New York Law Review

Tag: perjury

  • People v. Perino, 18 N.Y.3d 88 (2011): Defining Materiality in Perjury Cases

    People v. Perino, 18 N.Y.3d 88 (2011)

    A false statement is material for perjury purposes if it directly proves a fact in issue, circumstantially supports a witness’s credibility regarding a main fact, or reflects on the matter under consideration, even if only concerning a witness’s credibility.

    Summary

    The defendant, a former police officer, was convicted of perjury for falsely answering questions during the trial of Erik Crespo, whom the defendant had interrogated. The defendant denied questioning Crespo about a shooting. The Appellate Division modified the conviction, finding two of the false statements immaterial. The Court of Appeals addressed whether the defendant’s statements were material to the Crespo trial, particularly concerning the voluntariness of Crespo’s statements. The Court affirmed in part, holding that the defendant’s denial of questioning Crespo was material because it related to the spontaneity and voluntariness of Crespo’s statement to his mother.

    Facts

    The defendant, a police detective, interrogated Erik Crespo about a shooting without reading him his Miranda rights. Crespo confessed and recorded the interrogation. After the interrogation, Crespo told his mother, “He wants to know why I shot him.” At Crespo’s trial, the defendant testified that he never questioned Crespo and denounced a transcript of the interrogation as a fabrication. Crespo received a reduced plea offer because of the defendant’s false testimony.

    Procedural History

    The defendant was convicted of perjury. The Appellate Division modified the judgment, reducing two counts of first-degree perjury to third-degree perjury, finding the false statements about the gun were not material. Both the People and the defendant appealed. The Court of Appeals considered whether the remaining statements were material.

    Issue(s)

    1. Whether the defendant’s false statement that he did not question Crespo was material to the Crespo trial.

    Holding

    1. Yes, because the statement was relevant to the jury’s determination of whether Crespo’s statement to his mother was truly spontaneous and voluntary or triggered by police conduct.

    Court’s Reasoning

    The Court of Appeals reasoned that a false statement is material if it is circumstantially material or tends to support the witness’s credibility. Quoting People v. Davis, 53 NY2d 164, 170-171, the Court noted that a statement that reflects on the matter under consideration, even if only as to the witness’ credibility, is material. The Court emphasized that the defendant’s denial of questioning Crespo was material because it pertained to the jury’s determination of whether Crespo’s statement to his mother was spontaneous and voluntary. The Court referenced People v. Lynes, 49 NY2d 286, 295 (1980), stating that the jury needed to determine if the statement was triggered by police conduct reasonably anticipated to evoke such a statement. The Court found that the Appellate Division’s modification regarding the gun-related questions was a factual determination and thus not reviewable. The Court also dismissed the defendant’s claim of a perjury trap.

  • People v. Zimmerman, 9 N.Y.3d 421 (2007): Establishing County Jurisdiction Based on ‘Particular Effect’

    9 N.Y.3d 421 (2007)

    For a county to assert criminal jurisdiction over an offense based on its ‘particular effect’ under CPL 20.40(2)(c), the defendant must have intended or known that their actions would have a materially harmful impact on the governmental processes or community welfare of that specific county.

    Summary

    The New York Court of Appeals held that New York County lacked jurisdiction to prosecute James Zimmerman for perjury. Zimmerman, while testifying in Ohio as part of a New York Attorney General’s antitrust investigation, allegedly made false statements. The court reasoned that the evidence presented to the grand jury did not establish that Zimmerman intended or knew his statements would have a concrete and identifiable injury to either New York County’s governmental processes or its community welfare. This case highlights the difficulty in establishing county jurisdiction when the impact of an out-of-state action is primarily felt at the state level.

    Facts

    The New York Attorney General investigated Federated Department Stores and others for antitrust violations. James Zimmerman, Federated’s CEO, testified in Ohio during the investigation. The Attorney General’s office had agreed to examine Zimmerman in Cincinnati as an accommodation. Subsequently, Zimmerman was indicted in New York County for perjury based on his testimony. The indictment alleged that his perjury was intended to prevent a particular effect in New York County and State.

