176 Misc. 566 | New York Court of General Session of the Peace | 1941
This is a proceeding to adjudge in contempt one Edwin H. Greenleaf, a witness called to testify before a New York County Grand Jury, January, 1940, Term continued.
Greenleaf was subpoenaed to testify before that grand jury which is conducting an inquiry, among other things, into an alleged conspiracy to commit perjury and an alleged conspiracy to suborn perjury in New York county. The witness is alleged to have refused to answer certain legal interrogatories put to him before the said grand jury. The foreman and a quorum of the grand jury appeared in court. The grand jury through its foreman, stated that it was conducting the inquiry referred to above and put before the court the following facts:
One of the subject-matters of the inquiry into the conspiracy to commit perjury and to suborn perjury involves testimony concerning an alleged $10,000 cash loan by one George W. Loft to Charles H. Mullens and an alleged repayment of said loan in two $5,000 installments purported to have been made after receipt of cash by Mullens on July 12, 1937, and November 10, 1937. There was testimony to the effect that the witness Greenleaf was associated with Charles H. Mullens in gasoline stations in the city of Albany. Testimony further disclosed that on the same day that Mullens derived $5,000 in cash on July 12, 1937, Greenleaf similarly drew $5,000 in cash, and that on November 12, 1937, two days after Mullens derived $5,000 in cash, the witness Greenleaf also drew $5,000 in cash. One of the two checks by which Greenleaf derived the sum of $5,000 in cash on November 12, 1937, was a check in the amount of $3,500, which was dated November 10, 1937, and cashed November 12, 1937.
The grand jury stated that it deems it relevant to its inquiry to determine the disposition made by Greenleaf of these cash sums, on the theory that the answer to the questions asked may directly cast light on the true purpose for which Mullens derived the $5,000 amounts in cash on each occasion.
The court was informed by the grand jury that the purpose of the inquiry was stated to the witness by the assistant district attorney conducting it. The witness, who at the time had not waived immunity, was questioned and was specifically informed on the record that the grand jury was conferring immunity on him pursuant to the conspiracy sections of the law. The witnes"s persisted" in his refusal to make answer to the questions put to him concerning the disposition of the two $5,000 amounts previously referred to.
After learning these facts, the court directed the witness to return to the grand jury room to make answer. The witness’ counsel
The witness had notification of the accusation and reasonable time to make a defense as provided by section 751 of the Judiciary Law. (Matter of Spector v. Allen, 281 N. Y. 251, 256.)
At the hearing a deputy assistant district attorney took the stand on behalf of the People and testified to the relevancy of the questions propounded in the grand jury. As previously stated, the record before the grand jury had been marked in evidence. The respondent Greenleaf offered no testimony other than cross-examination of the deputy assistant district attorney by his counsel. He now raises three contentions: 1. That the questions asked of him were not relevant to the inquiry. 2. That his constitutional privilege against self-crimination has been invaded. 3. That in any event, the immunity granted him was not sufficiently broad to protect him within his constitutional rights.
I shall reserve discussion of the respondent’s first contention to the last. The respondent states that although the grand jury of the county of New York granted him immunity, such immunity would not protect him against possible prosecution at a later date in another county of this State. This contention is without merit. The district attorney of New York county is a constitutional officer. His investigations are conducted in the name of the People of the State of New York. Indictments, when returned by the grand jury of New York county, are returned in the name of the People of the State of New York. It is patent that when the grand jury of New York county confers immunity it does so in the name of
The respondent points out that the immunity granted by the grand jury of New York county would not protect him against prosecution by the Federal government on the basis of information that might come to light through this investigation. No factual argument was advanced as to how the answers might even remotely involve the respondent in Federal criminal proceedings. Whether this be true or not, the grand jury has conferred all the immunity within the power of the State. There is no arrangement for reciprocity in the granting of immunity between Federal and State governments. It would not be consonant with public policy to hold that the witness can refuse to testify on this basis. Common sense and sound law both dictate that the State’s investigation should not be hampered on the theory that the State does not provide immunity against Federal prosecution. As was said in Dunham v. Ottinger (243 N. Y. 423, 438): “ While some insubstantial criticism is made of the manner in which a witness is compelled to claim immunity under the statute, the main claim is that the statute does not properly safeguard him by precluding the use of his testimony in criminal proceedings which might be nstituted by the Federal government. This is true. The statute does not purport to give and could not give protection against such a prosecution. It does give ample protection against the use of such testimony in our own tribunals and it is perfectly well established that this is a sufficient immunity; that all that the State is required to or can do is to give immunity against its own processes and, if it has done that, as this statute does it, it has satisfied the requirements of the Constitution. (Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. S. 591.) ”
The other point raised by the respondent is that of relevancy of the interrogatories to the inquiry. We must start with the major premise that the questions asked were directed to the witness in good faith; the inquiry is being conducted by a grand jury. The grand jury is the agent of the sovereign State of New York. The grand jury consists of twenty-three individuals, and as a body they constitute an arm of our court; it must be presumed that their inquiry is carried on in good faith and it would take evidence of a concrete nature to rebut this presumption. The respondent has offered no evidence attacking the good faith of the grand jury in asking the questions which the respondent has refused to answer.
I hold that the respondent refused to answer proper and relevant legal interrogatories and, therefore, I adjudge him to be in contempt.