50 N.Y.2d 747, *; 409 N.E.2d 897, **;
431 N.Y.S.2d 422, ***; 1980 N.Y. LEXIS 2466
The People of the State of New York, Respondent, v. Elliot Shapiro,
Appellant
[NO NUMBER IN ORIGINAL]
Court of Appeals of New York
50 N.Y.2d 747; 409 N.E.2d 897; 431 N.Y.S.2d 422; 1980 N.Y. LEXIS 2466
April 24, 1980, Argued
July 3, 1980, Decided
PRIOR HISTORY:
Appeal, by permission of an Associate Judge of the Court of Appeals,
from an order of the Appellate Division of the Supreme Court in the Second
Judicial Department, entered February 13, 1979, which modified, as a matter of
discretion in the interest of justice, and, as modified, affirmed a judgment of
the Westchester County Court (Rubin, J.), rendered upon a verdict convicting
defendant of promoting prostitution in the first degree, endangering the
welfare of a child (two counts), sodomy in the second degree and sodomy in the
third degree (11 counts), and imposing sentence. The modification consisted of
reducing the sentence imposed.
In Indictment No. 143, defendant was accused of engaging repeatedly in
a course of homosexual sodomitic acts on various occasions over a 17-month
period with eight different high school boys, each of whom was under the age of
17. Though it developed at trial that each of the youths had received money
from the defendant, it was never claimed that force of any kind was employed to
obtain their participation. In all, this indictment embraced a total of 64
criminal counts. Two other indictments, Nos. 117 and 118, centered on the more
serious crime of promoting such conduct, and were confined to a single event.
On that occasion, members of the police department, the Sheriff's department
and the District Attorney's office, executing a search warrant based largely on
evidence that derived from court-ordered wiretapping of defendant's telephone,
gained admission to defendant's residence. From intercepted telephone
conversations, the police had learned that two of defendant's adult male
friends planned to bring two teen-age male "prostitutes" to
defendant's home to perform sex acts for hire and that another adult was also
to join in these activities. When the police arrived, they found two of the
adults, attired, in the living room. Defendant was found, nude, in a bedroom
with one of the boys and another adult was found, nude, in a bedroom with the
second boy. Two years after the original indictments had been voted, the
People, before proceeding to trial against defendant, moved to consolidate all
three accusatory instruments against him, which motion was granted. Defendant's
subsequent application to sever Indictment Nos. 117 and 118, those related to
the promotion charge, from Indictment No. 143 was denied. When defendant sought
to call the three available witnesses to the incident involving the promotion
charge at trial, each witness, appearing in chambers with his own counsel,
invoked his privilege against self incrimination. It became apparent that the
protection they sought was not from disclosure of any past criminal activities,
but solely from the possibility that any testimony they would give on behalf of
defendant would precipitate their prosecution for perjury. All of the witnesses
had testified previously at related trials or Grand Jury proceedings and the
prosecutor repeatedly threatened prosecution for perjury if their testimony on
behalf of defendant deviated in any way from their prior sworn testimony. Each
of the prospective witnesses insisted that he would not testify unless he were
first given immunity. The District Attorney refused, which had the effect of
depriving defendant of any direct witnesses to his side of the story. Defendant
was convicted on various counts under all three indictments and sentenced. The
Appellate Division affirmed the conviction, but reduced the sentence imposed
thereon.
The Court of Appeals reversed and remitted the case to the Westchester
County Court, holding, in an opinion by Judge Fuchsberg, that, in the
circumstances of the case, it was an abuse of discretion as a matter of law for
the trial court to deny defendant's motion to sever Indictment No. 143 from the
trial of the other two indictments, that defendant's due process rights were
violated when, while his three prospective witnesses were considering whether
to persist in the invocation of their privilege against self incrimination, the
District Attorney repeatedly advised them that such testimony on behalf of
defendant would result in their prosecution for perjury and, further, refused
to grant them immunity from said prosecution if they decided to testify, and
that the eavesdropping orders secured by the police were invalid because they
exceeded the bounds set by the governing Federal wiretapping statute.
People v Shapiro, 67 AD2d 958.
DISPOSITION: Order reversed and case remitted to Westchester County
Court for further proceedings on the indictments.
CASE SUMMARY
PROCEDURAL POSTURE: Defendant appealed the order of the Appellate
Division of the Supreme Court in the Second Judicial Department (New York),
which modified, and as modified, affirmed a trial court judgment convicting
defendant of promoting prostitution in the first degree, two counts of
endangering the welfare of a child, sodomy in the second degree, and 11 counts
of sodomy in the third degree.
OVERVIEW: Defendant was convicted on a consolidated indictment of
promoting prostitution in the first degree, endangering a minor's welfare, and
sodomy in the second and third degrees. The appellate division reduced the
sentence but affirmed the conviction. On appeal, defendant claimed abuse of
discretion by the trial court when it denied his motion to sever the indictments,
violation of his due process rights because the prosecution threatened his
witnesses with perjury if they testified on defendant's behalf after exercising
the self-incrimination privilege, and invalidity of the eavesdropping orders
because they exceeded the bounds set by the federal wiretapping statute, 18
U.S.C.S. § 2516. The court reversed the conviction and ordered a new trial. The
trial court's failure to weigh relevant and critical considerations during the
motion to sever was an abuse of discretion. The prosecution's refusal to extend
immunity to the witnesses and his perjury threats violated defendant's due
process rights. N.Y. Crim. Proc. Law § 700.05 contravened the requirements of
18 U.S.C.S. § 2516. The wiretaps were invalid and the evidence stemming from
them should have been suppressed.
OUTCOME: The order of the appellate division was reversed and the case
remitted because the trial court abused its discretion in denying defendant's
motion to sever the indictments. Additionally, the wiretaps were illegal and
the evidence obtained from them should have been suppressed.
CORE TERMS: indictment, immunity, prostitution, promoting, wiretapping,
wiretap, perjury, prosecutor, sodomy, confer, limb, Fifth Amendment, Safe
Streets Act, dangerous to life, self incrimination, testifying, designated,
Penal Law, sexual abuse, joinder, endangering, sexual, joint trial,
eavesdropping, abuse of discretion, suppression, convicted, promotion,
severance, joinable
LexisNexis(R) Headnotes Hide
Headnotes
Criminal Law & Procedure > Pretrial Motions > Joinder &
Severance > Consolidation of Indictments
HN1 N.Y. Crim. Proc. Law §200.20 permits a court for trial purposes to
consolidate and treat as a single indictment two or more indictments against
the same defendant which charge different offenses of a kind that are joinable
in a single indictment. The determination of the application is
discretionary. More Like This Headnote |
Shepardize: Restrict By Headnote
Criminal Law & Procedure > Pretrial Motions > Joinder &
Severance
HN2 See N.Y. Crim. Proc. Law §200.20.
