Nigrone v. Murtagh

46 A.D.2d 343, 362 N.Y.S.2d 513, 1974 N.Y. App. Div. LEXIS 3353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1974
• Status: Published

Opinions

Christ, J.

Petitioner Nigrone and defendants Rao have been indicted for perjury in the first degree by a Grand Jury empaneled for an Extraordinary Special and Trial Term of the Supreme ¡Court appointed by executive order pursuant to subdivision 1 of section 149 of the Judiciary Law. The Raos have moved in this court to dismiss their respective indictments, and Nigrone (also referred to herein as a defendant) has separately brought a proceeding pursuant to CPLR article 78 in the nature of prohibition, in which he also has asked for dismissal of his indictment. Permission for the making of such motions by the Raos and Nigrone has been granted pursuant to subdivision 2 of section 149 of the Judiciary Law.

Dismissal of the indictments is sought primarily upon the ground of prosecutorial misconduct and in the interests of justice. The facts are as follows: Pursuing allegedly specific information about corruption in the criminal justice system, the Special Prosecutor determined to “ infiltrate ” the system by setting up a simulated crime. A probationary officer from the Police Academy, using the name “ Vitale ”, was alleged to have stolen $8,200 from a businessman, with the aid of a gun, on November 1, 1973. Both the “ victim ” of this “ armed robbery ” and the arresting officer participated in the ruse. A false felony complaint was lodged against "Vitale and he was arrested, fingerprinted and placed in jail pending arraignment and the setting of bail. Bail was eventually set at $10,000 by a Judge unaware of the ruse and Vitale was released. The Special Prosecutor’s office also fabricated a false criminal record for Vitale, indicating that he had had two prior arrests.

Thereafter, through Vitale, the Special Prosecutor sent a woman, one “Mrs. Gatti”, to contact Judge Paul P. Rao, a Judge of the United States Customs Court. They met on November 12, 1973 and Mrs. Gatti, apparently an old family friend of the Raos who had not seen the Judge in some 40 years, asked his help on behalf of the son of dear friends (Vitale) who was in trouble with the law. Mrs. Gatti, although allegedly unaware of the Vitale hoax, was equipped with a tape recorder. Judge Rao referred Mrs. Gatti to his son, Paul P. Rao, Jr., a practicing attorney. That same day, Mrs. Gatti saw Rao, Jr., and arranged to have him meet with Vitale, and such a meeting also took place that day. Rao, Jr., agreed to represent Vitale in his pending robbery case.

On November 23, 1973 Vitale was indicted for robbery (two counts) and grand larceny (two counts) by a Kings County Grand Jury. Neither the grand jurors nor the Assistant District Attorney who presented the case knew that the whole thing was a sham and that in fact no such robbery had ever occurred. Vitale failed to appear in the Supreme Court for arraignment on the indictment and his $10,000 cash bail was declared forfeit. (Defendants claim that the nonappearance was caused by the improper removal of Rao, Jr.’s notice of appearance from the court files, but the Special Prosecutor denies that any such notice was in the files.) Nevertheless, Rao, Jr., was successful in having the bail forfeiture revoked and in staving off a detailed inquiry into whether the bail money was really “ the proceeds ” of the “ robbery ”. Rao, Jr., also procured a return of Vitale’s $10,000 cash bail and had the bail reduced to $1,000. Again, none of the Supreme Court Justices before whom the bail matter was presented was aware that the entire case was a hoax.

In March, 1974 Rao, Jr., formally withdrew as Vitale’s counsel on the stated ground that Vitale was insisting that he, Rao, Jr., '“fix” the case for him.

In April, 1974 Judge Rao, his son Rao, Jr., and one of the latter’s law partners, Salvatore Nigrone, were requested to appear before the Extraordinary Special Grand Jury which was, in fact, along with its broad study of corruption, investigating whether these individuals had conspired with a Judge of the, Civil Court .of the City of New York and others to bribe a Kings County Supreme Court Justice in order to influence the proceedings in and the outcome of the Vitale robbery case. This Special Grand Jury was informed and was fully aware that there had been no Vitale robbery and that the case was a sham.

The defendants waived immunity and testified before the Special Grand Jury. The undercover agent Vitale and Mrs. Gatti also testified and tape recordings of conversations between all these individuals, surreptitiously made, were put into evidence.

