Petition for Writ of Certiorari — Cavalieri v. New York

IN THE

Gupceme Court of the Muted States ‘

Ocrossr Term, | 97.1

ee Ve

_ > a VO:

SAMUEL CAVALIERI,

Petitioner.

against: os “ >

‘THE PBOPLE OF THE STATE OF NEW YORK.

Resporden t.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

ARNOLD E. WALLACH

Attorney for Petitioner

- 253 Broadway

New York, New York

(212) 227-0959

a

THE DICK BAILEY PRINTING SERVICE Telephone: (212) 447-5358

#

TABLE OF CONTENTS

Page

Jurisdiction ...... ee rn Bo ares Ves <n

- The Questions Presented............ ae es Peerre ee

Constitutional Amendments ....5..2065% Ay aa eae ~"3

eer ree rere octet ee

REASONS FOR GRANTING THE WRIT

I — The Petitioner Was Not Offered an Immunity That

Was Coextensive. with the Fundamental Right of

Silence Guaranteed Undef the Fifth and Fourteenth

Amendments to the Federal Constitution and the

_Prosecutor’s Explanation of “Immunity” -Was So —

Confusing That Petitioner Did Not Wilfully Refuse to

_ Respond to ‘the Questioning and Had a Right to

- Remain Silent ..... rey ee ee Bae Orie iF

II — The Petitioner Was Entitled to Counsel When He

Appeared Before the Grand Jury and Petitioner Should

Have Been Afforded Time to Procure Counsel .:....... oR

Conclusion Re ee ene oe errr ae 14

Cases Cited

idiaiie v. United States, 295 US. 78, 55 S.Ct. 629, 49

L.Ed. eg Ame tee Rear g rere aa cis aura tarae PRM gr yeer 9 .

Counselman v. Hitchcock, 142 U.S. 547, 55 L.Ed. 1110,

-12S8.Ct. 195 (1892) -

i

lotinson ¥. Zerbst , 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct.

1019 (1938) pen PAS eae ee Let Meier eo rom: Foes

inact v. Arizona, 384 U.S. 436, If L LEd. {2) 694, 86 .

S.Ct. 1602 (1966) geek ais dala wisiesate cele DR DEAS here Neg A3

ea v. Cavalieri, 36 A.D. (2) 284, 320 N.Y.S. 2) a0, - .

, 392 or : 5

Se eet es SO OR EE BS Et Oe Re OS aera eo Si Ae es Ge k

; People v. hadeiaalae: 21 N:Y. 72) 418: 288 N.Y.S. (2) 462 at |

423- bisa

People v. Mulligan, 29 N.Y. (2) 20; 323 N.Y.S. Q) 681... IL

People ¥. Tramunti, 19 N.Y. 2) 28, 323 N.Y.S. (2) 687 . 1

crass v. Marks, 383 U. S, '234, 15 L. Ed. 724, 86S. Ct,

7OB Ot 246 ee. NS Ie Fey ewes fates as ares 1]

~ Vitarelli v. Seaton, 359. U. S. 535, 3 L.Ed. 1012, 79 ‘S.Ct,

/9GR (1959) 85995 ee, MiG RAS ba es 9

Yellin v. United States, 374 U. S. 109, 10 L, Ed, (2) 778,

83 S.Ct. 1828 (1963) at 124 sarees ee Per en en 10

Ceo !

hceainitine ¥- : pera Poe piaaeeente Pore ney. a

“Amendment VI ee eee ee. ee er vere gee 2

hinciiibiis ee ’ oe . aes oy for 3

iii

Other Authorities |

- Code of Criminal Procedure of the. State. of New York,

Section 619 alte ar ea eee ewan Ceara eee

Penal Law of the State of New York, Section oi i 50°,

Rule 22 1), Rules of the Supreme Court of) the. United

tt eet aaa pup aerate ee iat LE By oh h1) hele, Mees Oe aug Oe Ree

error

A= - Final Sutigment of the Court of Appeals of aes State

Oe NE oe hem Sane ewe tse Nectar bien ae

B — Decision of Appellate Division ... . ahr ae. teen

C — Judgment of Appellate Division ...........0. 000.

D — Order and Opinion of Supreme Court, Bronx County

E — Order of Court of Appeals Entered Nov. 11,1970 ...

to

27

30

: IN THE

SUPREME COURT OF THE UNITED. STATES

_ October Term, 1971 .

SAMUEL CAVALIERI,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW

YORK

Petitioner, Samuel Cavalieri. respectfully prays that a Writ of

Cértiorari -issue to review the final judgment of the Court of

Appeals of the State of New York, as amended, and entered

January 12, 1972 (appendix A, infra) which affirmed an order |

of the Supreme Court of the State of New York, Appellate

Division, First Department, entered April 15, 1971, modifying

and as modified affirming a judgment of comsetion rendered

against, the petitioner in the Supreme Court of the State of New.

York, held in and for Bronx County on June 26, 1970,

convicting the petitioner for criminal contempt, in violation of .

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

subdivision 4 thereof, a misdemeanor, 39 McKinney’s Con-

_ solidated Laws of New York page. 738*, and sentencing the -

petitioner for a term of imprisonment for one year.

The Court of Appeals of the State of New York affirmed the

‘said order of the Appellate Division of the Supreme Court ‘of

the State of New York, First Department, ‘without an opinion.

