Jurisdictional Statement — Riela v. New York

Supreme Court brief1960

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oIN THE

Supreme, Court of the United Wiates

October Term, 1960

4 4 & ,

EEO oo —

ANTHONY PETER RIELA,

, . Appellant,

—vVY —

THE PEOPLE Ok THE STATE OF NEW YORK,

: A ppellee.

= 3 x

‘

ON APPEAL FROM THE COUNTY COURT OF TIOGA COUNTY, .

STATE OF NEW YORK ~~

JURISDICTIONAL STATEMENT 7

: a

Lovis Mansporr : '

Counsel jor Appeliant

320 Broadway

New York 7 i, New York

INDEX ;

° eee PAGE

Mg .

Jurisdictional Statement ........ I A ne } -

Opinions Below .............+++++: veemands a ee 1, 2, 18

iit tt oo ovsiesnesimnciasse: mie, Oe

; Statutes Involved ...0....-0000e0sceeeerees weeks a

Questions Presented ..... Bidvtovdcns rey yerer ae

tatemen§,.... ..-+++-+-- se ek ea ie 5

Substantiality of Federal Questions ......... Fenee 10

Conclusion . ao ebeoue muadecenns rpridintian twit’ % 19

APPENDICES

A. Opmion, Court of Appeals, People v. Riela, 7

NY. 24.571, 200 N. Y. 8. 2d 43, repgoduced . la

A Pereepreerenenrr rrr rtrrtrttttrt 21, 8,9, 10

— ©

iB. Order of Court of pn denial of motion for

reargument, July 8, 1960 pededeeneorseeseesecs . . 7

@ Gc cne cewesontecesecsseesecerncnéscees's 2

(. Order of Court of Appeals, amending remittitur

to insert constitutional question, July 8, 1960 .. 8a

GEE o o.ce ccenssedseccesdoumesesoosece tisee ,

“R. Opinion, Appellate Divisiou, Third Department,

People v. Riela, 9 A. D. 2d°481, 195 N. Y. S. 2d. .—

PP ree 10a

Ns « dio cavopteeeeuetedwesnevesetsonanees 1,11,18

. bas |

s \

oa , ;

a0. : 4“ :

G. Notice of Appeal, filed August 4, 1960, with Clerk

- . : PAGE

E. Opinion, Tioga County Court, People v. Riela,

* 14 Mise, 2d 213, 178 N. Y. 8. 2d 873, reproduced., 17a

" = eae °

F. J ndgment of Conviction appealed from, dated

and entered July W, 1960, Tiega County Court .. 3la

of Tioga County Court .;.---+++0+s+++ Poceee : 34a

li.’ Excerpts of Statutes Involved ...... os le ot oh

(i) Penal Law § 600 gee B oc cctegecccgeces 37a

; Cited 0... cecgectee recess bo eaneed . 2,3,5

(ii f°Code of Criminal Procedure § 618-a ....-. . 37a

Cited... se eely 0 veneers o° .3, 4, 5, 6, 7, 13, 14

(iji) Penal Law § 3447,subd. 1, 2, 3(¢), 4 -..--- 398.

Cited .. 0. cesses »* .¢...3, 4,5, 7, 12, 13, 14

(iv) Unconsolidated Laws §7052 subd. (5), (6), .«

(7) and (9), (McKinney’s Vol. 65 Part 2) . 40a

” Cited .. 2. case ee teeee eee eee 3, 4, 7, 13, 15, 16

_ (v) New Jegsey Revised Statutes, Article 2, --

: 2A :81-4, and 2A:81-5 ...... eaupeneeaeee 4la

* Cited ....%..--- seqscesececececeeeeees 3

(vi) Geheral Business Laws §352 subd. 5, (Vol.

_ 19 McKinney’s Consol. Laws) ...------: 4la

Cited..... veceaauenscseececeeeceenss 3,17

\ . \

7 iii s

7 ‘PAGE

Tapue or Cases CiTep see are

2 ae

In re: Amatp, 204 Mise. 454, 459, 124 N. Y. S. 2d

DO FED cc ccceccodvces Pree eeyee tieeeeeeeee Se

Wrown v. United States, 359 U.S. 41, 49 ........ 10, 11, 12

Brown v. Walker, 161 U. S. 591... 2... 6 eee eee WV

Carlson v. United States (CLA. Ist), 209, P. 2d" 209,

Q14, DIB 2. nce ecw cccvcceccceccesenivvcercvccees 11, 15

(tharleston Federal Savings & Loan Sean. v. Alder-

son, 324 U. S. 182, 185 ...... ehesnbewbasteegees 3

Commission of Investigation v. i occheetiaieh 5 N. ¥.

” 2d 1026, 185 N. Y. S. 2d 550, appeal dismissed,

' snub nom Castellano v. Commission of Investiga-

tion, 361 U, S. 7 1... eee ee eee reece Ruleedee 11

Dahnke- Walker Milling | Co. v. Bondurant, 257 U.S. :

23,8 cS tt SME sR ieee

Dunhath v. Ottinger, 243 N. Y. 423, cc eee :

Emspak v. United States, 349 U. S. 190, 197, 202 ... .. il

Feldman v. United States, 322 U. S. 487, 489, 493. . 16,17

Flournoy v. Wiener, 321 U. S. 253, 263 ..........-. ; 5

Gendron v. Burnham, 146 Me. 387, en 82 A. 2d

TTB, TRATED on ccccccceccccccccceePcevecedseces 11

Herlands (Carcietta) Matter of, 204 Mise. 373, 377, ,

«124 N. Y. S. 2.402, 405-406 .. 2... eee cee eee 17.

Hoffman v. United States, 341 U. 8. 479... 6 15, 16, 17, 18

Jack v. Kansas, 199 U. S. 372 ea aa tec. 17,18

Knapp v. Schweitzer, 357 GE dipddonceseds 11, 15, 18

Levine v. United(States, 362 U. S. 619, 612, Leceataa << saa

Mills v. Louisiana, 360 U. | Sree eee 10, 12

Poulos v. New Hampshire, 345 U. 8. 395, 402 . seean $

Quinn v. United States, 249 U. S. 155, 167 ........ w . 10

. :

Q —+—4s— s : —

nal |

: iv

\ °, PAGE

YS. Raley v. Ohio, 360 U. 8. 423, BS tial vedo abl 3, 10, 12, 19

on Richfield Oil Corporation v. State Board of Equali-

» \ gation, 329 U.S. 69, 84 ...----ereeeerrre es awe

State of New York v. O'Neill, 359 U. S. 1,8 ----2%-> 14, 15

Sweezy v. New Hampshire, 354 U. S. 234 .°.---- ++ 19

Ullman v. United States, 350 U. GS, 422......+-.. et,

United States v- Allegheny County, 322 U. S. 174, :

1 8191-192 . 2. eee e cece ert? eenneeeeees Peete 8:

~ Winters v. New ‘York, 333 U.S. 507 ---+++-0007> ;

we a

' ‘FeperaL SraTuTes INVOLVED

38.U.S.C. §1257(a@) ..-seegeeee eee ad iaile eins Woh 3,19

aS UBC. § S108. ..2.--sereercerrccccsrrrrerseee® 19

-Uxrrep States Constitution | .

Fourteenth Amendment .... Gy SERRE 4. 7,9, 13

—————<=—

eo |

Supreme Court, of the United States

Gctober Term, 1960

No. e

Antnonxy Peter RIELA, !

° | | Appellee. -

a :

- \ = ?

. Tae Peorie or THE State or New York,

e a (hi Appellant,

. )

& °

ON APPE4L FROM THE COUNTY COURT OF TIOGA COUNTY,

STATE OF NEW YORK ’

JURISDICT IONAL STATEMENT

‘ “Appellant appeals from the final judgment entered by

the Tioga County Court based pon the judgment of the .

Court of Appeals of the State of New York reversing in

. part, the judgment of canviction of the Appellate Division,

Third Department, and remitting the case to the Couaty

‘Court of Tioga County for resentence, and from the denial

of the motion for reargument en said appeal. This State-,

ment is submitted to show that the Supreme Court of*the

United States has jurisdiction-of the appeal and that sub-

stantial questions aré presented. ” i

S 3 : '

. Opinions Below

‘ The Court of Appeals opinion is reported in 7 N. Y. 2d

qi51, 200 N. Y. S. 2d 43 (Appendix‘tA’’); the Appellate

* Division, Third Department is. reported in 9 App. Div. 2d

2 a

481, 195 N. Y. S. 2d 558 (Appendix “D—D’’); the County

a, Court of Tioga County opinion is reported .in 14 Mise. 2d

213, 178 N. Y. 8. 2d 873 (Appendix ‘‘E’’); the Court of

Appeals opinions denying the motion for reargument and

to amend the remittitur, dated July 8, 1960 and not yet

reported (Appendices ‘‘B”’ and ‘‘C’’). ‘

Grounds on Which Jurisdiction 1s Invoked

(if This is f criminal prosecution charging the appel:

lant, a non-resident of the State of New York, in a seven-

teen count indictment with the crime of criminal contempt

in violation of § 600, subdivision (6) of the Penal Law, for

refusing to answer questions of: the Tioga County “Grand

Jury. .

(ii) The judgment of the Court of Appeals -6f the-State

of New York appealed from in this case was entered and

dated as of April 21, 1969 at th® same time of the filing

of its. opinion (Appendix ‘‘A’’, herein). Said judgment

affirmed: the conviction but reversed in part, and remitted

the case to the Titga County Court for reséntence in ac-

cordance with its opinfon, the Court of Appeals holding

in effect that a single contempt and not seventeen con-

tempts, was committed.

‘On July 8, 1960, the Court of Appeals deijed a motion

for reargument and granted a motion to’amend the remit-

titur by, adding thereto the constitutional questions that

were considered by that Court (Appendix ‘‘C’’).

On July 12, 1960 the County Court of Tioga County en-

iered its judgment. resentencing the appellant f 4 jail

term. of 60 days and fining him-$250 (Appendix ‘‘F’’).

_ No further State Court appeal is permitted in the within

case.

"ty

The Notice of Appeal to the ieinns Court of the United

States was filed im the County Court of Tioga County, State

of New York, on August 4, 1960. A td Gronks is attache d

as Appendix og”,

* (iii): The statutory provision velieved to ontes jurisdie-

tion of this appeal on the Supreme Court of the,United

States is Title 28 U.S.C. § 1257 (2).

Srv) lg is believed that the ipinwning 3 cases sustain the

jurisdiction of this Court: Ddhnke-Walker Milling Co. v.

Bondura , 257 U.S. 282, 289; Charleston Federal Sagings

d& Loan Aksn. v. Alderson, 324 U. S. 182, 185; United States

_ Allegheny County, 322 Y. 8.174, 191-192; Richfield Oil

, hosvanaal y. State Board of Equalization, 329 U. S. 69,

84: Raley v. Ohio, 360 U. S. 423, 435; Poulos v. New Hamp-

shire, 35 U. S. 395, 462; Winters v. New York, 333 U. 8.

507.

(v) (A) The validity under ‘the Constitution of tte u aited

States of the following New York State statytes is ir-

volved:

°+ Penal Luw § 2447 subd.'1, 2, 3(¢) and 4.

Mode of Criminal Procedure, § 618A subd. (3).

-3. McKinney’ s- ‘Uneonsolidated Laws, § 7052, subde. (5),

(6), (7) and (9).

The text of the above statutes are set forth.in Appendix:

‘TH’? (iii), (ii) and (iv), penpoeveny. .

(B) Other statutes involved Igrein are: ,

1. Penal Law § 600 subd. 6. : |

al a yenerAl Business Law § 352 subd. 5.

2A 81-5 dio 39 N.J.S.A.). »

“3: New Jersey Revised Statutes, Article 2, ‘QA: ‘81-4 and

. , ¢

The text of these statutes are set forth in —" —_

as (i), (vi) and (v), respectively, — wi.

’

. Qyestions Presented

(1) Was the contempt conviction repugnant to the Four-

_ teenth Amendment where a New York grand jury confers

“New York @tate immunity on a New Jersey resident wit-

ness, repeats “the questions and the witness reasserts his

plea of privilege, but the Court fails to direct the non-resi-

dent witness to answer the questions or to permit witness

to prove the existing perils of rrosecutien in his home state

“and th Federal government as well as the inadequacy of

the immunity offered?

