People v. Gorgone ( 1975 )

Kupferman, J.

(concurring). As the Court of Appeals recently stated in Matter of Brown v Ristich (36 NY2d 183, 188, 189) "All adults are presumed competent to testify, and commitment to a mental institution does not automatically render a witness incompetent (People v Rensing, 14 NY2d 210, 213; Barker v Washburn, 200 NY 280; Richardson, Evidence [10th ed.], § 389). Certainly, an adverse party may put competency in issue and in such a case the matter is addressed solely to the discretion of the hearing officer who may examine the witness about to testify and any other person who can establish the mental capacity of the witness (Aguilar v State of New York, 279 App Div 103, 105; cf. District of Columbia v Armes, 107 US 519, 522)” and again: "A witness is said to be capable when he has the ability to observe, recall and narrate, i.e., events that he sees must be impressed in his mind; they must be retained in his memory; and he must be able to recount them with sufficient ability such that the presiding official is satisfied that the witness understands the nature of the questions put to him and can respond accordingly, and that he understands his moral responsibility to speak the truth (2 Wigmore, Evidence [3d ed.], § 492 et seq.).”

The defendant had been granted immunity.

One of the purposes of the interrogation of the defendant before the Grand Jury was to determine "whether the defendant was taking messages from Joseph Yacovelli both prior to and after the murder of Joseph Gallo to other Colombo crime faction members, namely Jerry Lancella.” He could have been doing that even if mentally incompetent.

As the majority states, the essence of contempt is the "willful intent to obstruct justice.”

The defendant was evidently disturbed by the questioning. He was concerned about his own safety. When asked only if he knew one of the gentlemen under suspicion, in his own inimitable style he claimed the Fifth Amendment privilege, "I refuse to answer on the ground — incinerate me.”

The importance of Grand Jury proceedings was stressed by the United States Supreme Court in United States v Calandra (414 US 338) where evidence was permitted despite otherwise exclusionary trial rules as to search and seizure in violation of the Fourth Amendment.

While I am bound by the determination as to competency, see People v Reason (44 AD2d 533), this is a vexatious case. Being incompetent to stand trial does not necessarily mean that you cannot answer questions. This defendant is not now committed to a mental institution as in People v Jordan (35 NY2d 577, 581).

Murphy, Tilzer and Lane, JJ., concur with Nunez, J.; Kupferman, J., concurs in an opinion.

Judgment, Supreme Court, New York County, rendered on May 31, 1974, unanimously reversed, on the law, and the indictment dismissed.