Opposition Brief — Grimaldi v. New York

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OCTOBER igwane agro

of “SUPREME COURT, u. z

No. 595—

. VITO GRIMALDI

. THE PEOPLE OF THE STATE OF NEW YORK, =—s_

BRIEF IN OPPOSITION TO PETITION . |

FOR A WRIT OF CERTIORARI Serea aS

Beak 0 Gorp

. District Attorney

_ . Kings County —ssi«i

400 Municipal Building” *

Brgoklyn, N. Y. 11201 oe

co 643-5100 Seite

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- Cranrzs J. Hynes — say

Davi H. Karz - a

- §Scawtzy Mzvzer |

Assistant District Attorneys

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Statement ......... “ahs tg eae Mind mandarin ta eek: 4

EEN on eee et A ates p,5

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Statutes ....... Roe Leo a ae cies Pekaloawee

RSS AS ES we SOROS) SOR eee Se Se ee eA Se See Se Sk

Post It. Ww als nota ‘dem vation of petitioner *s cons

stitutional right to the assistance of Counsel to refise

petitioner's Pee st to have his counsel physically

present with dimkin the Grand Jury room during

his interrogation hy the Gran nd Jury

ies A Gye SRS or Sh

<«

Porxt 1¥—The petitionenw as fnilv and fairly informed

gas! to the Scope at the’ immunity granted to hint ce

Poixt Wot at violation of the petitioner’s

rights mitder the Fifth Amendment to indict him for

-eriminal: contempt béfore he ‘had exhausted all Iffs.

ypeals from the judgment of summary contempt

"

CONCLUSION ........ PSG ire Sey eM Be eae eee ae

AUTHORITIES CITED

Cases: - tg

; & . : . ‘ ai ae .

Anonymous v. Baker. 3860 U.S. 287, 292 (1959)

Battaglia v. UTS. 349 F. 2d°536, OG 0

OS wee ee oe. ee Oe

Chapman v. Calif. 586 U.S. IS (1967) 200... Ce

Coleman v. Mabama. | USS

PAGE

11

13

PAGE °

Costello v. U. S., 350 US. 463 (1956) ......2...00. 8

~ Counselman vy. Hitcheock, 142 U.S. o47 (1892) ve eee 10

Escobedo y. Illinois, 378, U.S. 478, 486 (1964) ..... 5

Hamilton v. Alabama, 368 US. 52 (1961) hijaeenes 1a

In Re Grand Jury Proceedings, 4 F. Sup. 28° , 284 7

In Re Groban, supra ..... ‘cvmeeas <a biagsssh <ceks 3, 6

‘Matter of Black, 47,F. 2d 542, 543 .. pakaws's aaa ooh ee S)

Matter of Gold v. Menna, 25 N Y 2d 475 (1969) . ° 10

_ Matter of Grokan, 352 U.S. 330, 333 (1957) 2.22... dD, 7

| Miranda v. Arizona, 384 U.S. 436 (1966)".......... 5,8 -

| ' People. DeFeo,-284 A.D. 622, 627 poate Aes een aes ze o .

_ People v. Ianniello, 21 N Y 2d 418, 423 . a eae eae S

‘Stallings v. State, 154 ‘Conn. 272 (1966) wet te econ : 7

" State v. Nelson, 202 So. 2d 232 ...... ee eT eee ee

u. & v. DiMichele, odio KF: 2d 909. ati ry oe Seaele 7

U.S. v. . Goldenberg, 276 F. ‘Supp. ggg, 900 eae 7

U.S. v. Grunew ald, 164. F. Supp. 640 ...... eee 4 5

U.S. v. Kane, 243 F. Supp. 746 .......-.......... eure

U. Sv. Leighton, 265 F. Supp. 27, 38 (SDNY. 1967) ° 5

U. 8. v. Seully, 225 F..2d 113, H5-116 «2.00.00... 5

U. S. v. Smythe, 104 F. Supp. 283, r= | | ae oe

U. Si v. Wade, 388 U.S. 218 (1967) .2..0...0000.. 7

U.S. v. Wolfson, 282 F. Supp. 272 .......1..... pe 7

Typothete of N.Y. v. Typographical Union No. 6,

SD Pgh SO PE Ikke eek eh ease 11

White ve Marylahd, 384 U.S, 436 (1966) .......... 7

\

Statutes: |

Code of Criminal Procedure of New York section.