(2) Is the joint application of Penal Law § 2447 with

herein, repugnant to the spirit and interpretation of the

Fourteenth Amendment, and were the witifess’s rights and

privileges’ thereunder violated, where a New York non-

resident grand jury witness, a target of investigation and

_ a potential defendant, is brought into New York by designat-

ing him as a material witness, and the New York immunity

conferred is not co-extensiye with the perils of prosecution

existing for him in his home state, other states and the

Federal government, afd Tioga County grand jury minutes

have, pursuant to Court orders, been transmitted without

secrecy restrictions, to New York State agencies which are

obligated ‘by state (§§ 7051-7057, McKinney’s Unconsol.

Laws) to cooperate with witness’s home state, other states

and the Federal government, and the Court fails to direct

the witness to answer grand jury questions despite his

_pleas ot privilege against self-incrimination? :

(3) Was appellant denitd due process by Court’s pre-

clusion of prooééas-to the existence and reality of the perils

Gide.

tfatt

RES Se RON TAILS TAR IE BEE DTS OU EE oe

> . . * . af

‘of prosecution, lack of authority, good faith and jurisdiction

of the grand jury and inadequate immunity conferred?

(4) Appellant ircludes in the questions presented herein

‘any other deniai of a fderal right whether or not capabte

in itself of. being brought here by appeal”. Flournoy vy.

Wiener, 391 U.S. 253, 263. “s

. "@

Statement of the Case =s_

Appellant, a New Jersey resident, a potential defendant

and target of investigation of the Tioga -County grand

jury of "New York, was pursuant to the application of

“ 618-a of the New York Codé of Criminal Procedure, com-

pelled sto appear as a material witness before the Tioga

grand jury. He asserted his constitutional privilegé against

self-inerimination before that body in refusing to answer

their questions. The grand jury havi. g knowledge of his

non-residency, offered him’ New York State immunity

(Penal Law ¢ 2447}, and again questioned him. Again he

pleaded privilege: Instead of being taken before the Court .-

for a direction to answ er or permitted to establish his real,

and »xisting peril of prosecution in Fis home state, other

states and the Federal goverpment, the grand jury indicted

him for gontempt of Court (PénakLaw § 600, subd. (6)).

At the trial, a jury was waived.

‘The defense established his non- residency, the improper

#application of § 618-a C.C.P. and § 2447 P.L. to the instant

case, the absence of a Cotirt direction that the witness an-

swer grand jury questions, the transmittal*of grand jury

minutes to state agencies cnoperating with other states and

the Federal government (§§ 7051-7057, Unconsolidated

laws, MeKinney’s) and the obvious gnadequacy of New

York immunity to a non-resident witness.

. The defense was pre ‘cluded from proving that the exist-

ing perils of prosecution were real and substantial (Ho4-~

man v. United States, 341 U.S. 479) ; that the grand jury

was not acting in good faith but was created and used 2s

the “‘tool’’ of the Acting Commissioner of Inve ‘stigation ;

that it lacked jwrisdiction and authority to yu’ sue the in-

quiry; that it was investigating a meeting and a party and

not a crime (R. 182); and thai the New York immunity was

dissipated when the grand jury minutes were made avail-

able to agencies cooperating with other states and the

Federal government, the jpdge having failed to impose

_ restrictions on their secrecy.

The fedgral questions sought to be reviewed are ont

were raised, as follows:

i) The denial of procedural due process by the improper

application and use of 4 618-a of the Code of Criminai Pro-

cedure to obtain the prosenee in New York State of the non-

resident appeliant by alleging he was a material witness

before a New York grand jury when in fact he was a

potential defendant and target of investigation.

This issue was raised before the trial court by motion on

February 13, 1958 and denied '(R. 31); on the «motion to

‘acquit (R. 269, 289), denied (R. 269, 422); by statements

to the Court (R. 31, 50-56), and by the District Attorney’s

. statement to the appellant (R. 71).

The trial court’s opinion stated that this issue is collat-

eral and not relevant and that the witness appeared volun-

tarily (R..445). ;

The point was further pursued befgre the Appellate

Division, Third Department in Pgint II (pp. 17-23) of Ap-

pellant’s Brief and rejected in that Court’s opinion (R.

457-459). - . ;

) ‘

tee A Pa Bel IRE We

Ce RG AC ape RRND eras eg

Precione sos Bp RSS Se ee RL a tN go EN ET

a |

‘

In the Court of Appeals, the point was urged in. Point

VI (pp. 36-‘2). Fhe Court of Appeals considered this argu-

iment in conjunction with other constitutional isstes as ap-

pears from the amendmpnt of its Remittitur on July 8,

1960 { Appendix, ‘*C’’).

(ii) The joint application of § 618-a, Code of Criminal

Procedure with 4 2447 Penal Law to a New York non-resi-

dent violates selina due process ‘under, the Fourteenth

Amendmentwhere the witness is a potential defendant and

u target of investigation, and the New York State ynmunity

is not co-extensive with the perils of prone in the

witness’s home state, other states, atid the Fedral govern-

ment, “here New York grand jury minutes are forwarded

taa State Commission of Investigation obligated by statute

(Uneonsol. Laws 6.7052, subd. (5) (6)) to investigate viola-

tions of federal law in New York and to cooperate with

other states and the Federal government.

This point was urged before the trial court in a motion

for dismissal of the indictment (R. 201, 210-214, 218-219,

262, 304-306, 344-345), and in a motion for arrest of jude.

ment (R. 383-385, 402, 405-406). The motions were denied

(R. 269, 422), and the argument overruled in ite opinion

(R. 487-439).

The poitit was further pursue before the Appellate

Division, Third Department in Point Il (pp. 17-23) of

Appellant’s Brief before that Court and rejected in its

opinion (R. 461). ‘

The Court of Appeals refrained from commenting on

this issue in its opinion. However, the remittitur as

amended (Appendix ‘*C’’)’ concedes that the issue was

presented to, passed upon, and rejected by that Court. °

(iii) The failure of the Court to order or direct the non-

resident: grand jury witness to answ er questions to which

the plea of privileg@ is asserted, after the offer of New

York immunity and the witness’ reassertion of his plea,

where the existing péril of prosecution is real and sub-

stantial, and the grand jury minutes transmitted to a New

York agency cooperating with other states and the Federal

government, constitutes a denial of procedural due process

in violation of the Fourteenth Amendment. —

This goint was urged before the trial court (R. 191-193,

196, 197) upon cross-examination of the grajd jury fore-

man, by motion fora dirceted judgment of acquitial, denied

(R. 199), and by motion for dismissal of the indictment and

for acquittal (R. 203-204). These motions were denied

(R. 206); by offer of proof to show existing perils of

prosecution, argument (R. 222, 232, 237-238), denied by the

Court (R. 249, 252, 259-262)< by motion to acquit and the

denial thereof (R. 268-269); by motion for judgment of

acquittal and summation (R. 975-277; 282-283, 285-286, 288,

294, 304-306, 313-316, 3499854), denied by the Court’s deci-

sion (R. 373); by motions for arrest of judgment ‘and for

» new rial (R. 380-417) which were denied (R. 422). .*

Tee {tial court's opinion dismissed this argument (R.

443).- .

The point was further ‘pursued before the Appellate

Division, Third Department, in Affpellant’s Brief (Point.I,

pp. 13-16) and overruled (R. 460-461).

The point was submitted to the Court of Appeals in Ap-

peHant’s Brief (Point: I, pp. 13-21) but evaded by that

Court, 7 8. Y. 2d 571, 575-576, 200 N. Y. S. 2d 43, 45, which

held ‘‘that the grand jury had unquestioned power to con-

fer immunity upon Riela and direct him to answer under

. e a

pain of prosecution for contempt’. .

(iv) The offer of New York. Stat immunity to a non-

resident is not co-extensive with the existing perils of

”

es es, eee

, 9

# ‘

prosecution where the witness must return to his home

state and where New York grand jury minutes are trans-

mitted to divers agencies ‘cooperating with his. home state,

other states, and the Federal gov ernment. The trial court’s

rejection of the. appellant’s offer of proof to establish the

existing perils of prosecution and the absence of a court

hearing on his assegted plea of privilege before the Grand

Jury-after conferral of New York immunity, constituted a °

denial of due process. .

This issue was presented to the trial court by offer of

proof (R. 208, 232, 248, 249), deniéd (R. 249); by motion

for acquit¥al and summation (R. 304-305, 384, 402-406),

denied (R. 422). The Court’s opinion dismissed the .con-

tention (R. 437-439). ;

The issue was presentedzfe the Appellate Division, Third

Department, by Appella rief (Point II, pp. 17-23) and

rejected by its-epinion (Rea

' 7

The issue was eas. to the Court of heat in Ap-

pe Jiant’s Brief (Point IT, pp. 21-24) and Point VI (pp. 36-

38). The Court overruled appellant in its opinion, 7 N. Y.

2d 571, 576, 200 N. Y. S. 2d 43, 45 stating: ‘‘And to the

second point, it is equally clear, under current decisions,

that a witness may be compelled to answer in a state pro-

ceeding, as long as the immunity granted by the state pro.

tects against prosecution under its laws, even though it

may not protect against prosecution by the federal govewh-

ment or by cther states.’’

(v) The trial court’s denial of the appellant’s offer of

»roof to show the lack of authority, jurisdiction and good

faith of the Grand Jury, coistituted a denial gir process:

This issue was presented to the trial court ‘by appellant

by cross-examination of the grand jury foreman, excluded

by the Court (R. 178-179, 182, 164, 146, 172-176); by offer

- 19

of proof {R. 255-259); denied (R. 262); by motion to acquit

(R. 268-275), denied (R. 269); by reading the court orders

into the record (R. 213-216); by motion for arrest of judg-

ment (R. 389, 400, 410, 412), denied (R. 422).

The trial court’s opinion upheld the authority, jurisdic-

tiop,and geod faith of ‘the grand jury by adopting the

theoty of presumption of regalarity (R.°435) over the-pre-

sumptior of innocence (R. 205). ° :

The point was was : Appellate

Third Department i in appellant’s brief (Pointe VI, pp. 31-

36). That Court ignored the issue by holding that a grand

jury may investigate whether a crime has been committed

or no. (R. 462). - *

’ The point was further presented to the Court of Appeals

in Appellant’s Brief ¢Point V, pp. 31-36) and held not to

warrant discussion, 7 N. V. 24 571, 575, 200 N. Y. S. 2d 45,

45.

2‘

hes Queztions Are Substantial

(1) The lack of a court direction that witness answer.

The lack of a Court Gfrection that a witness answer

where a plea of privilege against self-inerimination is as-

serted, constitutes ‘a denial of due process and a violation

of unifogmly recognized procedure in both state and fed-

eral courts. Quinn v. United States, 349 U. 8S. 155, 167.

\ conflict pertaining to the validity of procedure in con-

comet adjudication exists between the New Yok Court of

Appeals in People v. Riela, 7 N. Y. 2d 571, 200 N. Y. S. 2d

_ 43, and this Court in Brown 7. United States, 359 U.S. 41

49, Levine v. United States, 362 U. S. 610, 612, Raley v.

Ohio, 360 U. S. 423 (state court-direction by court), Mills

y. Louisiana, 360 U. S. 230 (state court-direection by court),

' . °

| 11 te

;

Knapp v. Schweitzer, 357 U.S. sof (state court-direction

United States, 349 U. 8. 190, 197, 202 (Congressional Com-

mittee-direction —requi the First Cireuit Court ‘in

Carlson v. United States, 209 F. 2d 209, 214 (C.A. Ist Cir. )

(court-direction required—-United States District Court

Grand Jury), ang the Supreme Judicial Cc ourt of Maine in

(rendron v. Burnham, 146 Me. 387, 405-406, 82 A. 2d 773,

7S4-788 (state court-direction r@quired).

_ The Court-of Appeals cited Milk and Knappsupra, and -

Commission of Investigation v. Lombardozzi, 5° N. Y. 2d

1026, 185 N. Y. S. 2d 540, appeal dismissed sub nom. Cas-

tellane v. Commission of Investigation, 561 U. St 7. Mills

_ and Knapp each had a court direction after the grant of

immunity. Castellano had the direction by the Comiyission

after the immunity grant.

