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August 11, 1970

UNITED STATES of America ex rel. John BUONORABA, Dominick D'Amico, Dominick Pilotta, Joseph Sarcinella, John Varone, Leonard Vento, Rudolph Santabello and Alfred Mauriello, Petitioners-Relators,

MacMahon, District Judge.

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Each of the petitioners is currently serving a ninety-day sentence for contempt following indictment, trial and conviction before three judges in the Criminal Court of the City of New York for violation of former New York Penal Law § 600(6) (McKinney's Consol. Laws. c. 40, 1944), for refusing to answer questions before a grand jury after being granted immunity under former New York Penal Law § 2447 (McKinney 1966). Each challenges the validity of his conviction under the Fifth, Sixth and Fourteenth Amendments on the grounds that: (1) he was never brought before a judge and directed to answer the prosecutor's questions after he had invoked the Fifth Amendment; (2) he was neither permitted, nor advised of his right, to leave the grand jury room and consult with his lawyer who was present outside and (3) he was denied his right to a jury trial.

 The convictions were affirmed by the Appellate Term, First Department. Leave to appeal to the Court of Appeals was granted, and the claims made here were urged and unanimously rejected there without opinion. Application for a stay pending filing of a petition for certiorari was denied on June 29, 1970 by Mr. Justice Harlan.

 There are no issues of fact so we proceed at once to the merits.

 Lack of Judicial Direction to Answer

 During the course of an investigation into a conspiracy to bribe labor representatives and related crimes, the New York County grand jury subpoenaed petitioners, among other witnesses. Each was accompanied by an attorney who waited outside the grand jury room. An Assistant District Attorney explained the purposes of the proceeding and advised each petitioner that he could refuse to answer questions on the ground of possible self-incrimination and that, if he refused to answer on that ground and the Assistant asked the Foreman to direct him to answer and he were so directed, the witness would be granted immunity from prosecution. The Assistant further explained the scope of the immunity and stated that once it was granted no prosecution could be had for any crimes disclosed as a result of an answer except for perjury, or, if the witness persisted in his refusal, contempt.

 Petitioners Sarcinella, Pilotta and Coppabianca said their attorney had explained their rights to them and that they understood the Assistant's explanation; Mauriello said his attorney had not explained his rights to him but acknowledged that he understood the Assistant's explanation; the remaining petitioners, claiming possible self-incrimination, refused to answer whether they had been advised of their rights or whether they understood the Assistant's explanation.

 Each petitioner was then asked at least four questions as to whether he was employed by Service Loading Corporation or had been paid for working for that company when in fact he had performed no services. Each refused to answer. The Foreman of the grand jury, upon the Assistant's request, in accordance with a vote previously taken, directed each petitioner to answer. Each persisted in his refusal. After these refusals, the fact that immunity had been tendered was again explained by the Assistant.

 No petitioner raised any question about the scope of his privilege or of the immunity to be conferred. Nor was any claim made of lack of understanding of the question; nor of its relevance or materiality. None asked to be brought before a judge for any reason; nor to leave the grand jury room to consult with his counsel; nor were any advised of their right to do so by the Assistant.

 The grand jury and the Assistant had satisfied all the procedural prerequisites for conferral of immunity under former Penal Law § 2447. *fn1" If a petitioner had answered, he would have acquired immunity from prosecution "for or on account of any transaction, matter or thing concerning which * * * he gave answer or produced evidence." *fn2" Each would thus have "obtained an immunity from prosecution for any and all crimes to which their testimony might relate and accordingly could not assert the privilege against self incrimination and refuse to testify." *fn3" There can be no question that each petitioner, "after being sworn, [refused] to answer any legal and proper interrogatory." *fn4"

 Petitioners now claim that they were deprived of due process because, after they refused to comply with the Foreman's directions to answer, they were not taken before a judge to have their rights explained to them and to be directed to return to the grand jury room and answer the questions.

 The Applicable Statutes

 Former Penal Law § 600(6) provides:

"A person who commits a contempt of court, of any one of the following kinds, is guilty of a misdemeanor:
* * *
Contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal or proper interrogatory; * * *"

 Former Penal Law § 2447 provides:

"1. In any investigation or proceeding where, by express provision of statute, a competent authority is authorized to confer immunity, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and, notwithstanding such refusal, an order is made by such competent authority that such person answer the question or produce the evidence, such person shall comply with the order. If such person complies with the order, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided for herein.
2. 'Immunity' as used in this section means that such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence, in accordance with ...

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