The opinion of the court was delivered by: BRIEANT
Upon his plea of guilty, petitioner was convicted in the Supreme Court of the State of New York, New York County on July 24, 1975, of criminal contempt in the first degree, N. Y. Penal Law § 215.51. Petitioner was sentenced to a term of five months imprisonment.
He was permitted to continue on bail pending review by the state appellate courts. The Appellate Division of the Supreme Court, First Department, affirmed the judgment of conviction and the New York Court of Appeals denied petitioner leave to appeal. Petitioner, having exhausted his state remedies, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.
Petitioner attacks his conviction on three separate constitutional grounds. First, petitioner contends that he was denied his right not to be compelled to answer before a State grand jury, questions that were derived as a result of unlawful electronic surveillance. Petitioner contends that this right is derived from 18 U.S.C. § 2515 and the Fourth and Fifth Amendments of the United States Constitution. Second, petitioner contends that his Fifth Amendment rights were abridged when he was indicted for criminal contempt by the same grand jury that heard testimony he had given under a grant of immunity. Finally, petitioner contends that he was denied his Sixth Amendment right to counsel when he was not permitted to consult with his attorney during his interrogation before the grand jury.
At the outset, respondent contends that since petitioner pleaded guilty, and there is no explicit statutory right to reserve his objections, these objections were waived by his plea and therefore this Court is barred from considering them. Lefkowitz v. Newsome, 420 U.S. 283, 293, 95 S. Ct. 886, 891, 43 L. Ed. 2d 196 (1975), held that
"When state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding."
In Newsome, the Court found that New York Criminal Procedure Law ("N.Y.C.P.L."), §§ 710.20(1) and 710.70(2) permitted a defendant, after pleading guilty, to appeal the denial of his motion to suppress evidence allegedly obtained as a result of an unlawful search and seizure. Accordingly, there was no bar to consideration of these claims upon a petition for a federal writ of habeas corpus.
Petitioner's claim that he was compelled to answer questions derived from unlawful electronic surveillance is similar to the Fourth Amendment claim raised in Newsome. Although petitioner could not move to suppress this alleged fruit of the poisonous tree, petitioner did invoke his federal constitutional and statutory rights with regard to the alleged wiretap information.
Similarly, petitioner's second claim, that he was deprived of his Fifth Amendment rights because the same grand jury heard his immunized testimony and later indicted him for contempt, is not barred. The issue raised here is whether this particular grand jury, in accordance with law, could return this indictment. New York permits a defendant to move to dismiss the indictment after his plea of guilty if "[the] grand jury proceeding was defective, within the meaning of [N.Y.C.P.L. § ] 210.35" or if "[the] defendant has immunity with respect to the offense charged, pursuant to section 50.20 or 190.40." N.Y.C.P.L. §§ 210.20(1)(c), (1)(d), (2).
Petitioner moved to dismiss the indictment, which motion was denied in June 1975, and shortly thereafter, on June 18, 1975, he pleaded guilty. There was no doubt but that petitioner refused to answer the questions propounded, and the only issues raised were issues of law, whether there was just cause for the petitioner's refusal to answer. When these issues of law were decided adversely to petitioner, there were no issues remaining for trial. These legal issues provide fair ground for litigation and the Court declines to view petitioner's plea of guilty as a waiver of the constitutional claims that he sought to raise in the state courts. We therefore proceed to a consideration of the merits of petitioner's claims.
Petitioner was subpoenaed to testify under a grant of immunity before the State grand jury investigating the 1972 murder of one Joseph Gallo, an organized crime figure who was shot in an early morning restaurant killing. Petitioner moved to quash the subpoena on the ground that the questions likely to be asked of him were derived from unlawful electronic surveillance. In the course of the hearing on the motion to quash, the Assistant District Attorney stated that there had been electronic eavesdropping conducted in the investigation of this case, but that this had been done pursuant to an eavesdropping warrant issued by the Court. The prosecutor also stated that he had so informed petitioner's prior counsel on a previous occasion (A-22-23).
The Court denied petitioner's motion to quash the subpoena. Petitioner raised the same argument upon his motion to dismiss the contempt indictment, which motion was also denied.
Petitioner relies upon 18 U.S.C. § 2515 and Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972). Gelbard held that § 2515 was available as a defense to a contempt charge, and that a grand jury witness may refuse to answer questions derived from unlawful electronic surveillance. In Gelbard and its companion case, United States v. Egan, the issue arose as a defense to a contempt charge, and not upon motion to quash a grand jury subpoena. Neither Gelbard nor § 2515 require the state court to quash a grand jury subpoena upon the speculation that the questions to be asked are derived from a tainted source. 408 U.S. at 60-61, 92 S. Ct. 2357, 33 L. Ed. 2d 179.
Petitioner contends that a mere statement by the prosecutor that electronic surveillance was conducted pursuant to court order is an insufficient response and that therefore § 2515 bars an adjudication of contempt. Justice White in a concurring opinion provided the decisive vote for the majority in Gelbard. Obviously concerned lest a recalcitrant witness be empowered to obstruct the lawful investigations of a grand jury, Justice White concluded:
"Where the Government produces a court order for the interception, however, and the witness nevertheless demands a full-blown suppression hearing to determine the legality of the order, there may be room for striking a different accommodation between the due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. At the same time, prosecutors and other officers who have been granted and relied on a court order for the interception would be subject to no liability under the statute, whether the order is valid or not; and, in any event, the deterrent value of excluding the ...