People v. Davis

Order of the Supreme Court, New York County, entered August 21, 1978 dismissing the indictment charging respondent with one count of perjury in the first degree affirmed. While we agree that the conclusion reached by Criminal Term was proper, we are unable to concur in all of the reasons relied on to justify that determination. We hold, as a matter of law, that the defendant did not recant his testimony. However, we are in agreement that the indictment was bottomed upon an answer given to the Grand Jury which was of little relevance to the subject matter of the investigation and, in the circumstances of this case, was intended as a perjury trap (cf. People v Tyler, 46 NY2d 251). The basis for the indictment is the alleged falsity of defendant’s testimony that during his interrogation by his superior, Lieutenant Culley, Culley made the statement that there were witnesses who had seen a man defendant’s size beating another man on 19th Street. Defendant’s response to Culley was that he never got out of his car, a response which defendant admitted to the Grand Jury was untrue. Although defendant’s testimony consumed approximately 125 pages of the transcript, this matter takes approximately one page. When the statement was volunteered, the prosecutor proceeded immediately to pin defendant down to this precise portion of the answer. Once this was accomplished, the matter was abruptly abandoned. The defendant was recalled the following day. While other facets of the conversation were gone into in detail, this issue was not again addressed. In these circumstances, the conclusion is impelling that the question asked was intended to entrap defendant into the commission of perjury. It is interesting to note that although the investigation was directed at the activities of one Joseph (Joe Beck) Di Palermo, the questions relating to him were concentrated in approximately five pages of the defendant’s testimony, although there are scattered references to him in other portions of that testimony. Concur — Ross, Bloom and Yesawich, JJ.