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Section 750. of the Judiciary Law of New York . _ 2r

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Penal Law of the State of New York section 915.50 ° 4/11

as

IN THE

iden Court of the Hnited States

‘October Term, 1970

No. 395

Paes

?

. Vito GRIMALDI, »

. Petitioner,

—against— ;

* Tue Prope or THE Srave or New York,

Respondents.

>

>

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Statement

_ Petitioner’seeks a writ of certiorari in order to review

an order of. the Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department,

dated June 15,1970, which in turn affirmed an order of the

Supreme Court of Kings County, Criminal Term, Part I, —

dated April 30; 1970, and entered April. 30, 1970, which

found the defendant to be guilty of criminal contempt under

Section 750 of the New York Judiciary Law. The Court

of Appeals of the State of New York denied leave to appeal

‘on July 6, 1970. The said Court also denied a stay of pro-

ceedings pending an application for certiorari to this Court.

. Jurisdiction

The napa rouge of this Court ‘is séught to be invoked

under 28 U.S.C. Section 1 Lor (33). Petitioner cvontends he

Was’ denied’ ei rights under the rifth, Sixth and Four-

~ tee nth. Amendments to the United States ( ‘onstitution.

Defendant argues that h4s rights under the United States

Constitution relating to his privilege neainst. self-i inerim-

ination, ‘to the right to the assist; iiee of counsel and to due

process of law were violated. ‘

Statutes

The statute tnvolved is Seetion 750 of The New York

Judiciary Law which provides:

Power or Courts:ro PUNisn ror CRIMINAL CON TES Prs

“AL A court of record has power to punish for a

‘Seriminal contempt, a person. guilty of any of the, -

- following acts, and no others:

lL. Disorderly, conte mptuous, or insolent — be-

havior, eommitied during its sitting, in its immediate

View and presence, sind direetly tending to interrupt

its proceedings, or to impair the respeet due to its

authority, +

2. Breach of sthe peace, noise, or other disturb-

anee, directly tending to iuterrupt its proceedings,

3. Wiltul:disobedienee to its law ful mandate.

" Resistance wilfully offered to its lawful man-

a <a

5. Contumacious and unlawful refusal to be sworn

‘as a Witness; qr, after being sworn, to answer any

legal and prop, r interrogatory.

6. Public: ation of a false, or grossly inaccurate re-

port of its proceedings. Sut g a court cannot. punisl.as

a contempt, the publication of a true, full, and fair

report: of a‘trial, argument, decision, or. other. pro-

ceeding therein. ; ‘

i Wilful failure to obey any mandate, ' process or

notice issued pursuant to artiéles sixtee n, seventeen,

eighteens cighteen-a or cighteen-b of. the Judiciary

Law, or to rules adopted pursnant thereto, or to any

ether statute relating thereto, or refusal to be sworn

| “as provided therein, or subjection of an employee to

discharge or penalty on account of his absence from

employment by reason of jury service in violation of.

this chapter. Applications to punish the accused for

a contempt specified in this subdivision may be made

by natice of motion or by order to show cause, and

shall be made returnable at the term of the Supreme

Court at which contested motions are heard, or of

the siepang court if the Supreme Court. is not in

> Session.’ 7

<

Statement of Facts

The petitioner Vito Grimaldi appedred before the Kings

County Grand Jury pursuant io a subpoena on January 8,

1970, and was advised by the: Assistant District t Attorney

of his right to refuse to answer. ‘The petitioner asserted

his constitutional privilege and was thereupon excused for

a short period of time during which the Grand Jury voted

to confer immunity upon him.

IIe was then iminediatély brought back to the Grand Jury

room and advised that the Grand. Jur y. had voted to confer

immunity upon him. The matter w as then adjourned to

.

