190.50, subds 2-4), to give the only version of the January 31 incident the jury was to hear.
To be sure, ordinarily, exposure, whether to perjury or other
6 That Gary F.’s testimony was likely to be materially at odds with his statements before the Grand Jury emerges from this colloquy: Gary F.’s counsel: "Let’s assume he takes the stand and he tells the truth now, but he lied in the Grand Jury.” District Attorney: "You’re forcing him at this point in time to commit a crime.”
7 Defendant’s solitary witness was the police surgeon who, upon examining Duane S. on the evening in question, found no evidence of a completed act of sodomy.
Given that the power to confer immunity and thereby to compel testimony from a witness who asserts his privilege resides within the discretion of the prosecutor (see CPL 50.20, subd 2, par [b]), in an appropriate case it is not too much to expect that the exercise of this prosecutorial discretion be tempered by an obligation to respond to such a problem. On that principle, in cases in which witnesses favorable to the prosecution are accorded immunity while those whose testimony would be exculpatory of the defendant are not, or in ones where the failure to grant immunity deprives the defendant of vital exculpatory testimony, due process may be violated (see People v Sapia, supra, at p 166; People v Arroyo, 46 NY2d 928 , 930, supra; Earl v United States, 361 F2d 531 , 534, n 1 [Burger, J.], cert den 388 US 921 ; United States v Gaither, 539 F2d 753 [Bazelon, J., statement on denial of rehearing en banc], cert den 429 US 961 ; United States v Saettele, 585 F2d 307 , 310-314 [Bright, J., dissenting]; State v Broady, 41 Ohio App 2d 17 ; Westen, Compulsory Process Clause, 73 Mich L Rev 71 , 166-170; Note, Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv L Rev 1266 ).
It is also well-settled law that one who is granted immunity in return for his testimony receives no license to swear falsely with impunity while under the protection of that immunity (Glickstein v United States, 222 US 139 ; United States v Apfelbaum, 445 US 115 , 131; McCormick, Evidence [2d ed], § 143, p 308; see CPL 50.10, subd 1). However, in this case the witnesses did not seek immunity for any false statements they might make at Shapiro’s trial. Confronted with the prosecutor’s ominous injunction that they be consistent above all else, they sought assurance that any misstatements or inconsistencies they may have uttered during the course of
From this perspective the case fits easily within those rulings which hold that substantial interference by the State with a defense witness’ free and unhampered choice to testify violates due process as surely as does a willful withholding of evidence. For example, in Webb v Texas ( 409 US 95 ), the Trial Judge singled out the defendant’s only witness for a lengthy admonition on the dangers of perjury, assuring the witness that if he lied he would be prosecuted and probably convicted. In reversing the defendant’s conviction, the Supreme Court held the refusal to testify on Fifth Amendment grounds directly traceable to judicial intimidation. Similarly, in United States v Morrison ( 535 F2d 223 , cert den sub nom. Boscia v United States, 429 US 824 ), a case closer to the one before us, the defendant was found to have been denied due process when the prosecutor drove defendant’s principal witness from the stand by repeatedly threatening her with criminal charges, including perjury, if she testified. (See Clark v State, 585 P2d 367 [Okla] [prosecutor’s threat to file perjury charges]; Campbell v State, 37 Md App 89 [prosecutor’s threat to reopen stet processus on key witness to prevent his testifying in defendant’s behalf]; United States v Hammond, 598 F2d 1008 [FBI agent’s threat to retaliate against witness]; cf. United States v Henricksen, 564 F2d 197 [condition of codefendant’s plea bargain requiring him not to testify at defendant’s trial, though his testimony would have tended to exonerate defendant].) The District Attorney’s unwarranted action against Shapiro’s prospective witnesses led to the same unconstitutional result. Furthermore, the prejudice in the present case was not lightened when the Trial Judge refused to instruct the jury on the reason the witnesses were not called to the stand (see People v Sapia, 41 NY2d 160 , 164, supra).
All this is not to disregard a District Attorney’s obligation to warn potential witnesses of their possible liability for false
For such reasons and because the effect of the intimidation on the witnesses’ decision not to testify may not now be erased, under the circumstances of this case we believe that, on a new trial, the only way in which the prejudice created by the prosecutor’s threats can be dispelled would be to require that the defendant’s witnesses be granted immunity as a condition to subjecting the defendant to a new trial (see United States v Morrison, supra, at p 229 ; United States v Paiva, 294 F Supp 742 , 746; Note, 91 Harv L Rev 1266 , 1269; cf. Westen, Compulsory Process Clause, 73 Mich L Rev 71 , 170, n 477; United States v Leonard, 494 F2d 955 , 985, n 79 [Bazelon, Ch. J., concurring and dissenting]); United States v De Palma, 476 F Supp 775 ).
