Opposition Briefm — Bogatin v. New York

In The Supreme Court, U. &

SUPREME COURT OF THE UNITED states ~ / | E D

October Term, 1976 MAR 12 1976

No. 75-1071

MURRAY BOGATIN,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for Writ of Certorari to the

State of New York Court of Appeals

BRIEF FOR THE PEOPLE OF THE STATE OF NEW

YORK IN OPPOSITION

HENRY F. O'BRIEN

District Attorney

Suffolk County

Criminal Courts Building

Center Drive South

Riverhead, New York 11901

(516) 727-1440

CHARLES M. NEWELL

Assistant District Attorney

of Counsel

’ TABLE OF CONTENTS

Page

Introduction------------------------- 1

Statement of Facts------------------- 2

Opinion Below------------------------ 21

Jurisdiction------------------------- 21

Questions Presented------------------ 22

Statutes Involved-------------------- 23

Argument

Point One - The petition for

a writ of certiorari is im-

properly addressed to the New

York State Court of Appeals---- 24

Point Two - The indictment

clearly and specifically

states a crime under New

York Law and the claim

that there was insuffic-

ient evidence before the

Grand Jury to support

this charge does not in-

volve a substantial Fed-

eral question. Therefore,

no jurisdictional defect

is alleged which survived

the Petitioner's voluntary

plea of guilty---------------- 25

Point Three - There is no ab-

solute Federal constitut-

ional right to the assist-

ance of counsel during an

appearance before the Grand

a ieee Pe eee

VavenAS OPA ABELIAN ARE LIEN HO TR

ii

————————————— ere err yy

TABLE OF AUTHORITIES

Cases: Page

Blackledge v. Perry, 417 U.S.21 (1974)---

Boyd v. Dutton, 405 U.S.1 (1972)---------

Coleman v. Alabama, 399 U.S.387 (1970)---

Hammerstein v. Superior Court of

California, 341 U.S. 491 (1951)----

Hurtardo v. California, 110 U.S. 516

(1884)-------

In Re Groban, 352 U.S. 330 (1957)--------

In Re Grumbles, 453 F. 2d 119 (CA, 3rd

Cir., 1971),cert. denied 406 U.S.932-

Lawn v. United States, 355 U.S.339(1958)--

McMann v. Richardson,397 U.S.759 (1970)---

Mellon v. O'Neil, 275 U.S.212 (1927)------

Mempha v. Rhay, 389 U.S.128 (1967)--------

Miranda v. Arizona, 384 U.S.436-----------

Moore v. Missouri, 159 U.S. 673 (1895)-----

Morford v. Hocker, 394 F.2d 169 (CA, 9th

Cir.) cert. denied 392 U.S.944-------

People v. Ianniello, 21 N.Y.2d 418 (1968)

cert denied 392 U.S.827--------------

Randall v. Tippecanoe County, 211 U.S. 252

(1923) ------------------------------

27 ,30,3

eR ee ey Ma

TABLE OF AUTHORITIES (Cont'd)

Case: Page

Re Robertson, 156 U.S. 183 (1895)-------- 28

Santobello v. New York, 404 U.S. 257 (1971)-- 29

Tollett v. Henderson, 411 U.S. 258 (1973)---- 29

United States ex.rel. Buonoraba v.

Commissioner of Correction, City

of New York, 316 V. Supp. 556

(S.D.N.Y., 1970)----------------------- 31-32

United States v. Costello, 350 U.S.359 (1956) 28

United States v. Fitch, 472 F. 2d 548

(CA, 9th Cir., 1973) cert. denied

412 U.S. 954--------------------------- 30

United States v. Wade, 388 U.S.218 (1967)--- 29

Western Union Telegraph Co. v. Priester,

276 U.S. 252 (1928)-------------------- 24

Statutes:

28 U.S.C. Section 1257 ---------------- 24

39 McKinney's Consolidated Laws of

New York (Penal Law) Section 215.51-- 26

66 McKinney's Consolidated Laws of

New York (Former Code of Criminal

Procedure) Section 619-C(3'---------- 26,31

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 75-1071

MURRAY BOGATIN,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of New York

BRIEF FOR THE PEOPLE OF THE STATE OF

NEW YORK IN OPPOSITION

INTRODUCTION

This is a brief in behalf of Respondent

in opposition to a petition for a writ of certorari

to the Court of Appeals of the State of New York.

