author: Chief Judge Breitel.

text:
    The People of the State of New York, Respondent, v Ida Schenkman, Also Known as Ida Freidal, Appellant.
    Argued December 1, 1978;
    decided December 20, 1978

      POINTS OF COUNSEL

      Lawrence Hochheiser and Kenneth J. Aronson for appellant.
    I. Defendant’s answers to questions before the Grand Jury, as a matter of law, cannot be deemed beyond a reasonable doubt to be contumacious, conspicuously evasive, unbelievable or patently false. (People v Renaghan, 40 AD2d 150, 33 NY2d 991; Matter of Finkel v McCook, 247 App Div 57, 271 NY 636; Matter of Ruskin v Detken, 32 NY2d 293; United States v Appel, 211 F 495; People ex rel. Valenti v McCloskey, 6 NY2d 390; People v Tilotta, 84 Misc 2d 170; People v Marinaccio, 90 Misc 2d 128; People v De Feo, 284 App Div 622, 308 NY 595.) II. The trial court’s charge in respect to criminal contempt was prejudicial. (People v Hommel, 47 AD2d 863, 41 NY2d 427; Sheppard v Maxwell, 384 US 333; People v Crimmins, 36 NY2d 230.)

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Brian Rosner of counsel), for respondent.
    I. Appellant’s guilt of criminal contempt, for having given patently evasive, equivocal and inconsistent answers before a Grand Jury, was proved beyond a reasonable doubt. (People ex rel. Valenti v McCloskey, 6 NY2d 390; People v De Feo, 284 App Div 622, 308 NY 595; People v Ianniello, 36 NY2d 137; People v Martin, 42 NY2d 882, 47 AD2d 883; Matter of Ruskin v Detken, 32 NY2d 293; Matter of Finkel v McCook, 247 App Div 57.) II. The court’s charge on the law of criminal contempt was correct. (People ex rel. Valenti v McCloskey, 6 NY2d 390; People v Hommel, 41 NY2d 427; People v Becker, 215 NY 126.)
   OPINION OF THE COURT

Chief Judge Breitel.

Defendant, a bail bond agent called before a Grand Jury investigating usury and extortion, was convicted after jury trial for criminal contempt in the first degree (Penal Law, § 215.51). She was sentenced to an unconditional discharge. The Appellate Division affirmed, one Justice dissenting, and defendant appeals.

The primary issue is whether, in the face of extensive questioning, defendant’s inability to recall, or testify consistently about, recent business transactions involving large sums of money was so evasive or falsely equivocal and contradictory as to amount to no answer at all.

There should be an affirmance. It was not unreasonable to expect defendant, an active businesswoman throughout her life, to recall the approximate dates and purpose of $1,000 payments made by her on loans taken out nine and four months earlier. The loans were critical to her business as a bail bond agent, and the questioner provided more than enough cues, through restatement and repetition, to stimulate her recollection. (See People v Pomerantz, 46 NY2d 240, decided herewith; cf. People v Tyler, 46 NY2d 251, decided herewith.)

The defendant, 70 years old at the time of trial, has been in the insurance business since she was 15, and a bail bond agent for the last 25 years. Called in July, 1972 before a Grand Jury investigating "loan-sharking”, that is, crimina} usury and grand larceny by extortion, defendant was granted immunity and was told that she was not a target of the investigation. She made three Grand Jury appearances.

Evidence before the Grand Jury indicated that one Vincent Rizzo, a suspected loan shark, had lent money to defendant, that defendant had repaid him, and that Rizzo had telephoned defendant a number of times to demand money. Included in the evidence before the Grand Jury was a telephone conversation, wiretapped on March 28, 1972, in which defendant, Rizzo, and one Patty Marino, or "Fatso”, discussed two $1,000 payments by defendant to Rizzo.

Suspecting that the $1,000 payments were, in part, usurious interest, the questioner concentrated on Rizzo’s most recent loans to defendant and defendant’s payments on the loans. At one point defendant did tell the Grand Jury that in two transactions, one in November, 1971 and the other in March, 1972, she had borrowed a total of $7,500. According to defen- ' dant, however, the loans, which she repaid in weekly installments, were unrecorded and interest free.

Her testimony was otherwise not illuminating. With respect to the loans, defendant altered her statements about how many there were and the amounts. Although defendant conceded that $1,000 payments were for her unusually large, she could not be precise about why she made them. First describing the payments as in satisfaction of the loans, and later saying they were to ensure her continued ability to borrow money interest free, defendant ultimately professed inability to recall. While defendant kept precise general business records, of her payments to Rizzo she only made notes on a slip of paper, relying on him to advise her of what she owed. When excused to find those notes, however, she returned empty-handed.

More than 1,000 questions were asked defendant in July, 1972, a significant portion relating to the Rizzo loans. The following is but illustrative:

"Q. Did you ever pay [Rizzo] $1,000 at one time on this loan?

"A. Did I ever pay him back a 1,000?

"Q. Yes, on this particular loan?

"A. No, I don’t think so. I don’t remember, I will be honest with you, I really don’t.

* * *

"Q. * * * on March 28, 1972 did you pay a person called Fatso $1,000?

"A. I don’t remember. I really don’t.

"Q. Did you tell Vincent Rizzo that you did?

“A. I don’t remember

* * *

"Q. Do you remember giving him $1,000?

“A. Yes, I do.

"Q. You did give him $1,000?

"A. Yes, but I don’t know what date.

* * *

"Q. How often have you paid Vincent Rizzo $1,000 at one time?

"A. Not very often.

"Q. How many times?

"A. Oh, on two or three occasions.

"Q. Within the past year? Within the past, say from October 1971 to the present, how many times have you paid him $1,000?

"A. Maybe twice.

"Q. Okay. You remember the two times you paid him $1,000?

"A. No, I don’t remember, sir.

* * *

"Q. [The two payments of $1,000 were] to repay the loan, the money he gave you?

"A. That is right, to defray the loan, yes.

* * *

"Q. Why did you pay him $1,000?

"A. In order to keep good faith.

* * *

"Q. * * * on March 28th, 1972, you paid Patty Marino a $1,000, is that correct?

"A. I don’t remember that, I really don’t.

"Q. Was it the early part of March, March 28th, 1972?

"A. I don’t remember that.

"Q. Do you deny paying Patty Marino a $1,000 on March 28th, 1972 with a promise to pay another $1,000 soon after?

"A. I don’t remember that.

"Q. Do you deny it happening?

"A. I don’t remember it sir.

"Q. All right. Isn’t it a fact that yesterday you told this grand jury that you remember that you paid him a $1,000?

"A. Well, why should he give me $4,000. I don’t remember that then.”

As the examination was ending, defendant conceded that her testimony "doesn’t make sense”.

Defendant was charged with two counts of perjury in the first degree and two counts of criminal contempt in the first degree. At trial the People relied largely on the Grand Jury minutes. Defendant continued to allege that she had responded in the Grand Jury to the best of her ability. Although acquitted of the perjury charges, defendant was convicted on the contempt counts, one of which was, however, dismissed at sentencing on consent of the prosecutor. The fourth count, on which defendant stands convicted, charges her with giving "conspicuously unbelievable, evasive, conflicting, equivocal and patently false answers” to questions about the $1,000 payments.

It is not just a flat refusal to answer that is punishable as criminal contempt under section 215.51 of the Penal Law. Similarly within the statute are "false and evasive profession of an inability to recall” and hopelessly contradictory responses repeatedly changed or altered (People v Ianniello, 36 NY2d 137, 142, cert den 423 US 831; see People v Martin, 47 AD2d 883, 884, affd 42 NY2d 882; compare People v Renaghan, 33 NY2d 991, 992; see, also, People ex rel. Valenti v McCloskey, 6 NY2d 390, 398, app dsmd 361 US 534). With either kind of response the jury may conclude that the testimony is an answer in form only, tantamount to no answer at all.

Pertinent, although arising in a different context, are People v Tyler (46 NY2d 251, supra) and People v Pomerantz (46 NY2d 240, supra), decided today. In both cases the validity of a perjury conviction for testimony given to the Grand Jury was tested, and in each instance the nature of the event that was the object of questioning was critical in assessing the witness’ capacity to recall. In the Tyler case, the conviction could not stand because the alleged false testimony concerned peripheral details of time and place of a meeting not shown to be material to the Grand Jury investigation and was tainted by a purpose to trap the defendant into perjury. In the Pomerantz case, on the other hand, where the judgment of conviction stands, the perjurious answers related, in part, to the substance of a meeting at which corrupt practices then under investigation by the Grand Jury were discussed by defendant, and the purpose of the questioning was to establish proof of antecedent crime. Pivotal in both cases, also, was whether the events or the details to be recalled were, on the record, significant and therefore memorable.

