New York Law Review

Tag: Criminal Contempt

  • People v. Fischer, 53 N.Y.2d 178 (1981): Criminal Contempt and Evasive Testimony Before a Grand Jury

    53 N.Y.2d 178 (1981)

    To sustain a conviction for criminal contempt based on evasive answers before a grand jury, the prosecution does not need to prove that the underlying event or conversation referenced in the questions actually occurred.

    Summary

    Defendant, an attorney, was convicted of criminal contempt for giving evasive answers to a grand jury investigating misconduct. Specifically, he repeatedly claimed he didn’t recall a conversation with another attorney, Abe Brown, about a potential bribe. The New York Court of Appeals affirmed the conviction, holding that the prosecution wasn’t required to prove the alleged conversation with Brown actually occurred. The critical issue was whether the defendant intentionally evaded answering the questions, not whether the underlying facts were true. The court reasoned that evasive contempt hinges on the intent to avoid answering, regardless of the truth of the matter being investigated.

    Facts

    The defendant, a practicing attorney, appeared before a grand jury investigating possible misconduct by Abram Brown, a law assistant. The defendant was asked if Brown had told him that another law assistant, identified as Brown’s cousin, expected a payment from the defendant in return for a favorable decision for the defendant’s client. The defendant repeatedly responded that he did not recall the conversation or statement.

    Procedural History

    The defendant was charged with six counts of criminal contempt. His first trial ended in a mistrial. At the second trial, he was acquitted of two counts, but the jury deadlocked on the remaining four. At the third trial, one count was dismissed, he was acquitted on two counts, and the jury found him guilty on one count. The Appellate Division affirmed the conviction. The New York Court of Appeals granted permission to appeal.

    Issue(s)

    Whether the prosecution must prove that the event, conversation, or other fact referred to in the grand jury questions actually occurred to sustain a conviction for criminal contempt based on evasive answers.

    Holding

    No, because the essence of criminal contempt based on evasive testimony is whether the defendant intended to avoid answering the question, not whether the underlying facts are true or false.

    Court’s Reasoning

    The court distinguished between the “happening” of an event and the “telling” about it. The questions focused on whether Abe Brown made a statement to the defendant, not on the underlying transaction itself. Therefore, the prosecution did not need to prove the underlying event occurred. The court stated that conviction for “evasive contempt” must be based on a determination that there was a refusal to answer a material question before the Grand Jury. The essence of the conviction is that the jury finds beyond a reasonable doubt that the defendant’s response was intended as no answer at all and was thus tantamount to a refusal to answer. The court emphasized, “It is not the content of the answer on which a conviction for contempt can be based; it is that in the circumstances in which the question is asked and the response given, whatever may be the normal denotation of the words spoken, the jury is warranted in concluding, as it did in this case, that the words were spoken with intent to evade making an answer.” The court rejected the defendant’s argument that the trial court erred by refusing to charge the jury that the prosecution had to prove the underlying event occurred. The court stated that such a charge would have improperly led the jury into consideration of a collateral and extraneous issue of fact, and might inadvertently have led them to an unwarranted verdict on the contempt charge based on their evaluation of the truth or falsity of defendant’s answers.

  • People v. Fischer, 47 N.Y.2d 1049 (1979): Sufficiency of Initial Warnings for Evasive Contempt Before a Grand Jury

    People v. Fischer, 47 N.Y.2d 1049 (1979)

    A Grand Jury witness who has been granted immunity and warned about evasive contempt need not be contemporaneously warned that their answers are evasive to be charged with criminal contempt, provided the initial warnings were adequate.

    Summary

    The case addresses whether a Grand Jury witness, granted immunity and warned about evasive contempt, requires subsequent real-time warnings during testimony to be charged with criminal contempt for evasive answers. The New York Court of Appeals held that contemporaneous warnings are not required if the initial warnings adequately informed the witness of their immunity and potential liability for perjury or evasive responses. The court emphasized that fundamental fairness requires informing the witness of their immunity but rejected a rule mandating repeated warnings during the testimony, provided the initial warning was sufficient and the questioning did not constitute a ‘contempt trap’.

    Facts

    Fischer, an auctioneer involved in selling property related to a matrimonial action, testified before a Grand Jury investigating corruption allegations within that action. He was granted immunity but warned about potential perjury or contempt charges for false or evasive answers. During his first appearance, the District Attorney explained the nature of the investigation and potential penalties for perjury or contempt, specifically defining evasive contempt. In a subsequent appearance, Fischer was questioned about a conversation concerning a judge’s relationship with a party in the matrimonial action. Finally, he was asked whether he had mentioned a kickback scheme involving the referee in the matrimonial action, to which he responded vaguely, claiming he couldn’t recall. He was subsequently indicted for criminal contempt for giving evasive answers.