    Procedural History

    The Supreme Court dismissed the indictment, finding that Zimmerman’s acts had no ‘particular effect’ on New York County. The Appellate Division affirmed, holding that the evidence did not show that Zimmerman was aware his statements would have a deleterious effect on the governmental or judicial processes of New York County. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented to the grand jury established that Zimmerman’s alleged perjury in Ohio had, or was likely to have, a particular effect upon New York County, such that New York County has jurisdiction to prosecute him for perjury under CPL 20.40(2)(c).

    Holding

    No, because the evidence presented to the grand jury did not establish that Zimmerman intended or knew that his alleged perjurious statements would have a concrete and identifiable injury to either New York County’s governmental processes or the welfare of the County’s community.

    Court’s Reasoning

    The Court of Appeals emphasized that for prosecutorial jurisdiction to lie in New York County, that county must suffer a particular effect as a result of the defendant’s alleged conduct. This requires a concrete and identifiable injury to either the county’s governmental processes or the welfare of the county’s community. The impact must be more than minor or incidental, harming the well-being of the community as a whole. The court found no evidence that Zimmerman intended or knew his actions would materially and harmfully affect New York County’s judicial processes. While Zimmerman’s perjury may have been designed to mislead the New York State Attorney General and frustrate his investigation, there was no evidence that Zimmerman’s conduct was intended to have, or was likely to have, any materially harmful impact on the governmental processes or community welfare of New York County specifically. The Court acknowledged a gap in the ‘particular effect’ venue statutory scheme, highlighting that while the State had jurisdiction, no county did. The Court noted, “[a]bsent [a] statutory exception, … the territorial unit for criminal prosecutions is [a] county”.

  • People v. DePallo, 96 N.Y.2d 357 (2001): Attorney’s Duty When Client Intends to Perjure Themselves

    People v. DePallo, 96 N.Y.2d 357 (2001)

    When a criminal defendant intends to commit perjury, defense counsel’s disclosure of an ethical dilemma to the court, without revealing client confidences, does not deprive the defendant of a fair hearing or effective assistance of counsel; the attorney must first try to dissuade the client and can disclose the intent to commit a crime to the court.

    Summary

    DePallo was convicted of second-degree murder. Prior to a Huntley hearing, his attorney sought to withdraw due to an ethical conflict, suggesting the client intended to perjure himself. The court denied the motion. The attorney then informed the court, outside the defendant’s presence, that the defendant would testify in narrative form. The defendant testified and his motion to suppress was denied because his testimony was not credible. The New York Court of Appeals affirmed the conviction, holding that counsel’s actions appropriately balanced their duty to the client and the court, and the defendant’s right to be present was not violated. This case clarifies the attorney’s responsibilities when facing potential client perjury in a bench trial setting.

    Facts

    The defendant became enraged when he heard rumors that a woman with whom he had a sexual relationship was infected with HIV. The defendant, with the aid of a 14-year-old, confronted the woman, and a fight ensued. Subsequently, the defendant and the 14-year-old lured the woman to an isolated area where the defendant choked her with a bandana, and he and the 14-year-old stabbed her, killing her. The defendant was arrested and gave written and videotaped statements admitting to acting in concert with the 14-year-old in killing the woman.

    Procedural History

    The defendant moved to suppress his confessions, leading to a Huntley hearing. Before the hearing, the attorney asked to be relieved, citing an ethical conflict. The court denied the request. The defendant testified at the hearing, and the court denied the motion to suppress. The jury convicted the defendant of second-degree murder, and he was sentenced to 25 years to life. The Appellate Division affirmed. The New York Court of Appeals affirmed the conviction.

    Issue(s)

    Whether defense counsel’s disclosure to the court of an ethical dilemma, stemming from the defendant’s intent to testify, and decision to allow the defendant to testify in narrative form, deprived the defendant of a fair hearing and the effective assistance of counsel.

    Holding

    No, because the defense counsel properly balanced his duties to his client with his duties to the court and the criminal justice system, and the defendant was not deprived of a fair hearing or the effective assistance of counsel. Also, the defendant’s right to be present was not violated because the colloquy involved procedural matters at which the defendant could offer no meaningful input.