So, too, the jury’s finding in this case is supported by legally sufficient evidence because the large sums borrowed by defendant from Rizzo were memorable. Defendant, active in insurance all her life, was an astute operator in an unusually exacting and earthy business. Due to the nature of the business, survival turned on ability to keep track of moneys. As defendant asserts, she has assumed liability for millions of dollars in the course of her career. Money is not incidental to writing bail bonds; money is largely the essence of it.

It is thus highly unlikely that defendant did not meticulously, even if "off the books”, record her debts and her payments to Rizzo and Marino. She admitted that she kept detailed records in her business. She asserted, however, that she was unsuccessful in locating the entries covering her loans from and payments to Rizzo and Marino. Even if it be true that she relied on Rizzo to keep the paper account of these loans, that a person with defendant’s experience and business sense did not have a lively and independent recollection is incredible. The prosecutor was not questioning about payments of a few dollars, but lump sums of $1,000 each, sums which defendant admitted were for her unusually large. Like the blind man, or even an astute illiterate, who does not depend on written entries to document his affairs, one may be sure that the seasoned defendant, because it would be crucial to her, remembered precisely how and why and for what she had repaid Rizzo.

It is significant, too, that the prosecutor, like the questioner in the Pomerantz case (supra), gave defendant ample cues to stimulate her recollection. Substantial time was devoted to the topic, and the questions, like those in the Pomerantz case, were repeated, restated, and elaborated upon until it was evident that further pressing would produce only the same evasive and contradictory responses.

Of course, not every person called before the Grand Jury is able to satisfy the prosecutor’s pursuit of evidence. But defendant’s equivocation, her denials of recollection, and her hopeless weaving and dodging were not the responses of a truth-telling witness. The significance of the transactions having been demonstrated, defendant’s lack of recollection and evasions are, on their face, explainable only as contemptuous, that is, answers in form only, tantamount to no answers at all. The jury’s finding that she was guilty of criminal contempt, therefore, was amply supported.

Defendant’s other point, that the court’s charge amounted to a direction to return a verdict of guilty, does not require extensive discussion. Defendant objects to the third of three illustrations used by the court in explaining evasive contempt. "Another example might be a consistent lack of memory or recollection of all transactions for a recently passed period relating to large and significant expenditures covering a principal activity or a business. Now this wouldn’t be understandable except as a deliberate and contemptuous evasion of the questions put.” The illustration, taken from People ex rel. Valenti v McCloskey (6 NY2d 390, 399-400, supra, quoting People v De Feo, 284 App Div 622, 624-625, revd on other grounds 308 NY 595), was followed by an enumeration of what factors could be considered in determining whether defendant’s "professed inability to recall was honestly stated or was a deliberate and intentional evasion”. The illustration was apt and concerned the core of the case; it did not so detail the prosecution’s case as, in effect, to advise or direct the jury what verdict it should render. Even if the illustration were closer to the facts than it should have been, and it certainly would have been more conservative to make it a little less "apt”, there could be no harm. That was what the case was about and what it had to be about. In short, defendant’s argument amounts to no more than that "the shoe fit” too well. It did.

As in People v Pomerantz (46 NY2d 240, supra), a caveat is appropriate. A formalistic adherence to any kind of questioning which does not in fact relate to a search for evidence of antecedent crime will not suffice to sustain a conviction for the crime of contempt. There must not only be an appearance of the pursuit of evidence of antecedent crime but it must also be the reality.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

       Rizzo was ultimately indicted by the New York County Grand Jury for extortion and related crimes. The record indicates, however, that the indictment was dismissed in light of his conviction on Federal charges, for which a substantial sentence was imposed. Marino, too, was indicted by the State Grand Jury, but appears to have fled.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v Joshua Pomerantz, Respondent.
    Argued November 29, 1978;
    decided December 20, 1978

      POINTS OF COUNSEL

      Charles J. Hynes, Deputy Attorney-General (Richard D. Carruthers, T. James Bryan, Arthur Weinstein and Philip Stern of counsel), for appellant.
    I. The investigatory technique used by the Deputy Attorney-General to discover whether New York State nursing home operators were taking kickbacks from their suppliers was proper and the Grand Jury was entitled to pursue this inquiry. (Matter of Hynes v Moskowitz, 44 NY2d 383; Matter of Sigety v Hynes, 38 NY2d 260; United States v Russell, 411 US 423; People v Noelke, 94 NY 136; Pettalino v State of New York, 24 AD2d 524; United States v Wilmoth, 325 F Supp 1397; Lewis v United States, 385 US 206; People v Rosenberg, 45 NY2d 251; Matter of Grand Jury Subpoenas, 58 AD2d 1; United States v Morton Salt Co., 338 US 632.) II. The evidence at trial was sufficient to prove appellant’s guilt on each of the three perjury counts. (People v Goldman, 21 NY2d 152; People v Dunleavy, 41 AD2d 717, 33 NY2d 573; United States v Chapin, 515 F2d 1274; People v Clemente, 285 App Div 258, 309 NY 890; People v Ianniello, 36 NY2d 137; United States v Carson, 464 F2d 424; United States v Lococo, 450 F2d 1196; United States v Stone, 429 F2d 138; Wood v People, 59 NY 117; People v Courtney, 94 NY 490; People v Stanard, 42 NY2d 74.) III. Respondent was fairly questioned before the Grand Jury. (People v Tyler, 62 AD2d 136; People v Isaacson, 44 NY2d 511; Bronston v United States, 409 US 352.) IV. Respondent was not denied the right to consult with his attorney about the questions asked during the Grand Jury proceeding and he never refused to answer questions on that ground. Rather, he committed perjury. (People v Ianniello, 21 NY2d 418.)

      Julia Pamela Heit for respondent.
    I. The determination of the court below that the intent of the Special Prosecutor’s office in calling respondent before the Grand Jury was to set the scene for a subsequent perjury indictment against him, rather than to obtain legitimate information about corruption within its jurisdiction, was proper in all respects and should be affirmed by this court. (People v Pomerantz, 63 AD2d 457; People v Isaacson, 44 NY2d 511; United States v Russell, 411 US 423; Sorrells v United States, 287 US 435; Roehin v California, 342 US 165; United States v Marion, 404 US 307; United States v Camporeale, 515 F2d 184; People v Tyler, 62 AD2d 136; Bronston v United States, 409 US 352; Brown v United States, 245 F2d 549; Masinia v United States, 296 F2d 871.) II. Not only did the Special Prosecutor entrap respondent into committing the crime of perjury, but also, the prosecutor was simultaneously exceeding the jurisdictional authority of the Grand Jury by questioning respondent about a New Jersey incident, since the Grand Jury lacked jurisdiction to indict respondent for perjury where the underlying acts of this crime arose outside the State. (Murphy v Waterfront Comm. of N. Y. Harbor, 378 US 52; Kastigar v United States, 406 US 441; Counselman v Hitchcock, 142 US 547; People v Lev, 91 Misc 2d 241; People v Masiello, 28 NY2d 287; United States v Phillips, 540 F2d 319.) III. Since respondent’s allegedly perjurious responses regarding the New Jersey incident were not material as a matter of law to the Grand Jury’s investigation in Kings County, or related to any cognizable State offense, the Grand Jury could not return an indictment charging respondent with the crimes of perjury in the first degree. IV. The determination of the court below that the prosecutor improperly refused to permit respondent to consult with his attorney upon his request was proper in all respects and should be affirmed by this court. (People v Ianniello, 21 NY2d 418; People v De Salvo, 32 NY2d 12; People v Renaghan, 40 AD2d 150; People v Ward, 37 AD2d 174; United States v Calandra, 465 F2d 1218.) V. Because of the multiple defects in the indictment, it was impossible for the jury to fairly assess the question of respondent’s guilt, and it was equally impossible for the appellate courts to review this issue. (People v

      Richlin, 74 Misc 2d 906; People v Howard, 27 AD2d 796; People v Klipfel, 160 NY 371; Yates v United States, 354 US 298; Stromberg v California, 283 US 359; United States v Natelli, 527 F2d 311.)
   OPINION OF THE COURT

Chief Judge Breitel.

This is another appeal testing the validity of a perjury prosecution for testimony given before a Grand Jury (see People v Tyler, 46 NY2d 251, decided herewith; see, also, People v Schenkman, 46 NY2d 232, decided herewith). Defendant, a supplier of paper goods and household chemicals to nursing homes, was convicted after jury trial on three counts of perjury in the first degree (Penal Law, § 210.15). He was sentenced to indeterminate concurrent terms of three years on each count. The Special Prosecutor for Nursing Homes appeals from the Appellate Division’s unanimous reversal and dismissal of the indictment.

