Opinion
Argued February 10, 1978
Decided May 2, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HARRY J. DONNELLY, J.
Harvey L. Greenberg for appellant.
Eugene Gold, District Attorney (Michael Gore of counsel), for respondent.
Defendant appeals from an affirmance of his conviction, after indictment and jury trial, of criminal contempt in the first degree (Penal Law, § 215.51). The contempt arose out of his refusal, in violation of a court order, to answer questions before a Grand Jury. Defendant contends that his contempt has been purged and the indictment should be dismissed. He relies on an order made by a Supreme Court Justice, more than a year after defendant's indictment and nearly two years after the contempt, allowing defendant to purge the contempt by testifying before the Grand Jury. At trial no reference to the purge order or defendant's subsequent testimony was permitted.
At issue is the power of a Judge to allow a defendant who has been indicted for criminal contempt under the Penal Law to purge himself of the indictment by complying, belatedly, with a court order earlier disobeyed. Since it is concluded that the purge order could have no effect on the indictment for the crime of contempt, there should be an affirmance. The problem and its resolution are simple and elaboration would be superfluous. Not to be confused with the crime of contempt, as defined in the Penal Law, is summary contempt, either civil or criminal. When the crime of contempt, prosecuted by indictment, is involved, a court may not permit the contempt to be purged.
Indictment for the crime of contempt, as defined in the Penal Law, like any other crime entitles defendant to a plenary trial. The crime is not intended solely to vindicate the authority of the court, but to further the ends of public justice as well. Thus, the crime of contempt must be distinguished from a summary criminal contempt adjudication, or a civil contempt which may undoubtedly be purged (Judiciary Law, §§ 750, 753). As had been said, nearly a century ago: "The two proceedings are wholly independent of each other. One who disobeys the lawful order of a court not only offends against the dignity of the particular tribunal, but also against the public law. The particular court may pass over the contempt and suffer its order to be spurned, but the offense against the people remains. Their authority has been contemned, the administration of public justice assailed, and its power despised" (People ex rel. Sherwin v Mead, 92 N.Y. 415, 420 [FINCH, J.]; see, also, People v Colombo, 29 N.Y.2d 1, 4, vacated and remanded on other grounds sub nom. Colombo v New York, 405 U.S. 9). Thus, once a contempt goes to indictment and prosecution, forgiveness by an individual Judge or court may not be permitted to frustrate the power to punish for the affront to public justice. Purging of the contempt, therefore, is not permissible, at least in the absence of statutory authority.
Unnecessary to reach, and probably incorrect, is the conclusion that under no circumstances may a "criminal" summary contempt be purged. In fact, this court has concluded, in some circumstances at least, that one summarily adjudged in criminal contempt pursuant to section 750 of the Judiciary Law "'holds the key to his freedom'" (Colombo v New York, 29 N.Y.2d 1, 4, supra; People ex rel. Valenti v McCloskey, 6 N.Y.2d 390, 399, app dsmd 361 U.S. 534; see, also, Typothetae of City of N.Y. v Typographical Union No. 6, 138 App. Div. 293). Arguably, implicit in such a conclusion is the ability to purge some criminal contempts as distinguished from crimes of contempt. As noted already, however, that issue need not be reached.
This is how the law of New York has developed. It should not be confused with a somewhat different categorization of summary criminal contempts in cases before the Supreme Court of the United States involving the application of principles of double jeopardy or jury trial (e.g., Colombo v New York, 405 U.S. 9, 10-11, supra; Shillitani v United States, 384 U.S. 364, 368-372; Cheff v Schnackenberg, 384 U.S. 373, 377-380).
Accordingly, the order of the Appellate Division should be affirmed.
This case presents claims (1) that the District Attorney, in bringing appellant before the Grand Jury, acquiesced in the acceptance of a judicial offer of redemption and thus waived any objection to its enforcement and (2) that the unappealed decision of the Judge who granted the defendant's motion to purge himself became the "law of the case" binding on District Attorney and trial court alike. Beyond that, the analytical divergence of the opinions below points up the recurrent confusion in the law of contempt. I therefore believe more extensive discussion is merited.
(See Moskowitz, Contempt of Injunctions, Civil and Criminal, 43 Col L Rev 780; Civil and Criminal Contempt in Federal Courts, 17 FRD 167.)
Though the power to punish for criminal contempt in New York is now to be found entirely in our statutes, its roots are ancient. In Anglo-Saxon tradition alone this power is traceable at least as far back as the twelfth century (Fox, History of Contempt of Court [1927], p 1). Blackstone later described it as "an inseparable attendant upon every superior tribunal" and "as ancient as the laws themselves" (4 Blackstone, Commentaries, p 282). And American courts, following those leads, have consistently regarded it as inherent and indispensable to their judicial functions (see, e.g., United States v Hudson, 7 Cranch, [11 US] 32, 34; Thomas, Problems of Contempt of Court, pp 4953).
Appellant, by his refusal to answer questions posed by the Grand Jury, flouted this power. The dignity of our courts having thus been affronted, its vindication could follow one of two statutory avenues, either that prescribed by sections 750 and 751 of the Judiciary Law or the one to be found in sections 215.50 and 215.51 of the Penal Law.
The double jeopardy clause precludes resort to both statutory schemes for prosecution of the same offense (see People v Colombo, 31 N.Y.2d 947).
Under the Judiciary Law sections, a court has the power summarily to punish for specified acts, among which is "contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory." While the sanctions which may be imposed under these sections may be expeditious, they are comparatively light, being limited to a $250 fine and 30 days in jail. (This relative leniency has not been without criticism; see the comments of Professor Siegel in McKinney's Cons Laws of NY, Book 7B, Practice Commentary to CPLR 2308, subd [a].)
In this case, as no summary action was instituted against appellant under the Judiciary Law, the concomitant discretion that a court acting summarily retains to allow a contemnor to purge himself did not come into play (cf. People ex rel. Valenti v McCloskey, 6 N.Y.2d 390, 399, app dsmd 361 U.S. 534).
Under the Penal Law sections, while the State may attempt to exact a more severe penalty, it may not proceed summarily. Thus, having chosen to indict the appellant here for criminal contempt in the first degree under section 215.51 of the Penal Law, a class E felony, the People were required to accord him all the safeguards of a plenary trial. Another result of the pursuit of proceedings under the Penal Law rather than the Judiciary Law was that the appellant could not absolve himself of his contemptuous conduct by his subsequent compliance with the commands of the court.
For section 215.51 of the Penal Law made appellant's crime complete when, "after having been sworn * * * before a grand jury, [he] refuse[d] to answer". His belated change of heart could no more excuse him from responsibility for his crime than would an indicted embezzler's disgorgement of the avails of his larceny (cf. People v Colombo, 29 N.Y.2d 1, 3, vacated and remanded on other grounds 405 U.S. 9). Nor could Leone's subsequent testimony before the Grand Jury eradicate the intent with which he defiantly undertook to obstruct justice two and a half years earlier.
That his ameliorative conduct might be appropriately considered by the sentencing Judge on the limited issue of punishment is besides the point. For that purpose, eventual compliance very well could be a mitigating factor. But it was not a defense. (Yates v United States, 355 U.S. 66, 72.) Consequently, on the issue of guilt or innocence, proof of the fact that he eventually did testify and of the issuance of the order which preceded that event were properly excluded at trial.
True it is that the outstanding "purge" order may have led Leone to believe that retroactive immunity could be his. But, in testifying, he did no more than what he was obligated to do. The prosecutor's right to recall him was not dependent on the order. Had the appellant then continued in his refusal to answer questions — even if conviction and punishment for the earlier offense had already been a thing of the past — the State would have had the right to persist in its efforts to obtain his testimony and, if necessary, to have prosecuted him anew for a later and therefore separate contempt (Matter of Ushkowitz v Helfand, 15 N.Y.2d 713; Matter of Second Grand Jury v Cirillo, 12 N.Y.2d 206 [DESMOND, Ch. J.]; People v Matra, 42 A.D.2d 865, 866; Matter of Vario v County Ct., 32 A.D.2d 1038, 1039, mot for lv to app den 25 N.Y.2d 741; United States ex rel. Ushkowitz v McCloskey, 359 F.2d 788).
I am aware of the fact that the American Bar Association has recently expressed a contrary view (American Bar Association, Policy on the Grand Jury [1977], comment 24, p 16). But I see no reason to depart from Chief Judge DESMOND'S analysis in Cirillo. As he put it, "Every citizen is subject to be recalled as a witness before the same Grand Jury or investigating body. There is no reason why one should get immunity as to subsequent contempts by serving a term of imprisonment and paying a fine. The State has a right to his truthful testimony and has a right to try again to get it after he has once been found guilty of contempt and punished" (p 210).
The appellant also cannot take refuge behind a "law of the case" contention that the Trial Judge and the prosecutor were bound by the terms of the "purge" order. The law of the case doctrine is not an inflexible rule (Dictograph Prods. Co. v Sonotone Corp., 230 F.2d 131, 134-135 [LEARNED HAND, J.], reh den 231 F.2d 867, cert dsmd 352 U.S. 883; cf. Martin v City of Cohoes, 37 N.Y.2d 162, 165). Absent a claim of double jeopardy, of which there is none here, a criminal defendant has no vested right in an error of law (United States v Wilson, 420 U.S. 332, 345).
Nor was the earlier Judge's postindictment grant of leave for defendant to purge himself a bar to the prosecution. In criminal no less than in civil cases, where circumstances require it, one Judge has the power to deviate from a decision made by another (State v Richards, 229 N.W.2d 229, 232-233 [Iowa]; People v Milo, 35 A.D.2d 848 [semble]; but see People v Lenti, 46 Misc.2d 682, 685 ). All the more was this so here, where the People could not appeal unless and until the indictment was dismissed (see CPL 450.20; cf. Matter of Alphonso C., 38 N.Y.2d 923, 925). It was most doubtful too that prohibition would have been a viable remedy (Matter of State of New York v King, 36 N.Y.2d 59).
In short, affirmance in this case is dictated not only by the resolution of the stellar issue but of its satellites as well.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES and COOKE concur in Per Curiam opinion: Judge FUCHSBERG concurs in result in a separate opinion in which Judge WACHTLER concurs.
Order affirmed.