
    The People of the State of New York, Appellant, v. Hugh Mulligan, Respondent.
    Argued June 8, 1971;
    decided July 7, 1971.
    
      Frank S. Hogan, District Attorney (Lewis R. Friedman and Michael R. Juviler of counsel), for appellant.
    I. Full, effective transactional immunity was conferred on Hugh Mulligan and he was properly advised of its scope; therefore, his refusal to answer was contemptuous and the indictment was improperly dismissed. (People v. Ianniello, 21 N Y 2d 418, 393 U. S. 827; People v. Laino, 10 N Y 2d 161; People v. De Feo, 308 N. Y. 595; People v. Chestnut, 26 N Y 2d 481; Matter of Gold v. Menna, 25 N Y 2d 475; Matter of Second Additional Grand Jury of County of Kings [Cioffi], 8 N Y 2d 220; People v. Brayer, 6 A D 2d 437; Counselman v. Hitchcock, 142 U. S. 547; People v. Saperstein, 2 N Y 2d 210; Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 5 N Y 2d 1026.) II. Legal arguments rejected by the trial court or not passed on by it or the Appellate Division may not now be raised by respondent where these contentions do not form the basis for the order dismissing the indictment. (People v. Hendry, 15 A D. 2d 784; Meaney v. Loew’s Hotels, 29 A D 2d 850; New York Cent. R. R. Co. v. Beacon Milling Co., 293 N. Y. 218; Rehill v. Rehill, 306 N. Y. 126; Ralston Purina Co. v. Siegel’s Poultry, 24 A D 2d 926; Loch Sheldrake Assoc. v. Evans, 306 N. Y. 297; People v. Schultz, 301 N. Y. 495; In re Murchison, 349 U. S. 133; People v. Riela, 7 N Y 2d 571.)
    
      Herald Price Fahringer, Philip B. Abramowitz and Lawrence A. Schulz for respondent.
    I. The proceedings before the grand jury which indicted respondent were legally and constitutionally deficient because respondent was never granted immunity nor was he advised of such a grant; respondent was never advised that the immunity offered him was as broad in scope as the privilege against self incrimination asserted by him, and respondent was misled into believing that the immunity offered him was a “ use ” immunity rather than “ transactional immunity ’ ’ as provided by section 619-c of the Code of Criminal Procedure. (Stevens v. Marks, 383 U. S. 234; People v. Brayer, 6 A D 2d 437; People v. Franzese, 16 A D 2d 804,12 N Y 2d 1039; People v. De Feo, 308 N. Y. 595; Matter of Gold v. Menna, 25 N Y 2d 475; People v. Masiello, 35 A D 2d 706.) II. Hugh Mulligan was denied due process of law because he was indicted by the very same grand jury before whom it was claimed he was contemptuous; the indictment is jurisdictionally deficient because it fails to allege an essential element of the crime of criminal contempt as defined by section 215.51 of the Penal Law, and the indictment is duplicitous because it unlawfully multiplies the contempt charges when at the very most only one contempt could have been committed. (Wood v. Georgia, 370 U. S. 375; Ex parte Bain, 121 U. S. 1; People v. Ianniello, 21 N Y 2d 418; In re Murchison, 349 U. S. 133; People v. Crimmins, 26 N Y 2d 319; People v. De Lucia, 20 N Y 2d 275; Town of Putnam Val. v. Slutsky, 283 N. Y. 334; Matter of Shea v. Falk, 10 A D 2d 142, 8 N Y 2d 1071; People v. Glaser, 2 AD 2d 352; Russell v. United States, 369 U. S. 749.)
   Chief Judge Fuld.

The defendant Hugh Mulligan was indicted for the crime of criminal contempt (Penal Law, § 215.51) following his refusal to answer questions, during the course of an investigation by a grand jury, after being advised that the jury had voted to confer immunity upon him. The courts below dismissed the indictment on the ground that he had been granted testimonial, rather than transactional, immunity.

The law on the subject, clear in principle, was most recently articulated in People v. Masiello (28 N Y 2d 287). Declaring that " Fundamental fairness [not only] required * * * that the witness be advised that he has been granted immunity in displacement of the privilege against self incrimination * * * [but] also suggests that [he] * * * should not be misadvised concerning the scope of immunity if the grant of immunity has been amplified or explained in any way ”, the court held that the defendant Masiello had not received ‘ ‘ full and fair notice ” that he was being granted transactional immunity and would not be prosecuted “ concerning any transaction about which he might be questioned ” (28 N Y 2d, at p. 291).