Involved is defendant’s false testimony before a Kings County Grand Jury investigating fraud in the nursing home industry in New York. The primary issue is whether a prosecution for perjury before the Grand Jury is defective solely because the false testimony concerns an out-of-State meeting, arranged by the Special Prosecutor, between defendant and an out-of-State nursing home operator working as an undercover agent. Also at issue is whether the prosecutor’s questioning about the meeting, at which a scheme to defraud the Medicaid program was discussed, was aimed solely or substantially at trapping defendant into giving false testimony.

The order of the Appellate Division should be reversed. The meeting was material to the authorized substantive investigation of the Grand Jury, namely, exposure of corruption in the New York nursing home industry. Resort to an undercover agent to elicit defendant’s knowledge is a legitimate investigatory technique. The meeting which took place in New Jersey disclosed defendant’s familiarity, with fraudulent New York practices. Moreover, the prosecutor’s questioning was not a trap to support a prosecution for perjury. The subject matter of the meeting should have made it memorable, and the prosecutor’s repetition and restatement provided ample cues to stimulate defendant’s recollection (see People v Schenkman, 46 NY2d 232, supra, decided herewith). If indeed a trap was set, it was aimed not at perjury, but at flushing out the truth. (Compare People v Tyler, 46 NY2d 251, supra, decided herewith.)

In connection with the investigation of nursing home operators and their suppliers, the Special Prosecutor discovered widespread scandalous abuse of the Medicaid reimbursement program. One common scheme was for suppliers to provide customers with inflated or fictitious bills to cover “kickbacks”. Although full Medicaid reimbursement would be claimed and received by the home, the overpayment made by the home to the supplier would eventually be shared by the perpetrators.

To further the investigation the prosecutor enlisted one Ira Feinberg, then recently convicted in Federal court on charges of securities fraud and conspiracy. It was agreed that Feinberg, an owner of nursing homes, would invite several supply companies to the newer of his two New Jersey facilities. The true purpose of the meetings was to discover involvement by suppliers in illegal kickback schemes in New York State.

The Pomerantz Paper Corp. of Brooklyn, of which defendant is president, has been supplying nursing homes with paper goods and household chemicals since 1971. Defendant’s company does business with more than 30 homes, the majority located in the New York City metropolitan area. It also has about eight customers in New Jersey. At the invitation of Feinberg, defendant visited Feinberg’s Manor Nursing Home in Emerson, New Jersey, on July 15, 1975.

Following a discussion of the products needed, defendant was asked about "special deals”. Although he first skirted the subject, defendant ultimately described an “arrangement” whereby a "certain percentage [is] put onto the bill”. He also explained the more risky use of fictitious invoices. Offering to "work something out” with Feinberg, defendant conceded that he would favor Feinberg with benefits he was conferring on others. The conversation was surreptitiously recorded.

On March 1, 1976, a Special Grand Jury was impaneled in Kings County to investigate nursing home corruption. Of particular interest was the extent to which suppliers were giving kickbacks. Defendant was called to testify on May 21, 1976, 10 months after his meeting with Feinberg. On his own request, he was granted immunity.

After some inquiry into defendant’s personal background and the operation of his company, the prosecutor had defendant list the nursing homes he serviced and the particular persons with whom he dealt. Questions about other homes and persons connected with them followed. With respect to Feinberg defendant was asked:

"Q. Have you ever done any business or solicited any business from the Manor Nursing Home in Emerson New Jersey?

"A. I don’t remember.

"Q. That is run by a Mr. Ira Feinberg?

"A. I don’t recall.

"Q. Have you ever met Mr. Feinberg?

"A. I don’t remember.

"Q. Mr. Feinberg also runs the Manor Nursing Home in Tenafly New Jersey?

"A. I don’t know where Tenafly is.

"Q. Well, have you ever met Mr. Feinberg?

"A. I don’t remember.

"Q. Is it possible?

"A. Sure, it is possible.”

A few other names were mentioned, but the questioning returned to Feinberg:

"Q. Once again I want to ask you whether you have ever met or solicited business from Mr. Ira Feinberg who had or has nursing home interests in among others the Manor Nursing Home at Tenafly, New Jersey, and the Manor Nursing Home in Emerson, New Jersey?

"A. I don’t remember, I don’t remember, the name does not strike — the name, I don’t remember the name.

"Q. Is it possible?

"A. It is — sure, it is possible.

"Q. Well, how likely is it?

"A. I don’t know.

"Q. Do you have any recollections at all of meeting Mr. Ira Feinberg?

"A. None at all. I don’t know where those places are.”

Defendant’s familiarity with kickbacks was the object of extensive examination. Defendant denied not only participating in wrongdoing, but asserted that he had only newspaper knowledge. The following are but a few examples among many:

"Q. Have you ever heard of or do you have any personal knowledge of the alleged practice in the nursing home industry of vendors inflating their bills to nursing homes?

"A. Just what I read in the papers.

"Q. You have no personal knowledge of that practice?

"A. No, sir.

"Q. You have never engaged in that practice yourself?

"A. No, no sir.

"Q. Have you ever heard of or do you have any personal knowledge of the alleged practice in the nursing home industry of vendors giving extra bills or invoices to nursing homes?

"A. Just what I read in the paper.

"Q. You have never engaged in that practice yourself?

"A. No.”

"Q. I want to be very clear on this, to the best of your knowledge has any nursing home owner, operator, administrator, or other employee that you have solicited business from ever in words or substance requested or asked you for any special deals so that he can make a few dollars?

"A. I cannot remember every person who I dealt with in business if that ever came across.”

"Q. Mr. Pomerantz, have you ever said, suggested, or told any nursing home owner, operator, administrator, or other employee in words or substance that he can have 10% added onto his bills?

"A. You’ve asked me the question four times already.

"Q. Please answer. This will be the last time in that form at least.

"A. I must say I don’t recollect ever having offered anyone in anyway any type of kickback.”

"Q. Have you ever said, suggested, or acknowledged in any way to any nursing home owner, operator, administrator, or other employee that you would add on 10% to their bills and then give them back the 10% in cash?

"A. I cannot recall making such a statement.

"Q. If you had made such a statement you would recall it, would you not?

"A. I sure would.

* * *

"Q. I want you to listen to my questions very carefully because they are different. Have you ever told any nursing home owner, operator, administrator, or other employee in effect that you give other people in the nursing home industry 10% inflated bills?

"A. To the best of my recollection I don’t remember ever making such a statement.

"Q. Have you ever said, suggested, or told any nursing home owner, operator, administrator, or other employee that when you make such deals it is on that basis, meaning on the basis of a 10% inflated bill?

"A. To the best of my recollection I don’t remember making such a statement.”

In a last effort, the prosecutor raised Feinberg’s name for the third time, and, consistent with his earlier responses, defendant said he did not recall meeting him.

At one point in the questioning defendant asked to speak to his lawyer. The prosecutor indicated he had only one further question. Although more than 20 questions followed, defendant did not repeat the request. Finally, before concluding, the prosecutor warned defendant he could be indicted for perjury, but defendant declined the invitation to change his testimony.

A three-count indictment for perjury in the first degree resulted. Count one charges defendant with falsely denying knowledge of kickbacks; the thrust of count two is that defendant falsely stated he never discussed kickbacks with operators; and count three relates to defendant’s statements that he had never offered to arrange a kickback scheme.

At trial the principal witness for the People was Feinberg. Defendant explained his Grand Jury testimony about Feinberg as a lapse in memory. According to defendant, with the exception of Feinberg, he had never offered kickbacks to an operator. He only “play[ed] along” with Feinberg so as not to "turn him off”.

Neither defendant nor the Appellate Division question the Special Prosecutor’s authority to investigate defendant as a supplier of nursing homes in New York. As in People v Tyler (46 NY2d 251, supra), also decided today and involving a conviction for perjury before the Grand Jury, it is the methods employed by the prosecutor that are challenged. Dismissal of the indictment was required in Tyler because defendant’s false answers were in response to questions designed substantially to extract perjury, manifesting no palpable interest in evoking facts material to the authorized underlying inquiry. In this case, however, the objections do not withstand analysis.

There is no basis for arguing that the prosecutor improperly enlisted the aid of a convicted felon to determine whether defendant had valuable knowledge. The use of an undercover agent to expose corruption is an acceptable and traditional investigatory technique (see, e.g., Lewis v United States, 385 US 206, 210, reh den 386 US 939; cf. Model Penal Code, § 2.10, Comment 2 [Tentative Draft No. 9, 1959]). Nor is there basis for criticizing the situs of the meeting. Obviously, neither the Special Prosecutor nor the Grand Jury would purport to act on corruption beyond the borders of New York. It does not follow, however, that conversation in New Jersey with New York content is irrelevant to investigation of crime in New York.

Defendant’s conversation with Feinberg, albeit in New Jersey, revealed much about practices in New York. In addition to detailing how bills would be inflated by 10% to defraud authorities, defendant described the use of fictitious receipts for an even higher illegal return. Also potentially useful to the authorities was defendant’s explanation of how a profit of more than 10% could be made on chemicals, since chemicals were a "blind spot” with the regulatory authorities.

