
    The People of the State of New York, Respondent, v. Jerome O. Glucksman, Appellant.
    Argued October 15, 1974;
    decided November 20, 1974.
    
      
      Jerome O. Glucksman, appellant pro se.
    
    I. The record is devoid of proof showing appellant’s membership in a conspiracy. The trial proofs as to him are both lacking in sufficiency and fail to show guilt beyond a reasonable doubt. (Presser v. Sutton, 285 A D 2d 364; People v. Monaco, 14 N Y 2d 43; People v. Chaplin, 8 A D 2d 286; People v. Weiss, 290 N. Y. 160.) II. Appellant’s Grand Jury testimony was the direct by-product of compulsion to sign a limited waiver of immunity — or lose his job. In these circumstances, appellant was immunized from prosecution for the substantive crimes charged in this indictment. (Garrity v. New Jersey, 385 U. S. 493; Bumper v. North Carolina, 391 U. S. 543; People v. Stepps, 31 A D 2d 59; People v. Steuding, 6 N Y 2d 214; People v. Tomasello, 21 N Y 2d 143; Boyd v. United States, 116 U. S. 616; Florida v. Englander, 404 U. S. 858; Gardner v. Broderick, 392 U. S. 273; People v. Goldman, 21 N Y 2d 152.) III. Appellant was denied a speedy trial and, thus, due process, his constitutional right. (People v. White, 32 N Y 2d 393; People v. Prosser, 309 N. Y. 353; People v. Segura, 6 N Y 2d 936; People v. Bryant, 12 N Y 2d 719; People v. Winfrey, 20 N Y 2d 138; People v. Wallace, 26 N Y 2d 371; People v. Minicone, 28 N Y 2d 279; Dickey v. Florida, 398 U. S. 30; Klopfer v. North Carolina, 386 U. S. 218; People v. Solomon, 296 N. Y. 85.) IV. Because the venue of the cause was improperly laid in New York County, the trial court was without jurisdiction. Lacking evidence that any material part of the charged offenses was committed in New York County, appellant’s motion to dismiss should have been granted. V. Appellant’s trial should have been severed from the other. (People v. Jackson, 22 N Y 2d 446; People v. Anthony, 24 N Y 2d 698; People v. Pilon, 30 A D 2d 365.) VI. The disability of the Trial Justice aborted the trial. There was no power or authority to substitute another Justice to continue a trial that had been in progress for some three months when the Trial Judge became ill. (People ex rel. Brinkman v. Barr, 248 N. Y. 126; Michel v. Michel, 31 A D 2d 313; Cancemi v. People, 18 N. Y. 128; People v. Silver, 240 App. Div. 259; Williamson v. Randolph, 111 App. Div. 539, 185 N. Y. 603; Covaleski v. Thomas, 229 App. Div. 413; Smith v. State of New York, 214 N. Y. 140.) VII. Defendant-appellant did not take the stand at the trial. The prosecutor’s utilization of virtually his entire Grand Jury testimony constituted prejudicial error. (People v. Guidarelli, 22 A D 2d 336; United States v. Allison, 474 F. 2d 286.) VIII. The copious use of hearsay evidence deprived appellant of his right to a fair trial and due process, and violated his right to be confronted by, and cross-examine witnesses whose testimony was being used against him. Subsequent use of tapes of the said hearsay, compounded the error. (Cuyler v. McCartney, 40 N. Y. 221; Lent v. Shear, 160 N. Y. 462.) IX. The Trial Justice’s refusal to allow defense witnesses to be called and interrogated, deprived appellant of his constitutionally protected rights to a fair trial and due process. X. The court’s prejudicial instructions to a deadlocked jury improperly coerced the panel. The improper marshaling was compounded by reference to appellant’s failure to take the witness stand. (People v. Leavitt, 301 N. Y. 113; People v. Gould, 25 A D 2d 160; United States v. Harris, 391 F. 2d 348, 393 U. S. 874; United States v. Fioravanti, 412 F. 2d 407; People v. Kresel, 243 App. Div. 137.) XI. The record discloses that appellant has been improperly twice tried, twice convicted, and twice punished for an alleged crime. (Sealfon v. United States, 332 U. S. 575.) XII. Numerous and multiple additional errors in rulings by the trial court, militated against a fair trial and deprived appellant of due process. (People v. Rubicco, 42 A D 2d 719.)
    
