# Opposition Briefm — Bogatin v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2005%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Briefm - **Published:** January 1, 1976 - **Citation:** 425 U.S. 912 ## Text 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. i SRT ELE ATE LIE LEO PS, oo MAS ee oP ee EEN me ca COP LOSE TO EDGE UGH PY BOUND C 1] 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. ie: RL LOL LLL LOL LETE ES 7 were ba sa — . \ “PY BOUND CLOSE TO EDGE — 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 “PY BOUND CLOSE TO EDGE IGH —_ eee Sr a Ea Re: ELON 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 | SL a RAO PEE “py BOUND CLOSE TO EDGE 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 —— -\py BOUND CLOSE TO EDGE 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 “PY BOUND CLOSE TO EDGE — ‘ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2005%3A2. Public record. Not legal advice.