68 N.Y.2d 348 | NY | 1986
OPINION OF THE COURT
Where a witness is called before a Grand Jury and,
I
While standing outside a liquor store in Syracuse with two other men, petitioner Anthony Rush heard shots ring out. He was questioned by the police during the ensuing investigation and told them he saw one of the men, Lucas Bouges, shoot the victim, Leroy Johnson. He signed a sworn statement to that effect, which was the basis for the subsequent issuance of a felony complaint (CPL 100.20) and the arrest of Bouges. In the course of seeking an indictment against Bouges, the People called Rush to testify before the Grand Jury. Rush, without executing a waiver of immunity, told the Grand Jury he had lied in his sworn statement to the police; that in fact he never had seen Bouges shoot Johnson. Thereafter, a separate Grand Jury indicted Rush for the crime of second degree perjury (Penal Law § 210.10) charging that he swore falsely either when he gave his sworn statement to the police, or when he testified before the Grand Jury, because the statements were so inconsistent that one of them was necessarily false (Penal Law § 210.20). Rush moved to dismiss the indictment claiming that because he was granted transactional immunity in exchange for compelled testimony, he could not be prosecuted for any crime (including perjury) on the basis of his sworn police statement, nor could the People use the police statement as evidence against him in a prosecution for perjury allegedly committed before the Grand Jury. Trial court denied the motion but found that although the evidence was insufficient to support a charge of perjury in the second degree, it was sufficient to support the lesser included crime of perjury in the third degree. Trial court also rejected Rush’s immunity claim, holding that a Grand Jury witness has no immunity against a charge of perjury knowingly and intentionally com
The Appellate Division granted Rush’s petition and dismissed the indictment, concluding that a proceeding pursuant to article 78 seeking a writ of prohibition is available to assert a claim of immunity from prosecution, and that, because Rush had acquired immunity from prosecution for and therefore could not be convicted of perjury as to the sworn statement given to the police, an indictment that would permit the jury to return a perjury conviction based on that sworn statement was fatally defective, and the court was without jurisdiction to try him thereunder. We granted leave to appeal (67 NY2d 604).
II
The initial question we consider is whether the remedy of prohibition under CPLR article 78 is available to a petitioner to raise a claim of immunity from prosecution. We again observe that although CPLR 7803 (2) authorizes a proceeding under article 78 to test "whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction”,
While we have heretofore allowed use of this extraordinary remedy in respect to pending criminal proceedings, we have stressed it should be available only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county’s geographic jurisdiction (see, e.g., Matter of Steingut v Gold, 42 NY2d 311, supra). This type of error is to be distinguished from errors of substantive law or procedure committed within a proceeding which is properly maintainable, even though concededly "there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act without jurisdiction or in excess of [authorized] powers * * * of necessity involves an 'error of law’ ” (La Rocca v Lane, supra, at p 580). Notwithstanding the difficulty in drawing subtle distinctions, we have said, and now reiterate with emphasis, that prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power (Matter of Steingut v Gold, supra, at p 315; Matter of State of New York v King, supra, at p 62).
Generally, the ordeal of a criminal trial and the possibility of conviction, by themselves, are insufficiently harmful to warrant use of the writ (Matter of Dondi v Jones, supra, at p 14). Moreover, the fact that the harm sought to be redressed implicates a constitutional right, does not necessarily command availability of the writ, for not all constitutional claims are cognizable by way of prohibition (see, e.g, Matter of Blake v Hogan, 25 NY2d 747 [prohibition does not lie where claim is denial of right to speedy trial]). Prohibition may lie, however, where the claim is substantial, implicates a fundamental constitutional right, and where the harm caused by the arrogation of power could not be adequately redressed through the ordinary channels of appeal. (La Rocca v Lane, supra, at pp 579-581.) Thus, for example, when a defendant is about to be prosecuted in violation of his constitutional right against double jeopardy, we have concluded that the harm that he would suffer — prosecution for a crime for which he cannot constitutionally be tried — is so great and the ordinary appellate process so inadequate to redress that harm, that prohibition will lie to raise the claim (see, e.g., Matter of Kraemer v County Ct., 6 NY2d 363).
Ill
Turning to the merits, we conclude that the Appellate Division correctly determined that petitioner received immunity relating to his sworn statement to the police, and that therefore he may not be prosecuted for perjury based upon that sworn statement or through the use of that sworn statement. In our State, a witness at a Grand Jury proceeding is compelled to give any evidence legally requested (CPL 190.40 [l]).
The People argue that Rush was not called before the Grand Jury to ascertain whether he lied to the police, but to recount his observations at the scene of the homicide. Consequently, they contend, the immunity that Rush received does not extend to the truth or falsity of his statement to the police, but only to crimes relating to the transaction under investigation — the homicide. This record conclusively demonstrates, however, that petitioner’s statements that he lied to the police and never saw Bouges shoot Johnson were in direct response to the prosecutor’s questions concerning the veracity of the sworn statement petitioner had given to the police.
CPL 50.10 (1) provides further that a person who possesses transactional immunity by virtue of having been a witness in a legal proceeding "may nevertheless be convicted of perjury as a result of having given false testimony in such legal proceeding”.
