
    The People of the State of New York, Respondent, v. Anthony La Bello and Ralph Piccirillo, Appellants.
    Argued January 21, 1969;
    decided April 24, 1969.
    
      
      Nathan Z. Dershowitz and Anthony F. Marra for Ralph Piccirillo, appellant. I.
    The refusal of the District Attorney to allow appellant while testifying before the Grand Jury to confer with counsel concerning his legal rights violated appellant’s constitutional right to counsel. (People v. Laino, 10 N Y 2d 161; People v. De Feo, 308 N. Y. 595; People v. Ianniello, 21 N Y 2d 418; United States v. Wade, 388 U. S. 218; Miranda v. Arizona, 384 U. S. 436; People v. Donovan, 13 N Y 2d 148; People v. Meyer, 11 N Y 2d 167; Hamilton v. Alabama, 368 U. S. 52.) II. As appellant was a prospective defendant, the Grand Jury which compelled his appearance and administered the oath could not then indict him for a substantive prior crime. (People v. Steuding, 6 N Y 2d 214; People v. De Feo, 308 N. Y. 595; People v. Yonkers Contr. Co., 17 N Y 2d 322; People v. Tomasello, 21 N Y 2d 143; People v. Ferola, 215 N. Y. 285; Jones v. United States, 342 F. 2d 863.) III. As appellant was granted immunity under section 2447 of the former Penal Law the indictment for bribery was defective and the motion to dismiss that indictment should have been granted. (United States ex rel. Vanderhorst v. La Vallee, 285 F. Supp. 233; Von Moltke v. Gillies, 332 U. S. 708; People v. Noble, 9 N Y 2d 571; Counselman v. Hitchcock, 142 U. S. 547; Matter of Doyle, 257 N. Y. 244; Hoffman v. United States, 341 U. S. 479; Malloy v. Hogan, 378 U. S. 1; People v. Johnson, 20 N Y 2d 220; People v. Jackson, 18 N Y 2d 516.)
    
      Eugene Gold, District Attorney (Stanley M. Meyer of counsel), for respondent. I.
    The immunity afforded appellants did not extend to the crime of attempted bribery. (Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591; Hale v. Henkel, 201 U. S. 43; People v. Brayer, 6 A D 2d 437; People v. Breslin, 306 U. S. 294, 347 U. S. 1014; Murphy v. 
      Waterfront Comm., 378 U. S. 52; Matter of Koota v. Colombo, 17 N Y 2d 147; Matter of Grand Jury [Cioffi], 8 N Y 2d 220; Heike v. United States, 227 U. S. 131.) II. Whether appellant Piccirillo was a target of the G-rand Jury’s inquiry has no relevance to the attempted bribery conviction. In any event, he was plainly not a target. (People v. Steuding, 6 N Y 2d 214; People v. Tomasello, 21 N Y 2d 143.) III. Appellant Piccirillo’s right to counsel was not diluted. Even if technical interference existed it has no application to this case. (People v. Ianniello, 21 N Y 2d 418; People v. Laino, 10 N Y 2d 161.)
   Keating, J.

Called before a G-rand Jury investigating a conspiracy to intimidate witnesses who were to testify at a probe of violations of law involving public contracts, appellants, who had previously been convicted of assaulting one of the witnesses, were granted immunity (former Penal Law, § 2447). They then answered all the questions, admitting that they had been hired to commit the assault, but denying that they knew who their principals were.

Four days after appellants testified, the policeman who had arrested appellants was called before the same G-rand Jury. During the course of his testimony he told of appellants ’ attempt to bribe him not to be a witness against them and “ to get rid of the evidence.” This offer of a bribe was immediately reported to the District Attorney’s office.

Appellants were thereafter indicted for bribery and convicted, on their pleas of guilty, of attempted bribery. Prior to their pleas, however, they moved for inspection of the G-rand Jury minutes on the ground that they had been granted immunity from prosecution for the crime with which they were then being charged. Appellants were furnished with the minutes, but their motion to dismiss the indictment was denied. On appeal, the Appellate Division affirmed, one Justice dissenting.