Ill
We turn now to defendant’s argument that the wiretapped telephone conversations and their fruits must be suppressed because the eavesdropping orders, conceded to have been properly made under State law (CPL 700.05, subd 2), exceeded the grounds of permissible State regulation as defined by the Federal wiretapping statute (US Code, tit 18, § 2516, subd [2]). The question so raised poses a novel application of the doctrine of Federal pre-emption.
Congress, in enacting title 3 of the Omnibus Crime Control and Safe Streets Act of 1968, relied upon the broadest reach of its commerce clause powers, in large part to impose upon the States the minimum constitutional criteria for electronic surveillance legislation mandated by Berger v New York ( 388 US
The provisions of title 3 do more than codify bare constitutional requisites; they manifest a Congressional design to protect the privacy of wire and oral communications by confining State authorization for eavesdropping by wiretap to what in Congress’ view are appropriate and compelling circumstances (see Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, p 2153). Thus, subdivision (2) of section 2516 carefully enumerates the crimes considered serious enough to warrant investigation by wiretap, namely
8 The electronic device placed on Shapiro’s telephone, for example, obviously falls within the ambit of Congress’ power to regulate commerce inasmuch as its installation put the New York authorities in a position to intercept local as well as interstate calls made to and from Shapiro’s home.
9 The section at subdivision (2) provides: "The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.”
Its drafters did not keep their intentions secret. The list was to represent a class of major offenses that were either "intrinsically serious or * * * [were] characteristic of the operations of organized crime” (Senate Report No. 1097, p 2234). As is apparent, with the exception of gambling and bribery, the designated crimes all involve harm or the substantial threat of harm to the person, a "limitation [expressly] intended to exclude such offenses as fornication and adultery” from the permissible scope of electronic surveillance (id., at p 2187). Further, the ejusdem generis rule dictates that the general phrase "other crime dangerous to life [or] limb”, since it follows words of a particular meaning, is to be construed as applying only to crimes of the same kind as those precisely stated (see People v Illardo, 48 NY2d 408 , 416; McKinney’s Cons Laws of NY, Book 1, Statutes, § 239; Black, Interpretation of Laws, p 141). It is also not irrelevant to observe that a narrow reading is in harmony with our own sensitivity to the dangers inherent in electronic eavesdropping (see People v Washington, 46 NY2d 116 , 121-122).
Nevertheless, even cursory examination of New York’s wiretapping provisions reveals that the range of crimes in which electronic interception is permitted is much more encompassing than the Federal standard would seem to admit (Pitler, New York Criminal Practice Under the CPL, p 513). However, that does not alter the fact that the bases for the eavesdropping warrant in this case — allegations of sexual abuse and the promotion of prostitution — however, violative of New York criminal law, do not come within the intendment of the Federal statute because they cannot be said to be "crime[s] dangerous to life [or] limb”. Furthermore, while it is possible for such crimes to involve the use of forcible compulsion (see Penal Law, § 130.65), the State wiretapping statute is not framed with this particularity (see CPL 700.05, subd 8, pars [b], [h]),[10] and there was no indication from which the police
10 CPL 700.05 (subd 8, par [b]) only specifies sexual abuse in the first degree as a ground for an' eavesdropping order. This crime is defined in terms of "subjecting] another person to sexual contact: *765 "1. By forcible compulsion; or “2. When the other person is incapable of consent by reason of being physically helpless; or "3. When the other person is less than eleven years old” (Penal Law, § 130.65). There appears no basis on which the police could justifiably have believed Shapiro’s misconduct fell within the embrace of any of these three meanings.
In fact these criminal activities involved only consensual conduct, to which, as already indicated, the legislative history tells us the Federal statute does not extend the reach of permissible wiretapping (see Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, p 2187). That State law deems persons less than 17 years old "incapable of consent” (Penal Law, § 130.05, subd 3, par [a]) does not catapult these criminal acts into the status of "crimes dangerous to life [or] limb”. Nor, of course, may any claim that our own State Legislature has determined that such acts presented a substantial danger to life and limb override the considered judgment of Congress that they did not.
