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holding that "on a new trial, the only way in which the prejudice created by the prosecutor's threats can be dispelled would be to require that the defendant's witnesses be granted immunity as a condition to subjecting the defendant to a new trial"
Summary of this case from State v. FeasterOpinion
Argued April 24, 1980
Decided July 3, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, RUBIN, J.
Joel Martin Aurnou for appellant. Carl A. Vergari, District Attorney (Lois A. Cullen, Gerald D. Reilly and Anthony J. Servino of counsel), for respondent.
After trial by jury, defendant Elliot Shapiro was convicted on a consolidated indictment of promoting prostitution in the first degree and endangering the welfare of a minor (under Indictment No. 117), sodomy in the second degree (under Indictment No. 118), and 11 counts of sodomy in the third degree (under Indictment No. 143). In his appeal to us he claims, in the main (1) that, in the circumstances of the case, it was an abuse of discretion as a matter of law for the trial court to have denied his motion to sever Indictment No. 143 from the trial of the other two; (2) that his due process rights were violated when, while his three prospective witnesses were considering whether to persist in the invocation of their privilege against self incrimination, the District Attorney openly, repeatedly and unqualifiedly advised them that testimony on behalf of the defendant would subject them to prosecution for perjury; and (3) that the eavesdropping orders secured by the police were invalid because they exceeded the bounds set by the governing Federal wiretapping statute (US Code, tit 18, § 2516). We find merit in each of these contentions and, therefore, reverse defendant's conviction and order a new trial.
His conviction was affirmed by the Appellate Division, although the judgment was modified to reduce the maximum term of imprisonment from 12 to 7 years and to provide that the sentences should run concurrently ( 67 A.D.2d 958).
Pertinent to the analyses on which these conclusions rest are the following:
In Indictment No. 143, Shapiro was accused of engaging repeatedly in a course of homosexual sodomitic acts on various occasions over a 17-month period between July, 1972 and November, 1973 with eight different high school boys each of whom was under the age of 17. Though it developed at trial that each of the youths had received money from the defendant, it was never claimed that force of any kind was employed to obtain their participation. In all, this indictment embraced a total of 64 criminal counts.
The other two indictments (No. 117 and No. 118), unlike No. 143, were not premised on any explicit or implicit claim that the defendant was a frequent actor in sexually aberrant conduct but, centering rather on the far more serious crime of promoting such conduct, confined themselves to a single event occurring on January 31, 1974. That night, members of the New Rochelle Police Department, the Westchester County Sheriff's Department and the District Attorney's office, executing a search warrant based largely on evidence that derived from court-ordered wiretapping of defendant's telephone, gained admission to Shapiro's residence. From the intercepted telephone conversations, the police had learned that two of the defendant's adult friends, Eli Shomer and Ronald Senn, planned to bring two young teenage male "prostitutes" to Shapiro's home to perform sex acts for hire and that another adult, Brian Dowling, was also to join in these activities. When the police entered, they found Shomer and Senn, attired, in the living room. Making their way to the upper part of the house, the officers then came upon Dowling and 15-year-old Gary F. lying completely unclad in bed together in one bedroom and defendant and 13-year-old Duane S. nude in the other. It was in the first of the two indictments (No. 117) based on this incident that defendant, along with Shomer and Senn, was charged with promoting prostitution as well as endangering the welfare of a minor; its companion indictment (No. 118) charged Shapiro alone with sodomy, sexual misconduct, sexual abuse and endangering the welfare of a minor, all additional legal formulations of the transgressions said to have occurred on the self-same January 31. Thereafter, Shomer's and Senn's cases were severed from that of Shapiro and tried separately. It was later, two years after the original indictments had been voted, that the People, before proceeding to trial against Shapiro, moved to consolidate all three accusatory instruments against him. It is the granting of this motion and the denial of defendant's subsequent application to sever with which we deal first.
I
The joinder of the indictments was effected under the authority of CPL 200.20 (subd 4). This section permits a court for trial purposes to consolidate and treat as a single indictment "two or more indictments against the same defendant * * * [which] charge different offenses of a kind that are joinable in a single indictment". The determination of the application is discretionary (CPL 200.20, subd 5). Defendant does not challenge the joining of the two indictments stemming from the January 31, 1974 incident (see CPL 200.20, subd 2, par [b]), but argues, as he did when the original motion was made, that it was improper to try these with the indictment featuring the long train of sodomies which took place in so much of the two previous years, on the ground that the latter counts would prejudice his ability to defend on the former.
If justification for the joinder of the multiple event indictment with the others is to be found it would have to be under the statute's broadest possible conception of "joinable offenses", i.e., when two or more "offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law" (CPL 200.20, subd 2, par [c]). But this language does not stand alone. Apparently cognizant of the sweeping compass of this provision, the legislative scheme introduces cautions designed to alleviate the potential for prejudice. Thus, CPL 200.20 (subd 3) declares that, when the joinability of offenses rests solely on the grounds specified in paragraph (c) of subdivision 2, "the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the People, in its discretion order that any one of such offenses or groups of offenses be tried separately from the other or others". Surely, "the interest of justice" and "good cause shown", though elastic, are more than resounding phrases.
True, in determining that consolidation was appropriate, the court noted the following points of similarity: the defendant was the sole untried defendant in each of the three indictments; all counts in the indictments referred to sexual acts with boys under the age of 17; all the activities occurred within the same jurisdiction and most occurred in defendant's home; sodomy or sexual abuse were a focus of all three indictments. Nevertheless, it cannot be gainsaid that these were but the most general of commonalities; without more support, a joinder could hardly be said to serve more than the permissible purpose of judicial economy.
In counterpoint, the thrust of defendant's more particularized objection was that Indictment No. 143, because of the multiplicity of its 64 counts, carried an almost irresistible potential for prejudicing his defense of the charges arising out of the unrelated January 31, 1974 incident, the only one on which promoting was alleged. The inference of an indiscriminate propensity to be a party to the event on which Nos. 117 and 118 were based could be especially unfair in light of the dearth of physical evidence of any act of sodomy with Duane S., admittedly the only individual in whose presence defendant was found at the time the police broke in. As the proof at trial unfolded, the cumulative effect of the repetitive recitations of the eight high school students on whom the People depended to describe the defendant's numerous depredations during the 18-month period covered by No. 143 was bound to come across as a pointed prologue to the January 31 episode from which Nos. 117 and 118 alone were derived.
In these unique circumstances, it therefore was foreseeable that the trial of the latter would be compromised by the strongest of suggestions that it was but the inevitable outgrowth of defendant's untoward sexual predisposition, however sociologically and scientifically tenuous such connection may in fact have been (see Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sex Offenses, 6 Ariz. L Rev 212, esp 231-236). Since prosecutions for sex crimes, particularly ones regarded as deviate, tend in any event to invoke prejudicial preconceptions among jurors, the joinder of the indictments created an impermissible risk. For the superficial closeness of the indictments here, resulting largely from a common focus on the same kind of aberrant sexual practices, was likely to eclipse the very fundamental difference between them. Indictment No. 117 involved the much graver accusation that Shapiro had done more than yield to his irresistible and therefore perhaps compassionately viewed sexual impulses. That wider role, the far more heinous and socially damaging one of influencing others to enter upon a life of submission to sexually aberrant conduct, especially when the proselytizing is said to have been for profit, was almost sure to strongly suggest a need to deter.