    Procedural History

    The Supreme Court, New York County, dismissed the indictment, relying on a case requiring contemporaneous warnings for evasive contempt. The Appellate Division, First Department, reversed, holding that the prior warnings and repeated questioning sufficiently apprised Fischer of his vulnerability to a contempt charge. Fischer appealed to the New York Court of Appeals.

    Issue(s)

    Whether a Grand Jury witness, granted immunity and initially warned about potential contempt for evasive answers, must receive contemporaneous warnings during their testimony to be charged with criminal contempt for those evasive answers.

    Holding

    No, because the initial warnings regarding immunity and the consequences of evasive answers were sufficient to put the witness on notice of potential criminal liability, and the prosecutor’s questioning did not constitute a “contempt trap”.

    Court’s Reasoning

    The Court of Appeals held that fundamental fairness requires informing a Grand Jury witness of the extent of their immunity. However, it rejected the requirement of contemporaneous warnings for evasive contempt, distinguishing it from the requirements of summary contempt proceedings. The court emphasized that the initial warnings, coupled with the repeated questioning, were sufficient to inform Fischer of his potential liability. The court distinguished the case from scenarios where the prosecutor attempts to trap the witness. Here, the prosecutor carefully reframed and repeated the questions. The court referenced People v. Ianniello, noting that a contempt conviction was upheld even when the defendant was never brought before the court and directed to give a more responsive answer. The court stated that the witness should be informed that they will not be immune from prosecution for perjury if they lie, or for contempt if they refuse to answer or give evasive replies, but the prosecutor isn’t required to repeat the admonition every time the witness’ testimony becomes vague or evasive.

  • People v. De Salvo, 32 N.Y.2d 12 (1973): Waiver of Objections in Grand Jury Testimony

    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.

  • Judiciary Law §791: Who Gets Fines for Criminal Contempt?

    In the Matter of the Application of David B. Coston, as County Clerk of New York County, for a Judgment Declaring Whether the City of New York or the State of New York is Entitled to Receive Fines Imposed in Certain Criminal Contempt Proceedings., 29 N.Y.2d 124 (1971)

    Fines imposed for criminal contempt of court are payable to the treasurer of the county in which the court imposing them is sitting, pursuant to Judiciary Law § 791.

    Summary

    This case concerns the disposition of fines levied against public employee unions for criminal contempt for violating the Taylor Law, which prohibits strikes by public employees. The County Clerk of New York County brought a declaratory judgment action to determine whether the City of New York or the State of New York was entitled to receive the fines. The New York Court of Appeals held that, pursuant to Judiciary Law § 791, the fines were payable to the treasurer of the county in which the court imposing the fines was sitting, which in this case was the City of New York’s finance administrator.

    Facts

    Three New York City unions, representing sanitation workers, teachers, and supervisory school personnel, were found guilty of criminal contempt for violating the Taylor Law by striking. The Supreme Court, New York County, fined the unions, resulting in a total of nearly $500,000. The County Clerk held these funds, and both the City and State claimed entitlement to them, leading to the declaratory judgment action.

    Procedural History

    The Supreme Court, New York County, granted summary judgment in favor of the City of New York, concluding that the City was entitled to the funds. The Appellate Division unanimously affirmed the judgment. The New York Court of Appeals granted the State leave to appeal.

    Issue(s)

    Whether fines imposed for criminal contempt of court for violating the Taylor Law are payable to the State of New York or to the county in which the court imposing the fines is sitting, pursuant to Judiciary Law § 791.

    Holding

    No, because under Judiciary Law § 791, fines for criminal contempt are payable to the treasurer of the county in which the court imposing them is sitting.

    Court’s Reasoning

    The Court of Appeals relied on Judiciary Law § 791, which governs the disposition of fines when no special provision has been made. This section directs the clerk of the court to issue a warrant to the sheriff, commanding them to collect the fine and pay it to the county treasurer. The court emphasized the criminal nature of contempt proceedings, stating that a fine for criminal contempt is a “punishment for the wrong in the interest of public justice, and not in the interest of an individual litigant.” The court reasoned that, similar to other criminal offenses where fines are payable to local subdivisions or county treasurers, fines for criminal contempt should be paid to the treasurer of the county where the court is located. The court rejected the State’s argument that § 791 only describes the procedure for collecting fines and does not address title, stating that statutes rarely specify which governmental body receives title when directing payment to a county or city treasurer. The court also dismissed the State’s reliance on the Finance Law, noting that those provisions only apply after it has been established that the fines belong to the State, which was not the case here. The court found that the City, through its finance administrator, was the proper recipient of the fines.