By this we do not in the slightest mean to suggest that the State’s interest in prescribing criminal penalties for participation with minors in acts of prostitution or sexual abuse is not a strong or even compelling one, or that wiretapping may not be authorized in conformance with the supervening Federal standard where similar acts are undertaken by means of force. But the standard may not be expanded beyond the contemplation of the drafters to include within its sweep more subtle forms of personal injury, for example, any deleterious psychic consequences to minors that may result from their participation in such practices. Thus, under the circumstances of this case, to the extent that CPL 700.05 was read to permit authorization of the wiretaps for crimes not involving the use of force or, indeed, any danger to life or limb, it contravened the requirements of section 2516 of the Federal statute. The wiretaps, therefore, were invalid and the evidence gleaned from them should accordingly have been suppressed (Omnibus Crime Control and Safe Streets Act of 1968, tit 3, § 801, subd [b], 82 US Stat 211; see Lee v Florida, 392 US 378 , 385-386).*[11]
11 The dissent draws heavily on dicta in Schwartz v Texas ( 344 US 199 ), a case subsequently overruled (Lee v Florida, 392 US 378 ), to argue that the Federal wiretapping statute cannot, consistent with the Tenth Amendment, proscribe the use of evidence in State courts merely because that evidence was obtained by means outlawed by the wiretapping statute rather than by the Constitution itself. *766 Schwartz held that a State court was not impelled to reject evidence garnered in violation of section 605 of the Federal Communications Act of 1934, the predecessor of title 3, even though the statute had been judicially construed to require such exclusion in the Federal courts (see Nardone v United States, 302 US 379 ). However, in overruling Schwartz in Lee v Florida (supra), the Supreme Court recognized Schwartz’ rationale to be at odds with Mapp v Ohio ( 367 US 643 ) which, according to the court, "imposed a judicially devised exclusionary rule in order to insure that a State could not adopt rules of evidence calculated to permit the invasion of rights protected by federal organic law” (392 US, at p 385). As the court in Lee correctly noted, it was the supremacy clause that forbade any court, State or Federal, from "servftng] as an accomplice in the willful transgression of 'the Laws of the United States’, laws by which 'the Judges in every State [are] bound’ ” (392 US, at p 386; see, also, Flaherty v Arkansas, 415 US 995 , 996-997, n 3 [Douglas, J., with Brennan and Marshall, JJ., dissenting from denial of certiorari]).
Dissent
I
(dissenting). I am compelled to dissent, for I am of the opinion that none of the three issues discussed by the majority constitutes a basis for reversal.
First, my colleagues in the majority conclude that, as a matter of law, it was an abuse of discretion for the Trial Judge to grant the People’s motion to consolidate Indictment No. 143 with Indictment Nos. 117 and 118. Presumably, this conclusion is premised upon a finding that the potential for prejudice was so patent and so substantial that the decision to consolidate clearly exceeded the bounds of judicial authority, even though consolidation was permissible under the relevant statute (CPL 200.20, subd 2, par [c]; subd 4). Yet the precise factors upon which the majority bases its finding of inevitable prejudice remain somewhat obscure.
All three indictments charged defendant with having committed various sex-related offenses, ranging from sexual abuse in the second degree to promoting prostitution in the first degree. Of course, it cannot be the mere fact of similarity among the various crimes charged that is the source of the prejudice, for similarity is the very trait that renders the offenses joinable under the statute.*[1] Thus, it would appear
1 CPL 200.20 (subd 2, par [c]) provides: "Two offenses are 'joinable’ when: * * * "(c) Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law”. *767 It is not and, indeed, cannot be disputed that the counts in Indictment Nos. 117, 118 and 143 were joinable under this section, and, for that reason, the indictments were proper subjects for consolidation under CPL 200.20 (subd 4).
Indictment No. 143 charged defendant with 64 counts of various sex crimes involving young boys, all occurring between July 1, 1972 and November of 1973: one count of sodomy in the second degree, one count of sexual abuse in the second degree, 20 counts of sodomy in the third degree and 21 - counts each of sexual misconduct and endangering the welfare of a child. Indictment No. 118 contained one count of sodomy in the second degree, one count of endangering the welfare of a child, one count of sexual misconduct and one count of sexual abuse in the second degree. Finally, in Indictment No. 117, defendant was charged with a single count of promoting prostitution in the first degree, a class B felony, and one additional count of endangering the welfare of a child.
Interestingly, defendant made no attempt to have the individual counts in the voluminous Indictment No. 143, which involved eight separate victims, severed and tried separately (see CPL 200.20, subd 3). Yet, it would seem that the danger of prejudice flowing from a repetition of sordid evidence, if it existed at all, would be more likely to arise in a trial involving some 64 counts of similar sexual crimes. In view of defendant’s apparent acquiescence in the notion of a single trial for all of the charges of deviant misconduct recited in Indictment No. 143, I must assume that his objection to a joint trial of Indictment Nos. 117, 118 and 143 was not actually based upon a concern that he would be prejudiced with respect to the four counts in Indictment No. 118, which were substantially similar in nature and degree of seriousness to the 64 counts specified in Indictment No. 143. Instead, as the majority’s opinion suggests, the principal cause for concern was the cumulative impact that the total of 68 counts involving private perversion would have upon the jury’s consideration of the more serious count specified in Indictment No. 117, promoting prostitution in the first degree.