Criminal Law & Procedure > Pretrial Motions > Joinder &
Severance
HN3 Severance is not necessarily to be had for the asking. There should
be a showing of good cause for the relief requested. Conclusory generalities
will not usually suffice. And mere self-serving representations may be
suspect. More Like This Headnote |
Shepardize: Restrict By Headnote
Evidence > Criminal Evidence > Privileges > Self-Incrimination
Privilege
HN4 To be sure, ordinarily, exposure, whether to perjury or other
criminal charges, is a sufficient basis for a witness' invocation of the
privilege against self incrimination. However, there are times when the
exercise of this constitutional right may press on a defendant's due process
right to a fair trial and to compulsory process, all the more so when the
offenses are of such a nature that the only persons capable of furnishing
useful testimony will be those implicated in some way in the crime. More Like This Headnote | Shepardize:
Restrict By Headnote
Criminal Law & Procedure > Witnesses > Presentation
Criminal Law & Procedure > Trials > Defendant's Rights >
Right to Due Process
HN5 In cases in which witnesses favorable to the prosecution are accorded
immunity while those whose testimony would be exculpatory of the defendant are
not, or in ones where the failure to grant immunity deprives the defendant of
vital exculpatory testimony, due process may be violated. More Like This Headnote | Shepardize:
Restrict By Headnote
Criminal Law & Procedure > Witnesses > Presentation
HN6 One who is granted immunity in return for his testimony receives no
license to swear falsely with impunity while under the protection of that
immunity. More Like This Headnote |
Shepardize: Restrict By Headnote
Criminal Law & Procedure > Witnesses > Presentation
Criminal Law & Procedure > Trials > Defendant's Rights >
Right to Due Process
HN7 Substantial interference by the state with a defense witness' free and
unhampered choice to testify violates due process as surely as does a willful
withholding of evidence. More Like This
Headnote | Shepardize: Restrict By Headnote
Criminal Law & Procedure > Witnesses > Presentation
HN8 Warnings to potential witnesses of their possible liability for
false statements under oath must not be emphasized to the point where they are
transformed instead into instruments of intimidation. More Like This Headnote | Shepardize:
Restrict By Headnote
Criminal Law & Procedure > Search & Seizure > Electronic
Eavesdropping
HN9 See 18 U.S.C.S. § 2516(2). Shepardize: Restrict By Headnote
Criminal Law & Procedure > Criminal Offenses > Sex Crimes
Criminal Law & Procedure > Search & Seizure > Electronic
Eavesdropping
HN10 See N.Y. Crim. Proc. Law §700.05.
Hide Headnotes / Syllabus
HEADNOTES:
Crimes -- Indictment -- Improper Joinder of Indictments
1. It was an abuse of discretion as a matter of law ( CPL 200.20, subd
3) for the trial court to deny defendant's motion to sever an indictment
embracing a total of 64 criminal counts charging him with engaging in a course
of homosexual sodomitic acts on various occasions over a 17-month period with
eight different boys under the age of 17, who received money from the defendant
therefor, from his trial on two other indictments charging him with the more
serious crime of promoting such conduct, which allegations were confined to a
single incident and involved two other boys under 17 years of age, where there
was no physical evidence that any act of sodomy had been completed with the boy
with whom defendant was found at the time the police arrested him for
promotion, no one figuring in the first indictment other than the defendant
would have any reason to be called at the trial on the other indictments, and
defendant, who did not plan to take the stand at the trial on the first
indictment, desired to do so at the trial of the promotion charges; since
prosecutions for sex crimes, particularly ones regarded as deviate, tend in any
event to invoke prejudicial preconceptions among jurors, and in light of the
dearth of physical evidence on the promotion charges, the joinder of the
separate sets of charges created an impermissible risk that defendant would be
convicted on the promotion counts for reasons other than those legally relevant
to the specific crimes charged and the joinder also added impermissibly to
defendant's choice in deciding whether to take the stand in his own defense and
bear the risk on both sets of charges, although he might benefit on only the
one.
Crimes -- Immunity from Prosecution
2. One who is granted immunity in return for his testimony receives no
license to swear falsely with impunity while under the protection of that
immunity.
Crimes -- Fair Trial -- Prosecutorial Misconduct
3. Although a District Attorney has an obligation to warn potential
witnesses of their possible liability for false statements made under oath,
such warnings must not be emphasized to the point where they become instruments
of intimidation, nor may the refusal of a witness to testify due to fear of a
perjury prosecution, which refusal results in the withholding of relevant
testimony, be justified on the presumption that the witness in question will
swear falsely; moreover, in cases in which witnesses favorable to the
prosecution are accorded immunity while those whose testimony would be
exculpatory of the defendant are not, or in ones where the failure to grant
immunity deprives the defendant of vital inculpatory testimony, due process may
be violated. Accordingly, where, when confronted with repeated threats by the
prosecution that their testimony for defendant would result in prosecutions for
perjury if it was at all different from previous testimony given at other,
related trials and Grand Jury proceedings, three of defendant's witnesses
invoked the privilege against self incrimination to protect themselves from
said possible perjury prosecutions, each refusing to testify unless first given
immunity by the prosecution, the District Attorney's refusal to extend immunity
and the menacing terms in which he did so impermissibly affected the witnesses'
meaningful exercise of their Fifth Amendment rights and denied defendant due
process, which prejudice was not lightened when the Trial Judge refused to
instruct the jury on the reason the witnesses were not called to the stand; the
only way in which the prejudice created by the prosecutor's threats can be
dispelled is to require that the witnesses for the defendant be granted
immunity as a condition to subjecting the defendant to a new trial.
United States -- Federal Pre-emption -- Electronic Surveillance
4. Under pre-emption principles, any State law drawn more broadly than
the Federal Omnibus Crime Control and Safe Streets Act of 1968, which imposes
upon the States the minimum constitutional criteria for electronic surveillance
legislation, runs afoul of the supremacy clause (US Const, art VI).
Accordingly, to the extent that CPL 700.05 was read to permit wiretapping of
defendant's home, which yielded evidence later used in connection with sodomy
and promotion of prostitution charges, crimes involving persons less than 17
years old, but not involving any force, it contravened the requirements of
subdivision (2) of section 2516 of the Federal statute (US Code, tit 18), which
carefully enumerates the crimes considered serious enough to warrant
investigation by wiretap, i.e., murder, kidnapping, gambling, robbery, bribery,
extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs or
other crimes dangerous to life, limb or property, and the evidence gleaned
therefrom should have been suppressed; that State law deems a person less than
17 years of age incapable of consent (Penal Law, § 130.05, subd 3, par [a])
does not catapult these otherwise consensual criminal acts into the status of
crimes dangerous to life or limb.
COUNSEL: Joel Martin Aurnou for appellant. I. It was error to
consolidate Indictment Nos. 117 and 118 of 1974 for trial with Indictment No.
143 of 1974, and to thereafter refuse to sever Indictment No. 143 of 1974 prior
to trial. ( Matter of William S., 70 Misc 2d 320; People v Babb, 194 Misc 5;
People v Hayden, 37 AD2d 945; People v Reingold, 44 AD2d 191; People v
Armstrong, 1 AD2d 701; People v Branch, 34 AD2d 541, 27 NY2d 834; People v
Dodge, 72 Misc 2d 345; Cross v United States, 335 F2d 987.) II. The trial court
erred in sustaining Fifth Amendment claims by the witnesses Faulkner, Dowling
and Shomer. ( People v Fielding, 39 NY2d 607; Earl v United States, 361 F2d
531; United States v De Palma, 476 F Supp 775.) III. The trial court erred in
permitting the jury to convict defendant of both the first count of Indictment
No. 117 and the first count of Indictment No. 118 which were mutually
exclusive. ( People v Draper, 169 App Div 479; People v Odierno, 166 Misc 108;
People v Jelke , 1 NY2d 321; People v Plath, 100 NY 590; People v Cornier, 42
Misc 2d 963; People v Cunningham, 62 Misc 2d 515; People v Reisman, 29 NY2d
278.) IV. Defendant's conviction of sodomy in the second degree under count one
of Indictment No. 118 was against the weight of the evidence. ( People v Tench,
167 NY 520.) V. It was error not to suppress the wiretaps. VI. Innumerable
instances during the trial deprived defendant of a fair trial. ( People v
Hepburn, 52 AD2d 958; People v Cotto, 28 AD2d 1116; People v Rodriguez, 32 AD2d
545.)
Carl A. Vergari, District Attorney (Lois A. Cullen, Gerald D. Reilly
and Anthony J. Servino of counsel), for respondent. I. The three indictments
herein were properly consolidated for trial. ( People v Jenkins, 47 AD2d 832,
39 NY2d 969; Cross v United States, 335 F2d 987; United States v Jardan, 552
F2d 216, 433 U.S. 912.) II. The trial court properly sustained the Fifth
Amendment claims asserted by Faulkner, Dowling and Shomer. ( People v Sapia, 48
AD2d 524, 41 NY2d 160, 434 U.S. 823; Hoffman v United States, 341 U.S. 479;
People v Arroyo, 60 AD2d 914, 46 NY2d 928; Earl v United States, 361 F2d 531;
United States v Bautista, 509 F2d 675, cert den sub nom. Monsivais v United
States, 421 U.S. 976; People v Heffron, 59 AD2d 263; People v Vicaretti, 54
AD2d 236; United States v Lacoutre, 495 F2d 1237, 419 U.S. 1053; United States
v Gomez-Rojas, 507 F2d 1213, 423 U.S. 826; United States v Martin, 526 F2d
485.) III. The conviction under count one of Indictment No. 74-00117 (promoting
prostitution in the first degree) was valid. IV. Defendant-appellant's guilt
with regard to the charge of sodomy in the second degree (Indictment No.
74-00118) was proven beyond a reasonable doubt by properly corroborated
evidence. ( People v De Tore, 34 NY2d 199; Wedra v New York, 419 U.S. 1025;
People v Tench, 167 NY 520; People v Medina, 44 NY2d 199.) V. The wiretap
evidence was properly admitted at trial. VI. Appellant was afforded a fair
trial. ( People v Reisman, 29 NY2d 278; Matter of McGrath v Gold, 36 NY2d 406;
People v Rasero, 62 AD2d 845; People v Cunningham, 62 Misc 2d 515; People v
Cornier, 42 Misc 2d 963; People v Mendes, 3 NY2d 120; People v Congilaro, 60
AD2d 442; People v Singletary, 54 AD2d 767.)
JUDGES:
Chief Judge Cooke and Judges Jones, Wachtler and Meyer concur with
Judge Fuchsberg; Judge Gabrielli dissents and votes to affirm in a separate
opinion in which Judge Jasen concurs.
OPINIONBY: FUCHSBERG
OPINION: [*752] [**899]
[***424] OPINION OF THE COURT
After trial by jury, defendant Elliot Shapiro was convicted on a
consolidated indictment of promoting prostitution in the first degree and
endangering the welfare of a minor (under Indictment No. 117), sodomy in the
second degree (under Indictment No. 118), and 11 counts of sodomy in the third
degree (under Indictment No. 143). n1 In his appeal to us he claims, in the
main (1) that, in the circumstances of the case, it was an abuse of discretion
as a matter of law for the trial court to have denied his motion to sever
Indictment No. 143 from the trial of the other two; (2) that his due process
rights were violated when, while his three prospective witnesses were
considering whether to persist in the invocation of their privilege against
self incrimination, the District Attorney openly, repeatedly and unqualifiedly
advised them that testimony on behalf of the defendant would subject them to
prosecution for perjury; and (3) that the eavesdropping orders secured by the
police were invalid because they exceeded the bounds set by the governing
Federal wiretapping statute (US Code, tit 18, § 2516). We find merit in each of
these contentions and, therefore, reverse defendant's conviction and order a
new trial.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 His conviction was affirmed by the Appellate Division, although the
judgment was modified to reduce the maximum term of imprisonment from 12 to 7
years and to provide that the sentences should run concurrently (67 AD2d 958).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Pertinent to the analyses on which these conclusions rest are the
following:
In Indictment No. 143, Shapiro was accused of engaging repeatedly in a
course of homosexual sodomitic acts on various occasions [**900]
over a 17-month period between July, 1972 and November, 1973 with eight
different high school boys each of whom was under the age of 17. Though it
developed at trial that each of the youths had received money from the
defendant, it was never claimed that force of any kind was employed to obtain
their participation. In all, this indictment embraced a total of 64 criminal counts.
The other two indictments (No. 117 and No. 118), unlike No. 143, were
not premised on any explicit or implicit claim that the defendant was a
frequent actor in sexually aberrant conduct but, centering rather on the far
more serious crime of promoting such conduct, confined themselves to a single
event [*753] occurring on January 31, 1974. That night,
members of the New Rochelle Police Department, the Westchester County Sheriff's
Department and the District Attorney's office, executing a search warrant based
largely on evidence that derived from court-ordered wiretapping of defendant's
telephone, gained admission to Shapiro's residence. From the intercepted
telephone conversations, the police had learned that two of the defendant's
adult friends, Eli Shomer and Ronald Senn, planned to bring two young teen-age
male "prostitutes" to Shapiro's home to perform sex acts for hire and
that another adult, Brian Dowling, was also to join in these activities. When
the police entered, they found Shomer and Senn, attired, in the living room.
Making their way to the upper part of the house, the officers then came upon
Dowling and 15-year-old Gary F. lying completely unclad in bed together in one
bedroom and defendant and 13-year-old Duane S. nude [***425]
in the other. It was in the first of the two indictments (No. 117) based
on this incident that defendant, along with Shomer and Senn, was charged with
promoting prostitution as well as endangering the welfare of a minor; its
companion indictment (No. 118) charged Shapiro alone with sodomy, sexual
misconduct, sexual abuse and endangering the welfare of a minor, all additional
legal formulations of the transgressions said to have occurred on the self-same
January 31. Thereafter, Shomer's and Senn's cases were severed from that of
Shapiro and tried separately. It was later, two years after the original
indictments had been voted, that the People, before proceeding to trial against
Shapiro, moved to consolidate all three accusatory instruments against him. It
is the granting of this motion and the denial of defendant's subsequent
application to sever with which we deal first.
I
The joinder of the indictments was effected under the authority of CPL
200.20 (subd 4). HN1This section permits a court for trial purposes to
consolidate and treat as a single indictment "two or more indictments
against the same defendant * * * [which] charge different offenses of a kind
that are joinable in a single indictment". The determination of the
application is discretionary ( CPL 200.20, subd 5). Defendant does not
challenge the joining of the two indictments stemming from the January 31, 1974
incident (see CPL 200.20, subd 2, par [b]), but argues, as he did when the
original motion was made, that
[*754] it was improper to try
these with the indictment featuring the long train of sodomies which took place
in so much of the two previous years, on the ground that the latter counts
would prejudice his ability to defend on the former.
If justification for the joinder of the multiple event indictment with
the others is to be found it would have to be under the statute's broadest
possible conception of "joinable offenses", i.e., when two or more
"offenses are defined by the same or similar statutory provisions and
consequently are the same or similar in law" ( CPL 200.20, subd 2, par
[c]). But this language does not stand alone. Apparently cognizant of the
sweeping compass of this provision, the legislative scheme introduces cautions
designed to alleviate the potential for prejudice. Thus, CPL 200.20 (subd 3)
declares that, when the joinability of offenses rests solely on the grounds
specified in paragraph (c) of subdivision 2, HN2"the court, in the
interest of justice and for good cause shown, may, upon application of either a
defendant [**901] or the People, in its discretion order that
any one of such offenses or groups of offenses be tried separately from the
other or others". Surely, "the interest of justice" and
"good cause shown", though elastic, are more than resounding phrases.
True, in determining that consolidation was appropriate, the court
noted the following points of similarity: the defendant was the sole untried
defendant in each of the three indictments; all counts in the indictments
referred to sexual acts with boys under the age of 17; all the activities
occurred within the same jurisdiction and most occurred in defendant's home;
sodomy or sexual abuse were a focus of all three indictments. Nevertheless, it
cannot be gainsaid that these were but the most general of commonalities;
without more support, a joinder could hardly be said to serve more than the
permissible purpose of judicial economy.
In counterpoint, the thrust of defendant's more particularized
objection was that Indictment No. 143, because of the multiplicity of its 64
counts, carried an almost irresistible potential for prejudicing his defense of
the charges arising out of the unrelated January 31, 1974 incident, the only
one on which promoting was alleged. The inference of an indiscriminate
propensity to be a party to the event on which Nos. 117 and 118 were based
could be especially unfair in light of the dearth of physical evidence of any
act of sodomy with Duane S., admittedly the only individual in whose
presence [***426] defendant
[*755] was found at the time the
police broke in. As the proof at trial unfolded, the cumulative effect of the
repetitive recitations of the eight high school students on whom the People
depended to describe the defendant's numerous depredations during the 18-month
period covered by No. 143 was bound to come across as a pointed prologue to the
January 31 episode from which Nos. 117 and 118 alone were derived.