  • People v. Tramunti, 29 N.Y.2d 83 (1971): Adequacy of Immunity Notice to Grand Jury Witness

    People v. Tramunti, 29 N.Y.2d 83 (1971)

    A grand jury witness must receive full and fair notice of transactional immunity for their testimony to be compelled, and a vague or misleading description of the immunity granted is insufficient.

    Summary

    Carmine Tramunti was convicted of criminal contempt for refusing to answer questions before a grand jury. The New York Court of Appeals reversed the conviction, holding that the Assistant District Attorney’s explanation of the immunity granted to Tramunti was inadequate. The court found that the prosecutor’s statements failed to provide full and fair notice that Tramunti was receiving transactional immunity, which protects a witness from prosecution for any transaction about which they testify. Because the notice was insufficient, Tramunti’s refusal to answer questions could not be the basis for a contempt charge.

    Facts

    Carmine Tramunti was called as a witness before a Bronx County Grand Jury. He refused to answer questions. An Assistant District Attorney informed Tramunti that the grand jury had voted to grant him immunity pursuant to section 619-c of the Code of Criminal Procedure. The prosecutor then attempted to explain the grant of immunity to Tramunti. The prosecutor stated that Tramunti could not be prosecuted for any crime he might be forced to testify against himself about or for any evidence obtained as a result of his testimony that might inferentially lead to his having violated something.

    Procedural History

    Tramunti was convicted of criminal contempt in the trial court for refusing to answer questions before the grand jury. The Appellate Division affirmed the judgment of conviction. Tramunti appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Assistant District Attorney adequately advised Tramunti that he had been granted transactional immunity, such that his refusal to answer questions could support a charge of criminal contempt.

    Holding

    No, because the Assistant District Attorney’s explanation of the immunity granted to Tramunti was vague and suggested that he was only receiving limited testimonial or use immunity, not the full transactional immunity required to compel his testimony.

    Court’s Reasoning

    The Court of Appeals reasoned that a witness must receive “full and fair notice” that he is being given transactional immunity. The court found the District Attorney’s statements to be “almost unintelligible” and falling far short of the required notice. The court emphasized that transactional immunity is “immunity in displacement of the privilege against self incrimination.” The prosecutor’s statements seemed to suggest that Tramunti was receiving only limited testimonial or use immunity, which is insufficient to compel testimony. The Court referenced People v. Masiello, 28 N.Y.2d 287 (1971) and People v. Mulligan, 29 N.Y.2d 20 (1971), emphasizing the need for clear and unequivocal notice of transactional immunity. Because Tramunti did not receive adequate notice of transactional immunity, his refusal to answer questions could not be the basis for a contempt charge.

  • People v. Chestnut, 26 N.Y.2d 481 (1970): Intentional Discrimination Required to Show Jury Bias

    People v. Chestnut, 26 N.Y.2d 481 (1970)

    To successfully challenge a jury’s composition based on underrepresentation of a minority group, a defendant must prove intentional and systematic exclusion, not merely demonstrate a statistical disparity.

    Summary

    Six defendants were convicted of criminal contempt for refusing to answer questions before a grand jury after being granted immunity. They challenged the convictions, arguing that the grand jury was unlawfully constituted due to the underrepresentation of minority groups. The New York Court of Appeals affirmed the convictions, holding that a statistical disparity in jury representation is insufficient to prove a constitutional violation without evidence of intentional and systematic discrimination in the jury selection process. The court emphasized that the state does not have an affirmative duty to ensure proportional representation on juries, absent discriminatory intent.

    Facts

    The defendants were called as witnesses before a New York County Grand Jury investigating riots. The Grand Jury granted them immunity. The defendants refused to answer questions, even after being directed to do so by the foreman. The Grand Jury directed the District Attorney to file informations against each defendant for criminal contempt.

    Procedural History

    The defendants sought to remove the case to the U.S. District Court, claiming racial discrimination in jury selection, but the court lacked jurisdiction. They then applied to the New York Supreme Court to revoke approval of the Grand Jury’s directive. After a hearing, the Supreme Court denied the motion. The defendants were convicted in the Criminal Court, and the Appellate Term affirmed the convictions. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a statistical disparity in the representation of minority groups on a grand jury, without evidence of intentional discrimination, violates a defendant’s constitutional rights?
    2. Whether the state has an affirmative duty to ensure that juries are composed of a cross-section of the community, regardless of discriminatory intent in the jury selection process?
    3. Whether multiple contempt charges were appropriate when the defendants made it clear from the outset that they would not answer any questions?