    Court’s Reasoning

    The Court of Appeals reasoned that a defense attorney’s duty to zealously represent a client is limited by their duty as an officer of the court to ensure the truth-seeking function of the justice system. An attorney cannot assist a client in presenting false evidence. The court noted the requirements of the Code of Professional Responsibility, preventing attorneys from knowingly using perjured testimony or false evidence. When faced with a client who intends to commit perjury, the attorney must first attempt to dissuade the client. If that fails, the attorney may seek to withdraw or, if withdrawal is denied, allow the client to testify in narrative form without the attorney eliciting the testimony in a traditional question-and-answer format, and counsel may not use the perjured testimony in making argument to the court. The court found that here, the defense counsel properly advised the defendant against lying on the witness stand, and when the defendant insisted on testifying, the attorney properly sought to withdraw. The court held that informing the court about the ethical dilemma did not violate the defendant’s rights, as the attorney never disclosed client confidences. The court stated, “Counsel could have properly made such a disclosure since a client’s intent to commit a crime is not a protected confidence or secret.” The court rejected the suggestion that counsel should have remained silent while the client committed perjury, stating that such an approach is incompatible with counsel’s role as an officer of the court. The court noted it was proper to exclude the defendant from the discussion on how to handle the testimony because “a colloquy of this nature involves procedural matters at which a defendant can offer no meaningful input.”

  • People v. Rush, 68 N.Y.2d 350 (1986): Scope of Transactional Immunity for Grand Jury Testimony

    People v. Rush, 68 N.Y.2d 350 (1986)

    A Grand Jury witness who testifies without waiving immunity receives transactional immunity concerning the subject of their compelled testimony, precluding prosecution for prior inconsistent statements related to that testimony.

    Summary

    Anthony Rush, a witness to a shooting, gave a sworn statement to police identifying the shooter. Later, before a Grand Jury, without waiving immunity, Rush recanted his statement. He was then indicted for perjury, with the indictment alleging that either his statement to the police or his Grand Jury testimony was false. Rush sought to dismiss the indictment based on transactional immunity. The Court of Appeals held that Rush’s Grand Jury testimony granted him transactional immunity regarding his prior statement to the police, barring prosecution for perjury based on the inconsistency between the two statements. This decision clarifies the scope of transactional immunity and its implications for perjury prosecutions.

    Facts

    Anthony Rush witnessed a shooting and identified Lucas Bouges as the shooter in a sworn statement to the police. Subsequently, Rush was called to testify before a Grand Jury investigating the shooting. Without waiving immunity, Rush testified before the Grand Jury that he had lied to the police and that Bouges was not the shooter.

    Procedural History

    A Grand Jury indicted Rush for second-degree perjury. Rush moved to dismiss the indictment, claiming transactional immunity. The trial court denied the motion, reducing the charge to third-degree perjury but rejecting the immunity claim. Rush then commenced an Article 78 proceeding seeking a writ of prohibition to enjoin the prosecution. The Appellate Division granted the petition and dismissed the indictment. The People appealed to the Court of Appeals.

    Issue(s)

    1. Whether prohibition under CPLR Article 78 is available to raise a claim of immunity from prosecution.
    2. Whether Rush’s Grand Jury testimony conferred transactional immunity regarding his prior sworn statement to the police, thus precluding a perjury prosecution based on the inconsistency between the two statements.

    Holding

    1. Yes, because prohibition is appropriate when a court acts without jurisdiction or exceeds its authorized powers, particularly when implicating fundamental constitutional rights like the privilege against self-incrimination.
    2. Yes, because Rush’s Grand Jury testimony, given without waiving immunity, concerned the truthfulness of his prior sworn statement, thus conferring transactional immunity that bars prosecution for perjury based on the prior inconsistent statement.

    Court’s Reasoning

    The Court of Appeals first addressed the propriety of using prohibition to assert a claim of immunity. Referencing previous cases such as Matter of Steingut v. Gold, the Court emphasized that prohibition is an extraordinary remedy, available only where there is a clear legal right and a court acts without or in excess of jurisdiction. The Court noted, “prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power.” However, the Court found prohibition appropriate here because Rush’s claim of immunity implicated his Fifth Amendment privilege against self-incrimination, making the potential harm (unconstitutional prosecution) uncorrectable through ordinary appeal.

