Petition for Writ of Certiorari — Riela v. New York (No. 460)
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wu w Ba rh
ia IN THE °* " aa cc
Supreme Court of the United States
| October Term, 1960
No. 4 { ) t } _-
ANTHONY PETER RIELA,
~ Petitioner,
-—V.—
THE PEOPLE OF THE STATE OF NEW YORK,
R. Spiro i, ne.
PETITION FOR A WRIT OF CERTIORARI TO THE
COUNTY COURT OF TIOGA COUNTY,
NEW YORK
Loris MaNxsporr
Counsel for Petitioner
S20 Broadway
New York 7, New York
Q
Pe
chetis Bela
tiei= OO Woatehs Peariscdietion be Pnverkeod
he Soens Presented for Review
Sutates [nvelved
Natement of the Case
— Ce |
. » ‘ . . “* . .
tievys Ratsing of Perteral Cdiestrets
=
heasonus fer Girranting the Writ ae
APPENDICES
A. Opinion, Court of Appeals. People vo Rb
"ONLY. 2 S01, Qo NY. S. 2832 reproddinees
Cited
, “ ' . 3 . ® e
reer of Court of Appeals. chemical of ret
reargument, July s, 1e8e
Cited .. TS 2 ty I BET A Ae
Order of Court of Appeals. amending rem
toolmsert constitutional question, ~uly ss. 0
bE thle RN See eae oe oats
o* x .
. Hadement of Convietion, July D2. te
i ary ee al al Sih oe ae ee
—
1}
ha
ea
*)
on
i)
a
i
»
PAGE
k. Excerpts of Statutes Involved ................ 1a
hae ES NT Te PEE Ie) Spey pear ys 3,4-
(i) Penal Law ¢ 600 subd. 6 ................. "13a
Baer t pity yee Wie ay ate cae eee
(11) Code of Criminal Proeedure ¢ 618-a ....... Ia
RES rere ree 3,45, 6, 1214
(iii) Penal Law § 2447 subd. 1,2, 3(c), 4 ....... Va
MCU eecdiaieieweneaues 3, 4, 6, 11, 12, 15, 14
(iv) Uneonsolidated Laws § 7052 subd. (5), (6).
(7) and (9), McKinney's Vol. 65, Part 2... — Ifa
Peete, ataleeaes 13, 4, 6, 13, 14, 16,17
_(v) New, Jersey Revised Statutes, Article 2,
2A :81-4 and 2A:81-5 ............ ry lia
GNA ES ale ea rea a rt : 3
(vi) General Business Laws {352 subd. 5 (Vol.
19 MecKinney’s Consol. Laws) ........--. lia
RN coy Mewes Ris sven deueees cue cao uta a1
. TABLE OF CASES CITED ~
In re: Amato, 204 Mise. 454, 459, 124 N. Y.-S
1 Tae 2 MURR Sa Stir i CI een a gon eae ete Santer ns SE 1h
Brown v. United States, 509 U.S. 41, 49 ...6.... 10, 17 I
Brown vy. Walker, 161 U. ee ere eh ee ee I
Carlson ¥. United Sites (C.A. Ist), 209 F. 2d 209,
Oe a a ave ce esau eas areee eis Be
C ommission of Investigation v. Lombardozzi, 5 N. Y.
2d 1026, 185 N.Y. S. 2d 550, appeal dismissed,
sub nom Castellano v. Commission of Inv estiga-
EO os he acc scence Gi kas eu ae oy mens’ 1"
Dunham vy. Ottinger, 243 N cr. £. 423, 438-499 ...:..-. 1°
ili
Emspak v. United States, 349 U.S. 190, 197, 2 a
Feldman v, United States, 322 U.S. 487,489,493 0.00 45
Gendron v. Burnham, 146 Me. 387, 405-4 8, SZ AL 2d
173, REAR ARSE cee Aree ania nee as ok Marais = li
Herlands (Carcietta) Matter of, 204 Mine. ays ree a
124.N, Y. S. 2d 402, 405-406 2.00... Sear aae tae 16
Hoffman v. United States, 341 U. 8. 479 ....4,.15, 16; 1, Is
Jack v. Kansas, 199 1.8. 372 ............ EP re 17,18
~ Knapp v. Schweitzer, 357 U. Bes Santa es ate eg
Levirie v. United States, 362 U.S. 610, b12 Z Me eres 10.
wy Mills v. Louisiana, Se SE oh ch wkisc bdo hewn 10,11
Quinn v. United Statee, 349 U.S. 155, 167°... eens | i)
Raley y. Ohio, 360 U.S. 423, 435 ............ ae 1os11
State of New York v. O'Neill, 359 U.S. 1,8. ' 1314.15
“liman v. United States, ts Pi Ga kk eae es 15
FEpErat Statutes INvoLver .
8U, S. C. § 1257 (3) SE AA Sg tA sty Ee OE HOG ae
Unitep States Constitution
Fourteenth NN or oa ee ae de * 7.1233
IN THE
Supreme Court of the United States
October Term, 1960
No.
Astuony Peter Rena,
- . * Petitioner,
—
THE PEOPLE*OF THE StaTE oF NEW-YorK,
Respondent.
dé.
7
PETITION F OR A WRIT OF CERTIORARI TO THE
COUNTY COURT OF TIOGA COUNTY,
NEW YORK
The petitioner, Anthony Peter Riela, prays that a writ
ot certiorari issue to review the judgment of the County
Court of Tioga County of the State of New York, entered
in the above entitled case on July 12, 1960. |
| Opinions Below
The opinion of the Court of Appeals is reported in 7 x. Y.
2d 571, 200 N. Y. S. 2d 43, appended hereto as Appendix
A’; the Appetlate Division, Third Department opinion, °
is reported in 9 App: Div. 2d 481, 195 N.Y. S. 2d 558 and is
set forth in the Record at pages 456-463: the trial court,
ounty Court, Tioga County opinion is reported in 14 Mise.
1 218, 178 N. Y. S. 2d 873, and is set forth in the Reeord
at pages 430-446; the Court of Appeals opinion denying
— =e
to
.
the motion for reargument is dated July 8, 1960 and i:
appended hereto as Appendix ‘‘B’’, and the Court of Ap
peals opinien amending the remittitur to include a COn-
stitutional question is cated July 8, 1960 (not yet officially ”
reported), is appended héreto as a es tae
Grounds On Which Jurisdiction Is iii
(i) The judgment of the Tioga County. Court. was t-
tered on July 12, 1960 (Appendix ‘‘D*’) hased upon th
judgment of the Court of Appeals which, on April 20, 1960,
reversed in. part the judgment of conviction of the. Appel-
late Division, Third Department, and remitted the case to
the Tioga County Court for resentence. |
(ii) A motion for reargument was denied by the Court
of Appeals on July 8, 1960 (Appendix **B*’).