In these unique circumstances, it therefore was foreseeable that the
trial of the latter would be compromised by the strongest of suggestions that
it was but the inevitable outgrowth of defendant's untoward sexual
predisposition, however sociologically and scientifically tenuous such
connection may in fact have been (see Gregg, Other Acts of Sexual Misbehavior
and Perversion as Evidence in Prosecutions for Sex Offenses, 6 Ariz L Rev 212,
esp 231-236). Since prosecutions for sex crimes, particularly ones regarded as
deviate, tend in any event to invoke prejudicial preconceptions among jurors,
the joinder of the indictments created an impermissible risk. n2 For the
superficial closeness of the indictments here, resulting largely from a common
focus on the same kind of aberrant sexual practices, was likely to eclipse the
very fundamental difference between them. Indictment No. 117 involved the much
graver accusation that Shapiro had done more than yield to his irresistible and
therefore perhaps compassionately viewed sexual impulses. That wider role, the
far more heinous and socially damaging one of influencing others to enter upon
a life of submission to sexually aberrant conduct, especially when the
proselytizing is said to have been for profit, was almost sure to strongly
suggest a need to deter.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 That commonly held behavioral prejudices about those who perpetrate
sex crimes, mistakingly assuming that the commission of one type of sex crime
predisposes to another kind, are often unfounded has been well documented (see,
generally, Best, Crime and Criminal Law in the United States, pp 283-288;
Leppmann, Essential Difference between Sex Offenders, 32 J Crim L and
Criminology 366, 374-380; De River, The Sexual Criminal, A Psychoanalytical
Study, pp 274, 277; Report of Mayor's Special Committee for the Study of Sex
Offenders, pp 91-92 [New York City, 1941]; State Department of Mental Hygiene,
Report of Study of 102 Sex Offenders at Sing Sing Prison [New York State,
1950]).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In this connection, it is of course easy to say that jurors, like
Judges, may have had the intellectual capacity and emotional control to sort
out the separate roles in which the defendant was being portrayed so that one
would not be merged into the other. Indeed, I believe we all recognize that
intelligence is no more the monopoly of Judges than it is of [*756]
jurors. But it is equally true, as any practitioner of the trial process
or of life who has moved from initiate to sophisticate [**902]
can tell, that the average layman, astute and restrained as she or he
may be, and though advantaged by the freshness of such a juror's venture into
the legal arena, cannot hope to share the appreciation of the subtleties of
prejudice in such a context gained by Judges and trial lawyers through hard and
repeated experience.
We do not suggest that Judges do not have latitude in evaluating the
likelihood and gravity of prejudice when consolidation of several indictments
is sought. As we have observed, the statute confers discretion upon the court (
CPL 200.20, subd 2, par [c]). But in the peculiar circumstances of this case,
that discretion was abused. Significantly, the trial court's response to
defendant's contention that he would be sorely prejudiced by the joinder
manifested a failure to weigh any of the relevant, and here critical,
considerations. For the court merely opined that, given the testimony of the
eight other youths, anything added by either Duane S. or Gary F., necessarily
confined to January 31 alone, would have limited, if any, bearing on
propensity. But this was to view the problem from the wrong end. The chief
cause for concern, of course, was not the effect of the single charge of
promoting on the fairness of the trial for the numerous sodomies set out in No.
143, but the massive impact of the latter on the solitary promoting count. In
short, it does [***427] not appear that the court even considered the
risk that a joint trial would expose the defendant to the possibility of being
convicted on 117 and 118 for reasons other than those legally relevant to the
specific crimes these two indictments charged. (See Matter of William S., 70
Misc 2d 320, 324; People v Reingold, 44 AD2d 191, 195; People v Forest, 50 AD2d
260.
Moreover, the claim of prejudice, renewed in defendant's subsequent
motion under CPL 200.20 (subd 3) to sever Nos. 117-118 from No. 143, assumed
even more substantial proportion. Shapiro swore that, though he did not plan to
take the stand in No. 143, presumably electing to rely instead on his legal
defenses, n3 he desired to do so in Nos. 117-118 because he was "the only
person in a position" to deny any intention to promote or advance
prostitution.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Indeed, at the conclusion of the People's case, the Trial Judge
dismissed 31 of the counts on the ground that there had been no corroboration
of the victims' testimony (see Penal Law, § 130.16).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*757] Needless to say, HN3severance is not
necessarily to be had for the asking. There should be a showing of good cause
for the relief requested. Conclusory generalities will not usually suffice. And
mere self-serving representations may be suspect. But, given that the
sufficiency of the defendant's showing must be judged in the context of the
obvious and undisputed circumstances against which it is made, here there was
much more. The juxtaposition of the separate sets of charges -- one focusing on
a single evening and the other on a span of a year and a half, the difference
in the grade of the offenses, the fact that, other than himself, not a single
one of those figuring in the one indictment would have any reason to be called in
the other, the inflammatory nature that the proof of each would almost
inevitably exert on the other -- presented a situation too self-evident to be
disregarded (cf. People v Dodge, 72 Misc 2d 345). For, in the prevailing
circumstances, joinder of the indictments had to add impermissibly to what at
best was the inherently difficult choice defendant faced in deciding whether to
"bear the risk on both counts, although he may benefit on only one" (
Cross v United States, 335 F2d 987, 989 [Bazelon, Ch. J.]). Here the practical
result of the denial was to relegate him to no more than a Hobson's choice. For
these reasons the denial of the motion to sever was an abuse of discretion as a
matter of law.
II
The prejudicial impact of the consolidation was only enhanced when the
other witnesses whom Shapiro had expected to call to the stand in his defense
of the charges emanating from the events of January [**903]
31, after initially raising the privilege against self incrimination,
persisted in their refusal to testify. This followed directly after the
District Attorney issued repeated and unequivocal warnings the sense of which
was that the witnesses would subject themselves to prosecution for perjury if
their testimony was favorable to the defendant.
The prosecution's chief witness to the activities of January 31 was the
young male "prostitute" Duane S., who testified that on that date,
after Shomer and Senn had driven him and Gary F. from Boston to Shapiro's home
for the purpose of having them take part, for a consideration, in deviate
sexual conduct with two men, the defendant engaged in anal intercourse with
him. Shapiro's defense to the accusation that cast [*758]
him in the role of a promoter of prostitution appears to have been to
portray himself as a man whose uncontrollable sexual urges made him the easy
dupe of Shomer and Senn, the real and sole promoters, who manipulated Shapiro
so they could stage their activities in his home. To establish that his role
was so limited, he proposed to call all the other participants in these events
who were available as witnesses. Examination of his ensuing offer of proof
revealed that according to counsel's representations, Gary F. would have
testified [***428] that, when the boys appeared at his door,
Shapiro wanted nothing to do with them and was reluctant to admit them. Shomer,
too, Shapiro's counsel advised the court, would have countered the inference of
promoting by testifying that Shapiro acted only as patron. As to Dowling, whose
wiretapped conversation with Shapiro was heavily relied on by the District
Attorney to try to prove defendant's soliciting and promoting, counsel assured
the court that he expected that this witness would testify that he had intended
to visit Shapiro socially before he learned of Shomer and the boys' existence
and that, to his knowledge too, Shapiro was never more than a patron. (See
Penal Law, § 230.15.) n4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The only other eyewitnesses to the evening's events were defendant
himself, who elected not to take the stand, and Senn, who, it is conceded, at
the time of trial was confined to a mental institution with a condition that
made him unavailable to either side.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Despite these assurances, when defendant sought to call them at trial,
each witness, appearing in chambers in the company of his own counsel, invoked
his privilege against self incrimination. However, from the colloquy that
ensued, it soon became apparent that the protection the witnesses sought was
not from disclosure of any past criminal activities but solely from the
possibility that any testimony they would give on behalf of Shapiro would
precipitate their prosecution for perjury. n5 All three of these prospective
witnesses had testified previously: Shomer and Dowling at their own trial, Gary
F. before the Grand Jury under immunity, at a CPL 660.10 proceeding and, again,
at the joint trial of Shomer and Senn.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 By the time of Shapiro's trial, Shomer had been convicted, for his
participation in the January 31 episode, of promoting prostitution and
endangering the welfare of a minor, and had exhausted all appeals. Dowling, for
his part, had been convicted of endangering the welfare of a minor but
acquitted of all other charges and took no appeal. As for Gary F., his
testimony at the Grand Jury had conferred upon him transactional immunity (see
CPL 190.40, subd 2), and because of his age, he could not be criminally liable
for any of the charges (see Penal Law, § 30.00).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*759] And it was unswerving and unconditional
adherence to their prior testimony that the prosecution demanded. At every turn
he reiterated his resolve to prosecute any deviation for perjury. Thus, after
twice stating to Gary F. and his counsel, in camera and in the presence of
defendant's attorney, that the witness would be "subjecting himself"
to prosecution for perjury "if he gets on the stand now and tells a
different story than he told before the Grand Jury or any other body that he
appeared before", he went on: "I would state for the record very
clearly [that] if this individual * * * gets on the stand and gives a different
story, we will make every effort to prosecute for any perjurious
testimony." The threat could hardly have been more explicit,
particularly [**904] in view of the prosecutor's apparent
strategy, in disregard of his professional obligation, if not of his ethical
duty, to communicate the strongly worded admonitions directly to the witnesses
rather than allow their decision whether or not to testify to be made after
consultation with their own counsel. Later in the in camera hearing, the Trial
Judge summed up the District Attorney's over-all position with respect to the
prospective testimony of Shomer as follows: "As I understand the
proposition of the People * * * it's that [if] the testimony on this trial was
different than when he testified before, they would hold him for perjury."