    On the merits, the Court focused on the scope of transactional immunity under CPL 190.40 and CPL 50.10. CPL 190.40(1) states: “Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.” The Court found that Rush’s Grand Jury testimony directly addressed the veracity of his prior sworn statement. Despite the People’s argument that Rush was called to testify about the homicide, the prosecutor directly questioned him about the truthfulness of his police statement. Because Rush testified about the prior statement without waiving immunity, he received transactional immunity for it.

    The Court acknowledged that CPL 50.10(1) allows for perjury prosecutions based on false testimony given “in such legal proceeding.” However, the indictment against Rush relied on Penal Law § 210.20, which allows prosecution for inconsistent statements without specifying which statement is false. This meant the jury could convict Rush based on the falsity of the prior police statement, which was barred by the transactional immunity. The Court reasoned that, “Because this indictment would permit the jury either to convict petitioner of the very crime for which he has been granted immunity, or to use evidence of that crime to convict him of perjury committed before the Grand Jury, and because prosecution thereunder necessarily implicates a violation of petitioner’s privilege against self-incrimination, it is fatally defective.”

  • People v. Rosner, 67 N.Y.2d 290 (1986): Sufficiency of Circumstantial Evidence in Perjury Cases

    People v. Rosner, 67 N.Y.2d 290 (1986)

    In New York, a perjury conviction can be based solely on circumstantial evidence, provided that evidence is sufficient to establish guilt beyond a reasonable doubt, and the two-witness rule (Penal Law § 210.50) does not bar such a conviction.

    Summary

    Rosner was convicted of perjury for false statements made to a grand jury investigating a homicide. The prosecution’s case relied on circumstantial evidence to prove that Rosner lied about his interactions with John Bonizio, who was involved in the assault that led to the victim’s death. Rosner argued that the prosecution failed to establish a prima facie case because they relied entirely on circumstantial evidence and did not produce a witness who directly contradicted his statements. The New York Court of Appeals affirmed the conviction, holding that circumstantial evidence alone can be sufficient to prove perjury, and the two-witness rule only requires corroboration of a witness testifying to the falsity of the defendant’s statement, not direct evidence.

    Facts

    Rosner complained to the police about Darren McNamara harassing his daughter. He expressed an intent to handle the situation himself if the police couldn’t. The next day, after the officer said he couldn’t find McNamara, Rosner stated he had “two guys that can handle it.” That evening, McNamara was assaulted by John Bonizio, a friend and former employee of Rosner’s, who beat him with a baseball bat, telling him to stay away from Rosner’s daughter. McNamara died as a result of the beating. Bonizio was later seen entering Rosner’s apartment. Before the grand jury, Rosner denied asking Bonizio to contact McNamara or speaking to Bonizio about McNamara on August 25th.

    Procedural History

    Rosner was indicted for perjury based on his grand jury testimony. At trial, the People presented circumstantial evidence linking Rosner to Bonizio and the assault on McNamara. Rosner moved to dismiss the indictment, arguing the prosecution’s case was entirely circumstantial. The trial court denied the motion, and the jury found Rosner guilty. The Appellate Division affirmed the conviction.

    Issue(s)

    Whether a perjury conviction can be based solely on circumstantial evidence, where the alleged falsity of the defendant’s statements was capable of being proved by direct evidence.

    Holding

    Yes, because New York law does not prohibit the use of circumstantial evidence to prove perjury, and the two-witness rule only requires corroboration of a witness who testifies to the falsity of the defendant’s statement; it does not mandate direct evidence of the perjury.

    Court’s Reasoning

    The Court of Appeals rejected Rosner’s argument that circumstantial evidence is generally insufficient to prove perjury. The court emphasized that Penal Law § 210.50, the two-witness rule, only requires corroboration of a witness testifying to the falsity of the defendant’s statement. It does not preclude the prosecution from relying on circumstantial evidence. The court explicitly stated, “That holding is consistent with the limited purpose Penal Law § 210.50 serves in this State. The common-law rule was retained by the Legislature to protect ‘honest witnesses’ from unfounded, retaliatory complaints of perjury by ‘defeated litigants’.” The court clarified that People v. Doody, which Rosner cited, did not create a narrow exception for cases inherently incapable of direct proof. The court found that the two-witness rule is analogous to the accomplice rule, both designed to prevent conviction solely on the testimony of a witness with a motive to fabricate. The court concluded that the prosecution’s circumstantial evidence was sufficient to establish Rosner’s guilt, and the two-witness rule did not require the People to produce direct testimony. The court emphasized that the purpose of the two-witness rule is to protect honest witnesses from retaliatory perjury claims, not to prevent perjury convictions based on strong circumstantial evidence.