      Richard H. Kuh, District Attorney (Lewis R. Friedman and Robert A. Goldschlag of counsel), for respondent.
    I. Glucksman’s guilt of conspiracy and attempted extortion was proved beyond a reasonable doubt by the testimony of the victim, Keith Sutton, confirmed by Sutton’s recorded conversations with Glucksman and the other conspirators. (People v. Luciano, 277 N. Y. 348; People v. Fiore, 12 N Y 2d 188; People v. Connolly, 253 N. Y. 330; People v. Leyra, 1 N Y 2d 199; People v. Roberto, 10 N Y 2d 428, 371 U. S. 842.) II. Glucksman knowingly and voluntarily waived immunity prior to testifying before the Grand Jury in the hope that he could avoid indictment. The mere existence of a forfeiture-of-office provision in the New York Constitution did not render his waiver invalid. (Matter of Zuckerman, 20 N Y 2d 430; People v. Leo, 23 N Y 2d 556, 395 U. S. 962; People v. Chennault, 20 N Y 2d 518; People v. Fitzpatrick, 32 N Y 2d 499; People v. Avant, 33 N Y 2d 265; People v. Leto, 33 N Y 2d 952; People v. Paulin, 25 N Y 2d 445.) III. Appellant’s Grand Jury testimony was admissible; it evidenced a consciousness of guilt and contained admissions which supported Sutton’s accusation that he was the victim of an attempted extortion. (People v. Mirenda, 23 N Y 2d 439.) IV. Glucksman’s previous conviction for perjury did not bar this trial for attempted extortion and conspiracy, since the latter charges grew out of separate acts and required different evidence to sustain a conviction. (People v. Colombo, 31 N Y 2d 947; Matter of Martinis v. Supreme Ct. of State of N. Y., 15 N Y 2d 240; Matter of Brighenti v. Judges of N. Y. Supreme Ct. of Richmond County, 41 A D 2d 209; Harris v. Washington, 404 U. S. 55; Gravieres v. United States, 220 U. S. 338; Matter of Abbamonte v. Justices of N. Y. Supreme Ct. of N. Y. County, 33 N Y 2d 737; People v. Jack, 8 N Y 2d 857; People ex rel. Williams v. Follette, 30 A D 2d 693, 24 N Y 2d 949.) V. Glucksman agreed to the substitution of another Trial Judge, when the Trial Justice became too ill to complete the trial. (Blend v. People, 41 N. Y. 604; United States v. LaSorsa, 480 F. 2d 522; Randel v. Beto, 354 F. 2d 496; St. Louis Southwestern Ry. Co. v. Henwood, 157 F. 2d 337, 330 U. S. 836.) VI. The court’s supplemental instrucions were not coercive and its marshaling of the evidence did not prejudice Glucksman. (People v. Campanaro, 223 App. Div. 248, 249 N. Y. 545; People v. Curtis, 8 A D 2d 183; United States v. Hynes, 424 F. 2d 754; Allen v. United States, 164 U. S. 492; People v. Randall, 9 N Y 2d 413; People v. Al-Kanani, 33 N Y 2d 260; People v. Ross, 21 N Y 2d 258; People v. Regina, 19 N Y 2d 65; People v. Cohen, 5 N Y 2d 282;
    
      
      People v. Kahigas, 18 A D 2d 1064.) VII. The prosecutor did not comment about Glucksman’s failure to testify at trial. (People v. Vidal, 26 N Y 2d 249; People v. Ross, 21 N Y 2d 258; People v. Curtis, 8 A D 2d 183.) VIII. Glucksman’s claim that he was denied a speedy trial is not supported by the record. (People v. Blake, 31 A D 2d 614; Matter of Blake v. Hogan, 25 N Y 2d 747; Garrity v. New Jerssy, 385 U. S. 493; People v. Ganci, 27 N Y 2d 418; People v. Prosser, 309 N. Y. 353.) IX. The representation of Glueksman’s codefendant Blake by an attorney who had been retained by Glucksman, but who never appeared in his behalf, did not mandate separate trials. (People v. Gonzalez, 30 N Y 2d 28; United States v. Alberti, 470 F. 2d 878; People v. Byrne, 17 N Y 2d 209.) X. The New York County Grand Jury had jurisdiction to indict appellant and the trial properly was conducted in New York County because numerous acts requisite to the commission of the offenses were committed in New York County. XI. The extra judicial statements of the three defendants were made in the furtherance of a conspiracy and were admissible against Glucksman at their joint trial. (People v. Fiore, 12 N Y 2d 188; People v. Luciano, 277 N. Y. 348; People v. Marshall, 306 N. Y. 223; Cuyler v. McCartney, 40 N. Y. 221.) XII. The trial court did not err in its evidentiary rulings.
   Jones, J.

On this appeal we confront the issue explicitly left open by our court in People v. Leo (23 N Y 2d 556, 561, n. 2). Is the rule announced by the Supreme Court of the United States in Garrity v. New Jersey (385 U. S. 493) that testimony of a public employee compelled under a forfeiture-of-office statute is inadmissible, a per se rule and thus inexorably to be applied, or is the rule inapplicable if the element of coercion is explicitly eliminated by a factual determination of voluntariness on the part of the particular public employee?

In this case an Assistant Attorney-General of the State was under criminal investigation. Aware that he had been charged with attempted extortion, defendant went uninvited to the office of the District Attorney and voluntarily disclosed what he asserted were the true facts. He asked to appear before the Grand Jury. Several days later, again on his own initiative, he made a telephone call to an Assistant District Attorney which led to his appearance before the Grand Jury. He there signed a waiver of immunity ‘ ‘ willingly ’ and testified.

Following his subsequent indictment and arraignment, defendant moved to suppress his Grand Jury testimony and to dismiss the indictment on the authority of Garrity v. New Jersey (385 U. S. 493) decided some nine months after his appearance before the Grand Jury. Following a hearing Supreme Court denied defendant’s motion, on the basis of factual findings that both his appearance before the Grand Jury and his waiver of immunity were voluntary. The court wrote: The Court has completed a hearing on the issue of coerced testimony. This Court is convinced beyond a reasonable doubt and by clear and convincing evidence that the defendant Gluclcsman appeared before the Grand Jury without being subpoenaed and testified of his own volition. # * * Neither coercion nor duress compelled his appearance. The threat or apprenhension that he would forfeit his official position was not the reason for his testifying or his executing a waiver of immunity.” Prior to making its findings the court had acceded to defendant’s request and had examined the entire minutes of the Grand Jury. They leave no doubt that the defendant appeared voluntarily and testified of his own free will.'” Indeed in the peculiar circumstances of this case it appears that defendant was eager to testify and that whether or not to waive immunity was not a factor in his mind. This factual finding of voluntariness on defendant’s part, for which there clearly was supporting evidence, having been affirmed at the Appellate Division, is now conclusive on this appeal. Thus, whatever arguments may be advanced that in circumstances of this sort coercion is inescapably inherent must yield to this categorical determination to the contrary as to this defendant.

In Garrity, the Supreme Court described as distinguishable “ the situation where one who is anxious to make a clean breast of the whole affair volunteers the information ” (385 U. S., at p. 499). The same distinction was carried forward in Lefkowitz v. Turley (414 U. S. 70, 80).

We conclude therefore that Garrity did not lay down a per se rule, and accordingly that testimony of a public employee given before a Grand Jury is not necessarily inadmissible where there. is a determination that the public employee’s appearance and waiver were both voluntary.

We have examined defendant’s other contentions and find them to be without merit.

The order of the Appellate Division should be affirmed.

Chief Judge Bbeitel and Judges Jasen, Gabbielli, Wachtleb and Rabin concur; Judge Stevens taking no part.

Order affirmed.  