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UNITED STATES EX REL. ZEVIN v. KREUGER

July 24, 1969

UNITED STATES of America ex rel. Marvin ZEVIN on behalf of Paul Vario, Sr., Petitioner,
v.
Arthur E. KREUGER, as Warden of the Nassau County Jail, Respondent


Judd, District Judge.


The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

JUDD, District Judge.

 This petition for a writ of habeas corpus is submitted on behalf of Paul Vario, Sr. Vario challenges a judgment of commitment to thirty days imprisonment imposed by the Nassau County Court on May 23, 1969.

 Vario first appeared before a Nassau County Grand Jury on January 24, 1969. After he refused to answer questions on self-incrimination grounds, he was granted immunity from prosecution. He persisted in refusing to answer and subsequently was ordered to appear before a Nassau County Court Judge. At this hearing, held on March 4, 1969, the County Judge repeated the questions propounded before the Grand Jury and asked Vario if he would now answer. He continued to refuse.

 The minutes of this hearing disclose the following opening statements made by the Court:

 
"THE COURT: * * * Let the record show that I have had access to the minutes of the hearing of the Grand Jury session on January 24th, 1969, in which Mr. Paul Vario, Sr. appeared (indicating). I have from my reading of these, as well as from the investigation that was given to me, determined that this is a legitimate Grand Jury matter; that the questions that were put to this witness were relevant to the hearing; that this witness was given complete immunity by the Foreman of this Grand Jury; and that he was advised of the nature and scope of the investigation of the Grand Jury."

 After the questions were asked and answers declined, the following colloquy occurred:

 
"MR. SUTTER: If your Honor please, I might make an inquiry of the Court. Your Honor mentioned that in finding these questions to be relevant to the inquiry that you had reviewed the questions, a transcript of them, and you based it partially on an investigation that was given to you. And I was wondering: Is that going to be made part of the record of these proceedings?
 
THE COURT: No.
 
MR. SUTTER: And may I have access to that at any time?
 
THE COURT: No. I have been satisfied. Under the law, as I read it, that is as much as is necessary."

 The court gave Vario several days to consider whether he wished to change his mind. His refusal continued and, on March 7, 1969, he was found to be in criminal contempt of court and sentenced to thirty days in the Nassau County Jail. A petition for habeas corpus, treated as a proceeding pursuant to CPLR Article 78 under Section 752 of the Judiciary Law, McKinney's Consol. Laws, c. 30, was brought in the Supreme Court, Nassau County. That court referred the petition to the Appellate Division, Second Department, which unanimously confirmed the order of commitment on April 28, stating:

 
"We find that petitioner raised no competent question of fact or law on his assertion that the order of the County Court was predicated upon matters appearing dehors the record. Examination of the proceedings and of the order itself indicates that only the contumacious failure of the petitioner to respond to the questions propounded to him before the Grand Jury served as the basis of his punishment for contempt. The failure to respond to these interrogatories properly served as the foundation for his commitment. (Matter of Koota v. Colombo, ...

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