In May, 1974 Judge Rao was indicted upon two counts of perjury for denying that he had ever told Mrs. Gatti how to handle her problem in affecting a Judge’s actions in a criminal case or that she should handle the bail problem by getting a lawyer who knew the Judge. Rao, Jr., was indicted upon seven counts of perjury for denying that he had ever told Vitale that he would have to get money so that he would “ know how to talk” to ether people (who could quash his case); for denying that he had seen a Judge, other than the Judge presiding in the case, about the Vitale matter; for denying that he had ever seen anybody in the court system to obtain assistance in the Vitale matter; for denying that he had ever discussed with Vitale or anyone else whether a ‘ ‘ hook was in ” in the Vitale case; for denying that he had helped in creating a “phony” story or defense; for testifying falsely that, at the time of his first court appearance, he had no knowledge of any of the bail money being the proceeds of the robbery; and for falsely testifying that Vitale had never told him that his parents had not furnished the bail. Nigrone was indicted upon one count of perjury for testifying falsely that he had never asked Rao, Jr., if the “ hook was in ” in the Vitale case.

The underlying ground urged for dismissal of the indictments is prosecutorial misconduct. Thus, for example, it is claimed that during the course of his investigation, the Special Prosecutor himself committed numerous crimes, such as suborning perjury before the first Kings County Grand Jury, offering a false instrument for filing, and obstructing governmental administration. (Stated in a slightly different light, the argument is that the Special Prosecutor has totally abused the criminal process by making the first Grand Jury and numerous Criminal Court and. Supreme Court Judges unwitting players in the Vitale robbery charade.

There is no doubt whatsoever that, upon the facts here presented, the office of the Special Prosecutor has exceeded its proper prosecutorial function. The deception of grand jurors, Judges and Assistant District Attorneys and the filing of false official documents are absolutely intolerable. The criminal justice system operates to protect the individual from both unsubstantiated accusations of guilt and illegal or outrageous conduct by an overreaching prosecutor. It is an impartial arbiter, exercising its judgment, for the most part, after law enforcement authorities have completed their function of detecting crime and apprehending the alleged criminal. When, as here, the criminal justice system is made an unwitting accomplice of an overzealous prosecutor, before the fact, its impartiality is destroyed and contempt for the law encouraged.

The pernicious effect of the Special Prosecutor’s conduct is nowhere better exemplified than in his misuse of the Kings County Grand Jury which indicted Vitale for robbery. The Grand Jury has historically been clothed with the responsibility of determining whether there is probable cause to believe a crime has been committed and protecting citizens against unfounded criminal prosecutions (Branzburg v. Hayes, 408 U. S. 665, 686-687). The Special Prosecutor, however, has used the Grand Jury for an entirely different purpose. The Vitale case was presented to it, not for a determination as to whether Vitale had, in fact, committed a crime for which he should be prosecuted, but rather to legitimize Vitale’s undercover role as a criminal facing prosecution and to set in motion the events which would, in the Special Prosecutor’s estimation, induce the defendants at bar to attempt to fix the criminal prosecution. The grand jurors and the Assistant District Attorney presenting the case were unwittingly made to play a part in the Special Prosecutor’s scheme to induce these defendants to commit a crime. Such a perversion of the criminal justice system by an overzealous prosecutor is illegal, outrageous and intolerable and we condemn it. If the justice system is to have any usefulness, it must be .respected and believed. The necessary confidence cannot be preserved when grand juries and Judges are duped in charades composed of lies and deceptions fabricated by the law officers of the State.

It is not an answer to say that, in searching out crime, deception is often required to bring offenders to justice. Such deception, however permissible when dealing with suspected criminals, is never justified when dealing with grand juries, trial juries, or Judges whose burden is the search for truth. Though the purpose of the Special Prosecutor may be laudable, he is not above the law and may no more resort to corruption and manipulation of the criminal justice system than the individuals he seeks to prosecute.

Governmental misuse of power breeds only apathy, contempt and more lawlessness, a lesson recently and painfully relearned. In the words of Justice Brandeis, written 46 years ago(Olmstead v. United States, 277 U. S. 438, 485 [dissent]): “ Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

Having condemned the misconduct of the prosecutor, we now consider whether this so taints the proceeding that the indictments must be dismissed. This is indeed a separate and independent question. The heart of our decision rests upon whether such misconduct can be a defense to an otherwise good indictment by a duly constituted fully informed grand jury investigating corruption in the criminal justice system. We find the indictments are valid on their face and charge the commission of crimes.

No such defense is permissible The power of the grand jury is broad in finding facts upon which indictments are to be predicated and, in the public interest,witnesses before it under oath must make truthful answers. There can be no temporizing with or softening of this requirement. No person called before a duly constituted grand jury may be permitted to have any excuse to lie. A witness must know at once that if he perjuriously testifies before such a body he will be punished.

The testimony in question and upon which the indictments are based was not the testimony before the Kings County Grand Jury which had returned the Vitale indictment, but rather it was before the Special Extraordinary Grand Jury investigating corruption. This Grand Jury, in its quest for evidence of an evil distortion of the criminal justice system, was seeking to learn if there had been an attempt to influence the proceedings in the Vitale case and this was only a part of the larger and broader responsibilities of its investigation. It was seeking to discover if a conspiracy had existed between a Civil Court Judge and others to bribe a Supreme Court Justice. In the course of this investigation, it was legitimate and necessary from the disclosures on the tapes to have the defendants appear in person before the Grand Jury as witnesses. This segment of the investigation was limited to the Vitale matter, and the Grand Jury was entitled to truthful answers under oath from the witnesses.