(iii) The jurisdiction of this Court is invoked under 2s
U.S.C. 1257 (3).
Questions Presented for Review
(1) Was the contempt conviction repugnant to the Four.
teenth Amendment .where a New York grand jury confers
New York State iramunity on a New Jersey resident wit
ness, repeats the questions and the witness ‘reasserts his
plea of privilege, but the Court fails to direct the nor
resident witness.to answer the questions or to permit wit-
ness to prove the existing perils pf prosecution in his-home
state and the Federal government as well as the inade quacs
of the immunity offered?
(2) Is the joint application of Penal Law « 2447 with
§ 618-a of the Code of Criminal Procedure, to the. facts -
,
3
herein, repugnant to the spirit and interpretation of the
Fourteenth Amendment, and were the witness's -rights.and
privileges thereunder violated; -where a New York. non-
resident°grand jury witness, a target of investigation and
a potential defendant, is brought into New York by desig-
nating him as a material witness. and the New York im-
‘munity conferred is’ not co-extensive with the perils of
prosecution existing for him in his home state, other states
and the Federal governmgnt, and Tioga County grand jury
minutes have, pursuant to court orders, been, transmitted
' without secrecy restrictions, to New York State agencies
which are obligated by state (4° 7051-7057, MeKinney's
Enconsol, Laws) to cooperate with witness's home. state,
- other states and the Federal governnient and the Court fails
to direct the witness to answer grand jury questions despite
his pleas of privilege against self-inerimination?
. (3) Was appellant denied due process by court's preelu-
sion of proof as to the existence“and reality of the perils
of prosecution, lack.of authority, good faith and jurisdic-
tion of the grand jury and inadequate immunity conferred?
‘Statutes Involved
Penal Law § 600, subd.*(6).
Code of Criminal Procedure < 618-a, subd. 2, 3.
Penal. Law § 2447, subg: 1, 2, 3(c). |
Unconsolidated Laws § 7052, subd. 5, 6, 7, 9.
New Jersey Revised Statutes, Article 2, 2A:81-4 and
2A :81-5, |
General Business Law § 352. subd. 5.
4.
(The aforementioned statutes are set forth in Appen-
dix “E") :
: ‘Statement of the Case
Appellant, a New Jersey resident, a potential defendant
and. target af investigation of the Tioga County Grand
Jury of New York, was pursuant to the applieation of
§ 618-a of the New York Code of Criminal Procedure, com:
pelled to appear there as a material witness. He agserte:
his constitutional privilege against self-inerimination be
fore that body in refusing to answer their questions, The
grand jury having knowledge of his non-residency, offered
him New York State immunity (Penal Law © 2447), and
again questioned him. Again he pleaded privilege, Instead
of being taken before the Court for-a direction to answer,
or permitted to establish his real and existing peril of prose-
cution, in his home state, other states and the Federal gar:
ernment, the grand jury indicted him for contempt of court
(Penal Law * 600, subd. (6)).
At the trial, a jury was waived.
The defense established his non-restdency, the improper
application of ¢ 618-a C.C.Py and § 2447 P.L. to the instant °
case, the absence of a court direction that the witness an
swer grand jary questions, the transmittal of grand jut’
minutes to state agencies cooperating with other states an!
the Federal government (4§ 7051-7057, Unconsolidate:!
Laws, MeKinney's) and the obvious inadequacy of New
York immunity to a non-resident witness.
The defense was precluded from proving that the exist
ing perils of prosecution were real and substantial’ (Ho?
man v. Wnited States, 341 U. S. 479); that the grand jurt .
was not acting in good faith but was created and used as
the ‘tool’? of the Acting Commissioner of Investigation:
that it lacked jurisdiction and authority to pursue the in-
quiry; that it was investigating a meeting and a party and
nota crime (R. 182); and that the New York immunity was
dissipated when the grand jury minutes were made avail-
able to agencies cooperating With other states and the
Federal government, the judge having failed to impose re-
strictions on their secrecy.
1”
Timely Raising of Federal Questions
The federal questions sought to be reviewed are and
were raised as follows:
(i) The denial of procedural due process by the improper
application and use of a { 618-a of the ¢ ‘ode of Criminal
Procedure to obtain the presence in New York State of
the non-resident appellant by alleging he was a material
witness before a New York grand jury when in fact he was
a potential defendant and target of investigation.
This issue was raised before. the trial court by motion
m February 13, 1958 and denied (R. 31); on the motion
to acquit (R. 269, 289), ‘denied (R. 269, $22); by statements.
to the court (R. 31, 50- 06), and by the District Attorney's
statement toethe appellant (R. 71). The trial court’s opin-
ion held that this issue is collateral and not relevant and
that the witness appearéd voluntarily (R. 445).
The point was further pursued before the Appellate Divi-
sion, Third Department in Point Il (pp. 17-23) ‘of Appel-
lant’s Brief and rejeeted in that court’s opinion (R. 457-
459), .
6
In the Court of Appeals, the point was urged in Poin: |
VI (pp. 36-42). The- Court of Appeals considered thx
argument in conjunction with other constitutional issye-
as appears from the amendment of its Remittitur on July s,
{960 (Appendix ‘*C’’),
(ii) The joint application of { 618-a Code of Criminal
Procedure wjth § 2447 Penal Law to a New York -non-
resident violates procedural due process under the Four.
teenth Amendment where the. witness is a potential defen.
dant and a target of investigation, and the New York Stats «
immunity is not co-extensive with the perils of prosecution
in the witness's home state, other states, and the Federal
government, where New York grand jury minutes are for-
warded to a State Commission of Investigation’ obligated
by statute (Uneonsol. Laws, § 7052, subd. (5, 6)) to investi-
gate violations of federal law in New York and to cooperate
with other states and the Federal government.
This point was urged before the trial court in a motion
for dismissal of the indictment (R. 201, 210-214, 218-219.
262, 304-306, 344-345), and in a motion for arrest of judg.
ment (R. 383-385, 402, 405-406). The motions were denied
(R. 269, 422), and the: argument overruled in its opinion
(R. 437-439).
The »oint was further pursued before the Appellate Divi-
sion, Third Department in Point II (pp. 17-23) of Appel
lant’s brief before that Court and rejected in its opinion
(R. 461).
The Court of. Appeals refrained from commenting 0
this issue in its opinion. However, the remittitur as
amended (Appendix ‘*(*'), concedes that the issue .was
presented to, passed upon, and rejected by that Court.
=~]
iii) The failure of the Court to order or direct the non-
resident grand jury witness to answer questions to which
the plea of privilege is asserted, after the offer of New
York immunity and the Witness’ reasse rtion of his plea,
_ Where the existing peril of prosecution 1s real and substan
tial, and the grand jury minutes transmitte! toa New York
azeney cooperayng with other’states and the Federal coy
‘rnment, constitutes a denial of procedural due proeess in
violation of the Fourteenth Amendment.