The principal questions are two. The first is whether the immunity encompassed the crime charged in the present indictment. The second is whether appellants were the targets of the investigation and, if the answer is in the affirmative, does this require the dismissal of the indictment? We hold that the immunity only bars the use of the appellants ’ testimony or any fruits thereof. Since the police officer’s testimony was in no way derived from anything said by appellants to the Grand Jury and itself established a prima facie case of bribery, the indictment was, therefore, based on sufficient and untainted evidence. Whatever testimony by appellants might be considered of some relevance to the bribery charge may properly be deemed harmless error (Chapman v. California, 386 U. S. 18). Likewise, we consider it immaterial whether or not appellants were the ‘ targets ’ ’ of this investigation.

The problem here arises from the confusion which has until recently existed concerning the scope of the immunity which the Constitution mandates must be given before a witness is required to yield his privilege against self incrimination. The source of the difficulty is an ambiguity in the Supreme Court’s opinion in Counselman v. Hitchcock (142 U. S. 547 [1892]). In Counselman the Supreme Court held unconstitutional a Congressional immunity statute which only immunized the use of the actual testimony. The statute did not protect the witness against the “ fruits ” of his testimony. Therefore, the immunity was not co-extensive with the security which the privilege affords. There was nothing to prevent the Government from using the testimony as a starting point for further investigation through which the discovery of additional incriminatory evidence might be procured. It was the statute’s failure to protect the witness against the indirect use of his compelled testimony which made it constitutionally deficient.

The entire weight of the decision was that the Fifth Amendment prohibited the direct or indirect use of the testimony (142 U. S. 547, 564, 585-586). At the close of the opinion, however, there was a dictum to the effect that an immunity statute must afford absolute immunity against future prosecution for the offense to which the question relates ” (142 U. S., at pp. 585-586).

Perhaps responding to this dictum Congress, shortly after the Counselman decision, passed, as part of the Interstate Commerce Act, a broadly phrased immunity law which has been interpreted by the Federal courts to grant what is commonly referred to as a “ transaction ’ ’ immunity. This 'barred the Government from prosecuting the defendant for any crime mentioned by the witness during the course of his testimony. The constitutionality of the enactment was upheld in Brown v. Walker (161 U. S. 591 [1896]).

Time has shown that this ‘ transaction ’ ’ immunity type of statute was unnecessarily broad, that it gives witnesses an immunity not required "by the Constitution and that it has the effect of giving an unnecessary “ gratuity ” to crime. Where the People have a completely good case against a defendant without his testimony, there is not a single, sound policy reason, nor is there a constitutional compulsion, requiring that a grant of immunity gain a witness complete freedom from criminal liability for his wrongful acts simply because the acts were at some point mentioned to the Grand Jury (People v. Laino, 10 N Y 2d 161, 173). If he is protected from the use of his testimony or the fruits thereof, he loses nothing if he is then convicted on independent and untainted evidence.

In our view, the Supreme Court’s decision in Murphy v. Waterfront Comm. (378 U. S. 52) has finally resolved the ambiguity raised in Gounselman on the necessary scope of an immunity statute. (See, also, Gardner v. Broderick, 392 U. S. 273.) Following Malloy v. Kogan (378 U. S. 1), which made the self incrimination privilege applicable to the States, the Supreme Court was immediately confronted with the problem of how to accommodate the possible conflicts among criminal law enforcement agencies arising from our Federal system. The court in Murphy held that, as a consequence of its holding in Malloy, the Federal authorities would be barred from any prosecutional use of ¡State “ compelled testimony and its fruits ” where a witness is granted immunity after, asserting his privilege (378 U. S., at p. 79). No transaction immunity was granted as the footnote to Justice Goldberg’s opinion at this point makes patent: 1 Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.”