n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 That Gary F.'s testimony was likely to be materially at odds with
his statements before the Grand Jury emerges from this colloquy:
Gary F.'s counsel: "Let's assume he takes the stand and he tells
the truth now, but he lied in the Grand Jury."
District Attorney: "You're forcing him at this point in time to
commit a crime."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Faced with these unveiled threats, each of the prospective witnesses
insisted that he would not testify unless he were first given immunity by the
prosecutor. Despite the urging of the trial court, which denied defendant's
application that it direct the prosecutor to do so, the District Attorney
refused. [***429] The ultimate effect was to deprive defendant
of any direct witnesses to his side of the story, n7 leaving Duane S., who
could not be prosecuted because of his youth (Penal Law, § 30.00) and because
of the prosecutor's own election to call him before the Grand Jury (see CPL
190.50, subds 2-4), to give the only version of the January 31 incident the
jury was to hear.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Defendant's solitary witness was the police surgeon who, upon
examining Duane S. on the evening in question, found no evidence of a completed
act of sodomy.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
HN4To be sure, ordinarily, exposure, whether to perjury or other [*760]
criminal charges, is a sufficient basis for a witness' invocation of the
privilege against self incrimination (see People v Sapia, 41 NY2d 160, 164;
People v Arroyo, 46 NY2d 928). However, there are times when the exercise of
this constitutional right may press on a defendant's due process right to a
fair trial and to compulsory process (US Const, 6th, 14th Amdts; NY Const art
I, § 6), all the more so when, as in the present case, the offenses are of such
a nature that the only persons capable of furnishing useful testimony will be
those implicated in some way in the crime ( Kastigar v United States, 406 U.S.
441, 446).
Given that the power to confer immunity and thereby to compel testimony
from a witness who asserts his privilege resides within the discretion of the
prosecutor (see CPL 50.20, subd 2, par [b]), in an appropriate case it is not
too much to expect that the exercise of this prosecutorial discretion be
tempered by an obligation to respond to such a problem. On that principle,
HN5in cases in which witnesses favorable to the prosecution are accorded
immunity while those whose testimony would be exculpatory of the defendant are
not, or in ones where the failure to grant immunity deprives the defendant of
vital exculpatory testimony, due process may be violated (see People v Sapia,
supra, at p 166; People v Arroyo, 46 NY2d 928, 930, supra; Earl v United
States, 361 F2d 531, 534, n 1 [Burger, J.], cert den 388 U.S. 921; United States
v Gaither, 539 F2d 753 [Bazelon, J., statement on denial of rehearing en banc],
cert den 429 U.S. 961; United States v Saettele, 585 F2d 307, 310-314 [Bright,
J., dissenting]; State v Broady, 41 Ohio App 2d 17; Westen, Compulsory Process
Clause, 73 Mich L Rev 71, 166-170; Note, Sixth Amendment Right to Have Use
Immunity Granted to Defense Witnesses, 91 Harv L Rev 1266).
It is also well-settled law that HN6one who is granted immunity in
return for his testimony receives no license to swear falsely with impunity
while under the protection [**905] of that immunity ( Glickstein v United
States, 222 U.S. 139; United States v Apfelbaum, 445 U.S. 115, 131; McCormick,
Evidence [2d ed], § 143, p 308; see CPL 50.10, subd 1). However, in this case
the witnesses did not seek immunity for any false statements they might make at
Shapiro's trial. Confronted with the prosecutor's ominous injunction that they
be consistent above all else, they sought assurance that any misstatements or
inconsistencies they may have uttered during the course of [*761]
their prior testimony would not suddenly become prosecutable after their
appearance on defendant's behalf. Accordingly, the District Attorney's refusal
to extend immunity, not to speak of the menacing terms in which he did so,
could have served no purpose other than to irretrievably bind the witnesses to
their previous sworn versions, accurate or not. By doing so, it impermissibly
affected their meaningful exercise of their Fifth Amendment rights and insured
their unavailability as witnesses for the defendant. The prosecutor's conduct
was, therefore, clearly erroneous.
[***430] From this perspective the case fits easily
within those rulings which hold that HN7substantial interference by the State
with a defense witness' free and unhampered choice to testify violates due
process as surely as does a willful withholding of evidence. For example, in
Webb v Texas (409 U.S. 95), the Trial Judge singled out the defendant's only
witness for a lengthy admonition on the dangers of perjury, assuring the
witness that if he lied he would be prosecuted and probably convicted. In
reversing the defendant's conviction, the Supreme Court held the refusal to
testify on Fifth Amendment grounds directly traceable to judicial intimidation.
Similarly, in United States v Morrison (535 F2d 223, cert den sub nom. Boscia v
United States, 429 U.S. 824), a case closer to the one before us, the defendant
was found to have been denied due process when the prosecutor drove defendant's
principal witness from the stand by repeatedly threatening her with criminal
charges, including perjury, if she testified. (See Clark v State, 585 P2d 367
[Okla] [prosecutor's threat to file perjury charges]; Campbell v State, 37 Md
App 89 [prosecutor's threat to reopen stet processus on key witness to prevent
his testifying in defendant's behalf]; United States v Hammond, 598 F2d 1008
[FBI agent's threat to retaliate against witness]; cf. United States v
Henricksen, 564 F2d 197 [condition of codefendant's plea bargain requiring him
not to testify at defendant's trial, though his testimony would have tended to
exonerate defendant].) The District Attorney's unwarranted action against
Shapiro's prospective witnesses led to the same unconstitutional result.
Furthermore, the prejudice in the present case was not lightened when the Trial
Judge refused to instruct the jury on the reason the witnesses were not called
to the stand (see People v Sapia, 41 NY2d 160, 164, supra).