In an apparent recognition of the weakness of its conclusion, the majority seeks to bolster the case for severance by observing that defendant asserted before the trial court that he wished to testify on the felony counts in Indictment Nos. 117 and 118, but that he further wished "to exercise his constitutional right under the Fifth Amendment not to testify [concerning] the events alleged in Indictment No. 143”. It is difficult to discern, however what bearing this observation has upon the majority’s ultimate holding.
As the majority opinion notes, "severance based on such ground is [not] available for the mere asking” (People v Dodge, 72 Misc 2d 345 , 348). Although severance of joined counts may be required in cases where a joint trial would materially impair the defendant’s right to refrain from testifying on one count by reason of his compelling interest in testifying in his own behalf on the other counts (see Cross v United States, 335 F2d 987 ), it is the defendant’s burden to demonstrate to the trial court through concrete allegations that such circumstances exist and that severance is therefore warranted (United States v Jardan, 552 F2d 216 , 220, cert den 433 US 912 ; Blunt v United States, 404 F2d 1283 , cert den 394 US 909 ). Indeed, the defendant must make "a convincing showing that he has both important testimony to give concerning one
Here, no such specific information was offered by defendant to the Trial Judge. With respect to the various charges contained in Indictment No. 118, defendant’s affidavit merely alleged that he wished to testify on the felony count because "he is the only person in a position to do so”. With regard to the more serious count contained in Indictment No. 117, defendant stated only that his testimony would be helpful to his defense, in that it would "establish that he was not culpable under the statute * * * and in particular that he did not promote or advance prostitution on the one occasion when he was charged with having done so”. Finally, defendant’s affidavit stated argumentatively that "without [defendant’s] testimony it is absolutely impossible to defend against the felony charges contained in [the] two indictments”.
Of course, such conclusory statements were not sufficient under existing case law to establish that defendant has "important testimony” to give concerning at least one of the counts for which he was to be tried. Lacking specific allegations as to the subject matter or relevance of his proposed testimony, defendant’s affidavit gave the Trial Judge no concrete basis for concluding that his need to testify was genuine. In fact as the Trial Judge noted, the sole specific statement made by defendant in support of his motion to sever indicated that his testimony would not be exculpatory or even relevant to his defense.[2]
2 Defendant’s affidavit stated that he planned to testify in connection with the promoting prostitution charge "that he never received any money * * * or any other financial benefit” from the events of January 31, 1974. The theory of the prosecution, however, was that defendant had committed a criminal act by "knowingly advancing” the prostitution of a minor and not by "knowingly profiting” from the prostitution of a minor (see Penal Law, § 230.30, subd 2; § 230.32). Thus, defendant’s testimony on the promoting prostitution charge would not have been directly exculpatory.
II
In short, defendant’s allegations concerning his desire to testify on the felony charges in Indictment Nos. 117 and 118 and to refrain from testifying on the multiple counts in Indictment No. 143 added nothing to the case in favor of severance. Absent specific allegations on this point, defendant’s bare assertions could not serve to strengthen his position with respect to the motion to sever, and, consequently, the trial court’s decision to deny the motion cannot be considered an abuse of discretion. I pause only to add that I cannot share the majority’s apparent disregard for the significance of "judicial economy” as an important consideration militating in favor of a joint trial of the multiple indictments in this case. While a defendant’s due process rights are always, of course, of paramount importance, we cannot afford, in this era of judicial austerity, to give short shrift to the countervailing need to preserve our judicial resources wherever possible.
I
n reversing defendant’s conviction, the majority has also held, without any support in precedent, that the People may not seek a retrial unless and until the District Attorney agrees to confer immunity from prosecution for perjury upon certain of defendant’s witnesses. This holding is apparently based upon the fact that, at an in camera conference, the District Attorney flatly refused to extend immunity to these individuals and instead stressed that he would press criminal charges if the witnesses’ trial testimony indicated that their previous sworn statements had been false. Because I believe that the majority’s rationale is premised upon a serious misreading of the body of Federal case law upon which it relies, I
Like the applicable Federal statute (US Code, tit 18, §§ 6002-6003), our own statutes vest in the District Attorney the sole authority to decide whether to grant or withhold immunity in cases such as this (see CPL 50.30; see, also, CPL 50.20). The courts, as a general rule, do not tamper with the exercise of this discretionary authority, which has been conferred upon the District Attorney by the Legislature as a tool to assist him in implementing the policies of his office (cf. Matter of Kilgo, 484 F2d 1215 , 1222). There do exist rare instances in which the District Attorney’s use of his discretionary authority impinges upon the defendant’s fundamental right to due process of law, and, in such cases, it has been suggested that the courts may intervene (see People v Sapia, 41 NY2d 160 , 165-166, cert den 434 US 823 ). Although the majority apparently regards this case as one of those "rare instances”, my reading of the applicable decisions leads me to a contrary conclusion.