This point was urged before the trial eourt CR. 191-193,
1%, 137) upon eross-examination of the grand jury fore.
man, by motion ‘for a directed’ judgment, of acquittal, (ile-
nied R. 1 9), and by motion for dismissal of the indietment
and for aequittal (R. 203-204). These motions were denied
(R. 206) ; by offer of proof to show existing perils of prose-
ention, argument (KR. 222, 232, 237-238), denied by the Court
(R. 249, 252, 259-262); by motion to acquit and the denial
thereot (R. 268-269); by motion for Judgment of acquittal
and summation (R. 275-277, 282-283, 285- 286, 28S, L942 Bud
306, 313- 316, 349, 354), denied by the Court's deei ‘ision (R.
ove 3): : by motions for ar rest of judgement and fora new trial
(R. 380-417) which were denied (R. 422). The Trial Court?s
opinion dismissed this argument (R. $333),
The point was _ before the Appellate Division,
Third Department, it t Appellant's Brief (Point I. pp. 13
16) and overruled (R. 460-461). .
“The point was submitted to the Court of Appeals in
Appellant's Brief (Point TI. pp. 18-21) but evaded by that
Court, ¢ N. ¥. 2d 571, 575-576, 200 NOY. S. 20 48. 45. which
lield ‘that the Grand Jury haél une festione “dl power to eon
ter immunity’ upon Riela and dircet him to answer under ¢
pain of prosecution for contempt."’
*
ete
8
(iv) The offer of New York State Immunity to a nor
resident is not co-extensive with the. existing perils of pros.
ecution where the witness must return to his home sty,
and where New York Grand Jury minutes are transmitte:
to divers agencies cooperating with his home state, oth
states, and the Federal government. The trial court's
jection of the appellant’s offer of proof to establish the
existing: perils of prosecution and the absence of a eour
hearing on his asserted plea of privilege before the Gran:
Jury after conferral of ew York immunity, constitute:
a denial of due process.
This issue was presented to the trial court by offer of
proof (R. 208, 232, 248, 249), denied (R. 249); by motion
for aequittal and summation (R. 304- 800, 384, 402-406),
denied (R. 422). The court's $ Opinion dismissed the conten
tion (R. 437-439), = | :
The issue was presented to the Appellate Division, Third.
Departmeyt, by Appellant's Brief (Point II, pp. 17-23) ani
rejected byifs opinion (R. 461).
The tssue was presented to the Wourt of Appeals in
Appellant's 's Brief (Point II, pp. 21- 24) and Point VI ip
86-38). The Court overruled appellant in its opinior 7
Y. 2d 571, 576, 200 N.Y. 8. 2d 43: 45 stating: ‘* And to
the second peint, it is equally clear, under curre nt decisions.
that a witness may be compelled to answer in a state pra:
ce caling, as long as the immenity granted by the state pre
tects against prosecution under its laws, even though it may
' not protect against prosecution by the Federal goyvernmen’
or by other states.’’
(v) The trial court's denial of the appellant's .offer of
proof y show the lack of authority, jurisdiction and goo!
faith ofthe Grand Jury, constituted a denial of due process
9
This issue was presented to the trial court by appellant
by cro&s-cxamination of the grand Jury foreman, exeluded
by the court (R. 178-179, 182, 164, 146, 172-176), by offer of
proof (R. 299-209), denied (R. 262); by motion to acquit
iR, 268-275), denied (R. 269); by reading the court order
into the record (R. 213-216); by motion for arrest of mae
ment (R. 389, 400, 410, 412), denied (R. 422). The trial
court upheld the authority, jurisdiction and good faith ot
the grand jury by adopting the theory of presumption of
regularity (R. 435) over the presumption of Innocence CR,
200). ,
The point was argued to the Appellate Division, Third
Department in appellant's brief (Point VI, pp. 3L-26). That
Court ignored the j issue by holding that.a grand jury may
investigate Whether a crime “has been committed or tot
(R. $62),
The point was presented to the ‘Court. of Appeals in
Appellant's Brief (Point Ve opp. 31-86) and held not. te
Warrant diseussion, 7 N.Y. 2d 571, 375. 200 N.Y. S. 2d, 455,
45. .
Reasons for Granting the Writ :
(1) The lack of a Court direction that witness answer.
The lack of a Court direction that a Witness answer
where a plea of privilege is asserted, constitutes a-de nial
of due process and a violation of uniformly recognized pro-
cedure in both state and federal courts. Quinn vi United
State, 349 U. S. 155, 167.
A conflict pertaining to the validity of proceedure in eou-
tempt adjudication exists between the New York, Court of
10
Appeals in People v. Riela, 7 N. Y. 2d 571, 200 NO YO S. 2d
43, and this Court in Brown v. United States, 359 U.S. 41,
49; Levine v. United State®, 362 U.S. 610, 612: Relew v.
Ohio, 360 U. S. 423 (state court-direction by court); My’.
v. Loutsiana, 360 U.S. 230 (state court-direction by court):
Angpp v. Schweitzer, 357 U.S. 371 (state court-dire ction
by judge in § 750 Judiciary Law proceeding) ; Emsal \
United States,,349 U. S.°190, 197, 202 (Congressional Com
mittee-direction required); the First Cireuit Court, in
Carlson v. United States, 209 F. 2d 209, 214 (CLA. Ist Cir)
(court direction required—-United States Distriet: Cour
Grand Jury); the Supreme Judicial Court of Maine, in
Gendron v. Burnham, 146 Me. 387, 405, 406, 82 Al 2d 772.
754-788 (state court-direction required).
The New York Court of Appeals held that. State In
munity conferred was adequate and cited Mills and Ave),
supra, and Commission Of Investigation v. Lombardecs. 9”
N. Y. 2d 1026, 185 N. ¥. S. 2d 550, appeal dismissed suh yoy
Castellano v. Commission Of Investigation, 361 U2 s
Mills and Knapp each had a court direction after the grant
sion after the immunity grant. None of these cases involved
a New York non-resident.
As to the required court dircetion, the Appellate Div,
sion, Third Department, in its opinion (R. 461) scated:
‘The case 6f Brown v. United States, (369 U.S. 4!
uses language from which appellant gains some con
fort, but it fnvolved a Federal statute and is by no
means controlling in New York State in a proseei’
tion under section 600 of the Penal Law and wher
the procedure authorized by section 2447 of the Pens
Law was meticulously followed.’’
1]
The New York Court of Appeals (7 N.Y. 2d 571. 200,
N.Y. S. 2d 43, 45) adopted this reasoning by stating: “It
is necessary only to obsetve that a reading of section 2447
makes it manifest that the grand jury had unquestioned
power ty confer immunity upon Riela and direct hign te
answer, under pain of prosecution tor contempt. ** This
begs the\question for it omits the entire issue of procedural!
due process.