    Holding

    1. No, because intentional and systematic discrimination must be proven, and a showing of mathematical disparity alone is insufficient.
    2. No, because the Constitution does not mandate a compulsory system to ensure proportional representation of minority groups on grand jury panels if there is no proof of intentional exclusion.
    3. No, because the defendants’ refusal to answer questions about a particular subject constituted a single act of contempt.

    Court’s Reasoning

    The Court of Appeals relied on precedent, stating that intentional and systematic discrimination must be proven to sustain a claim of an illegally constituted jury. A mere showing of mathematical disparity is insufficient. The court distinguished Supreme Court cases, noting that while statistical disparity can be evidence of purposeful discrimination, it is not grounds, in itself, for concluding a jury is impermissibly constituted.

    The court noted the absence of evidence indicating a policy of purposeful exclusion of minority groups. The underrepresentation of minority groups on grand juries was attributed to their reluctance to volunteer for jury duty, which does not establish unconstitutional discrimination. The court found the County Clerk’s office tried diligently to fulfill their statutory duty to select grand jurors who are “intelligent; of sound mind and good character [and] well informed.”

    The court also addressed the multiple counts of contempt, citing People v. Riela, holding that a witness’s refusal to answer questions about a particular subject constitutes a single act of contempt, regardless of the number of questions asked. The court modified the judgments to reflect a single count of contempt for each defendant (except Shallit, who only had one count to begin with).

  • Rankin v. Shanker, 23 N.Y.2d 111 (1968): No Right to Jury Trial in Public Employee Strike Contempt Cases

    Rankin v. Shanker, 23 N.Y.2d 111 (1968)

    Public employees and their unions do not have a statutory or constitutional right to a jury trial in criminal contempt proceedings for violating no-strike provisions, distinguishing them from private sector employees.

    Summary

    This case addresses whether public employees and their unions are entitled to a jury trial in criminal contempt proceedings for violating the Taylor Law’s prohibition against strikes. The Court of Appeals held that neither statutory nor constitutional provisions grant this right. The court reasoned that historical precedent and policy considerations justify treating public and private sector employees differently regarding the right to strike and jury trials for related contempt charges. Prompt resolution of public sector strike-related contempt is crucial to prevent severe disruption of essential services.

    Facts

    The Corporation Counsel of New York City sought an order to punish the defendants (public employees and their unions) for criminal contempt. The claim was that they willfully disobeyed a temporary injunction issued by the Supreme Court restraining them from striking. The defendants demanded a jury trial, arguing they were entitled to it by statute and the Constitution. Special Term rejected their demand, and the Appellate Division affirmed.

    Procedural History

    1. Supreme Court issued a temporary injunction against the strike.
    2. Defendants violated the injunction.
    3. Corporation Counsel sought criminal contempt charges.
    4. Special Term denied the defendants’ request for a jury trial.
    5. Appellate Division affirmed the denial.
    6. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether public employees and their unions are entitled to a jury trial as a matter of statutory right under Judiciary Law § 753-a or Labor Law § 808 in criminal contempt proceedings for violating the Taylor Law’s no-strike provisions.
    2. Whether denying public employees and their unions a jury trial in such proceedings violates the equal protection clauses of the United States or New York State Constitutions.
    3. Whether the Fifth, Sixth, or Fourteenth Amendments to the U.S. Constitution mandate a jury trial in these circumstances.

    Holding

    1. No, because the Taylor Law was not intended to provide jury trials in contempt enforcement proceedings, and the reference to Labor Law § 807 does not create a right to a jury trial under § 808.
    2. No, because a legitimate distinction between public and private employment is constitutionally permissible regarding the right to strike and jury trials for violations.
    3. No, because the potential penalties for contempt are not “serious” enough to trigger the constitutional right to a jury trial under the Sixth and Fourteenth Amendments.

    Court’s Reasoning

    The court reasoned that sections 807 and 808 of the Labor Law, and Judiciary Law, § 753-a, are successors to a provision enacted in the 1930s, New York’s Little Norris-LaGuardia Act and that for decades, these provisions have been held inapplicable to public employees. The court stated that the Legislature would have explicitly granted a right to a jury trial if it had intended to do so. Furthermore, the court stated that statutes which divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect.

    Regarding the constitutional claims, the court relied on United States v. Mine Workers, stating that a distinction between public and private employment is permissible. The court noted the necessity of prompt determinations in criminal contempt proceedings under the Taylor Law to deter public strikes. The court stated that a reasonable distinction may be drawn between public and private employment. The court cited McGowan v. Maryland, stating, “The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.”