The *A ppellate Division, Third Department, in its opjnion

R, 461) states:

“The case of Brown v. United States (369 U.S. 41)

uses language from which appellant gains some com-

, fort, but it involved a Federal statute and is by no

means controlling in New York State in a prosecu-

tidy under section 600 of the Penal Law and where

the procedure authorized by section 2447 of the Penal

Law was ineticulously followed.”’ ee

‘ The New York Court of Appeals (7 N. Y. 2d 571, 200

N.Y. S.2d 43, 45) adopts this reasoning by stating: ‘‘it is

necessary only to observe that a reading of section 2447

makes it manifest that the-grand jary had unquestioned ‘

power to confer immunity upon Riela and direct him to

answer under pain of prosecution for contempt.’ This begs

the question for it omits the entire issue of procedural due

process.

by judge in 4750 Judiciary Law proceeding), Emspak v. ie

However, Penal Law § 2447 is no more effective in grant-

ing State immunity as applied to the instant case than the

immunity conferred federally in Brown v. United States, -

, 349 U. S. 41, by § 205 of the Motor Carrier Act (49 O.8C,

§ 305 (d)); or the Ohio immunity statute, i in Raley v. “Ohio,

360 U.S. 423; or, the Louisiana statute conferring immun-

ity in Mills v. Louisiana, 360 U.S. 230. Bach of these cases

held that even though immunity be conferred by statute,

the specific direction to answer is a vital condition prece-

dent to the commission of contempt.

Penal Law § 2447 sets forth thg condition precedent for.

the grand jury conferring immunity but it does not and

cannot substitute the right of a “witness to be heard by the

court to interpose his plea of privilege against .self- -inerimi-

- nation and to establish the validity thercof. This statute

“cannot usutgthe power and duty of a trial judge to evalu-

ate the merits of the plea of privilege, especially where a

‘ non-resident is involved under the peculiar facts herein. If

it does, it denies the substantive due process as well as pro-

cedural due process of a witness. It was so applied here.

+ wh wind - ee fa 4 ie ee

The New York Court ignored Brown v. United States,

359 U. S. 41, 49, ci#ed and argued by appellant. The proce-

dure there set forth by Mr. Justice Stewart at 351.0. S. 41,

49 is clear and unambiguous.

‘*Kven ‘aur an adverse ruling upon the elaim ‘of

privilege, the petitioner was still guilty of no con-

tempt. It was ineumbent upoa the court unequivo-

cally to order the petitioner to answer. * * * The

court did so. :

‘‘When upon his return to the grand jury room the

petitioner again refused to answer the grand jury’s

questions, now in direet disobedience of the court’s

order, he was for the first time guilty of contempt,

eee .

9 A

Due _— requires the Court to give the witness an

opportunity to be heerd. Carlson v. United States, 209 F.

2d 209, 215 (C. A. 1s: Cir.).

(2) The denial of procedural and substantive due

process by joint application of statutes.

The joint application of § 618-a C.C.P. with ¢ 2447 Penal

Law to ghe facts herein, involving a New York non-resident,

violates due process under, the . Fourteenth Amendment

where the non-resident witness is a potential defendant and

target of investigation. The granting of local state immun-

ity is not co-extensive with the existing perils of prosecu-

ion and dissipates he witness’s plea of privilege in his

home state, other states and the, Federal government. The

joing statutory application to the facts herein cireamvented

the constitutional safeguards of the witness.

The federa! questions involved herein are real and sub-

stantial. The certificate of the “‘ourt of Appeals amending

the remittitur shows that it considered the consfitutional

questions and that such consideration was necessary to the

(*" ourt’ s determination.

Altheugh Penal Law § 2447 has been upheld as constitu-

tional, this is the first case in which it has been applied-to

a non-resident who must return to his home state. In the

instant case, the transmittal of grand jury minutes to a

state agency obli: gated by law to cooperate with other states

‘and the Federal government (§§ 7051-7057, Uneonsol.

Laws), vitiates and nullifies the state and Federal consti-

tutional privilege against self-incrimination and is repug-

nant to the Fourteenth Amendment. Although validly ap-

plied in other cases, the application of Penal Law 4 2447 to

the faets herein-remlered the statute invalid.

§618-a C.C.P. is applicable solely to material witnesses

and not as here to a potential defendant and target of in-

vestigation. That appellant was ‘a potential defendant is

apparent from the Dis:rict Attorney’s statement to him ©

before ‘the grand jury (R. 71). ef. State of New York v.

O'Neill, 359 U. S. 1,°8, where the constitutionality of this

statute was upheld provided a hegring is held. However,

Mr. Justice Rrankfurter at page 8, declared:

° o

‘‘No claim is before us that the administration of

the statute in the, particular circumstances of this

case violates due process.”’ °

In the ifstant case, repeated/ claim was made that no

hearing on materiality was held ( although the order of ‘the -

forwarding state so declares), despite the reservation of

his elaim ana rights to a hearing on the‘issue of his mater-

iality as a witness, ‘hat no crime was committed; that the — .

grand jury dad no autliority and jnrisdiction’to investigate

a party; and that the grand jury was created :as a ‘‘too)’’

or implement of the Office of the Commissioner of Inves-

tigation. .

———

given to the witness to be heard as to why his plea of

privilege was asserted, or to prove the existing perils of

‘prosecution. The instant grand jury minutes were trans-

mitted pursuant to orders signed by the’ samé trial judge,

to the Acting Commissioner of Investigation on January

15, 1958, and subsequently on August 1, 1958 to the Com-

mission cf Investigation, and thereafter, on August 4, 1959

to the United States Attorney for the Southern District of

New York, for use at trial of Indictment #C-159-35 in which

appellant was a defendant. “These facts were reason enough

_to establish pePil of prosecution. Furth-r the trial judge

dD .

had judieial notice (and actual notjce) of the statute np

consol. Laws § 7052 subd. (5) (6) (7) and (9)) of the

vbligation of the Commission to cooperate with uther’ state

_and federal agencies. .

It is the joint application of these statutes to the facts

herein which constitutes a denial of substantive and pro-

cedure due process.

In the light of common investigatory practices of state

an@l county grand juries ,with extra-territorial powers of

subpcena upheld by this Coart (New York v. O’Neill, 359

U. S. 1), a non-resident witness’s constitutidnal rights of

privilege against self-incrimination in his home state, other

states and the Federal government, should be clarified and

ordained. * —

a) Ss : : oe

¥ It was obvious to the trial court that the New York im-

munity to a non-resident, in exchange for testimonial com-

' pulsion, was not co-extensive with the existing perils of

prosecution in-his home state, other states and the Federal

gevernment where the witness had to return home and the

grand jury minutes forwarded to divers agencies cooperat-

ingéwith his home state. ef. Hoffmaai v. United States, 241

U.S. 479; ef. Ullman v. United Statés, 350 U. S. 422; ef.

Knapp v. Schweitzer, 357 U.S. 371. ©

- No ease other than the withing Involving a non-resident —

witness of New York to whom New York immunity is

granted, has ever been decided, where. existing facts make

the offered immunity hollow and not co-extensive with the

real perils of prosecution." |

' The appellant herein was indicted on May. 13, 1959 by the United.

States District Cowrt_(S.D.N.Y.) for the crime of conspiracy to”

obstruct justice, based on the incident inyestigated by the Tioga

Grand Jury. He was convicted on January 13, 1900. Appeal! is

now pending beforé the Court yt Appeals, Second Circuit.

4 * . *. *

and with other states and Federal agencies 18 nationwide.

? er o

; 7 ¢ sha 5

| 16

(3) Feldman v. United States should be reconsidered. — * 4

‘ . £ ‘. : SG

The facts herein warrant the reconsideration of the doc- :

trine of Feldman v. United States, 322 U. S. 487, 489, 493, .

- because of the transmittal?’ of the grand jury testrmony to ©

the New York State eens “te Investigation whith =

agency is vbligatéd by statute to cooperate with the witness’ :

home state, other states and the Federal government (§ 7052 .

subd. (5) (6), (Unéonsol. Laws). ks 5

The current vogue of state investigative committees and \-

investigating grand juries who cooperate with each other =~

The state investigative committees, as such, have no extra- .

’ state powers of subpoena. Grand juries do. It will become

standard common practice to have the resnlt as it exists

in the within case, where state committees, by statute, are

obligated ‘as here (§ 7052 subd. (5) (6) (7) and (9) Un-

consol. Laws), to cooperate with other states~and the

Federal government. Where this occurs, immunity to nen-

residents or-residents is hollow and definitely not co-exten-

sive with the existing perils of prosecution (Hoffman v.

United States, 341 G. 8S. 479). | )

For testimony so extracted to be used in federal, and

state prosecutions—under threat of contempt for failure

to give such testimony—does violence to the rights of the

privilege against self-incrimination.

"2 The Tioga County Court issued court orders transmitting copies

of the grand jury minutes as follows: — eae

(a) On Jahuary 15, 1958, to the- Acting Commissioner of Inves-*

tigation of the State of New York;

(b) On August 1, 1958, to the Commission of Investigation, the

successor agency ;

ern District of New York, for use at trial of Indictment

No. C-159-35, in which appellant was a defendant, was

convicted and is now on appeal.

® ‘

—

;

z . ly

he for the Court-to impose secrecy restrictions or to ether-

wise protect the witness who is on the horns of a dilemma.

See Matter of Herlands (( ‘arcietta), 204 Mise. 373, 377, 124

N. Y. 8. 2d" 402, 405-406 94% Re Amato, 204 Mise. +i 459,

124 N. Y.S. 2d 726, 730. Eaifure by. the trial court to so act

makes it an accompliee i in a known and existing method, to

my e a Ww vitness of his privilege against self- incrimination.

(4) The doctrine of Juck v. Kansas and

Brown ¥. Walker is inapplicable. - °

Each of the lower courts have relied upon the doctrine

ihat the immunity granted by a state is sufficient and peed

not be applicable to the Federal government, sand vice versa.

Jack ¥. Kansas, 199 U. 8. 372, Brown v. Walker, 161 U.

591, e

This principle was tmsed on the absence of the*real dan-

ger of multiple prosecutions. — |

The New York rule is basedkon Dunham vy. a 245

N. Y. 422, 438-439. But, Dunham in reaching its conclusion

(pp. 438, 439), relied upon the secrecy. provisions contained

in the statute which that case arpheld and the migdewWedanor

punishment for publicizing information obtained pursuant

to the statute there involved (4 352 subd. (5), Gen. Bus:

Law)s (Vol. 19, McKinney’s Consol. Laws) Dunhat relied

on Brown v. Walker.

In the instant case, thg,peril of prosecution was real, and

not remote—Heifmen-v. United States, 341-U. 8S. #8. BH

secrecy provision of the Bunham statute was non-existent. .

To the contrary, publicity and cooperation were eM&upul-

sory. ‘The grand jury minutes were transmitted: to state ~~

agencies obligated by law to eooperate wifh other state.

sa .

and the Federal government. (§§ 7052, subds. (5), (6), (7),

(9) Uneonsol. Laws).

The New York Court of’ Appeals relied on Knapp _v. .

Schweitzer, 357 U. S. 871 which in turn relies on Jack v.

Kansas, 199 U. S. 372.

None of the foregoing cases, dealt with a non-resident.

witness’ pléa of privilege against self incrimination where

" the peril of prosecution is a reality and where grand jury

minutes are freely supplied to federal an@. state agencies.

_ The facts herein require the application of Hoffman v.

United States, 341 U.S. 479 instead of Jack Veit ansas, 199

U. S. 372 because the perils of prosecution were a reality,

not a contingency, and the proffered immunity not co-ex-

tensive therewith.

+ '

9 _ Opinions Below

‘Set forth in the Appendix as exhibits are the following

opinioris of.the state courts: =~

‘“*A."’ Court of Appeals opinion, Pegple v. a, 7

N.Y. 2d 571, 200 N. Y. S. 2d 43.

— bs od Appeals order denying motion for re-

ar ent, July 8, 1960.

“C.’? Court of Appeals ordep amending remiftitur by

inserting constitutional question, July 8, 1960.

**T).’? Appellate Division, Third Department, opinion,

People y. Riela, 9 A: D. 2d 481,195 N. Y. S. 2d

558. a. Gs

‘“K.’? Opinicn County Court, Tioga County, People v

Riela, 14 Mise. 2d 213, 178 N. Y. S. 2d 873°

” .