Penal Law “2447 is no tore effective in granting State
immunity as applied to the instant case than the bivstetanits
conferred federally In Browy Vv. lite States, S40 US. 41,
by © 205 of the Motor Carrier Net (40U, SOD (dyes or
the Ohio immunity statute in Raley vy. Ohin. wee T : %. 4235:
or, the Louisiana statute conferring iinunaty in Mills \
Lenisiana, 360 U8. 230. Bae of these eases held that even
Hough immunity be eorlerred | s statute, the Speer fie hi
rection to answer is a vital condition precedent to the con
nussion of contempt.
Penal Law © 2447 sets fori: the condition precedent fer
the grand Jury conferr: ga immunity but at does wot aed
cannot substitute th: right of au ituend to he heard Li th.
court to interpose his plea of privilege qainst sell rMer iw!
nation and to establish th. validity thereof. This statute
cannot usurp the power and duty of a trial judge te evalu.
ate the merits of the plea of privilege, especially where a
non-resident is involved under the peculiar facts herein. [tf
it does, it denies the substantive dtie process as well as pro-
cedural due process of awitness. It was <o cupoplierd bere,
The New York Court of Appeals ignored BrGwn vy. United
States, 359 U. S. 41, 49, cited and argued by appellant. The
12
procedure there set forth by Mr. Justice Stewart at 351
U.S. 41, 49 is clear and unambiguous.
‘Even after an adverse ruling upon the claim of
privilege, the petitioner was still guilty of no con.
tempt. It was incumbent upon the court unequivocal.
ly to order the petitioner to answer. * * * The court
did so.
‘*When upon his return to the grand jury room the
petitioner again refused to answer the grand jury's
questions, now in direct disobedience of the court's
order, he was for the first time guilty of
contempt, *°* *”’
Due process requires the Court to give the witness an
opportunity to be heard. Carlson v. United States, 209 F.
2d 209, 215 (C.A. Ist Cir.).
(2) The denial of procedural and substantive due
process by joint application of statutes.
The joint application of ¢ 618-a (.CLP. with § 2447 Penal
Law to the facts herein, involving a New York non-resident. -
violates Gue process under the Fourteenth Amendment
where the non-resident witness is a potential defendant
and target of investigation. The granting of local state
immunity is not co-extensive with the existing perils ot
prosecution and dissipates the witness's plea of privilege
in his home state, other states, and the Federal govern:
ment. The joint statutory application to the facts herein
circumvented the constitutional safeguards of the witness.
The federal questions involved herein are real and sul
stantial. The certificate of the Court of Appeals amending
the remittitur shows that it considered the constitutional
SS
13
. ~ ae ;
@vestions and that such consideration was necessary to the
court's determination. |
Although Penal Law ¢ 2447 has been upheld as constitu-
tional, this is the first ease in which it has.becn applied to
a non- resident who must return to his home state. In. the
instant case, .the transmittal of grand jury juinutes to a
state agency obligated by law to cooperation with other
states and the Federal gover nment (°° 7001-7057, Uneonsol.
Laws), vitiates and nullifies the state and Federal constitu-
tional privilege against self-incrimination and is repugnant
to the Fourteenth Amendment. Although validly applied
in other cases, the application of Penal Law » 447 to the
facts herein rendered the statute invalid, |
S618-a C.C.P. is applicable solely to material witnesses
and not as here to a potential defendant and target of in-
vestigation. ‘That appellant was a potential defendant. is
apparent from the District Attorney's statement to lian
before the Gratd Jury (R, 71). Cf. State of New York
O'Neill, 359 U.S. 1, 8, where the constitutionality of this
statute was ipheld provided a hearing is held. However,
Mr. Justice Frankfurter at page 8 declared:
“No claim is before us that the administfation of
the statute in the particular circumstances of this
case violates due process."’
In the instant case, repeated claim was made that me
hearing on materiality was held (although the order of the
forwarding state so declares), despite the reservation of
his claim and rights to a hearing on the issue of his materi
ality as a witness; that no crime was committed: that the
frand jury had no authority-and jurisdiction to investigaty
4 party; and that the grand jury was created as a ‘ttool™
14
or implement of the ( fice of the Commissioner of Investi-
gation.
Assuming, but not conceding, the proper application of
§ 618-a C.C.P. herein, the further use of { 2447 Penal Law
to the non-resident hesein cries injustice where no direction
to auswer was made to the witness and no opportunity qiren
to the witness to be heard as to why his plea of privilege was
usserted, or to prove the existing perils of prosecution.
The instant grand jury minutes were transmitted pursuant
to orders: signed by the same trial judge, to the Acting
Commissioner of Investigation on January 15, 1958, and
subsequently on August 1; 1958 to the Commission of In-
vestigation, and thereafter on August 4, 1959 to the United
States Attorney for the Southern District of New York.
tor use at trial of Indietment #C'-159-35 in Which petitioner
Was a defendant. These facts: were reason enough th es-
tablish peril of prosecution. Further, the trial judge had
Judicial notice (and actual notice) of the statate (Unconsol.
Laws § 7052 subd. (9), (6), (7) and (9)) of the obligation of
the Commission to cooperate with other state and federal
agencies,
It is the joint application ot these statutes to the facts
herein which constitutes a denial of substantive and pro-
cedural due process.
In. the light of common investigatory practices of state
and county grand juries with extra-territorial powers of
subpoena upheld by this Court (Yew York v. O'N: ill, 509
U.S. 1), a non-resident Witness’s constitutional rights of
privilege against self-inerimination in his home state, other
states and the Federal government, should be clarified and
ordained. .
15
it was obvious to the trial court that the New York im-
munity to a non-resident in exchange for testimonial com-
pulsion, was not co-extensive with the existing. perils of
prosecution in his home state, other states and the Fed-
ral government where the witness had to return home and
Grand Jury minutes forwarded to divers agencies cooperat=
ing with his home state. ('f. /. ffman v. United States, 34]
U.S. 479; ef. Ullman v. United States. 350 U.S. 422: ef
Knapp v. Schweitzer, 357 U.S. 371. |
No case other than the Within, invelving a non-resident
witness of New York, to. whom New York immunity is
granted, has ever been dechled, Where existing facts make
the offered immunity hollow and not co-extensive with the
real perils of prosecution.'
(3) Feldman v. United States should be reconsidered. .
The facts herein warrant the reconsideration of the doe-
trite of Feldman vy. United States, 322 U.S. 487, 489, 493,
because of the transmittal? of the grand jury testimony to
the New York State Commission of Investigation which
' The appellant: herein was indicted by May 13, 1959 by the United
States District Court, S. DN. Y. tor the crime of conspiracy to
obstruct Justice, based on the Incident investigated by the Tioga
Grand Jury. He was convicted on January 13, 1960° Appeal is now
pending before the Court of Appeals, Second Cireutit.