That commonly held behavioral prejudices about those who perpetrate sex crimes, mistakingly assuming that the commission of one type of sex crime predisposes to another kind, are often unfounded has been well documented (see, generally, Best, Crime and Criminal Law in the United States, pp 283-288; Leppmann, Essential Difference between Sex Offenders, 32 J Crim L and Criminology 366, 374-380; De River, The Sexual Criminal, A Psychoanalytical Study, pp 274, 277; Report of Mayor's Special Committee for the Study of Sex Offenders, pp 91-92 [New York City, 1941]; State Department of Mental Hygiene, Report of Study of 102 Sex Offenders at Sing Sing Prison [New York State, 1950]).
In this connection, it is of course easy to say that jurors, like Judges, may have had the intellectual capacity and emotional control to sort out the separate roles in which the defendant was being portrayed so that one would not be merged into the other. Indeed, I believe we all recognize that intelligence is no more the monopoly of Judges than it is of jurors. But it is equally true, as any practitioner of the trial process or of life who has moved from initiate to sophisticate can tell, that the average layman, astute and restrained as she or he may be, and though advantaged by the freshness of such a juror's venture into the legal arena, cannot hope to share the appreciation of the subtleties of prejudice in such a context gained by Judges and trial lawyers through hard and repeated experience.
We do not suggest that Judges do not have latitude in evaluating the likelihood and gravity of prejudice when consolidation of several indictments is sought. As we have observed, the statute confers discretion upon the court (CPL 200.20, subd 2, par [c]). But in the peculiar circumstances of this case, that discretion was abused. Significantly, the trial court's response to defendant's contention that he would be sorely prejudiced by the joinder manifested a failure to weigh any of the relevant, and here critical, considerations. For the court merely opined that, given the testimony of the eight other youths, anything added by either Duane S. or Gary F., necessarily confined to January 31 alone, would have limited, if any, bearing on propensity. But this was to view the problem from the wrong end. The chief cause for concern, of course, was not the effect of the single charge of promoting on the fairness of the trial for the numerous sodomies set out in No. 143, but the massive impact of the latter on the solitary promoting count. In short, it does not appear that the court even considered the risk that a joint trial would expose the defendant to the possibility of being convicted on 117 and 118 for reasons other than those legally relevant to the specific crimes these two indictments charged. (See Matter of William S., 70 Misc.2d 320, 324; People v Reingold, 44 A.D.2d 191, 195; People v Forest, 50 A.D.2d 260. )
Moreover, the claim of prejudice, renewed in defendant's subsequent motion under CPL 200.20 (subd 3) to sever Nos. 117-118 from No. 143, assumed even more substantial proportion. Shapiro swore that, though he did not plan to take the stand in No. 143, presumably electing to rely instead on his legal defenses, he desired to do so in Nos. 117-118 because he was "the only person in a position" to deny any intention to promote or advance prostitution.
Indeed, at the conclusion of the People's case, the Trial Judge dismissed 31 of the counts on the ground that there had been no corroboration of the victims' testimony (see Penal Law, § 130.16).
Needless to say, severance is not necessarily to be had for the asking. There should be a showing of good cause for the relief requested. Conclusory generalities will not usually suffice. And mere self-serving representations may be suspect. But, given that the sufficiency of the defendant's showing must be judged in the context of the obvious and undisputed circumstances against which it is made, here there was much more. The juxtaposition of the separate sets of charges — one focusing on a single evening and the other on a span of a year and a half, the difference in the grade of the offenses, the fact that, other than himself, not a single one of those figuring in the one indictment would have any reason to be called in the other, the inflammatory nature that the proof of each would almost inevitably exert on the other — presented a situation too self-evident to be disregarded (cf. People v Dodge, 72 Misc.2d 345). For, in the prevailing circumstances, joinder of the indictments had to add impermissibly to what at best was the inherently difficult choice defendant faced in deciding whether to "bear the risk on both counts, although he may benefit on only one" (Cross v United States, 335 F.2d 987, 989 [BAZELON, Ch. J.]). Here the practical result of the denial was to relegate him to no more than a Hobson's choice. For these reasons the denial of the motion to sever was an abuse of discretion as a matter of law.
II
The prejudicial impact of the consolidation was only enhanced when the other witnesses whom Shapiro had expected to call to the stand in his defense of the charges emanating from the events of January 31, after initially raising the privilege against self incrimination, persisted in their refusal to testify. This followed directly after the District Attorney issued repeated and unequivocal warnings the sense of which was that the witnesses would subject themselves to prosecution for perjury if their testimony was favorable to the defendant.
The prosecution's chief witness to the activities of January 31 was the young male "prostitute" Duane S., who testified that on that date, after Shomer and Senn had driven him and Gary F. from Boston to Shapiro's home for the purpose of having them take part, for a consideration, in deviate sexual conduct with two men, the defendant engaged in anal intercourse with him. Shapiro's defense to the accusation that cast him in the role of a promoter of prostitution appears to have been to portray himself as a man whose uncontrollable sexual urges made him the easy dupe of Shomer and Senn, the real and sole promoters, who manipulated Shapiro so they could stage their activities in his home. To establish that his role was so limited, he proposed to call all the other participants in these events who were available as witnesses. Examination of his ensuing offer of proof revealed that according to counsel's representations, Gary F. would have testified that, when the boys appeared at his door, Shapiro wanted nothing to do with them and was reluctant to admit them. Shomer, too, Shapiro's counsel advised the court, would have countered the inference of promoting by testifying that Shapiro acted only as patron. As to Dowling, whose wiretapped conversation with Shapiro was heavily relied on by the District Attorney to try to prove defendant's soliciting and promoting, counsel assured the court that he expected that this witness would testify that he had intended to visit Shapiro socially before he learned of Shomer and the boys' existence and that, to his knowledge too, Shapiro was never more than a patron. (See Penal Law, § 230.15.)
The only other eyewitnesses to the evening's events were defendant himself, who elected not to take the stand, and Senn, who, it is conceded, at the time of trial was confined to a mental institution with a condition that made him unavailable to either side.
Despite these assurances, when defendant sought to call them at trial, each witness, appearing in chambers in the company of his own counsel, invoked his privilege against self incrimination. However, from the colloquy that ensued, it soon became apparent that the protection the witnesses sought was not from disclosure of any past criminal activities but solely from the possibility that any testimony they would give on behalf of Shapiro would precipitate their prosecution for perjury. All three of these prospective witnesses had testified previously: Shomer and Dowling at their own trial, Gary F. before the Grand Jury under immunity, at a CPL 660.10 proceeding and, again, at the joint trial of Shomer and Senn.
By the time of Shapiro's trial, Shomer had been convicted, for his participation in the January 31 episode, of promoting prostitution and endangering the welfare of a minor, and had exhausted all appeals. Dowling, for his part, had been convicted of endangering the welfare of a minor but acquitted of all other charges and took no appeal. As for Gary F., his testimony at the Grand Jury had conferred upon him transactional immunity (see CPL 190.40, subd 2), and because of his age, he could not be criminally liable for any of the charges (see Penal Law, § 30.00).
And it was unswerving and unconditional adherence to their prior testimony that the prosecution demanded. At every turn he reiterated his resolve to prosecute any deviation for perjury. Thus, after twice stating to Gary F. and his counsel, in camera and in the presence of defendant's attorney, that the witness would be "subjecting himself" to prosecution for perjury "if he gets on the stand now and tells a different story than he told before the Grand Jury or any other body that he appeared before", he went on: "I would state for the record very clearly [that] if this individual * * * gets on the stand and gives a different story, we will make every effort to prosecute for any perjurious testimony." The threat could hardly have been more explicit, particularly in view of the prosecutor's apparent strategy, in disregard of his professional obligation, if not of his ethical duty, to communicate the strongly worded admonitions directly to the witnesses rather than allow their decision whether or not to testify to be made after consultation with their own counsel. Later in the in camera hearing, the Trial Judge summed up the District Attorney's over-all position with respect to the prospective testimony of Shomer as follows: "As I understand the proposition of the People * * * it's that [if] the testimony on this trial was different than when he testified before, they would hold him for perjury."