  • People v. Fischer, 53 N.Y.2d 614 (1981): Criminal Contempt Based on Evasive Testimony

    People v. Fischer, 53 N.Y.2d 614 (1981)

    A witness can be found guilty of criminal contempt for providing false and evasive answers, even if they do not outright refuse to answer questions.

    Summary

    The New York Court of Appeals affirmed the defendant’s convictions for criminal contempt and perjury. The Court held that the defendant’s repeated professions of memory loss and denials regarding payments, in light of entries in his “black book” and testimony from his bookkeeper, constituted evasive and perjurious testimony. The Court found sufficient evidence for the jury to conclude that the defendant’s testimony before the grand jury was intentionally false and evasive, thereby obstructing the investigation and warranting a contempt conviction. The court found that the evidence presented was sufficient to prove both criminal contempt and perjury.

    Facts

    The defendant, Fischer, was convicted of criminal contempt and perjury based on his testimony before a grand jury. Key evidence included cryptic entries in Fischer’s “black book” and testimony from his bookkeeper regarding overheard conversations about payments to a union official. Fischer repeatedly responded with “I don’t remember,” “I don’t recall,” and “I don’t know” when questioned about the entries and denied making specific payments.

    Procedural History

    The case originated in a trial court where Fischer was convicted of criminal contempt and perjury. The Appellate Division affirmed the trial court’s decision, upholding the convictions. Fischer then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Fischer’s repeated professions of memory loss and denials of knowledge constituted evasive testimony sufficient to support a conviction for criminal contempt.
    2. Whether there was sufficient evidence, including the black book entries and the bookkeeper’s testimony, to support the perjury conviction.

    Holding

    1. Yes, because the jury was warranted in finding that the cryptic entries in the defendant’s black book were made in circumstances so memorable as to render his protestations of no recollection incredible and thus evasive.
    2. Yes, because the entries in the defendant’s black book, combined with his testimony and the bookkeeper’s testimony, provided sufficient evidence that the defendant committed perjury.

    Court’s Reasoning

    The Court of Appeals reasoned that Fischer’s repeated claims of memory loss, when considered in the context of the entries in his black book, were so implausible as to be evasive and obstructive, supporting the criminal contempt conviction. The court cited People v. Ianniello, 36 NY2d 137, 142, stating, “To be guilty of contempt the witness need not flatly refuse to answer the questions put to him; false and evasive profession of an inability to recall, which amounts to no answer at all, is punishable as criminal contempt.” The Court found that the defendant’s repeated responses of “I don’t remember”, “I don’t recall”, and “I don’t know”, together with his reiterated statements that the moneys went to no one specifically, were sufficient to sustain the finding of contemptuous evasion.

    Regarding the perjury conviction, the Court found that the entries in the black book, Fischer’s testimony regarding them, and the bookkeeper’s testimony about overheard conversations collectively established that Fischer lied under oath about making payments to a union official. Each piece of evidence corroborated the others, satisfying the corroboration requirement for perjury convictions under Penal Law § 210.50.

    The court also addressed the admissibility of extended portions of Fischer’s grand jury testimony, finding that the trial court did not abuse its discretion in admitting this evidence, even after the dismissal of one count of criminal contempt. The court referenced People v McGrath, 46 NY2d 12, 32.

  • Matter of Pastore v. Boone, 58 N.Y.2d 831 (1983): When Grand Jury Resubmission Rules Do Not Apply

    Matter of Pastore v. Boone, 58 N.Y.2d 831 (1983)

    A prosecutor does not need court authorization to present a perjury charge to a grand jury when the charge is based on testimony given to that grand jury, even if a prior grand jury considered a similar perjury charge based on different testimony arising from the same underlying events.