The Supreme-Court of the State of New: York Appellate

Division, First- Department, | rendered an opinion which is ©

reproduced herein in appendix “B” infra. The opinion, is ‘

reported officially in 36 A.D.(2) 284; 320 N.Y.S. (2) 390.

‘The judgment and orde: of the said Court of Appeals of the

- State of New York affirming the aforementioned order of the -

said Supreme Court of ‘the State of New York, Appellate

Division, First Department, is not as yet reported.

JURISDICTION:

The judgment and order of the Court of Appeals of the State

_of New York ‘was made a“ entered on Nevember 17,4971,

and was subsequently amended to show that such Court passed

upon questions under the United States Constitution as .to

whether the rights of the peniioner under the Fifth, Sixth and

Fourteenth Amendments of the United States Constitution

were denied.

The judgment and drder of the Court of Appeals of the State .

of New York was entered November 17, 1971, and was

amended January 12, 1972. The jurisdiction of this Court is

- invoked, made and csateered under, 28 U.S.C. 1257 (3) and

Rule 22(1) of the Rules of the Supreme Court of fhe United

States. -. : =

“ ) This statute was since superceded by. section 215.50 subdivision 4

and 215.50 1, of the Penal Law_of the State of New York, since.

September ¥, 1970, by the Laws of 1970, Chapter 734, Section 1,

and 2. : :

“THE QUESTIONS PRESENTED

_ 1. Was the. petitioner fully: advised of the State -statutory .

immunity (section 619-c of the Code of Criminal Procedure of

the State of New York) so thaf the requirements of the Fifth.

Amendment privilege against self incrimination were met?

“®

.. Was thre appellant deprived of right of counse! when he.

was : eee to appear as the Grand Jury ‘witness and

requested an: extention of time.t to retain counsel? ,

: _ CONSTITUTIONAL AMENDMENTS:

painted V. “vu: nor’ shall «be osisiine in any

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

Amendment VI “In all criminal prosecutions the accused

shall enjoy the rigtit...;... and the Assistance of Counsel for

his defense.” .

i $$

Amendment XIV “Section 1. All persons born or

naturalized in the United States and subject to the

jurisdiction thereof are citizens of the United States and of

the State where they reside. No state shall make or enforce

any law which shall abridge the privileges or jmmunities of

any cifizen of the United States; niér shall any state deprive

any person of life, liberty or property without.due process

~s " § jurisdiction the ~~

ae equal protections of the law.” | .

Code. of Criminal Procedure of the State of New Yor

Section 619-<c:

2, “Immunity” as used in this section means that such

_ person shall not be prosecuted or subjected to any penalty

4

or forfeiture for or on account of any transaction, matter

* or ‘thing 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 him in any criminal proceeding. But. he

may nevertheless be prosecuted or subjected to penalty or

forfeiture for any perjury or contempt committed . in

answering, or failing to answer, or in producing or failing

to produce evidence, in accordance with the order, and

° bed *

any stich answer given,or evidence produced shall be.

admissible against him upon any criminal proceeding

‘ concerning such perjury or contempt. ** :

Section 215.50 of the Penal Law of the State of New York.

“A person is guilty of criminal contempt when he engages

in any of the following conduct: 1. Contumacious and

* _ unlawful refusal to be sworn as a witness in any court

proceeding, or after being sworn, to-answer any legal and

proper interrogatory, or...” r Seema oe

“Criminal contempt is a class “A” misdemeanor...”

STATEMENT OF THE CASE

The indictment in this case originally charged the petitioner

with 27 counts for contempt based on the petitioner’s refusal to

—_—_—_-fespondte—questioning before ¢ Brome County Grand Jury. ——

Each count was based on a distinct refusal to answer a distinct

; question (4-84)*** .

**That section relevant and in effect at the time of the action involving

the petitioner has since been repealed and superseded by Section

50.10 of LIA McKinney’s Consolidated Laws of New York,-page

145, effective September 1, 1971. eo

***This refers to the pagination of the record on appeal.

5 3

Upon appeal to. the Supreme Court of the State of New

York, Appellate Division, First Judicial Department, the

judgment of conviction was modified to the extent that the

petitioner’s repeated refusals constituted but one contempt;

People v. Cavalieri, 36 A.D. (2) 284, 320 N.Y.S. (2) 390, 392.

At trial the Grand Jury minutes reflecting the petitioner’s

appearance before that body were received -in evidence

(113-129). The subject matter of the Grand Jury inquiry was an

investigation into illegal gambling and usury, and whether the

proceeds. from gambling and usury were used to infiltrate

“legitimate. business” (131).

On March 7, 1969, the petitioner appeared before the Grand

‘Jury (131). He was asked his name and address (131-132). The.

petitioner refused to answer all other questions propounded to

him, asserting his privilege against self-incrimination (132).

After the petitioner claimed his privilege, the petitioner was

~~ excused. In petitioner’s absence the Grand Jury voted to grant ©

him “immunity” (132,133).

The interrogation of the petitioner was resumed after the

conferral of immunity. The petitioner asserted his privilege

against self-incrimination when he was asked further quéstions

by the prosecutor (133, 134). After the petitioner thus refused

to respond, the foreman of the Grand Jury directed the

petitioner to answer (134). =

Howeve?, the foreman of t the Grand Jury at trial was asked

what ‘transactional immunity was” and the foreman replied he

didn’t know (138). When counsel inquired whether the foreman

of the Grand Jury knew what “testimonial immunity” was, the

Court then sustained. an objection made by the. District |

Attorney (138).

6

In his appearance belione the grand jury, the petitioner was

- never advised he had a right to counsel (143).

- - The foreman of the Grand — a.witness at the trial recalled

that he heard “immunity” explained ten years prior to the trial

(148-149). The. explanation of “immunity” by the prosecutor

to the petitioner when he appearéd before the Grand Jury is

spread out on pages 115-117 of the record on appeal.

For this Court’s convenience » that explanation is set forth

sean as. follows:

—4Q, I didn’t ask you a question yet, Mr. Cavalieri. You

will have the opportunity to claim any privilege you so

desire. Before you claimed your privilege, when asked

what is your business or occupation and you refused.to

answer. I tell you now, the Foreman of the Grand Jury has

told me to tell you that the Grand Jury has voted to give

you immunity. Now when the Grand Jury votes to give ©

—— you immunity, it means that you are directed to answer

‘ questions by the foreman of the Grand Jury, and since you

_ have been granted immunity, anything you say under vath,

and you have een sworn as a witness before the grand

jury, cannot be, used in evidence against you. It also means

if you say anything we can get a lead from, that may hurt

you in some hee wues way, that cannot ’be used in evidence

against you.”

“So that in effect, you cannot be prosecuted because of

anything you say. There are two things the Grand Jury

cannot give you immunity for. Perjury, and criminal

contempt....”

“By that I mean, you must answer the questions

because there is no reason you cannot answer the

ee

questions at this time, since you cannot be prosecuted for

it. That means you are getting before this Grand Jury, you

are getting a bat. You are being walked away from any

possible prosecution, for anything that you say before this -

"Grand Jury. cannot be used against you. I’m telling you

this so you are fully aware and realize what the

eeenieienenen are.” (pages 115-116). .

At trial the petitioner testified in his own defense. He was 59

_ years of age. He suffered a prior conviction under the Harrison’

Act (199-200). However, he was never convicted for gambling

or other crimes (200).

The petitioner’s schooling was to the sixth grade and he

never had any other schooling besides that (201).

. On March 7, 1967; the petitioner was summoned to this

_ Grand Jury (201, 202). A district attorney named Rotker that

day spoke to him. At such time the petitioner was not

represented by counsel (202). The petitioner told the District

- Attorney that he had no attorney and that he wanted counsel.

The prosecutor told him that it made no difference and told

him to appear before the grand jury (203) (204). This

conversation occurred outside the Grand Jury Room (205).

The prosecutor at such time never afforded petitioner time

to engage counsel. -

The petitioner further related at trial that he didn’t

understand what “immunity” was: (203). Nor did the petitioner

know why he was subpoenaed to the Grand Jury. At such time

the ete) desired counsel’ cin sais

The petitioner further testified that nobody offered to

obtain counsel for him. (205). Furthermore, ‘petitioner was

never taken before a Judge for a direction to answer (205, 206).

The foreman of the Grand Jury never explained “immunity” to

petitioner (206).

On cross-examination, petitioner testified he could not recall.

whether he was previously emtaiai for gambling. and usury

( 207).

Further cross-exarhination disclosed that prior to the crucial

appearance on March 7, 1969, before the Grand Jur . the

pétitioner was previously subpoenaed (210). Thus, the fi. .t time

the petitioner was subpoenaed he was excused ani then

re-subpoenaed (211). This happened three t' nes before (211,

212). The petitioner did not at such times contact a lawyer

because he felt he didn’t need a lawyer (212-213).

Petitioner further testified that he realized that he needed

counsel on March 7, 1969, when he was questioned; He then

understood the need for counsel (214-215;. i

REASONS FOR GRANTING THE WRIT

I

THE PETITIONER WAS NOT OFFERED AN IMMUNITY

THAT WAS COEXTENSIVE WITH THE FUNDAMENTAL

———- RIGHT OF SILENCE GUARANTEED UNDER THE

FIFTH AND, FOURTEENTH AMENDMENTS TO THE

FEDERAL CONSTITUTION AND THE PROSECUTOR’S

EXPLANATION OF “IMMUNITY” WAS SO CONFUSING

THAT PETITIONER DID NOT WILFULLY REFUSE TO.

RESPOND TO THE QUESTIONING AND HAD A RIGHT

TO REMAIN SILENT:

_The petitioner never had a lawyer At advise him of what

“immunity” was.

‘As will be shown hereafter, the prosecutor’s explanation of

immunity was ambiguous and confusing and supported a

conclusion that the immunity offered was limited to testimonial

or “use” immunity and did not extend the full and complete

transactional immunity.

The prosecutor, an officer of the state, clearly had a duty to

explain the - immunity in a proper and simple way for the

petitioner, an uneducated layman, to understand just exactly

what was transpiring. .