19 °

The judgment of conviction appealed from was entered

in the County Court of Tioga County, New York, on July

12, 1960, appended hereto as Appendix ‘‘F”’, %

* ‘

CONCLUSION

* Wuererore, appellant prays that this Court note wean:

ble jurisdiction ‘jn instant case and grant plenary considera-

tion, with briefs on the merits and oral arguinent, and in the

‘alternative that consideration of the qyestion:of jurisdic-

tion be postponed until such a consideration on the’merits.

+ Appellant further prays that, if he be mistaken®n his belief

that this Court has jurisdiction of this appeal, under 28

U.S.€. § 1257 (2), then, and in that event, the appeal papers

be toenail. as a Petition for Certiorari under 28 U.S.C.

‘2103, and the petition be granted. See Sweezy v. New |

Hampshire, dot U, S. 234 and Raley v. Ohio, 360 U. S. 423.

Respectfully submited,

% - °

Foe Lovis Mansporr

Counsel*for Appellant

Office & P. O: Address

.» 320 Broadway

ig . New. York 7, New York

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APPENDIX “A”

> Opinion of the Court of Appeals ’

(7 N. Y. 2d 571, 200 N. Y. S. 2d 43) \

’ PEOPLE V. Rr

Cite as 200 N. Y. . 2d 43

" See ae 571

Prop.e of the State of New York, Resffondent; v.

Anthony Pet Rrexa, Appellant.

Court of Appeals of New York.

April 21, 1960.

* .¢ e @ ®

Fup, Judge.

Anthony Peter Riela was one of the 60. odd guests whe

had gathered at the country estate of Joseph Barbara in

Apalachin, New York, on a November day in 1957. This

gathering, having attracted considerable attention from :

law enforcement officials, became the target of investiga-

tion by the Grand Jury of Tioga County. Riela, called as a

witness, made two appearances before that, body. From the

beginning, he refused to answey any questions concerning

the e ‘* Apalachin meeting’’, as it has come to be known, on

the ground that to do so might tend to incriminate him

and, in the course of his two appearances before the Grand,

Jury, he persisted in the claim of privilege bnd declined to

answer 17 questions about that same subject. Thereupon,

at the ‘request of the Djstrict Attorney of Tioga County,

the Grand Jury, acting.pursuant to the authority vested in

it by section’ 2447 of the Penal La¥, Consol. Laws, c. 40,

[1a]

‘

Appendix ‘‘A’’—Opinion of the Court of Appeals

‘‘eonferred immunity’? upon Riela and ordered hfin, fol-

ifwing the procedure prescribed by the statute, to answer

the questions previously put to him. The same 17 questions

were again asked and Riela, reiterating his reliance upon

the privilege, again refused to answer.

Asta consequence of his refusal, the Grad Jury. indicted”

_him, charging him, in 17-different counts, with 17-separate

crimes of contempt in violation of section 600 of the Penal

Law. The defendant waived his right to a jury and went &

to trial before the County Judge: The latter, finding him

guilty on all 17 counts, sentgneed him to 60 days in jail

upon each, to run concurrently, and imposed a fine of $250

on each count, for a total fine of $4,250°

[1, 2] Before proceeding to an elaboration of the ques-

tion which _yrompted the grant of leave to appeal to this

@ourt, we consider briefly the only two other points urged

by the defendant which warrant discussion: (1) that the

immunity provided by section 2447 of the Penal Law had

not been properlyconferred and (2) that, in any event, such

immunity was not broad enough to assure him the protec-

tion graranteed by the Constitution, As to the first, it is nec-

essary only to observe that a reading of section 2447 makes

it manifest that the Grand Jury had unquestioned power to

confer immunity upon Riela and direct him to answer under

pain of prosecution for contempt. And, as to the second

a it is equally elear, under current decisions, that a

ness may be compelled to answer in a state proceeding,

as long as the immunity granted by the state protects

against prosecution under ifs laws, even though it may not

protect against prosecution by the federal government or

by other states. See, e.g., Mills v. Louisiana, 360 U. S. 230,

79 S. Ct. 980, 3 L’ Ed. 2d 1193; Knapp v. Schweitzer, 357

3a ;

“

Appendix ‘* A’’—Opinion of the Court of Appeals

~U. S. 371, 78 S. Ct. 1302, 2 L. Ed. 2d 1393; Commission of

_ estigation of State of N. Y. v. Lombardozzi, 5 N. Y. 2d

1926, 185 N. Y. S. 2d 550, appeal dismissed sub nom. Cas-

tellane v. Commission of Investigation, 361 t. S. 7, 80

Ss. Ct. 51, 4:L. Ed. 24 49.

[3] Wé7come, now, to the real question in the case,

namely, wRether the defendant is guilty of 17 crimes of

~ eontempt or of, one. Concerning this, it is our opinion that,

while there can be no doubt that Riela’s conduct before the

Grand Jury constituted criminal contempt under section

600 of the Penal Law, his conviction of 17 separate crimes

of contempt, each susceptible to punishment of a year in

pri: on, was totally unjustified.

It is quite true, as the Appellate Division observed [9

A. D. 2d 481, 199 N. Y. S. 2d 563], that *‘the questions

[asked of the defendant] were by no means the same ques-

tion rephrased’’; but, in a case such as the present, where

the,refusal to answer was grounded, albeit mistakenly on

the privilege against self-incrimination, the circumstance

that no two ques@@ns could have been answered by a single

response is beside the point. What is of significance is that

it was apparent from the very start of his interrogation

that Riela, relying upoh the privilege, would decline to an-

swer any question bearing op the ‘*Apalacbin meeting”’

and that the questions, different though they were from

one another, all related to that “Bne subject. This kging so,

he is guilty of the single contempt of refusing to give testi-

mony concerning the Apalachin gathering, rather than 17

contempts for refusal to answer individual questions about

it. See, e.g., Yates v. United States, 355. U. S. 66, 73, 75

S. Ct. 128, 2 L. Ed. 2d 95; United States v. Costello, 2 Cir..

198 F. 2d 200, 204, certiorari denied 344 U®S. 874, 73 S. Ct.

Appendix ‘‘A’’—-Opinion & the Court of Appeals

166, 97 L. Ed. 677 ; United States v. Orman, 3 Cir., 207 F. 2d

148, 160; Maxwell v. Rives, 11 Nev. 213, 221; Fawick Air- |

flex Co. v. United Elee., Radio & Mach. Workers, Ohio App.,

92 N. E. 2d 431, 436, appeal dismissed 154 Ohio St. 206; 98

[4] Any other result impresses us as offensive, for, if

each separate reassertion of privilege and refusal to an-

swer were to be treated as a distinct contempt, there would

be no limit to the number of contempts for which Riela

could have been held. The District Attorney could just ds

well have asked 60 questions about Apalachin—for in-

stance, whether Riela knew each of the 60 individuals re-

puted to have been present—as 17, and, if each could be-

come the predicate of a distinct contempt, the limit of pun-

ishment would then depend only on ‘the extent of the

Distriet Attorney's ingenuity and whim. the Supreme

Court said in the somewhat similar case of Yates v. United

States (355 U. S. 66, 73, 78 S. Ct. 128, 233, supra), ‘the

prosecution cannot multiply contempts by vepeated ques-

tioning on the same subjett of i inquiry within ree a recal-

citrant witness already has refused answers.’

[5,6] Riela, under existing law, may well have been un-

der the necessity, once he asserted the privilege, of repeat-

ing the claim as to each and every question asked him, lest

an answer to any one be deemed to effect a complet@yaiver

of the privilege. See e.g., People v. Cassidy, 213 N. Y. 388

394, 107 N. #. 713, 715; Rogers v. United States, 340 U.S.

367, 372-374, 71 S. Ct. 438, 95 L. Ed. 344; Brown v. Walker,

161 U. S. 591,597, 16 S. Ct. 644, 40 L. Ed. 819; 8 Wigmore,

Evidence [3d ed., 1940], pp. 438-439. This being so—to par-

aphrase what was said in the Costello case (198 F. 2d 200,

204, supra)—the contempt was total when the defendant

Appendix **: ’’_Opinion of the Court of Appeals

made it clear that he would not answer questions about

Apalachin on the gygnnd of self-incrimination and his re-

peated refusals may not properly be considered as any-

thing more than &xpressions of his intention to adhere to

his initial assertion of the privilege; and, surely, they were

not separately punishable. The contempt here te be pun-

ished is Riela’s misguided refusal to give any testimony

about Apalachin, and not his*reiteration of that refusal in

response to the many questions which the Dietriet: Atter-

ney elected to put to him,

People v. Saperstein (2 N _ Y. 2d 210, 159 N.Y. S 2d

160, 162, certiorari denied 335 U.S. 946, 77 S. Ct. =, IL.

Ed. 2d 856), upon which the People strongly rely, does not

support their contrary position; the situation with which

we there dealt was essentially different from the one now

before us. Saperstein was adjudged guilty of five crimes

of contempt because of his evasiveness or, more speetfic-

ally, his refusa! **to state definitely’’ who were the par-~

ticipants in five separate telephone conversations which

had been wire tapped. Each of the contempts was baged

not upon a refusal grounded on any claim of privilege,

‘but, among other things, on his patently evasive testimony

that he did not know, and could not tell, whether he hin.

self had participated in those telephone conversations.

These refusals came at different points during the course

of testimony whiche was otherwise freely given, and each

refusal was unrelated to every other one. Under such

cireumstances, there could be no assurance, after the wit-+\

ness had refused to answer. the question with respect fo the

first phone call, that he would likewise .refuse to answer.

the later questions about the other conversations. It was

not possible in Saperstean, as it was here, to predict or

®. 6a

A ppendia *‘.A’’—Opinion of the Court of Appeals

‘joresee the pattern of refusal which necessarily attends

the assertion of a claim of privilege. :

In short, what distinguishes this ease from People v, _

Saperstein | is that here we have a claim of privilege which |

‘carved out an area of refusal’’. Yates v. United States,

355 U.S. 66, 73, 78 S. Ct. 128, 133, supra. In the present

case, the District Attorney necessarily knew, ahead of

me, that the claim of privilege once asserted would be

reppated, while in Saperstein the prosecutor had to con-

tinue questioning to find the limits of the defendant's re-

fusal to answer. In Saperstein, in other words, the [¥s-

trict. Attocney was engaged in bona fide interrogation, in

the sense that he could reasonably have supposed that thé

witness would answer each of the questions asked, while

here the District Attorney repeated 17 questions knowing

full well from Riela’s response to his first query that he

would not answer any of them.

The defendant committed but a ‘single contempt with, re-

lation to one subject; his convietion of 17 separate erimes

was, therefore, impermissible and the sentences imposed

may not stand, .

The judgment should be reversed and the case remitted

to the County Court of Tioga County for fesentence.

‘Desmoxp CG. de ,und Dye. Froesse., Van Voornees,

Berke and Fosrer, “yl. concur.

Judgment reversed, ete.

APPENDIX “B”

Order of the Court of Appeals Denying Motion

fer Reargument

STATE OF NEW YORE, £

Ix Covet or Aprras

At a Court of Appeals for the State of

New York, held at Court of Appeals

Hall in the City of Albany on the .

Eighth day of July A. D. 1960.

Present:

‘Hox. Cuasies S. Desmonp,

* S Chief Judge, presiding.

\ ‘

hy: Mo. No. 414

The People &c., ;

Respondent,

ve.

“Anthony P. Riela,

| Appellant.

_ A motion for a reargument of the above cause having

loen heretofore made upon the part of the appellant herein

and papers having been duly submitted thereon and due

“deliberation thereupon had : 1 > °

® Orperep, that the said motion be and the.same hereby is.

denied.

(Seau)

" Geanow Krupane

Deputy Clerk

STATE OF NEW. YORK,

* ¢

8a \

ra .

APPENDIX “C”

’ Order of the Court of Appeals Amending Remittitur —

Ix Court or APPEALS

-At a Court of Appeals for the State of

New York, held: at Court of Appeals

‘Hall in the City’ of Albany on* the

Eighth day ef July A. D. 1960. ’

Present: , -

Hon. Cuarzes §. Desmonp, oe

mn sats 2 ; Chief Judge, presiding.

Mo. No. 414

e .

The People &c., :

so ‘ Respondent,

vB. ry a

Anthony P. Riela, ©

Appellan..

’

«-

° -*

A motion tg amend the remittitur in the above cause hav

ing heen heretofore made upon the part of the woo |

herein and papers having been sibmitted thereon and due

deliberation having been thereupon had: 5. oer

OrpereED, that the said thotion be and the same hereby is

granted. Return of the remittitur requested and, when re-

turned, it will be amended by adding thereto the following #

° : ’

Appendix ‘‘C’’__Order of the Court of Appeals

. f Amending Remittitur '

Upon~the appeal herein there were presented and’

- necessarily passed upon questions under the Consti-

tution of the United States as follows: The defen-

_ dant contended that the application in Kis .case of

* °° $9447 of the Penal Law and §618-a of the Code of

- .* (Criminal Procedure violated his rights under the

Fourteenth Amendment of the Federa} Constitution.

The Court of Appeals held that the defendant’s

rights under the Fourteenth Amendment were not

violated. (See People v. Riela, 7 N. ¥. 2d 571.) ‘

Awp the County Court of Tioga County is hereby re-

quested to direct its Clerk to return said remittitur to this

Court for amendment accordingly. °

‘ (Sear) |

: | Gearon KIMBALL

y Deputy Clerk

’ a) . i J

——_*

4 Y

19a oa

APPENDIX “D”

Opinion of the Appellate Division, Third Department

- (9 A. D. 2d 481, 195 N.Y. 5. 2d 558) !

°° SUPREME COURT: |

APPELLATE emer DEPARTMENT

‘ =>;

- « JTue Prorte or THE State or New York,

ee Respondent,

- —against—

ra) : :

Awtuony Feter Rie, oS

c Vener Defendant-Appeliant.

a SR =

~ 14406)

Argued September/Term, 1959

Decided November , 1959. —

Before: 4

Rts oe Hon. Francis Bercan,

Justice Presiding, _

. How. Wamu H. Coon, e-

Hon. James Grsson,.

How. J. Cuarnence Heruiny, .

Hon. Waurer B. ReyNowps,

: Associate Justices.

‘ Appeal from a judgment of conviction rendered by the

County Court of Tioga Coun y (Clohessy, J.), of the crime .

lla

Appendia ‘‘D2’—Opinion of the Appellate, Division,

- Third Department

of criminal contempt for violation of section 600, su Savi-

sion 6, of the Penal Law. - *

Lovts Mansporr, Attorney for Defendant-Appellant,

320 Broadway, New York 7, New York.

Grorcz Botpman, District Attotney of Tiogg Coun-

' ty, Attorney for Respondent, 24-29 Lake Street, Owego,

= New Toe

- Oprsion FoR A'FFIRMANCE

Coon, J.: a

‘ The defendant Riela was one of sixty-two or more men

who gathered at the home of Joseph Barbara, Se., at Apala-

chin, Tioga County, N. ¥., on Nowember 14, 1957, at what

is now commonly known as the ‘‘AfMlachin meeting’’..

Thereafter a duly immpanneled Grand Jury of Tioga County‘

—— initiated an investigation-to determjne whether or not any

Ppp tev ose committed or planned at the meet-

‘ing, and particularly whether the crimes of conspiracy,

bribery of-public officials or violation of section 340 of the

Saat ee Taw, had been committed in Tioga Coun-

. Since Riela lived in New Jersey g certificate was issued,

na is to section 8-8 of thé Code of Criminal Evese-

dure, stating that Ri¢la was-a ‘‘material and necessary’

‘witness in the investigation; a hearing was held thereon

in the Superior Court°of New Jersey, Essex Cqunty, and

a subpoena-order issued directing Riela’s appearance. he-.

fore the Tioga County Grand Jury.

Upon his’ appearance before that Grand Jury seventeen |

questions relevant ta the inquiry were propounded to him,

and he asserted his privilege of self incrimination under’

the Fifth Amendment to each of the questions propounded.

‘ 12a

Appendiz ‘* D’’—Gpinion of the ‘Appe llate Division,

‘= Third Department

Thereupon, at the“request of the District Attorney of Tioga

. County,- the Grand Jury voted to confer and did confer

igmunity, pursuant to section 2447 of the Penal Law. Riela

was fully informed of the meaning and scope of the im-.

munity granted and warned that' failure to answer there-

’ after might result in a cliarge of contempt. He was given

the privilege from. time to time of sonsulting with his

counsel, -Each of the seventeen questions ws again asked,

and in each instanee the privilege against “elf incrimina-

tion was asserted and an answer refused. The foreman

of the Grand Jury thereupon specifically ordered Riela to

auswer each question, one by one, and in each instance he

refused. The Grand Jury thereupon indicted him for crimi-

nal contempt under section 600, subdivision 6, of the Penal

Law. The indictment contained seventeen counts,-each rep-

resenting the refusal to answer one of the seventeen ques-

tions which Riela refuged to answer. A jury trial was

waived; and the trial court found Riela guilt; upon ail

seventeen counts‘and he was sentenced to sixty days in jail

upon each count, the sentences to rum ‘concurrently, and 4

fine of $250 was imposed upon each count.

Among other things appellant conterids that be was given

no opportunity to establish whether or not he was a ma-

terial witness whe could be properly gummaned under the -

provisions of section 618 of the Code of Criminal Proce-

dure. The summoning court certified-that Riela’s testi-

mony was material, together with’ a recite of the facts

upon which the materiality was based, an thus the ma-.

teriality was at least prima facie established, The New

Jersey court was not bound to order the appetrance- of

Riela if it could be shown that his appearance was not

-material to the, investigation, and when he was brought

before the New Jersey court was the time to try out that

“fr

-. 13a

Appendia **D' > Opinion of the Appellate Division,

” Third Department ‘.

qigstion. Moreover, the trial for contempt itself provideyi

a full hearing upon that question, and the requirements of

due process have been met. *

Appellant argues that only the presiding Judge could

order the defendant to answer, and that the violation of

an order by the Grand Jury, or the foreman of the (irand

Jury; to answer, does not constitute criminal coutgmpt.

The grand jury is an arm-of the court, ‘and once it has a

_witness before it is expressly authorized by statute to grant

immunity and-to. make ap order that the witness answer.

The first sentence of section 2447, subdivision 1, of the

Penal Law, reads: ‘‘In any investigation or proceeding

where, by express provision of statute, a competent author-

ity is authorized to confer immunity, if a person refuses

‘to. ansfver a guestion.or produce evidence of any other —

‘kind pn the ground that he may be incriminated thereby,

and; notwithstanding such refusal, an order is made by

suck competent authority that such person answer the ques-

tion or produce the evidence, such person shall*comply with

the order.’? (Emphasis sxpplied.) Subdivision 3 of sec-—

- tion 2447-defines ‘‘competamt atthority”’ to include: ‘‘(¢)

The grand jury before which a person’is eallcd to answer

questions or produce: evidence, when such grand jary is

expressly requested by the prosecuting attorney te order

- such person te give answer or produce evidence ;’’.

The only purpose of taking a witness who agserts self

incrimination before the judge is for & determination of

the question of whether the claim of privilege is justified

. or not. [Where the grand jury. is expressly authorized to

confer immunity and. immunity as broad as the privilege

is conferred, the immunity replaces the asserted privifege

and there is no necessity fer an appearance before the

judge. } Witnesses (participants in the same. Apalachin

Appendia ““D?’—Opinion of*the Appellate Division,

Pa Third Department

meting) have been properly held in contempt for refusal

to answer upon the order of the Commission of Investiga-

tion of the State of New York under section 2447 of the

Penal Law without any court direction to answer. (Matter

of Comm. of Investigation of State of N. Y. v. Lombardozzi,

7 A. D. 2d 48, affd. 5 N. Y. 2d 1026, cert. denied — U. 8S. —

(Oct. 1959]). Appellant cites, People v. Breslin (306 N. Y.

294) Matter of Knapp v. Sellweitecr (2 N. Y. 2d 913), and

Matter of Spector v. Allen (281 N. Y. 251). In the Breslin —

" case; while the court observed in passing that the witness

liad been directed to answer by the court, that question

\as not an issue in the case, and section 2447 ofthe Penal

Law was not in that case at all In.the Knapp ‘case, while

‘he court issued the.direction, whether such was a neces-

sity or not, was not an issue. In the Spector cqse it was

simply held that a grand jury foreman had no authority

to issue a ‘‘mandate’’ within the meaning of section 750 of

the Judiciary Law. This decision would seem to have no

application to ¥ Violauion of section 600 of the Penal Law,

and especially in view of section 2447 of that law. .The case _

of Brown v. United States ‘(369 U. S. 41)-uses language

from which appéllant gains some comfort, but it involved

a Egderal statute and is by no means controlling in New

York Staté in a-prosecution under section 600 of the Penal

Law and where the procedure authorized by section 2447

of the Penal Law was meticulously followed.

Appellant further argues that the immunity granted

under section 2447 was not adequate protection in all juris-

dictions, including Federal courts, and ‘especially in view

of the co-operation between Tioga County authorities and

other governmental agencies. The fact remains that the

immunity granted was as broad as the State of New York

‘may grant and protects-the defendant from any prosecw

“ 2. :

~~ m

”

QGeestes, Wii, boot, Loe ee

lda

Appendia ** D’’—- Dpinion-of the Appellaté Division,

~~ atrd Department

+ 5 Z 4

tion by any agency of the State of New York, and was co-

extensive with his privilege against self inerimination in

New York, and it is well settled that the privilege against

self incrimination does not give a witness the right, under

such circumstances, to withhold information from New

York authorities on the ground that such information might

incriminate him elsewhere. (Matter of Comm. of Investi-

gation of State of N. Y.v. Lombardozzi, 7-A. D. 2d 48, affd.

5 N. Y. 2d 1026, cert. denied — U.S, —- -g¢ Oct, 1959]; Matter

of Knapp v. Schweheer, 2.N. Y. 2d 913, affd. 357 U. S..371;

Dunham y. Ottinger, 243 N. Y. 423.) .

Appellant further asserts that the Grand Jury was with-

gut power to act because there was no-spee ie crime

“eharged or established at the: Apalachin megting.® While

‘section 254 of the Code of Criminal Procedure empowers |

a grand fury ‘“to inquire into all crimes committed or tri-

~ able in the county * * *.2’ it is well established by the

weight. of authority that a*grand jury has broad powers of

investigation, including the power to investigate whether

a crime within its jurisdiction has been committed er not.

(Blair v. United States, 250 U. 8S. 273; Hendricks v. United

States, 223 U. 8. 178; Hale v. Henkel, 201 U. S. 43; People

. Stern? 3 N. Y. 2d 658.)

gees further urges that, if a criminal contempt

were committed at all, but one contempt, not seventeen,

"Was committed, A défficult problem is always presented

when multiple questions are asked of the same witness, in

determining whether a single contem## or multiple con- -

termupts result from refusal to answer. The answer to the

‘roblem must depend upon the particular facts and cireum-

‘ances of each case. It is unnecessary to set -forth the

seventeen questions in full here. Suffice to say that fifteen

‘! them related in some manner to the Apalachin meeting

16a

Appendix ‘* D’’-—Opinion of the Appellate Division,

Third Department

and two of them related to offers of bribes; the questions *

were by no means the same quesajon rephrased; no two of

them could have been answered by a single answer, and

hey were obviously directed at different and independent

avenues f inquiry. In considering the possibility of con-

spiracy, for instance, it became pertinent for the Grand

Jury to know, not only the witness’ present acquaintance

vith Barbara, but his previoti® meetings and acquaintance

and association with otiers who atterMié@d the meeting and

the circumstances leading to his own attendance. Of course

the questions must relate in some way to,the general sub-

ject of investigation in order to be relevant at all. But

each question sought to establish a separate and indepen-

dent relevant facts which would mot be established by an |

answer to any other question. finder the broad power of

inquiry and investigation vested in a grand jury the ques-

tions were pertinent, were separate and independent of

edch other, and the refusal to answer each.was a separate

‘contempt. (People v. Saperstein, 2 N. ¥. 2d 210.) The case

‘of Yates v. United States (355 U. 8. 66) déalt with con-

tempt under a federal statute and is not binding upon the,

_ courts of New York State in a case involving the New York

State Penal Law, Moreover, in the Yates case the witness

made it expressly clear that she would refuse to answer

any questions within a‘particular avenue of inquiry, while

in the instant case the witness simply refused to answer

each question as it was asked.

