The opinion of the court was delivered by: LOWE
AMENDED MEMORANDUM OPINION and ORDER
This petition for Habeas Corpus, pursuant to 28 U.S.C. § 2254, requests review of a proceeding
in the Supreme Court of the State of New York, New York County, Trial Term, which resulted in an order being entered November 8, 1978 adjudging that petitioner, nursing home owner, had failed to produce books and records of the nursing home for the years 1970 and 1971 pursuant to a subpoena duces tecum and therefore had not purged a contempt of the court decreed after an initial finding of contempt on August 4, 1977. The August, 1977 decision directed that petitioner be incarcerated until the records were produced, or that he give a reasonable explanation for their nonproduction.
A review of the prior proceedings is required to place the August 1978 hearing in context. On April 7, 1975, the Deputy Attorney General of the State of New York served the Florence Nightingale Nursing Home with an administrative, non-judicial subpoena duces tecum, pursuant to New York State Executive Law § 63(8), which, when modified, required the petitioner to produce the nursing home books and records for years 1970-1975. After unsuccessful litigation to quash, petitioner herein, sole proprietor of the nursing home, produced books and records for the years 1972-1975, but failed to produce the books and records for the years 1970 and 1971. The Deputy Attorney General brought on an Order to Show Cause pursuant to New York Civil Practice Law and Rules § 2308 (McKinney 1974) (hereinafter "CPLR"), to compel compliance. Hearings were held between November, 1976 and April, 1977. Petitioner presented witnesses, but did not testify himself. At the conclusion of petitioner's evidence, the presiding Justice held that petitioner had not presented a reasonable explanation for nonproduction of the books and records and that the evidence had shown that the 1970 and 1971 books and records were in existence and under petitioner's control when the subpoena was served. He further held that an inference of continued existence and possession may properly be drawn from the record. The hearing court found petitioner in civil contempt and directed he be imprisoned until he produced the missing books and records.
This ruling was reviewed and affirmed by the Appellate Division of the Supreme Court,
the New York State Court of Appeals,
the District Court (S.D.N.Y.),
and the Second Circuit Court of Appeals.
After interim proceedings, petitioner made an application in August, 1978 to the trial court for a review hearing pursuant to CPLR § 2308(c). He had been incarcerated for 129 days.
Petitioner raised Fifth Amendment objections to questioning on cross-examination as to the "whereabouts" of the books and records prior to the date of the subpoena. The Court directed petitioner to answer.
At the conclusion of the hearing, the hearing court held petitioner had failed to give a reasonable explanation for not producing the subpoenaed books and records, and continued petitioner's incarceration.
Petitioner appealed the Justice's order. The Appellate Division, First Department, unanimously affirmed the hearing court's order for the reasons stated by the hearing court. 67 A.D.2d 872, 413 N.Y.S.2d 1019 (1st Dept. 1979). Petitioner then took an appeal as a matter of right to the New York State Court of Appeals; the appeal was dismissed upon the grounds that the order appealed from did not finally determine the proceeding within the meaning of the Constitution and that no substantial constitutional question was directly involved.
Petitioner then returned to the Appellate Division, First Department, to seek leave to appeal to the New York State Court of Appeals; petitioner's motion for leave to appeal was denied on June 26, 1979.
Since petitioner is under a sentence of incarceration pursuant to the Order of the hearing court, and that commitment was stayed by this Court pending its decision herein;
and New York State provides no further avenues of appellate review of the order of incarceration; this petitioner has exhausted his State remedies within the purview of 28 U.S.C. § 2254.
The Second Circuit Court of Appeals recently held in Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979) that in order to exhaust state remedies, a petitioner must have fairly presented to the state court the facts underlying the federal habeas corpus claim alleged, and that the state court must have been informed of the legal basis of the claim.
Since the decision of the Appellate Division, First Department, was affirmed on the trial Justice's decision and order, and the Court of Appeals dismissed the appeal, this Court must search the record before the Appellate Division and hearing court to determine whether petitioner raised the federal claims, herein asserted, in the State Court proceedings.
The Issues Before The Appellate Division
Appellant's (present petitioner's) Points before the Appellate Division were, inter alia :
It was error for the hearing court to require Sigety to testify in the face of an assertion of his Fifth Amendment privilege against self-incrimination.
The Special Prosecutor (Deputy Attorney General) has failed to meet his burden of establishing that the missing records exist and the appellant can produce them.
Respondent's Points before the Appellate Division were, inter alia :
A person claiming inability to comply with a court order or a judicially enforced subpoena has the burden of proof as to that claimed inability.
Sigety has not offered a reasonable explanation for not complying with the Order of the hearing court and the judicially enforced subpoena of the Deputy Attorney General.
This Court finds that the issues raised herein comply with the requirements of Twitty v. Smith, supra.
Petitioner cannot relitigate the issues, raised and decided in the original contempt citation. A review of the record made before petitioner's August, 1978 hearing is foreclosed as res judicata. Maggio v. Zeitz, 333 U.S. 56, 69, 68 S. Ct. 401, 408, 92 L. Ed. 476 (1948). The fact that petitioner testified at the August, 1978 hearing and he did not testify at the prior August, 1977 proceeding makes the issue raised in the instant application separate and distinct, in fact and law, from the prior proceedings.
The August, 1978 Proceeding
Section 2308(b) of the CPLR, the provision of the New York Statute herein implicated, and under which Sigety was held in contempt, provides:
"If a person so subpoenaed . . . is brought before such person or body, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he was directed to produce by the subpoena, . . . the court, upon proof by affidavit, may issue a warrant . . . committing him to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law."
The hearing court ruled, and the respondent argued before the Appellate Division:
"Thus, as Justice McQuillan ruled, once a prima facie case of contempt has been established, Section 2308(b) of the CPLR places a "statutorily prescribed burden (upon the subpoenaed party) of proffering a reasonable explanation for non-compliance with the subpoena's demand." (See discussion, Brief of Respondent-Attorney General to Appellate Division at Point II, pp. 37-44.)
The hearing court ruled that Sigety's application to testify as to his inability to produce the books and records was a voluntary act and that once petitioner gave direct testimony of present inability to comply, he waived his Fifth Amendment rights and could be cross-examined on any relevant issue including the whereabouts of the books and records.
Sigety testified on direct examination that he did not have the present ability nor has he had the ability since service of the subpoena, to produce the required books and records.
The first question asked by the Deputy Attorney General on cross-examination concerned the "whereabouts" of the books and records. Sigety declined to answer, asserting a Fifth Amendment privilege.
After extensive colloquy, the Deputy Attorney General moved to strike Sigety's direct testimony on the ground that Sigety's invocation of the Fifth Amendment denied him ...