That Gary F.'s testimony was likely to be materially at odds with his statements before the Grand Jury emerges from this colloquy:
Gary F.'s counsel: "Let's assume he takes the stand and he tells the truth now, but he lied in the Grand Jury."
District Attorney: "You're forcing him at this point in time to commit a crime."
Faced with these unveiled threats, each of the prospective witnesses insisted that he would not testify unless he were first given immunity by the prosecutor. Despite the urging of the trial court, which denied defendant's application that it direct the prosecutor to do so, the District Attorney refused. The ultimate effect was to deprive defendant of any direct witnesses to his side of the story, leaving Duane S., who could not be prosecuted because of his youth (Penal Law, § 30.00) and because of the prosecutor's own election to call him before the Grand Jury (see CPL 190.50, subds 2-4), to give the only version of the January 31 incident the jury was to hear.
Defendant's solitary witness was the police surgeon who, upon examining Duane S. on the evening in question, found no evidence of a completed act of sodomy.
To be sure, ordinarily, exposure, whether to perjury or other criminal charges, is a sufficient basis for a witness' invocation of the privilege against self incrimination (see People v Sapia, 41 N.Y.2d 160, 164; People v Arroyo, 46 N.Y.2d 928). However, there are times when the exercise of this constitutional right may press on a defendant's due process right to a fair trial and to compulsory process (US Const, 6th, 14th Amdts; NY Const art I, § 6), all the more so when, as in the present case, the offenses are of such a nature that the only persons capable of furnishing useful testimony will be those implicated in some way in the crime (Kastigar v United States, 406 U.S. 441, 446).
Given that the power to confer immunity and thereby to compel testimony from a witness who asserts his privilege resides within the discretion of the prosecutor (see CPL 50.20, subd 2, par [b]), in an appropriate case it is not too much to expect that the exercise of this prosecutorial discretion be tempered by an obligation to respond to such a problem. On that principle, in cases in which witnesses favorable to the prosecution are accorded immunity while those whose testimony would be exculpatory of the defendant are not, or in ones where the failure to grant immunity deprives the defendant of vital exculpatory testimony, due process may be violated (see People v Sapia, supra, at p 166; People v Arroyo, 46 N.Y.2d 928, 930, supra; Earl v United States, 361 F.2d 531, 534, n 1 [BURGER, J.], cert den 388 U.S. 921; United States v Gaither, 539 F.2d 753 [BAZELON, J., statement on denial of rehearing en banc], cert den 429 U.S. 961; United States v Saettele, 585 F.2d 307, 310-314 [BRIGHT, J., dissenting]; State v Broady, 41 Ohio App.2d 17; Westen, Compulsory Process Clause, 73 Mich L Rev 71, 166-170; Note, Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv L Rev 1266).
It is also well-settled law that one who is granted immunity in return for his testimony receives no license to swear falsely with impunity while under the protection of that immunity (Glickstein v United States, 222 U.S. 139; United States v Apfelbaum, 445 U.S. 115, 131; McCormick, Evidence [2d ed], § 143, p 308; see CPL 50.10, subd 1). However, in this case the witnesses did not seek immunity for any false statements they might make at Shapiro's trial. Confronted with the prosecutor's ominous injunction that they be consistent above all else, they sought assurance that any misstatements or inconsistencies they may have uttered during the course of their prior testimony would not suddenly become prosecutable after their appearance on defendant's behalf. Accordingly, the District Attorney's refusal to extend immunity, not to speak of the menacing terms in which he did so, could have served no purpose other than to irretrievably bind the witnesses to their previous sworn versions, accurate or not. By doing so, it impermissibly affected their meaningful exercise of their Fifth Amendment rights and insured their unavailability as witnesses for the defendant. The prosecutor's conduct was, therefore, clearly erroneous.
From this perspective the case fits easily within those rulings which hold that substantial interference by the State with a defense witness' free and unhampered choice to testify violates due process as surely as does a willful withholding of evidence. For example, in Webb v Texas ( 409 U.S. 95), the Trial Judge singled out the defendant's only witness for a lengthy admonition on the dangers of perjury, assuring the witness that if he lied he would be prosecuted and probably convicted. In reversing the defendant's conviction, the Supreme Court held the refusal to testify on Fifth Amendment grounds directly traceable to judicial intimidation. Similarly, in United States v Morrison ( 535 F.2d 223, cert den sub nom. Boscia v United States, 429 U.S. 824), a case closer to the one before us, the defendant was found to have been denied due process when the prosecutor drove defendant's principal witness from the stand by repeatedly threatening her with criminal charges, including perjury, if she testified. (See Clark v State, 585 P.2d 367 [Okla] [prosecutor's threat to file perjury charges]; Campbell v State, 37 Md. App. 89 [prosecutor's threat to reopen stet processus on key witness to prevent his testifying in defendant's behalf]; United States v Hammond, 598 F.2d 1008 [FBI agent's threat to retaliate against witness]; cf. United States v Henricksen, 564 F.2d 197 [condition of codefendant's plea bargain requiring him not to testify at defendant's trial, though his testimony would have tended to exonerate defendant].) The District Attorney's unwarranted action against Shapiro's prospective witnesses led to the same unconstitutional result. Furthermore, the prejudice in the present case was not lightened when the Trial Judge refused to instruct the jury on the reason the witnesses were not called to the stand (see People v Sapia, 41 N.Y.2d 160, 164, supra).
All this is not to disregard a District Attorney's obligation to warn potential witnesses of their possible liability for false statements under oath. We hold only that such warnings must not be emphasized to the point where they are transformed instead into instruments of intimidation. (Cf. Webb v Texas, supra, at p 97; United States v Winter, 348 F.2d 204, 210 [WEINFELD, J.].) Our Sixth and Fourteenth Amendment guarantees serve to insure that a criminal trial does not devolve into a game to be won or lost whatever the means. Certainly, neither coercion nor the withholding of relevant testimony is tolerable. Nor may such results be justified on the presumption that the witnesses in question will swear falsely. Especially is the injunction to be fair levied at the District Attorney, whose office demands that he represent interests far broader than the outcome of a single trial (Code of Professional Responsibility, EC 7-13; cf. People v Thomas, 47 N.Y.2d 37, 43-44).
For such reasons and because the effect of the intimidation on the witnesses' decision not to testify may not now be erased, under the circumstances of this case we believe that, on a new trial, the only way in which the prejudice created by the prosecutor's threats can be dispelled would be to require that the defendant's witnesses be granted immunity as a condition to subjecting the defendant to a new trial (see United States v Morrison, supra, at p 229; United States v Paiva, 294 F. Supp. 742, 746; Note, 91 Harv L Rev 1266, 1269; cf. Westen, Compulsory Process Clause, 73 Mich L Rev 71, 170, n 477; United States v Leonard, 494 F.2d 955, 985, n 79 [BAZELON, Ch. J., concurring and dissenting]); United States v De Palma, 476 F. Supp. 775).
III
We turn now to defendant's argument that the wiretapped telephone conversations and their fruits must be suppressed because the eavesdropping orders, conceded to have been properly made under State law (CPL 700.05, subd 2), exceeded the grounds of permissible State regulation as defined by the Federal wiretapping statute (US Code, tit 18, § 2516, subd [2]). The question so raised poses a novel application of the doctrine of Federal pre-emption.