As was stated in. Berger v. United States, 295 U. S. 78, 55

S.Ct. ty 79 L.Ed. 1314,

t

“The United States Attorney is the representative not of

an ordinary party to a controversy, but of a sovereignty

whose obligation to govern impartially is-as compelling as

its obligation to govern at all; and whose interest,

therefore, in a criminal prosecution is not going to show in

a case, but that justice shalt be done. As such, he isin a

; peculiar and very definite sense the servant of the law, the

two fold aim of which is that guilty shall not cocape or

innocent suffer. ....”; 88 of 295 U.S.

It alleged, the prosecutor, an attorney having assumed the

duty to inform the ‘petitioner what the so-called “immunity”

“consisted of the prosecutor had a duty to advise the petitioner

———————eorrectty- in Vitarettt v- Seaton, 359 US. 535, 3-b.Ed- 2d 1012;— aii —

79 S.Ct. 968 (1959) it was stated on page 539 of 359 U.S. that:

pe . since, however, the Secretary gratuitously ‘decided

to give a reason, and that.reason was national security, he

was obligated wa ee to the procedural standards he

has formulated...

> eae

ee

It would seem ‘therefore, since the-prosecutor followed a

course of conduct and a de facto rule as to advising the

petitioner as to immunity, that the prosecutor should have

explained immunity clearly, succinctly arid concretely and the

prosecution therefore should have been held to the fundamental

fairness of the law; thus, in Yellin v. United States, 374 U.S.

109, 10 L.Ed. (2) 778, 83 S.Ct. 1828 (1963) it was stated on:

page 124 of 374 US. that: |

“

e

. the ‘Committee prepared the ground work. for

prosecution. .... it is not too exacting to require that the

‘ Committee be equally meticulous in obeying its own

rules.” ‘

To supplant’ the Fifth Amendment right ef silence the

“immunity” must be as coextensive as the fundamental right.

See Counselman v. Hitchcock, 142 U.S..547,35 L.Ed. 11 10, 12

S.Ct. 195 (1892), :

The explanation of immunity in this case, by the prosecutor

was and is inexplicable. The prosecutor initially explained

‘immunity as forbidding a use of any of the compelled

' testimony sought from the petitioner, or any lead therefrom

(115). Then the prosecutor stated “in effect” that petitioner

couldn’t be “prosecuted because of anything you say” (1 16).

The expression “‘in effect”” was ambiguous and not explicit.

_____ Proceeding further, the prosecutor added that petitioner“ Rote

- must answer the questions, because there js no reason -you

cannot answer the questions at this time, since you cannot be

prosecuted for it. That means that what you are getting before

this'Grand Jury, you. are getting a bat. You are being walked

away from any possible prosecution, for anything that you say

before the Grand Jury cannot be used against you... .” (1 16),

see pages 6-7 , supra. ae

11

‘ The immunity thus explained was garbled and clearly

qualified the attempted grant af transactional immunity,

because the prosecutor concluded that the evidence cannot be

used against you... ”

Thus, the explanation of immunity as an amnesty from _

prosecution for answering was explained merely in terms of

“use” or testimonial immunity. Not only that, but in

attempting to. explain “transactional immunity” the

prosecution omitted and failed to explain that the petitioner

could not be prosecuted on the basis of any leads or any

matters that might. flow from any answer or evidence he would

give. In other words, that the petitioner was immunized from.

prosecution for any answers he gave that might relate to any

possible crime. See People v. Masiello, 28 N.Y. (2) 287: 321

N.Y.S. (2) 577; People v. Mulligan,29 N.Y. (2) 20; 323 N.Y.

(2) 681; People v. Tramunti, 29 N.Y. (2) 28, 323 N.Y.S. (2)

687. |

In effect, the language and explanation of the prosecutor, as.

to “immunity” constituted an absence of immunity justifying

the petitioner for relying on his privilege against

self-incrimination. As was stated in Stevens v. Marks, 383 U.S.

234, 15 L.Ed. (2) 724, 86 S.Ct. 788 at page 246 of 383 U.S.

that: *

“,.,. the State may not substitute for the privilege against

‘Self-incrimination an intricate scheme for conferring

immunity and thereafter hold in contempt those who fail

fully to perceive subtleties. A witness has, we think, a

constitutional right to stand on the privilege against

self-incrimination until it has been fairly demonstrated to

him that an immunity, as broad in scope as the privilege it

replaces, is available and applicable to him. . . “ye .

12

II

THE PETITIONER WAS ENTITLED TO COUNSEL

WHEN HE APPEARED BEFORE THE GRAND JURY

AND PETITIONER SHOULD HAVE BEEN AFFORDED

TIME TO PROCURE COUNSEL: — ;

The petitioner was salad by counsel when he

"appeared before ‘and submitted to the interrogation by the

. Grand Jury. The right to counsel is based on the Sixth and_

Fourteenth Amendments to the Federal Constitution. It is put,

that petitioner was not in contempt because he desired counsel.

and he ‘was not given an opportunity to get counsel and was —

completely ignorant of the proceedings. This was compounded

by the explanation of the so-called immunity given by the

trained prosecutor. ;

The function of counsel would be two-fold. Counsel could

have explained the issue of the irrelevancy-of questions: counsel -———

could have also explored the issue of immunity; see People v.

Tanniello, 21 N.Y. (2) 418: 288 N.Y.S. (2) 462, at pages

423-425 of 21 N.Y. (2).