@
* The Tioga County Court issued court orders tratismutting copies of
the grand jury minutes as follows -
(a) On January 15, 1958, to the Acting Commissioner of In-
; vestigation of the State of New York:
(b) On August 1.1958, to the Commission of Investigation,
the successor agency.
ic) On August 4, 1959. to the United States Attorney,
Southern District of New York. for use at trial of indict-
ment No. C-159-35, m which respondent was a defendant,
Was convicted, and is now appealing.
16.
agency is obligated by statute to cooperate with the witness’
rr we)
home state, other states and the F ederal government (‘ 7032
subd. (5), (6), (Uneonsol.. Laws).
The current vogue of state invesfigative committe es and,
investigating grand juries who ‘cooperate with each other
and with othes states and Federal agencies is nationwide,
The state investigative committees, as such, have no extra:
state powers of subpoena. Grand juries do. Tt will become
standard practice to have the result.as it exists in the with:
in case, where state committees, by statute, are obligated
as here (§ 7052 subd. (5), (6), (7) and (9) Uneonsol. Laws),
to cooperate with other states and the Federal Gov ernment.
Where this occurs, immunity to non-residents or residents
is hollow and definitely not co-extensive with theexisting
perils of prosecution (Ho nian, y. United States, 341 U,S
479).
For testimony so extracted to be used in federal and
state prosecutions—under threat of contempt for failure to
give such testimonydoes violence to the rights of the
privilege against self-incrimination.
- The proper procedure i in obtaining such testimony would
be for the court to impose seereey restrictions or to other:
Wise protect the witness who is on the horns of a dilemma.
See Matter of Horlands (C arcietta), 204 Mise. 375, 377, 124
je wi 402, 405-406, In re A mato, 204 Mise. 454, 459.
ve N. ¥. S. 2d 726, 730. Failure by the trial court to so
uct Renae it an accomplice in a known and existing method,
to deprive a witness of his privilege against self-inerimi-
nation. |
i
(4) The doctrine of Jack v. Kansas and Brown v..
Walker is inapplicable.
Each of the lower courts have relied upon the deetrine
that the’ immunity granted by a-state is sufficient and need
not be applicable to the F ederal government, and view versa,
Jack v. Rahsas, 199 U.S. 372, Brown vo Walker, WEU. SS.
er | ,
Thi s prirciple Was hased on ths ahsenes or the real dan-
ger of y multiple prosecutions,
The New. York rule is based on Daaiham vy. Oltinger, 243
N.Y. 438. But Dunham in reaching its conclusion relied
upon the seereey provisions contained in the statute which
that case upheld and the misdemeanor punis shment for pub
licizing information obtaine dpursuant to the statute there
Involved ({ 352, subd. (5). Gen. Bus. Law.) (Vol 19, Me-
Kinney's Consol. Laws). Durham relied on Brown 6.
Walker,
In the instant ease, the peril of prose@ution Was real and
aks iene Hoffwar Ve United States, 341 US. 47D. The
Wile Weis Gus ak hs tack statute are Missing, To
the contrary, publicity and eooperation were, compulsory,
Thé gi rand jury mindtes were trans smitted to state ageneies
obligated by law to cooperate with other states and the:
Federal Sovernment (° 7052. subd. se (8). (TR EN) -
consol. Laws),
The New York Court of Appeals relied on Nvapyp 2
Schweitzer, 357 U.S. 371 which in turn relies on\ Jack
Kansas, 199 0. S. 372.
‘ None of the fore ‘going cases dealt. with i non-re silent
Withess’ ple aof privilege against self-incrimination where
18
the perils of prosecution were a reality and where granj
jury minutes are freely supplied to federal and state
agencies. |
The facts herein require the application of Hoff man vy.
United States, 341 U. S. 479 instead of Jack y. Kansas, 199
U.S. 372 because the perils of prosecution were a reality,
not a contingency, and the proffered immunity not co-
extensive therewith. :
CONCLUSION *\
The petition for a writ of certiorari should be granted.
Lovis Mansporr
“Counsel for Petitioner
320 Broadway Bi
New York 7, New York «
APPENDIX “A”
‘A. .
. Opinion of the Court of Appeals
(7 N. Y. 2d 571, 200.N. Y. S. 24 43) te
PEuP.e y. Rreva
| ‘Cite-as 200 N.Y. S. 2d 43
im 2.
Prope of the State of New York, Respondent, y.
Anthony Peter Kirra, Appellant.
Court of Appeals of New York.
~ April 21, 1960,
Feup, Judge,
‘ Anthony Peter Ricla was one of the 60-odd guests who
had gathered at tlie country estate of Joseph Barbara in
Apalachin, New York, on a November day in 1957. This
gathering, having attracted considerable: attention frog
lew enforcement Officials, became’ the target of investign-
tion by the Grand Jury of Tioga’ ¢ ‘ounty. Riela, called as a
Witness, made two appearances before that body. From the
beginning, he refused to dMswer any questions concerning
the ‘*Apalachin meeting’, ds it has come to be knowh, on-
the ground that to do so taight tend to incriminate him
and, in the course of his two appearances before the Grand
Jury, he persisted in the claim of privilege and declined to
aiswer 17 questions about that same subject. Thereupon,
at the request of the District Attorney of Tioga County,
the Grand Jury. acting pursuant to the authority vested in
it by seetion 2447 of the Penal Law, Consol. Laws, ¢. 44),
[la]
ye
Appendix, ‘‘A’’—Opinion of the Court of Appeals
“‘conférred immunity’’ upon Riela and ordered him, fol.
lowing the procedure prescribed by the statute,“to answer
the questions previously put to him. The same 17 questions °
were again asked and Riela, reiterating his reliance upon
the privilege, again refused to answer. a
As a consequence of his refusal, the Grand Jury indicted
him,.charging him, in 17 different counts, with 17 separate
crimes of contempt in violation of section 600 of the Pena!
Law. The defendant waived his right to a jury Ma went
to trial before the County Judge. The latter, finding hin
guilty on all 17 counts, sentenced him to 60 days in jai!
upon each, to run concurrently, and imposed a fine of $25
on each count, for a total fine of $4,250.