The seminal case on this question is Earl v United States ( 361 F2d 531 , cert den 388 US 921 ). There, the United States Court of Appeals for the District of Columbia refused to reverse a conviction solely on the ground that the United States Attorney had declined to confer immunity upon a defense witness who had become "unavailable” due to the assertion of his Fifth Amendment privilege against self incrimination. In an oft-cited footnote, however, the court observed: "We might have quite different, and more difficult, problems had the Government in this case secured testimony from one eyewitness by granting him immunity while declining to seek an immunity grant for [defendant’s witness] to free him from possible incrimination to testify for [defendant]. That situation would vividly dramatize an argument on behalf of [defendant] that the [immunity] statute as applied denied him due process. Arguments could be advanced that in the particular case the Government could not use the immunity statute for its advantage unless Congress made the same mechanism available to the accused” (361 F2d, at p 534, n 1). This dictum was, of course, based upon the underlying, unobjectionable notion that the prosecutor may not abuse his authority to grant immunity selectively by utilizing it as a device to manipulate the evidence available for trial. The Earl court also noted in passing that the power to confer immunity
Since the Earl decision, however, the Federal courts have applied the principles articulated in that case most sparingly, holding, for the most part, that the question of the Government’s obligation to confer immunity upon defense witnesses does not even arise unless the Government has itself obtained important prosecution witnesses through the use of its power to grant immunity, a circumstance which certainly does not obtain in the instant case (United States v Lang, 589 F2d 92 , 95-96; United States v Wright, 588 F2d 31 , 35, and n 3, cert den sub nom. Sorbara v United States, 440 US 917 ; United States v Bautista, 509 F2d 675 , 677, cert den sub nom. Monsivais v United States, 421 US 976 ; United States v Allstate Mtge. Corp., 507 F2d 492 , 494-495, cert den 421 US 999 ; United States v Ramsey, 503 F2d 524 , 532, cert den 420 US 932 ; United States v Jenkins, 470 F2d 1061 , 1063-1064, cert den 411 US 920 ).[3] Indeed, the Federal courts have been nearly unanimous in their adherence to the general rule that a defendant has no constitutional right to compel the prosecutor to extend immunity to defense witnesses (United States v Niederberger, 580 F2d 63 , 67, cert den 439 US 980 ; United States v Beasley, 550 F2d 261 , 268, cert den 434 US 938 ; United States v Alessio, 528 F2d 1079 , 1081-1082, cert den 426 US 948 ; United States v Stofsky, 527 F2d 237 , 249, cert den 429 US 819 ; United States v Gomez-Rojas, 507 F2d 1213 , 1220, cert den 423 US 826 ; Cerda v United States, 488 F2d 720 ; United States v Berrigan, 482 F2d 171 , 190).[4]
3 For cases in which the dictum in Earl has been applied directly, see United States v Saettele ( 585 F2d 307 , 310, 311-313 [Bright, J., dissenting], cert den 440 US 910 ), United States v Henricksen ( 564 F2d 197 ), United States v Leonard ( 494 F2d 955 , 985, n 79 [dictum]) and United States v De Palma ( 476 F Supp 775 ).
4 United States v Gaither ( 539 F2d 753 [Bazelon, J., statement on denial of rehearing en banc], cert den 429 US 961 ) is not to the contrary. There, Judge Bazelon, in a concurring opinion, merely stated that he had some serious reservations concerning the Government’s absolute right to withhold immunity under the circumstances of that case and, hence, would have preferred if the majority of the appellate panel had made it plain that it was not passing upon the issue in denying the defense motion for a rehearing en banc. Similarly, it should be noted that the proposition for which the majority cites United States v La Duca ( 447 F Supp 779 ) was expressly rejected on appeal. The appellate court in La Duca stated: "The * * * proposition [that the Sixth Amendment or the due process clause mandates that the Government make use immunity available to defense witnesses] has been rejected to date by this as well as other *773 courts of appeals. Rather, it has been uniformly accepted that the grant or denial of immunity is within the sole discretion of the [prosecution]” (United States v Rocco, 587 F2d 144 , 146-147, and n 10, cert den 440 US 972 , affg United States v La Duca, 447 F Supp 779 ).
