New York Law Review

Tag: grand jury

  • People v. Feliciano, 32 N.Y.2d 140 (1973): Sufficiency of Evidence for Accomplice Liability in Drug Possession

    People v. Feliciano, 32 N.Y.2d 140 (1973)

    Evidence presented to a grand jury is legally sufficient to indict a defendant as an accomplice if it establishes a prima facie case supporting the inference that the defendant aided and abetted the principal in committing the charged offense.

    Summary

    Feliciano and Gonzalez were indicted for possession of a dangerous drug after Santana was caught with marijuana, and they were nearby in a car. The prosecution argued they were accomplices who intended to help Santana escape. The trial court dismissed the indictment against Feliciano and Gonzalez, which the Appellate Division affirmed. The New York Court of Appeals reversed, holding that the evidence presented to the grand jury was legally sufficient to establish a prima facie case that Feliciano and Gonzalez aided and abetted Santana, thus making them liable as principals.

    Facts

    Customs officers received information about an attempt to land marijuana from a ship at Pier 3 in Brooklyn. Santana disembarked from the ship carrying ten pounds of marijuana. Feliciano and Gonzalez were parked nearby in an automobile. As Santana fled from the customs officers, discarding the marijuana, Feliciano and Gonzalez drove their car towards Santana, who then entered the rear seat of the vehicle.

    Procedural History

    A Kings County grand jury indicted Feliciano, Gonzalez, and Santana for possession of a dangerous drug in the third degree. Feliciano and Gonzalez moved for dismissal of the indictment. The trial court denied Santana’s motion but granted the motions of Feliciano and Gonzalez. The Appellate Division affirmed the trial court’s decision. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the evidence presented to the grand jury was legally sufficient to establish that Feliciano and Gonzalez committed the offense of possession of a dangerous drug in the third degree as accomplices to Santana.

    Holding

    1. Yes, because the evidence before the grand jury supported the inference that Feliciano and Gonzalez were parked where they were and acted as they did to aid and abet Santana in possessing the marijuana.

    Court’s Reasoning

    The Court of Appeals held that the evidence presented to the grand jury was legally sufficient, within the meaning of CPL 190.65, to establish a prima facie case that Feliciano and Gonzalez committed the offense charged. The court reasoned that the evidence supported the inference that they were present to aid and abet Santana in possessing the marijuana, making them accomplices and therefore principals in the commission of the offense under Penal Law § 20.00. The court stated, “In our view, the evidence before the grand júry was ‘ legally sufficient’, within the sense of the applicable statute (CPL 190.65), ‘ to establish ’ that Feliciano and Gonzalez committed the offense charged against them: prima facie, such évidence supported the inference that they were parked where they w’ere, and acted as they did, to aid and abet Santana—who physically possessed the marijuana—to commit the crime charged of possessing a dangerous drug in the third degree.” The court also noted that even if the evidence was insufficient to establish the full crime, it was at least sufficient to establish the lesser included crime of an attempt to commit the crime charged in the indictment, as the dissenting Appellate Division justices had observed. The court did not address the lawfulness of the arrest or search and seizure, deeming it unnecessary for the determination of the case.

  • 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.

  • 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.

  • Anonymous v. Baker, 32 A.D.2d 138 (N.Y. App. Div. 1969): Compelling Testimony of Grand Jury Target

    32 A.D.2d 138 (N.Y. App. Div. 1969)

    A prospective defendant or target of a grand jury investigation can be compelled to appear before the grand jury, and the issuance of a subpoena for this purpose does not, by itself, violate the target’s Fifth Amendment rights.

    Summary

    Faculty members at SUNY Stony Brook, subjects of a grand jury investigation into campus drug use, sought to quash subpoenas compelling their appearance. They argued that as targets of the investigation, they couldn’t be forced to testify, citing Fifth Amendment concerns and academic freedom. The court held that being subpoenaed to appear before a grand jury does not violate a target’s Fifth Amendment rights. The court also found that academic freedom is not violated by requiring teachers to appear before a grand jury to discuss matters relevant to an investigation of misconduct. The order denying the motion to quash the subpoenas was affirmed.

    Facts

    Faculty members at the State University of New York at Stony Brook were subpoenaed to appear before a Suffolk County Grand Jury investigating potential drug abuse on campus. The District Attorney acknowledged the faculty members were targets of the investigation. The faculty members were expected to be asked questions about their own drug use with students, advocacy of illegal drug use to students, and discussions with administrators about such advocacy or use.

    Procedural History

    The faculty members initiated an action to quash the subpoenas. The application to quash was denied by the trial court. The Appellate Division affirmed the denial. The case then was appealed to the New York Court of Appeals based on constitutional questions.

    Issue(s)

    1. Whether prospective defendants or targets of a Grand Jury investigation may be compelled to attend a Grand Jury hearing without violating their Fifth Amendment rights?
    2. Whether compelling teachers to respond to a subpoena to appear before a grand jury violates their First Amendment right to academic freedom?