2

STATEMENT OF FACTS

On July 19, 1971, the extended June 1970

Organized Crime Grand Jury met to inquire into the

commission of the crimes of Consptracy to Commit

Criminal Usury, Criminal Usury, and Conspiracy to

Commit Extortion.

Prior to July 19th, the Suffolk County

District Attorney's Office conducted an investigat-

ion into loansharking that lasted approximately one

year.

During the course of its investigation,

the District Attorney's Office received information

that Murray Bogatin, Esq., an attorney whose

practice is located in Suffolk County, was a

victim of the loansharking operation.

Approximately one week prior to July 19th

Murray Bogatin appeared at the District Attorney's

Office. He was told that an investigation conduct-

ed by the Rackets Bureau had revealed that he and

other individuals were the victims of an usurious

loansharking operation. He was told the amount of

his loan, the amount of "vig" he was paying, how

3

much he was paying each week, how long he had

been paying, and his designated payment day. He

was told that he was not a target of the investigat

ion which was concerned only with the loansharks.

He was also told that he and other victims would

be subpoenaed to testify before a Grand Jury re-

garding this loanshark operation.

Bogatin asked for time to consult with

an attorney and, even though he is an experienced

criminal lawyer and one who frequently has repre-

sented defendants in criminal usury cases, he was

given an opportunity to consult with counsel. On

July 19th, Murray Bogatin, having been subpoenaed

to appear before the Grand Jury, appeared and was

sworn as a witness. He answered a few introductory

questions and then declined to answer unless given

immunity. It was recommended that the Grand Jury

confer immunity on Bogatin, and they thereafter

voted and conferred immunity on him. It was then

explained to Bogatin what effect on him the confer-

ral of immunity had, and the proceedings continued.

4

Thereafter, for approximately five

hours Murray Bogatin, Esq., executed a plan to

frustrate the legitimate inquiry of the Grand

Jury. He had to be taken before a judge of the

County Court on three separate occasions and on

the third occasion he was ordered by Suffolk

County Court Judge Lundberg to show cause why he

should not summarily be held in contempt.

Additionally, the Grand Jurors voted

to indict Bogatin for Contempt and Perjury as a

result of his conduct and testimony before them.

After immunity was conferred upon Bogatin, he

was asked whether or not he was in need of money

in January, 1971. His response was that the

question was outside the scope of the investigat-

ion as it pertained to him. He persistéd in this

kind of response and was told by the Prosecutor

the relevance of the question, to wit: that the

answer would show that Bogatin solicited a

certain individual for a loan. Still, Bogatin

persisted in refusing to answer.

5

Bogatin was then asked if he ever

approached Bill Murray and told him that he needed

three thousand dollars. Bogatin objected to the

form of the question. He was then questioned as

to whether he asked Bill Murray for three thousand

dollars, and he declined to answer on the basis of

a confidential relationship with Murray. When

asked whether he represented Murray before the

Grand Jury, he answered that he did not currently

represent Murray.

Thereafter, he persisted in claiming that

there was a priviliged relationship between him

and Murray and, when he was directed by the Fore-

man of the Grand Jury to answer the question, he

said he could not answer the question the way it

was worded.

The questioning then turned to Bogatin's

knowledge of Joe Lombardi, One of the alleged loan-

sharks, and Bogatin refused to answer on the basis

of a priviliged relationship with Lombardi. When

asked the basis of his claim, he stated that he

had discussed personal legal matters with Lombardi

6

and had represented member of his family in legal

matters. He was asked if he presently represent-

ed Lombardi on anything and the answer was no.

He was then told that there was no valid claim of

privilege since he did not represent Lombardi with

regard to the Grand Jury investigation and, even

if he did, there is no privilige where a crime is

committed.