5 It has been suggested that there may be situations in which the dictates of due process would somehow empower a court to direct a witness to testify under a limited grant of testimonial or "use immunity”, even without the consent of the prosecutor (Pitler, New York Criminal Practice, 1976 Cum Supp, p 354). In my view, however, the suggestion that a court has inherent authority to confer immunity pursuant to its obligation to ensure due process of law represents a fundamental misunderstanding concerning the nature of the immunity concept. As we have previously observed, the act of conferring immunity from prosecution upon a potential witness is, in essence, an ad hoc suspension of the relevant penal statutes (Matter of Doyle, 257 NY 244 , 259 [Cardozo, Ch. J.]). Consequently, the authority to extend immunity and thereby work a temporary suspension of one or more penal statutes may be conferred only by the Legislature, which is, after all, the basic source of our criminal law. Indeed, it has repeatedly and consistently been held that, since immunity, whether "testimonial” or "transactional”, is a creature of statute, the courts have no inherent authority to utilize it as a means of ensuring a defendant’s due process rights (e.g., United States v Lang, 589 F2d 92 , 96, supra; United States v Niederberger, 580 F2d 63 , 67, cert den 439 US 980 , supra; United States v Allstate Mtge. Corp., 507 F2d 492 , 494-495, cert den 421 US 999 ; United States v Morrison, 535 F2d 223 , cert den sub nom. Boscia v United States, 429 US 824 , supra; United States v Berrigan, 482 F2d 171 , 190, supra; Earl v United States, 361 F2d 531 , 534, cert den 388 US 921 , supra). "Whether the good to be attained by procuring the testimony of criminals is greater or less than the *774 evil to be wrought by exempting them forever from prosecution for their crimes is a question of high policy as to which the law-making department of the government is entitled to be heard” (Matter of Doyle, supra, at p 261). In our State, the "law-making department of the government” has determined that the authority to grant or withhold immunity for trial witnesses should rest soley with the District Attorney (see CPL 50.30). The Legislature has specifically declined to vest similar discretionary powers in the judicial branch, and nothing in the due process clause of the Constitution can alter or modify that legislative decision. To be sure, there may be situations in which principles of due process and fundamental fairness preclude trial of a defendant unless and until the District Attorney exercises his statutory authority to confer immunity upon a defense witness (see (People v Sapia, 41 NY2d 160 , supra). In such cases, however, the proper remedy for the District Attorney’s recalcitrance might be, at best, for the court to dismiss the indictment (see United States v De Palma, 476 F Supp 775 , supra) and certainly not for the court to assume for itself the power vested in the District Attorney to confer immunity upon a witness.
Nor do there exist in this case any aggravating circumstances, such as "prosecutorial misconduct”, which would bring into play defendant’s due process rights and thereby take the case out of the general rule (see United States v Rocco, 587 F2d 144 , 147, n 10, cert den 440 US 972 ; United States v Saettele, 585 F2d 307 , 310-313 [Bright, J., dissenting], cert den 440 US 910 ; see, also, United States v Herman, 589 F2d 1191 , cert den 441 US 913 ).[6] Although the majority goes
6 In United States v Herman ( 589 F2d 1191 , 1200, cert den 441 US 913 ), the United States Court of Appeals for the Third Circuit, commenting upon its earlier decision in United States v Morrison ( 535 F2d 223 , cert den sub nom. Boscia v United States, 429 US 824 , supra), stated that Morrison does not stand for the proposition that defendants have "a general sixth amendment right to demand that witnesses of *775 their choice be immunized or that their indictments be dismissed”. Nor do defendants have a due process right to have their witnesses immunized unless they "show that the government’s decisions were made with the deliberate intention of distorting the judicial fact finding process” (589 F2d, at p 1204, citing United States v Morrison, supra). In the instant case, needless to say, no such showing was made.
7 The majority apparently also finds it significant that the Trial Judge denied defendant’s request for a "missing witness” instruction to clarify his failure to call Shomer, Dowling and Gary F. to the witness stand. This ruling, according to the majority, only exacerbated defendant’s predicament in establishing a viable defense to the promoting prostitution charge. Yet, the majority does not expressly hold that the refusal to give the requested charge was error, and, indeed, it is doubtful whether error was in fact committed, since "when a Fifth Amendment and testimonial privilege has been invoked by a witness and granted, governmental refusal to grant immunity in order to permit him to testify does not give rise to a missing witness instruction” (Morrison v United States, 365 F2d 521 , 524; see United States v Lacouture, 495 F2d 1237 , cert den 419 US 1053 ; see, also, People v Sapia, 41 NY2d 160 , 163-164, supra).
Finally, I must note my disagreement with the majority’s determination that the wiretap evidence in this case should have been suppressed. It is conceded by defendant that the wiretap was carried out in accordance with the applicable provisions of the Criminal Procedure Law (CPL 700.05-700.70), and, therefore, the only remaining issue is whether suppression is required by the existing Federal statutes. Unlike my colleagues in the majority, I would conclude that the applicable Federal statute does not mandate suppression in this case.
