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.