Colombo v. New York

Supreme Court

Colombo v. New York

405 U.S. 9, 92 S. Ct. 756, 30 L. Ed. 2d 762, 1972 U.S. LEXIS 94

CourtSupreme Court of the United States

DecidedFebruary 22, 1972

Docket71-352

StatusPublished

Cited by46 cases

This text of 405 U.S. 9 (Colombo v. New York) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Colombo v. New York, 405 U.S. 9, 92 S. Ct. 756, 30 L. Ed. 2d 762, 1972 U.S. LEXIS 94 (1972).

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Per Curiam.

Despite a grant of immunity in response to the assertion of his Fifth Amendment privilege not to be a witness against himself, petitioner refused to answer questions put to him before a Kings County, New York, grand jury. On December 7, 1965, a trial judge found that [10]*10the questions put had been proper and directed petitioner to answer them. Petitioner refused; the trial court, after allowing petitioner a week’s time to change his mind, signed a commitment order stating 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” petitioner had “committed a criminal contempt of court in the immediate view and presence of the Court and that said contempt was wilful and unlawful and in violation of Section 750 of the Judiciary Law of the State of New York . . . Petitioner was sentenced to 30 days and fined $250.

Appellate proceedings proved fruitless. Petitioner then offered to testify, the offer was refused, and petitioner paid his fine and served his sentence. On October 10, 1966, petitioner was indicted under § 600, subd. 6, of the New York Penal Law of 1909 “for his contumacious and unlawful refusal, after being duly sworn as a witness, to answer legal and proper interrogatories.” The trial court dismissed the indictment on double jeopardy grounds but the appellate court reversed. The reversal was sustained by the Court of Appeals, which concluded that the Fourteenth Amendment and the double jeopardy provision of the Fifth Amendment did not bar the indictment. The court reasoned that petitioner had committed two acts of contempt — one on October 14, 1965, before the grand jury, and the other on December 7 when he refused to obey the order of the judge — and that the trial judge had committed petitioner for civil, not criminal, contempt.

The judgment of the Court of Appeals must be vacated. The judgment of the New York trial court entered on December 15, 1965, was for “criminal contempt,” petitioner was sentenced to a definite term in jail and ordered to pay a fine, and neither the prosecutor nor the trial court [11]*11considered his offer to testify as sufficient to foreclose execution of the sentence. For purposes of the Double Jeopardy Clause, petitioner was confined and penalized for criminal contempt. Yates v. United States, 355 U. S. 66 (1957); see also Cheff v. Schnackenberg, 384 U. S. 373 (1966); Shillitani v. United States, 384 U. S. 364 (1966); Oriel v. Russell, 278 U. S. 358 (1929). To the extent that the judgment of the Court of Appeals rested on a contrary view, it must be set aside. It also appears from its supplemental response that the State considers the two acts of contempt on October 14 and on December 7 as being partially intertwined. As we understand it from the State’s response, petitioner’s refusal to answer on October 14 did not mature into a complete contempt until December 7 when the trial court passed on the propriety of the grand jury’s inquiry and petitioner thereafter refused to obey the court’s direction to return to the grand jury and answer the questions properly put to him.

In view of the New York Court of Appeals’ misconception of the nature of the contempt judgment entered against petitioner for purposes of the Double Jeopardy Clause and in view of the substantial question of New York law that has emerged, we are disinclined at this juncture to entertain and determine the double jeopardy question presented by petitioner. The better course is to grant the petition for writ of certiorari, vacate the judgment of the New York Court of Appeals, and remand the case to that court for further proceedings not inconsistent with this opinion, thus affording that court the opportunity to reconsider the validity of the indictment under the Double Jeopardy Clause of the Constitution.

So ordered.

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Per Curiam.

Despite a grant of immunity in response to the assertion of his Fifth Amendment privilege not to be a witness against himself, petitioner refused to answer questions put to him before a Kings County, New York, grand jury. On December 7, 1965, a trial judge found that [10]*10the questions put had been proper and directed petitioner to answer them. Petitioner refused; the trial court, after allowing petitioner a week’s time to change his mind, signed a commitment order stating 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” petitioner had “committed a criminal contempt of court in the immediate view and presence of the Court and that said contempt was wilful and unlawful and in violation of Section 750 of the Judiciary Law of the State of New York . . . Petitioner was sentenced to 30 days and fined $250.

Appellate proceedings proved fruitless. Petitioner then offered to testify, the offer was refused, and petitioner paid his fine and served his sentence. On October 10, 1966, petitioner was indicted under § 600, subd. 6, of the New York Penal Law of 1909 “for his contumacious and unlawful refusal, after being duly sworn as a witness, to answer legal and proper interrogatories.” The trial court dismissed the indictment on double jeopardy grounds but the appellate court reversed. The reversal was sustained by the Court of Appeals, which concluded that the Fourteenth Amendment and the double jeopardy provision of the Fifth Amendment did not bar the indictment. The court reasoned that petitioner had committed two acts of contempt — one on October 14, 1965, before the grand jury, and the other on December 7 when he refused to obey the order of the judge — and that the trial judge had committed petitioner for civil, not criminal, contempt.

The judgment of the Court of Appeals must be vacated. The judgment of the New York trial court entered on December 15, 1965, was for “criminal contempt,” petitioner was sentenced to a definite term in jail and ordered to pay a fine, and neither the prosecutor nor the trial court [11]*11considered his offer to testify as sufficient to foreclose execution of the sentence. For purposes of the Double Jeopardy Clause, petitioner was confined and penalized for criminal contempt. Yates v. United States, 355 U. S. 66 (1957); see also Cheff v. Schnackenberg, 384 U. S. 373 (1966); Shillitani v. United States, 384 U. S. 364 (1966); Oriel v. Russell, 278 U. S. 358 (1929). To the extent that the judgment of the Court of Appeals rested on a contrary view, it must be set aside. It also appears from its supplemental response that the State considers the two acts of contempt on October 14 and on December 7 as being partially intertwined. As we understand it from the State’s response, petitioner’s refusal to answer on October 14 did not mature into a complete contempt until December 7 when the trial court passed on the propriety of the grand jury’s inquiry and petitioner thereafter refused to obey the court’s direction to return to the grand jury and answer the questions properly put to him.

In view of the New York Court of Appeals’ misconception of the nature of the contempt judgment entered against petitioner for purposes of the Double Jeopardy Clause and in view of the substantial question of New York law that has emerged, we are disinclined at this juncture to entertain and determine the double jeopardy question presented by petitioner. The better course is to grant the petition for writ of certiorari, vacate the judgment of the New York Court of Appeals, and remand the case to that court for further proceedings not inconsistent with this opinion, thus affording that court the opportunity to reconsider the validity of the indictment under the Double Jeopardy Clause of the Constitution.

So ordered.

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405 U.S. 9, 92 S. Ct. 756, 30 L. Ed. 2d 762, 1972 U.S. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colombo-v-new-york-scotus-1972.

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