Congress, in enacting title 3 of the Omnibus Crime Control and Safe Streets Act of 1968, relied upon the broadest reach of its commerce clause powers, in large part to impose upon the States the minimum constitutional criteria for electronic surveillance legislation mandated by Berger v New York ( 388 U.S. 41) and Katz v United States ( 389 U.S. 347). But the legislative intent was not to supersede State regulation of these matters entirely; the grant of enabling power to the States in section 2516 makes this much clear. For the statute recognizes that a State is free to either adopt procedures and standards more restrictive than those imposed by the Federal act or, if it desires, to prohibit wiretapping within its borders altogether (Commonwealth v Vitello, 367 Mass. 224; cf. Askew v American Waterways Operators, 411 U.S. 325). On the other hand, under pre-emption principles, any State law drawn more broadly than title 3's standards runs afoul of the supremacy clause (US Const, art VI, cl 2; see Tribe, American Constitutional Law, p 379). Our inquiry, therefore, focuses on whether the State statute at issue "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" (Hines v Davidowitz, 312 U.S. 52, 66-67; see Savage v Jones, 225 U.S. 501, 533; Nettleton Co. v Diamond, 27 N.Y.2d 182, 190-191). The answer is that it does.
The electronic device placed on Shapiro's telephone, for example, obviously falls within the ambit of Congress' power to regulate commerce inasmuch as its installation put the New York authorities in a position to intercept local as well as interstate calls made to and from Shapiro's home.
The section at subdivision (2) provides: "The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses."
The provisions of title 3 do more than codify bare constitutional requisites; they manifest a Congressional design to protect the privacy of wire and oral communications by confining State authorization for eavesdropping by wiretap to what in Congress' view are appropriate and compelling circumstances (see Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong Admin News, 1968, p 2153). Thus, subdivision (2) of section 2516 carefully enumerates the crimes considered serious enough to warrant investigation by wiretap, namely "murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses" (emphasis supplied).
Its drafters did not keep their intentions secret. The list was to represent a class of major offenses that were either "intrinsically serious or * * * [were] characteristic of the operations of organized crime" (Senate Report No. 1097, p 2234). As is apparent, with the exception of gambling and bribery, the designated crimes all involve harm or the substantial threat of harm to the person, a "limitation [expressly] intended to exclude such offenses as fornication and adultery" from the permissible scope of electronic surveillance (id., at p 2187). Further, the ejusdem generis rule dictates that the general phrase "other crime dangerous to life [or] limb", since it follows words of a particular meaning, is to be construed as applying only to crimes of the same kind as those precisely stated (see People v Illardo, 48 N.Y.2d 408, 416; McKinney's Cons Laws of NY, Book 1, Statutes, § 239; Black, Interpretation of Laws, p 141). It is also not irrelevant to observe that a narrow reading is in harmony with our own sensitivity to the dangers inherent in electronic eavesdropping (see People v Washington, 46 N.Y.2d 116, 121-122).
Nevertheless, even cursory examination of New York's wiretapping provisions reveals that the range of crimes in which electronic interception is permitted is much more encompassing than the Federal standard would seem to admit (Pitler, New York Criminal Practice Under the CPL, p 513). However, that does not alter the fact that the bases for the eavesdropping warrant in this case — allegations of sexual abuse and the promotion of prostitution — however, violative of New York criminal law, do not come within the intendment of the Federal statute because they cannot be said to be "crime[s] dangerous to life [or] limb". Furthermore, while it is possible for such crimes to involve the use of forcible compulsion (see Penal Law, § 130.65), the State wiretapping statute is not framed with this particularity (see CPL 700.05, subd 8, pars [b], [h]), and there was no indication from which the police could have reasonably suspected that Shapiro's alleged criminality partook in any measure of either violence or coercion.
CPL 700.05 (subd 8, par [b]) only specifies sexual abuse in the first degree as a ground for an eavesdropping order. This crime is defined in terms of
"subject[ing] another person to sexual contact:
"1. By forcible compulsion; or
"2. When the other person is incapable of consent by reason of being physically helpless; or
"3. When the other person is less than eleven years old" (Penal Law, § 130.65).
There appears no basis on which the police could justifiably have believed Shapiro's misconduct fell within the embrace of any of these three meanings.
In fact these criminal activities involved only consensual conduct, to which, as already indicated, the legislative history tells us the Federal statute does not extend the reach of permissible wiretapping (see Senate Report No. 1097, 90th Cong, 2d Sess, U.S. Code Cong Admin News, 1968, p 2187). That State law deems persons less than 17 years old "incapable of consent" (Penal Law, § 130.05, subd 3, par [a]) does not catapult these criminal acts into the status of "crimes dangerous to life [or] limb". Nor, of course, may any claim that our own State Legislature has determined that such acts presented a substantial danger to life and limb override the considered judgment of Congress that they did not.
By this we do not in the slightest mean to suggest that the State's interest in prescribing criminal penalties for participation with minors in acts of prostitution or sexual abuse is not a strong or even compelling one, or that wiretapping may not be authorized in conformance with the supervening Federal standard where similar acts are undertaken by means of force. But the standard may not be expanded beyond the contemplation of the drafters to include within its sweep more subtle forms of personal injury, for example, any deleterious psychic consequences to minors that may result from their participation in such practices. Thus, under the circumstances of this case, to the extent that CPL 700.05 was read to permit authorization of the wiretaps for crimes not involving the use of force or, indeed, any danger to life or limb, it contravened the requirements of section 2516 of the Federal statute. The wiretaps, therefore, were invalid and the evidence gleaned from them should accordingly have been suppressed (Omnibus Crime Control and Safe Streets Act of 1968, tit 3, § 801, subd [b], 82 U.S. Stat 211; see Lee v Florida, 392 U.S. 378, 385-386).
The dissent draws heavily on dicta in Schwartz v Texas ( 344 U.S. 199), a case subsequently overruled (Lee v Florida, 392 U.S. 378), to argue that the Federal wiretapping statute cannot, consistent with the Tenth Amendment, proscribe the use of evidence in State courts merely because that evidence was obtained by means outlawed by the wiretapping statute rather than by the Constitution itself.
Schwartz held that a State court was not impelled to reject evidence garnered in violation of section 605 of the Federal Communications Act of 1934, the predecessor of title 3, even though the statute had been judicially construed to require such exclusion in the Federal courts (see Nardone v United States, 302 U.S. 379). However, in overruling Schwartz in Lee v Florida (supra), the Supreme Court recognized Schwartz' rationale to be at odds with Mapp v Ohio ( 367 U.S. 643) which, according to the court, "imposed a judicially devised exclusionary rule in order to insure that a State could not adopt rules of evidence calculated to permit the invasion of rights protected by federal organic law" (392 US, at p 385). As the court in Lee correctly noted, it was the supremacy clause that forbade any court, State or Federal, from "serv[ing] as an accomplice in the willful transgression of 'the Laws of the United States', laws by which 'the Judges in every State [are] bound'" (392 US, at p 386; see, also, Flaherty v Arkansas, 415 U.S. 995, 996-997, n 3 [DOUGLAS, J., with BRENNAN and MARSHALL, JJ., dissenting from denial of certiorari]).
For all these reasons, the order of the Appellate Division should be reversed and the case remitted to the County Court, Westchester County, for further proceedings.
I am compelled to dissent, for I am of the opinion that none of the three issues discussed by the majority constitutes a basis for reversal.
I
First, my colleagues in the majority conclude that, as a matter of law, it was an abuse of discretion for the Trial Judge to grant the People's motion to consolidate Indictment No. 143 with Indictment Nos. 117 and 118. Presumably, this conclusion is premised upon a finding that the potential for prejudice was so patent and so substantial that the decision to consolidate clearly exceeded the bounds of judicial authority, even though consolidation was permissible under the relevant statute (CPL 200.20, subd 2, par [c]; subd 4). Yet the precise factors upon which the majority bases its finding of inevitable prejudice remain somewhat obscure.
All three indictments charged defendant with having committed various sex-related offenses, ranging from sexual abuse in the second degree to promoting prostitution in the first degree. Of course, it cannot be the mere fact of similarity among the various crimes charged that is the source of the prejudice, for similarity is the very trait that renders the offenses joinable under the statute. Thus, it would appear that the majority's objection to the joint trial of the indictments in this case must be based upon a perceived danger of prejudice resulting from the cumulative impact upon the jury of a large number of similar counts. In my view, however, there was nothing of a substantial nature to be gained by ordering the charges in Indictment No. 143 to be tried separately from those contained in Indictment Nos. 117 and 118.
CPL 200.20 (subd 2, par [c]) provides:
"Two offenses are 'joinable' when:
* * *
"(c) Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law".
It is not and, indeed, cannot be disputed that the counts in Indictment Nos. 117, 118 and 143 were joinable under this section, and, for that reason, the indictments were proper subjects for consolidation under CPL 200.20 (subd 4).
Indictment No. 143 charged defendant with 64 counts of various sex crimes involving young boys, all occurring between July 1, 1972 and November of 1973: one count of sodomy in the second degree, one count of sexual abuse in the second degree, 20 counts of sodomy in the third degree and 21 counts each of sexual misconduct and endangering the welfare of a child. Indictment No. 118 contained one count of sodomy in the second degree, one count of endangering the welfare of a child, one count of sexual misconduct and one count of sexual abuse in the second degree. Finally, in Indictment No. 117, defendant was charged with a single count of promoting prostitution in the first degree, a class B felony, and one additional count of endangering the welfare of a child.
Interestingly, defendant made no attempt to have the individual counts in the voluminous Indictment No. 143, which involved eight separate victims, severed and tried separately (see CPL 200.20, subd 3). Yet, it would seem that the danger of prejudice flowing from a repetition of sordid evidence, if it existed at all, would be more likely to arise in a trial involving some 64 counts of similar sexual crimes. In view of defendant's apparent acquiescence in the notion of a single trial for all of the charges of deviant misconduct recited in Indictment No. 143, I must assume that his objection to a joint trial of Indictment Nos. 117, 118 and 143 was not actually based upon a concern that he would be prejudiced with respect to the four counts in Indictment No. 118, which were substantially similar in nature and degree of seriousness to the 64 counts specified in Indictment No. 143. Instead, as the majority's opinion suggests, the principal cause for concern was the cumulative impact that the total of 68 counts involving private perversion would have upon the jury's consideration of the more serious count specified in Indictment No. 117, promoting prostitution in the first degree.
Yet, since there is no necessary relationship between the numerous charges of personal sexual misconduct and the charge of promoting prostitution, it is difficult to see how the jury's consideration of the latter could have been influenced by the evidence presented to support the former. Common experience teaches us that individuals who repeatedly engage in acts of sexual perversion may appear to be the victims of both their own deviant sexual urges and the efforts of those who would exploit those urges for personal gain. The victims and the victimizers clearly have different roles to play in the mercantile world of perversion for profit, and, just as we as Judges can recognize the distinction between the two roles, we may readily expect that a reasonable jury will be capable of doing the same. In any event, it cannot be said upon the present record that the danger of prejudice with respect to the "promoting" count contained in Indictment No. 117 was so blatant that it was an abuse of discretion as a matter of law for the Trial Judge to refuse to sever that count from the 64 other counts of sexual misconduct recited in Indictment No. 143.
In an apparent recognition of the weakness of its conclusion, the majority seeks to bolster the case for severance by observing that defendant asserted before the trial court that he wished to testify on the felony counts in Indictment Nos. 117 and 118, but that he further wished "to exercise his constitutional right under the Fifth Amendment not to testify [concerning] the events alleged in Indictment No. 143". It is difficult to discern, however what bearing this observation has upon the majority's ultimate holding.
As the majority opinion notes, "severance based on such ground is [not] available for the mere asking" (People v Dodge, 72 Misc.2d 345, 348). Although severance of joined counts may be required in cases where a joint trial would materially impair the defendant's right to refrain from testifying on one count by reason of his compelling interest in testifying in his own behalf on the other counts (see Cross v United States, 335 F.2d 987), it is the defendant's burden to demonstrate to the trial court through concrete allegations that such circumstances exist and that severance is therefore warranted (United States v Jardan, 552 F.2d 216, 220, cert den 433 U.S. 912; Blunt v United States, 404 F.2d 1283, cert den 394 U.S. 909). Indeed, the defendant must make "a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other" (Baker v United States, 401 F.2d 958, 977, cert den 400 U.S. 965). Moreover, "[i]n making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of 'economy and expedition in judicial administration' against the defendant's interest in having free choice with respect to testifying" (id.).
Here, no such specific information was offered by defendant to the Trial Judge. With respect to the various charges contained in Indictment No. 118, defendant's affidavit merely alleged that he wished to testify on the felony count because "he is the only person in a position to do so". With regard to the more serious count contained in Indictment No. 117, defendant stated only that his testimony would be helpful to his defense, in that it would "establish that he was not culpable under the statute * * * and in particular that he did not promote or advance prostitution on the one occasion when he was charged with having done so". Finally, defendant's affidavit stated argumentatively that "without [defendant's] testimony it is absolutely impossible to defend against the felony charges contained in [the] two indictments".
Of course, such conclusory statements were not sufficient under existing case law to establish that defendant has "important testimony" to give concerning at least one of the counts for which he was to be tried. Lacking specific allegations as to the subject matter or relevance of his proposed testimony, defendant's affidavit gave the Trial Judge no concrete basis for concluding that his need to testify was genuine. In fact as the Trial Judge noted, the sole specific statement made by defendant in support of his motion to sever indicated that his testimony would not be exculpatory or even relevant to his defense.
Defendant's affidavit stated that he planned to testify in connection with the promoting prostitution charge "that he never received any money * * * or any other financial benefit" from the events of January 31, 1974. The theory of the prosecution, however, was that defendant had committed a criminal act by "knowingly advancing" the prostitution of a minor and not by "knowingly profiting" from the prostitution of a minor (see Penal Law, § 230.30, subd 2; § 230.32). Thus, defendant's testimony on the promoting prostitution charge would not have been directly exculpatory.
Similarly, defendant made no showing that he had a "strong need to refrain from testifying" on the charges stated in Indictment No. 143. In this regard, defendant stated in conclusory fashion: "The Court will observe that in Indictment 143 as to each date on which felony counts are alleged, at least two and sometimes three or four persons are alleged to have been present. It is apparent that the defendant has good reason to prefer to rely solely upon his legal defense to these charges". This rather cryptic assertion was hardly sufficient to permit the trial court intelligently to determine whether a joint trial of the three indictments would materially impair defendant's freedom to choose whether or not to testify.
In short, defendant's allegations concerning his desire to testify on the felony charges in Indictment Nos. 117 and 118 and to refrain from testifying on the multiple counts in Indictment No. 143 added nothing to the case in favor of severance. Absent specific allegations on this point, defendant's bare assertions could not serve to strengthen his position with respect to the motion to sever, and, consequently, the trial court's decision to deny the motion cannot be considered an abuse of discretion. I pause only to add that I cannot share the majority's apparent disregard for the significance of "judicial economy" as an important consideration militating in favor of a joint trial of the multiple indictments in this case. While a defendant's due process rights are always, of course, of paramount importance, we cannot afford, in this era of judicial austerity, to give short shrift to the countervailing need to preserve our judicial resources wherever possible.