The Federal statute, which establishes certain minimum standards for State wiretapping statutes, limits the types of investigations in which wiretapping warrants may be issued to those involving the following crimes: "murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotics drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year” (US Code, tit 18, § 2516, subd [2] [emphasis supplied]). It has been argued in this case that the crime of promoting the prostitution of a minor and committing sodomy with a minor are not encompassed within the broad, catchall category of "other crimes dangerous to life, limb or property”, and the majority has apparently adopted that view. I am unable to concur on this point.
Our State wiretapping provisions were drafted with a view toward bringing New York law into conformity with the Federal statutes and case law. The "designated offenses”, which are delineated in CPL 700.05 (subd 8), were enacted in an effort to elaborate upon the rather broad and somewhat ambiguous list of "designted offenses” outlined in the Federal Omnibus Crime Control and Safe Streets Act (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 700.05, pp 248-249). To the extent that CPL 700.05 (subd 8) covers the types of crimes for which defendant was being investigated, that provision must be regarded as representing a legislative determination that such crimes do indeed present a substantial danger to "life and limb”. And, certainly, it cannot be said that such a finding is irrational in view of the obvious hazards such crimes present to the safety and well-being of the children who are exploited in the marketplace of juvenile prostitution.[8]
8 As the majority notes, the list of offenses designated by Congress as proper *777 subjects for wiretapping was intended to encompass crimes that are either "intrinsically serious or * * * [are] characteristic of the operations of organized crime” (Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, pp 2153, 2234). I find it difficult to believe, however, that the crimes of promoting the prostitution of a minor and committing sodomy with a minor cannot readily be classified within either of these categories. To be sure, Congress intended to exclude from the reach of electronic eavesdropping such "consensual” sexual offenses as "fornication and adultery” (Senate Report No. 1097, at p 2187). But, crimes involving the sexual exploitation of children such as are involved here can hardly be analogized to the petty vices of fornication and adultery which take place between consenting adults.
9 In Schwartz v Texas ( 344 US 199 ), the Supreme Court considered the effect of section 605 of the Federal Communications Act, the predecessor of the wiretap provisions of the Omnibus Crime Control and Safe Streets Act, upon the admissibility of wiretap evidence in State courts. Since the Schwartz court found no congressional intent to preclude the use of wiretap evidence obtained in violation of the Federal statute in State courts (accord People v Stemmer, 298 NY 728 ; Matter of Harlem Check Cashing Corp. v Bell, 296 NY 15 ), it did not reach and, in fact, expressly declined to decide whether Congress would have had the power to impose such a rule of evidence upon the States had it chosen to do so (344 US, at p 203). In Lee v Florida ( 392 US 378 ), the Supreme Court reconsidered its holding in Schwartz in light of Mapp v Ohio ( 367 US 643 ). The Lee court held that, since the exclusionary rule had been applied to the States through the Fourteenth Amendment in Mapp, there was no longer any impediment to extending the statutory rule of exclusion embodied in section 605 to State prosecutions. Since the Lee decision, which represented an early application of Mapp, however, the Supreme Court has not had occasion to consider whether a Congressionally enacted rule of suppression that is not directly mandated by the Fourth Amendment is binding upon the States. Thus, even under the rationale articulated in Lee, it remains an open question whether an otherwise lawful wiretap constitutes an "unreasonable search and seizure” merely because it was conducted in the pursuit of criminal activities which Congress did not deem serious enough to include among the "designated crimes” in the present Federal wiretapping law. And, it further remains to be seen whether Congress has the power to pre-empt State law on this issue.
Of course, were the prescriptive provisions of the Federal wiretap statute limited to those that are mandated by the Fourth Amendment as interpreted by the Supreme Court in such cases as Berger v New York ( 388 US 41 ) and Katz v United States ( 389 US 347 ), there could be no question that they would be binding upon the State courts, since Congress no less than the Supreme Court has the power to prohibit the States from acting in a manner which the Constitution proscribes. But, as the majority notes, "[t]he provisions of title 3 do more than codify bare constitutional requisites”; in fact, they set forth specific restrictions upon the categories of crimes for which wiretapping may be authorized, although there is no suggestion in any of the relevant Supreme Court decisions that the Fourth Amendment mandates such restrictions.