Here, Mulligan was indisputably granted the transactional immunity provided for by section 619-c of the Code of Criminal Procedure (see, e.g., People v. Chestnut, 26 N Y 2d 481, 485, n. 2), and, just as clearly, he was fully advised of the breadth of such immunity. Immediately after he took the stand in the grand jury room, even before he was sworn, Mulligan was informed by an Assistant District Attorney that he was being called “ exclusively in the role of a witness ” and unequivocally told that “ this Grand Jury has voted to confer immunity upon you, should you assert your privilege against self-incrimination ”. Then, after he had claimed his privilege and refused to testify, he was informed, on several occasions, that " you can no longer incriminate yourself”; that “ [y] our answer to the question will in no way incriminate you because you have been receiving immunity ’ ’; and that ‘ ‘ you will be getting immunity from prosecution for whatever crimes your testimony may disclose ”.

The prosecutor in the case before us did not, it is true, employ the language of the immunity statute (Code Crim. Pro., § 619-c, subd. 2) or use the term “transactional immunity” or even “ transaction ”. However, we perceive no need for such explicitness as long as the thought itself is expressed, as long as it is brought home to the witness that he has been accorded full and complete immunity and cannot thereafter be prosecuted. It is our conclusion that the District Attorney’s statements in this case, considered reasonably and in context, adequately assured Mulligan that he had been granted such an immunity, an immunity which would protect him from prosecution for any and all crimes which might be “revealed by [his] testimony” or to which his ‘ ‘ testimony might relate ’ ’. (Matter of Gold v. Menna, 25 N Y 2d 475, 481-482; see, also, Matter of Grand Jury [Cioffi], 8 N Y 2d 220, 224; People v. Riela, 7 N Y 2d 571; People v. Breslin, 306 N. Y. 294; People v. Brayer, 6 A D 2d 437, 439.) Since, then, the immunity conferred upon Mulligan was as broad as the constitutional privilege against self incrimination, he could not assert that privilege and refuse to testify. It follows, therefore, that there was ample warrant for the indictment charging him with contempt. It should not have been dismissed.

We find without merit the other points made by the defendant in support of his position that there should be an affirmance.

The contention that it was constitutionally impermissible for the grand jury, before which the contempt was assertedly committed, to indict him, was considered and rejected by our court in People v. Chestnut (26 N Y 2d 481, supra). There is not the slightest similarity between this case and In re Murchison (349 U. S. 133), upon which the defendant relies. Murchison was a case in which a judge acted as a one-man grand jury and later tried for contempt witnesses who had refused to answer questions put to them by such “ judge-grand jury.” The'Supreme Court held that, since the judge was part of the accusatory process he " cannot be, in the nature of things, wholly disinterested in the conviction or acquittal of those accused.” (349 U. S., at p. 137). In the case before us, the grand jury which initiated the prosecution has no part in the trial and adjudicatory process.

As to the further contention that the indictment is “ duplicitous, ’ ’ we need but note that, if the argument has merit, the result will be not dismissal of that indictment but, rather, a limitation on the quantum of punishment to be imposed if the defendant is convicted after trial. (See, e.g., People v. Chestnut, 26 N Y 2d 481, 491-492, supra; People v. Riela, 7 N Y 2d 571, 578, supra.)

The order appealed from should be reversed and the indictment reinstated.

Breitel, J. (dissenting).

As with the defendant in People v. Masiello (28 N Y 2d 287) I have no doubt that the defendant in this case would have refused to testify even if granted full transactional immunity. In each case the defendant was advised by a competent lawyer and was not misled. Be that as it may, that is not the issue, as explained in the Masiello case, under requirements laid down in People v. De Feo (308 N. Y. 595) and by the United States Supreme Court.

The Masiello case restated two old rules, and applied a third one. The first was that the immunity statutes were not self-executing, following the mandate of the De Feo case (supra) which reversed the Appellate Division for holding otherwise (see 284 App. Div. 622, 629-630). The second rule was that in granting immunity the prosecutor or granting authority must unequivocally advise the witness that “he may not be prosecuted criminally concerning any transaction about which he might be questioned ” (28 N Y 2d, at p. 291). Repetitively, and also by italics, it was emphasized that these words or their unambiguous equivalent would suffice. A third rule required by the United States Supreme Court, and suggested in some New York cases, was that the state of mind of the witness was irrelevant.

With this preliminary it is necessary only to disclose from the record the advice or directions given to the defendant in this case when he was a witness before the Grand Jury. After refusing to testify, and the Grand Jury having voted to grant him immunity, defendant was instructed as follows:

“ Q. Now you can no longer incriminate yourself. This Grand Jury is ready to confer immunity upon you, which means that, as your attorney undoubtedly explained to you, that whatever answers you may make to this question will immunize you from prosecution for whatever crime or crimes your answers might disclose. You can no longer incriminate yourself and therefore you are legally obligated to answer the question. Refusal to answer the question after having been offered immunity or being directed through the Grand Jury by the Foreman pursuant to the District Attorney’s request might provide a basis for prosecution for the crime of criminal contempt. ’ ’
* * *
Mr. Mulligan, you appreciate from that question put to you by Mr. Yasgur [one of the assistant district attorneys present before the grand jury] that this Grand Jury is extremely desirous of obtaining information or testimony from you concerning certain corrupt police officials. Your answer to the question will in no way incriminate you because you have been receiving immunity, should you answer the question. Do you still refuse to answer the question? ”
* # *
“ You appreciate your answer can no longer incriminate you because you will be getting immunity from prosecution for whatever crimes your testimony may disclose? Do you still refuse to answer ? ” (Emphasis supplied.)

More was said but it was either repetition of what had been stated or, if different, served only to confuse (as conflicting statements had in the Masiello case, supra, or in People v. Tramunti, decided herewith).

The point is that the defendant as a witness was being offered an immunity for crimes that his testimony might reveal, a quite different matter from being offered immunity for any crimes arising from any transactions about which he might be questioned. This the Masiello case tried to make clear only a little over two months ago. For is the difference a small one. Whether answers are in fact inculpatory or whether questions, if answered, might inculpate, are often subtle matters and one makes judgments at his peril. On the other hand, there is no lack of clarity in the assertion that one will be immune from prosecution for any crimes involved in transactions about which one has been questioned. The content of the question, not that of the answer given, determines the scope of immunity. Moreover, the last formulation is a fair paraphrase of the statute, which in defining immunity refers to any ‘ ‘ transaction * * * concerning which * * * [the witness] gave answer or produced evidence ”, inculpatory in fact or not, whether possibly inculpatory or not (Code Grim. Pro., § 619-c).

Concrete illustrations may help. In investigating an extortion or bribe, a question asked of a witness whether he knew the victim of the crime might or might not reveal or tend to reveal a crime. But if the witness maintains that he never knew or met the victim, his answer denying acquaintance with the victim might be very inculpatory indeed—in that sense a revelation of complicity—if there were independent proof that they had known one another. Or, in the context of a robbery or homicide, a negative but false answer to a question whether the witness had been at a certain address at a certain time, might or might not ‘ ‘ reveal ’ ’ complicity in the crime, just as much or even more than an “ admission ” that he had been at that address on the date and at the time in question. In short, if the witness in his answer denies even an innocent connection with the transaction about which he is questioned, that denial may be highly incriminating if the prosecution has independent proof contradicting the answer. Yet it may be said that the witness ’ answer had not ‘ ‘ revealed ’ ’ any crime. Most witnesses would think that denials of complicity or connection are not revelatory of crime, as in a certain sense of the language they are not.

Transactional immunity to be effective must be complete and not depend either on the quality of the answers given or whether, speculatively, one kind of answer or another “ might ” incriminate. Transactional immunity imports complete immunity from prosecution for the substantive crimes being investigated. The liar or the evader, despite the grant of immunity, is subject either to a perjury or contempt prosecution.

In the present case, the court, in its zeal to hold an allegedly unworthy culprit, is engendering a new confusion, and, what is worse, inadvertently treating one alleged culprit more rigorously than it had another a short time ago in the Masiello case. I would prefer to apply the rules more equitably and more plainly even at a slight delay in the prosecutor’s already protracted investigation. After all, his remedy is readily at hand, namely, to bring the defendant again before the Grand Jury, advise him in the simplest terms of the unequivocal grant of transactional immunity, either in the words of the statute, or by the formulation in the Masiello case, or by some brief accurate paraphrase, and see if he still refuses to testify. There are no problems of double jeopardy.

Accordingly, I dissent and vote to affirm the order dismissing the indictment.

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

Order reversed, etc. 
      
      . This advice, we particularly note, is in sharp contrast with that given to the defendant in Masiello (28 N Y 2d 287, supra) : far from being informed that he could no longer incriminate himself or be prosecuted for any crime his testimony might disclose, Masiello was merely told that his “ answers * * * [could] not be used” against him (p. 289) and that he had immunity from prosecution only “ as to each and every question or [his] answers to each and every question” asked of him (pp. 290-291). As the court observed (p. 293), Masiello was thus told that “ he [was] receiving an immunity less than the statute requires ”. There was no such misstatement in the present case.
     
      
      . Lacking in substance is the defendant’s contention that he was not “ granted immunity nor * * * advised of such a grant ” because, during a colloquy between him and the prosecutor, the latter stated that he would “ be getting ” immunity and that the grand jury “is ready to confer” immunity upon him. Read in context, and having in mind the District Attorney’s explicit opening statement that the grand jury “ has voted to confer immunity upon you,” there can be no doubt that Mulligan was sufficiently informed that he had actually been granted immunity.
     
      
       A reference in Matter of Gold v. Menna (25 N Y 2d 475, 481) to crimes which might be revealed by the witness’ testimony is distorted by being torn out of context. In its context the reference was to the a fortiori situation of a witness receiving immunity for crimes revealed. Of course, the opinion did not purport to use the phrase as a limitation on the grant of immunity.
     