II
In reversing defendant's conviction, the majority has also held, without any support in precedent, that the People may not seek a retrial unless and until the District Attorney agrees to confer immunity from prosecution for perjury upon certain of defendant's witnesses. This holding is apparently based upon the fact that, at an in camera conference, the District Attorney flatly refused to extend immunity to these individuals and instead stressed that he would press criminal charges if the witnesses' trial testimony indicated that their previous sworn statements had been false. Because I believe that the majority's rationale is premised upon a serious misreading of the body of Federal case law upon which it relies, I am compelled to offer my strong opposing views on this aspect of the majority's ruling.
Like the applicable Federal statute (US Code, tit 18, §§ 6002-6003), our own statutes vest in the District Attorney the sole authority to decide whether to grant or withhold immunity in cases such as this (see CPL 50.30; see, also, CPL 50.20). The courts, as a general rule, do not tamper with the exercise of this discretionary authority, which has been conferred upon the District Attorney by the Legislature as a tool to assist him in implementing the policies of his office (cf. Matter of Kilgo, 484 F.2d 1215, 1222). There do exist rare instances in which the District Attorney's use of his discretionary authority impinges upon the defendant's fundamental right to due process of law, and, in such cases, it has been suggested that the courts may intervene (see People v Sapia, 41 N.Y.2d 160, 165-166, cert den 434 U.S. 823). Although the majority apparently regards this case as one of those "rare instances", my reading of the applicable decisions leads me to a contrary conclusion.
The seminal case on this question is Earl v United States ( 361 F.2d 531, cert den 388 U.S. 921). There, the United States Court of Appeals for the District of Columbia refused to reverse a conviction solely on the ground that the United States Attorney had declined to confer immunity upon a defense witness who had become "unavailable" due to the assertion of his Fifth Amendment privilege against self incrimination. In an oft-cited footnote, however, the court observed: "We might have quite different, and more difficult, problems had the Government in this case secured testimony from one eyewitness by granting him immunity while declining to seek an immunity grant for [defendant's witness] to free him from possible incrimination to testify for [defendant]. That situation would vividly dramatize an argument on behalf of [defendant] that the [immunity] statute as applied denied him due process. Arguments could be advanced that in the particular case the Government could not use the immunity statute for its advantage unless Congress made the same mechanism available to the accused" (361 F.2d, at p 534, n 1). This dictum was, of course, based upon the underlying, unobjectionable notion that the prosecutor may not abuse his authority to grant immunity selectively by utilizing it as a device to manipulate the evidence available for trial. The Earl court also noted in passing that the power to confer immunity may not be used cynically as a means of affirmatively suppressing evidence (id., at p 534; see Brady v Maryland, 373 U.S. 83; People v Sapia, supra).
Since the Earl decision, however, the Federal courts have applied the principles articulated in that case most sparingly, holding, for the most part, that the question of the Government's obligation to confer immunity upon defense witnesses does not even arise unless the Government has itself obtained important prosecution witnesses through the use of its power to grant immunity, a circumstance which certainly does not obtain in the instant case (United States v Lang, 589 F.2d 92, 95-96; United States v Wright, 588 F.2d 31, 35, and n 3, cert den sub nom. Sorbara v United States, 440 U.S. 917; United States v Bautista, 509 F.2d 675, 677, cert den sub nom. Monsivais v United States, 421 U.S. 976; United States v Allstate Mtge. Corp., 507 F.2d 492, 494-495, cert den 421 U.S. 999; United States v Ramsey, 503 F.2d 524, 532, cert den 420 U.S. 932; United States v Jenkins, 470 F.2d 1061, 1063-1064, cert den 411 U.S. 920). Indeed, the Federal courts have been nearly unanimous in their adherence to the general rule that a defendant has no constitutional right to compel the prosecutor to extend immunity to defense witnesses (United States v Niederberger, 580 F.2d 63, 67, cert den 439 U.S. 980; United States v Beasley, 550 F.2d 261, 268, cert den 434 U.S. 938; United States v Alessio, 528 F.2d 1079, 1081-1082, cert den 426 U.S. 948; United States v Stofsky, 527 F.2d 237, 249, cert den 429 U.S. 819; United States v Gomez-Rojas, 507 F.2d 1213, 1220, cert den 423 U.S. 826; Cerda v United States, 488 F.2d 720; United States v Berrigan, 482 F.2d 171, 190).
For cases in which the dictum in Earl has been applied directly, see United States v Saettele ( 585 F.2d 307, 310, 311-313 [BRIGHT, J., dissenting], cert den 440 U.S. 910), United States v Henricksen ( 564 F.2d 197), United States v Leonard ( 494 F.2d 955, 985, n 79 [dictum]) and United States v De Palma ( 476 F. Supp. 775).
United States v Gaither ( 539 F.2d 753 [BAZELON, J., statement on denial of rehearing en banc], cert den 429 U.S. 961) is not to the contrary. There, Judge BAZELON, in a concurring opinion, merely stated that he had some serious reservations concerning the Government's absolute right to withhold immunity under the circumstances of that case and, hence, would have preferred if the majority of the appellate panel had made it plain that it was not passing upon the issue in denying the defense motion for a rehearing en banc.
Similarly, it should be noted that the proposition for which the majority cites United States v La Duca ( 447 F. Supp. 779) was expressly rejected on appeal. The appellate court in La Duca stated: "The * * * proposition [that the Sixth Amendment or the due process clause mandates that the Government make use immunity available to defense witnesses] has been rejected to date by this as well as other courts of appeals. Rather, it has been uniformly accepted that the grant or denial of immunity is within the sole discretion of the [prosecution]" (United States v Rocco, 587 F.2d 144, 146-147, and n 10, cert den 440 U.S. 972, affg United States v La Duca, 447 F. Supp. 779).
Yet, in the face of this considerable body of Federal case law, the majority has nonetheless concluded that defendant's rights were somehow infringed when the People refused to confer immunity upon his witnesses. In defense of its holding, the majority relies primarily upon cases such as Webb v Texas ( 409 U.S. 95) and United States v Morrison ( 535 F.2d 223, cert den sub nom. Boscia v United States, 429 U.S. 824), in which otherwise willing and forthcoming defense witnesses were driven from the witness stand by repeated threats of prosecution for perjury. Indeed, in Morrison, the defendant's principal witness asserted her Fifth Amendment privilege against self incrimination only after the Government prosecutor had threatened her with prosecution through an intermediary on three separate occasions and had, additionally, summoned her to his office in an unauthorized manner and again raised the threat of prosecution for perjury as well as for other, more serious criminal offenses. Under these egregious circumstances, no one could deny that the Government had, in effect, deliberately suppressed evidence favorable to the defendant and that the appropriate remedy was to condition retrial upon the Government's agreement to confer immunity upon the frightened defense witness.