(1, 2] Before proceeding to an elaboration of the ques-
tion which prompted the grant of leave to appeal to this
‘court, we consider briefly the only two other points urged
by the defendant which warrant discussion: (1) that fhe
immunity provided by section 2447 of the Penal Law had
not been properly conferred and (2) that, in any event, such
immunity was not broad enough to assure him the protec-
tion guaranteed by the Constitution. As to the first, it is nec-
essary only to observe that a reading of section 2447 makes
it manifest that the Grand J ury had unquestioned power t
confer immunity upon Riela and direct him to answer under
pain of prosecution for contempt. And, as to the second
point, it is equally clear, under current decisions, that a
' witness may be compelled to answer in a state proceeding.
as long as the immunity granted by the state protects
against prosecution under its laws, even though it may net
protect against prosecution by the federal government or
by other states. See, e.g., Mills v- Louisiana, 360 U. S. 230,
79 S. Ct. 980, 3 L. Ed. 2d 1193: Knapp v. Schweitzer, 35°
Ss 3a
Appendix **A’’—Opinion of the Court of Appeals
U.S. 371, 78 S. Ct. 1302, AL. Raa 1393; Commission of
Investigation of State of N' >. 2
Lombardozzi, 5 N.Y, 24
1026, 185 N. Y.S. 2d 350, appeal dismissed sub nom. Cas-
tellano v. Commission of Investigation, 361 U. Ss. 7, SU:
S. Ct. 51, 4 L. Ed. 2d 49.
[3] We come, now, to the real question in the ease,
namely, whether the defendant is guilty of 17 crimes of
contempt or of one. Concerning this, it is our opinion that,
while there can be no doubt that Riela’s conduct before the
Grand Jury constituted criminal contempt under section
500 of the Pena! Law, his conviction of 17 separate crimes
of contempt, each susceptible to- punishment of a year in
prison, was totally unjustified.
It is quite ¢rue, as the Appellate Division observed [9
A, D. 2d 481, 195 N. Y. S. 2d 363], that “the questions
[asked of the defendant} were by no means the sam ques.
tion rephrased’’, but, in a case such as the present, where
the refusal to answer was grounded, albeit mistakenly on
the privilege against self-incrimination, the circumstance
that no two questions could have been answered by a sif¢le
response is beside the point. What is of significance is that
it Was apparent from the very start of his interrogation
that Riela, relying upon the privilege; would decline to an-
sWwer any question bearirig on the “Apalachin meeting",
and that the questions, different though they were from
One another, aj) related to that one snbject. This being so,
he is guilty of the single contempt of refusing to giye testi-
mony concerning the Apalachin gathering, rather than 17
contempts for refusal to answer individual questions about
it. See, e.g., Yates v. United States, 355° U.S. 66, 73, 78
S. Ct. 128, 2 L, Ed. 2d 95: United Stites v. Costello, 2 Cir.
198 F. 2d 200, 204, certiorari denied 344.U. S. 874, 73 S. Ct.
da:
Appendix ‘‘ A "Opinion of the Court of Appeals
166, 97 L. Ed. 677; United States v. Orman, 3 Cir., 207 F.4d
148, 160; Maxwell v. Rives, 11 Nev. 213, 221: Fawick Air.
flex Co. v. United Elec., Radio & Mach. Workers, Ohio App.
92 N. E. 2d 431, 436, appeal dismissed 154 Obio St. 206. 0
N. E. 2d 480.
{4] Any other result impresses us as offensive, for, if
each separate reassertion of privilege and refusal to an-.
Swer were to be treated as a distinct contempt, there wonld
be no limit to the number of contempts for which Riela
could have been held. The District Attorney could just as
well have asked 60 questions about Apalachin—for in-
stance, whether Riela knew each of the 60 individuals re.
puted to have been present—as 17, and, if each could be.
wome the predicate of a distinct contempt, the limit of pun.
ishment would then depend only on ‘the extent of the
District Attorney's ingenuity and whim. As the Supreme
Court said in the somewhat similar case of Yates y. United
States (355 U. S. 66, 73; 78 §. Ct. 128, 133, supra), *‘the
prosecution cannot multiply contempts by repeated ques.
tioning on the same subject of inquiry within which a recal-
citrant witness already has refused answers.?”
[5,6] Riela, under existing law, may well have been un-
der the necessity, once he asserted the privilege, of repeat:
ing the claim as to each and every question asked him, lest
an answer to any one be deemed to effect a complete waiver
of the privilege. See e.g., People v. Cassidy, 213 N. Y. 388.
394, 107 N. E. 713, 715: Rogers v. United States, 340 U.S.
367, 372-374, 71 S. Ct. 438, 95 L. Ed. 344; Brown v. Walker.
161 U. S. 591, 597,16 S. Ct. 644, 40 L. Ed. 819; 8 Wigmore.
- Evidence [3d ed., 1940], pp. 438-439, This being so—to par-
aphrase what was said in the Costello case (198 F. 2d 200,
204, supra)—-the convempt was total when the defendant
ft
da
Appendiz ‘‘ A’’—Opinion of the Court of Appeals
made it clear that he would not answer questions about
Apalachin on the ground of self-inerimination and his -re-
peated refusals may not properly be considered as any-
thing more than expressions of his intention to adhere to
his initial assertion of the privilege; and, surely, they were
not separately punishable. Tho contempt here to be pun-
ished is Riela’s misguided refusal -to “ive any Yestimotiy
about Apalachin, and not his reiteration of that refusal in
response to the many questions which the District Attor-
hey elected to put to him.
People v. Saperstein (2.N, Y. 2 210, 159 N.Y. S. 2d
160, 162, certiorari denied 335 U.S. 746, 66 S. Ct, S25, 7 L.
Ed. 2d 856), upon which the People strongiv-rely, does not
support their contrary position; the situation with which
We there dealt: was essentially different from: the one now
before us. Saperstein was adjudged! suilty of tive crimes
of contempt because of his eVasiveness Or, NOTE .specitic- -
ally, his refusal ‘to state definitely’? who were the par-
ticipants in five separate telephone conversations 1 hich
had been wire tapped. Each of the contempts Was based
hot upon a refusal grounded on any claim. of privilege,
but, among other things, on his patently evasive testimony
that he did not know; and could not tell, Whether he him-
self had participated in those telephone conversations.
These refusals came at different points during the course
of testimony which was otherwise freely given, and each
refusal was unrelated to every other: one. Under such ”
circumstances, there could be ho assurance, after the wit-
_ hess had refused to answer the question with respeet to the
first phone eall, that he would likewise refuse to answer -
the later questions about the other conversations. Et was
-hot possible jn Saperstein, as it: was here, to prediet. or
*
: 6a |
Appendix ‘‘A’’"—Opinion of the Court of Appeals —
foresee the pattern of refusal which necessarily ‘attends
the assertion of a claim of privilege.
In short, what distinguishes this case from People v.
Saperstein is that here we have a ciaim of privilege which
‘‘earved out an area of refusal’’. Yates v. United States,
355 U. S. 66, 73, 78 S. Ct. 128, 133, supra. In the present
case, the District Attorney .necessarily knéw, ahead of
_ time, that the claim. of privilege once asserted would be
repeated, while in Saperstein the prosecutor had to con-
tinue questioning to find the limits of the defendant/s re _
. fusal to answer. In Saperstein, in other words, the Di-.
trict Attorney was engaged ‘in bona fide interrogation, in
the sense that he could reasonably have supposed that the
witness would answer each of the questions asked, whil-
here the District Attorney repeated 17 questions knowing
full well from Riela’s response to his first query that he
would not answer any of them.