Additionally, Bogatin was told that the

Grand Jury had been hearing evidence concerning th

crime of Criminal Usury in which Lombardi and

others had been named as participants, and that

there was evidence adduced before the Grand Jury

that he (Bogatin) took a usurious loan with

Lombardi, Tom Sala and Frank Andosca, and that

Tom Sala had made collections from him.

Thereafter, he was questioned about the

place where he allegedly obtained the loan, a bar

located in Queens, New York, known as the Cloud

Room. Bogatin was aked if he ever met a man named

Tommy in the Cloud Room in 1971. His response was

to ask where the Cloud Room was located, even

though, as his later testimony indicated, he

knew its location. When told that the Cloud

Room was in Queens, he refused to answer the

question, stating that it was improper.

He was directed by the Foreman to answer

the question and he refused, saying the inquiry was

without the jurisdiction of the Grand Jury. The

Grand Jury was then advised by the Prosecutor

that if a crime is committed partly in one county

and partly in another, or if a conspiracy crosses

county lines, then either county has jurisdiction.

The Prosecutor also restated the purpose of the

inquiry to Bogatin (R., pp. 86,87).

Thereafter, Bogatin was aked if he paid

one hundred twenty ($120) dollars a week interest

on a three thousand dollar loan from January of

1971. He responded that the Prosecutor was pre-

supposing a fact not in evidence yet, that a loan

was made, and he therefore could not answer the

question.

He was asked if he made one hundred

twenty ($120) dollars weekly payments to Tom Sala

or Joe Lombardi every Sunday in the County of

f a AT CBS PETRELLI ESV CEL SIEGE IOD LEE E SEL IQOL ELL LE

.*

‘

—— =

Suffolk from January of 1971 into July of 1971,

and he persisted in refusing to answer on the

grounds of "facts not in evidence." He continued

in his refusal to answer although ordered by the

Foreman to do so.

The Prosecutor then inquired of Bogatin

whether he received two thousand dollars in the

Cloud Room in Queens County in January of 1971,

from Frank Andosca and Tom Sala, and he refused

to answer on the ground that the question referred

to a transaction that took place outside of

Suffolk County. Though directed by the Foreman

to answer, he persisted in his refusal.

Bogatin was then asked questions pertain-

ing to the identity of Tom Sala, a man who alleged-

ly was face to face with him almost every week for

five or six months and he objected to the form of

the question and indicated that he knew several

Tommies. He was shown a photo of Tom Sala and

he stated it could be him but he wasn't sure.

When asked whether he was face to face with Sala

on numerous occasions he said if that was a picture

he tae ») LENE LB OEE ER HL. FAB PLL MILE Se Sor asi

ELSES PPD OER a Be eS EE EY .

.

' of the Tom he knew, he had seen hin on several

occasions.

Bogatin was aked whether he made pay-

ments of $120 on various Sundays to the Tom he

knows and he refused to answer, saying that the

question was improperly prased. He was ordered

to answer by the Foreman, but nevertheless persist-

ed in his refusal on the ground that the Prosecutor

was assuming facts not in evidence before the Grand

Jury.

Bogatin was asked whether he received

one thousand dollars from Bill Murray in January

of 1971, and his answer was to question what the

Prosecutor meant by the word receive. Therafter,

he admitted that he received around eight hundred

dollars from Bill Murray in January of 1971, but,

when asked what it was for, he refused to answer,

stating that it had nothing to do with any trans-

action that took place in Suffolk County.

Bogatin was then asked if the one

thousand dollars was part of the three thousand

dollar loan he took at one hundred twenty dollars

per week interest. He first stated that the

ae, 10

Prosecutor was assuming facts not in evidence.

When pressed for an answer, he said all he knew

was that Murray gave him approximately eight hundred

dollars in January.

The questioning then turned to whether

Bogatin made one hundred twenty dollar weekly pay-

ments in Suffolk County to Tom Sala or Joe Lombardi

on consecutive Sundays from February into July and

he refused to answer on the ground that the facts

were being assumed which were not in evidence. He

persisted in his refusal to answer even though he

was directed to answer five times by the Foreman of

the Grand Jury.

