Opinion
December 10, 1970
Appeal from the Erie Supreme Court.
Present — Goldman, P.J., Del Vecchio, Witmer, Bastow and Henry, JJ.
Judgment unanimously reversed on the law and facts and new trial granted. Memorandum: Defendant has been convicted of two counts of criminal contempt (Penal Law, § 215.50, subd. 4) for refusing to answer relevant questions before (1) a Grand Jury after that body had granted him immunity and (2) thereafter in Erie County Court. A new trial is mandated because of prejudicial errors. The prosecutor in his opening statement told the trial jury that the Grand Jury had been investigating larceny and gambling conspiracies involving public officials. He concluded with the statement that "there was certain testimony [before the Grand Jury] that [defendant] was involved with gambling in Lackawanna and in South Buffalo. Further, that there were Lackawanna police officers involved in this gambling." There was a prompt motion for a mistrial which should have been granted. The remarks were highly prejudicial. Inasmuch as a new trial is required, we direct attention to one other aspect of the trial procedure here followed. The court on three occasions gave instructions to the jury — once before a jury was selected, again after the jury was selected and finally at the end of the case. It doubtless is helpful in either a civil or criminal case for the court to deliver a pretrial charge (PJI 1:1-1:14; McBride, Art of Instructing the Jury, § 3.08; see, also, Crim. Pro. Law, § 260.30, par. 2, eff. Sept. 1, 1971). But such should not be a substitute for the detailed instructions on the law and evidence to be given at the close of the case. (Devitt Blackmar, Federal Jury Practice Instructions, § 10.01; Code Crim. Pro. § 388.) Herein the court in its second charge (after selection of the jury) stated that it would deliver part of its charge "instead of giving you the entire charge at the end of the case." At the end of its final (and third) charge counsel for appellant reminded the court that it had not instructed the jury on the presumption of innocence. The court replied that the subject had been covered "at the outset which is also part of my charge." While the court did recharge on the subject, we comment briefly on the procedure followed. Recognizing, as we do, the value of pretrial instructions, we believe that at the close of a criminal case the jury should be fully instructed on all the law applicable to the case and that the court should not assume that the jury recalls and remembers the instructions given (perhaps after the passing of weeks) in the preliminary instructions. "A court's charge is not like a corporate indenture, able to be studied at leisure, valid if all technical recitals are to be found within its four corners. Rather, it is a means to guide laymen, in plain and practical fashion, in the discharge of a solemn responsibility" ( People v. Lupo, 305 N.Y. 448, 452). Lastly, we alert the trial court to a further issue that may be presened at or prior to the new trial. At the trial herein it was established that following appellant's refusal to answer questions in County Court he was sentenced to 30 days in jail. (Judiciary Law, § 750.) The order of commitment is ambiguously drawn. It first recites defendant's refusal to answer questions before the Grand Jury and in County Court with a further recital that the refusal was "in the presence of the court." Defendant was adjudged guilty of criminal contempt for his refusal to answer questions before the Grand Jury and County Court and by reason thereof was sentenced to 30 days in jail. It is conceded that the sentence was served. At the close of the evidence herein defendant moved to dismiss the indictment on the ground that he was again being placed in jeopardy. The motion was denied — presumably on the authority of People v. Colombo ( 25 N.Y.2d 641) and similar decisions. Recently, however, the Supreme Court has remanded that case ( Colombo v. New York 400 U.S. 16) to the Court of Appeals for reconsideration in the light of Waller v. Florida ( 397 U.S. 387). If the issue is presented anew to the trial court it should be decided in the light of then applicable legal principles.