January 22, 1970, to allow the petitioner to consult with,

counsel 1 in the interim. Thereafter, on January 23, 1970, the

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a petitioner returned to the Grand Jury room, The petitioner

then stated that upon the advice of his counsel he would,

‘Fold to.the previous statement made to the Grand Jur ee

referring to the prior assertion of ‘his constitutional privi-

lege against self-incrimination. The petitioner: Was in-

formed that he had been granted immunity. The petitioner

declined to auswer any further questions upon the grounds

. previously stated and a motion was thereafter.made by the

District Attorney to punish him for contempt under the

| Judici iary Law by reason of. said refusal to answer.

The matter came on for oral argument before Mr: Jus-)

tice Helfand sitting at Criminal Term, Part I of the Su-

preme Court, Kings County. Upon said oral argument,

counsel for the defendant pointed out to the Court that

‘the District Attorney had not advised the petitioner that

he could be subject. to prosecution for perjury based upon,

any answers he might make if same were alleged to be

false. The Court overruled that-argument and Judge Ilel-

fand ruled after review ing the minutes of January 8, 1970,

that the immunity granted was granted ina proper manner

and, was not defective. The Court held the petitioner in .

.contempt and imposed a thirty day jail sentence and a fine’

of $250.00 on April 30, 1970.

~The order of Justice Helfand was aflirmed by the Appel-

late Division, Second Judici al Department on June 15 0, 1970,

without opinion. The Court of Appeals of the State’ of

“New York denied leave to appeal to that Court on ‘July 6,

1970. The said Court also denied a stay of proceedings

pending an application for certiorari to this Court. The

: petitioner was indicted on June 11, 1970, for criminal con-

tempt under section, 215.50 subdivision 4 of the Penal Law

of the State of New York for refusing to answer questions.

on January 22, 1970.

b)

ARGUMENT

POINT p |

It was not 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 Jury. | | : ;

The law always has been that’a witness before a Grand

Jury or other similar investigative body, does not have the

right tq have an attorney actually in the room, nonymous

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

U.S. 330, 333 (1957) ; United States v. Scully, 225 F. 2d 113,

115-116 (2nd Cir. 1955) cert. den. 350 U.S. 897; Matter of

Black, 47 F. 20.542, 543 (2nd Cir. 1931) ; Battaglia v. United

States, 349 I. 2d 556, 560 (9th Cir. 1965) ; People v. lanni-

ello, 21 N Y 2d 418, 423, although the right to consult with

-. his attorney who may be outside’ the chamber is really, not:

inserious dispute. Wiranda v. Arizona, 384 U.S, 436 (1966) ;

Escobedo, x. Illinois, 378 U.S. 478, 486 (1964) ; United States

v. Lrighton, 265 F. Supp. 27, 38 (S.D.N.Y. 1967); United

States v. Kane, 243 F. Supp. 746 (S.D.N.Y. 1965) ; United

States v. Grunewald, 164 F. Supp. 640 (S.D.N.Y. 1958) ;

People vy. Ianniello, 21 N Y 2d 418, 423: People v. DeF eo,

284 App. Div. 622, 627, rev’d on other grounds 308 N.Y.

595 (1954).

Aven Mr. Justice Black who dissented in In re Groban,

supra, in an 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

:

6 a

danger of abuse than in the situation actnally-before the

Court, ene of a single inquisitor.

Mr. Justice Blaek said that the need for counsel in the

room Was not as great whe ‘re grand jurors were coneerned:

“They bring into tie grand jury room the experi-

enee, knowledge and vie Wwpoint of all sections of the

community. They have no axes to erind and are not

charged personally with the administration of the

law. No one of them is i prosee uting attorney or law-

enforcement officer ferreting out crime. It would-be

very diflicult’ for offieers of the state seriously to

abuse or déceive a witness in the presence of the

‘grand jury, Similarly the presence of the jurors:

_ offers a. substantial safeguard against the officer's

misrepresentation, unintentional or otherwise, of the

Witness” st: ements and conduct: before. the griutd

jury. The. witness ean call on the grand jurors if

need be for their normally unbi: ased testimony as to

What occurred before them."

fn re Groban, supra at 347.