It is my view that, to the extent that these nonconstitutional restrictions form the basis of a legislatively created rule of "suppression”, they encroach upon the right of the States to
For this reason, I would hold that wiretap evidence obtained in an otherwise lawful manner pursuant to an investigation of crimes encompassed by a State "designated offense” provision such as CPL 700.05 (subd 8) is fully admissible in a State court, notwithstanding that the wiretap itself might have been proscribed by the Federal Omnibus Crime Control and Safe Streets Act because it did not involve one of the Federally designated crimes. In summary, in the absence of a specific constitutional mandate or prohibition, it is within the province of the States, in my opinion, to determine for themselves which criminal acts are sufficiently serious to warrant the use of evidence obtained through electronic eavesdropping; the views of Congress on this point, while persuasive, have no binding effect. Thus, even if it be assumed that the crimes for which defendant was being investigated in this case were not covered by the "designated offense” provisions of the Federal act, that discrepancy would not provide a sound basis for suppressing the wiretap evidence in question here, which, as defendant readily concedes, was obtained in conformity with New York law.
For all of the foregoing reasons, I respectfully dissent and cast my vote to affirm the judgment of conviction.
Chief Judge Cooke and Judges. Jones, Wachtler and Meyer concur with Judge Fuchsberg; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.
Order reversed and case remitted to Westchester County Court for further proceedings on the indictments.
10 To be distinguished are those cases in which the wiretap evidence in question is obtained in violation of one of the procedural guidelines set forth in the Omnibus Crime Control and Safe Streets Act that were modeled directly upon the Supreme Court’s Fourth Amendment analysis of wiretapping in Berger v New York ( 388 US 41 , supra) and Katz v United States ( 389 US 347 , supra). These guidelines are a direct expression of Congress’ authority to implement the guarantees contained in the Fourth Amendment and, hence, may properly form the basis of a rule of suppression that is binding upon State courts.
Cases cited
- In re William S. 70 Misc 2d 320 at 324 p. 750, p. 756
- People v. Babb 194 Misc 5 p. 750
- People v. Reingold 44 AD2d 191 at 195 p. 750, p. 756
- People v. Branch 27 NY2d 834 p. 750
- People v. Dodge 72 Misc 2d 345 at 348 p. 750, p. 757, p. 768
- People v. Fielding 39 NY2d 607 p. 750
- People v. Draper 169 App Div 479 p. 751
- People v. Odierno 166 Misc 108 p. 751
- People v. Jelke 1 NY2d 321 p. 751
- People v. Plath 100 NY 590 p. 751
- People v. Cornier 42 Misc 2d 963 p. 751
- People v. Cunningham 62 Misc 2d 515 p. 751
- People v. Reisman 29 NY2d 278 p. 751
- People v. Hepburn 52 AD2d 958 p. 751
- People v. Cotto 28 AD2d 1116 p. 751
- People v. Jenkins 47 AD2d 832 p. 751
- People v. Jenkins 39 NY2d 969 p. 751
- People v. Sapia 48 AD2d 524 p. 751
- Hoffman v. United States 341 US 479 p. 751
- People v. Arroyo 60 AD2d 914 p. 751
- People v. Arroyo 46 NY2d 928 at 930 p. 751, p. 760
- People v. Heffron 59 AD2d 263 p. 751
- People v. Vicaretti 54 AD2d 236 p. 751
- People v. De Tore 34 NY2d 199 p. 751
- McGrath v. Gold 36 NY2d 406 p. 751
- People v. Rasero 62 AD2d 845 p. 751
- People v. Mendes 3 NY2d 120 p. 751
- People v. Congilaro 60 AD2d 442 p. 751
- People v. Singletary 54 AD2d 767 p. 751
- People v. Forest 50 AD2d 260 p. 756
- Kastigar v. United States 406 US 441 at 446 p. 760
- Earl v. United States 388 US 921 p. 760, p. 771
- Glickstein v. United States 222 US 139 p. 760
- United States v. Apfelbaum 445 US 115 at 131 p. 760
- Webb v. Texas 409 US 95 p. 761, p. 773
- People v. Thomas 47 NY2d 37 at 43-44 p. 762
- Katz v. United States 389 US 347 p. 763, p. 778
- Askew v. American Waterways Operators, Inc. 411 US 325 p. 763
- Hines v. Davidowitz 312 US 52 at 66-67 p. 763
- Savage v. Jones 225 US 501 at 533 p. 763
- A. E. Nettleton Co. v. Diamond 27 NY2d 182 at 190-191 p. 763
- People v. Illardo 48 NY2d 408 at 416 p. 764
- People v. Washington 46 NY2d 116 at 121-122 p. 764
- Lee v. Florida 392 US 378 at 385-386 p. 765
- Brady v. Maryland 373 US 83 p. 772
- Irving v. Mississippi 441 US 913 p. 774
- Schwartz v. Texas 344 US 199 at 203 p. 777
- National League of Cities v. Usery 426 US 833 p. 778
- Mapp v. Ohio 367 US 643 p. 778
- Jenkins v. Anderson 447 US 231 p. 778
- Berger v. New York 388 US 41 p. 778