The defendant commitied but a single contempt with rv.
lation to’one subject; his conviction of 17 separate crimes
was, therefore, impermissible and the sentences imposed
may not stand.
The judgma sould be reversed and the case remitte'
to the County Court of Tioga County for resentenee.
Desmonp C. J... and Dye, Froesser, Vax Voonntes
Burke and Foster, J.J., concur.
Judgment reversed, ete.
7a
APPENDIX “B”
Order of the Court of Appeals Denying Motion
for Reargument ;
STATE OF NEW YORK,
I~ Court or 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
Eighth day of July A. D. 1960.
Present: 7
ton. Cuares S. Drsotonn,
Chief Judge, presiding.
Mo. No. 414
The People &c.,
Respondent,
vs.
Anthony P. Riela, .
Appellant.
»
vv
* A motion for a reargument of the above cause having
been heretofore made upon the part of the appellant herein
and papers having been duly submitted thereon and due
deliberation thereupon had:
Ornrrep, that the said motion be and the same hereby is
denied. :
(Sea)
GEARON IXIMBALL.
Deputy Clerk
8a
APPENDIX “C”
Order of the Court of Appeals Amending Remittitur
STATE OF NEW YORK,
. In Court or 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 .
Eighth day of July A. D. 1960.
Present:
Hon. Cranes S. Desmonn,
Chief Judge, presiding.
a.
_—_— >
- Mo. No. 414
The People &.,
2 Respondent.
vB.
Anthony P. Riela,
| Appellant.
& —
?
A motion to amend the remittitur in the above cause hav-
ing been heretofore made upon the part of the appellant .
herein and papers having been submitted thereon and due
deliberation having beén thereupon had:
Orperep, that the said motion be and the sare hereby !s
granted. Return of the remittitur requested and, when re-
turned, it will be amended by adding thereto the following:
9a
Appendix ‘““C’__Order of the Court of Appeals
Amending Remittitur
Upon the appeal herein there were presented and
necessarily passed upon questions under the Consti-
tution of the United States as follows: The defen-
dant contended that the application in his case of
62447 of the Penal Law and “618-a of the Code of
Criminal Procedure violated his rights ‘under the |
Fourteenth Amendment of the Federal Constitution.
The Court of Appeals held that the defendant's
rights under the Fourteenth Amendment were not
violated. (See People v. Riela, 7 N. Y. 2d 971.)
Asp the County Court of Tioga County is hereby re-
quested to direct its Clerk to return said remittitur to this
Court for amendment accordingly.
(Sean)
@
GrARON KIMBALL
Deputy Clerk
? ; Ca
APPENDIX “D”
Judgment of Conviction
At an adjourned term of the County Court
held in and for the County of Tioga
at the Court House in the Village of
Owego, N. Y.. on the 12th day of
July, 1960.
Present: -
Hon. Francis J. CLOHEsSY, ;
‘ County Judge of Tioga County.
Tue Propie oF THE State or New York
—against—
Antuony Peter Rieva
»™
7
The defendant, Anthony Peter Riela, having been in-
dicted by a Grand Jury sitting in connection with the
County Court held in and for the County of Tigga on the
25th day of February, 1958, which indictment sets forth
seventeen counts, each of which charges the Crime of
Criminal Contempt in Violation of Section 600, Subdivision
6, of the Penal Law of the Staté of New York, committed
on the 25th day of February, 1958,
And the defendant, Anthony Peter Riela, having ap-
peared in County Court with Louis Mansdorf, Esq., his
Counsel, and having been tried before the Hon. Francis J.
» Clohessy, County Judge of Tioga County at a trial without
lla
2 sotees ee
Appendir’* D’—Judament of Conviction
a jury beginning on September 30, 1958 and terminating
on October 3, 1958; é ;
And the Hon. Francis J. Clohessy, County Judge of Tioga
County having filed his Decision onthe 15th day of October,
1958, fihding the defendant, Anthony Peter Rigla, guilty
under and as charged in each of the seventeen counts of the
indictment ; ,
And the defendant, Anthony Peter Riela, having there-
after appeared in County Court with Louis Mansdorf, Esq..
his Counsel, on the 24th day of October, 1958, and having .
been sentenced under the first count of the indictment to.
sixty (60) days imprisonment in the Tiega County Jail and
to pay a fine of $250.00, and stand committed to the Tioga
County Jail until the fine be satisfied at the rate of one day
for every dollar of the fine unpaid. .
And it having been further Ordered that thé defendant,
Anthony Peter Riela, under each of the sixteen remaining
| counts be sentenced to imprisonment in the Tioga County
Jail for sixty (60) days and to’ pay a fine of $250.00, and
stand committed to the Tioga County Jail until the fine be
satisfied at the rate of one day for every dollar of the fine -
unpaid, it being the intention and Judgment that a sentence
of sixty (60) days imprisonment and a fine of $250.00 should
apply to anckco¥er each count; and it further being ¢ Irdered
by the Court that the respective jail sentences of sixty (60)
days imprisonment under each of the seventeen counts
should run concurrently. ae
And the defendant, Anthony Peter Riela, havi ing appeared
in Court on the 20th day of «June, 1960, with Louis Mans.
doef, Esq., his ‘Counsel for re-sentencing pursuant to an
Order of the Court of Appeals of the State of New York
filed May 11, 1960 whereby the Judgment pronounced Octo. .
ber 38, 1958 was reversed and the case remitted to County
L :
l2a
“Appendix **D’'—Judgment by Conviction
Court for re-sentencing; and the defendant having made
application to the Court for an adjournment of sentence
pending an Appeal to the United States Supreme Court;
_and the sentence having been adjourned until July 12, 1960;
And the defendant, Anthony Peter Riela, having appeared
in County Court on July 12, 1960 with Louis Mansdorf,
Esq., his counsel, and the Court having set aside and vacated
the previous sentence imposed on October 24, 1958, and the
defendant, Anthony Peter Riela-having been asked by the
Clerk if he had any legal cause to show why judgment should
not now be pronounced against him, and the defendant hav-
ing answered in the negative; |
And the defendant having waived the 48 hour “on
period; |
It is hereby Oravied by the Court that the defendant,
Anthony Peter Riela, be imprisoned in the Tioga County
Jail for a term of sixty (60) days and pay a fine of $250.0.
La VerNE M. Bristes
‘County Clerk
!
l3a
APPENDIX “E”
Statutes Involved
Penal Law ¢ 600. CrimixaL Conteyrt. A person who
commits a contempt of court, of any one o° the fol-
lowing kinds is guilty of a misdemeanor: .
6. Contumacious and unlawful refusal to be sworn
as a witness, or, after being: sworn, to answer any
legal and proper interrogatory; ° * * (McKinney's .
Consolidated Laws, Vol. 39, Part 1) L. 1989, e, 299,
61, eff. April 5, 1935.