Thus only a restriction on use is required. Of significance here is the constitutional basis of the decision. It does not rest upon the Supreme Court’s supervisory power over the administration of justice in the Federal courts. (See concurring opn. of Justice Hablan [378 U. S., at pp. 80-81].) Justice White’s concurring opinion specifically emphasizes this very point that the Constitution requires only a prohibition from use not an absolute immunity (378 U. S., at pp. 92-93). Subsequent decisions of the court reinforce the conclusion that the essence of a valid immunity statute is that it must preclude the use in any manner of the compelled testimony and that is all. (Gardner v. Broderick, 392 U. S. 273, 278, supra; Sanitation Men v. Sanitation Comr., 392 U. S. 280, 284; see United States v. Blue, 384 U. S. 251, 255; see, also, discussion in Marchetti v. United States, 390 U. S. 39, 58-60 [Harlan, J.] and in Grosso v. United States, 390 U. S. 62, 81-83 [Warren, Ch. J.]; cf. Stevens v. Marks, 383 U. S. 234, 244-245 [Douglas, J.], 249 [Hablan, J.].)

New York’s law has had a similar confused history in this area (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; People ex rel. Lewisohn v. Court of General Sessions, 96 App. Div. 201, affd. 179 N. Y. 594; Matter of Doyle, 257 N. Y. 244; see, also, discussion in Law Revision Commission Report (N. Y. Legis. Doc., 1942, No. 65[I], pp. 50-54). These cases are based on the absolute immunity interpretation of the Counselman case. As a consequence, section 2447 of the former Penal Law, which became law in 1953, parallels in language the Federal statutes which have been interpreted to grant an absolute immunity. There are dicta in the cases which would indicate that section 2447 of the former Penal Law is to be interpreted in a similar manner (People v. Ianniello, 21 N Y 2d 418, 424-425; see, also, People v. Laino, 10 N Y 2d 161, supra; People v. De Feo, 284 App. Div. 622, 627, revd. on other grounds 308 N. Y. 595). Still there is no holding to that effect. Since the question is still open, we should proceed to examine the issue in light of the recent clarifications of the law as to the required breadth of a valid immunity statute.

In Heike v. United States (227 U. S. 131) Justice Holmes, writing for a unanimous court, denied immunity in circumstances where the relationship between the compelled testimony and the later charge was entirely too insubstantial. His opinion also suggests that the broad language of that immunity statute (similar to the one involved here) should be interpreted as a use restriction, not as a “ transaction ” immunity statute (227 U. S., at p. 142): “Of course there is a clear distinction between an amnesty and the constitutional protection of a party from being compelled in a criminal case to be a witness against himself. * * * But the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned.”

One thing is certain. The rationale of this opinion rests on the view that the Fifth Amendment only requires an “ exchange ”, not an “immunity bath”. (See Comment, 31 Brooklyn L. Rev. 157.)

A review of the history of section 2447 of the former Penal Law indicates that the broad immunity language was not a result of a policy choice, but a view that the Constitution required it. (See 1942 Report of N. Y. Law Rev. Comm., N. Y. Legis. Doc., 1942, No. 65 [I], pp. 50-54, supra.) There is no evidence that the Legislature felt a “transaction” immunity was a necessary aid for criminal law enforcement. In effect, a District Attorney has always had the ability to grant an absolute immunity by a decision not to prosecute for any crime where he finds it necessary to obtain the willing co-operation of a witness. But this is a conscious decision made in each instance in light of the particular factual circumstances. The “ transaction ” immunity, however, permits a witness to obtain by a mistake a complete pardon for all crimes although, as here, there is in the People’s possession sufficient untainted evidence to make a complete case against the witness.

Following Justice Holmes’ approach in the Heike case (supra), we conclude that the Legislature, in passing section 2447, did not intend it was to be an amnesty statute, but desired to afford witnesses only that immunity demanded by the constitutional privilege. Specifically, section 2447 of the former Penal Law (see Code .Crina. Pro. §§ 619-c, 619-d, 619-e) only bars the use of the witness’ testimony and any evidence derived therefrom.