Thereafter, the Prosecutor asked Bogatin

if he ever met with anybody in Suffolk County and

tell them that he paid more than three thousand

dollars interest on a three thousand dollar loan

and still owed the principal. He said the question

was too broad to answer. When ordered by the Fore-

man to answer, he asked to whom or where he

supposedly made such a statement. Again he was

requested to answer, and he reverted to his old

dodge that the question assumed facts not in

evidence.

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Bogatin was asked if he knew a man named

Frank Andosca and he said he didn't recognize the

name. He was shown a photograph of Frank Andosca

and he stated that he didn't recognize the man in

the photograph. He was asked if he ever met Frank

Andosca in the Cloud Room and he refused to answer

because he was being asked about a location out-

side Suffolk County. He was instructed by the

Foreman to answer, and he refused.

The questioning returned to whether

Bogatin met with Bill Murray in the County of Suffolk

in May of 1971 and agreed that he had paid weekiy

vig payments of $120 on a three thousand dollar

loan and still owed the entire principal. Bogatin

responded that the question was beyond comprehension.

When pressed for an answer, he said that the question

was not worded properly. He was asked what he didn't

understand about the question and his answer was

that he was asked about four different alternatives.

He was again asked what he didn't understand and

his answers to this and the next series of questions

12

were as follows (R., pp. 105-107):

Q. What don't you understand about the

question? Let's take it, you tell me what you

don't understand about it. A. The first part

of the question did I meet with Mr. Murray during

the month of May.

Q. I didn't ask you whether you met him at

a cocktail party. I asked whether you met him

and agreed- A. Agreed what?

Q. That you had paid more than three thousand

dollars in interest on a three thousand dollar loan

and still owed the entire principal. A. Agreed

to whom?

Q. You agreed with Mr. Murray. A. When and

where?

Q. In the County of Suffolk? A. When?

Q. I asked you whether you agreed to that in

the County of Suffolk in May? A. Look, I know

Mr. Murray very well, I have had many conversations

with Mr. Murray.

Q. Did you do it on May 16, 1971, one of your

Sundays? A. I had many conversations with Mr.

Murray.

Q. Now you know when and where on a Sunday,

May 16, 1971 what is your next question? A. I

have seen him on a few Sundays during May, it may

have been May 16th that I did see him, I am not

denying having seen him on May 16th.

Q. What about the three thousand interest on

the three thousand dollar loan and still owing the

principle. A. Well, again you are assuming facts

that haven't been established as a usurious loan.

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13

Q. I am asking you whether you said that to

him? A. I have had conversations with Mr. Murray

many, many times about money.

Q. I am asking about that question and I am

not asking about conversations many times, I want

to know about this three thousand dollar interest on

a three thousand dollar loan and still owing the

three thousand dollar principle. A. I have had

conversations with Mr. Murray I do not recall the

contents specifically of any one conversation, I

have had conversations in May, I may well have had

a conversation on May 16the with him, I don't re-

call saying as precise words or the substance of

the words that you used.

Q. Did you agree that you owed three thousand

dollars? A. I agreed to nothing.

Q. You agreed to nothing. A. On any of the

conversations you are talking about.

Mr. Bogatin was then asked a series of

questions pertaining to going with Bill Murray into

Queens County in January of 1971, meeting with Tom

Sala and Frank Andosca and obtaining a three thousand

dollar loan at a usurious interest rate. He de-

clined to answer all the questions using the spur-

ious legal argument that the transactions all took

place outside of Suffolk County and therefore the

Grand Jury had no right to inquire into these

matters.

Thereafter, the Prosecutor inquired

« >Ppy BOUND CLOSE TO EDGE

14

whether Bogatin received a thousand dollars in

KEIN “|

Suffolk County subsequent to this meeting in Queens

and if he made $120 weekly interest payments in

Suffolk County. He refused to answer these quest-

ions, though directed by the Foreman to do so, on

the ground that the Grand Jury was assuming facts

not in evidence.

It was at this point that Bogatin was

taken before Judge Lundberg for the first time.