    Summary

    Pastore testified before a grand jury in 1980 regarding arson, leading to consideration of criminal contempt and perjury charges against him. The grand jury directed indictment for contempt, but not perjury. The District Attorney later dropped the contempt charge. In 1981, the arson charge was resubmitted to a new grand jury, and Pastore testified similarly. This time, he was indicted for perjury. Pastore argued that the perjury charge required court authorization for resubmission under CPL 190.75(3). The Court of Appeals held that authorization was not required because the perjury charge before the 1981 grand jury was a distinct offense based on new testimony, not a resubmission of the original charge considered by the 1980 grand jury.

    Facts

    1. Pastore testified before a 1980 grand jury investigating arson.
    2. The grand jury considered criminal contempt and perjury charges against Pastore.
    3. The grand jury directed the District Attorney to indict Pastore for criminal contempt but not for perjury.
    4. The District Attorney later dropped the contempt charge.
    5. In 1981, the arson charge was resubmitted to a new grand jury.
    6. Pastore testified again, substantially paralleling his 1980 testimony.
    7. The 1981 grand jury indicted Pastore for perjury based on his 1981 testimony.

    Procedural History

    1. Pastore moved to dismiss the indictment, arguing failure to obtain authorization to “resubmit” the perjury charge under CPL 190.75(3).
    2. The motion was denied.
    3. Pastore initiated an Article 78 proceeding in the nature of prohibition.
    4. The Appellate Division dismissed the proceeding.
    5. The Court of Appeals affirmed the dismissal.

    Issue(s)

    Whether the indictment for perjury based on testimony before the 1981 Grand Jury constituted a “resubmission” of a charge previously dismissed by the 1980 Grand Jury, thus requiring court authorization under CPL 190.75(3).

    Holding

    No, because the perjury charge before the 1981 Grand Jury was based on different testimony and constituted a separate and distinct offense from the charge considered by the 1980 Grand Jury.

    Court’s Reasoning

    The Court of Appeals held that CPL 190.75(3) did not apply in this case. The statute requires authorization for resubmission of a charge previously dismissed by a grand jury. Even assuming the 1980 grand jury’s failure to indict for perjury was equivalent to a dismissal, the court reasoned that the charge presented to the 1981 grand jury was not the same charge. The perjury charge before the 1981 grand jury was based on Pastore’s testimony before that specific grand jury, constituting a new and distinct offense. The court emphasized that the “giving of false testimony before the 1981 Grand Jury nearly a year later” was a separate criminal transaction. The court stated, “That the content of defendant’s testimony on the two occasions was parallel or even identical does not in any way diminish the fact that there were two separate and discrete criminal transactions — the alleged swearing falsely before the 1980 Grand Jury and the alleged swearing falsely before the 1981 Grand Jury.” The indictment was based on the new offense and did not constitute a resubmission of the original charge. Therefore, no authorization was needed.

  • People v. Ferrara, 54 N.Y.2d 478 (1981): Right to Counsel Does Not Extend to Planning New Crimes

    People v. Ferrara, 54 N.Y.2d 478 (1981)

    The right to counsel does not extend to protecting an individual from investigative techniques that capture the planning or solicitation of a new crime, even if the individual has retained counsel in connection with the investigation of earlier, separate criminality.

    Summary

    Ferrara, under investigation for nursing home fraud and represented by counsel, was recorded offering kickbacks to a nursing home operator (Sreter) cooperating with the prosecution. He was subsequently indicted for perjury based on his grand jury testimony denying such activities, which contradicted the recordings. The New York Court of Appeals held that the recordings were admissible, finding no violation of Ferrara’s right to counsel. The court reasoned that the right to counsel is a shield, not a license to commit new crimes, and does not extend to protecting individuals engaged in planning or executing new criminal activity, even if they have retained counsel for a separate, ongoing investigation.

    Facts

    Defendant Ferrara, co-owner of a linen supply company, was investigated for paying kickbacks to nursing homes. He appeared before a grand jury twice, with immunity, denying any kickback schemes. After retaining counsel, the prosecutor learned that Ferrara’s former employer also engaged in kickbacks, strengthening the perjury case. Simultaneously, nursing home operator Sreter, facing criminal charges, agreed to cooperate with the prosecution. Sreter informed the prosecutor that Ferrara’s company serviced one of his nursing homes. Sreter then met with Ferrara, who, unaware that Sreter was cooperating with the authorities and equipped with a recording device, offered Sreter kickbacks to obtain business for another nursing home owned by Sreter. Ferrara assured Sreter such deals would not be revealed and that he was very careful in conducting illicit transactions. Ferrara was then called before a third grand jury and again denied making kickback arrangements with Sreter, leading to his indictment for perjury.

    Procedural History

    Ferrara was indicted on four counts of perjury. He moved to dismiss the indictment and suppress the Sreter conversations, which was denied. After a jury trial, he was acquitted on one count but convicted on the other three. The Appellate Division affirmed the conviction, and Ferrara appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecutor violated Defendant’s right to counsel by arranging to record conversations between Defendant and a cooperating witness, during which Defendant offered a kickback, after Defendant had retained counsel in connection with a Grand Jury investigation into prior, separate alleged criminal activity.

    Holding

    No, because the right to counsel does not extend to protecting an individual from investigative techniques that capture the planning or solicitation of a new crime, even if the individual has retained counsel in connection with the investigation of earlier, separate criminality.

    Court’s Reasoning

    The Court of Appeals distinguished this case from Massiah v. United States and United States v. Henry, where post-indictment admissions obtained through informants were used to convict defendants of prior crimes. Here, the perjury had not yet occurred, and no charges had been filed. The court emphasized that use of undercover operatives to investigate criminal activity prior to the commission of the charged crime does not violate the Sixth Amendment. The court also distinguished People v. Skinner, where the defendant was represented by counsel specifically on the matter about which he was questioned. The court stated that the right to counsel is meant to be “a shield against what may well be the coercive influences of the State,” not “to immunize one represented by an attorney against investigative techniques that capture a new crime in progress.” The court emphasized that Ferrara initiated the offer of kickbacks to Sreter. The court declined to recognize a right to the presence of counsel while an individual commits, plans, or solicits the commission of a new crime merely because the individual has retained counsel during the investigation of earlier criminality. The court reasoned that extending the right to counsel to these circumstances would distort the rule’s purpose.

  • People v. Segal, 54 N.Y.2d 58 (1981): Admissibility of Expert Testimony and the Right to Rebut

    People v. Segal, 54 N.Y.2d 58 (1981)

    When a defendant introduces expert testimony to negate the element of intent in a crime, the prosecution has a right to rebut that testimony with its own expert, and the defendant’s refusal to submit to a psychiatric examination by the prosecution’s expert justifies striking the defendant’s expert testimony.

    Summary

    The defendant was convicted of perjury stemming from a nursing home fraud investigation. At trial, he presented expert testimony about a memory defect to negate the element of intent. The prosecution requested an examination by their own expert, which the defendant refused. The trial court struck the defendant’s expert testimony, and the Court of Appeals affirmed, holding that the defendant could not introduce expert testimony to negate intent while simultaneously denying the prosecution an opportunity to rebut that evidence with its own expert. This ensures fairness and maintains the integrity of the trial process.

    Facts

    The defendant, a vice-president of a grocery wholesaler, met with an undercover agent investigating nursing home fraud and discussed kickback schemes. Later, before a grand jury, the defendant testified he didn’t recall the schemes or discussing them with the agent. At his perjury trial, the defendant presented expert testimony from a psychologist and psychiatrist claiming an organic brain defect impaired his memory, making him unable to recall the meeting when he testified before the Grand Jury.

    Procedural History

    The defendant was indicted for perjury and convicted at trial. The Appellate Division affirmed the conviction. A dissenting Justice granted leave to appeal to the Court of Appeals, challenging the trial court’s decision to strike the defense expert’s testimony after the defendant refused to submit to an examination by the People’s expert.

    Issue(s)

    Whether a defendant who introduces expert testimony to negate the element of intent can refuse to submit to an examination by the People’s expert, and if so, whether the court can strike the defendant’s expert testimony as a result.

    Holding

    Yes, because a defendant cannot introduce expert testimony on a mental condition to negate intent and simultaneously deny the prosecution an opportunity to rebut that evidence with its own expert. The trial court acted properly in striking the defendant’s expert testimony when the defendant refused to submit to an examination by the People’s expert.

