People v. Costello , 6 A.D.2d 385 ( 1958 )

Bergan, J.

An attempt to assassinate him having been made on May 2,1958, appellant Frank Costello was called as a witness before the New York County Grand Jury on its inquiry into the crime.

While he was in a hospital for treatment of injury resulting from the attack on him, the police, searching his clothing, had found in his pocket a paper containing notations of various amounts of money connected with “ casino wins ” and “ slot wins ” and payments to individuals.

In addition to the direct facts of the crime, the witness was asked questions concerning this paper and its contents on the theory of the District Attorney that the paper and its notations could have some bearing on a conspiracy to assassinate the witness.

Appellant refused to answer these questions on the ground they would be self-incriminating; he was directed by the foreman of the Grand Jury to answer under conditions which adequately conferred immunity under New York law from subsequent criminal prosecution. (Penal Law, § 2447, subd. 2.) Before the Grand Jury, the witness asserted that he was then under State and Federal investigation and that previous testimony given by him before New York grand juries had been turned over to Federal authorities.

In the proceeding before the Court of General Sessions to compel answers to the questions, he asserted the danger of his exposure to Federal prosecution. The court directed the answers and, on the failure of the witness to comply, entered an order punishing him for contempt, which is here reviewed.

The formula suggested by this court in Matter of Knapp v. Schweitzer (2 AD 2d 579, affd. 2 N Y 2d 913, affd. 357 U. S. 371) as an attempt at solution of the problem of self-incrimination in areas where Federal and State criminal jurisdiction overrun, was based on a concept of protection implicit in tendered cooperation between State and Federal authorities.

But the Supreme Court has held that the announced intention of co-operation with State officials by the Federal prosecutor shown by the Knapp record was ‘‘ devoid of legal significance as a joint state and federal endeavor” (Knapp v. Schweitzer, supra, p. 380, opinion Mr. Justice Frankfurter).

The formula will not be expected to afford protection against subsequent Federal prosecution to a witness whose testimony is compelled by the State unless more in the way of State and Federal joint action be shown than was demonstrated in the Knapp record, i.e., if “ a federal officer should be a party to the compulsion of testimony by state agencies, the protection of the Fifth Amendment would come into play. Such testimony is barred in a federal prosecution ” (p. 380). There is no showing in the record before us of joint action between the authorities of the two governments; or, indeed, of any co-operation between them in the development of this ease.

Although the potential exposure to Federal prosecution asserted by appellant seems reasonable enough, since the Federal Government might form an interest in the answers which he could give concerning the written notations on the paper found in his pocket, this exposure is not a ground for excusing the answers where the immunity which flows from State law is as adequate as the State can make it against its own subsequent prosecution. (Dunham v. Ottinger, 243 N. Y. 423.) This rule is not, of course, open to re-examination here. (Cf. dissenting opinions by Black and Douglas, JJ., in Knapp v. Schweitzer, supra, p. 383.) We are of opinion, therefore, on the issue of exposure to Federal prosecution, that the order at General Sessions should not be disturbed.

Appellant argues additionally that since the document concerning which he was questioned was itself unlawfully obtained by the police searching through his pockets without his consent, questions which tend to self-incrimination concerning the document compound the affront. But with the danger wrung out of the case by the immunity statute, no injury at all to this witness is contemplated from the answers, as far as New York is concerned, however the original document was obtained; and the damage from its seizure and use is certainly more benign than when it might become an actual instrument of prosecution. (People v. Defore, 242 N. Y. 13.)

He contends, too, that there is uncertainty in the scope of the immunity tendered. The order appealed from makes it clear concerning the precise subject to which immunity was extended and for which compulsion to testify was exerted. It appears that some other questions were asked beyond this area which the witness refused to answer and which were not embraced in the order of punishment. Whether such questions which the witness refused to answer are within or without the general scope of the inquiry seems irrelevant as far as immunity is concerned. The witness is not hurt by what he successfully refused to do. What confers immunity is the refusal to answer, plus the answer “ to a question ”. (Penal Law, § 2447, subd. 1.)

The order should be affirmed.