The judge, after hearing Bogatin's testimony read

back by the Grand Jury stenographer, directed

Bogatin to answer all questions relating to: what

transpired in Queens County at the Cloud Room, the

payments of any money by Bogatin, and the balance

of money outstanding.

Thereafter, the questioning of Bogatin re-

sumed. He was asked if he had a conversation with

en Bill Murray in January of 1971 in which he mention-

g ed needing three thousand dollars, and he answered

g

that it was possible.

Bogatin stated that he did go with Bill

Murray into the Cloud Room in January of 1971 where

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15

he met two men. However, he did not remember

their names except that the name of Tom stuck in

his memory. He said that, even though he went

there to meet with these men to obtain three

thousand dollars, he never asked for or discussed

money with them.

The Prosecutor inquired whether Bogatin

was asked to sign a promissory note and he answer-

ed that he remembered a promissory note being ment-

ioned, but if he signed one he had forgotten about

it. When pressed to given a responsive answer,

he stated that he didn't think he signed a promiss-

ory note and if he did, it escaped his memory.

Thereafter, he said he may have signed a note, but

he had no recollection of it, and if he were shown

the note with his signature, he might remember.

Bogatin was thereafter asked what interest

he agreed to pay on the loan and his answers amount-

ed to a denial of ever discussing interest with any-

one except that Bill Murray at some time told him

if he paid back $120 per week everything would be

_ CU eee ere Snes

LG Oa i un

16

all right. He also said he possibly discussed

money that night at the Cloud Room with the man

who might be the picture he was shown. There-

after, when asked what he talked to Tom Sala and

Bill Murray about, he said just social chit chat

ard not a loan. Bogatin then acknowledged that

there came a point after the social chit chat when

he received money at the Cloud Room but he could

not recall from whom he received this mc iey.

Bogatin was again asked about the interest

rate on this loan and he still insisted that it was

never discussed, and that Bill Murray or Tom told

him if he paid back $129 per week everything would

be all right. He stated that there was no differ-

entiation made as to whether the $120 was principal

or interest.

Bogatin testified that after this meet-

ing in the Cloud Room he received approximately

$800 from Bill Murray in Suffolk County. He said

he made $120 payments every week on Sunday to either

Tom, Bill Murray or Joe Lombardi, from January into

July.

The Prosecutor then asked Bogatin how

EIR OE Va FEROS

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18

part of the money back. Both the original answer

and the qualification contradicted his prior an-

Swers on this subject where he said that interest

was never discussed.

Bogatin thereafter testified that he

didn't know he was getting money from loansharks.

The Prosecutor pointed out his prior testimony re-

garding a promissory note where Bogatin said that

when you're dealing with people like this, you

don't write things down. Bogatin then admitted

that he knew he wasn't dealing in the normal course.

but insisted that he did not know he was dealing

with loansharks. He was then asked what interest

he agreed to pay and he still insisted that he

didn't know what his interest rate was. He was

questioned as to how much he paid back and he said

$3,100. He was asked what he owed and he said

nothing as far as he was concerned.

It was at this point that Bogatin was

brought before Judge Lundberg for the final time.

The Prosecutor told the judge that he thought

Bogatin had been wilfully evasive throughtout his

Reavy POSER

~2y BOUND CLOSE TO EDGE

_ 19

testimony, and contemptuous of the court.

Bogatin's testimony subsequent to his last appear-

ance before the court was then read by the stenog-

rapher. Thereafter, the foreman of the Grand Jury

Stated that the Grand Jurors felt very strongly

that Bogatin had been evasive.

Judge Lundberg said that he did not dis-

agree with the analysis of the foreman of the Grand

Jury after listening to the reading of the trans-

cript. He stated it defied logic that there was

no interest rate involved and it defied further

human experience that a man of Bogatin's experience

would not know what the terms of the loan were.

The judge said he could only conclude that Bogatin

was wilfully disobeying his directions and wilfully

being contemptuous of the Grand Jury. Thereafter,

that same evening, the Grand Jurors voted to in-

dict him for his contemptuous and perjurious testi-

mony. As a result of the Grand Jurors' vote to

indict Bogatin on July 19, 1971, an indictment

was returned on August 12, 1971, charging him with

the crimes of Perjury (counts 1 and 2) and Contempt

“py BOUND CLOSE TO EDGE

20

(count 3).

