People v. Costello , 178 N.Y.S.2d 432 ( 1958 )

Stevens, J. (dissenting).

This was “ an investigation to determine whether there has been, and still is, a conspiracy to commit the crime of murder ’’.

In the course of the interrogation of the witness it appears that the witness invoked his constitutional rights with respect to certain questions and was not pressed. The questions were not set forth so we lack information as to their content. The District Attorney stated ‘ ‘ In other words, there was no intention to grant him immunity with respect to certain matters that were incorporated in certain questions ’ ’. Absent any information or knowledge as to the content of the questions excluded we are required to conclude either that they were not within the scope of the investigation and assume the present questions to have been so included, or that both phases were within the area of proper inquiry. Either way there seems to have been an express limitation on the immunity granted. It is basic that the immunity granted must be coextensive with and as broad as the constitutional privilege of the witness, that is, as broad as the peril threatened. A layman witness should not be required to recall, review and assess his testimony to determine the extent of the immunity and if the limit of the protection afforded is consistent with the danger faced. (People v. De Feo, 308 N. Y. 595.)

I think the case on this aspect may be distinguished from Matter of Knapp v. Schweitzer (2 A D 2d 579, affd. without opinion 2 N Y 2d 913, affd. U. S. Supreme Court, 357 U. S. 371 [June 30,1958]).

In Knapp v. Schweitzer there was no reservation in the area of immunity offered and, by vote of the Grand Jury, conferred upon the defendant. It may be contended that if later the People sought prosecution on a facet reasonably comprehended within the area of prohibition by reason of immunity, they would be estopped by a determination of the court. But the price of speculation in the event of an adverse ruling by a judicial tribunal could be confinement. It is precisely this which the statute seeks to avoid for it is provided that “ immunity shall not be conferred upon any person except in accordance with the provisions of this section ” (Penal Law, § 2447, subd. 4). It (immunity from State prosecution) is conferred when the Grand Jury “ is expressly requested by the prosecuting attorney to order such person to give answer or produce evidence ”. (Penal Law, § 2447, subd. 3[c].) Here the immunity conferred was incomplete for it became operative only when granted and should not be presumed to be retroactive to include areas expressly excluded but presumed relevant.

For the reasons stated I dissent and vote to reverse.