    Court’s Reasoning

    The Court relied on its prior decision in Matter of Lee v. County Court of Erie County, which held that a defendant raising an insanity defense waives their Fifth Amendment privilege regarding mental capacity and can be precluded from introducing expert testimony if they refuse to submit to a mental examination by the prosecution. The Court reasoned that this principle extends beyond statutory defenses like insanity to any situation where a defendant introduces expert testimony to negate an element of the crime, such as intent. The Court emphasized principles of fairness and the integrity of the trial process, stating that the People must prove every element of the crime, including intent. The court stated, “a defendant who proffers an insanity defense may hide behind the defense because of his privilege and thereby make the People’s burden of proving sanity insurmountable.” By introducing expert testimony about his memory defect, the defendant sought to prove he lacked the intent to commit perjury. The court concluded that the defendant could not simultaneously put the People to their proof regarding his mental capacity while denying them the opportunity to effectively meet that burden with their own expert evidence.

  • People v.はありませんか Johnson, 53 N.Y.2d 95 (1981): Perjury Trap Doctrine and Grand Jury Investigations

    People v. Johnson, 53 N.Y.2d 95 (1981)

    A perjury indictment requires a showing of intentional falsity in response to a purposeful substantive inquiry and cannot be based on interrogation techniques designed solely to induce perjury.

    Summary

    Johnson, a police detective, was indicted for perjury for false testimony before a grand jury investigating bribery. The lower courts dismissed the indictment, finding a “perjury trap.” The Court of Appeals reversed, holding that the questioning was a purposeful substantive inquiry into Johnson’s actions. The court emphasized that the Grand Jury sought to understand why Johnson stopped an undercover officer, and Johnson’s false statements about the incident were material to that investigation. The court rejected the argument that the prosecutor was obligated to further question Johnson or confront him with contradictory evidence, finding sufficient indicia of intentional falsity.

    Facts

    Detective Johnson stopped an undercover officer, Rizzo, who was investigating organized crime. Rizzo reported the incident, and Johnson was questioned by his superiors, to whom he gave a different account, denying he left his car. Later, Johnson testified to a grand jury investigating whether he was bribed to identify Rizzo. Johnson claimed he stopped Rizzo because he resembled a homicide suspect. During his testimony, he falsely attributed a statement about an assault to his superior, Lieutenant Gulley. Gulley and another sergeant later testified that they never made such a statement.

    Procedural History

    Johnson was indicted for perjury. The Supreme Court granted Johnson’s motion to dismiss the indictment. The Appellate Division affirmed, citing People v. Tyler, finding the indictment was the result of a perjury trap. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the false statement for which Johnson was indicted was material to the grand jury investigation, thus satisfying an essential element of perjury in the first degree.
    2. Whether the perjury indictment represented a “perjury trap” by the prosecutor, warranting dismissal of the indictment under People v. Tyler.

    Holding

    1. Yes, because the circumstances surrounding Johnson’s discussions with his superiors were critical for the Grand Jury’s evaluation of his testimony regarding the validity of his explanation for stopping Detective Rizzo.
    2. No, because the questioning here was a purposeful substantive inquiry and did not amount to the practice condemned in Tyler.

    Court’s Reasoning

    The Court of Appeals first addressed materiality, stating that the false statement need not directly prove the fact in issue, but only needs to be circumstantially material or tend to support the witness’s credibility regarding the main fact. The court found Johnson’s false statement about Lieutenant Gulley’s statement was material because it pertained to the validity of Johnson’s explanation for stopping Rizzo. It had a direct bearing on whether Johnson’s conduct involved criminality.

    Turning to the perjury trap argument, the Court distinguished this case from People v. Tyler. The court stated that Tyler holds that a perjury indictment requires a demonstration of intentional falsity in response to “purposeful substantive inquiry” and cannot be predicated upon interrogation techniques that have perjury as the sole object. Here, the questioning was aimed at the substance of the meeting with Johnson’s superiors, not merely outward details. The court noted that Johnson volunteered the information about the assault allegation. The prosecutor’s repetition of the response seeking confirmation did not indicate an improper motive.

    The court emphasized that it need not adopt a rule that a perjury trap is found in every case where the prosecutor doesn’t confront the witness with a falsehood, as it would unduly restrict the Grand Jury’s investigatory process. The absence of further questioning about the false statement or confrontation with contrary evidence was not determinative, given the other indicia that the response was knowingly false. The Court concluded that the legal instructions to the Grand Jury were sufficient.