    Holding

    1. No, because the Fifth Amendment does not prevent a prospective defendant from being compelled to at least attend a grand jury investigation.
    2. No, because no constitutional right is violated by a subpoena requesting a teacher to appear before a Grand Jury inquiry and discuss matters relevant to an investigation of misconduct, which he may freely discuss in a classroom.

    Court’s Reasoning

    The court distinguished this case from prior New York cases (People v. Steuding and People v. Laino), which held that a prospective defendant could not be both called and examined before a grand jury without immunity from self-incrimination. Those cases were deemed inapplicable as the present case only involved the issuance of a subpoena, not compelled testimony.

    The court relied on Supreme Court decisions in Gardner v. Broderick and Sanitation Men v. Sanitation Comr., stating that they suggest a public employee who is a target of an investigation may be subpoenaed by a Grand Jury without automatically violating the employee’s Fifth Amendment rights. The court emphasized that those cases affirm the right of public employees to invoke their Fifth Amendment privilege against self-incrimination, but do not preclude being subpoenaed.

    Addressing the First Amendment argument, the court distinguished the case from Keyishian v. Board of Regents and Dombrowski v. Pfister, where state laws were found to be unconstitutional because they infringed upon First Amendment rights. The court noted that there were no statutes attempting to proscribe conduct in this case. The court reasoned that the teachers’ argument that they would be intimidated in their lectures by the potential threat of a grand jury appearance does not amount to a violation of constitutional rights. As the court stated, “no constitutional right is violated by a subpoena which requests a teacher to appear before a Grand Jury inquiry and discuss matters — relevant to an investigation of misconduct— which he may freely discuss in a classroom.”

    The court explicitly stated that mere discussion or advocacy of conduct that might itself be criminal is different from the actual solicitation of crime with the specific intent of having it committed. Only the latter may be constitutionally prohibited.

  • 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.”

  • People v. Tomasello, 21 N.Y.2d 143 (1967): Perjury Prosecution of a Grand Jury Target

    21 N.Y.2d 143 (1967)

    A prospective defendant or target of a grand jury investigation is not immune from perjury prosecution for knowingly false testimony, even if compelled to testify, as the immunity protects against past crimes, not the act of perjury itself.

    Summary

    Tomasello, a target in a grand jury investigation into the theft of topsoil, was indicted for perjury after denying he received topsoil from Zara Contracting Company. He moved to dismiss the indictment, arguing his constitutional rights were violated because he was compelled to testify against himself. The lower courts agreed, but the Court of Appeals reversed, holding that while Tomasello’s compelled testimony grants him immunity from prosecution for substantive crimes related to the topsoil theft, it does not shield him from perjury if he lied under oath. The court reasoned that immunity is for past crimes, not a license to commit perjury during testimony.

    Facts

    The Attorney-General initiated an investigation into crimes related to public works projects. A grand jury in Suffolk County investigated Zara Contracting Company for allegedly stealing topsoil from a Long Island Expressway construction site. Alfred Tomasello was subpoenaed after evidence suggested he received building materials from Zara for private construction. Tomasello denied receiving topsoil or other materials from Zara.

    Procedural History

    The grand jury indicted Tomasello for first-degree perjury. Tomasello moved to dismiss the indictment, arguing his constitutional rights were violated. The Supreme Court granted the motion, dismissing the indictment. The Appellate Division affirmed, relying on prior case law. The Court of Appeals reversed the Appellate Division’s order and reinstated the indictment, but allowed Tomasello to renew his motion based on insufficient evidence before the grand jury.

    Issue(s)

    Whether a prospective defendant or target of a grand jury investigation is immune from indictment and prosecution for perjury if their testimony is found to be willfully false, despite the fact that their testimony was compelled and thus grants immunity from prosecution for substantive crimes based on that testimony?

    Holding

    No, because the constitutional privilege against self-incrimination protects against prosecution for past crimes, but does not provide a license to commit perjury; therefore, compelled testimony, while granting immunity from substantive crimes, does not shield a witness from perjury charges if the testimony is knowingly false.

    Court’s Reasoning

    The Court reasoned that automatic protection from prosecution for substantive crimes based on compelled testimony should not simultaneously immunize the witness from perjury if they knowingly lie. The court adopted the reasoning from Glickstein v. United States, stating, “it cannot be conceived that there is power to compel the giving of testimony where no right exists to require that the testimony shall be given under such circumstances, and safeguards as to compel it to be truthful…the immunity afforded by the constitutional guarantee relates to the past and does not endow the person who testifies with a license to commit perjury.” The Court emphasized that the privilege protects against compelled self-incrimination regarding past acts, not future acts of perjury committed during the testimony itself. The court quoted Wigmore on Evidence: “the perjured utterance is not ‘evidence’ or ‘testimony’ to a crime but is the very act of crime itself; the compulsion is not to testify falsely but to testify truly”. The Court concluded that allowing perjury to go unpunished would undermine justice. The court also addressed Tomasello’s other grounds for dismissal. It affirmed the Attorney-General’s authority to appear before the grand jury. Finally, the court remanded the case to allow Tomasello to challenge the sufficiency of the evidence supporting the perjury indictment.