The opinion of the court was delivered by: LASKER
Facts and Prior Proceedings
Nicholas Marangello was convicted of criminal contempt, New York Penal Law § 215.51, based on his responses to questioning before a grand jury conducting an investigation into, inter alia, the murder of Carmine Galante in July 1979, and whether there had been a conspiracy to retaliate for Galante's murder. The specific answers upon which Marangello's contempt citation is based concern a conversation among Marangello, Aniello Dellacroce and Steven Cannone which took place outside the Ravenite Social Club on Mulberry Street in New York City approximately two weeks following Galante's murder. As the prosecutor's questioning made clear, the grand jury was attempting to determine whether Galante's murder had been discussed in that conversation, and in particular whether the three had talked about the fact that Galante's murderers had not succeeded in killing Angelo Presenzano along with Galante.
Marangello testified that he had known Galante from 1942 to the time of his murder, and was the godfather of one of Galante's children. Marangello stated that he had known Cannone for thirty years, and that he was acquainted with Dellacroce but had seen him only twice in 1979, both times at the Ravenite Club. Marangello said that he had visited the Ravenite Club three times in 1979, and initially testified that his last visit had been in June, prior to Galante's murder. During that visit, according to Marangello, he watched Cannone playing cards, and he and Cannone then stopped to say good-bye to Dellacroce as they were leaving the club.
When Marangello flatly denied discussing Galante's murder with Cannone and Dellacroce, or indeed with anyone else, the prosecutor played a soundless videotape, recorded on July 26, 1979 outside the Ravenite Club, which showed Marangello engaged in an animated, eleven-minute conversation with Dellacroce and Cannone. After seeing the videotape, Marangello continued to deny that he had said anything about Galante's murder or about Presenzano. When asked if Cannone or Dellacroce had said anything about Galante or Presenzano, Marangello said first that he "didn't hear it," (Tr. 51) and then said he didn't "remember it" (Tr. 55). When the prosecutor asked whether Marangello denied that such matters were discussed in his presence during the July 26, 1979 conversation, Marangello said
"If I'd say I deny, it, I'm lying.But, I said I didn't hear it. I don't recall it."
Based on this testimony Marangello was indicted for criminal contempt
and, after waiving a jury trial, was tried before New York Supreme Court Justice Myriam Altman. The state called the prosecutor, Peter Benitez, as a witness, and introduced portions of the grand jury transcript into evidence. The defense called two audiologists, Kevin O'Flaherty and Janie P. Barnett, who testified that Marangello suffers from some hearing loss in both ears. Marangello did not testify.
The trial court, in a written decision, found that the subject on which Marangello was asked to testify was sufficiently unusual and specific to be memorable. Consequently, the court found, Marangello's testimony that he could not remember whether the July 26th conversation concerned Galante's murder was so evasive and ambiguous as to be contemptuous beyond a reasonable doubt. The court noted that it did not find the testimony regarding Marangello's hearing to be significant (A. 271-73). The court sentenced Marangello to a one-year prison term.
The Appellate Division, First Department, unanimously affirmed Marangello's conviction without opinion on December 16, 1982. On January 25, 1983, Marangello was denied leave to appeal to the Court of Appeals.
Marangello raises two issues as grounds for relief in the instant habeas petition. First, he contends that the evidence was insufficient to justify a rational trier of fact finding him guilty of contempt beyound a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Second, he claims that in derogation of his right to due process the grand jury was improperly used to trap him into a comtempt citation.