Opinion
# 2013-045-038 Claim No. 118655 Motion No. M-84161
11-27-2013
MARTIN TANKLEFF v. THE STATE OF NEW YORK
Claimant's attorney: Neufeld, Scheck & Brustin, LLP By: Barry C. Scheck, Esq. Emma Freudenberger, Esq. Barket, Marion, Epstein & Kearon, LLP By: Bruce A. Barket, Esq. Amy B. Marion, Esq. Miller & Chevalier, Chartered By: Barry J. Pollack, Esq. Dawn Murphy-Johnson, Esq. Counsel for Non-Party Witness: Scaring & Carman, PLLC By: Susan S. Carman, Esq. Defendant's attorney: Hon. Eric T. Schneiderman, Attorney General By: Robert J. Schwerdt, Assistant Attorney General
Synopsis
motion to compel non-party to answer deposition questions after the witness took the 5th.
Case information
+-----------------------------------------------------------------------------+ ¦UID: ¦2013-045-038 ¦ +------------------------------+----------------------------------------------¦ ¦Claimant(s): ¦MARTIN TANKLEFF ¦ +------------------------------+----------------------------------------------¦ ¦Claimant short name: ¦TANKLEFF ¦ +------------------------------+----------------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Defendant(s): ¦THE STATE OF NEW YORK ¦ +------------------------------+----------------------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Claim number(s): ¦118655 ¦ +------------------------------+----------------------------------------------¦ ¦Motion number(s): ¦M-84161 ¦ +------------------------------+----------------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Judge: ¦GINA M. LOPEZ-SUMMA ¦ +------------------------------+----------------------------------------------¦ ¦ ¦Neufeld, Scheck & Brustin, LLP ¦ ¦ ¦ ¦ ¦ ¦By: Barry C. Scheck, Esq. ¦ ¦ ¦ ¦ ¦ ¦Emma Freudenberger, Esq. ¦ ¦ ¦ ¦ ¦ ¦Barket, Marion, Epstein & Kearon, LLP ¦ ¦ ¦ ¦ ¦ ¦By: Bruce A. Barket, Esq. ¦ ¦ ¦ ¦ ¦ ¦Amy B. Marion, Esq. ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦Miller & Chevalier, Chartered ¦ ¦ ¦ ¦ ¦ ¦By: Barry J. Pollack, Esq. ¦ ¦ ¦ ¦ ¦ ¦Dawn Murphy-Johnson, Esq. ¦ ¦ ¦ ¦ ¦ ¦Counsel for Non-Party Witness: ¦ ¦ ¦ ¦ ¦ ¦Scaring & Carman, PLLC ¦ ¦ ¦ ¦ ¦ ¦By: Susan S. Carman, Esq. ¦ +------------------------------+----------------------------------------------¦ ¦ ¦Hon. Eric T. Schneiderman, Attorney General ¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Robert J. Schwerdt, Assistant Attorney ¦ ¦ ¦General ¦ +------------------------------+----------------------------------------------¦ ¦Third-party defendant's ¦ ¦ ¦attorney: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Signature date: ¦November 27, 2013 ¦ +------------------------------+----------------------------------------------¦ ¦City: ¦Hauppauge ¦ +------------------------------+----------------------------------------------¦ ¦Comments: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Official citation: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Appellate results: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦See also (multicaptioned case)¦ ¦ +-----------------------------------------------------------------------------+ Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affirmation In Support with annexed Exhibits A-D; Claimant's Memorandum In Support of the Motion; Counsel for Non-Party Witness' Affirmation in Opposition; Counsel for Non-Party Witness' Memorandum In Opposition; Defendant's Affirmation in Response to Claimant's Motion and Claimant's Reply.
Claimant, Martin Tankleff, has brought a motion seeking an order pursuant to CPLR 3124 compelling non-party witness, Jerry Steuerman to provide answers to the questions posed to him at his deposition taken on June 10, 2013.
The underlying claim in this matter concerns an action brought under Court of Claims Act §8-b, the Unjust Conviction Act for the wrongful conviction of Martin Tankleff after claimant's convictions were overturned on the grounds of newly discovered evidence. Claimant asserts inter alia that this new evidence implicated Jerry Steuerman in the murders of claimant's parents.
Counsel for Jerry Steuerman opposes the motion. Defendant, State of New York, takes no position on this motion.
The Fifth Amendment privilege against self-incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory (Kastigar v United States, 406 US 441, 444 [1972]). An individual can refuse to answer a deposition question when the individual has reasonable cause to believe an answer will provide evidence against them (Lopez v City of New York, 2007 WL 2228150 [ED NY 2007]). This privilege is accorded liberal construction and is afforded not only to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute (Hoffman v United States, 341 US 479, 486 [1951]).
A blanket refusal to testify will not support a fifth amendment claim and is impermissible. "The proper procedure is for the witness to answer, under oath, those questions he can without risking self-incrimination" (Krape v PDK Labs, Inc., 2004 WL 831137 (ED NY 2004]). In order to effectively invoke the privilege against self-incrimination, the witness must raise the privilege with regard to each question asked (State of New York v Carey Resources, 97 AD2d 508 [2d Dept 1983]). "Further, the witness is generally the best judge of whether an answer may tend to be incriminating, though the witness may be required to establish a factual predicate where the danger of incrimination is not readily apparent" (People v Faulk, 255 AD2d 333, 334 [2d Dept 1998], lv denied 93 NY2d 970 [1999]). In this case, Jerry Steuerman was deposed but only answered questions about his name, current address and the names of his children. With respect to the remaining questions, Jerry Steuerman asserted his privilege against self incrimination. After reviewing the deposition transcript, this Court finds that a blanket invocation of the privilege against self-incrimination did not occur.
Next, claimant argues that Jerry Steuerman should be compelled to answer the questions posed at the deposition as he has no reasonable fear of prosecution. Claimant contends that the Tankleff murders, which occurred in 1988, are not the subject of any pending criminal investigation and there is no prosecutor assigned to the matter.
The privilege against self-incrimination protects against real dangers, not remote and speculative possibilities (Zicarelli v New Jersey State Commission of Investigation, 406 US 472, 478 [1972]). However, "the right to assert one's privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution" (Carter-Wallace, Inc. v Hartz Mountain Indus., Inc., 553 F Supp 45, 49 [SD NY 1982] citing In re Master Key Litigation, 507 F2d 292, 293 [9th Cir 1974](emphasis in original). Determinations as to whether the privilege is justified are to be made by the court based upon the particular circumstances of the case (Hoffman at 486). Once the Court determines that the answers would tend to incriminate the witness, it should not speculate whether or not the witness will be prosecuted (United States v Edgerton, 734 F2d 913, 921 [2d Cir 1984]).
Given the history of this matter, claimant's allegation implicating Jerry Steuerman in the murders of the Tankleffs as well as the nature of the specific questions posed questions to Jerry Steuerman, it is evident that his answers could either directly or indirectly implicate him in the murder of the Tankleffs or other activity for which he could be criminally prosecuted and would tend to incriminate him. "While the danger . . . must be real, . . . the assertion of the privilege does not hinge on the trial court's view of the likelihood of prosecution . . . The key question is whether the person can demonstrate that he has 'reasonable cause' to think a direct answer will provide a 'link in the chain of evidence' that may be used against him" (Prudential-Bache Securities, Inc. v Chiacchio, 1987 WL 15589 [SD NY 1987]).
Thus, the Court finds that Jerry Steuerman's use of his privilege against self-incrimination was justified and he cannot be compelled to give testimony in this matter.
Therefore, based upon the foregoing, claimant's motion is denied.
November 27, 2013
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims