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PEOPLE STATE NEW YORK EX REL. PAUL VARIO v. ARTHUR E. KRUEGER (02/03/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.40342 <http://www.versuslaw.com>; 297 N.Y.S.2d 488; 58 Misc. 2d 1023 February 3, 1969 THE PEOPLE OF THE STATE OF NEW YORK EX REL. PAUL VARIO, JR., PETITIONER,v.ARTHUR E. KRUEGER, AS WARDEN OF THE NASSAU COUNTY JAIL, RESPONDENT Bracken & Sutter (John Sutter of counsel), for petitioner. William Cahn, District Attorney (George Levine of counsel), for respondent. Mario Pittoni, J. Author: Pittoni


Mario Pittoni, J.

Author: Pittoni

 Petitioner applies in this habeas corpus proceeding for an order setting bail or for permission to file an undertaking, whichever term is appropriate, pending appeal from his sentence of 30 days imposed upon him by a Judge of the County Court on January 24, 1969. My use of the words "bail" and "undertaking," in the alternative, is motivated by the District Attorney's argument that the contempts involved herein are civil rather than criminal.

Petitioner was subpoenaed and did appear before the June and July, 1968 sessions of the Grand Jury. He was given immunity and was thereafter asked a number of questions by the District Attorney about policy and other gambling activities of certain persons, including his father. Upon his refusal to answer, he was brought before a County Judge, was found guilty of contempt, and was sentenced to 30 days in the county jail.

Petitioner was thereafter subpoenaed and appeared before the September, 1968 session of the Grand Jury. He was again given immunity and, upon his refusal to answer questions by the District Attorney as to the same activities regarding policy and other gambling activities of the same persons mentioned to him in the June and July, 1968 Grand Jury sessions, he was brought before a County Judge, a hearing was held, the Grand Jury minutes pertaining to the petitioner's interrogation and answers were read in open court and, after argument of counsel, the County Judge on October 25, 1968 again found petitioner guilty of contempt and imposed another sentence of 30 days.

Petitioner was again subpoenaed and again appeared before the December, 1968 and January, 1969 sessions of the Grand Jury. He was again given immunity and, upon his refusal to answer questions by the District Attorney as to the same activities for which he was questioned in the June, July, 1968 and September, 1968 Grand Jury sessions, that is, regarding the policy and other gambling activities of the same persons mentioned in those prior Grand Jury sessions, he was again brought before a County Judge, another hearing was had, the Grand Jury minutes pertaining to the interrogation of the petitioner and his answers thereto were again read in open court and, after argument of counsel, the County Judge, on January 24, 1969 again found petitioner guilty of contempt and imposed another sentence of 30 days. Petitioner is now serving this sentence.

Petitioner has brought this hearing on by a writ of habeas corpus because the District Attorney claims that this is a civil contempt. It is difficult to say whether this is a civil or criminal contempt. A reading of the Judiciary Law (§ 750, subd. A, par. 5), defines criminal contempt as: "Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory." Section 753 (subd. A, par. 5) states in respect to civil contempt: "A person subpoenaed as a witness, for refusing * * * to answer as a witness." The Penal Law (§ 215.50, subd. 4) defines criminal contempt as follows: "Contumacious and unlawful refusal to be sworn as a witness in any court proceeding, or, after being sworn, to answer any legal and proper interrogatory". Reading these sections, who can say how they differ?

Be that as it may, the District Attorney insisted on the oral argument that this is a civil contempt (even though the formal commitment order of January 24, 1969 said the petitioner was guilty of criminal contempt) and that a habeas corpus proceeding was not proper under the circumstances, but that an article 78 proceeding was the proper one.

In this connection Weinstein-Korn-Miller in their New York Civil Practice (vol. 7A, pars. 7003.6 and 7003.7) say:

"The first of these subdivisions [Civ. Prac. Act, § 1231, subd. 2; § 1252, subds. 2 and 3] appeared to require the writ to issue whenever the prisoner was detained for any contempt. Section 1252 appears to have required release wherever the imprisonment was based upon a civil contempt.

"It is difficult to justify any exception for contempts -- whether civil or criminal -- from the normal habeas corpus test of illegal detention." (Par. 7003.6; see People v. McMann, 18 N.Y.2d 257.)

"The law is not clear today with respect to the proper mode of attacking a contempt order." (Par. 7003.7.)

It should be added, that since "habeas corpus is considered a civil proceeding because * * * it is based upon a civil right to be free from unlawful detention" (Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7001.5), it would be ironical if it could not be used to request bail or an order permitting an undertaking in a civil contempt.

Clearly, no matter what the proceeding is called, petitioner has a right of appeal and, pending that determination, should not have to languish in jail. In a case involving human rights and liberties, the courts should not be too ...


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