All this is not to disregard a District Attorney's obligation to warn
potential witnesses of their possible liability for false [*762]
statements under oath. We hold only that HN8such warnings must not be
emphasized to the point where they are transformed instead into instruments of
intimidation. (Cf. Webb v Texas, supra, at p 97; United States v Winter, 348
F2d 204, 210 [Weinfeld, J.].) Our Sixth and Fourteenth Amendment guarantees
serve to insure that a criminal trial does not devolve into a game to be won or
lost whatever the means. Certainly, neither coercion nor the withholding of
relevant testimony is tolerable. Nor may such results be justified on the
presumption that the witnesses in question will swear falsely. Especially is
the injunction to be fair levied at the District Attorney, whose office demands
that he represent interests far broader than the outcome of a single trial
(Code of Professional Responsibility, EC 7-13; cf. People v Thomas, 47 NY2d 37,
43-44).
[**906] For such reasons and because the effect of
the intimidation on the witnesses' decision not to testify may not now be
erased, under the circumstances of this case we believe that, on a new trial,
the only way in which the prejudice created by the prosecutor's threats can be
dispelled would be to require that the defendant's witnesses be granted
immunity as a condition to subjecting the defendant to a new trial (see United
States v Morrison, supra, at p 229; United States v Paiva, 294 F Supp 742, 746;
Note, 91 Harv L Rev 1266, 1269; cf. Westen, Compulsory Process Clause, 73 Mich
L Rev 71, 170, n 477; United States v Leonard, 494 F2d 955, 985, n 79 [Bazelon,
Ch. J., concurring and dissenting]); United States v De Palma, 476 F Supp 775).
III
We turn now to defendant's argument that the wiretapped telephone
conversations and their fruits must be suppressed because the eavesdropping
orders, conceded to have been properly made under State law ( CPL 700.05, subd
2), exceeded the grounds of permissible State regulation as [***431]
defined by the Federal wiretapping statute (US Code, tit 18, § 2516,
subd [2]). The question so raised poses a novel application of the doctrine of
Federal pre-emption.
Congress, in enacting title 3 of the Omnibus Crime Control and Safe
Streets Act of 1968, relied upon the broadest reach of its commerce clause
powers, in large part to impose upon the States the minimum constitutional
criteria for electronic surveillance legislation mandated by Berger v New York
(388 U.S. 41) [*763] and Katz v United States (389 U.S. 347). n8
But the legislative intent was not to supersede State regulation of these
matters entirely; the grant of enabling power to the States in section 2516
makes this much clear. n9 For the statute recognizes that a State is free to
either adopt procedures and standards more restrictive than those imposed by
the Federal act or, if it desires, to prohibit wiretapping within its borders
altogether ( Commonwealth v Vitello, 367 Mass 224; cf. Askew v American
Waterways Operators, 411 U.S. 325). On the other hand, under pre-emption
principles, any State law drawn more broadly than title 3's standards runs
afoul of the supremacy clause (US Const, art VI, cl 2; see Tribe, American
Constitutional Law, p 379). Our inquiry, therefore, focuses on whether the
State statute at issue "stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress" ( Hines v
Davidowitz, 312 U.S. 52, 66-67; see Savage v Jones, 225 U.S. 501, 533;
Nettleton Co. v Diamond, 27 NY2d 182, 190-191). The answer is that it does.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 The electronic device placed on Shapiro's telephone, for example,
obviously falls within the ambit of Congress' power to regulate commerce
inasmuch as its installation put the New York authorities in a position to
intercept local as well as interstate calls made to and from Shapiro's home.
n9 The section at subdivision (2) provides: HN9"The principal
prosecuting attorney of any State, or the principal prosecuting attorney of any
political subdivision thereof, if such attorney is authorized by a statute of
that State to make application to a State court judge of competent jurisdiction
for an order authorizing or approving the interception of wire or oral
communications, may apply to such judge for, and such judge may grant in
conformity with section 2518 of this chapter and with the applicable State
statute an order authorizing, or approving the interception of wire or oral
communications by investigative or law enforcement officers having
responsibility for the investigation of the offense as to which the application
is made, when such interception may provide or has provided evidence of the
commission of the offense of murder, kidnapping, gambling, robbery, bribery,
extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or
other crime dangerous to life, limb, or property, and punishable by
imprisonment for more than one year, designated in any applicable State statute
authorizing such interception, or any conspiracy to commit any of the foregoing
offenses."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The provisions of title 3 do more than codify bare constitutional
requisites; they manifest a Congressional design to [**907]
protect the privacy of wire and oral communications by confining State
authorization for eavesdropping by wiretap to what in Congress' view are
appropriate and compelling circumstances (see Senate Report No. 1097, 90th
Cong, 2d Sess, US Code Cong & Admin News, 1968, p 2153). Thus, subdivision
(2) of section 2516 carefully enumerates the crimes considered serious enough
to warrant investigation by wiretap, namely
[*764] "murder, kidnapping,
gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana
or other dangerous drugs, or other crime dangerous to life, limb or property,
and punishable by imprisonment for more than one year, designated in any
applicable State statute authorizing such interception, or any conspiracy to
commit any of the foregoing offenses" (emphasis supplied).
Its drafters did not keep their intentions secret. The list was to
represent a class of major offenses that were either "intrinsically
serious or * * * [were] [***432] characteristic of the operations of organized
crime" (Senate Report No. 1097, p 2234). As is apparent, with the
exception of gambling and bribery, the designated crimes all involve harm or
the substantial threat of harm to the person, a "limitation [expressly]
intended to exclude such offenses as fornication and adultery" from the
permissible scope of electronic surveillance (id., at p 2187). Further, the
ejusdem generis rule dictates that the general phrase "other crime
dangerous to life [or] limb", since it follows words of a particular
meaning, is to be construed as applying only to crimes of the same kind as
those precisely stated (see People v Illardo, 48 NY2d 408, 416; McKinney's Cons
Laws of NY, Book 1, Statutes, § 239; Black, Interpretation of Laws, p 141). It
is also not irrelevant to observe that a narrow reading is in harmony with our
own sensitivity to the dangers inherent in electronic eavesdropping (see People
v Washington, 46 NY2d 116, 121-122).
Nevertheless, even cursory examination of New York's wiretapping
provisions reveals that the range of crimes in which electronic interception is
permitted is much more encompassing than the Federal standard would seem to
admit (Pitler, New York Criminal Practice Under the CPL, p 513). However, that
does not alter the fact that the bases for the eavesdropping warrant in this
case -- allegations of sexual abuse and the promotion of prostitution --
however, violative of New York criminal law, do not come within the intendment
of the Federal statute because they cannot be said to be "[crimes]
dangerous to life [or] limb". Furthermore, while it is possible for such
crimes to involve the use of forcible compulsion (see Penal Law, § 130.65), the
State wiretapping statute is not framed with this particularity (see CPL
700.05, subd 8, pars [b], [h]), n10 and there was no indication from which the
police [*765] could have reasonably suspected that
Shapiro's alleged criminality partook in any measure of either violence or
coercion.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 CPL 700.05 (subd 8, par [b]) only specifies sexual abuse in the
first degree as a ground for an eavesdropping order. HN10This crime is defined
in terms of
"[subjecting] another person to sexual contact:
"1. By forcible compulsion; or
"2. When the other person is incapable of consent by reason of
being physically helpless; or
"3. When the other person is less than eleven years old"
(Penal Law, § 130.65).
There appears no basis on which the police could justifiably have
believed Shapiro's misconduct fell within the embrace of any of these three
meanings.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In fact these criminal activities involved only consensual conduct, to
which, as already indicated, the legislative history tells us the Federal
statute does not extend the reach of permissible wiretapping (see Senate Report
No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, p 2187).
That State law deems persons less than 17 years old "incapable of
consent" (Penal Law, § 130.05, subd 3, par [a]) does not catapult these
criminal acts into the status of "crimes dangerous to life [or]
limb". Nor, of course, may any claim that
[**908] our own State Legislature
has determined that such acts presented a substantial danger to life and limb
override the considered judgment of Congress that they did not.