We find no error in the admission or rejection of evi-

dence at -the trial. Appellant has had 4 full and fair trial

and the evidence is ample to establish beyond’ a reasonable

doubt his willful, contumacious and unlawful refusal to

answer legal and proper questions.

The judgment should be affirmed. ai

17a

APPENDIX “E”

Opinion of County Court, Tioga County, New York

(14 Misc. 2d 213, 178 N. Y. S. 2d 873)

STATE OF NEW YORK

COUNTY COURT ..

County or Tioca

, —

Tue Prope or THE STATE or New York

P —against— ..

; Antuony Perer Ries,

\ ‘Defendan t.

—

Georce Botpman, District, Attorney, and

(art Vercari, for People.

Lovis Mansporg, for defendant. 3

This case was tried without,a jury. The defendant is

* charged with criminal contempt. ip violation of Section 600,

: subdivision 6, of the Penal Law under an indictment con-

taining seventeen counts. |

The Grand Jury was engaged in an investigation to

determine whether the crimes of conspiracy, bribery of

public officials and violation of Section 340 of the General

Business.Law had been committed in Tioga County.

In the course of such invéstigation the Grand Jory was

making inquiry into a meeting of sixty-two or more persons

near Apalachin,.in the County of Tioga, on November 14,

18a

Appendia “E"—Opinfn of County Court, Tioga Co., N. ¥.

1957. This gathering has been generally designated as the

Apalachin meeting. ‘ ;

Defendant is a resident of the State of New Jersey. He

was believed to have been in attendan® at such meeting

and was summoned to appear before the Grand Jury.

After being sworn as a witness, he was asked seventeen

- questions which he refused to answer, asserting his privi-

lege against self-incrimination.

The Grand J ary then voted for and granted to the wit-

ness immunity under Section 2447 of the Penal Law. The

seventeen questions were again asked him and he again re-

fused to answer under claim of privilege. As a resujt the

Grand: Jury found and reported the indictment. Each

count eovers one question.

In an investigation of the kind involved in this case there

apply certain basie aad fundamental principles and rules

to which reference may be advisable at this’ point.

With every right and privilege there are a correspond.

ing duty and obligation. The right and privilege of citizen-

ship in this nation, either by birth or adoption,arries with

them the duty and obligation on the part-of the individual

to’ speak out the truth when the people and th. state

through their representative request same. |

‘‘For more than three centuries’’ says Wigmore, Evi-

‘lence, Vol. 8, Pages 64-66, Yit has now been recognized as

a fundamental maxim that the public . . . has a right to

_ every man’s evidence . . . he who will live by society must

let society live by him, when it requires to. . . . From the

poiut of yiew of society’s right to our testimony, it is to be

remembered that the demand comes, not from arly one per-

son or set of persons, but from the community as a whole, —

from justice as an institution, and ¢rom law and order as

indispensable elements of civilized life.*

19a

Appendix *‘ E’’-—Opwmion of County Court, Tioga Co., N. ¥.

Fellman in ‘*The defendant's rights’’ at pages 167 and

168 states as follows: ** Theeemphasis in our time upon the

right of an individual to refuse to “iIVGMestimony which

will convict bim of crime has tendet (DBhyscure the fact

that this right to remain silent is altogether limited and

exceptional. For the general rule is that one has a duty

to testify, and to testify truthfully, . . . about matters in

Awhich grand juries . . . have legitimate interests.”’ :

‘The .téstimony of people who have knowledge of the

facts is essential if many of the processes of government

are to function at all. . . . (‘learly there is a duty to speak,

for contrary to a wide-spread impression, there is no abso

lute right to silence.’’

Such duty and obligation are necessary to the adminis-

' tration of justice according to the forms and modes estab-

‘ished in our system of government. This duty and obiliga-

‘tion must be performed if such system is to survive and be

maintained. |

There is only a limited privilege of refusing to testify.

This privilege is known as that against self incrimination.

‘‘Priviiege’’ signifies the non-compellability to speak about

the offense. The New York State Constitution, art. 1, see.

6, provides: ‘No person shall be . . . compelled in any

criminal case to be a witness against himself. . .”’.

In connection with such privilege a statement of appli-

cable principles of natura! law may be of value. The right

of the individual must yield to the good of the community, *

The right of self protection is not as important as the pro- -

tection of eivilized society and the right of immunit¥

against self incriminating testimony decreases as the clear

and present danger to the state and community increases.

Though the right to invdke the privilege *s guaranteed by

civil law the right disappears in the face of the threat of

vt 20a

Appendix‘ E ie of County Court, Tioga Co., N.Y.

danger to the state and people. Loss of the privilege and

constitutional protection may be consistent with the fore-

going principles andlaw.

At this point it appears proper to localize the considera-

tion. Under the peeuliar and perilous conditions incidental

to an investigation by a grand jury in which there is ne

specified charge or named defendant, a witness need be

aicert and on his guard at all times.

When a witness appears before the grand jury he is

alone. He does not have the association, advice and pro-.

tection of legal counsel. He must stand on his own.

He is subject to inquiry by the prosecuting officer and

twenty-three laymen. There is no jud sitting with the

grand jury to rule upon the saeaaden te

teriality of questions. Rs

To make answer to a singie question may be the open-

ing of the door by the witness that would tend to waive

his privilege against self ineriminatiomn and compel him to

answer all questions concerning the ‘subject matter involved.

In order to avoid ch danger the witness must exercise

his privilege against self incrimination and resort te

silenee.. To overcome this danger, the legislature has pro-

vided immunity for the witness through Section 2447 of

the Penal Law. ,

This section provides that ‘‘ . . . if a person refuses to /

answer-a question . . . on the ground that he may be in

criminated thereby, and, notwithstanding such refusal, a

order is made by such competent authority that such =

son answer the question . . . such person shall complt

with the order , . . then immunity shall be conferred upon

om . »'.”

Two propositions seem to be set forth in such a

1. any immunity which is granted is completed. 2. None

can be acquired unless the witness claims his ian

bompetency or ma-

Zla

Appendix ‘‘ E’’—Opinion of County Court, Tioga Co., N. ¥.

Immunity means exemption or release from. Immunity

signifies the non-liability for the offense itself. By immu-

nity any possibility of guilt ceases. By and through im-

munity the danger of prosecution no longer exists. With

complete immunity there can be no self-incrimination. Im-

munity replaces privilege. |

To summarize, since the only consequence which the priv-

ilege against self-incrimination avoids is’a crirfinal prose-

cution, if a competent authority, such as the grand jury,

promises in advance not to prosecute, as in the granting

of immunity, then one has no right to remain silent and

must fulfill the duty and Sbligation of speaking the truth.

The simplest form of obstructing justice is to refuse to

answer a legal and proper question by a competent author-

ity.

Now to consider the proof. In evaluating the evidene» E

am taking in chronological order the elements which con

stitute the crime charged. e

(1) There is the presumption of regularity. In addition

there.are many documents and the testimony of the County —

Clerk and Foreman proving the formation and orgayiza-

tion of the grand jury from its inception in the order of the

court fixing the term of court arid down through the re-

/ Tred stups to the session behind closed doors at which

the indictment was found. Likewise there is a stipulation

covering such matter and signed by the defendant, his

counsel and the district attorney. From such evidence and

as a matter of law I find that the grand jury was legally

and duly constituted; organized and in sessien at and prior

to the time of the finding of the indictment.

(2) The minutes of the grand jury and the stipulatior

of the parties establish that more than sixteen graad jurors

‘22a

_—

Appendiz ‘‘E’’—Opinion of County Court, Tioga Co.,N’Y.

were present and in attendance throughout and on Febra-

ary 25, 1958. From such proof amd as a matter of law I

find that more than a quorum of the grand jury was pres-

‘ent duting the consideration of this case and the finding

of the indictment on February 25, 1958. .

(3) The minutes of the grand jury for February 25,

1958, read in part as follows: ‘‘ Anthony Peter Riela, being

first duly sworn as.a Witness before this Grand Jury, tes-

tified as follows’’. This same fact appears in the stipula-

tion by the parties. The Foreman testified that he adminis-

tered the oath to the witness. From such proof and as a

matter of law, I find that the defendant was properly

sworn as a witness at his appearance before the Grand .

Jury on February 25, 1958.

(4) The miifute: f the grand jury establish that at the

session of that bouy on February 25, 1958, the defendar.

was clearly informed by the District: Attorney in these

words ‘‘You will receive immunity from prosecution for,

any crime that may be revealéd by your testimony.’’

Likewise This discourse in the presence and hearing of

defendant: Mr. Boldman: ‘*‘ Mr. Foreman, . . . I ask if

yon have voted upon my request for immunity’’. Foreman, -

Grand Jury : ‘‘ We have, Sir, and we voted to grant the im-

munity.”’ Mr. Boldman: ‘‘ And you have granted imnfunity

.o this witness, Anthony Peter Rielat’’ Foreman, Grand

Jury, ‘“‘Yes’’. Mr. Boldman: ‘‘Now, Mr. Riela, ‘you have

immunity from prosecution for any crime that may be

revealed by your testimony... . - ” Mr. Riela: ‘‘Yes”’.

This is clear and sufficient proof of the granting of gamu-

nity and the knowledge of same by the witness.

It is the defendant’s contention that his refusal to an-

swer the questions was not without reasonable cause, be-

23a

Appendix ‘‘ E’’—Opinion of County Court, Tioga Co., N.Y.

cause the immunity granted protected him oly against

prosecution in the State courts, but Mot against possible

- prosecution in the Federal and state courts other than

New York. This contention has no basis in law.

The rule is well-established that a witness cannot refuse

to testify because the immunity afforded does not extend

to possible prosecutions in other jurisdictions. All that a

State is required to do, or can do, is to give protection .

against the use of the witness’ testimonydn its own courts.

If the law does taat, as the statute here purports to do, that

is sufficient to satisfy the constitutional requirements

against self-incrimination. (Matter of Herlands (Carchi-

etta), 204 Mise. 373). ici

The statute does not purport to give and could not give

protection against a prosecution by Federal authorities.

It dobs give ample protection against the use of such tes- '

timony in our own tribunals and it is perfectly well estab-

lished that this is a sufficient immunity; that all the state

is required to or can do is to give immunity against its own

processes and, if it has done thag, as this statute does,

it has satisfied the requirements of the constitution. (Dun-

ham v. Ottinger, 243 N. Y. 423; Hale v. Henkel, 201 U. S.

43; Brown v. Walker, 161 U. S. 591).

The sufficiency of the exemption afforded by a State im-

munity ‘statute depends on whether the -statute extends

complete protection to a party against prosecution in the

State courts and the use of compelled gestimony. therein.

If it does, then the privilege of refusing to testify on the

ground of self incrimination no longer exists and the re-

fusal to answer questions is without reasonable cause.

Were the defendant’s position here sustained, the People

yould be rendered powerless to conduct proper investiga-

‘tions and prosécutions in those areas of possible criminal

ofa

Appendix ‘« E’’—Opinion of County Court, Tioga Co., N.Y.

activity, ‘where. virtually all important evidence rests in

tainted hands. The resultant hafm to orderly criminal law

enforcement would be incalculable. The purpose of im-

munity statutes is: to obtain evidence from sources which

otherwise would be barricaded behind fhe privilege against

self-incrimination: (People v. Spiak, 11 Mise. 2d, 1043).

ize, the rule is that when the danger of prose-

cution has ‘been effretively removed, the reason for the

privilege against self incrimination no lo exists and,

consequently, the. privilege cannot p be asserted.

Thus, where prosecution is barred by reason of a grant of

| immunity, the witness may be compelled to answer. In

\ _other words, when immunity js granted the State becomes

entitled to the testimony. Refusal means punishnent.

\ . In ghis proceeding, ‘immunity had been grauted ‘to and

conferred upon the witness by the grand jury. Such imimun-

> ity by its mere granting is and was complete and absolute

as to defendant, and binding in all parts of and upon all

agencies of the State (Greenleaf, 176 Misc. 566). ;

This immunity was the maximum which could be granted

by New York State and therefore the requirement of the

Federal and State constitutions has been satisfied. (Matter

of Peo. v. Knapp, 4 Mise. 2nd 449).

Defendant also contends. that no immunity was granted

by reason of the fact that the minutes of the Grand Jury

were made available to the State Commissioner of Inves.

tigations. This exchange and coopttation between branche:

of the state government in no way impairs the complete im

munity granted to tue defendant. ‘Snch contention is with

out merit. ; .