It has been suggested that there may be situations in which the dictates of due process would somehow empower a court to direct a witness to testify under a limited grant of testimonial or "use immunity", even without the consent of the prosecutor (Pitler, New York Criminal Practice, 1976 Cum Supp, p 354). In my view, however, the suggestion that a court has inherent authority to confer immunity pursuant to its obligation to ensure due process of law represents a fundamental misunderstanding concerning the nature of the immunity concept. As we have previously observed, the act of conferring immunity from prosecution upon a potential witness is, in essence, an ad hoc suspension of the relevant penal statutes (Matter of Doyle, 257 N.Y. 244, 259 [CARDOZO, Ch. J.]). Consequently, the authority to extend immunity and thereby work a temporary suspension of one or more penal statutes may be conferred only by the Legislature, which is, after all, the basic source of our criminal law. Indeed, it has repeatedly and consistently been held that, since immunity, whether "testimonial" or "transactional", is a creature of statute, the courts have no inherent authority to utilize it as a means of ensuring a defendant's due process rights (e.g., United States v Lang, 589 F.2d 92, 96, supra; United States v Niederberger, 580 F.2d 63, 67, cert den 439 U.S. 980, supra; United States v Allstate Mtge. Corp., 507 F.2d 492, 494-495, cert den 421 U.S. 999; United States v Morrison, 535 F.2d 223, cert den sub nom. Boscia v United States, 429 U.S. 824, supra; United States v Berrigan, 482 F.2d 171, 190, supra; Earl v United States, 361 F.2d 531, 534, cert den 388 U.S. 921, supra). "Whether the good to be attained by procuring the testimony of criminals is greater or less than the evil to be wrought by exempting them forever from prosecution for their crimes is a question of high policy as to which the law-making department of the government is entitled to be heard" (Matter of Doyle, supra, at p 261).
In our State, the "law-making department of the government" has determined that the authority to grant or withhold immunity for trial witnesses should rest soley with the District Attorney (see CPL 50.30). The Legislature has specifically declined to vest similar discretionary powers in the judicial branch, and nothing in the due process clause of the Constitution can alter or modify that legislative decision. To be sure, there may be situations in which principles of due process and fundamental fairness preclude trial of a defendant unless and until the District Attorney exercises his statutory authority to confer immunity upon a defense witness (see (People v Sapia, 41 N.Y.2d 160, supra). In such cases, however, the proper remedy for the District Attorney's recalcitrance might be, at best, for the court to dismiss the indictment (see United States v De Palma, 476 F. Supp. 775, supra) and certainly not for the court to assume for itself the power vested in the District Attorney to confer immunity upon a witness.
The present case, however, is a far cry from Morrison and Webb (cf. People v Sapia, 41 N.Y.2d 160, supra). Defendant does not contend, nor could he on the present record contend, that the District Attorney drove otherwise willing defense witnesses from the stand through the use of threats or other harassing measures. To the contrary, it appears that the idea of making themselves unavailable to testify for defendant by invoking the Fifth Amendment privilege against self incrimination to prevent possible perjury charges came directly from the witnesses themselves, who were acting upon the advice of counsel. Accordingly, this case falls squarely within the general rule that "'[t]he Government cannot be penalized * * * under the Compulsory Process Clause of the Sixth Amendment * * * because [the witnesses] chose to exercise [their] Fifth Amendment rights, thus making [themselves] as unavailable for purposes of testimony as [a] deceased [witness]'" (People v Sapia, supra, at p 165, quoting United States v Gomez-Rojas, 507 F.2d 1213, 1220, cert den 423 U.S. 826, supra).
Nor do there exist in this case any aggravating circumstances, such as "prosecutorial misconduct", which would bring into play defendant's due process rights and thereby take the case out of the general rule (see United States v Rocco, 587 F.2d 144, 147, n 10, cert den 440 U.S. 972; United States v Saettele, 585 F.2d 307, 310-313 [BRIGHT, J., dissenting], cert den 440 U.S. 910; see, also, United States v Herman, 589 F.2d 1191, cert den 441 U.S. 913). Although the majority goes out of its way to characterize the District Attorney's position as "threatening" and "menacing", such characterization is patently unwarranted, for it is plain even from the majority's recitation of the relevant facts that the District Attorney did no more than inform the court and the parties, upon inquiries initiated by them, that he was unwilling to forego his right to prosecute the witnesses if their trial testimony revealed that they had committed the crime of perjury on a previous occasion. In so doing, the District Attorney was not "suppressing" evidence material to the defense, but rather was simply refusing affirmatively to aid defendant in his quest for favorable testimony by extending immunity to otherwise recalcitrant witnesses. That "[t]he ultimate effect was to deprive defendant of any direct witnesses to his side of the story" (p 759), as the majority suggests, is of no analytical significance, since, in this case, the underlying source of the deprivation was the voluntary decisions by the witnesses to refrain from testifying; the District Attorney contributed to this "ultimate effect" only indirectly by refusing to induce the witnesses to testify through a grant of immunity. Unless we are prepared to hold that the People have an absolute obligation to confer immunity and to forswear any possibility of future prosecution for prior perjury whenever a material defense witness asserts his Fifth Amendment privilege against self incrimination, I cannot see how we can conclude upon the facts in this case that defendant has a constitutional right to have his witnesses immunized as a condition to retrial.
In United States v Herman ( 589 F.2d 1191, 1200, cert den 441 U.S. 913), the United States Court of Appeals for the Third Circuit, commenting upon its earlier decision in United States v Morrison ( 535 F.2d 223, cert den sub nom. Boscia v United States, 429 U.S. 824, supra), stated that Morrison does not stand for the proposition that defendants have "a general sixth amendment right to demand that witnesses of their choice be immunized or that their indictments be dismissed". Nor do defendants have a due process right to have their witnesses immunized unless they "show that the government's decisions were made with the deliberate intention of distorting the judicial fact finding process" (589 F.2d, at p 1204, citing United States v Morrison, supra). In the instant case, needless to say, no such showing was made.
The majority apparently also finds it significant that the Trial Judge denied defendant's request for a "missing witness" instruction to clarify his failure to call Shomer, Dowling and Gary F. to the witness stand. This ruling, according to the majority, only exacerbated defendant's predicament in establishing a viable defense to the promoting prostitution charge. Yet, the majority does not expressly hold that the refusal to give the requested charge was error, and, indeed, it is doubtful whether error was in fact committed, since "when a Fifth Amendment and testimonial privilege has been invoked by a witness and granted, governmental refusal to grant immunity in order to permit him to testify does not give rise to a missing witness instruction" (Morrison v United States, 365 F.2d 521, 524; see United States v Lacouture, 495 F.2d 1237, cert den 419 U.S. 1053; see, also, People v Sapia, 41 N.Y.2d 160, 163-164, supra).
III
Finally, I must note my disagreement with the majority's determination that the wiretap evidence in this case should have been suppressed. It is conceded by defendant that the wiretap was carried out in accordance with the applicable provisions of the Criminal Procedure Law (CPL 700.05-700.70), and, therefore, the only remaining issue is whether suppression is required by the existing Federal statutes. Unlike my colleagues in the majority, I would conclude that the applicable Federal statute does not mandate suppression in this case.The Federal statute, which establishes certain minimum standards for State wiretapping statutes, limits the types of investigations in which wiretapping warrants may be issued to those involving the following crimes: "murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotics drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year" (US Code, tit 18, § 2516, subd [2] [emphasis supplied]). It has been argued in this case that the crime of promoting the prostitution of a minor and committing sodomy with a minor are not encompassed within the broad, catchall category of "other crimes dangerous to life, limb or property", and the majority has apparently adopted that view. I am unable to concur on this point.
