2 N.Y.2d 210 | NY | 1957
Defendant’s conviction was for five crimes of criminal contempt (Penal Law, § 600). The jury’s verdict of guilt amounted to findings that defendant, on his appearances as a witness under subpoena before a New York County Grand Jury on March 11 and 15, 1954, had been five times guilty of contumacious refusals to answer legal and proper questions in that he failed and refused to state definitely who were the participants in five telephone conversations which had been wire-tapped and the recordings of which were read to defendant before the Grand Jury. On this trial for the alleged contempts it
We turn to the errors which defendant says were committed on the trial and which he urges as grounds for reversal. All the telephone talks above referred to had been intercepted by wire tappings authorized by court orders made pursuant to section 813-a of the New York Code of Criminal Procedure and all the conversations had been recorded. It is settled that such recordings are admissible in evidence in the courts of New York State (Matter of Harlem Check Cashing Corp. v. Bell, 296 N. Y. 15). The Harlem case holding was that New York State’s method of permitting the tapping of wires and the admission into evidence of the recordings thereof is not a violation of section 605 of the Federal Communications Act (U. S. Code, tit. 47, § 605) which says that :“no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person * * * and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto (See, as to criminality, U. S. Code, tit. 47, § 501.) In 1952, six years after our Harlem decision, the United States Supreme Court came to the same conclusion in
The general constitutionality of section 813-a of the Code of Criminal Procedure (supra) has long been settled (Matter of Harlem Check Cashing Corp. v. Bell, supra; Black v. Impellitteri, 201 Misc. 371, affd. 281 App. Div. 671, appeal dismissed for want of a substantial constitutional question 305 N. Y. 724; People v. Feld, 305 N. Y. 322, 330). The Harlem and Schwarts cases cited in the next above paragraph of this opinion show that no Federal statute prevents the divulging, in New York courts as evidence, of intercepted telephone conversations. It is clear, too, that this rule of evidence is not affected by the circumstance that requiring a witness to testify as to wire taps might force him to a criminal violation of the Federal Communications Act (People v. Stemmer, 298 N. Y. 728, affd. by equally divided vote 336 U. S. 963; also, Schwartz v. Texas, supra). Coming down to the particular facts of this ease, it is far from clear that the Federal Communications Act prohibition covers divulgence by a participant in the conversation. However, it is entirely clear, first, that what this defendant was asked to do before the G-rand Jury did not come within the language of the Federal Communications Act, and, second, that the divulgence asked of him was not a voluntary one but under compulsion of a subpoena. If a participant in a telephone conversation is forbidden from testifying as to its contents because it was intercepted, then he would likewise be forbidden from testifying to it if not intercepted, since in both instances he would be violating the same supposed privilege or right said by defend
Although no particular point is made of it by the briefs here, we note that our own State has, in subdivision 6 of section 1423 of the Penal Law, a statute forbidding wire tapping. We have hejd (People v. Applebaum, 301 N. Y. 738) that despite that statute’s general language, it was not intended to prohibit a wire tap by a telephone subscriber of his own telephone. In the case before us defendant did not even tap the line but was asked before the Grand Jury to identify the voices on a recording of a wire tap by someone else. It is farfetched to say that his giving of such testimony would be a crime.
What has been said above sufficiently answers appellant’s a Third Point ” as to the alleged conflict between the Federal Communications Act on the one hand and section 813-a of the New York Code of Criminal Procedure and section 12 of article I of the New York State Constitution on the other hand. Really, the only wire tapping question we have before us here is as to whether this defendant had any valid excuse for refusing to give testimony identifying the voices in recordings of wire taps made by other persons, of conversations in which defendant took part.
Defendant argues in other points of his brief that it was error on this trial to put before the trial jury the whole of his Grand Jury testimony on the five days he testified there, and, second, that it was error in any event to put before this trial jury any testimony as to defendant’s Grand Jury testimony on March 2, 1954. As to the first of these points, it is true that the only direct issue on this contempt trial was as to whether defendant
As to tbe admissibility of defendant’s Grand Jury testimony on March 2, 1954, before be bad been granted immunity, bis argument is tbat tbe March 2 testimony, under tbe rule of People v. Gillette (126 App. Div. 665), could not be used against him for any purpose whatever. Defendant says tbat tbe taking from
Defendant makes another argument which necessitates an inquiry similar to that which this court made in People v. Brinkman (309 N. Y. 974). Defendant says that the indictment on which he was here tried was illegal in that the entire testimony of defendant before the Grand Jury and on which he was indicted was not heard by at least 12 of the grand jurors who voted to indict. The rule of the Brinkman case, shortly stated, is that an indictment is good despite the absence of certain grand jurors on various days when testimony is heard, so long as “at least twelve of the Grand Jurors, who voted to indict, heard all essential and critical evidence ” (p. 975). Exhibits in the present case show that 13 of the grand jurors who voted for the true bill were present on
Defendant says that it is inconsistent for the People to argue: first, that the testimony on March 2 and April 20 was properly put before this trial jury as material on the issue of contempt and, second, that it was not so material to the contempt that failure of all the grand jurors to hear it invalidated the indictment. We see no such inconsistency.
As to appellant’s assertion that he was guilty of one contempt only, not five contempts, it is a sufficient answer that his contumacious conduct had to do with five separate telephone talks. We do not get to the question as to whether each separate unanswered question could be a separate contempt since in each instance here it was a separate whole conversation that was made the subject of a charge of contempt.
Defendant-appellant’s last argument to us is that his rights were invaded in connection with the use on his trial of a so-called special or “ blue ribbon ” trial jury. The constitutionality in general of the New York State statutes as to the use of special trial juries in criminal cases was upheld by the United States Supreme Court in Fay v. New York (332 U. S. 261) and Moore v. New York (333 U. S. 565). This appellant’s objections
The judgment appealed from should be affirmed.
Judgment affirmed.