Here, however, the People have charged petitioner with perjury in reliance on Penal Law § 210.20 which provides that "[w]here a person has made two statements under oath which are inconsistent to the degree that one of them is necessarily false * * * the inability of the people to establish specifically which of the two statements is the false one does not preclude a prosecution for perjury [and] the indictment * * * may set forth the two statements and, without designating either, charge that one of them is false and perjuriously made”. Under an indictment drafted pursuant to Penal Law § 210.20, the jury is not called upon to determine on which occasion the petitioner lied. Any guilty verdict would be based on the jury’s conclusion that he lied in either the one statement or the other. Therefore, this indictment permits the jury to consider
The People argue that under Penal Law § 210.20, the offense of perjury does not arise until the second, and inconsistent, sworn statement is made. This argument is specious. Penal Law § 210.20 does not define a substantive offense, it merely provides a method of pleading and proving the already defined offense of perjury (Penal Law § 210.10). The People’s remaining arguments have been considered and found to be without merit.
Based upon the foregoing, the judgment of the Appellate Division should be affirmed.
Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Titone concur; Judge Hancock, Jr., taking no part.
Judgment affirmed, without costs.
. By stipulation of the parties, the underlying criminal case (People v Rush) has been stayed pending determination of this appeal.
. For historical perspective, we note that originally, the English Kings issued writs of prohibition to restrict the powers of ecclesiastical courts over temporal matters and the remedy has since evolved into a basic means of protection for the individual in his relations with the State (Matter of Dondi v Jones, 40 NY2d 8, 12; La Rocca v Lane, 37 NY2d 575, 578). The remedy of prohibition is firmly rooted in our common law and has been codified in this State for many years (see, CPLR art 78; Civ Prac Act art 78; see also, Matter of Dondi v Jones, supra, at p 12; La Rocca v Lane, supra, at pp 578-579; see generally, Comment, Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 76-84; Wolfram, "Ancient and Just” Writ of Prohibition in New York, 52 Colum L Rev 334, 338-353).
. Furthermore, in order for prohibition to lie, the writ must be directed to some inferior judicial tribunal or officer and must seek to prevent or control judicial or quasi-judicial action only as opposed to legislative, executive or administrative acts (Matter of Steingut v Gold, 42 NY2d 311, 315; Matter of Dondi v Jones, 40 NY2d 8, 13). There is no dispute here that "[a] public prosecutor is a quasi-judicial officer, who performs important duties within our judicial system, and is subject to prohibition under proper circumstances” (Matter of Dondi v Jones, supra, at p 13; see, e.g., Matter of Simonson v Cahn, 27 NY2d 1, 2 [article 78 proceeding brought to prohibit prosecution of a felony absent indictment by a Grand Jury]).
. We have permitted an article 78 proceeding in the nature of prohibition to interrupt pending criminal proceedings on other rare occasions. In La Rocca v Lane (37 NY2d 575), we permitted petitioner, a catholic priest and defense attorney, to use prohibition to vindicate a claimed violation of
. The United States Supreme Court has characterized the privilege against self-incrimination as " 'the hallmark of our democracy’ ” and "the essential mainstay of our adversary system” (Miranda v Arizona, 384 US 436, 460). See, Miranda, supra, at pp 458-466, for a comprehensive review of the roots, historical development and fundamental nature of the Fifth Amendment’s privilege against self-incrimination.
. CPL 190.40 (1) provides: "Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.”
. CPL 190.40 (2) provides that "[a] witness who gives evidence in a grand jury proceeding receives immunity unless * * * [h]e has effectively waived such immunity * * * or [s]uch evidence is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive.”
. "Legal proceeding” is defined in CPL 50.10 (2) as "a proceeding in or before any court or grand jury, or before any body, agency or person authorized by law to conduct the same and to administer the oath or cause it to be administered”.
. The Grand Jury testimony in pertinent part was as follows:
"Q. [T]his is your statement you gave to the police that night?
"A. Yes.
"Q. Did you tell the truth to the police that night?
"A. No.
"Q. You lied to the police that night?
"A. I lied to the police.
"Q. Doesn’t it say in your statement, T have read this statement which consists of one page and the facts contained therein are true and correct to the best of my knowledge. I have also been told that swearing to a false statement can make me guilty of perjury.’ Did the cop—
"A. Didn’t I just tell you I lied to you?
"Q. So you lied under oath to the policemen?
"A. Right.
* * *
*357 "Q. Why did you lie to the police?
"A. Because I lied.”
. The Appellate Division based its determination in part upon its reading of this second sentence of CPL 50.10 (1), concluding that because petitioner’s sworn statement to the police was not given, in "a legal proceeding”, the CPL 50.10 (1) exception does not apply and the People may not charge petitioner with perjury based on that statement. This analysis implies that had petitioner’s prior sworn statement been made in "a legal proceeding” as that term is defined in CPL 50.10 (2), the instant perjury charge might have fallen within the statutory exception and been permissible. We find it unnecessary to consider that possibility since we conclude • that this indictment must, in any event, be dismissed.