: rs

The facts of this case show that the petitioner was ignorant

having only attained the sixth grade of school (201). Ironically,

the Grand Jury assistant foreman who testified at the trial did

not know what transactional immunity was (138),

However, this petitioner stands convicted for contempt -

because he persisted in refusing to answer the question when -

there was an open question as to the extent of the immunity.

~ More was therefore demanded from the petitioner than from

the Grand Jury foreman who testified for the prosecution. ~

_The petitioner made known to the District Attorney. that he

3

desired counsel (202-205).

It would appear that the fundamental right to counsel has

been considered by this Court from-the aspect of the utility of

_counsel and a relevancy of a lawyer’s advice.

In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. (2) 694, 86

S.Ct. 1602 (1966), it was held that the right to counsel is.

‘fundamental at a-time when an accused is subjected to custodial

questioning. In U.S. v. Wade, 388 U.S, 218,-18 L.Ed. (2) 1149,

87 S.Ct. 1926 (1967), it was held that an accused has a right to

counsel at a custodial pre-trial line-up conducted for identifi-

cation. Counsel it was held would insure the fairness of the

line-up.

Similarly; in this case, counsel would have been of great aid

to the petitioner in explaining what proper immunity consisted

of and. whether the sale vases’ had a: iatadis to refuse to answer..

Instead, the Courts below held that the petitioner knew his

. rights and didn’t need a lawyer: It seems difficult to understand

how the assertion of one constitutional right by a person can

work a forfeiture of another constitutional right. ‘Moreover, ©

_ there is a presumption against a waiver of a fundamental right.

See Johnson v. Zerbst, 304 wi 458, 82.L.Ed. 1461, 58 S.Ct.

1019-(1938).

14

CONCLUSION

_ FOR THE ABOVE STATED REASONS A WRIT OF

CERTIORAI SHOULD ISSUE TO REVIEW THE JUDG-

MENT AND OPINION OF THE COURT OF APPEALS OF

THE STATE OF NEW YORK.

Respectfully submitted,

Arnold E. Wallach

Atjtomey for Petstioner

Dated: April 6, 1972

15

, _ APPENDIX A

STATE OF NEW YORK

IN COURT OF 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 Twelfth

aye Gommy AD. 1972.

PRESENT, HON. STANLEY H. FULD, Chief Judge, —

r Mo. No. 5°

The People &c., :

. : Respondent,

Samuel Cavalieri,

’ Appellant.

A motion for reargument and/or to amend the remittitur in

the above cause to this Court having heretofore been made

upon the part of the appellant herein and papers having been

. Submitted thereon and due deliberation whe béen thereupon

had, it is

ORDERED, that the said motion be and the same hereby is

denied insofar as it seeks reargument, and it is

ORDERED, that the said motion be and the same hereby is

granted insofar as it seeks amendment of the remittitur; the

return of the remittitur is requested and, when returned, it will

be amended by adding thereto the following:

16

Appendix A

Upon the appeal hierein there was presented and necessarily

passed upon a question under the Constitution of the United

States, viz.: Whether the rights of the defendant under the ©

fifth, sixth and fourteenth amendments were denied. The

Court of Appeals held that there was no such denial of

defendant's constitutional rights.

AND the Sypreme Court, Bronx County, hereby is requested

. to direct its Clerk to return said remittitur to this Court for

amendment accordingly.

A copy

s/Kimball

7: Deputy Clerk

-_

17

APPENDIX B

Decision of Appellate Division

Harold A. Stevens, P.J.,

Louis J. Capozzoli,

Arthur Markewich,

Theodore R. Kupferman,

Aron Steuer; JJ. —

Appeal from a judgment of the Supreme Court of Bronx

County (David Ross, J.), without a jury, rendered June 26,

1970, convicting defendant of Criminal Contempt [Penal Law

§ 215.50] and sentencing him to serve a term of one year in the

New York City Correctional Institution for Men.

Arnold E. Wallach of counsel (Joseph Panzer, attorney ) for

appellant.

Daniel J. Sullivan of counsel (Burton B. Roberts, District

attorney ) for respondent. : . |

STEVENS, P.J.:

‘Even though immunity was conferred by the Grand Jury and

the meaning thereof explained in simple language, there was a

continuing, considered and contumacious refusal by defendant

to answer questions which we find to be clearly relevant to the

stated purpose of the inquiry. The defendant was informed that

no testimony, truthfully given, coul-. be used against him and,

further, any lead obtained from ech testimony that might hurt

him “in some criminal way” could not be so used .-Moreover, it

was made clear to the defendant that he was not the target of

the investigation. Immunity when conferred by the Grand Jury

includes both testimonial and transactional immunity (cf. Code

of Criminal Procedure § 619-c; Gold v. Menna, 25 N.Y. 2d 475).

18

7 Appendix ie

From the defendant’s own testimony he understood that he was

being subpoenaed to testify as a witness before the Grand Jury.

Since he received several subpoenas and appeared pursuant

thereto prior to the date of actual testimony, there was ample |

opportunity to consult with counsel had defendant so desired.

Nor did he, on the occasion of his actual appearance before the

Grand Jury, ask to be excused from the Grand Jury room. in

order to consult counsel. Indeed, if, as defendant asserts, he did

not at any time confer with counsel prior to his appearance,

_defendant was remarkably alert and precise in asserting. his

constitutional privilege against self-incrimination. Defendant

admitted that he understood at least certain of the questions,

which he ‘refused to answer. Immunity having been properly

conferred, defendant had no right to remain silent (Gold v.