From such proof and as a matter of law I find that im

munity was voted for and granted by the Grand Jury to th

~=* defendant withiri the meaning and coverage of Section 244

ri ae of the Penal Law. >

’ . 7 = . ~

25a .

Appendix “EB” —Opinion of County Court, Tioga Co.,N.Y. °

(5) The foreman testified as\to th the purpose and objective

of the investigation that was being conducted by the grand

jury, and particularly Sia sceking the purpose of the Apala-_

chin meeting, who were there, what was done, if any law

had been violated or crime committed, and why sixty-two

or more men, some with ¢riminal recor@sgggere present.

The minutes of the grand jury for Februa , 1958, con-

tain a lengthy statement by the District Attorney to the

witness concerning the purpose and scope of the investiga-

tion, and parti¢ularly as to any commission of the crimes

of conspiracy, bribery of public officials and other crimes

in the County of Tioga, and as to the fact that the witness

was in attendance at the Apalachin meeting with sixty-one

‘other men. All of the questions asked coneerned persons

present. at such Appalachin meeting and possible activities

of the witness in connection therewith. The presumpti mm

is that the-grand jury conducted and carried of an inquiry

in good faith.

From such proof it appears that eal and proper inter-

rogatories were propounded to the defendant, ‘and that such

interrogatories were material, relevantyand pertinent to the

issue and to the investigation then being conducted by the

grand jury and I so find and hold as‘a matter of law.

(6) Tite minutes of the Grand Jury of February 25, 1958,

establish that the witness, after being granted and informed

concerning immunity, refused to ans wi the seventeen ques-

tions set forth in the indictment; anit that the witness had

been informed as to the nature and purpose of the investi-

gation and as to thé inquiry into the Apalachin meeting.

The witness had breaks in time during his appearance ‘on

the stand, providing the benefit of consultation with and

advice by his counsel prior’ to his refusal to answer such

questions. ;

MR Aare ano

Appendiz ** E’’—-Opinion of County Court, Tioga Co., N.Y. ~

in other words, the witngss had every opportunity, time e |

and soaree from which to Sain full knowledge of the law, co

his position and his duty and liability. |

This item appears in the Grand Jury m’nutes: ‘T°l) ask

‘to corisult my*lawyer.’’ ‘*Yes—would you like

a short Adjournment? It will be noted on the record that

i sult with his attor- .

ney for a short time.’? Such conduct revealed that he was *

fully cognizant of what was going on.

* I find as a matter of fact that by such conversation, con-

duet and action of the defendant there was established a

wilful, contumacious and unlawful refusal on his part to

answer the questions propounded by and fér the Grand

Jury.

(7) Assuming, but vot conceding, that the points of the

defendant are well taken, there is nothing in the Ase that

tends to overcome the presumption that Th indictment 1:

based upon legal and sufficient evidence. T’:at presumption

continues until there is satisfactory proof to the contrary.

(People v. Nitzberg, 289 N. Y. 523; People v. Howell, 3

A. D. 2d. 153). “In this case there appears 1.0 such proof.

Defendant in his defense has advanced many points. i

Among other thingsthe contends that the grand jury was P

without jurisdiction and power to conduct the investigation

in the absence of a complaint or of evidence that a crime

. had been committed. ,

In support of such point he has cited the case of Matter

of Morse, 42 Mise. 664. This is a decision by Genera! Ses-

sions, New York County, in 1904: The court held that a

grand jury must be shown by complaint or knowledge ac-

quired that there is reason to believe a crime was com-

mitted by particular persons, and way not institute any

\ “

=F ~ -

“ Zia -

Appendia ‘‘ E’’—Opwmion of County Court, Tioga Co., N, Y.

“inquiry on chance or speculation. Since about 1906 no men-

tion seems %-hhave been made of this ease in New York

opinions. +>

There do appear extensive references to the case of Blair

v. United States, 250 U. S. 273; Hendricks v. United States,

223 U.S. 178, and Hale v. Henkel, 201 U. S. 43. In the Blair

. ease the defendant questioned the authority and jurisdic-

tion of a grand jury in an effort to set aside a conviction

for contempt. ?

In affirming the conviction the Court said, ‘‘It is a grand. *

inquest, a body with powers of investigation and inquisi-

tion, the scope of whose inquiries is not to be liynited nar-

rowly by questions of propriety or forecasts of the probable

results of the investigation, or by doubts whether any par-

ticular individual will be found properly subject to an ac-

causation of crime . . . At least, the court and grand jury

have authority and jurisdiction to investigate the facts in

order to determine the question whether the facts show a

case within their jurisdiction.’’

In the Hale decision the court nut forth the rule that

“*the examination of witnesses need not be preceded by a

presentment or indictment formally drawn up, but ~~

grand jury may proceed, either upon cheir own knowdge

or upon the examination of witnesses, to inquire for them-

selves whether a crime cognizable by the court had been

committed ”’. ~ °

Before the defendant was called as a witness before the

grand jury in the instant case, evidence was presented,

according to the testimony of the foreman, to the Grand

Jury that sixty-two men, including defendant, and some

with criminal records, were in attendance at the Apalachin

meeting. Certainiy such evidence gave the Grand Jury

Appendia *' E’’- —Opinion of County Court, Tioga Co., N.Y.

reasonable cawse to believe hat a crime may have been

committed in connection with that meeting. ;

The Blair and Hale decisions above quoted appear to be

the present-day law and are adopted by this court in de-

termining that the point is without merit.

In this case the defendant was not given any direction by

the Court and he did not appear at any time before the

court prior to the reporting of the indictment.

The defense strongly stresses the contention that this

failure to provide a direction by the court for the witness

deprived the Grand Jury of the jurisdiction and right to

find and report the indictment.

Although no decision in point has been found, stiil isin

seems to be an authority in the case of People v. Saperstein,

2 N. Y. 2nd’ 209, in which no direction by the Court had been

provided to the accused person before indictment and in

which the court charged that the Jury as follows:

‘‘The law also says that a Grand Jury at times shall con-

duct inquiries end investigations to determine whether or

not a crime has been committed, before it is possible to

formulate a specific charge, or 0 an indictment, against

any particular person or persons”’

The fact appears in the naned that the witness was

clearly and thoroughiy informed, in ‘the presence, hearing

and on behalf of the Grand Jury and prior to the asking éf

the questions and the finding of the indictment, as to the

reason for and purpose of the investigation, the granting

of immunity by that body and the effect thereof, and his

' resutting-position. Likewise he was given the time and

ccna to consult with his attorney. The Foreman

said to him: ‘‘Mr. Witness, on behalf of this Grand Jury,

I order and direct you to answer that question.’’ Did not

Ee eee

————— eee

OOO SS ee

We ER, OP ee RE are

ee eee

29a

Appendix ‘‘E'’—Opinion ef Caunty Court, Tioga Co.,N.¥. °~

;

those things satisfy the purpose of a direction? What n more

could a direction by the court have accomplished ?

Section 600 of the Penal Law and Section 750 of the.

Judiciary Law provide for the violation, prosecution and

punishment, and Section 602 of the Penal Law provides

for the finding of the indictment. These sections are silept

as to a direction by the court, particularly under the facts

of the instant case.

The grand jury is‘a part of the court. A contempt of the

grand jury is a contempt of the eoart. A grand jury may

indict for an indictable violation &ommitted in its presence

and official session. The authority of the grand jury to in

diet without a direction by the court te the witness is in—

herent in that body. I so find.

Any question as to whether a proceeding should have

been conducted to determine if the person was a material

witness within the coverage of Section 618-a of the Code

of Criminal Procedure is collateral and not relevant to the

issue in this case. The record tends to show that the wit-

Whether his refusal to answer the seventeen questions

set forth im the indictment constitutes one crime or seven-

teen different violations is a necessary part of this de-

cision. In the case of People v. Kasherman, 177 Mise. 200,

the holding i is that each succeeding refusal to answer is a

new conterapt. In the Matter of Amato, 204 Misc. 454, it is

said. that a separate and distinct act of contumacious and

wilful refusal tc answer legal and proper int: rrogatories

ls a separate and distinct act of criminal contempt.

In this case each of the seventeen questions is separaie,

distinct and independent:~Fer-such_reason I find that the

refusal of the defendant to answer each of the seventeen

questions constitutes and is a vy vlation under each of the

aie

30a _*

Appendix ‘‘ E’’—Opinion of County Court, Tioga Co., N.Y.

seventeen counts of the indictment, that is, in the aggregate

seventeen violations. : g

To sift through and set apart the less-essentials and —

non-essentials is to unfold and reveal the essential elements

necessary to constitute a case and violation within the pur-

. view of Section. 600, subdivision 6 of the Penal Law.

I, therefore, rule that there were facts and circumstances

proved sufficient to establish beyond a reasonable doubt

that the defendant committed the acts as charged and set

forth in the indictment.

I conclude and find that the anit have sustained the

burden ef proof and have established beyond a reasonable

doubt that the defendant is guilty of the crime of criminal

contempt in violation of Section 600, subdivision,6, of the

Penal Law, undef each of the seventeen counts of the, in-

dictment, and as such is guilty of a separate violation under

each count. .

Findings of fact and conclusions of law heretofore

reached in this opinion are implicit ‘in my verdict as the

judge of the facts and the law. |

’ | find the defendant ony as charged.

Dated October 15, "1958 *

Francis J. CLomessy

County Judge of Tioga County

be. is.80 .

31a o

APPENDIX “F”

Judgment of Conviction

At an adjourned term of the County Court

-held in and for the County of Tioga

at the Court House in the Village of

Owego, N. Y., on the 12th day of

July, 1960.

. ”

Present: e

Hon. Francis J. CLonessy,

——>

. TurgPeopie or tHe Strate or New York

—against—

Antuony Perer Rizia

’ =

- e - or,

The defendant, Anthony Peter Riela, having been in-

‘ dicted by a Grand Jury sitting iti connection with the

County Court held in and for the County of Tioga on the

25th day of February, 1958, which indictment sets forth

‘seventeen counts, each of which charges the Crime of

_criminal Contempt in Violation of Section 600, Subdivision

6, of the Penal Law of the State of New York, committed

- on the 25th day of February, 1958,

And the defendant, Anthony Peter Riela, having ap-

‘ Counsel, and having been tried before np pepe Francis J.

Clohessy, Sounty Judge of Tioga County at a trial without

County Judge of Tioga County.

‘peared in County Court with Louis Mansdorf, Esq., his.

32a

Appendic “F’’Judgment of Conviction

a jury beginning on September 30, 1958 and terminating.

on October 3, 1958; , ;

‘And the Hon. Francis J. Clohessy, County Judge of Tioga

County having filed hi Decision on the 15th day of October,

1958, finding ihe defendant, Anthony Peter Riela, guilty

under and as charted in each of the seventeen counts of the

indictment; - '

And the defendant, Anthony Peter Riela, having the re.

after appeared in Coynty Court, with Louis Mansdorf, Esq.

his Counsel, on the 24th day of October, 1958, and have g

been sentenced ander the first count of the indictment to

sixty (60) days: imprisonment ia the Tioga County Jail and

to pay a fine of $250.00, and stand committed to wae T) ioga

(‘ounty Jail until the fine be satisfied at the rate of one day

for eyery dollar of the fine unpaid.

And-it having been further Ordered that the defendant,

Anthony Peter Riela, under each of the sivtcen remaining

counts be sentenced to imprisonment in the Tioga County.

vail for sixty 160) days and to pay_a fine of $250.00, and

stand committed to the Tioga County Jail until the fine be

satisfied at the rate of one day for every dollar of the tine

unpaid, it being thentention and Judgment that a-sentence

of sixty (60) days imprisonment and a fine of $250. 00 should.

apply to and cover each count; and it further being Ordered

hry the Court that the respective jail sentences of sixty (60)

days imprisonment under each of the seventeen counts

should run concurrently.

