182 Misc. 476 | N.Y. Sup. Ct. | 1944
At a trial before the County Court and jury sitting in 'Queens County, the petitioner who happened to be the wife
This is a proceeding to review and annul that adjudication under authority of article 78 of the Civil Practice Act. The parties agree that the procedure is correct. The finding of the learned Trial Judge is based upon contemptuous acts committed in his presence. The offense is a criminal contempt.
The facts are: While petitioner and her husband were living apart, she appeared in the Felony Court and gave incriminating evidence against her husband with the result that he was held for the action of the Grand Jury and indicted as aforesaid. At the subsequent trial in the Queens County Court, the witness'testified that she was the defendant’s wife; that they had been separated; that their home was No. 31-13 Thirty-fourth Street, Astoria, New York City; that her two children lived with her and that her husband came to their home on August 7, 1944, at 11:30 at night.
Asked to relate “ What happened when he came there? ”, petitioner answered: “ I refuse to answer on the ground that may tend to degrade or incriminate me.” When asked if she had testified before a city magistrate, she made the same reply. The court directed that she answer the last question, but she persisted in her refusal.
The next question put to petitioner inquired if she had been “ in the Felony Court, Queens County, on August 12th, 1943? ” She again refused answer.
The District Attorney then resorted to that form of interrogating pursuant to which he read the questions and the answers from the testimony taken in the Felony Court, and inquired in substance “ Were you asked that question at the Felony Court, and did you make that answer? ”
Defendant’s attorney interrupted the question as soon as its purport was evident and before the Felony Court question and answer had been read, with an objection that the District Attorney was trying to impeach his own witness. The learned trial court ruled that the question merely sought to ascertain if the witness had testified in open court and overruled the objection. The District Attorney’s question was then completed. It con
Petitioner repeated'her “ I refuse to answer ” formula. The prosecutor urged a direction from the bench and, over defendant’s attorney’s objection, the learned Trial Judge ruled where it is apparent self incrimination or self degradation will not ensue, it is for the court to determine if a witness may decline to answer. The trial court also observed that petitioner had testified before concerning the same matters. That prompted a request by defendant’s counsel for the court to advise the witness that she had a right to refuse to answer on the ground that her testimony would tend to incriminate her in spite of the fact that she had testified concerning the identical subjects in the Felony Court or before the Grand Jury. The request was refused by the court. Instead he directed that answer be given.
Thereafter a series of questions followed, in each of which testimony from the Felony Court record was read, concluding with “ Did you make that answer to that question when you testified in the Felony Court? ” The petitioner,in each instance claiming her constitutional privilege, refused to answer.
The testimony as quoted from the Felony Court record in the subsequent questions follows: “ Q. Did he have a gun in his hand when he came through the window? A. He had it in his back pocket and took it out when he got in the kitchen. Q. Through which window did he come, front or rear of the house? A. Front of the house. Q. Then he came through the rooms and went into the kitchen, did he? A. Yes. Q. After he got in the kitchen, as 1 understand it, he drew a gun? A. Yes. Q. From what pocket did he draw that gun? A. Back pocket. Q. What did he say to you and what did you say to him? A. He said if I didn’t go,back with him that he would kill the four of us, two children, myself and him. Q. Did you get the gun away from him? A. Yes, I did, and he took the bullets out, four bullets, that was in it, he took out because he said if he left it laying around it would do harm. Q, How did you come to find two bullets in his pocket? A. He went to bed and I found them in his pants. Q. He went to sleep? What did you do with that gun and bullets which you found? A. I put it in a paper bag and put it under my couch. Q. What did you do with it eventually? A. Then I brought it to the police station. Q. Did you deliver it to a police officer ? A. I did. ’ ’
Petitioner objects because the respondents have failed to submit a proper return or answer and seeks to have a final order in her favor entered on default. An opposing affidavit has been submitted on behalf of the County Judge. Its contents are not in form or substance of the kind intended by the statute, which provides: “ * * * respondent shall serve upon petitioner, and file with the Clerk of the Court, a verified answer. The answer must contain proper denials and statements of new matter, as in an action, and must set forth such facts as may be pertinent and material to show the grounds of the action taken by the respondent which is complained of; * * *” (Civ. Prac. Act, § 1291).
There can be no doubt that there has been a lack of conformance to the statute by the respondents. No determination, however, need be made on that "basis. If it were, the court would be disinclined to do more than direct that respondents file their answers. The entire minutes of the trial are annexed to the moving papers. The reasons for the County Court’s action are fully before this court. The affidavit submitted by the respondent County Judge repeats that which was stated at the trial. Other points, which are determinative in character, will be considered.
The New York Constitution provides: “ * * nor shall he be compelled in any criminal case to be a witness against himself ” (art. I, § 6). The United States Constitution in that precise language (U. S. Const., 5th Amendt.) raises the same barrier in favor of accused persons. There is no dispute about the presence of the inhibition in our organic laws. The question is: Did petitioner waive the constitutional privilege by giving testimony voluntarily in the Felony Court? In their briefs respondents point to no authority which closes the door to the claim of privilege because the incriminating or degrading testimony has been voluntarily given at another proceeding.
The learned County Judge observed that although he recognized the witness-to be the sole judge of whether the answers would tend to degrade or incriminate her, there was reposed
Because petitioner had once (Felony Court) given the degrading or incriminating testimony was no bar to her asserting the claim of privilege when directed to repeat it at the trial of her husband in the County Court. (People v. Cassidy, 213 N. Y. 388, 396.) Application granted. Petitioner is discharged.