There is no doubt that the police officer’s testimony here was based on his personal knowledge as the recipient of the bribe offer and that the Grand Jury’s indictment was completely based on that testimony. Nothing appellants said indicated that a bribery attempt had occurred. Whatever evidence might have been revealed by the appellants’ testimony was wholly insubstantial. Therefore, even if it be assumed that appellants ’ testimony was related to the bribery, the indictment was not the product of that testimony. Consequently, appellants’ Fifth Amendment rights were in no way violated by this indictment.

One of the appellants, Piccirillo, also argues that he was the target ” of the inquiry here and therefore the indictment must be dismissed, citing People v. Steuding (6 N Y 2d 214). We do not find it necessary to determine whether appellants were or were not the ‘£ targets ’ ’ of the inquiry here for, in our view, it is immaterial (People v. Tomasello, 21 N Y 2d 143).

Section 2447 of the former Penal Law was passed to achieve the sound purpose of preventing ££ immunity baths ” which resulted because witnesses were not required to assert their privilege (Third Report, May 4, 1953 of N. Y. State Crime Comm., N. Y. Legis. Doc., 1953, No. 68; 1943 Report of N. Y. Law Rev. Comm., N. Y. Legis. Doc., 1943, No. 65 [B], pp. 47-49). As Judge Bbeitel stated in People v. De Feo (284 App. Div., supra, p. 629): “It is this automatic, and what occasionally might be accidental or misguided conferring of immunity, that the new statute is designed to avoid.”

Most witnesses who are subpoenaed before a Q-rand Jury are informed of or, at least, are aware of their privilege against self incrimination. Most also have had the opportunity to consult with counsel and are more conversant about their legal position than is the “ target ” of a police investigation who is picked up on the street, taken to the police station, given a perhaps perfunctory recitation of his Miranda rights and yet is bound by his incriminatory admissions if he then chooses to speak. There is no reason why a witness, even if he is a “ target”, once informed of his rights, and given an opportunity to consult counsel (People v. Ianniello, 21 N Y 2d 418, supra), should not be required to assert his privilege if he wishes to obtain an immunity. If he does not, his testimony should be usable against him.

Here, however, although Piccirillo did not assert his privilege, he was granted immunity before he could. The precipitous action of the Q-rand Jury cmld not operate to deny Piccirillo complete protection from any use of Ms testimony against him. His testimony could not furnish the basis for a finding of an indictment, and the record demonstrates that it did not. Nevertheless, we see no justification for going any further and require the dismissal of the indictment simply because Piccirillo may be deemed to have been a target. We, therefore, hold that People v. Steuding (supra) should not be interpreted to require a dismissal of the indictment here.

Accordingly, the judgments of conviction should be affirmed.

Bergan, J. (dissenting).

It is settled constitutional law that if a man is called before a Grand Jury and questioned about material facts of a crime and gives answers on those facts, he may not thereafter be indicted by the Grand Jury on such testimony. This principle is based on a policy of protection from self incrimination (People v. Steuding, 6 N Y 2d 214).

The New York statute granting immunity (Code Grim. Pro., § 619-c) implements this principle by providing that when a witness refuses to answer on the ground of self incrimination the Grand Jury or other appropriate authority may confer immunity and require the answer be given. The immunity conferred is against a prosecution “ on account of any transaction, matter or thing concerning which ’ ’ he gave answer (subd. 2).

In the present case the statute was not literally followed in one of the cases because one defendant (Piccirillo) had not preliminarily refused to testify on the ground of self incrimination; but the Grand Jury cut short the process by granting immunity when the defendant was called as a witness. The other defendant (La Bello) refused to testify and then was granted immunity. The basic problem, however, is the same in each case.

Whether the immunity resulted as an exercise of statutory power of the Grand Jury or not, it occurred, nevertheless, as a result of the general protection against self incrimination and hence defendants should not have been prosecuted on a crime concerning some essential part of which they testified before the Grand Jury.

The only remaining points are whether the testimony they gave was material to the crime for which they were indicted and whether they were then (when called before the Grand Jury) reasonably to be regarded as targets of the prosecution, as the indictment itself shows they indubitably became, when, a short time after, they were indicted.