Menna, supra). Nor do we find the sentence of one year to be

excessive.

The judgment entered June 26, 1970, should be modified on —

the law, to the extent of holding that the refusal of defendant

to answer the questions contained in the multiple count

indictment constituted, in effect, a single contempt with a

maximum sentence of one year since all referred to a single area

_of inquiry, and it became clear, at the outset, that defendant

would refuse to answer any questions (cf. People v. Chestnut,

296 N.Y 2d 481, 491-492). As so modified, the judgment

appealed from should otherwise be affirmed.

=

All — except Capozzoli, J., who dissents in a dissenting

opinion. |

Appendix B

CAPOZZOLI, J. (DISSENTING):—

This is an appeal from a judgment convicting the defendant

of criminal contempt (Penal Law § 215.50), after a non-jury

trial. The conviction is based on a refusal of the defendant to

answer questions before a Bronx County Grand Jury. —

The Grand Jury was engaged in an investigation of “a

_conspiracy to violate the gambling laws, loan sharking, taking of -

money illegally and putting them into legitimate business in

Bronx County”. (R-115). The District Attorney, after having

informed the defendant of the purpose of the investigation by

the Grand Jury, addressed the defendant, in the presence of the

Grand Jury, as follows:-

“I tell you now, the foreman of the Grand Jury has told me

to tell you. that the Grand Jury has voted to give you. —

immunity. Now, when the Grand Jury votes to give you

immunity, it means if you are directed to answer questions

by the foreman, of the Grand Jury, and since you have been

granted immunity, anything you say under oath, and you

have been sworn as a witness before the Grand Jury, cannot

[sic] be used in evidence against you. It also means if you say

anything that we can get a lead from, that may hurt you in

some criminal way, that cannot be used in evidence against

you.” : fy

After having made this statement to the defendant the

District Attorney followed it up with the following:—

“So that in effect, you cannot be prosecuted because of

anything you say.” (R-116).

y

20

Appendix B

‘Later, on the same page, the District Attorney further said:— _

“By that I mean, you must answer questions, because there is

no reason you cannot answer the questions at this time, since

you cannot be prosecuted for it. * * * You are being walked

away from any possible prosecution for anything that you

say before this Grand Jury cannot be used against you.”

Following the last quoted statement of the District Attor-

ney, the defendant refused to answer all questions put to him on

the ground that the answers would tend to incriminate him. The

majority holds that immunity was conferred by the Grand Jury

and that the failure of the defendant to answer nena

thereafter was contumacious and contemptuous.

It is, of course, well settled that both Amendment V of the

U.S. Constitution and New York State Constitution, Article I,

§6, protect one from being compelled to be a witness against

himself. The New York statute, which bears upon tnis subject,

was enacted in 1967 and is to be found in the Code of Criminal

Procedure, § 619-c, and is Guived from nani of the former ,

Penal Law.

It prescribes the type of immunity. that must be granted to a

witness before he may be compelled tc surrender his constitu-

tional privilege against self incrimination and it also specifically

designates those who are authorized to grant immunity. What is

extremely important is the fact that it directs “* * * 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, * * *”’. (Code

of Criminal Procedure § 619-c, subd. 2.)

21

Appendix B

‘It is to be noted that there is a very important distinction

between transactional immunity and testimonial immunity. The

latter, sometimes known as “‘use’”’ immunity, protects oné from

using the testimony itself in any subsequent criminal pro-

ceeding. On the other hand, “transactional” immunity, under

the last quoted section, is far more reaching and gives “‘absolute .

immunity . against . future prosecution for the offence tc which ~

the question relates”. (Counselman v. Hitehcock, 142 U.S. 547,

586.)

It has been repeatedly held that the immunity is not

adequate if it does no more than assure that the testimony will

not be used in evidence against one in a criminal prosecution.

To force disclosure the immunity must be so broad that the risk

of prosecution is ended altogether. Nor is he required to show,

in order to make his privilege available, that the testimony

which he declines to give is certain to subject him to

prosecution. (Matter of Doyle, 257 N.Y. 244.)

In the last cited case, at pp. 250, 251, Chief Judge Cardozo.

‘said :—

“The appellant is, therefore, privileged to refuse to answer

questions that may tend to implicate him in a crime, unless

by some act of amnesty or indemnity, or some valid

resolution equivalent thereto, he has been relieved from the

risk of prosecution for any felony or misdemeanor that his

testimony: may reveal. The immunity is-not adequate’ if it

does no more than assure him that the testimony coming

from his lips will not be read in evidence against him upon a_

criminal prosecution. The clues thereby developed may still

supply the links whereby a chain of guilt can be forged from

the testimony of others. To force disclosure from unwilling

22

Appendix B

lips, the immunity must be so broad that the risk of

prosecution is ended altogether. (Citing cases.)’’. ;

" Again, at p. 257, the Court said:—

“x * * The immunity must. be as broad as the privilege

destroyed.”

