A New York Criminal Lawyer said that, on April 17, 1970, in compliance with a subpoena, the defendant appeared before the October, 1969 Holdover Nassau County Grand Jury. After being duly sworn, he refused to answer questions put to him by that body, and even after immunity was conferred upon him by the Grand Jury, persisted in his refusal to answer lawful and proper interrogatories. Thereafter, on May 15, 1970, the defendant appeared before the then County Judge (now Justice of the Supreme Court) of Nassau County. The Judge directed him to return to the Grand Jury and answer questions put to him, but the defendant indicated that he would not obey this directive of the Court.
Consequently, in an order dated May 19, 1970, the Judge adjudged that the defendant had committed a criminal contempt under Judiciary Law § 750 in the immediate view and presence of the Court for his ‘contumacious and unlawful refusal, after being sworn, as a witness, to answer any legal and proper interrogatories, and for his wilful disobedience to the lawful mandate of this Court.’ The defendant was then sentenced to thirty days in the Nassau County Jail.
A New York Criminal Lawyer said that, subsequently, on May 22, 1970, the defendant was indicated on two counts of criminal contempt under Penal Law § 215.50. The first count, based upon Penal Law § 215.50(4) alleged that the defendant ‘did contumaciously and unlawfully refuse to answer legal and proper questions and interrogatories directed and asked of him’ when he appeared before the Grand Jury on April 17, 1970. The second count, based upon Penal Law § 215.50(1) alleged that the defendant ‘did contumaciously and insolently conduct himself so as to: interrupt the proceedings of; and impair the respect due the authority of the said Judge and the County Court of Nassau County sitting in official session, and in its immediate view, by refusing to answer legal and proper interrogatories and questions before the aforesaid Grand Jury.’
The defendant’s motion to dismiss this indictment presents the opportunity as well as the responsibility to assay the application of the recent decisions of the Supreme Court. The defendant requests relief upon the following grounds: 1. that this prosecution would place the defendant twice in jeopardy for the same acts; (CPL § 210.20(1e)) 2. that this prosecution has been unduly delayed to the detriment and prejudice of the defendant; (CPL § 210.20(1g)) 3. that the indictment is defective. (CPL § 210.20(1a))
The issue in this case is whether two contempt’s worth the price of one.
A Brooklyn Criminal Lawyer said in sum then, it must be borne in mind that the defendant was first held in contempt by Judge pursuant to Judiciary Law § 750 and later indicted under Penal Law § 215.50 for his conduct in (1) refusing to answer Grand Jury questions after having had immunity conferred upon him; and (2) for refusing to obey Judge’s lawful mandate. The defendant was arraigned on June 30, 1970 pursuant to the aforementioned indictment and entered a Plea of Not Guilty. Thereafter, he requested and received several adjournments from the time of his arraignment until March 21, 1972 to await a decision in the 1972 case, a case believed to have a significant bearing upon relevant areas of the law.
Subsequent to March 21, 1973 several additional adjournments and transfers were effected for a variety of reasons, and eventually, on May 10, 1973 this case appeared upon the calendar of the undersigned. On May 21, 1973 the defendant applied for and was granted the right to renew a prior motion to dismiss the indictment, and on May 29, 1973 he made the instant application, to which the People filed an Affidavit in Opposition on June 14, 1973. In essence, the defendant contends that identical actions, to wit, his initial refusal to answer Grand Jury interrogatories on April 19, 1970 and his subsequent refusal to answer such interrogatories on May 15, 1970 in disobedience of Judge ‘s directive, served as the basis for both his thirty day sentence under Judiciary Law § 750 as well as his subsequent indictment under Penal Law § 215.50. He relies upon two recent New York cases the 1972 and 1973 case, and because of the similarity of the facts in each of those cases to the matter at bar, it is worth examining each such cited case in detail.
A Bronx Criminal Lawyer said the Colombo case involved a claim of double jeopardy by a defendant challenging an indictment brought under the former Penal Law for the same conduct for which he had previously been punished under the Judiciary Law. As in the instant case, Colombo refused to answer Grand Jury interrogatories after he had been afforded immunity from prosecution. Thereafter, he too was brought before a judge (December 8, 1965) who directed him to answer, and he likewise refused to obey the order of the Court. On December 15, 1965 the Supreme Court, Kings County, stated that ‘by his contumacious and unlawful refusal after being sworn as a witness to answer any legal and proper interrogatories and for his wilful disobedience to the lawful mandate of this Court, defendant had committed a criminal contempt of Court in the immediate view and presence of the Court.’ These are virtually the identical words used by Judge in holding the defendant in contempt. In each case, the contempt citation recited two grounds–refusal to answer Grand Jury questions and refusal to obey the Court’s lawful order. In Colombo, after appellate proceedings proved fruitless, the defendant offered to testify, but his offer was refused, and he served his thirty day sentence and paid his $250.00 fine.