Our State wiretapping provisions were drafted with a view toward bringing New York law into conformity with the Federal statutes and case law. The "designated offenses", which are delineated in CPL 700.05 (subd 8), were enacted in an effort to elaborate upon the rather broad and somewhat ambiguous list of "designted offenses" outlined in the Federal Omnibus Crime Control and Safe Streets Act (see Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 700.05, pp 248-249). To the extent that CPL 700.05 (subd 8) covers the types of crimes for which defendant was being investigated, that provision must be regarded as representing a legislative determination that such crimes do indeed present a substantial danger to "life and limb". And, certainly, it cannot be said that such a finding is irrational in view of the obvious hazards such crimes present to the safety and well-being of the children who are exploited in the marketplace of juvenile prostitution.
As the majority notes, the list of offenses designated by Congress as proper subjects for wiretapping was intended to encompass crimes that are either "intrinsically serious or * * * [are] characteristic of the operations of organized crime" (Senate Report No. 1097, 90th Cong, 2d Sess, U.S. Code Cong Admin News, 1968, pp 2153, 2234). I find it difficult to believe, however, that the crimes of promoting the prostitution of a minor and committing sodomy with a minor cannot readily be classified within either of these categories. To be sure, Congress intended to exclude from the reach of electronic eavesdropping such "consensual" sexual offenses as "fornication and adultery" (Senate Report No. 1097, at p 2187). But, crimes involving the sexual exploitation of children such as are involved here can hardly be analogized to the petty vices of fornication and adultery which take place between consenting adults.
Moreover, even if it is assumed for the sake of argument that the Federal statute does prohibit wiretapping in a case such as this, it would not necessarily follow that the fruits of the wiretap need be suppressed (cf. Schwartz v Texas, 344 U.S. 199, 203). Although section 2515 of the Omnibus Crime Control and Safe Streets Act (US Code, tit 18, § 2515) expressly prohibits the use of wiretap evidence in both State and Federal courts when that evidence was obtained in violation of the Federal act, this proscription cannot have any legally binding effect upon the States unless it was enacted by Congress pursuant to the authority granted to it by the United States Constitution. Of course, where Congress acts within the boundaries of its constitutional authority, its enactments must be respected, as the majority notes, in accordance with the supremacy clause of the Constitution (US Const, art VI, § 2).
In Schwartz v Texas ( 344 U.S. 199), the Supreme Court considered the effect of section 605 of the Federal Communications Act, the predecessor of the wiretap provisions of the Omnibus Crime Control and Safe Streets Act, upon the admissibility of wiretap evidence in State courts. Since the Schwartz court found no congressional intent to preclude the use of wiretap evidence obtained in violation of the Federal statute in State courts (accord People v Stemmer, 298 N.Y. 728; Matter of Harlem Check Cashing Corp. v Bell, 296 N.Y. 15), it did not reach and, in fact, expressly declined to decide whether Congress would have had the power to impose such a rule of evidence upon the States had it chosen to do so (344 US, at p 203).
In Lee v Florida ( 392 U.S. 378), the Supreme Court reconsidered its holding in Schwartz in light of Mapp v Ohio ( 367 U.S. 643). The Lee court held that, since the exclusionary rule had been applied to the States through the Fourteenth Amendment in Mapp, there was no longer any impediment to extending the statutory rule of exclusion embodied in section 605 to State prosecutions. Since the Lee decision, which represented an early application of Mapp, however, the Supreme Court has not had occasion to consider whether a Congressionally enacted rule of suppression that is not directly mandated by the Fourth Amendment is binding upon the States. Thus, even under the rationale articulated in Lee, it remains an open question whether an otherwise lawful wiretap constitutes an "unreasonable search and seizure" merely because it was conducted in the pursuit of criminal activities which Congress did not deem serious enough to include among the "designated crimes" in the present Federal wiretapping law. And, it further remains to be seen whether Congress has the power to pre-empt State law on this issue.
The difficulty in this case is that there is no clear constitutional authority for the enactment by the Congress of the rule of "suppression" that is embodied in section 2515 of the Omnibus Crime Control and Safe Streets Act. I do not here dispute the power of Congress to enact legislation to regulate the admissibility of certain types of evidence in the Federal courts. Nor can there be any doubt that Congress is empowered through the commerce clause (US Const, art I, § 8, subd 3) to regulate the use of interstate telephone lines and to prohibit or circumscribe such uses as electronic eavesdropping. It is quite another matter, however, to say that the commerce clause gives Congress the power to prescribe rules of evidence for use in State courts as an incident to its power to regulate interstate commerce. Indeed, an attempt by Congress to do so might well constitute a usurpation of the powers reserved to the States under the Tenth Amendment (US Const, 10th Amdt; cf. National League of Cities v Usery, 426 U.S. 833), since, with the exception of the specific limitations on the admissibility of evidence that are mandated by the Fourth and Fifth Amendments (see Mapp v Ohio, 367 U.S. 643), the responsibility for formulating rules of evidence falls squarely within the province of the States acting through their courts and Legislatures (see Jenkins v Anderson, 447 U.S. 231, ___, 48 USLW 4693, 4696 [decided June 10, 1980]).
Of course, were the prescriptive provisions of the Federal wiretap statute limited to those that are mandated by the Fourth Amendment as interpreted by the Supreme Court in such cases as Berger v New York ( 388 U.S. 41) and Katz v United States ( 389 U.S. 347), there could be no question that they would be binding upon the State courts, since Congress no less than the Supreme Court has the power to prohibit the States from acting in a manner which the Constitution proscribes. But, as the majority notes, "[t]he provisions of title 3 do more than codify bare constitutional requisites"; in fact, they set forth specific restrictions upon the categories of crimes for which wiretapping may be authorized, although there is no suggestion in any of the relevant Supreme Court decisions that the Fourth Amendment mandates such restrictions.
It is my view that, to the extent that these nonconstitutional restrictions form the basis of a legislatively created rule of "suppression", they encroach upon the right of the States to develop their own rules of evidence, and, consequently, are without binding effect in a State prosecution in much the same manner as a Federal hearsay rule would be of little concern in a State common-law proceeding.
To be distinguished are those cases in which the wiretap evidence in question is obtained in violation of one of the procedural guidelines set forth in the Omnibus Crime Control and Safe Streets Act that were modeled directly upon the Supreme Court's Fourth Amendment analysis of wiretapping in Berger v New York ( 388 U.S. 41, supra) and Katz v United States ( 389 U.S. 347, supra). These guidelines are a direct expression of Congress' authority to implement the guarantees contained in the Fourth Amendment and, hence, may properly form the basis of a rule of suppression that is binding upon State courts.
For this reason, I would hold that wiretap evidence obtained in an otherwise lawful manner pursuant to an investigation of crimes encompassed by a State "designated offense" provision such as CPL 700.05 (subd 8) is fully admissible in a State court, notwithstanding that the wiretap itself might have been proscribed by the Federal Omnibus Crime Control and Safe Streets Act because it did not involve one of the Federally designated crimes. In summary, in the absence of a specific constitutional mandate or prohibition, it is within the province of the States, in my opinion, to determine for themselves which criminal acts are sufficiently serious to warrant the use of evidence obtained through electronic eavesdropping; the views of Congress on this point, while persuasive, have no binding effect. Thus, even if it be assumed that the crimes for which defendant was being investigated in this case were not covered by the "designated offense" provisions of the Federal act, that discrepancy would not provide a sound basis for suppressing the wiretap evidence in question here, which, as defendant readily concedes, was obtained in conformity with New York law.
For all of the foregoing reasons, I respectfully dissent and cast my vote to affirm the judgment of conviction.
Chief Judge COOKE and Judges JONES, WACHTLER and MEYER concur with Judge FUCHSBERG; Judge GABRIELLI dissents and votes to affirm in a separate opinion in which Judge JASEN concurs.
Order reversed and case remitted to Westchester County Court for further proceedings on the indictments.