Opinion
March 3, 1952.
The relator, a former member of the police force of the city of New York, and one of a squad charged with enforcing the statutes against gambling, had resigned before he was called as a witness before the Grand Jury. He refused to sign a waiver of immunity and, after being sworn, refused to answer questions as to his income and financial condition for several years prior to his retirement and up to the time of his examination. His refusal to answer was based on the advice of counsel that his testimony might tend to subject him to prosecution and penalty for violation of subdivision 4 of section 376 of the State Tax Law. The inquiry as to his financial condition was pertinent to the investigation which the Grand Jury was making as to the dealings between some police officers and gamblers. Sections 381, 584 and 996 of the Penal Law provide immunity from prosecution for any criminal act with which pertinent honest testimony of a witness before a grand jury might tend to connect him, whether the criminal act was or was not covered by the statutes governing bribery, conspiracy or gambling. ( People v. Florentine, 276 App. Div. 730.) By reason of the above sections of the Penal Law there is no longer the privilege to remain silent before a grand jury when bribery, conspiracy or gambling is investigated by it. ( Matter of Rouss, 221 N.Y. 81, 86, 87.) The compulsion to testify as to a matter pertinent to the investigation of the grand jury, which might tend to connect the witness with a crime, does not violate the constitutional provision against self incrimination as to a criminal act because of the immunity provided by the aforesaid sections. The immunity to the witness was necessary because of the constitutional provision which prohibits compulsory self incrimination as to criminal acts. That provision, however, did not prevent the Legislature from withdrawing any statutory or common-law right to remain silent as to noncriminal acts for which penalties might be imposed. As to such acts, witnesses are compelled to testify in an investigation of this character. Therefore, if it be assumed that the testimony of the relator as to his finances might tend to connect him with a crime or a noncriminal act for which a penalty might be imposed under the provisions of subdivision 4 of section 376 Tax of the Tax Law (cf. Matter of Doyle, 257 N.Y. 244, 267), he was obliged to answer the questions as to his financial condition. Order of the County Court, Kings County, adjudging defendant guilty of a criminal contempt and sentencing him to serve thirty days in the city prison and to pay a fine of $250, affirmed. Nolan, P.J., Johnston, Adel, MacCrate and Schmidt, JJ., concur. [ 201 Misc. 4.]