11 N.Y.2d 51 | NY | 1962
Lead Opinion
After relator was adjudged by County Court, Kings County, to be guilty of criminal contempt and sentenced to imprisonment for 30 days and to pay a fine of $250, he brought this habeas corpus proceeding returnable before Appellate Division, Second Department, which, after a hearing, dismissed the writ and remanded appellant to the City Prison. He appeals here by our leave.
Appellant argues three law( questions: did his failures to answer Grand Jury questions constitute contempt of court; if so, was this a direct contempt, that is, one committed “ in the immediate view and presence.of the court” so as to permit summary punishment without notice or “ reasonable time to make a defense ” (Judiciary Law, § 751); and, if not, did the proceedings here taken deprive relator of proper notice and adequate opportunity to present his defense? The facts which we will set out below are really undisputed. They justified — indeed, required — the holding that relator’s assertions before the Grand Jury of inability to remember were nothing less than deliberate refusals to answer. The facts show also that he was not adjudged or sentenced summarily but after a trial in open court. As we shall see, the positions taken by him and his counsel on his two appearances before County Court might well have been treated as contempts committed then and there (see People v. Hackley, 24 N. Y. 74; Matter of Costello v. Schurman, 6 Misc 2d 66; People v. Costello, 6 A D 2d 385, affd. 6 N Y 2d 761). However, the court and the prosecutor proceeded with caution and tried out in open court on testimony there given the question of whether relator had contumaciously refused to answer questions put to him in the Grand Jury room. As to notice of the contempt trial and opportunity to defend himself thereat, there was no refusal to accord relator all his rights in those respects.
The Grand Jury was investigating the attempted strangulation of Lawrence Gallo on August 20, 1961, at a Brooklyn restaurant called the “ Sahara Lounge ”, and the murder of a man named Magnasco in Brooklyn on October 4, 1961. The relator, Aurelius Cirillo, was pursuant to subpoena called as a witness before the Grand Jury on the morning of November 1, 1961, and after he had first refused to answer questions on the ground of incrimination he was accorded immunity and then
After that first Grand Jury episode and on the same morning relator, accompanied and represented by his attorney, was taken before the County Judge and an application made by the District Attorney to punish him for contempt. The previous Grand Jury proceedings were described to the County Judge, there was some argument between counsel, then the Judge announced that since relator had been given immunity he would have to answer the questions as to his August 20 activities, or go to jail. Relator’s
Delator was then taken back before the Grand Jury and again asked what he did and where he was between noon and 7 o ’clock on August 20, 1961. He said that he did not remember where he was during that period. He admitted that he had been away from his home for more than two months from August 20 until he had surrendered to the police a few days before the Grand Jury appearance and said that he had been in Long Island and “ up-State ” and that he knew the police were looking for him during that time. Lie said he had not surrendered to the police because he was afraid of “ The Gallos ”. He said that he had nothing to do with what happened to Larry Gallo but that a newspaper had printed a story to the effect that he (relator) had driven a car involved in the Gallo assault.
After the second Grand Jury proceedings described in the above paragraph, Cirillo was taken back (early afternoon of the same day) before the County Judge. The District Attorney, who had on the earlier appearance that morning in County Court made an informal motion to punish relator for contempt, renewed the motion and notified the County Judge that Cirillo had again testified to a lack of memory. The prosecutor asked and was given the court’s permission to read into the record the questions and answers of relator before the Grand Jury. Delator’s attorney objected to the contempt proceedings being conducted in this way since, so he said, he needed time to read and study the Grand Jury minutes. Actually, there was little need for study or deliberation, in face of what was so plain a case and particularly because it was now doubly clear that
Perhaps the real question is as to whether under all the circumstances the County Court gave relator a reasonable opportunity to prepare his defense and to be heard in defense. The answer must be based on this particular record. Although counsel continually asserted his need for additional time he had, under the circumstances, a fair opportunity to put forward any proof or arguments available to his client. “ What constitutes sufficient notice and reasonable time to make a defense depends upon the particular circumstances of each case ” (Matter of Spector v. Allen, 281 N. Y. 251, 256).
We have no doubt of the validity of the finding below that these “ don’t remember” answers were contemptuous (People ex rel. Valenti v. McCloskey, 6 NY 2d 390, 398, 399).
The order should be affirmed.
Dissenting Opinion
I dissent. A recital, in the presence of the court, of events which took place outside the presence of the court is not an event which occurred in the court’s immediate view and presence within the purview of section 751 of the Judiciary Law.
Although the testimony given before the Grand Jury was read to the court at the contempt hearing, there was no refusal by relator to answer in the presence of the court. Indeed, the District Attorney, recognizing that relator did not state in open court that he would not answer the question, argued that the refusal to answer before the Grand Jury “was
Here, relator appeared before the Grand Jury on November 1, immediately thereafter was brought before the County Court, and, after a brief hearing held over repeated objections by his counsel, he was found guilty of contempt, sentenced and incarcerated, all on the same day. This certainly does not seem to me to meet the requirements of section 751 of the Judiciary Law and of our holdings in Matter of Spector v. Allen (supra) and Matter of Douglas v. Adel (supra); on the contrary, the basic protective constitutional rights afforded by section 751 of the Judiciary Law were denied relator (People ex rel. Roache v. Hanbury, 162 App. Div. 337, 342).
The three eases cited by the majority (People v. Hackley, 24 N. Y. 74; Matter of Costello v. Schurman, 6 Misc 2d 66, and People v. Costello, 6 A D 2d 385, affd. 6 N Y 2d 761) are clearly inapposite. In each of those cases the defendant declared in open court his refusal to answer the questions put to him during the Grand Jury proceeding. It was thus his declared refusal to answer in open court — and not his refusal during the Grand Jury hearing—that constituted the contempt committed in the immediate view and presence of the court.
For the foregoing reasons, I vote for reversal.
Judges Dye, Fuld, Van Voobhis, Burke and Foster concur with Chief Judge Desmond; Judge Froessel dissents in a separate opinion.
Order affirmed.