It therefore becomes important to consider what was said £0 -

this defendant on the basis on which the prosecution arid the

majority are convinced that proper immunity was conferred. It

must clearly appear that the witness is being offered transac-

tional immunity, as distinguished from testimonial or use

immunity. As was said by the Court in People v. DeFeo, 308

N.Y. 595, at p. 600:— aia

“The validity of the proceeding depends on whether the

immunity conferred at the December 4th hearing was

complete and coextensive with his constitutional protection

against self incrimination as found by the court below or, as

claimed by the defendant, was qualified-and restricted by the

limitation mentioned by the foreman of the Grand Jury. In

other words, was the immunity granted as broad as the

peril?”

As has been indicated, the District Attorney, in commun-

icating to the defendant the instructions of the Grand Jury

foreman that the Grand Jury voted to give him immunity, said

“if you are directed to answer questions by the foreman of the

Grand Jury * * * anything you say under oath * * cannot be

used in evidence against you. It also means if you say anything -

that we can get a lead from, that may hurt you im some criminal

way, that cannot be used in evidence against you.” It is true |

23

Appendix B

that, following the last quoted language, the District Attorney

said: “So that in effect, you cannot be prosecuted because of

anything you say”. But this was his interpretation of what the

Grand Jury foreman had offered to the defendant. What had

been offered was not complete transactional immunity, but

assurance that nothing the witness would say under oath would

be used in evidence against him. There was not even a reference

to the particular section involved in this proceeding, viz: 619-c

of the Code of Criminal Procedure. The least that can be said

about the language used by the District Attorney is that it was

confusing and equivocal.

It is, of Course, true that the Grand Jury proceeding was not

a prosecution of the witness, but, rather, a general investigation.

Hence, it has been held that the witness has no right. to be

represented by counsel in the technical sense. (People v.

Iannello, 21 N.Y. 2d 418.) However, under the circumstances of

this case, the least that -should have been done with this

defendant was to arraign him before a Judge who might have

given him the proper advice as to the type of immunity. to

which he was entitled. While the defendant testified that he

asked for counsel, even if he did not do so, the proper and fair

thing to have done was to see that he obtained counsel to be

properly advised. As the Court said in People v. Iannello, “—,

at p. 424:—

“* * * in light of current recognition of the importance of

counsel in providing effective notice of rights, it is difficult to

maintain that the witness is not entitled to the advice of his

lawyer. (cf. Miranda v. Arizona, 384.U.S. 436, 475, Escobedo

v. Illinois, 378 U.S. 478, 486; People v. Donovan, 13 N.Y. 2d

148, 153). |

** * *

24

Appendix B

“* * * The legal rights which may be critically affected

before the Grand Jury, and concerning which the witness

should be entitled to consult with his lawyer, are several.

First, the witness may be put in a position of determining

whether to assert or waive his privilege against self incrimin-

ation. * * * The witness who is not a target of the inquiry

faces an even more critical decision for, unless he claims his

privilege and thereby invokes immunity, his statements can

be > used against him substantively. Faced with a confusing

variety, of rules concerning the existence and scope of his

privileges, a witness should not be required to make these

_choices unaided 7” his lawyer.”

_ It is true that this defendant had received several Grand a

subpoenas for prior days, but he was never brought into the

Grand Jury room until March 7th, 1969, the day when the

alleged contempt took place. That is the day that he was

offered this so-called immunity which is now under attack. That

was the time when he was in need of legal advice as he did not

know what his rights were after having been addressed by the

* District Attorney on the subject of immunity. In such a highly

technical situation, where he had to understand ‘the difference

between transactional immunity, as distinguished from tes-

timonial immunity, it is too much to expect that this defendant —

should have made a decision without the advice of counsel. In

fact, the foreman of the Grand Jury, when asked if he knew the

_ meaning of transactional immunity, answered truthfully and to

the point “‘no”’. (F-138)

_ Since the complete immunity contemplated by § 619-c was

not offered to this defendant by the Grand Jury, he was

justified in continuing to assert his privilege. :

25

Appendix B

For the reasons stated, I would reverse the judgment of

conviction and dismiss the cnchewment.

APPENDIX C

Judgme.t of Appellate Division

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE Di VISION—FIRST DEPARTMENT

PRESENT— .

Hon. Harold A. Stevens, Presiding Justice,

Louis J. Capozzoli,

Arthur Markewich,

Theodore R. Kupferman,

Aron Steuer, Justices.

An appeal having been taken to this Court by the defendant-

appellant froma judgment of the Supreme Court, Bronx

County (Ross, J.), rendered on June 26, 1970, convicting

defendant, after trial without a jury, of Criminal Contempt, and

said appeal having been argued by Mr. Arnold E. Wallach of

counsel for the appellant, and by Mr. Daniel J. Sullivan of

counsel for the respondent: and due deliberation having been

had thereon, and upon the Opinion of this Court filed herein,

It is'ordered that the judgment so appealed from be and the

same is hereby modified, on the law, to the extent of holding

that the refusal of defendant to answer the questions contained

in the multiple count indictment constituted, in effect, a single

contempt with a maximum sentence of one year. As #0

modified, the judgment is affirmed. [One of the Justices

dissents in an Opinion. }

HYMAN W. GAMSO

Entered April 15, 1971 -

27

APPENDIX D

Order and Opinion of Supreme Court, Bronx County _

At a Special Term, Part 1, of

the Supreme Court of the State

of New York, held in and for

the County of Bronx, at. the

- Courthouse, 161st Street.and °

Grand Concourse, Bronx, New

York, on the 23rd day of July,

1970. ;

PRESENT:

‘The Hon, Isidor Dollinger,

PEOPLE OF THE STATE OF NEW YORK

«against

SAMUEL CAVALIERI,

Defendant.

