People v. De Salvo, 32 N.Y.2d 12 (1973)

A witness who asserts only the privilege against self-incrimination before a grand jury and is subsequently granted immunity waives any other grounds, such as an illegal search, for refusing to testify and cannot assert such grounds as a defense to a contempt charge.

Summary

De Salvo was convicted of criminal contempt for refusing to answer questions before a Grand Jury after being granted immunity. He argued that his appearance before the Grand Jury stemmed from an illegal search and seizure. The New York Court of Appeals held that De Salvo waived this objection by initially asserting only his Fifth Amendment privilege against self-incrimination and accepting immunity. The court reasoned that he should have raised the illegal search issue during his Grand Jury appearance, allowing the prosecutor to address it. By failing to do so and accepting immunity, De Salvo forfeited his right to challenge the contempt charge based on the alleged illegal search.

Facts

In November 1968, police searched a restaurant in the Bronx and De Salvo, finding him in possession of a loaded revolver, wager slips, and eavesdropping devices. De Salvo claimed the search warrant was ineffective and illegal as to him.
In March 1969, De Salvo was called before a Grand Jury investigating gambling activities. He refused to answer questions based on self-incrimination. He consulted with counsel and was granted transactional and testimonial immunity. However, De Salvo continued to refuse to answer questions.

Procedural History

De Salvo was indicted for criminal contempt. He moved to dismiss the indictment, arguing his Grand Jury appearance resulted from an illegal search. The motion was denied. He was convicted at trial and sentenced to imprisonment and a fine. The Appellate Division affirmed the conviction. This appeal followed to the New York Court of Appeals.

Issue(s)

Whether a witness who refuses to answer questions before a Grand Jury based on self-incrimination, is granted immunity, and *then* refuses to answer, can later challenge a contempt conviction based on the argument that the Grand Jury appearance was prompted by an illegal search, when that argument was not raised initially.

Holding

No, because by initially asserting only his Fifth Amendment privilege against self-incrimination and accepting immunity, De Salvo waived any other grounds for refusing to testify, and he cannot assert those omitted grounds as a defense to the contempt charge.

Court’s Reasoning

The court distinguished Gelbard v. United States, which allowed witnesses to invoke the illegality of electronic eavesdropping as a defense to a contempt charge, because that case involved a federal statute prohibiting the use of illegal wiretaps before a Grand Jury and, crucially, the witnesses in Gelbard expressly refused to testify on the ground of illegal wiretaps. The court emphasized that De Salvo never raised the illegal search as a reason for refusing to testify before the Grand Jury. The court cited Lanza v. New York which stated that it would be “a completely unprecedented step” to hold that a witness could not constitutionally be convicted for refusing to answer questions related to an unlawfully overheard conversation, suggesting the importance of contemporaneous objection. By failing to raise the issue of the illegal search when he first refused to testify, the prosecutor was misled into granting immunity. The court reasoned, “The obtaining of immunity, especially transactional immunity, may be a highly desired end. Such immunity could only be obtained by a claim of a privilege against self incrimination, with the prospect to the People, if immunity were granted, that useful testimony would follow. The granting of immunity would be a futility to the People if then the witness could assert the nullity of the questioning on some ground suppressed until immunity had been first obtained.” The court noted that the proper procedure for challenging Grand Jury questions, as outlined in People v. Ianniello, requires the witness to assert their right and force the prosecutor to take the issue to open court for a ruling. Failing to do so results in a waiver of the objection.