By this we do not in the slightest mean to suggest that the State's
interest in prescribing criminal penalties for participation with minors in
acts of prostitution or sexual abuse is not a strong or even compelling one, or
that wiretapping may not be authorized in conformance with the supervening
Federal standard where similar acts are undertaken by means of force. But the
standard may not be expanded beyond the contemplation of the drafters to
include within its sweep more subtle forms of personal injury, for example, any
deleterious psychic consequences to minors that may result from their
participation in such practices. Thus, under the circumstances of this case, to
the extent that CPL 700.05 was [***433] read to permit authorization of the wiretaps
for crimes not involving the use of force or, indeed, any danger to life or
limb, it contravened the requirements of section 2516 of the Federal statute.
The wiretaps, therefore, were invalid and the evidence gleaned from them should
accordingly have been suppressed (Omnibus Crime Control and Safe Streets Act of
1968, tit 3, § 801, subd [b], 82 US Stat 211; see Lee v Florida, 392 U.S. 378,
385-386). n11
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 The dissent draws heavily on dicta in Schwartz v Texas (344 U.S.
199), a case subsequently overruled ( Lee v Florida, 392 U.S. 378), to argue
that the Federal wiretapping statute cannot, consistent with the Tenth
Amendment, proscribe the use of evidence in State courts merely because that
evidence was obtained by means outlawed by the wiretapping statute rather than
by the Constitution itself.
Schwartz held that a State court was not impelled to reject evidence
garnered in violation of section 605 of the Federal Communications Act of 1934,
the predecessor of title 3, even though the statute had been judicially
construed to require such exclusion in the Federal courts (see Nardone v United
States, 302 U.S. 379). However, in overruling Schwartz in Lee v Florida
(supra), the Supreme Court recognized Schwartz' rationale to be at odds with
Mapp v Ohio (367 U.S. 643) which, according to the court, "imposed a
judicially devised exclusionary rule in order to insure that a State could not
adopt rules of evidence calculated to permit the invasion of rights protected
by federal organic law" (392 U.S., at p 385). As the court in Lee
correctly noted, it was the supremacy clause that forbade any court, State or
Federal, from "[serving] as an accomplice in the willful transgression of
'the Laws of the United States', laws by which 'the Judges in every State [are]
bound' " (392 U.S., at p 386; see, also, Flaherty v Arkansas, 415 U.S.
995, 996-997, n 3 [Douglas, J., with Brennan and Marshall, JJ., dissenting from
denial of certiorari]).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*766] For all these reasons, the order of the
Appellate Division should be reversed and the case remitted to the County
Court, Westchester County, for further proceedings.
DISSENTBY: GABRIELLI
DISSENT: Gabrielli, J. (dissenting). I am compelled to dissent, for I
am of the opinion that none of the three issues discussed by the majority
constitutes a basis for reversal.
I
First, my colleagues in the majority conclude that, as a matter of law,
it was an abuse of discretion for the Trial Judge to grant the People's motion
to consolidate Indictment No. 143 with Indictment Nos. 117 and 118. Presumably,
this conclusion is premised upon a finding that the potential for prejudice was
so patent and so substantial that the decision to consolidate clearly exceeded
the bounds of judicial authority, even though consolidation was permissible
under the relevant statute ( CPL 200.20, subd 2, par [c]; subd 4). Yet the
precise factors upon which the majority bases its finding of inevitable
prejudice remain somewhat obscure.
All three indictments charged defendant with having committed various
sex-related offenses, ranging from sexual abuse in the second degree to
promoting prostitution in the first degree. Of course, it cannot be the mere
fact of similarity among the various crimes charged that is the source of
the [**909] prejudice, for similarity is the very trait
that renders the offenses joinable under the statute. n1 Thus, it would
appear [*767] that the majority's objection to the joint
trial of the indictments in this case must be based upon a perceived danger of
prejudice resulting from the cumulative impact upon the jury [***434]
of a large number of similar counts. In my view, however, there was
nothing of a substantial nature to be gained by ordering the charges in
Indictment No. 143 to be tried separately from those contained in Indictment
Nos. 117 and 118.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 CPL 200.20 (subd 2, par [c]) provides:
"Two offenses are 'joinable' when:
* * *
"(c) Even though based upon different criminal transactions, and
even though not joinable pursuant to paragraph (b), such offenses are defined
by the same or similar statutory provisions and consequently are the same or
similar in law".
It is not and, indeed, cannot be disputed that the counts in Indictment
Nos. 117, 118 and 143 were joinable under this section, and, for that reason,
the indictments were proper subjects for consolidation under CPL 200.20 (subd
4).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Indictment No. 143 charged defendant with 64 counts of various sex
crimes involving young boys, all occurring between July 1, 1972 and November of
1973: one count of sodomy in the second degree, one count of sexual abuse in
the second degree, 20 counts of sodomy in the third degree and 21 counts each
of sexual misconduct and endangering the welfare of a child. Indictment No. 118
contained one count of sodomy in the second degree, one count of endangering
the welfare of a child, one count of sexual misconduct and one count of sexual
abuse in the second degree. Finally, in Indictment No. 117, defendant was
charged with a single count of promoting prostitution in the first degree, a
class B felony, and one additional count of endangering the welfare of a child.
Interestingly, defendant made no attempt to have the individual counts
in the voluminous Indictment No. 143, which involved eight separate victims,
severed and tried separately (see CPL 200.20, subd 3). Yet, it would seem that the
danger of prejudice flowing from a repetition of sordid evidence, if it existed
at all, would be more likely to arise in a trial involving some 64 counts of
similar sexual crimes. In view of defendant's apparent acquiescence in the
notion of a single trial for all of the charges of deviant misconduct recited
in Indictment No. 143, I must assume that his objection to a joint trial of
Indictment Nos. 117, 118 and 143 was not actually based upon a concern that he
would be prejudiced with respect to the four counts in Indictment No. 118,
which were substantially similar in nature and degree of seriousness to the 64
counts specified in Indictment No. 143. Instead, as the majority's opinion
suggests, the principal cause for concern was the cumulative impact that the
total of 68 counts involving private perversion would have upon the jury's
consideration of the more serious count specified in Indictment No. 117,
promoting prostitution in the first degree.
[*768] Yet, since there is no necessary relationship
between the numerous charges of personal sexual misconduct and the charge of
promoting prostitution, it is difficult to see how the jury's consideration of
the latter could have been influenced by the evidence presented to support the
former. Common experience teaches us that individuals who repeatedly engage in
acts of sexual perversion may appear to be the victims of both their own
deviant sexual urges and the efforts of those who would exploit those urges for
personal gain. The victims and the victimizers clearly have different roles to
play in the mercantile world of perversion for profit, and, just as we as
Judges can recognize the distinction between the two roles, we may readily
expect that a reasonable jury will be capable of doing the same. In any event,
it cannot be said upon the present record that the danger of prejudice with
respect to the "promoting" count contained in Indictment No. 117 was
so blatant that it was an abuse of discretion as a matter of law for the Trial
Judge to refuse to sever that count from the 64 other counts of sexual
misconduct recited in Indictment No. 143.
In an apparent recognition of the weakness of its conclusion, the
majority seeks to [**910] bolster the case for severance by observing
that defendant asserted before the trial court that he wished to testify on the
felony counts in Indictment Nos. 117 and 118, but that he further wished
"to exercise his constitutional right under the Fifth Amendment not to
testify [concerning] the events alleged in Indictment No. 143". It is
difficult to discern, however what bearing this observation has upon the
majority's ultimate holding.
As the majority opinion notes, "severance based on such ground is
[not] available for the mere asking" ( People v Dodge, 72 Misc 2d 345,
348). [***435] Although severance of joined counts may be
required in cases where a joint trial would materially impair the defendant's
right to refrain from testifying on one count by reason of his compelling
interest in testifying in his own behalf on the other counts (see Cross v
United States, 335 F2d 987), it is the defendant's burden to demonstrate to the
trial court through concrete allegations that such circumstances exist and that
severance is therefore warranted ( United States v Jardan, 552 F2d 216, 220,
cert den 433 U.S. 912; Blunt v United States, 404 F2d 1283, cert den 394 U.S.