Long before the time they were called before the Grand Jury, and contemporaneously with the attempted bribery, a report of that crime had been made to the District Attorney by the police and it was the District Attorney’s duty to prosecute for that crime. Thus, when defendants were called before the Grand Jury they were cast in the dual role of witnesses and probable defendants.

But they were also asked material questions having relevancy to the attempt to bribe the policeman to get rid of one of the weapons which was material evidence in the other criminal charge. On this charge, reported by the police a year earlier, they were indicted by the Grand Jury which heard them as witnesses.

Each defendant testified to the description of the tire irons which had been used in the assault. The police witness then brought the tire irons physically before the Grand Jury and testified that defendants had offered a bribe to him if he would, as he said, ‘ ‘ get rid of one of the weapons * * * get rid of the evidence ”.

The relevancy of their testimony to the charge on which they were indicted is manifest. That they had committed the crime concerning which they sought to bribe the policeman not to testify was a basic premise of the bribery. The weapons they told the Grand Jury they had used were vital to the policeman’s testimony that they had attempted to bribe him “ to get rid of the evidence ”.

The use of their testimony could not have been inadvertent. Almost immediately after defendants’ testimony the Grand Jury heard proof of a bribe in relation to the very things defendants were questioned about. The indictment for bribery followed this testimony. It is clear when they were called the People intended to seek to indict them. They were asked to testify to facts which were essential and relevant elements in the crime for which they were indicted.

The majority opinion concedes under the circumstances in this case the testimony of defendants as a matter of law ‘ ‘ could not furnish the basis for a finding of an indictment ’ ’ but adds that the record ‘ ‘ demonstrates that it did not ’ ’.

The record is not to be read this way. The attempted bribe of the policeman related to a crime for which he had arrested defendants. They testified about that crime. The bribe related to an exhibit or exhibits with which the crime was committed. Defendants testified about them.

It is not possible on this record, then, to insulate this testimony from the resulting indictment. It has long been the settled law of New York that a prospective defendant obtained complete immunity if his testimony was material to the prosecution and was compelled (People v. De Feo, 308 N. Y. 595, 602-603; Matter of Doyle, 257 N. Y. 244; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; People v. Sharp, 107 N. Y. 427).

The majority opinion stresses the ambiguity in construing immunity statutes and suggests that to construe them too inclusively is to give an unnecessary “gratuity” to crime. That is not the question in this present case.

The question is whether, having been asked about facts relevant to a crime in which they were probable defendants, they could thereafter be indicted by any Grand Jury for that crime.

The cited decisions of the Supreme Court in Malloy, v. Hogan (378 U. S. 1), which equated the protection against State infringement of the privilege to a Federal infringement of it; in Murphy v. Waterfront Comm. (378 U. S. 52), which extended, to protect against subsequent Federal utilization, protection obtained under a State immunity law; and in Gardner v. Broderick (392 U. S. 273) which reversed a decision of this court (20 N Y 2d 227) upholding the discharge of a policeman for refusing to waive immunity, have little relevancy to the problem now before the court.

This present case does not involve the problem of “ leads ” to evidence, or the sufficiency of evidence other than that adduced from defendants. Possibly the People had enough other evidence to obtain an indictment. But, for some reason not made clear—■ either strategy or perfection-—-they adduced from the defendants themselves material evidence considered in indicting them.

The judgments should be reversed.

Judges Burke, Scileppi and Jasen concur with Judge Keating; Judge Bergan dissents and votes to reverse in a separate opinion in which Chief Judge Fuld and Judge Breitel concur.

Judgments affirmed. 
      
       Since Piccirillo’s answers did not form the basis of the present indictment, his claim that his constitutional right to counsel was violated because he was not permitted to confer with his attorney is without merit. No prejudice did or could result for the attorney could have done nothing more for Piccirillo than to assure that he was given the immunity which in fact he did receive. Piccirillo’s situation is to be distinguished from that of a witness who, denied permission to confer with his counsel, refuses to answer and is held in contempt. Such a witness might properly claim that, had he been given an opportunity to obtain advice from his lawyer, he would undoubtedly have testified, and thereby been spared a prosecution on a contempt charge.
     