Opposition Brief — Grove Press, Inc. v. Flask

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Statutes ae soar sia

Section 750 Judiciary Law: 6f the. State of New York

provides:

: Power

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F Corts to Puxisy FOR C RIMIN AL Con NTEMPTS

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a. A court of record has power to punish for a

criminal conten {, a person euilty of any of the

follow ing nets, Zand no Sthers : ore

, Disorderly, : contemptuous, ‘or insolent be-

} ae committed during its Sitting, in its'imme-

diate view and. presence, and directly tending to

interrupt its proceedings, or to impair the re-

- ct due to its authority. »

: . Breaeli of the peace, “noise, sor other vere:

~ ance, directly tending to inferrupt its .pro-

~ ceedings,

a. W ilful disobcdiency to its lawful manidate.

4. Resistance wilfully offered to its -dawful

mandate.

>. Contumacious ‘and unlawful refusal to be

sworn. as a witness; or,*after being sworn, to

answer any legal and prope r-interrogatory. |

6. Publieation of a false, or grossly’ inaccurate

-report of its proceedings. ‘ But a court cannot.

punish as a contempt, the publication of a true,

full, and fair report of a trial, argument, deci-

sion, or other proéeeding therein.

7. Wilful failure to obey any mandate, process .

or notice issued - “pursuant to articles ‘sixteen,

‘eventeen, eighteen, cighteen-a or. cighteen-b of

the Judiciary Law, or to-rules ‘adopted pursuant

- thereto, or to any other statute relating thereto,

or refusal to be sworn as provided therein, or

_ subjection of an ics esate to discharge or pen-

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alty on account of his absence from employment

by reason of jury’ service in violation.of this

chapter. Applications to punish the aceused for

a contempt specific ‘din this subdivision may be

made by notice of motion or by order to shafy.

cause, and shall be made returnable at the term

_, of the Supreme Court at w ‘hich contested motions

: - are heard, or of the county. court if the Supreme

Court is not in session.’’

Section 619-¢ of the New York State:Code of Criminal

Procedure’provides for the granting of immunity as follows:

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‘such answer given or evidence produce

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weer Eres Sheananiey? as used in this section’ means

that such person shall 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, gnd that no

doin be re-

ceived against him upon ary criminal proceeding. But

he nay nevertheless be prosecuted or “subject ted to >

penalty or forfeiture for any perjury or contempt

committed In answ ering, or fajling to answer, or in

producing or failing to produce evidence, in accord~

‘ance with the‘ orde ir, and any such answer given or

evidence produced shall be admissible against him

‘upon any criminal proceeding coneerning such per-

jury or contempt.”’

a of the Facts

The petitioner Rastelli had, been subpoenaed before a

Kings County Grand Jury, the last of ‘which such appear-

ances was on February 5,1970. He was asked certain ques-.

tions

and he asserted his Fifth ‘Rnendonchs privilege.

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‘Thereupon in the manner prescribed by law, the petitioner

was granted full and complete statutory immunity pursuant

to statute. Despite said grant of statutory immunity, the |

petitioner persisted inf his refusal to answer any and@all

questions. As a result thereof he was served with an order

to shown cause to punish him for ¢ontempt. The petrtioner

appeared before Mr. Justice Helfayd and wa’ held in con-

tempt on-April 30, 1970, after refusing in open court -to

‘return to-the Grand Jury and answer proper and lawful

interrogatories propounded to him. The aueae was

a to 30 days in the Civil Jail and to pay a ine of

$20

‘The said order was affirmed by the Appellate Division,

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Second Department, on June 15, 1970.

-The Court of Appeals of the State of New York denied

leave, to appeal to that Court on July 6, 19700 The said

Court also denied a stay of proceedings pe nding an: appli-

cation for certiorari to this Court. | J

~The petitioner was indicted for criminal. contempt. He

_ was charged with violation of Section 215.50; subdivision 4

of fhe Penal’ Law of the State of New Y ork on June 11,1970.

. An application for a further stay of ‘thie’ commitment

order was made to the Hon. John M. Harlan, an Associate

“Tustice of this Court, on July 29, 1970, A stay was granted

Vending the filing of papers by the petitioner by August 26,

1970.

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-. ARGUMENT

POINT.

It w was not a en of due process of law and peti-

tioner’s Fifth Amendment: privilege to punish him for

~ contempt.in refusing to answer before a Kings County

Grand Jury some of the same quéstions which he had

already refused to answer before a Nassau County

Grand Jury and for which he had already been pun-

ished -by a jail sentence by reason of such refusal.

The petloner contends that the investig rations in ices

County and Nassau County: are basically the same inv estiga-

tion. This contention is not correct. The investigation in

Nassau County deals with the disay earance of Frank Mari

and Michael Adamo. .The investigation in Kings’ County

by the Grand Jury is Hig takeover of a Crime Syndicate

in the County of Kings formerly headed by.Joseph Bonanno

and multiple homicides and assaults in the County of Wings

that led to the takeover of this Crime Syndicate. Frayk

“Mari based upon information suppliedto the District At-

torney of Kings County was’a leading contender: to succ cod

Joseph Bonannd. As one can see the investigations are not

one and the same, but overlap in one small area. At is the

duty “of the District. Attorney of Ikings County and the

Grand Jury to determine who the perpetrators of these

murders and gssé aults in Kings County are, and it is believed

that the petitioner could further aid the Grand Jury investi- °

gation. Through information supplied to the Kings County

Disty ict Attorney by reliable police sources Rastelli’s name

Was given-to us along with certain.information stating that

the petitioner may be able to furnish testimony concerning

the perpetrators, of these crimes in the County of Kings.

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It is quite possible that the Kings-County inv estigation may

ov ‘erlap- to some extent the, Nassau County inv estigation ;

~ however, both itiv estigations basieally ‘dgal with a different

subject matter and the Kings County ‘investigation is much

- broader in scope and does not deal only with the disappear-

ance of two’ men as the Nass: iu County, investig sation does..

'. Mr. Rastelli’s rights have been protected by his counsel

and the District Attorney of Kings County. The District

rere ree:

‘Attorney of Kmgs County is conducting|its own independ-

ent investigation in good faith. The bona fide nature of the

Kings County investigation has already been ruled dpon by

the courts and. affirmed by the Appellate. Courts in other

“contempt ¢ gases—Menna v. Gold, 25 N Y 2d 475 ($860).

The ‘case of. Matter of Koota v. Colombo, 17NY >I 147,

allows the District Attorney to indiét the witness for con-

tempt under the Penal Law of ' New York, anil/ot’ initiate

proc ceedings under-the Jadicerty ‘y Law of New York to hold.

the witness in contempt. This case allows the District At-

torney to use both methods if he so desires. See also, Matter

of Wshkowjl> v. Helfand 15 N Y¥ 2d 715. “Phe petitioner

“claims that' fis rights under the Fifth Amendment of the

United. States Constitution are being violated since he was

indicted under the Penal Law of the State of New York

‘Section 215.50, subdivision 4, and. adjudicated. in contempt

-under the Judiciary Law iG the State of New York, Section

750. This isnot so. Thé-petitioner was indicted: for not

answering questions under Section 215.50 of the Penal Law.

of the State of New York, and the petitioner was: held in

contempt under Section 750 of the Judiciary Law ‘of the.

-State of New York for disobeying the lawful mandate of

Justice Helfand who ordered him back to the Grand Jury

to answer the questions propounded to him. The petitioner

has aeons two separate acts, one is refusing to obey the.

layful mandate of the Court so Mr., Justice ‘Helfand held

‘ ~ him in contempt under the Judiciary Law: of the State of

: _ ° New York. The second act was the petitioner’s refusal to

\ é “Ss answer questions before a Grand Jury> The petitioner was

indicted for refusing to 6 the questions jyropounded

7 , ~ tohim. plead lea has.committed two separate acts

he is not plaged in.a position of twice being in jeopardy

_ for.the same crime. “His refusal to obey the Courts direc-

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tion, aad his ‘refusal to- auswer questions are mdependent

acts of each other and do not give rise to double jeopardy.

The petitioner has not indicated that he -wishes ‘to purge

himself; therefore, he has: vo standing to-raise the issue

that he would in effect be pleading guilty: to an indictment. :

——At_persent there i is-no issue to be litigated since the peti- .

-—— tioner js not in a position to possibly do-harm to hjniselt

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legally. | ~ ie 7 :

The immunity statute in New York Section 619-¢ of the

Code of Criminal Procedure is more than.co- extensive v ith”

the pe titioner’s privilege against. self- hicrimin: ition. This

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" Hf eo receives transactioiial immunity—Menna v: Gold,

95 N ¥' 2d ae £1969). ba Ss P

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* POINT Il a: :

It was net a deprivation of petitioner’s constitutional

right to the assistance of counsel to refuse petitioner’s

request to have his counsel physically present with him

‘in the Grand Jury room during his interrogation by the

Grand sary. ae ——

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The Taw ears has been that a initnenWhetaes a Grand

_Jury or other — investigative-body, does not have the

right to have an ‘attormey actually in the room, diaenymous ———

v. Baker, 360 U.S. 287, 292° (1959) ;“Matter of Groban, 352

U.S.°330, 383 (1957); United States. v. Scully, 225 F. 2d

113, 115-116 (2nd Cir: 1955) cert. den. 350 U.S. 897; Mc

of Black, 47 ¥, 2d 542, 543 (2nd Cir. 1931); Battaglia v.

United States; 349 F. 2d 556, 560 (9th Cir. 1965) ; People v.

Tanniello, 20 NY 2d 418, 425, although the right to consult

with his attorney who may, be outside the chamber is erates

not in: serious dispute. Miranda v. Arizona, 384 U.S. 48

(1966) ; Escobedo v/ Hlinois, 378 U.S. 478, 486 (1964) ;

United States v. Letghton, 265 F. Supp. 27, 38 (S.D.N-Y.

1967); United States v. Kane, 243 F. Supp. 746 (S.D.NLY.

1965); United States v. Grunewald, 164 F. Supp. 640 (S.D.

N.Y. 89; D8) 5 People v. Tanniello, 21, N.Y 2d 418, 423; Pe ople

. DeF'co, 284 App. Div. 622, 62 ‘ ‘rev'd on other. grounds,

(ss N.Y. 595 (1954). ae fae

bs hee eft en ‘4 ‘

~ Even Mr. Justice’ Black who dissented in In re Groban,

supra, iv air opinion joined in by Chief Justice Warren and

-Justices Douglas and Brennan, indicated that he would

have joined. the, majority had the case involved the. tradi-

_ tional 12 to 23 member: Grand Jury, where there was less

danger of abuse than in the’ situation actually .before the

Court, one of a single inquisitor. .

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Mr: Justice Black ‘said that re ‘need for counsel in the

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room Was not as er eat w ‘here grand jurors w vre concerned :

The > bring into the grand jury room the. expeti-

ence, know edge and viewpoint of -all sections of the.

community. They, hiife no axes to grind and are not

charged per rsonally with the administration of the

law. No-one. of them as a prosecuting attorney or

law-enforcement oflicer ferreting out crime. It would

be very dificult Yor otiicers of the state seriously to

abuse or deceive a witness in the presence of the

grand jury. Simiday ‘lygthe presetice of the jurors

'. offers a substantial’ ic, See against the officers’

misrepresentation, unintentional or otherwise, of the

_ Witness’ statements and. conduct before the grand

jury The witness -can call on the grand jurors if

— need be for ‘their ‘yormally unbjased testimony as to

what occurred befor e them.’

+ In re Groban, supra at odT, | ‘

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It would Zoom that the wisdom of these mies 5 is still valid,”

because if counsel w ere permitted 1 in the: Grand Jury room

itself, constant objections to questions oi! the gr ound - of

relevancy, form or other privilege and,constant requests

for rulings from the Court sitting would unduly ‘lengthen —

the Grand Jury’s proceedings. “There could be a serious

roadblock to legitimate inquiry implanted by stalling g jor

delaying tacties and. since a Grand Jury never ultimately:

deterniines iimoe ence or guilt and the sufficiency “of its in-

dietments are usui ally open to judicial scrutiny anyway, no,

harm 3} is inherent in adher arg to the asics rules,

The ‘seerecy of the Grand Jury’s proceedings ‘could be |

~ seriously impaired because oftentimes the same attorney

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represents more than one witness during a particular in-

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vestigation. The proceedings would essentially be changed

in’ character from proceedings basically investigatory in

nature to.an adversary situation. ‘This would pervert. the ©

' historical purpose of the G rand Jury as a finder of fact and

turnits proceedings into a pre-trial hearing. That sentiment

was expressed in Stallings v.. State, 154 Conn.” 272 (1966),

where it was thought that alleging counsel into the room —

_ would. turn.the @ rand Jury’s i earns into nothing more

than a ‘preliminary trial and iegangers were forcefully

ne and clearly noted by Chief Jilgo Fee in United States’ Y.