The defendant above named having been convicted of

violation of Section 215.50 of the Penal Law Criminal

Contempt in the County of Bronx, State of New York, o> the

26th day of June, 1970, and said defendant having received a

sentence of one year in the New York City Correctional

28

Appendix D

Institution for Men and said defendant having appealed from

said judgment of conviction and sent to the Appellate Division,

First Judicial Department, and having moved this Court at

Special Term, Part 1, for a certificate that in its opinion there is

a reasonable doubt that the judgment of conviction and

sentence against him should stand and for an order admitting

the said defendant SAMUEL CAVALIERI to bail pending the

hearing and determination of his appeal and said motion having

duly come on in Special Term, Part I, of this Court on the 9th

day of July, 1970, and the motion having been heard by the

Court

Now, upon reading and filing the Notice of Motion dated the

29th day of June, 1970, the affidavit of Joseph Panzer duly

sworn to the 29th day of June, 1970, and upon all the

proceedings heretofore had herein and with due proof of service

of the application for a Certificate of Reasonable Doubt upon

the District Attorney of Bronx County all in support of said

application and after hearing Joseph Panzer, attorney for

defendant, in support of said application and Harvey Kaminsky,

Assistant District Attorney, Burton Roberts, District Attorney,

in opposition and due deliberation having been had and upon

the filing of the decision of the Court, it is

Ordered that the motion for a Certificate of Reasonable

Doubt whether the judgment convicting the defendant of the

crime of a violation of Section 215.50 Criminal Contempt

should stand by reason of the fact that there are arguable

questions of law for review by the Appellate Court and it is

further

Ordered that the said defendant SAMUEL CAVALIERI be

admitted to bail during the pending of the appeal herein upon

bald

29

Appendix D-

the furnishing of a proper bond or undertaking in the sum of

$1,000.00.

ENTER:

s/ ISIDOR DOLLINGER

J.S.C. one

30

APPENDIX E

Order of Court of Appeals Entered Nov. 11, 1970

COURT OF APPEALS

STATE OF NEW YORK, ss:

PLEAS in the Court of Appeals, held at Court of Appeals

Hall, in*the City of Albany, on the 17th day of November in the

year of our Lord one thousand nine hundred and seventy-one,

before the Judges of said Court.

WITNESS,

The HON. STANLEY H. FULD,

Chief Judge, Presiding.

RAYMOND J. CANNON, Clerk.

Remittitur November 17, 1971.

BE IT REMEMBERED, That on the 21st day of June in the

year of our Lord one thousand nine hundred and seventy-one,

Samuel Cavalieri, the appellant in this cause, came here unto the

Court of Appeals, by Joseph Panzer, his attorney —, and filed in

the said Court a Notice of Appeal and return thereto from the

order of the Appellate Division of the Supreme Court in and for

the First Judicial Department. And The People &c., the

respondent — in said cause, afterwards appeared in said Court of

Appeals by Burton B. Roberts, District Attorney. >

Which said Notice of Appeal and the return thereto, filed as

aforesaid, are hereunto annexed. \

ws Re Fes A ALC ME lly ED:

31. a

| -

wv

Appendix E

WHEREUPON, The said Court of Appeals having heard this

cause argued by Mr. Arnold E. Wallach, of counsel for the

appellant —, and by Mr. Albert A. Capellini, of counsel for the

respondent—, and after due deliberation had thereon, did order

and adjudge that the order of the Appellate Division of the

Supreme Court appealed from herein be and the same hereby is

And thereafter a motion for reargument and/or to amend the

remittitur having been submitted, this Court on January 12,

1972, having denied the motion as to reargument aid granted

the motion as to amendment of the remittitur, this remittitur is

hereby amended by adding thereto the following: Upon the

appeal herein there was presented and necessarily passed upon a

question under the Constitution of the United States, viz.:

Whether the rights of the defendant under the Fifth, Sixth and

Fourteenth Amendments were denied. The Court of Appeals

held that there was no such denial of defendant's constitutional

rights.

And it was also further ordered, that the records aforesaid,

and the proceedings in this Court, be remitted to the Supreme

Court of the State of New York, there to be proceeded upon

according to law.

Therefore, it is considered that the said order be affirmed, as

aforesaid:

32

. Appendix-E

And hereupon, as well the Notice of Appeal and return

thereto aforesaid as the judgment of the Court of Appeals

aforesaid, by it given in the premises, are by the said Court of °

Appeals remitted into the Supreme Court of the State of New

York before the Justices thereof, according to the form of the

statute in such case made and provided, to be enforced

according to law, and which record now remains in the said

Supreme Court, before the Justices thereof, &c.

s/ Raymond J. Cannon

Clerk of the Court of *>peals

of the State of New York.

COURT OF APPEALS, CLERK’S OFFICE, —

Albany, November 17, 1971.

{Seal}

he I HEREBY CERTIFY, that the

preceding record contains a cor-

rect transcript of the proceedings

in said cause in the Court of

Appeals, with the papers or-

iginally filed therein, attached

thereto.

Raymond J. Cannon

Clerk.