909). Indeed, the defendant must make "a convincing showing that he has
both important testimony to give concerning one
[*769] count and strong need to
refrain from testifying on the other" ( Baker v United States, 401 F2d
958, 977, cert den 400 U.S. 965). Moreover, "[in] making such a showing,
it is essential that the defendant present enough information -- regarding the
nature of the testimony he wishes to give on one count and his reasons for not
wishing to testify on the other -- to satisfy the court that the claim of
prejudice is genuine and to enable it intelligently to weigh the considerations
of 'economy and expedition in judicial administration' against the defendant's
interest in having free choice with respect to testifying" (id.).
Here, no such specific information was offered by defendant to the
Trial Judge. With respect to the various charges contained in Indictment No.
118, defendant's affidavit merely alleged that he wished to testify on the
felony count because "he is the only person in a position to do so".
With regard to the more serious count contained in Indictment No. 117,
defendant stated only that his testimony would be helpful to his defense, in
that it would "establish that he was not culpable under the statute * * *
and in particular that he did not promote or advance prostitution on the one
occasion when he was charged with having done so". Finally, defendant's
affidavit stated argumentatively that "without [defendant's] testimony it
is absolutely impossible to defend against the felony charges contained in
[the] two indictments".
Of course, such conclusory statements were not sufficient under
existing case law to establish that defendant has "important
testimony" to give concerning at least one of the counts for which he was
to be tried. Lacking specific allegations as to the subject matter or relevance
of his proposed testimony, defendant's affidavit gave the Trial Judge no
concrete basis for concluding that his need to testify was genuine. In fact as
the Trial Judge noted, the sole specific statement made by defendant in support
of his motion to sever indicated that his testimony would not be exculpatory or
even relevant to his defense. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Defendant's affidavit stated that he planned to testify in
connection with the promoting prostitution charge "that he never received
any money * * * or any other financial benefit" from the events of January
31, 1974. The theory of the prosecution, however, was that defendant had
committed a criminal act by "knowingly advancing" the prostitution of
a minor and not by "knowingly profiting" from the prostitution of a
minor (see Penal Law, § 230.30, subd 2; § 230.32). Thus, defendant's testimony
on the promoting prostitution charge would not have been directly exculpatory.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*770] Similarly, defendant made no showing that he
had a "strong need to refrain from testifying" on the charges stated
in Indictment No. 143. In this regard, defendant stated in conclusory fashion:
"The Court [**911] will observe that in Indictment 143 as to
each date on which felony counts are alleged, at least two and sometimes three
or four persons are alleged to have been present. It is apparent that the
defendant has good reason to prefer to rely solely upon his legal defense to
these charges". This rather cryptic assertion was hardly sufficient to
permit the trial court intelligently to determine whether a joint trial of the
three indictments would materially impair
[***436] defendant's freedom to
choose whether or not to testify.
In short, defendant's allegations concerning his desire to testify on
the felony charges in Indictment Nos. 117 and 118 and to refrain from
testifying on the multiple counts in Indictment No. 143 added nothing to the
case in favor of severance. Absent specific allegations on this point,
defendant's bare assertions could not serve to strengthen his position with
respect to the motion to sever, and, consequently, the trial court's decision
to deny the motion cannot be considered an abuse of discretion. I pause only to
add that I cannot share the majority's apparent disregard for the significance
of "judicial economy" as an important consideration militating in
favor of a joint trial of the multiple indictments in this case. While a
defendant's due process rights are always, of course, of paramount importance,
we cannot afford, in this era of judicial austerity, to give short shrift to
the countervailing need to preserve our judicial resources wherever possible.
II
In reversing defendant's conviction, the majority has also held,
without any support in precedent, that the People may not seek a retrial unless
and until the District Attorney agrees to confer immunity from prosecution for
perjury upon certain of defendant's witnesses. This holding is apparently based
upon the fact that, at an in camera conference, the District Attorney flatly
refused to extend immunity to these individuals and instead stressed that he
would press criminal charges if the witnesses' trial testimony indicated that
their previous sworn statements had been false. Because I believe that the
majority's rationale is premised upon a serious misreading of the body of
Federal case law upon which it relies, I
[*771] am compelled to offer my
strong opposing views on this aspect of the majority's ruling.
Like the applicable Federal statute (US Code, tit 18, §§ 6002-6003),
our own statutes vest in the District Attorney the sole authority to decide
whether to grant or withhold immunity in cases such as this (see CPL 50.30;
see, also, CPL 50.20). The courts, as a general rule, do not tamper with the
exercise of this discretionary authority, which has been conferred upon the
District Attorney by the Legislature as a tool to assist him in implementing
the policies of his office (cf. Matter of Kilgo, 484 F2d 1215, 1222). There do
exist rare instances in which the District Attorney's use of his discretionary
authority impinges upon the defendant's fundamental right to due process of
law, and, in such cases, it has been suggested that the courts may intervene
(see People v Sapia, 41 NY2d 160, 165-166, cert den 434 U.S. 823). Although the
majority apparently regards this case as one of those "rare
instances", my reading of the applicable decisions leads me to a contrary
conclusion.
The seminal case on this question is Earl v United States (361 F2d 531,
cert den 388 U.S. 921). There, the United States Court of Appeals for the
District of Columbia refused to reverse a conviction solely on the ground that
the United States Attorney had declined to confer immunity upon a defense
witness who had become "unavailable" due to the assertion of his
Fifth Amendment privilege against self incrimination. In an oft-cited footnote,
however, the court observed: "We might have quite different, and more
difficult, problems had the Government in this case secured testimony from one
eyewitness by granting him immunity while declining to seek an immunity grant
for [defendant's witness] to free him from possible incrimination to
testify [**912] for [defendant]. That situation would vividly
dramatize an argument on behalf of [defendant] that the [immunity] statute as
applied denied him due process. Arguments could be advanced that in the
particular case the Government could not use the immunity statute for its
advantage unless Congress made the same mechanism available [***437]
to the accused" (361 F2d, at p 534, n 1). This dictum was, of
course, based upon the underlying, unobjectionable notion that the prosecutor
may not abuse his authority to grant immunity selectively by utilizing it as a
device to manipulate the evidence available for trial. The Earl court also
noted in passing that the power to confer immunity [*772]
may not be used cynically as a means of affirmatively suppressing
evidence ( id., at p 534; see Brady v Maryland, 373 U.S. 83; People v Sapia,
supra).
Since the Earl decision, however, the Federal courts have applied the
principles articulated in that case most sparingly, holding, for the most part,
that the question of the Government's obligation to confer immunity upon defense
witnesses does not even arise unless the Government has itself obtained
important prosecution witnesses through the use of its power to grant immunity,
a circumstance which certainly does not obtain in the instant case ( United
States v Lang, 589 F2d 92, 95-96; United States v Wright, 588 F2d 31, 35, and n
3, cert den sub nom. Sorbara v United States, 440 U.S. 917; United States v
Bautista, 509 F2d 675, 677, cert den sub nom. Monsivais v United States, 421
U.S. 976; United States v Allstate Mtge. Corp., 507 F2d 492, 494-495, cert den
421 U.S. 999; United States v Ramsey, 503 F2d 524, 532, cert den 420 U.S. 932;
United States v Jenkins, 470 F2d 1061, 1063-1064, cert den 411 U.S. 920). n3
Indeed, the Federal courts have been nearly unanimous in their adherence to the
general rule that a defendant has no constitutional right to compel the
prosecutor to extend immunity to defense witnesses ( United States v
Niederberger, 580 F2d 63, 67, cert den 439 U.S. 980; United States v Beasley,
550 F2d 261, 268, cert den 434 U.S. 938; United States v Alessio, 528 F2d 1079,
1081-1082, cert den 426 U.S. 948; United States v Stofsky, 527 F2d 237, 249,
cert den 429 U.S. 819; United States v Gomez-Rojas, 507 F2d 1213, 1220, cert
den 423 U.S. 826; Cerda v United States, 488 F2d 720; United States v Berrigan,
482 F2d 171, 190). n4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -