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COURT OF APPEALS OF NEW YORK 1969.NY.41342 <>; 249 N.E.2d 412; 24 N.Y.2d 598 decided: April 24, 1969. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.ANTHONY LA BELLO AND RALPH PICCIRILLO, APPELLANTS People v. La Bello, 30 A.D.2d 664, affirmed. People v. Piccirillo, 30 A.D.2d 664, affirmed. Counsel Theodore Rosenberg for Anthony La Bello, appellant. Nathan Z. Dershowitz and Anthony F. Marra for Ralph Piccirillo, appellant. Counsel Eugene Gold, District Attorney (Stanley M. Meyer of counsel), for respondent. Judges Burke, Scileppi and Jasen concur with Judge Keating; Judge Bergan dissents and votes to reverse in a separate opinion in which Chief Judge Fuld and Judge Breitel concur. Author: Keating

People v. La Bello, Judges Burke, Scileppi and Jasen concur with Judge Keating; Judge Bergan dissents and votes to reverse in a separate opinion in which Chief Judge Fuld and Judge Breitel concur.

Author: Keating

 Called before a Grand Jury investigating a conspiracy to intimidate witnesses who were to testify at a probe of violations of law involving public contracts, appellants, who had previously been convicted of assaulting one of the witnesses, were granted immunity (former Penal Law, ยง 2447). They then answered all the questions, admitting that they had been hired to commit the assault, but denying that they knew who their principals were.

Four days after appellants testified, the policeman who had arrested appellants was called before the same Grand Jury. During the course of his testimony he told of appellants' attempt to bribe him not to be a witness against them and "to get rid of the evidence." This offer of a bribe was immediately reported to the District Attorney's office.

Appellants were thereafter indicted for bribery and convicted, on their pleas of guilty, of attempted bribery. Prior to their pleas, however, they moved for inspection of the Grand Jury minutes on the ground that they had been granted immunity from prosecution for the crime with which they were then being charged. Appellants were furnished with the minutes, but their motion to dismiss the indictment was denied. On appeal, the Appellate Division affirmed, one Justice dissenting.

The principal questions are two. The first is whether the immunity encompassed the crime charged in the present indictment. The second is whether appellants were the targets of the investigation and, if the answer is in the affirmative, does this require the dismissal of the indictment? We hold that the immunity only bars the use of the appellants' testimony or any fruits thereof. Since the police officer's testimony was in no way derived from anything said by appellants to the Grand Jury and itself established a prima facie case of bribery, the indictment was, therefore, based on sufficient and untainted evidence. Whatever testimony by appellants might be considered of some relevance to the bribery charge may properly be deemed harmless error (Chapman v. California, 386 U.S. 18). Likewise, we consider it immaterial whether or not appellants were the "targets" of this investigation.

The problem here arises from the confusion which has until recently existed concerning the scope of the immunity which the Constitution mandates must be given before a witness is required to yield his privilege against self incrimination. The source of the difficulty is an ambiguity in the Supreme Court's opinion in Counselman v. Hitchcock (142 U.S. 547 [1892]). In Counselman the Supreme Court held unconstitutional a Congressional immunity statute which only immunized the use of the actual testimony. The statute did not protect the witness against the "fruits" of his testimony. Therefore, the immunity was not co-extensive with the security which the privilege affords. There was nothing to prevent the Government from using the testimony as a starting point for further investigation through which the discovery of additional incriminatory evidence might be procured. It was the statute's failure to protect the witness against the indirect use of his compelled testimony which made it constitutionally deficient.

The entire weight of the decision was that the Fifth Amendment prohibited the direct or indirect use of the testimony (142 U.S. 547, 564, 585-586). At the close of the opinion, however, there was a dictum to the effect that an immunity statute "must afford absolute immunity against future prosecution for the offense to which the question relates" (142 U.S., at pp. 585-586).

Perhaps responding to this dictum Congress, shortly after the Counselman decision, passed, as part of the Interstate Commerce Act, a broadly phrased immunity law which has been interpreted by the Federal courts to grant what is commonly referred to as a "transaction" immunity. This barred the Government from prosecuting the defendant for any crime mentioned by the witness during the course of his testimony. The constitutionality of the enactment was upheld in Brown v. Walker (161 U.S. 591 [1896]).