The petitioner moved to dismiss the

indictment and in an order dated December 27, 1971,

Suffolk County Court Judge Ernest L. Signorelli

granted the motion to the extent that the con-

tempt charge was dismissed, but this order was sub-

sequently reversed and the comtempt charge rein-

stated by the Supreme Court, Appellate Division,

Second Department, in an order dated November 27,

1972, in which the court found that there was

sufficient evidence before the Grand Jury to sus-

tain that count of the indictment. Petitioner's

application for leave to appeal to the New York

State Court of Appeals was denied in an order

dated January 18, 1973.

On October 11, 1973, the petitioner

pleaded guilty to attempted criminal contempt of

the Grand Jury by refusal to testify after being

granted immunity in full satisfaction of al]

counts contained in the indictment and on

November 21, 1973, he was ordered to pay a fine of

One Thousand (1,000.00) Dollars.

21

The conviction was unanimously affirmed

by the Supreme Court, Appellate Division, Second De-

partment, in an order dated May 12, 1975 and the

Honorable Sol Wachtler, Associate Judge of the

New York State Court of Appeals, denied leave to

that court in an order dated October 30, 1975.

OPINION BELOW

The memorandum decision of the Supreme

Court, Appellate Division, Second Department, unan-

imously affirming the judgment of conviction is

officially reported at 48 A.D.2d 674 (1974).

On October 30, 1975, Honorable Sol

Wachtler, Associate Judge of the Court of Appeals,

denied petitioner's request for leave to appeal to

the Court of Appeals. Judge Wachtler's certificate

denying leave to appeal is not officially reported.

JURISDICTION

The order of the Supreme Court, Appellate

Division, Second Department, was entered on or a-

bout May 12, 1975, the date the memorandum decision

was rendered. An extension of time within which

to file this brief in response to the petition

“~ \PpY BOUND CLOSE TO EDGE

22

for a writ of certiorari was granted by this

Court, and the time for filing has been extended

to and including March 17, 1976. The jurisdiction

of this Court is invoked under 28 U.S.C. Section

1257(3).

QUESTIONS PRESENTED

1. Whether a defendat is denied due

process of law in violation of the Fifth and

Fourteenth Amendments to the United States

Constitution where the indictment contains a

detailed recitation of facts indicatina a crime

under state law and where the sufficing of the

evidence to sustain the charge does not present

a federal question?

2. Whether a witness is deprived

of his right to counsel under the Sixth and

Fourteenth Amendments when he appears before

a grand jury where he is not a target of the

investigation and he is granted complete trans-

”

actional immunity?

—- -

STATUTES INVOLVED

United States Constitution:

Fifth, Sixth and Fourteenth Amendments*

The Consolidated Laws of New York State:

Penal Law Section 215.51*

Former Code of Criminal Procedure

Section 619-e (2)

“Immunity"....means that such person

shall not be prosecuted ...for or on

account of any transaction...which in

accordance with the order by compe-

tent authority, he gave answers or

produced evidence, and that no such

answer or evidence shall be received

against him upon any criminal pro-

ceeding.

* The text of these provisions are reproduced in the

Petitioner's brief at pp. 4-5

eALERTS SOTA S TT

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LATICO :

24

POINT I

THE PETITION FOR A WRIT OF

CERTIORARI IS IMPROPFRLY

ADDRESSED TO THE NEW YORK

STATE COURT OF APPEALS.

A petition for a writ of certorari is

properly addressed to the court which rendered

final judgment and which was the highest court

of the state in which a decision could be had

(28 U.S.C. Section 1257). This statute has

been interpreted to mean that where the highest

court of the state merely declines juris-

diction of a case, the writ must be addressed to

the intermediate appellate court which passed

upon the merits of the case [Hammerstein v.