To resume our chronology, after the United States Supreme Court had remanded Colombo for further consideration. In so doing, the Court of Appeals interpreted the United States Supreme Court’s holding in Waller as being restricted to the particular fact pattern therein, namely, that a person cannot be tried by the State after having been convicted for the same acts by a municipality. The Court of Appeals, perceiving no ‘State-municipality dichotomy’ held Waller to be inapplicable and in addition held that Waller involved Two separate punishments for the Same acts;whereas in its view, Colombo involved punishment for Two distinct acts, i.e., initially, refusal to answer Grand Jury questions, and secondarily, a separate refusal to obey an order of a Court.
The Court of Appeals also took pains to point out that the purpose of punishment under the Penal Law is different from that under the Judiciary Law, namely that commitment pursuant to the latter is ‘not the result of a criminal prosecution was civil in nature, and hence, the doctrine of former jeopardy is not applicable.’ As herein-above indicated, it adopted the Justice’s reasoning to the effect that punishment under the Judiciary Law ‘serves to protect the integrity and vindicate the power of our courts’, whereas punishment pursuant to the Penal Law ‘protects the interests of the State to obtain evidence which will benefit the community as a whole.’ It further held that ‘we are faced with separate acts, meriting separate punishment, for distinct purposes–a far divergent situation from Waller where there was multiple punishment for the same act.’
Certiorari was granted yet again, and the United States Supreme Court, apparently not desiring to be denied, proceeded to reject the view that a difference existed between contempt under the Judiciary Law and the Penal Law, and held that for the purposes of the Federal Double Jeopardy Clause, the defendant had been fined and sentenced for a criminal contempt. It further appears that the United States Supreme Court considered the alleged acts of contempt as being ‘partially intertwined’–that is, that the initial refusal to testify did not mature into a contempt until Colombo refused to obey the Court’s order to return and answer Grand Jury questions.
A peripheral but nonetheless pertinent question arises as to the authority of a Court under § 750 of the Judiciary Law to hold a defendant summarily in contempt for his failure to answer questions put to him by a Grand Jury–since such act of contempt occurs outside the presence of the Court. However, the Matter of Second Additional Grand Jury of County of Kings, is dispositive of that issue. The defendants therein were held in contempt pursuant to paragraph 5 of subdivision A of § 750 of the Judiciary Law ‘for contumacious and unlawful refusal to answer the legal and proper interrogatories put to each of them in the Grand Jury’ after they had been duly sworn as witnesses and granted immunity from prosecution. The order of the County Court was subsequently affirmed by the Appellate Division and by the Court of Appeals. By virtue of these affirmances, the authority of the lower Court to adjudicate the defendant in contempt was implicitly upheld.
In opposition to the instant application, the People rely upon § 215.55 of the Penal Law as one basis for their contention that this indictment does not constitute double jeopardy. That statute states: ‘Adjudication for criminal contempt under subdivision A of section seven hundred fifty of the judiciary law shall not bar a prosecution for the crime of criminal contempt under section 215.50 based upon the same conduct but, upon conviction thereunder, the court, in sentencing the defendant shall take the previous punishment into consideration.’
In the instant case, however, the indictment against the defendant was based upon both his refusal to answer Grand Jury questions And his refusal to obey the lawful mandate of the Court. In addition, the defendant in the instant case, was adjudged in contempt for Both his refusal to answer Grand Jury questions And his refusal to obey the mandate of the Court. The final Colombo decisions by the Supreme Court of the United States as well as the New York Court of Appeals, in addition to the Capio, Appellate Division decision are all too apparently applicable to and controlling of the instant case, and clearly foreshadow the duty of this Court. Colombo, supra, held in sum that a person once punished for contempt pursuant to § 750 of the Judiciary Law for refusal to obey a lawful mandate of the Court to answer interrogatories before the Grand Jury cannot be subsequently prosecuted under the Penal Law for the same act. That holding bars prosecution under the second count of the indictment presently before this Court since the defendant has already been punished pursuant to the Judiciary Law for his refusal to obey the order of the Court.
held that when a person is adjudged in contempt pursuant to § 750 of the Judiciary Law for (1) refusal to answer questions before a Grand Jury, And (2) refusal to obey a Court order to answer Grand Jury interrogatories, he ‘may not now be prosecuted separately for one of them.’
To reiterate, in the cause at bar, the defendant was held in contempt under § 750 of the Judiciary Law for both refusing to answer Grand Jury interrogatories And for refusing to obey the lawful mandate of the Court. The remorseless applicability of all of the foregoing bars, beyond cavil, prosecution of this defendant under both the first and second counts of this indictment upon the ground of double jeopardy. In view of this conclusion, the remainder of the defendant’s application is rendered academic.
It has been most truly said that the test of a genuinely civilized society is the manner in which it treats its accused. The foregoing opinion is a most modest affirmation of that so-considered premise. But, since we seem to live in a day and age when more ocular forums appear to reflect the temper of the times, this Court takes pains to reiterate the oft-expressed view that this society’s ultimate crucible ever remains the reasoned, rational, rule-abiding atmosphere which only a Court of Law can provide, with proper safeguards for the People and the prosecuted alike.
It is, therefore, DP Ordered, that Indictment #29457 be and the same hereby is in all respects dismissed, and it is further ordered, that bail heretofore set be exonerated.
If you are involved in a similar situation, seek the help of a Nassau Criminal Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.