At no point did defendant suggest that the practices he was describing were limited to New Jersey. In fact, the majority of homes serviced by defendant are in New York. It is true that the New Jersey meeting did not produce a list of suspected New York operators. That, however, was precisely why defendant was called before the Grand Jury. Defendant was by no means the sole or any target of the investigation; indeed, he was granted immunity for his testimony. It was information about those accepting illegal kickbacks that the prosecutor wished and hoped to obtain from defendant. Put another way, the prosecutor, in calling defendant before the Grand Jury based on the information uncovered by Feinberg, had a legitimate law enforcement objective material to an authorized substantive investigation in New York (compare People v Tyler, 46 NY2d 251, supra, decided herewith).

The contention that the prosecutor’s questioning was aimed substantially at trapping defendant into giving false testimony is baseless. In sharp contrast to the interrogator in the Tyler case, the prosecutor questioning defendant did not limit his inquiry to peripheral details of a transaction not demonstrated to be significant or otherwise memorable. The recording made by Feinberg proves that a corrupt arrangement was in fact discussed at the New Jersey meeting. The encounter was thus a significant one, and would be memorable 10 months later, even if, incredibly, it was defendant’s first conversation about nursing home corruption. If it were not, then defendant’s other denials were patently false. There is no escape from his dilemma.

Even had defendant, improbably, forgotten his meeting with Feinberg, the prosecutor provided ample cues to stimulate defendant’s recollection. Unlike the interrogator in the Tyler case (supra), who evinced no interest in having defendant give a convincing narrative of the meeting about which he was questioned, the prosecutor questioning defendant raised Feinberg’s name three times, provided the name of the nursing home Feinberg was about to open, and asked defendant whether he had ever met Feinberg in Emerson, New Jersey. That the precise date of the meeting was not given to defendant, or the transcript of the recording read, is immaterial. It is unreasonable to suggest that defendant’s recollection would have improved had the exact meeting date been given to him. Nor should the prosecutor be required to confront defendant with the recording, lest he conform his testimony to what was already known and fail to add to the prosecutor’s knowledge. In fact, on the trial, as the prosecutor argues, defendant, when then confronted with the recording, tailored his testimony to attempt vainly to overcome the damning proof against him.

On the general topic of illegal kickbacks, the prosecutor, as the quoted excerpts indicate, unrelentingly pressed defendant. Much like the prosecutor in People v Schenkman (46 NY2d 232, supra, decided herewith), the key questions were repeated, restated, and elaborated upon until it was apparent that further effort was fruitless. With respect to the 10% figure, for example, even defendant complained: "you’ve asked . me the question four times already.” More than 80 questions, consuming over 20 pages of testimony, were put to defendant. The determination to extract whatever pertinent information defendant possessed could not be more evident.

It is true that in summation the prosecutor admitted wanting "to trap Joshua Pomerantz” and "get knowledge about what he did.” Critical in distinguishing this case from the Tyler (supra) case, however, is that it is not into giving false testimony that the questioner sought to trap defendant. Here the “trap”, as the prosecutor truly said, was aimed at ferreting out the facts. In short, the interest in furthering the investigation is manifest, and the technique employed unobjectionable.

One more matter should be addressed. The three counts of perjury involved 55 false statements, 54 of which had been given by the time defendant asked to talk with his lawyer. The one false statement made by defendant that followed his request is merely the last of 32 assignments of perjury charged in count two. Failure to honor the request was therefore a triviality. The Appellate Division’s suggestion, moreover, that confusion about the scope of his immunity prompted defendant to request to see his lawyer, is unsupported in the record.

This case, in sum, presents the counterpoint to People v Tyler (46 NY2d 251, supra, decided herewith). Both the meeting in New Jersey and the questions put to defendant before the Grand Jury were aimed at uncovering, through defendant, corruption in the New York nursing home industry. That a perjury conviction eventuated cannot be assigned to the prosecutor; that was defendant’s own doing. The examiner met his burden of demonstrating that the interrogation before the Grand Jury had a legitimate substantive investigatory purpose. For all the reasons indicated, there was no abuse of the Grand Jury process and oath by the prosecutor.

Before concluding, it is essential to add a caveat. An investigatory examination which may seem to parallel what is approved in this case would not stand if on the record it were demonstrable that what was ultimately involved was a sophisticated facade to trap the defendant into a new crime of perjury or contempt, and not to establish evidence of antecedent crime. The court is concerned with substance, not form.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to the Appellate Division for review of the facts.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.


text:
    The People of the State of New York, Appellant, v Andrew R. Tyler, Respondent.
    Argued October 17, 1978;
    decided December 20, 1978

      POINTS OF COUNSEL

      John F. Keenan, Deputy Attorney-General (Thomas A. Duffy, Jr., Mark M. Baker and Mary H. Smith of counsel), for appellant.
    I. The questions underlying the second, third, and fourth counts of the indictment, when viewed within the context and purpose of respondent’s entire interrogation, were clear and unambiguous and sufficiently material to the subject of the Grand Jury’s inquiry. In the face of respondent’s unequivocal responses, each count of perjury in the first degree was supported by legally sufficient evidence with the issues of his meaning, intent, and truthfulness becoming questions for the triers of fact. (United States v Nickels, 502 F2d 1173, 426 US 911; United States v Rook, 424 F2d 403, 398 US 966; United States v Laite, 418 F2d 576; United States v Abrams, 568 F2d 411; United States v Raftery, 563 F2d 965; United States v Alberti, 568 F2d 617; United States v Paoli

      celli, 505 F2d 971; United States v Jones, 374 F2d 414, 392 US 299; United States v Corr, 543 F2d 1042; United States v Chapin, 515 F2d 1274, 423 US 1015; United States v Marchisio, 344 F2d 653.) II. The prosecutor, as advisor to a Grand Jury having jurisdiction to conduct an investigation, was not required to confront respondent, who had lied during the investigation, with the evidence already before the Grand Jury which established that respondent’s direct, terse and unequivocal answers were false. (Maison & Co. v Hynes, 50 AD2d 13; United States v Bisceglia, 420 US 141; Blair v United States, 250 US 273; Masinia v United States, 296 F2d 871; Matter of Nigrone v Murtagh, 46 AD2d 343, 36 NY2d 421; United States v Nickels, 502 F2d 1173; La Rocca v United States, 337 F2d 39; United States v Mandujano, 425 US 564; People v Monaghan, 55 AD2d 1056; People v Alberga, 57 AD2d 755.)

      Milton S. Gould, Saul S. Streit and Richard F. Czaja for respondent.
    I. The false statements alleged were not actually made and were made on the basis of insufficiently precise questioning. (People v Rinaldi, 34 NY2d 843; People v Blumenthal, 55 AD2d 13; Bronston v United States, 409 US 352; United States v Slawik, 548 F2d 75; United States v Tonelli, 577 F2d 194; United States v Brumley, 560 F2d 1268; United States v Abrams, 568 F2d 411; United States v Bonacorsa, 528 F2d 1218, 426 US 935; United States v Raftery, 563 F2d 965; United States v Alberti, 568 F2d 617.) II. There was insufficient evidence that the false statements alleged were made with perjurious intent. (People v Samuels, 284 NY 410; People v Hattemer, 4 AD2d 775, 4 NY2d 835; People v Alberga, 57 AD2d 755; People v Rinaldi, 44 AD2d 745, 34 NY2d 843.) III. There was insufficient evidence that the false statements alleged were material to the Grand Jury’s inquiry. (United States v Slawik, 548 F2d 75; People v Blumenthal, 55 AD2d 13; People v Perillo, 48 AD2d 862; Brown v United States, 245 F2d 549; People v Valerius, 31 NY2d 51; People v Alberga, 57 AD2d 755; People v Monaghan, 55 AD2d 1056; Wood v People, 59 NY 117; People v Perna, 20 AD2d 323.) IV. The prosecutor was required to prod the recollection of defendant and to indicate the importance of the questions asked. (People v Isaacson, 44 NY2d 511; People v Alberga, 57 AD2d 755; People v Monaghan, 55 AD2d 1056; Brown v United States, 245 F2d 549; People v Lombardozzi, 35 AD2d 528, 30 NY2d 677; People v Phillips, 14 Misc 2d 565; United States v Lazaros, 480 F2d 174, 415 US 914; United States v Chevoor, 526 F2d 178, 425 US 935.) V. The judgment of conviction should have been reversed on the basis of the additional grounds urged in the court below. (People v Santiago, 15 NY2d 640; People v Milano, 59 AD2d 852; People v Stanard, 32 NY2d 143; People v Green, 35 NY2d 437; People v Miller, 35 NY2d 65; Matter of Dondi v Jones, 40 NY2d 8; People v Sam, 49 AD2d 732.)
   OPINION OF THE COURT

Chief Judge Breitel.