It would seem that the wisdom of these rules is still valid

because if counsel were permutted in the Grand ‘Jury room .

itself, constant objections to questions on the ground of

relevaney, 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 or

delaying tactiés and since a Grayd Jury never ultimately

determines innocence or guilt and the suflicieney of its Ine

dictments are usually open to judicial serutiny anyway, no |

harm is inherent in adhering to the prevailing ries.

The secrecy of the Gr and Jury’s 3 proceedings. could be

Seriously impaired because oftentimes the same ‘attorney

represents more than one witness during-a particular in-

vestigation. The proceedings would essentially be changed

in character from proceedings basically investigatory | in

Nature to an adversady situation. This would pervert the

historical purpose of the Grand Jury as a finder. of fact and

turn its proceedings into a pre- -trial hearing. That senti-

ment was expressed in Stallings v. State, 154°Conn. 272

(1966),. where it was thought that allowing counsel into

‘the room would turn the Grand Jury’s proceedings into

nothing more than a preliminary, trial and the dangers

were forcefully and clearly noted by Chief Judge Fee in

United States v. Smythe, 104 4. Supp. 283, 290-291 (N.D.

Cal. 1952) and by District Judge’ ‘Kirkpatrick in In ¥e Grand

Jury Proicedings, +P. Supp. 283, 284 (ELD. Pa. 1933).

- Petitioner argues that the rationale of recent decisions

of this Court in /amilton v. Alabama, 368 U.S. 52 (1961) ;

White v. Maryland, 384 UtS. 436 (1966): Miranda v. Ari-

Zontu, eS United States v. Wade, 388 U.S. 218 (1967)

and Coleman v. Alabama, US. , 98 U.S.L:W. 4534

(Decided June 22, 1970) require the extension of ‘the right -

to counsel to the Grand Jury Room.

Analysis of those authorities reveals that ‘their holdings

do not:affect’ the long standing practice of excluding the

‘attorney from the. room itself, ‘All of ‘the Courts that have

considered the problem have concluded that because the

Grand Jury does not involve a situation where oppressive

custodial interrogation in a police dominated atmosphere

is present, the right to counsel should not be further ex--

tended to that situation. - United States'¥. Dilichele, 379 |

I’. 2d 959 (3rd Cir. 1967) ; United States v. ee 276

F. Supp. 898, 900 (S.D.N.Y. 1967) ; United States v. Wolf-

a |

This Court has held that even if crror‘of constitutional

disregarded. Chapman v. California, 386 U.S: t8 (1967).

Inca recent case, Cole man Nv. nde tas id US. . 38

b

LLS.L.W. 4525. (decided June 22, 497 70), where the petitioner.

had been deprived of his right to coulisel ata pre ‘liminary

hearing, this Court de cide d that although it was a critic: i]

stage of the proceedings, still, a remand was appropriate ;

10 ae mine if there had been any prejudice. The law -of

Alabania prevented ’the use of anything said at the hearing

without counsel and if no h: irm Was. ap parent, the judgment

would not have to be disturbed. Chapman Was reafirmed.

POINT I

ae —_—_——

WRONG hn... neiidiomes was fully and faintly siabibiil as to

- scope of the immunity granted to him. '

~ . Section 619%¢ of the New York State Code of Criminal

Procedure provides for. the granting of lmmunity as fol-

“lows

.. **. 2.2. ‘Immunity? 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 pr oduced evidence, arid that no

such answer g. iven or-evidence produced shall be re-

. ¢eived against him upon any cri nial proceeding, but

he

2 may nevertheless be eeu or subjected ‘to.

“penalty or forfeiture for any perjury or contempt

committed in answering or tailing to answer, or in

producing’ or fai ng to produce evidence, in accord.

ance’ with the order. ind a my’ such answer given or

magnitude is, pre Sent, if no harm results, the error can be

-» evidence produced shall ‘be admissible against him.

upoit any criminal proceeding concerning such per-

jury or contempt.”? | Th

oe

After examining ‘the statute one can see that it grants

“transactional inwnunity.” Counselman v. Hitchcock, 142 -

“US. 547 (1892); Matter of Gold vy. Menna, 2o N Y 2d 475

(1969). ae

The, petitioner on January 8, 1970, appeared before the

“Grand Jury and the petitioner Wals ex xplained what immu-

nity means and what immunity entails. On page. 22 of the -

Grand Jury minutes of January 8, 1970 (appendix G of

petitioner's br ief), the petitioner w as told by the Asststant

District Attorney “if yeu admit: to a crime, and your an-

swer Was honest and responsive to the question, the Dis-

trict Attorney or other law enforcement agenei¢s cannot

use that te stimony nor any leads from it at all; never prose-

cuting you for admitting that crime.” .