Superior Court of California, 341 U.S. 491 (1951);

Western Union Telepgraph Co. v. Priester, 276

U.S. 252 (1928); Randall v. Tippecanoe County,

211 U.S. 252 (1923)]. In the instant case, since

the New York State Court of Appeals, by the

certificate of Honorable Sol Wachtler denying

leave to appeal to the Court of Appeals, refused

to exercise jurisdiction over the case, this

ih t-mid-. annin aaa

25

writ should properly have been directed at

the Supreme Court, Appellate Division, Second

Department [Mellon v. O'Neil, 275 U.S. 212 (1927)].

POINT II

THE INDICTMENT CLEARLY AND

SPECIFICALLY STATES A CRIME

UNDER NEW YORK LAW AND THE

CLAIM THAT THERE WAS IN-

SUFFICIENT EVIDENCE BEFORE

THE GRAND JURY TO SUPPORT

THIS CHARGE DOES NOT IN-

VOLVE A SUBSTANTIAL FEDER-

AL QUESTION. THEREFORE,

NO JURISDICTIONAL DEFECT

IS ALLEGED WHICH SURVIVED

THE PETITIONER'S VOLUNTARY

PLEA OF GUILTY.

The petitioner alleges that there

were two jurisdictional defects with regard to

the instant indictment which survived his vol-

untary plea of guilty and that, therefore, the

decision of the intermediate appellate court of

New York violated established law in finding

that petitioner had waived the claim which he

now urges upon this Court by his voluntary plea

of guilty. The defects in the indictment which

petitioner alleges survived his plea are two:

~~ nm smemiti wai», hem Aa

26

(1) that the indictment does not state a

crime and (2) that there was insufficient evidence

before the Grand Jury to establish the crime

charged. Both the claimed errors are without

merit.

While it is conceded that the failure

of an indictment to state a crime constitutes

a jurisdictional defect which would survive even

a voluntary plea of guilty, the petitioner fails

to articulate in what respect the indictment

does not state the crime of criminal contempt

by refusal to testify before a grand jury after

having been granted immunity in violation of New

York State Penal Law Section 215.51 (the text of

which appears in petitioner's brief at p. 5).

The indictment charged the petitioner with appear-

ing before a grand jury on a specific date and,

after having been granted transactional immunity

[see, Former Code of Criminal Procedure Section

619-c(3)], indulged in a persistent course of

conduct consisting of evasive and argumentative

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responses to legitimate inquiries, in addit-

ion to outright refusal to respond, which,

taken individually and collectively, constitute

the unlawful and contumacious refusal to answer

comtemplated by the statute [People v. lIanniello,

21 N.Y.2d 418 (1968)]. The body of the indict-

ment contains a lengthy cataloque of the specific

instances of evasive answers and refusal to

answer which constitute the crime of contempt.

There, the first of petitioner's claims is patently

without merit.

The petitioner's claim that the in-

sufficiency of the evidence before the Grand

Jury constitutes a jurisdictional defect is

likewise without merit. It is noted at the out-

set that the due process clause of the Fourteenth

Amendment does not even make the grand jury re-

quirement of the Fifth Amendment applicable to

the states [Hurtardo v. California, 110 U.S. 516

(1884); Morford v. Hocker, 394 F2d 169 (CA, 9th

Cir., 1968), cert. denied 392 U.S. 944]. Further-

more, it is well-settled that an indictment re-

- wastes BA isis RARE

gs TS § 4 on .

{

“\PpyY BOUND CLOSE TO EDGE

ROUGH

28

turned by a legally constituted and un-

biased grand jury, if valid on its face, is

enough to call for trial of the charge on the

meritSand no constitutional provision prescribes

the type of evidence upon which a grand jury must

act nor does a claim of insufficient evidence

before a grand jury constitute a substantial fed-

eral question which is cognizable by this Court.

[Lawn v. United States, 355 U.S. 339 (1958);

United States v. Costillo, 350 U.S. 359 (1956);

Re Robertson, 156 U.S. 183 (1895); Moore v.

Missouri, 159 U.S. 673 (1895)].