Based on testimony he gave before a Grand Jury, defendant, a Supreme Court Justice, was convicted after jury trial on three counts of perjury in the first degree (Penal Law, § 210.15). He was sentenced to probation. The Special Prosecutor appeals from the Appellate Division’s unanimous reversal and dismissal of the indictment.

There should be an affirmance.

Involved are defendant’s false answers to questions limited to the outward details of place and time of a single meeting between defendant and a reputed criminal character. The primary issue is whether a prosecution for perjury may be based on such false answers where the prosecutor, in his questioning, demonstrated no palpable interest in eliciting facts material to the authorized substantive investigation of antecedent crime or official misconduct. A secondary issue is whether the false answers about peripheral details of the single meeting may support a perjury prosecution without the prosecutor laying enough of a foundation to recall to the witness’ mind what, without some prodding, may have in truth escaped the witness’ recollection. In resolving the issues it is concluded that the conviction may not stand, and the indictment was properly dismissed as a matter of law.

First elected to the Civil Court in 1967, defendant became a Supreme Court Justice in January, 1970. Admitted to the Bar sometime after World War II, for the 18 years before he became a Judge defendant had been a lawyer practicing largely on his own and devoting about 50% of his time to criminal matters.

In February, 1975 an Extraordinary Grand Jury was charged, among other things, with investigating the relationship of defendant with certain known gambling figures. The inquiry, which included 20 sessions at which 22 witnesses were heard, was not concluded until Ocotber, 1976. Among the gamblers was one Raymond Marquez, also known as "Spanish” Raymond, the reputed head of one of the largest illegal gambling operations in New York. The Grand Jury was informed that Marquez, who was released from Federal prison in April, 1975, had been convicted of both Federal and State crimes, including interstate racketeering, gambling policy, and contempt.

Each of the counts charged in the instant indictment for perjury before the Grand Jury arises out of defendant’s answers to questions concerning a single meeting with Marquez. According to the acting forewoman of the Grand Jury, the inquiry was aimed at uncovering any bribery, bribe receiving, or official misconduct.

Three police officers involved in an extensive personal surveillance of defendant testified to the Grand Jury that on May 16, 1975, after the Grand Jury had been convened, they saw Marquez in defendant’s company. According to the officers, after some activity that suggested he may have been waiting for someone, defendant met Marquez and his wife near Lincoln Center in Manhattan. They drove about 10 blocks in defendant’s automobile to Patsy’s Restaurant on West 56th Street, and remained there for over an hour. Upon leaving, defendant and Marquez allegedly spoke for 10 minutes, while Mrs. Marquez sat in defendant’s automobile. Defendant then drove the two back to where their own automobile was garaged. Substantially the same testmony was given by the officers at trial.

Defendant appeared before the Grand Jury on four occasions, and on two was questioned about Marquez. Other areas of inquiry were defendant’s background and how he came to be a Judge, defendant’s acquaintance with other reputed gamblers, and bail applications granted by defendant out of the ordinary courtroom setting.

On March 2, 1976, defendant’s second appearance, defendant testified that he knew Marquez as a man who had been convicted "some years ago for policy”, and recalled representing him as a lawyer "in the fifties” in a case that "had something to do with gambling.” When asked about contacts with Marquez since defendant had become a Supreme Court Justice, defendant denied communicating with him. He remembered, however, that as he was going to his courthouse chambers one day he saw Marquez being escorted by Marshals to Federal court.

Marquez was not mentioned when defendant appeared before the Grand Jury for the third time on May 18, 1976. In his final appearance two days later, however, Marquez was again the subject of inquiry. This time, when asked about communications with Marquez, defendant, who later explained at trial that a discussion he had had with his wife following his earlier appearance had refreshed his recollection, recalled the May 16 meeting:

"Q. [Y]ou testified before that you saw him on occasion when he was being transported by federal marshals. You said that was the only time you’d seen him since you’d become a judge. Is that the occasion you’re talking about?

"A. No, that’s not the occasion I’m talking about.

"Q. What is the occasion that you’re talking about?

"A. I saw him on an occasion when he was with his wife on 58th Street in Manhattan.

"Q. When was that?

"A. I couldn’t fix the dates. Probably somewhere around May. May of '75, somewhere around there.

"Q. Can you describe that in any more detail, that meeting or encounter or whatever it was on 58th Street?

"A. Yes. It was outside of Patsy’s Restaurant. I think that’s where it was.

"Q. What were you doing? Were you walking down the street, driving, in the restaurant? What was—

"A. I was on my way into Patsy’s.

"Q. What happened?

"A. I saw him and his wife.

"Q. What did you do?

"A. We greeted each other, asked him how he was. He asked me how I was. Asked me how things were getting along, and I asked him the same thing.

"Q. This was out on the street?

"A. That was on the street.

"Then they walked into Patsy’s and I walked into Patsy’s.

"Q. Were you alone or with anyone else?

"A. I was alone. I was waiting for my daughter.

"Q. What happened after you went into Patsy’s?

"A. I think I had a drink.

"Q. Was there a bar there, or did you have it at the table.? "A. Sitting right at the entrance of the door, I had a drink at the door.

"Q. Did you have a drink alone?

"A. No. He and his wife sat down.

"Q. How long did that take?

"A. About ten or fifteen minutes.

"Q. What happened then?

"A. I got up and left.

"Q. And they remained in the place?

"A. I believe so.

* * *

"Q. Did you have a previous arrangement to meet with Mr. Marquez at that location?

"A. No, sir.

"Q. It was purely chance?

"A. Yes, sir.

"Q. When you arrived there did you — withdrawn. What did you discuss during the course of that meeting with Mr. Marquez?

"A. How he was, basically.

"Q. Had he recently come out of prison?

"A. I understood that he had, yes.

"Q. Was that part of the discussion?

"A. Yes.

"Q. Anything else except his health?

"A. That’s all. Health and what he planned to do.

"Q. Did he tell you what he planned to do?

"A. He said he intended to take it easy.

"Q. And that was the extent of the conversation?

"A. In substance.

"Q. Can you remember anything else that was discussed?

"A. No, I can’t, because it was just chit-chat.

"Q. Did he discuss with you any matters that were in the courts at that time?

"A. No, sir.

"Q. Did you discuss any of the — did he discuss the fact that the people in his organization had been arrested?

"A. No, sir.”

At this final appearance, defendant also corrected his earlier testimony to reflect that his former representation of Marquez related not to gambling, but to a violation of probation arising out of an assault.

A four-count indictment for perjury in the first degree followed. As noted, the charges are entirely based on defendant’s answers to questions about the single meeting with Marquez. The first count charges defendant with falsely stating that he had not "talked to Marquez” since becoming a Supreme Court Justice. That count, presumably because of defendant’s later recantation, resulted in an acquittal, but defendant was convicted of the three remaining counts. Count two alleges that "upon being asked where he saw Marquez for the first time on May 16, 1975, [defendant] testified that it was in front of Patsy’s Restaurant.” Under count three, it is asserted that defendant testified that his meeting with Marquez "had lasted about ten to fifteen minutes.” The fourth count alleges that "upon being asked what happened after conversing with Marquez in Patsy’s Restaurant, [defendant] testified that * * * he exited the Restaurant and left Marquez inside the premises.” The surveillance team, as observed earlier, had testified that defendant, after driving the couple 10 blocks to the restaurant, talked to them there for over an hour, and upon leaving, but before driving them to their garage, spoke to Mr. Marquez while Mrs. Marquez waited in defendant’s automobile.

Among the grounds for reversal adopted by the Appellate Division were that in counts two and three the materiality necessary to a conviction for perjury in the first degree was lacking and that in counts two and four the falsity of the statements alleged was insufficiently proved. Since the challenged interrogation amounted, on the whole, to an impermissible "perjury trap”, neither ambiguity nor insufficiency of evidence, usually issues of fact resolvable by the jury, need be discussed (see People v Dunleavy, 41 AD2d 717, affd 33 NY2d 573; cf. People v Goldman, 21 NY2d 152, 160, app dsmd 392 US 643, mot for reh den 393 US 899). Nor need materiality be discussed.

The primary function of the Grand Jury is to uncover crimes and misconduct in public office for the purpose of prosecution (see NY Const, art I, § 6; CPL 190.65, 190.55). False testimony before the Grand Jury, then, especially by the holder of public office, is a grave matter affecting the public interest and the administration of justice. It is not properly a principal aim of the Grand Jury, however, to "create” new crimes in the course of its proceedings. Thus, where a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie (see Brown v United States, 245 F2d 549, 554). Since no legitimate investigatory function is discernible in questioning designed primarily or solely to support a perjury prosecution against the witness, it cannot be said that the responsive testimony, albeit false, frustrates any authorized purpose of the Grand Jury.