The defendants do not claim entrapment or violation of any of their personal constitutional rights. Indeed, nothing the Special Prosecutor did, no matter how offensive, could have induced or licensed them to commit perjury. Still, the defendants ask us to dismiss these indictments as the fruit of the poisonous tree or, simply, as a matter of due process. We see no reason in law or fundamental fairness to do so.

The exclusionary rule was born of the need to deter widespread violations of individual constitutional rights guaranteed by the Fourth Amendment of the Constitution of the United States. Its prime purpose is deterrence from or prevention of abuse by the law-enforcement agencies; it is not to provide a remedy for the injury suffered by the search victim (United States v. Calandra, 414 U. S. 338, 347). In this case there has been no violation of any of the defendants’ constitutional or otherwise cognizable rights. We pay respect to the statement that " the true administration of justice is the firmest pillar of good Government”. Nothing can be more important. The integrity of the courts must be preserved and, when this has been put in question to the point that an executive order of the Governor has been made directing an investigation of possible corruption in the criminal justice system, the courts must not reach out to frustrate or hinder such investigation.

As members of the judiciary, we are particularly sensitive to, and disturbed by, allegations of corruption in the justice system. We are also mindful of the difficulties involved in investigating judicial corruption and bringing offenders to justice. We will not hamper this investigation by the' Special Grand Jury into the conduct of Judges and other officers of the courts by an unprecedented extension of the exclusionary rule.

We believe that our condemnation of the prosecutorial misconduct in this sui generis case will suffice to prevent its repetition. Should the Special Prosecutor disregard the admonitions here expressed, it still remains within the executive power to take appropriate action.

The more generalized bar to prosecution on due process grounds, as urged upon us by the defendants, originally arose as a problem of overzealous law enforcement in the context of the entrapment defense. As recently reaffirmed by the Supreme Court in United States v. Russell (411 U. S. 423), the focus of that defense, which is not asserted here, is still the predisposition of the defendant to commit the crime charged and not whether the Government instigated the crime or the police conduct fell below acceptable standards for the proper use of governmental power. The Russell court recognized, as do we, that there may be some “ conduct of law enforcement agents * * * so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction ” (id., pp. 431—432), but this is not such a case. The Special Prosecutor did not manufacture or participate in the defendants’ alleged perjury. He did supply them with an opportunity to commit bribery and, through his agents, actively attempted to induce its commission, but that conduct was negligible once the Special Grand Jury entered the picture. It was then that a new and independent inexcusable wrong was allegedly committed.

The grand jury has broad investigative powers and its operation is generally unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials (United States v. Calandra, 414 U. S. 338, 343, supra). “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime ” (Blair v. United States, 250 U. S. 273, 282). Indeed, it may even pursue an investigation, sua sponte, on the basis of the personal knowledge of the grand jurors, or follow up upon mere tips and rumors.

The broad scope of the grand jury’s investigative power is complemented and implemented by the duty of every citizen to give his evidence before such body upon request (Branzburg v. Hayes, 408 U. S. 665, 682, 688, supra). Here, the Special Grand Jury was investigating corruption in the criminal justice system in Kings County. The Special Grand Jury was fully aware of the manner in which the ¡Special Prosecutor had conducted his investigation, and of its results, and could justifiably conclude that the defendants had relevant evidence to give. The defendants, however, inexcusably sought to frustrate the investigation by denying the Special Grand Jury the benefit of their truthful testimony, or so the indictments charge. Although not strictly applicable in this context, our .State Constitution provides (art.. I, § 6): “ The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired by law.”

The allegedly perjured testimony given in this case effectively abridged the Special Grand Jury’s power to inquire into official corruption in the criminal justice system and the defendants may not be relieved of the consequences of their independent wrong by confusing the actions and roles of the Special Prosecutor with the Special Grand Jury.

It should be noted that neither Judge Rao nor Paul Rao, Jr., has challenged the legal sufficiency of the evidence before the Special Grand Jury to establish the commission of the offenses charged or any lesser included offense; and we express no view thereon. Defendant Nigrone has raised such an issue and, upon examination of the Grand Jury minutes, we find that the evidence is sufficient to require a denial of his motion to dismiss the indictment. We have considered the other contentions raised by these defendants and find them to be without merit.

Further, we decide only that the indictments may not be dismissed upon the arguments urged by the defendants. We do not have before us and we do not pass upon the question of the guilt or innocence of the defendants. This is reserved for trial.

In accordance with all the foregoing, the motions should be denied, and the article 78 proceeding dismissed on the merits, without costs.