> And the defendant, Anthony Peter Riela, having appeared

in Court on*the 20th day of June, 1 1960, with Tous Mens-

dort, Esq.. his Counsel for re-sentencing pursuant to an

Order of the Courf of Appeals.of the State of New York

filed May 11, 1960 whereby the Judgment pronounced Octo-

ber 28, 1958 was revers>! and the case remitted to County

AT ean

4.) 2

5 Ee ee ey eee 6 oo et, oa ear,

———_——— a eee

33a

Appendix ‘*F’’—Judgment of Conviction

Court for re-sentencing; and the defendant having made

application to the Court for an adjournment of sentence

pending an Appeal to/ the United. States Supreme Court ;

and the sentence havidg been adjourned until July 12, 1960;

And'the defendant, Anthony Peter Riela, hav ing appeared

in County Court on July 12, 1960 with Louis Mansdorf,

Esq., his counsel, and the Court ha: ving set aside and vi@ated

the previous sentence imposed on October 24, 1958, and the

defendant, Anthony Peter Riela having beer asked by the

Clerk if he had any legal cause to show. why judgment should

net now be pronounced against him, and the @defendant hav-

ing answ ered i ir. the negative;

And the defendant having waived the 48 hour waiting

period ;

It is hereby Ordered by the Court that the defendant,

Anthony Peter Riela, be impr'soned in the Tioga County,

Jail for a term of sixty (60) days and pay a fine of $250.00.

La Verxe M. Brister

.\: ‘County Clerk

. a

34a

APPENDIX “G”

\ ;

Notice of Appeal! to the Supreme Court of the United States

IN: THE , re

COUNTY COURT OF THE COUNTY OF TLOGA

> STATE OF NEW YORK )

| County or TioGca sf \ )

Antuony Perer Rrewa,

Appellant,

—Y

Tue PeoPte or THE State or New York,

Appelle.

_ Notice of Appeal to the Supreme Court of the I nited

States:

I. Novice 1s Heresy Given that Axtuoxy Peter Riva,

, the appellant above named, hereby appeals to the Supreme

* Court of the United States from the final order of the

Court Of Appeals of the State of New York date@ and en-

tered herein on the 8th day of July, 1960, denying. a motion

for reargument, and from the order of said Court dated

and entered on the 21st,day of April, 1960, affirming the

judgment of eonviction herein. es

This appeal is taken pursuant to 28 U.S. C. § 1257(2).

Appellant was convicted of the crime of eriminal con-

tempt (a misdemeanor), in violation of New York Penal

of New York, Book 39, Part 1); was sentenced to 60 days

4) O46 ey eg ee te Rage were

35a -

; Appendir ‘‘G"’—Notice of Mppeat to the Supreme Court °

of the United States

confinement in the Tioga County Jail and to pay a fine of

$250.00; and is presently enlarged on bail up to August

15, 1960, in the sum of $10,000.00 pending this appeal, and

application to this Court for a further stay.

_ II. The Clerk will please prepare a transcript of the

_ record in this cause, for transmission to the Clerk of the

Supreme Court of the United States, and. include in said

transcript the following:

(1) Indictment.

(2) Court’s minutes of trial.

(3) Motion. for directed judgment of acquittal.

(4) “Motion to dismiss indictment.

(5) Motion to acquit.

° we

(6) Motior. for arrest of judgment and for a hew trial.

(7) Judgment of conviction dated October 24, 1958.

(8) Court of Appeals, order affiiming coiivict‘yn but

reversing and remanding, dated April 21, 1960.

(9) Court of Appeals, order — motion for re-

argument, dated July 8, 1960.

(10) Judgment of conviction on re- sentence dated Juiy

12, —

Itl.. The following questions are > presented by this ap-

peal:

(1) Was the contempt conviction repugnant to thes our-

trenth Amendment where a New York grand jury confers

Sew ‘York State immunity-on-a New Jersey resident wit-

ness, but the Court fails to direct the non- resident witness

to answe: questions after his refusal ov the ground of self

* 7 36a

Appentlyr ** i’’*_Notice of Appeal to the Supreme Court

| of the United States

% , , :

incrimination and the existing perils of prosegution in his

home state and the Federal gove rnmens! r.

(2) Is the joint application of Penal Law “2447 with

§618a of the Code of Criminal Procedure, to the facts

‘herein, repugnant to, the spirit and interpretation of the

Fourteenth Amendment, and were the witness’ rights and

privileges thereunder violated, where a,New York non-

residene grand jury witness, a target of investigation and

a potential defendant, is lured into New York by applica-

tion of the Reciprocal Witnesses’ Act (§ 618-a C.C. P.) by

designating him as a nmiterial witness, and the immunity

offered te him pursuant te Penal Law § 2447 is not ¢o-

extensive with the perils of prosecution existing. for him in

his home state, other states and the Federal government,

and Tioga County grand jury minutes have, pursuant to

court orders, been forwarded to New York State agencies

‘which are obligated by statute ($§ 7051-7057, MeKinney’s

Unconsolidated Laws) to cooperate ‘with witness’. home

state, other states, and the Federal government, and “ere

is no Court direction that the witness answer grand jury

cuestions despite his pleas of privilege against self-incrimi-_

nation?

Lours Mansporr,:

° Attorney for Anthony Peter Riela,

Appellant.

320 Broadway

. New York 7, N. Y.

« (WOrth 4-4999)

Dated: New York, N. Y.

August 2, 1960.

(Filed with Tioga County Court, August 4, 1960.)

- sia

APPENDIX “H”

St.. tutes iy Involved

, Penal Law § 600. CriuxaL Contempt. A person who

f commits a contempt of court, of aay one'‘of the fol-

lowing kinds is guilty of a misdemeanor:

® « ° s o

§. Contumacious and unlawful refusal to be sworn

as a witness, or, after being.sworn, to answer any ‘

legal and proper interrogatory ; ° * * (MeKinney’s \

Consolidated Laws, Vol. 39, Part 1) L. 1935, e. 299,

§1, eff. April 5, 1935.. ~

| Cope or CrrminaL Procepure. Section 618-a (McKinney's

itca Consolidated Laws, Vol. 66, Part 2)

‘

}

' Seccaine ATTENDANCE OF WITNESSES FROM Wirnin

AND WitHovt THE Start In ('RIMINAL ProceEpINGs.

1. As used in this section the following words shall have

the following meanings unless the context requires other-

wise.

nahin il

‘*Witness’’ shall include a person whose testimony

is desired in any proceeding or investigation by a

grand jury or in a criminal action, prosecution or

| _ proceeding. |

‘*State’’ shall include any territory of the United

States and the District of Columbia.

‘*Subpoena”’ shall include a summons in any state

where a summons is used in lieu of a subpoena.

3. Witness from another state subpoenaed to testify in

} his state. If a person in »ny state, which by its laws has

]

4A ppendix *‘H’’—Statutes Involved Ps

made provisjon'for commanding persons within its borders

to atterd ang testify in criminal prosecutions, or grand

jury inv estigations commenced or about to commence, in

this state, is a material witness in a prosecution pending ,

in a court of record in this state, or in a -grand jury in-

vestigation which has comnenced or is about to comm*ncee,

a judge of such court may issue a certificate under the seal

‘ of the court stating these facts and specifying the number

of days the witness will be required. This certificate shall

he presented to a judge of a court of record in the county

in which the witness is found. p

Ir said certificate recommends ‘that the witnes? be taken

into immediate custody and delivered to an officer of this

state to assure his attendanee in this state, such judge may ;

direct that such witness be forthwith brought before huirh;

and the judge being satisfied of the desirability ‘of such

¢ “ustody and delivery, for which determination said certifi-

cat. shall be prima facie procf, may order that said wit-

ness be forthwith taken into cur’sdv and delivered to an

officer of this state, Which order mall be sufficient authr-

ity to such officer to take such witness into custody and

hold him until he may be released by bail, recognizance, or

order of the judge issuing the certificate. ;

and testify as directed in the subpoena, he shall.be pun-

ished in the manner prov‘ded for the punishment, of any

witness who disobeys a subpoena issued from‘a court of

recordyigthis state. : :

: ° ° . ° . , ;

® Uniformity of interpretation. This section shall be

.o interpreted and construed as to effettuate its general

39a ail

. . Appendix ‘‘H’’—-Statutes Involved

purpose 'to make uniform the law of ihe states which enact

it.* * * L. 1936, ¢. 387, eff; May 1, 1935.

Penal Law § 2447. Witnesses’ Immunrry: 1. In any

investigation or proceeding where, by express provi-

sion of statute, a competent authority is authorized

to confer immunity, if a person refuses to answer a

‘ question .or produce evidence of gny other kind on

the ground that he may be incriminated thereby, and,

notwithstanding such refusal, an order is made by

such competent‘authority that such person answer

the question or pwoduce the evidence, such person.

shall comply with the order. If such person com-

plies with the order, and” if, but for this section, he

would have been privileged to withhold the answer

given $r the evidence produced by hi_2, then immun-

ity shall be conferred upon him’, as provided for

herein.

2. ‘‘Immunity’’ as used iw this section means that

such person shal! not be prosecuted or subjected to

any penalty or forfeiture for or on account of any

transaction, matter or thing concerning which, in

accordance with the order by competent authority,

he gave answer or produced evidence, and that no

such answer given or evidence produced shall be

received against hir> upon any crimingl proceeding.

But he may nevertheless be prosecuted or subjected

to penalty er forfeiture for any perjury or contempt

committed in answering, or failing to answer, or in

producing cr failing to produce evidence, in accord-

ance with the order, and any such answer given or

evidence prodyced shall be admissible against him

upon any criminal proceeding concerning, such per-

jury or contempt.

Fe ies coral 40a

- Q hy Appendix ‘‘H’’—Statites Involved —

3. ‘*Competent authority’’ as used in this section

means: * :

oe e e @ &

(e) “The grand jury before. which a person is called

to answer questions or produce evidence, when such

grand jury is expressly requested by the prosecuting

attorney to order such person .to give answer>or

produce evidence; * °°.”

4. Immunity: shall not be conferred upon any per-

son.except in accordance with the provisions of this

section.

1’. 1935, e. 299, 41, eff. April 5, 1935.

(McKinney ’s Consolidated Laws, Vol. 39, Part 2.)

Uxconsouipatep Laws, McKinney’ ’s Votume 65, Part 2,

Sections 7051-7057 (Stare Comnission OF. NVESTIGATION ).

Section 7052. Functions, _ . AND DuTIES 0F THE

CoMMISSION.

Subd. 5. The commission shal} cooperate with depart-

ments und officers of the United States government in the

_ ‘investigation of violations of the federal laws within this

state. ’

Sebd. 6. The commission shall examine into matters re-

lating to law enforcement extending across the boundaries

of the state into other states; and may consult and exchange

information with officers and agencies of other states with

respect to law enforcement problems of mutual concern to

this and other states. 3

Subd. 7. Whenever it shall appear to the commission

that there is cause for the prosecution for a erime, or for

sf “

Appendix ‘‘H’’--Statutes Involved .

the removal of a public officer for misconduct, the commis-

sion shall refer the evidence of such crime or misconduct

to the officials authorized to conduct the cen or to

remove the public officer.

’

Subd. 9, The commission shall make an annual report

to ‘the governor and legislature which shall include its ree-

ommendatioas. The commission shall make such further

interim reports to the governor, or to the governor and

legislature, as it shall deem advisable, or as shall be re-

quired by the governor.

L. 1958, ¢. 989mg, eff. May 1, 1958. ,

New Jersey Revisep Statutes

' ArticLe 2, Privieces or Witness:

2A :81-4 General Rule:

Except as otherwise provided by statute, a witness

shall not be excused from answering any questions

relevant and material to the issue (L. 1900, ¢. 150,

§§ 5, 8, pp. 363, 364).

2A :81-5 Personal Privilege Generally.

No witness shall be cornpelled to answer any ques-

tion if the answer will expose him to a criminal

prosecution or penalty or to a forfeiture of his estate

(L. 1900, ec. 150, § 8, p. 364).

Generac Bustness Law: ,

(McKénney’s Vol. 19, Consol. Laws)

\§ 352. Investigation by Attorgey General.

5. * * *. Any officer participating in such inquiry and

any person examined as a witness upon such inquiry who

42a

Appendix ‘‘H’’—Statutes Involved

shall disclose to any person other than the attorney-general

the name of-any witness examined or any other informa-

tion obtained upon such inquiry except as directed by the

attorney-general shall be gailty of a misdemeanor. Added

bs he 1, c. 649; atnended L. 1923, é. 600, § 1; L, 1925, ¢. 239,

: L. 1926, e. 617, §1; L. 1927, ¢. 365; L. 1932, ce. 214; °

1935, ec. 271; L. 1949, ¢. 525; L. 1955, e. 553, $1). eff. > ae

21, 195

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.