It is not unprecedented for an improper purpose to invalidate that which is otherwise lawful. There is an analogy in the tort field. Where there is an "abuse of process”, that is, a "misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process”, a cause of action will lie (Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 400). It has also been suggested that abuse of the power of the Grand Jury to investigate and indict for criminal acts may fatally infect the proceeding (see Matter of Cunningham v Nadjari, 39 NY2d 314, 318). Recognized is that it is not just the target of the abuse who is offended, but the administration of justice (see Board of Educ. v Farmingdale Classroom Teachers Assn., supra, pp 400-401).

The absence of a legitimate purpose to the inquiry also makes suspect the administration of the oath to defendant (see Matter of Nigrone v Murtagh, 36 NY2d 421, 426 [caveat]). It is elementary that there must be a validly administered oath to establish perjury (Penal Law, §§ 210.15, 210.00, subds 3, 5; O’Reilly v People, 86 NY 154, 157, 161; 70 CJS, Perjury, §24). Where the questioning is not intended to further the Grand Jury investigation, but, instead, is aimed substantially at trapping the witness into giving false testimony, the validity of the oath previously administered is questionable.

Ordinarily, whether a trap primarily or solely to support a prosecution for perjury against the witness was set by the prosecutor raises a question of fact (see Matter of Nigrone v Murtagh, 36 NY2d 421, 426, supra [caveat]). The questioning in the instant case, however, was an unmitigated effort to trap the witness on minor outward details of a single meeting with a reputed criminal figure. There was no attempt to establish that the meeting was pertinent to a proper substantive goal of Grand Jury investigation. The meeting might well have been a chance encounter at which the former lawyer chatted with his ex-client. Or, it might have been planned to discuss matters inappropriate between one now a Judge and the other a convicted gambler, even if he were a former client. More to the point, the meeting would then have had more of a suspect character and probably would have related to the substantive criminal investigatory goals of the Grand Jury.

The prosecutor evinced minimal or no interest in establishing the materiality of the meeting. Almost as if he were conducting only a quiz to test memory or recall, he devoted most of his questions, as the excerpt quoted earlier indicates, to the logistical details of the May 16 encounter, facts contemporaneously documented by the surveillance team.

It is true that after an extended series of questions about where defendant and Marquez met, how long they were together, and how they parted, defendant was asked what they spoke about. And, some directed, if isolated, questions, such as whether they discussed matters then in the courts or that people in "the organization” had been arrested, were posed. Seemingly content with defendant’s description of an innocuous encounter, however, at no time did the prosecutor, either by repetition, restatement, or elaboration, press defendant into giving a convincing narrative of what indeed went on at the restaurant. Yet, it is the content of the meeting which would determine whether the outward details were of any significance and, more important, whether substantive inquiry should be pursued. In sum, there is demonstrated no palpable effort to establish, either from the Grand Jury testimony or from the evidence at the trial, that the meeting was material to the Grand Jury investigation. In such a context, false answers to questions limited to peripheral details of time and place may not support a prosecution for perjury.

Also critical is that, upon hearing defendant’s version of the outward details of the May 16 meeting, the prosecutor failed to confront defendant, or otherwise stimulate his memory, if only by limited cues, with some of the contrary facts acquired from the surveillance team. Such cues are not to inform the witness of the information already acquired, but to make certain that the witness is not failing sincerely to recall details of no memorable significance. To establish that defendant’s assertion that he first met Marquez "outside of Patsy’s Restaurant” was knowingly false, and not just a lapse in memory, some slight effort to stimulate defendant’s recollection should have been made. The same may be said of defendant’s assertion that he sat with the Marquezes for only 10 or 15 minutes, and that when he left the restaurant the Marquez couple remained.

It is not so much that the witness deserves an opportunity to refresh his recollection; it is that the foundation established by stimulation of recollection bears on resolution of the ultimate issue: whether defendant is deliberately falsifying. Indeed, if the meeting were no more than benign but questionable socializing between former lawyer and client, details would not likely be remembered or easily recalled. This does not mean that the kind of foundation required to impeach a witness with a prior inconsistent statement is indicated. Much less is indicated, simply enough to exclude the innocent lack of recollection or memory of a peripheral detail not likely to be memorable.

That is not to say that a witness suspected of falsifying must be wetnursed, or that in every case a "last clear chance” to tell the truth must be afforded. A rigid rule would deny the prosecutor the right to exercise judgment. In inquisitorial investigations particularly, just as on trial cross-examination, indirect questioning is characteristic and permissible. But the nature, and especially the intrinsic significance, or insignificance, of the event to be recalled will, almost invariably, be critical in determining the cues, if any, the prosecutor should provide for the witness, if it is the truth that is being sought.

It is true that when defendant met with Marquez, the Grand Jury investigation had already been underway, and inquiry concerning bail applications handled by defendant was being made by the State Commission on Judicial Conduct. That is hardly enough to compel the conclusion that the meeting, albeit between a Supreme Court Justice and a recently released Federal prisoner, was other than harmless, even if perhaps indiscreet. And no more was established by the prosecutor. But even if the encounter between former lawyer and client should have been memorable, either because it involved a transaction of significance, or because it was at that point so unusual for defendant in light of his then experience and associations, it is unrealistic to expect defendant’s recollection of the surrounding details to equal that of the surveillance officers who were making contemporaneous notes of defendant’s every step.

Put another way, it is not suggested that full disclosure of the information known to the prosecutor must have been made to defendant, especially if disclosure would reveal too much of how the investigation was conducted and how far it has proceeded. Yet, the examiner has an inescapable burden to provide a transcript which demonstrates that the witness is testifying falsely intentionally, rather than mistakenly, whether it is with respect to surrounding neutral details or to substantive matters relevant to an authorized investigation. The record in this case does not establish either intentional falsity or purposeful substantive inquiry. Thus, the only rational explanation for the tactics employed is the unacceptable one: that a perjury indictment, rather than the ascertainment of facts leading to substantive goals, was the object.

Nor is it suggested that defendant would have answered a more disciplined interrogation differently. That cannot be known. Nor should it be supposed that the mere anticipation of perjury in an inquiry would invalidate an indictment for the anticipated perjury. That would be unrealistic, and a boon to which perjurers are not entitled. How defendant might otherwise have responded, or whether a prosecutor could reasonably have hoped for more illuminating testimony, is not what ultimately determines the issues. Dispositive in this case is that the preoccupation with trapping defendant into committing perjury is unmitigated by substantive investigative goals. There was not even that little which might have presented a question of fact for the jury to decide. Dismissal of the indictment as a matter of law was thus proper.

Decided simultaneously with this case are People v Pomerantz (46 NY2d 240) and People v Schenkman (46 NY2d 232). Both cases provide appropriate comparison because in each similar issues concerning the questioning of witnesses before investigatory Grand Juries are involved. In both the excerpts from the questioning are given and illustrate properly authorized and conducted examination.

Accordingly, the order of the Appellate Division should be affirmed, and the indictment stand dismissed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


author: Jones, J. Chief Judge Breitel

text:
    The People of the State of New York, Appellant, v Andrew R. Tyler, Respondent.
    Argued October 17, 1978;
    decided December 20, 1978

      POINTS OF COUNSEL

      John F. Keenan, Deputy Attorney-General (Thomas A. Duffy, Jr., and Mark M. Baker of counsel), for appellant.
    I. The evidence presented to the Grand Jury was legally sufficient to establish, prima facie, that respondent had committed the crime of issuing a false certificate. (People v Bel Air Equip. Corp., 39 NY2d 48; People v Gottlieb, 36 NY2d 629; People v Sansanese, 17 NY2d 302; People v Eckert, 2 NY2d 126; People v Von Werne, 41 NY2d 584; People v Benzinger, 36 NY2d 29; People v Lagana, 36 NY2d 71; People v Sabella, 35 NY2d 158; People v Brown, 40 NY2d 381; People v Bonifacio, 190 NY 150.) II. The second count of the indictment, accusing respondent of official misconduct was supported by sufficient evidence and was properly pleaded.