‘The w ord honest means creditable according to Funk &

Wagnall’s New Desk Standard Dictionary page 380: (1953

and creditable means that one can be believed. Any reason-

~able man upon heating the Assistant. District Attorney’s

statement would know that he must.tell the truth to avoid

possible future legal action such as being charged: with

perjury. .

6e

ge

11

POINT Ill

It was not.a violation of the petitioner’ s rights under

the Fifth Amendment to indict him for criminal con-

tempt before he had exhausted all his appeals from the

judgment of summary contempt.

The petitioner was afforded due process and all his rights

were safeguarded by the District Attorney and his own n legal ‘

. counsel. -

The petitioner wus adjudicated in contempt by Judge

Helfand on April 30,.1970. The petitioner did not notify

Judge Helfand nor the District Attorney that he wished

to testify before the Grand Jury to purge himself of the

contempt adjudication: of April 30, 1970. The petitioner

had time from April 30, 1970, to June 10, 1970, to request

an appearance before the Court in order to purge the con-

tempt adjudication under Section 750 of the J udi¢iary Law

of the State of New York. Since the petitioner did not make

an attempt to try and purge himself of the Summary con- . .

tempt before Judge Helfand this'is not a justiceable issue

to be raised by the petitioner, because the petitioner did

not suffer any legal injury. The petitioner had adequate

time, before being indicted for criminal contempt ‘under

section 215.50 of the Penal Law of the State of New York,

to purge liimself for disobeying the lawful mandate ‘of the

Court. This was not thé intention of the petitioner. Even

if the petitioner ‘wished to purge himself of. the contémpt:

~ he committed before Judge Helfand and he w ished to obey

the mandate of the Court, the petitioner’s request to pur ge

need not be accepted by the trial judge. The law in New

. York is stated in Typathete. of New York v. Typogr aphical - -

Union No. 6, 138 A.D. 293, 295 -

“pearing why its discretion should not

to that end, the Court Was within its rights in so

12°

‘This ‘application, shavetes. is, in ethees one to be

allowed. to purge themselves of their contempt by

respondents, is addressed to the diserétion of the

Court which alone. had power to punish for the con-

~tempt and to allow its being purged, and whose dis-

cretion, and authority were in nowise ‘destroyed or .

abridged or abridged by the aflirmanee ipon appeal

of its own ‘Uetermin@tion. Ufaving been satisfied that

‘it wa's proper that the full enforeement of its own.

mandate should be stayed, and no vali reason ap-

0 eXe) reised

ordering. * bene

.

‘ — : > a >

Even if the pe titioner made a request to purge, the trial>

judge need not acce pt this request. Ilere the petitioner: had

at least two mont hs he ‘foe being indicted to make a request

w hich he had’ not aca. The Court should not try and sur-,

misé What might have: resulted, if the: petitioner requésted

to purge himse If. This issne‘hés not arisen and the Court .

should not corisidet hypothétic: tkwases. which. may or may

not result in legal. Injury \. ‘Judge Helfand does not hav ¢ te

accept fhe request to mirge and the petitioner would the n

have to serve his sentenced,

\

“&;

“CHARLES J. Hynes |

13.

CONCLUSION

4

The: petition for. the writ of certiorari

should be

-denied.

Dated: Brooklyn, New York

'« October 23, 1970 . 2

ie ame a a i

woo submitted,

C =

® 4. e

District Mikey.

2 Ev GENE ‘GoLp.

\ Kings County

*

Daviv H. Karz

bicins, LEY MEYER

. Assistant District Attorneys : .

of Counsel oa | ay

XN .

nt