Since petitioner's claim that the in-

dictment does not state a crime is manifestly

without merit and since the sufficiency of the

evidence before the grand jury does not amount

to a jurisdictia], or even federally cognizable,

question, the state court correctly concluded

that the voluntary plea of guilty waived any

defects [see, Blackledge v. Perry, 417 U.S. 21

(1974); Tollett v. Henderson, 411 U.S. 258 (193);

McMann v. Richardson, 397 U.S. 759 (1970)].

-\pyY BOUND CLOSE TO EDGE

— :

POINT III

THERE IS NO ABSOLUTE FEDERAL

CONSTITUTIONAL RIGHT TO THE

ASSISTANCE OF COUNSEL DUR-

ING AN APPEARANCE BEFORE THE

GRAND JURY.

The petitioner also alleges that he

was deprived of the assistance of counsel during

his grand jury appearance in violation of his

constitutional rights.

A witness before a grand jury cannot

insist, as a matter of constitutional right, on

being represented by counsel, notwithstanding that

evidence obtained may possibly lay the witness

open to criminal charges [ In Re Groban, 352

U.S. 330 (1957)]. Even with the development of

the "critical stage" analysis whereby the right

to counsel has been expanded [see, Boyd v. Dutton,

405 U.S. 1 (1972); Santobello v. New York 404 U.S.

257 (1971)-Coleman v. Alabama, 399 U.S. 387 (1970);

United States v. Wade, 388 U.S. 218 (1967); Mempha

v. Rhay, 389 U.S. 128 (1967)], federal courts

have continued the pronouncement contained in

— D CLOSE TO EDGE

— =Y BOUN

SSI

30

the Groban case [United States v. Fitch, 472

F.2d 548 (CA, 9th Cir., 1973), cert. denied

412 U.S. 954; In Re Grumbles, 453 F.2d 119

(CA, 3rd Cir., 1971), cert. denied 406 U.S. 932].

Notwithstanding the above quoted law,

the courts of New York State, on the basis of

the policy enunciated in Miranda v. Arizona, 384

U.S. 436, do recognize the right of a witness

before the Grand Jury to consult with his

attorney in certain instances and that the

analysis turns upon the legal rights of a wit-

ness which requires the advice of counsel [People v.

Ianniello, 21 N.Y.2d 418 (1968), cert. denied 392

U.S. 827]. Thus, in that case, the New York State

Court of Appeals indicated that a witness before

the Grand Jury would be entitled to consult with

his attorney concerning whether the questions

asked of him involve the possibility of self-

incrimination, the issue of priviliged communi-

cations and the issue of whether the questions

asked are within the legitimate scope of the Grand

Jury proceeding.

E

- py BOUND CLOSE TO EDG

a, - 31

In the instant case, the petitioner was

advised that he would be called as a witness be-

fore the Grand Jury, that he was not a target of

the investigation and that he could consult an

attorney. When he appeared before the Grand Jury,

the petitioner was granted full transactional im-

munity [CCP Section 619]. No question before the

Grand Jury involved the issue of priviliged testi-

mony and the transactional immunity conferred on

the petitioner eliminated the possibility that

he would incriminate himself. Simarly, the im-

munity made any issue of the scope of the questions

irrelevant in that, even if they were beyond the

scope of the inquiry, no substantial right of the

petitioner would be affected.

Thus, the grant of transactional im-

munity, having obviated any legitimate reason for

which the petitioner might have sought the advice

of counsel to protect a substantial right, the

petitioner's Sixth Amendment right to counsel was

not violated [see also, United States ex rel.

“BY ROLIND CLOSE TO EDGE

32

Buonoraba v. Commissioner of Correction, City of

Finally, even if the appellant were

entitled to counsel, the violation of this right

would not sanction the crime of perjury or contempt

and these charges would remain unaffected by

any such defect [People v. Ianniello, supra].

CONCLUSION

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE DENIED IN ALL RESPECTS.

Respectfully submitted,

HENRY F. O'BRIEN

District Attorney

Suffolk County

Attorney for Respondent

CHARLES M. NEWELL

Assistant District Attorney

of Counsel

Dated: March 10, 1976

CERTIORARI

DENIED