      Milton S. Gould, Saul S. Streit and Richard F. Czaja for respondent.
    I. The evidence presented to the Grand Jury with regard to count one of the indictment was insufficient as a matter of law. (People v Eckert, 2 NY2d 126; People v Miller, 54 AD2d 742; People v Von Werne, 41 NY2d 584; People v Sabella, 35 NY2d 158; People v Fellman, 35 NY2d 853; People v Brown, 40 NY2d 381, 433 US 913; People v Bonifacio, 190 NY 150; Palmer v Van Santvoord, 153 NY 612; People v Stevens, 109 NY 159; Matter of Rogers v Leff, 45 AD2d 630, 38 NY2d 903; Matter of Gold v Shapiro, 62 AD2d 62.) II. The evidence presented to the Grand Jury with regard to count two of the indictment was insufficient as a matter of law. (People v Hattemer, 4 AD2d 674, 4 NY2d 837; Matter of American Civ. Liberties Union v McAdoo, 229 App Div 511; Matter of Barnard, 151 App Div 580.) III. The indictment could properly have been dismissed on additional grounds. (Mount Sinai Hosp. v Davis, 8 AD2d 361; People v Doyle, 304 NY 120; People v Lobel, 298 NY 243.)
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged in an indictment with the crimes of issuing a false certificate (Penal Law, § 175.40) and official misconduct (Penal Law, § 195.00). In a joint decision and order, Trial Term listed five issues presented for determination, one of which was whether the interests of justice required dismissal of the indictment. It found the evidence of felonious intent presented to the Grand Jury insufficient to sustain the indictment. Dispositive as this ground was, that court nonetheless spoke to defendant’s request for a dismissal in the interest of justice. In the body of its rather lengthy writing, Trial Term found that "[tjhese interest-of-justice considerations by themselves, of course, would obviously not provide sufficient basis for dismissal of this indictment. Coupled with the evidentiary considerations discussed above, however, they do contribute to the Court’s ultimate judgment in this matter.” At the end of its decision-order, under a heading entitled "Conclusion”, the court directed that "for the various legal reasons given, and in the interest of justice, the indictment herein is hereby dismissed.” The Appellate Division unanimously affirmed this order.

Read as a whole, the decision-order of Trial Term unequivocally dismissed the instant indictment in the interest of justice. The court’s discussion in the body of the decision, rather than indicating that the interest-of-justice ground was not considered sufficient, merely reveals the reasoning behind this discretionary dismissal. Various interest-of-justice considerations, together with the dubious nature of the Special Prosecutor’s case, prompted the court to exercise its discretion and dismiss in the interest of justice. Nothing prohibited the court from basing such a dismissal in part upon interest-of-justice factors and in part upon the weakness of the case on the merits (see CPL 210.40). Any doubt as to whether Trial Term dismissed in the interest of justice is resolved by reference to the decretal sentence in the conclusion of its decision-order: "for the various legal reasons given, and in the interest of justice, the indictment herein is hereby dismissed” (emphasis added).

To say that Trial Term did not rely exclusively upon interest-of-justice considerations is not to say that the court did not dismiss in the interest of justice (cf. People v Beige, 41 NY2d 60, 61-62). Indeed, in the determination of a motion for dismissal of an indictment as being in furtherance of justice and in the exercise of a court’s discretion, one of the factors to be considered is the evidence of guilt (see People v Clayton, 41 AD2d 204, 207-208; Supplementary Practice Commentary by Bellacosa, McKinney’s Cons Laws of NY, Book 11A, CPL 210.40, 1977-1978 Supp, pp 131-132). A motion for dismissal under CPL 210.40 is not made in a vacuum, isolated from all else; rather, a ruling thereon is based upon the "totality of all the circumstances in [the] particular case” (see People v Collier, 85 Misc 2d 529, 566, McQuillan, J.).

If we were to reach the merits, we would agree with the analysis of Judge Jones relating thereto and would affirm on that ground as well.

Inasmuch as Trial Term dismissed the indictment in the interest of justice, and the Appellate Division affirmed, however, the order before us is nonreviewable absent an abuse of discretion (People v Belge, 41 NY2d 60, 61-62, supra). Finding none, we are constrained to affirm.

Jones, J.

(concurring). I, too, vote to affirm the order of the Appellate Division which dismissed the two-count indictment against defendant.

I am in entire agreement, however, with the Chief Judge that the unequivocal disclaimer contained in the single paper decision and order at nisi prius precludes our disposition of the present appeal on the ground that the dismissal there was predicated on nonreviewable interests of justice. I am accordingly obliged to reach the merits and in so doing would affirm the determinations of both courts below that each count in the indictment should be dismissed.

With reference to the charge of issuing a false certificate, the applicable provision of section 175.40 of the Penal Law proscribes the issuance by a public servant of an official written instrument with knowledge that it contains a false statement and "with intent to defraud, deceive or injure another person”. The indictment here charged defendant with having issued a bail reduction order directing the release of a prisoner, which order contained the false statement that an application for reduction of bail has been made by William C. Chance, Jr., in behalf of the prisoner. It is not disputed that no application for reduction of bail had been made by William C. Chance, Jr., in behalf of the prisoner.

In addition to the inclusion of a false statement, the statute requires that the official written instrument be issued "with intent to defraud, deceive or injure another person”. It is this latter element for which no evidentiary proof is to be found in this record. There is no identification of any person who was in fact defrauded, deceived or injured; nor is there any proof that defendant intended to defraud, deceive or injure anyone. Both courts below concluded that the false statement had no material bearing on the issuance of the bail release order.

The People’s only contention of substance is the inadequate bootstrap assertion that the requisite intention to defraud, deceive or injure may be circumstantially inferred from the inclusion in the bail reduction order of the false statement — in effect that proof sufficient to establish one element of the crime may be used as the springboard for an inference to sustain another element of the same crime. This may be theoretically true in other instances; it fails here because the conclusion hopefully to be inferred is so attenuated as not to meet the test of legal sufficiency — the guilty inference is neither the only fair and reasonable inference capable of being drawn from the false statement and the circumstances surrounding the issuance of the bail reduction order, nor is such evidence of a character to exclude to a moral certainty every other hypothesis except that of defendant’s intent to defraud, deceive or injure some third person.

The prosecution’s further argument is that inasmuch as the District Attorney had had no opportunity to be heard there was a failure to comply with the provisions of CPL 530.30, and that this noncompliance supports an inference of the requisite criminal intent. As noted by the courts below, however, this theory was developed only after the presentment to the Grand Jury and the return of the indictment. Indeed it appears that it has not been until briefing in our court that this theory has been advanced to save the first count as well as the second.

As to the second count — official misconduct as proscribed by section 195.00 of the Penal Law — in our court the sole basis urged by the prosecution for sustaining this count is that inasmuch as the evidence with regard to count one is sufficient, the same evidence is sufficient to sustain count two. "It was the intent of the legislature that any public servant guilty of the crime of issuing a false certificate would also be guilty of the crime of official misconduct.” It follows that the inadequacy of evidence to sustain the first count is fatal to the second count as well.

I must add that, inasmuch as the proposition of law on which the dissenters would rely with some cogency was not advanced in the courts below or addressed by the parties in our court, I am not prepared to reverse the dismissal of the indictment on that ground.

Accordingly, in the posture in which the appeal comes to us, I am in agreement with both courts below that as a matter of law the evidence submitted to the Grand Jury was not legally sufficient to establish either offense charged. The indictment was therefore properly dismissed.

Chief Judge Breitel

(dissenting). The single paper decision and order of the Extraordinary Special and Trial Term states unequivocally that "[t]hese interest-of-justice considerations by themselves, of course, would obviously not provide sufficient basis for dismissal of this indictment.” Reading the single paper as a whole, as one must, the court did not hold that the indictment could be dismissed in the interest of justice, but only used the interest of justice, whatever that meant, as a makeweight gloss on its conclusions of law. Hence, the decision and order does not oust this court of the power to review as was true in People v Beige (41 NY2d 60, 61-62). Consequently, I would reach the merits straightforwardly and would reverse on the ground that CPL 530.10 authorizes only a defendant to apply for release on bail or recognizance.

Under elementary principles a lawyer retained for that purpose may make the application. The misrepresentation in this case related to the retention of a lawyer for that purpose when that was not the fact. There are strong policy reasons why the release of a defendant must be made on an authorized application, if only because of the danger that accomplices and their principals for reasons inimical to the defendant may wish to "spring” a defendant who may already have "sung” or is anticipated to "sing” for the prosecution (see People v Luciano, 277 NY 348, 355-356, mot for rearg den 278 NY 624, cert den 305 US 620).

The effect of the misstatement in this case, even if it ultimately appeared that it was for the benefit of defendant, was nevertheless to deceive the correction and court officials involved that a properly authorized application had been made to the Justice issuing the order.

Judges Gabrielli, Fuchsberg and Cooke concur in a memorandum; Judge Jones concurs in a separate opinion in which Judge Wachtler concurs; Chief Judge Breitel dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.

Order affirmed.


author: Cooke, J. Chief Judge Breitel and Wachtler, J.

text:
    Ann E. Carr, Respondent, v Barbara Carr, Individually and as Representative of the Estate of Paul B. Carr, Deceased, Appellant.
    Argued October 20, 1978;
    decided December 21, 1978

      POINTS OF COUNSEL

      Mark G. Levine for appellant.
    I. It would be unconstitutional to assert jurisdiction in rem against appellant who has had no contact with New York whatever. (Shaffer v Heitner, 433 US 186; International Shoe Co. v Washington, 326 US 310.) II. There is no statutory basis for asserting jurisdiction against appellant. (Gray-Lewis v Gray-Lewis, 5 AD2d 238; Wiener v Wiener, 19 Misc 2d 470; Atherton v Atherton, 181 US 155; Geary v Geary, 272 NY 390.)