oy Smythe, 104 F. Supp. 283, 290-291 (N.D.'Cal. 1952) and by

District Judge. Kirkpatrick 1 in In re Grand Jury Proceed-

Veo: Supp. 283, seit Pa. 1933). :

_,' Petitioner.argues that the rationale. of reeent anbenie of.

this Court in’ Hamilton ¥. Alabama, 368 US. 52 (1961) ;

Miranda v. Arizona, supra; U nited States v. Wade, 388 US

2a8 (1967) and - Coleman’ y. Alabama, . us ; 38

U.S.LW. 4534 (Decided June 22, 1970) required the exten-

-sion of the right to counsel to the Grand Jury Room. |

“)

youn sis of those authorities reve als that their holdings a

do not affect the long standing practice of excluding the

.attorney from,the room itself. All of the Courts that haye

‘considered the problem have concluded: that because the

Grand Jury does. not involve a situation where oppressive

custodial interr ogation in a police dominated: .atmosphere is

present, the right to counsel] should: not be further extended ”

‘to that situation. United States v. DiMichele, 375 F. 2d 959

(8rd Cir.’ 1967) ; United States v. Goldenberg, 276 F. Supp.

898, "900 (S.D.N.Y. 1967) ;| United States v. “Wolfson, 282

"F. Supp. 772 (8.D.N.Y. 1967); State v. Nelson, 202 So. 2d

232 (Fla. 1968).

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‘Judge Tenney pointed out i in Uv ee spies v. : Goldenberg,

i supra at 900 that: pie, BEN Neamt 4 oe : F

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“Neither E nedhede:ce Miranda is authority for the

* in the Grand Jury room”’.

This Contt. also. rec wnized in Mirgnda itself. that” the

factors presgat in the police station were different ‘than

would attend other types. of less overbearing: inquiry.

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LC: ate¥ than in‘courts or other dffic ial investigations,

where there are inipartial observers te-guard against,

intimidation or trickery”?, (Hmphasis ‘ndded) Mi-

‘randa v. alriz ona, “supra at 461.

Contrary to the, Alabama preliminary hearing in the

Coleman case, Grand Jury proceedings are ag a ‘critical

Stage’’- of the ‘prosecution because potential. substantial

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prejudice to a defendant’s riglfts does not exist.. Grand

Jury praceedings are not a confrontation, Costello v..United |

States, 350.U.S, 463 (1956); U united States v. 8 mythe, supra, .—

*. andsinee they only dete#mine whether aman should be made ©

to answer criminal charges, the prosecutor's Case against

him, does not im any. way hendfit from what occurs in the

Grand Jury. The proceeding only examines evidence 1 already

secured and does not result ii the addition of anything | new

or the waiver or relinquishment -of any rights or course’ of

action otherwi tse available to a witness or “det endant. .

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This: Court jas heldvthat’ e ev en. if error of constitutional

magnitude is present, if no: harm regults, the error can be

disregarded. Chapman v. California, 386 U.S. 18 (1967).

proposition that a witness /Defore a Grand: Jury is”

entitled to have éounse] physically present with a

. Ms a pri actical matte, the compulsion ‘to speak in’

, the isolated setting of. the policg s@#tion may well be .

tamed

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In a recent case, Coleman.y. “Alabama, A as

U.S.L.W. 4535 (decided June 22, 1970), where the petitioner ee

had been deprived of his right to counsel at a preliminary

hearing, this Court decided that although it was a critical ~

Ttage of the proceedings, still, a remand was appropriate io

determine if there had been any prejudice, The law of

Alabama prevented the use of-anything said at the hearing

vould not’ have’ to he disturbe d. Chapman was reaflirmed. «

cae counsel and if no harm was appareiit the judgment _

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@ONCLUSION

The petition for the writ of Certiorari should =

a. “eat ; 2a

baie’ ‘Brooklyn, New York te

Oetober 23) 1970. 8 ‘1

Respectfully*sabmitted, Paes

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- EvuGeNE Goup

ts ‘District Attorney

Kings County -~ ‘4

¢'HaRLEs J. HYNES

Davip H. Karz

STranLEY_M. MEYER - - : :

Assistant District Attorneys

of Counsel

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