Cope or CrimivaL Procepvre. Section 618-a (MeKinney’s
Consolidated Laws, Vol. 66, Part 2)
Securinc ATTENDANCE OF WITNESSES FROM WitHIN
anp WitHowt THE STATE IN CRIMINAL PROCEEDINGS.
1. ‘As used in this section the following words shall have
the following meanings unless the context requires cther-
wise.
‘‘Witness’’ shall include a person whose testimony
is desired in any proceeding or investigation by a
grand.jury or in a criminal action, prosecution or
proceeding.
‘State’? shall include any territory of the United
States and the District of Columbia.
‘‘Subpoena’”’ shall include a summons in any state
where a summons is used in licu of a subpoena.
3. Witness from another state subpoenaed to testify in
this state. .If« person ‘in any state, which by its laws has
lija °
Appendix ‘* E"’—Statutes Involved
made provision for commanding persons within its borders
to attend and testify in criminal prosecutions, or grand
jury investigations commenced or about to commence, in
this state, is a material witness in a prosecution pending
_ in a court of record in this state, or in a grand jury in-
vestigation which has commenced or is about to commence,
.a judge of such court may issue a certificate under the seal”
of the court stating these facts and specifying the number
of days the witness will be. required. This certificate shall
be presented to a judge of a court of record in the county
in which the witness is found.
If said certificate recommends that the witness be taken
into immediate custody and delivered to an officer of this
state to assure his attendance in this state, such judge may
direct that such witness be forthwith brought before him:
and the judge being satisfied of the desirability of such
‘custody and delivery, for which determination said certifi-
cate shall be prima facie proof, may order that said wit-
ness be forthwith taken into custody and delivered to an
officer of this state, which order shall be sufficient author;
ity to such officer to take such witness into custody and
hold him uutil he may be released by bail, recognizance, oT
order of the judge issuing the certificate.
* * * If-such witness fails without good éause to at! end
ar 1 testify as directed in the subpoena, he shail be pun
ished in the manner provided for the punishment of any
witness who disobeys a subpoena issued from a court of
record in this state.
5. Uniformity of interpretation. This section shall be
so. inte rpreted and constrned.as to effectuate its general
loa
Appr ndix Rk" “Statutes Involved,
purpose to make uniform the law of the states which enact
t.¢** L. 1936, ¢. 387, eff. May 1, 1936.
Penal Law § 2447. Witsesses’ Imuesity. 1. In any
investigation or proceeding where, by express provi-
sion of ‘statute, a competent authority is authorized
to confer immunity, if a person refuses to answer a
question or produce evidence of any other kind on
the ground that he may be incriminated thereby, and,
notwithstanding such refusal, an order is made by
such competert authority that sucli person answer
the questidn or produce the evidence, such persot
shall comply with the order. If such person com-
plies with the order, and if, but for this seetion, he
¢ would have been privileged to withhold the answer
given or the evidence produced by him, then immun-
ity shall be conferred upon him, as provided for
herein. .
9. ‘Immunity’? as used in this section means that
such person shall not be prosecuted or subjected to
any penalty or forfeiture for or on ‘account of any
transaction, matter or thing coneerning which, in
- accordance with the order-by competent authority,
he gave answer or preduced evidence, and that no
such answer given or evidence préduced shall be
received against him upon any criminal praceeding.
But he may nevertheless be prosecuted or sub, tod
to penalty or foi .viture for any perjury or contempt
committed in answering, or failing to answer, or in
producing or failing to produce evidence, in aceord-
ance with the order, and any stich answer given or
evidence produced shall be admissible against him
upon any criminal proceeding concerning such per-
jury or contempt.
l6a
Appendix “ E*'—Statutes Involved
3. ‘*Competent authority’? as used in this section
means: < %
. oo 7 ft 0 .
(c) The grand jury before which a person is called
to answer questions or produce evidence, when such
grand jury is expressly requested by the prosecuting
attorney to tes ayy see to give answer or
produce evidence; * °°. —
4. Immunity shall not be conferred upon any per
son except in accordance with the provisions of this
section.
-L. 1935, ¢. 299, §1, eff. April 5, 1935.
(McKinney’s Consolidated Laws, Vol. 39, Part 2.)
Usconsoumarven Laws, McKissey’s Votvme 65, Part 3
Sections 7051-7057 (Stare Commission or INvesticatioy!
Section 7052. Fuxctions, Powers ann Duties or THE
ComMISSION. an
Subd. 5. The commission shall cooperate %ith depart
ments and officers of the United States government in the
investigation of violations of the federal laws within this
state.
Subd. 6. The commission sha!] examine into matters re
lating to law enforcement extending across the boundaries
of the state into other states; and may consult and exchange
information with officers and agencies of other states with
respect to law enforcement problems of mutual concern to
this and other states. Z
Subd. 7. Whenever it shall appear to the commission
that there is cause for the prosecution for a crime, or for
lia
Appendix Bo Statutes Involved
the removal of a public officer for misconduct, the commis-
sion shall refer the evidence of such crime or misconduct
to the officials authorized to conduct the prosecution or to
remove the public officer.
Subd. 9. The commission shall make an annual report
to the governor and legislature which shall include its ree-
ommendations. The commission shall make such further
interim reports to the vovernor, or to the governor and
legistature, as it shall deem advisable, or as shall be re-
quired by the governor.
L. 1958, ¢. 989 § 2, eff. May 1, 1908. :
New Jersey Revisep Srairres
ArticLe 2. Privitetes of Wirness:
2A :81-4 General Rule :
Except as otherwise provided by statute, a witness
. shall not be excused from answering any questions
relevant and material to the issue 4L. 1900, ¢. 150,
‘£5, 8, pp. 363, 364). 7
24 :81-5 Personal Privilege Generally.
No witness shall be compelled: to answer any ques
tion if the answer will expose himi tO a criminal
prosecution or penalty or toa forfeiture of his estate
(L. 1900, e. 150, § 8, p. 264). © -,
Gexerat Btsixess Law: :
(MeKinney’s Vol. 19, Consol. Laws)
‘352. Investigation by Attorney General.
5. * © ©. Any officer participating in such inquiry and
any person ‘examined as a witness upon such inquiry who
, .
18a
Appendiz ‘‘ E’’—Statutes Involved °
shall disclose to any person other than the attorney-general
the name of any witness examined or any other informa-
tion obtained upon such inquiry: except as directed by the
attorney-general shall be guilty of a misdemeanor. Added
L. 1921, c. 649; amended L. 1923, c. 600, § 1; L. 1925, ¢. 239,
§1; L. 1926, c. 617, §1; L. 1927, c. 365; L. 1932, c. 214;
L. 1935, ¢. 271; L. 1949, c. 525; L. 1955, ¢. 553, § 1, eff. April
21, 1955. | —
*
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