      Peter E. Bloom and Daniel J. Bloom for respondent.
    I. It is constitutional to assert jurisdiction in rem against appellant in this declaratory action. (Shaffer v Heitner, 433 US 186.) II. There is a statutory basis for asserting jurisdiction against appellant. III. Viewing respondent’s position herein, from purely a practical point of view, the present action must stand.
   OPINION OF THE COURT

Cooke, J.

We hold that, in the absence of "minimum contacts”, New York courts have no jurisdiction over the nonresident second wife of a deceased husband, where the first wife seeks to obtain a declaration as to the validity of the first marriage.

Plaintiff Ann Carr, a resident of New York, alleges that she married decedent Paul Carr in Nevada on November 16, 1956. The couple lived in a number of marital abodes in various countries incidental to Paul’s tenure with the United States Foreign Service. In 1965 Ann, citing the harsh treatment she received at the hands of her husband, departed the marital residence in Honduras and returned to the United States, ultimately settling in New York. Some two years after Ann’s departure, Paul obtained an ex parte Honduran divorce on the ground of abandonment.

Defendant Barbara Carr has resided in California continuously since 1962. She claims that she and Paul Carr were joined in matrimony in Nevada on December 3, 1974. During the relevant time frame, Barbara had no contacts with New York State. When Paul died in 1975, Barbara applied for survivor benefits furnished by the Foreign Service Retirement and Disability System. Learning of this, plaintiff Ann Carr commenced this action to invalidate the Honduran divorce and to declare her the lawful surviving spouse of Paul. Of course, this controversy is between Ann and Barbara, and any adjudication of their respective rights will be effectual only if Barbara is bound by the judgment.

Special Term, in its opinion granting defendant’s motion to dismiss, found no basis for the exercise of jurisdiction over Barbara Carr. The Appellate Division reversed, but it is unclear whether that court upheld in rem jurisdiction, in personam jurisdiction, or both. The thrust of the Appellate Division opinion is that the balance of "conveniences” between New York and other possible forums tip evenly, and that New York possesses an interest in adjudicating the marital rights of its domiciliary, Ann Carr. Based upon this analysis, the Appellate Division sustained the purported exercise of jurisdiction. We now reverse that determination.

Status adjudications enjoy a rather unique place in our jurisprudence. Long ago the notion developed that a divorce proceeding is an action in rem (2 Bishop, Marriage and Divorce [4th ed], § 164), with the marital status of the parties being fictitiously deemed an intangible res (Geary v Geary, 272 NY 390, 399). While the analytical value of the in rem label has been questioned (see, e.g., Williams v North Carolina, 317 US 287, 297), status adjudications nonetheless possess a different quality than that of the typical in personam action (see, e.g., Estin v Estin, 334 US 541, 546-549). However ultimately classified, the principles of divorce jurisdiction are of ancient origin but enduring validity. There is apparently no disagreement as to the nature of these general principles.

A basic maxim in this area, not to be disputed at this late date, is that divorce jurisdiction may be exercised only when at least one of the parties to the marriage is domiciled in the State (see, e.g., Geary v Geary, supra, p 399; Senor v Senor, 272 App Div 306, 310-311, affd 297 NY 800; Matter of Petersen, 192 Misc 243, 244-245). So fundamental is the domicile requirement that it is a constitutional prerequisite to the recognition of a divorce decree under the full faith and credit clause (US Const, art IV, § 1; see, e.g., Sosna v Iowa, 419 US 393, 407; Williams v North Carolina, 325 US 226, 229; see, also, Alton v Alton, 207 F2d 667). This is not to say, of course, that in personam jurisdiction would be an insufficient predicate for a status adjudication in all circumstances (cf. Whealton v Whealton, 67 Cal 2d 656). But surely the alteration of a party’s status in the absence of both recognized forms of jurisdiction would amount to a gross injustice.

That is precisely the situation here. Defendant Carr is not a New York domiciliary, and the other party to the marriage, Paul Carr, is deceased. Nor does Ann Carr’s status as a domiciliary of this State provide any basis for asserting jurisdiction over Barbara. The fiction of the marital res, with the consequence that it provides the predicate for in rem jurisdiction, however useful and appropriate it may be during the joint lives of the husband and wife, ceases to have an vitality or legal substance after the death of either husband or wife. Thereafter, save possibly in some unusual case, the only issues to be litigated are those concerning property rights. Any determination described as relating to the marital status of the parties can no longer have any meaning with respect to the interpersonal relations of the parties to the marriage, but can only serve as an intermediate step en route to some adjudication of property rights. It is precisely for such an objective that a declaration is sought in this action as to the invalidity of the Honduran divorce obtained by Paul from Ann. No case is brought to our attention, however, in which the marital res has been recognized, following the death of one of the parties to the marriage, as sufficient to provide a jurisdictional basis for an in rem adjudication binding on third parties over whom the forum court has no in personam jurisdiction.

Plainly, the absence of any contact between defendant and New York is an obstacle to the exercise of personal jurisdiction. If defendant had even a minimal relationship with the State, there is little doubt that jurisdiction in this declaratory judgment action could be sustained (see, e.g., International Shoe Co. v Washington, 326 US 310, 316). As the record reveals, however, Barbara Carr has engaged in no activity in New York, and certainly has not "purposefully derive[d] benefit[s] from any activities relating to” the State of New York (Kulko v California Superior Ct. 436 US 84, 96). To uphold in personam jurisdiction in such a case would be to ignore the restraints, however limited they may be in this modern era, imposed by the due process clause.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the action should be dismissed.

Chief Judge Breitel and Wachtler, J.

(dissenting). We dissent and vote to affirm on the opinion of Mr. Justice James D. Hopkins at the Appellate Division in which the concededly difficult problem in this case is elaborated with a keen sense for the legal and policy reasons for the result. We indorse the analysis and it would be supererogation to substitute an elaboration for that of Mr. Justice Hopkins. We add only the following comments addressed to the majority opinion.

We do not rely, nor did the Appellate Division, on the existence of in personam jurisdiction over the second wife. Under traditional and still valid principles, when the first wife came to New York, she brought with her the "res” of the marriage (see Vanderbilt v Vanderbilt, 1 NY2d 342, 351, and cases cited, affd 354 US 416). There is, therefore, in rem jurisdiction in New York to determine the validity of the first marriage, whatever the indirect, and perhaps substantial, consequences of such an adjudication on the second marriage (see Chittenden v Chittenden, 46 Misc 2d 347, 349-350 [Macken, J.], including quoted comments of then Assemblyman Malcolm E. Wilson, concerning the need for methods of service on the nonresident second spouse; Sacks v Sacks, 47 Misc 2d 1050, 1052 [Geller, J.]). Of course, there is no jurisdiction in New York to declare the second marriage valid or invalid.

Moreover, the death of the husband should not dissolve the "res” that serves as a basis for jurisdiction in New York. True, the marital res may be a legal fiction, but neither in fiction nor in reality does the marriage relationship terminate, for all purposes, at the death of one spouse. Important legal rights accrue to a spouse, as a spouse, even after death. The intestate share statute and the right of election provide obvious examples. The majority’s analysis would presumably prevent even a woman married in New York and a life-long resident from seeking in New York a declaration, for estate purposes, that her husband’s out-of-State divorce was invalid, all on the theory that the marital res expired at the husband’s death. The result is unrealistic and unacceptable, however "consistent” it may purport to be with a mechanical logic.

Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Cooke; Chief Judge Breitel and Judge Wachtler dissent and vote to affirm in a memorandum.

Order reversed, without costs, and the action dismissed. Question certified answered in the negative.

      . There is little doubt but that the classical concepts of divorce jurisdiction survive the recent decision in Shaffer v Heitner (433 US 186). As the Supreme Court stated "[w]e do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness” (Shaffer v Heitner, supra, at p 208, n 30).

      . We recognize, of course, that the present case is not a traditional status suit. Typically, a status action would be one seeking to terminate or to declare void an existing marriage. In such a case, there is no doubt at the commencement of the action that a marriage exists to serve as the jurisdictional res. Here, by contrast, since plaintiff seeks a determination as to the validity of the marital res, the existence of the jurisdictional predicate is the very question to be resolved by the litigation (cf. New York Life Ins. Co. v Dunlevy, 241 US 518). It may be argued, therefore, that declaratory judgment actions such as the instant one may not be maintained absent personal jurisdiction of the defendant (see Gray-Lewis v Gray-Lewis, 5 AD2d 238, 241-242 [Valente, J., concurring]). In view of our disposition of the appeal, however, this problem need not be addressed at the present time.