Time has shown that this "transaction" immunity type of statute was unnecessarily broad, that it gives witnesses an immunity not required by the Constitution and that it has the effect of giving an unnecessary "gratuity" to crime. Where the People have a completely good case against a defendant without his testimony, there is not a single, sound policy reason, nor is there a constitutional compulsion, requiring that a grant of immunity gain a witness complete freedom from criminal liability for his wrongful acts simply because the acts were at some point mentioned to the Grand Jury (People v. Laino, 10 N.Y.2d 161, 173). If he is protected from the use of his testimony or the fruits thereof, he loses nothing if he is then convicted on independent and untainted evidence.

In our view, the Supreme Court's decision in Murphy v. Waterfront Comm. (378 U.S. 52) has finally resolved the ambiguity raised in Counselman on the necessary scope of an immunity statute. (See, also, Gardner v. Broderick, 392 U.S. 273.) Following Malloy v. Hogan (378 U.S. 1), which made the self incrimination privilege applicable to the States, the Supreme Court was immediately confronted with the problem of how to accommodate the possible conflicts among criminal law enforcement agencies arising from our Federal system. The court in Murphy held that, as a consequence of its holding in Malloy, the Federal authorities would be barred from any prosecutional use of State "compelled testimony and its fruits" where a witness is granted immunity after asserting his privilege (378 U.S., at p. 79). No transaction immunity was granted as the footnote to Justice Goldberg's opinion at this point makes patent: "Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence."

Thus only a restriction on use is required. Of significance here is the constitutional basis of the decision. It does not rest upon the Supreme Court's supervisory power over the administration of justice in the Federal courts. (See concurring opn. of Justice Harlan [378 U.S., at pp. 80-81].) Justice White's concurring opinion specifically emphasizes this very point that the Constitution requires only a prohibition from use not an absolute immunity (378 U.S., at pp. 92-93). Subsequent decisions of the court reinforce the conclusion that the essence of a valid immunity statute is that it must preclude the use in any manner of the compelled testimony and that is all. (Gardner v. Broderick, 392 U.S. 273, 278, supra ; Sanitation Men v. Sanitation Comr., 392 U.S. 280, 284; see United States v. Blue, 384 U.S. 251, 255; see, also, discussion in Marchetti v. United States, 390 U.S. 39, 58-60 [Harlan, J.] and in Grosso v. United States, 390 U.S. 62, 81-83 [Warren, Ch. J.]; cf. Stevens v. Marks, 383 U.S. 234, 244-245 [Douglae, J.], 249 [Harlan, J.].)

New York's law has had a similar confused history in this area (People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253; People ex rel. Lewisohn v. Court of General Sessions, 96 App. Div. 201, affd. 179 N. Y. 594; Matter of Doyle, 257 N. Y. 244; see, also, discussion in Law Revision Commission Report (N. Y. Legis. Doc., 1942, No. 65 [I], pp. 50-54). These cases are based on the absolute immunity interpretation of the Counselman case. As a consequence, section 2447 of the former Penal Law, which became law in 1953, parallels in language the Federal statutes which have been interpreted to grant an absolute immunity. There are dicta in the cases which would indicate that section 2447 of the former Penal Law is to be interpreted in a similar manner (People v. Ianniello, 21 N.Y.2d 418, 424-425; see, also, People v. Laino, 10 N.Y.2d 161, supra ; People v. De Feo, 284 App. Div. 622, 627, revd. on other grounds 308 N. Y. 595). Still there is no holding to that effect. Since the question is still open, we should proceed to examine the issue in light of the recent clarifications of the law as to the required breadth of a valid immunity statute.

In Heike v. United States (227 U.S. 131) Justice Holmes, writing for a unanimous court, denied immunity in circumstances where the relationship between the compelled testimony and the later charge was entirely too insubstantial. His opinion also suggests that the broad language of that immunity statute (similar to the one involved here) should be interpreted as a use restriction, not as a "transaction" immunity statute (227 U.S., at p. 142): "Of course there is a clear distinction between an amnesty and the constitutional protection of a party from being compelled in a criminal case to be a witness against himself. * * * But the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned."

One thing is certain. The rationale of this opinion rests on the view that the Fifth Amendment only requires an "exchange", not an "immunity bath". ...

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