    Finally, the court addressed the defendants’ argument that the Federal Constitution requires a trial by jury. Citing Bloom v. Illinois, the court stated that the decision is limited in its application to “serious” crimes in contradistinction to “petty” offenses. The court determined that the maximum punishment to which the individual defendants are subject—30 days in jail and a fine of $250—does not constitute a “serious” crime. The determination of whether a crime is serious or petty turns not on the amount of the fine which may be imposed but solely on the length of the prison sentence.

  • People v. Ianniello, 21 N.Y.2d 418 (1968): Grand Jury Witness’s Right to Counsel

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

    A grand jury witness has a right to consult with counsel outside the grand jury room concerning legal rights, but the denial of that right does not give the witness a license to commit perjury or contempt; instead, the witness must persist in refusing to answer, forcing the prosecutor to seek a court ruling.

    Summary

    Ianniello, a bar owner, was indicted for criminal contempt based on allegedly evasive answers to grand jury questions during an investigation into bribery. He was denied permission to consult with his lawyer during questioning. The trial court dismissed the indictment, arguing denial of counsel. The appellate court affirmed, reasoning that Ianniello was a target of the investigation and thus immune. The Court of Appeals reversed, holding that evasive testimony can be prosecuted as contempt, even if the witness is a potential defendant, and that while a grand jury witness has a right to consult with counsel about legal rights, Ianniello’s request was a strategic delay tactic, and thus his contempt charges are valid.

    Facts

    Ianniello, owner of two bars, was called before a grand jury investigating a bribery conspiracy involving police and officials of the State Liquor Authority. He initially refused to be sworn in, citing a pending misdemeanor case. He was assured he was called solely as a witness and offered immunity. He was questioned about conversations with Benny Cohen regarding police payoffs. When he claimed he could not recall these conversations, the prosecutor reminded him of the immunity and his obligation to be truthful. Ianniello asked to consult his attorney to determine if the question was “proper.” This request was denied. He continued to claim he did not recall the conversations. Later, he was questioned about a meeting with Sergeant O’Shea and again claimed he did not recall the conversation. He also claimed he couldn’t recall if anyone had told him to stay away from Sergeant O’Shea or if he had entertained police officers at his farm.

    Procedural History

    The Grand Jury indicted Ianniello for criminal contempt. The Supreme Court, New York County, dismissed the indictment. The Appellate Division affirmed the dismissal. The New York Court of Appeals reversed the Appellate Division’s order and reinstated the indictment.

    Issue(s)

    1. Whether a grand jury witness who is a potential defendant or target of investigation can be prosecuted for contempt based on evasive testimony.
    2. Whether a grand jury witness has a right to consult with counsel during questioning, and if so, under what circumstances.

    Holding

    1. Yes, because the witness still has the benefit of an exclusionary rule preventing the use of compelled testimony or its fruits in a prosecution for a previously committed substantive crime.
    2. Yes, but only when the witness requests counsel concerning legal rights, not for strategic advice. In this case, the denial was not improper because the witness’s request was a strategic delay tactic.

    Court’s Reasoning

    The Court of Appeals reasoned that the rule against prosecuting a target witness for contempt was undermined by People v. Tomasello, which held that a witness could be prosecuted for perjury even if a target. The Court stated that a witness cannot have a “license to commit perjury.” The “use” of testimony to establish contempt is different than using it to establish a prior offense. Even if Ianniello was a target, he could be punished for evasive testimony. Regarding the right to counsel, the court acknowledged that a witness has no right to have counsel present in the grand jury room, but the court then addressed the question of whether a witness has the right to leave the room to consult with counsel. The court stated that while a grand jury proceeding is an investigation, not a prosecution, counsel is important to provide notice of rights. The court has a responsibility to prevent unfairness in grand jury proceedings, because the grand jury is an “arm of the court.” A witness may need counsel to determine whether to assert their privilege against self-incrimination, whether a question is relevant to the investigation, or whether a testimonial privilege applies. However, the court emphasized that a witness cannot commit perjury or contempt if their right to counsel is denied; they must persist in refusing to answer, forcing the prosecutor to seek a court ruling. The court found that Ianniello’s request for counsel was not made in good faith because it was limited to whether the question was “proper” and the relevance of the question was not in doubt. Further, he never requested advice on testimonial privileges or self-incrimination, and he had been repeatedly told he was being given immunity. Finally, the court noted that three of the contempt counts were based on testimony given after a week’s recess, during which Ianniello had the opportunity to consult with counsel. The court concluded that Ianniello’s answers “could be found evasive by a jury” and thus he could be held in contempt because his answers were “so false and evasive as to be equivalent to no answer at all.”