People v. Cavalieri

Appellate Division of the Supreme Court of New York

People v. Cavalieri

36 A.D.2d 284, 320 N.Y.S.2d 390, 1971 N.Y. App. Div. LEXIS 4275

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1971

StatusPublished

This text of 36 A.D.2d 284 (People v. Cavalieri) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cavalieri, 36 A.D.2d 284, 320 N.Y.S.2d 390, 1971 N.Y. App. Div. LEXIS 4275 (N.Y. Ct. App. 1971).

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Opinions

Stevens, P. J.

Even though immunity was conferred by the G-rhnd Jury and the meaning thereof explained in simple language, there was a continuing, considered and contumacious refusal by defendant to answer questions which we find to be cléarly relevant to the stated purpose of the inquiry. The [285]*285defendant was informed that no testimony, truthfully given, could be used against him and, further, any lead obtained from such testimony that might hurt him ‘ ‘ in some criminal way ’ ’ could not be so used. Moreover, it was made clear to the defendant that he was not the target of the investigation. Immunity when conferred by the Grand Jury includes both testimonial and transactional immunity (cf. Code Crim. Pro., § 619-c; Matter of Gold v. Menna, 25 N Y 2d 475). From the defendant’s own testimony he understood that he was being subpoenaed to testify as a witness before the Grand Jury. Since he received several subpoenas and appeared pursuant thereto prior to the date of actual testimony, there was ample opportunity to consult with counsel had defendant so desired. Nor did he, on the occasion of his actual appearance before the Grand Jury, ask to be excused from the Grand Jury room in order to consult counsel. Indeed, if, as defendant asserts, he did not at any time confer with counsel prior to his appearance, defendant was remarkably alert and precise in asserting his constitutional privilege against self incrimination. Defendant admitted that he understood at least certain of the questions, which he refused to answer. Immunity having been properly conferred, defendant had no right to remain silent (Matter of Gold v. Menna, supra). Nor do we find the sentence of one year to be excessive.

The judgment entered June 26,1970, should be modified on the law, to the extent of holding that the refusal of defendant to answer the questions contained in the multiple count indictment constituted, in effect, a single contempt with a maximum sentence of one year since all referred to a single area of inquiry, and it became clear, at the outset, that defendant would refuse to answer any questions (cf. People v. Chestnut, 26 N Y 2d 481, 491-492). As so modified, the judgment appealed from should otherwise be affirmed.

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Stevens, P. J.

Even though immunity was conferred by the G-rhnd Jury and the meaning thereof explained in simple language, there was a continuing, considered and contumacious refusal by defendant to answer questions which we find to be cléarly relevant to the stated purpose of the inquiry. The [285]*285defendant was informed that no testimony, truthfully given, could be used against him and, further, any lead obtained from such testimony that might hurt him ‘ ‘ in some criminal way ’ ’ could not be so used. Moreover, it was made clear to the defendant that he was not the target of the investigation. Immunity when conferred by the Grand Jury includes both testimonial and transactional immunity (cf. Code Crim. Pro., § 619-c; Matter of Gold v. Menna, 25 N Y 2d 475). From the defendant’s own testimony he understood that he was being subpoenaed to testify as a witness before the Grand Jury. Since he received several subpoenas and appeared pursuant thereto prior to the date of actual testimony, there was ample opportunity to consult with counsel had defendant so desired. Nor did he, on the occasion of his actual appearance before the Grand Jury, ask to be excused from the Grand Jury room in order to consult counsel. Indeed, if, as defendant asserts, he did not at any time confer with counsel prior to his appearance, defendant was remarkably alert and precise in asserting his constitutional privilege against self incrimination. Defendant admitted that he understood at least certain of the questions, which he refused to answer. Immunity having been properly conferred, defendant had no right to remain silent (Matter of Gold v. Menna, supra). Nor do we find the sentence of one year to be excessive.

The judgment entered June 26,1970, should be modified on the law, to the extent of holding that the refusal of defendant to answer the questions contained in the multiple count indictment constituted, in effect, a single contempt with a maximum sentence of one year since all referred to a single area of inquiry, and it became clear, at the outset, that defendant would refuse to answer any questions (cf. People v. Chestnut, 26 N Y 2d 481, 491-492). As so modified, the judgment appealed from should otherwise be affirmed.

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36 A.D.2d 284, 320 N.Y.S.2d 390, 1971 N.Y. App. Div. LEXIS 4275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cavalieri-nyappdiv-1971.

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