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PEOPLE STATE NEW YORK v. JOSEPH COLOMBO (06/16/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 16, 1969

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,
v.
JOSEPH COLOMBO, RESPONDENT. THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, V. LAWRENCE GALLO, RESPONDENT. THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, V. ALBERT GALLO, RESPONDENT

Appeals from three orders of the Supreme Court, Kings County, each of which respectively granted a separate motion by each defendant to dismiss an indictment against him for criminal contempt of court, the order as to defendant Colombo being dated August 22, 1967 and the orders as to the other defendants being dated July 28, 1967. Appeal from the order which granted the motion of defendant Lawrence Gallo, now deceased, dismissed ( People v. Mintz, 20 N.Y.2d 753).

Christ, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.

In our opinion, the evidence before the Grand Jury would, if unexplained or uncontradicted, warrant a conviction for violation of subdivision 6 of section 600 of the Penal Law of 1909 (Code Crim. Pro., ยง 251). That the refusal to testify was made on advice of counsel and in a pleasant manner is of little relevance (cf. People v. Woodruff, 26 A.D.2d 236, 238-239; People v. Zweig, 32 A.D.2d 569; Matter of Koota v. Colombo, 17 N.Y.2d 147, 151). We also think that the stipulation of the District Attorney, made on October 20, 1965 with reference to dropping proceedings against defendants willing to testify before the Grand Jury, was necessarily limited in time to December 16, 1965 by the District Attorney at the hearing on December 7, 1965. It is obvious from the conduct of the court and the parties on May 9, 1966 that neither the court nor they considered the October 20 stipulation to be still in effect. There is no merit in the claim by respondents Colombo and Albert Gallo that these indictments place them twice in jeopardy for the same acts (Matter of Marangelo v. Criminal Ct. of City of New York, 49 Misc. 2d 414; People v. Costello, 21 N.Y.2d 967; People ex rel. Maurer v. Jackson, N.Y.2d 259, 264).

Disposition

 Orders which granted the motions of defendants Joseph Colombo and Albert Gallo reversed, on the law and the facts, and motions denied.

19690616

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