People v. Gittelson

Rabin, J.

(dissenting). I dissent because, in effect, this defendant is being found guilty of, and is being punished for, contempt of court for failure to talk, with a “ built in ” provision to give him an opportunity to purge — all without any questions having been asked, without a failure or refusal on his part to answer, without any charge having been made, and without a trial. Such procedure is violative of due process.

Upon defendant’s plea to perjury, the court imposed a one-year jail sentence. In addition thereto, the court imposed a series of fines with alternative jail sentences in the event the fines were not paid. Prom the statement of the court at the time of sentencing, it is obvious that these fines and alternative jail sentences were imposed to compel the defendant to make additional disclosures, although there is no proof that there were such disclosures to be made. The petitioner pleaded guilty to perjury. He did not plead guilty to any charge of failing to make disclosures, nor was he found guilty of any such charge. If it could be proven that the defendant was willfully withholding information, the remedy would be to hold him for contempt. There is no justification for by-passing a hearing, which is a condition precedent to holding the defendant for contempt. This additional sentence does just that.

Defendant appeals from a judgment of the Supreme Court, entered on September 15, 1965, convicting him on his plea of guilty to 10 counts of perjury, and sentencing him to the Penitentiary for the term of one year, and to pay a fine of $5,000 on each count. An additional term of six months in the Peni*273tentiary was imposed on each count for which the fine was not paid, such terms to be served consecutively with each other.

This case arose out of an investigation commenced to ascertain whether there was, or had been, in existence a conspiracy among various persons doing, and seeking to do business with the City of New York to bribe a high-ranking official of the city government to use his influence to have awarded to them, without public bidding, a contract for the sale of parking meters to the city. Investigation revealed the defendant Bernard Gittelson, as having initiated the scheme, and as having represented that it would be necessary to pay $50,000 to a named official of the Municipal government in order that the Duncan Parking Meter Division of Nautec Corporation obtain a contract without public bidding, for the sale of 60,000 parking meters. The Grand Jury, before which the matter was being presented, found it necessary to obtain the testimony of Gittelson. Accordingly, he was called several times, awarded complete immunity for his role in the transaction, and questioned concerning the money allegedly put at his disposal. On repeated occasions (as subsequently developed) he lied to the jury, denying knowledge of the arrangement. As a result, the Grand Jury investigation came to a halt and the defendant was charged with perjury.

Defendant was charged with 27 counts of perjury and, after some delays, trial began on May 10, 1965. After the People’s opening statement, defendant offered to plead guilty to 10 counts and, after a voir dire examination of the defendant, the court accepted the plea.

The defendant, after pleading guilty, undertook to return to the Grand Jury to tell the truth. His disclosure, upon his return to the Grand Jury, was full and complete enough to establish him guilty, not only of perjury, but also of larceny. Of course, he deserved punishment, but it is my view that the sentence was, in the circumstances of the case, unconscionably severe. I would modify the sentence imposed.

At the time of sentence, it was revealed that during the course of the defendant’s initial appearances before the Grand Jury, he was undergoing psychiatric treatment. The necessity for such treatment might have been the result of various personal problems to which he had been subjected, among them being the senility of his father, the death of his friend and partner, the illness of his brother-in-law, and severe financial losses. These events, coupled with the impending investigation by the District Attorney, could very well have been factors in bringing about Gittelson’s mental and emotional problems, necessitating psychiatric treatment which, as above indicated,- he was undergoing *274at the time of his appearance before the Grand Jury. While his mental condition does not condone the perjury which formed the basis for the underlying indictment, that fact, together with the circumstances which apparently gave rise to such condition, is of importance and is relevant to the sentence imposed.

It is to be noted, that on the day Gittelson pleaded guilty, the court inquired of the defendant if he was willing to submit to a full examination and consultation by a psychiatrist designated by the court. The defendant agreed and, in addition, waived his privilege of confidentiality. At the time of sentencing, there was before the court the report of the court-designated psychiatrist, specifically appointed to advise the court with respect to Gittelson’s mental condition, insofar as it bore on the sentence to bo imposed.

The report, as submitted to the court, concluded with the following sentence: “Mr. Gittelson, considering his past record, by my present examination and by the fact that he is well-motivated toward psychotherapy is fully capable of rehabilitation to again become a useful and honorable member of the community. It is my impression that incarceration in prison for any period of time, long or short, would be instrumental in destroying the patient and would make future rehabilitation impossible.”

What goals are to be achieved in the imposition of sentence? Without listing them in the order of importance, I would say that a sentence is imposed for punishment, to act as a deterrent, and, if possible, to effect the rehabilitation of the person sentenced. Of course, the court need not consider one to the exclusion of the other. In this case, it was not obliged to follow the seeming recommendation of the psychiatrist that, in the interest of rehabilitation, no jail sentence be imposed. But, it does seem that in determining the length of penal servitude to be meted out to this defendant, the court — in balancing the various factors — arrived at the conclusion that the interests of society would be served if he were sentenced to serve one year in jail. That was the sentence imposed with respect to penal servitude.

However, it may very well be that this defendant will be obliged to serve five additional years in the event that he cannot meet the required payments of the fines. It is that possibility that makes this sentence to be what I consider an unconscionable one. The possible duration of penal servitude would go well beyond the one year arrived at by the court as being sufficient in the circumstances to answer for the perjury. And, I think it would completely defeat and eliminate all consideration of the possibility of rehabilitation — if we are to give any weight to the report of the-court-appointed psychiatrist.

*275In considering’ the sentence given the defendant, it would not be improper to consider the treatment of the others who were involved in the scheme. Jerome Robinson received a suspended sentence. Alexander Rittmaster, Garlick and Gordon were given sentences of $500 or 60 days. Robert Rittmaster, who was not involved in any perjury, received a sentence of $250 or 30 days. ‘While it may be said, and perhaps properly so, that Gittelson was deserving of much greater punishment than his co-conspirators, that, 1 believe, was accomplished sufficiently by having him serve the one-year sentence.

What then led the court to impose the alternative sentence of five years, in the event he does not pay the $50,000? The answer appears to be very clear. It appears that the court felt that Gittelson withheld something from the Grand Jury upon his return after his plea of guilty, and he was withholding something from the District Attorney and the court. It is quite apparent that the court was of the opinion that Gittelson was concealing the name or names of others who might have been recipients of some part of the money advanced to bribe public officials. That conclusion is indicated by the great stress laid by the District Attorney, at the time of sentence, upon the alleged failure of Gittelson to account adequately for the money he received. I disagree that Gittelson failed to give an adequate account in the circumstances. However, even if the conclusion were a proper one, how does it justify the further conclusion that the balance, allegedly unaccounted for, was given as a bribe to a person or persons, whose names Gittelson is withholding?

It might be well to here note the statement made by the District Attorney at the time he recommended that the court take the plea of the defendant. He said: “ [i]f a rumor is brooded about that there may be a payoff to a public official people presume that there was one. It is now quite clear there was no payoff to * * * any official.” The District Attorney cannot have it both ways. He cannot say that it is “ quite clear there was no payoff to * * * any official ’ ’ and at the same time insist on additional punishment of this defendant for failure to name officials on an inference that payoffs were indeed made.

And it is quite clear from the court’s statement, at the time of sentencing, that it came to the conclusion — although, I think, without a proven basis — that there was such withholding. fThe court said: “ Now, obviously, there was an automatic, or built in, stay of the fines, or the alternative six months jail sentences, until he has finished with the Penitentiary sentences. He has got a lot of time to wait for those. I do not know what he is going to do in the interval, but in the event that he decides that *276he wants to talk to the District Attorney, in the event that he decides that there are other things that he remembers that he wants to tell the District Attorney, I am quite certain that the District Attorney will be glad to hear him and I will hear anything the District Attorney may have to say to me in the interval, because I said, in effect, the fines or the alternative prison sentences will be stayed automatically until he has finished the Penitentiary concurrent terms. ’ ’

The court was quite frank to point out, in effect, that the imposition of the additional fines and consecutive alternative sentences was nothing other than a device to compel further disclosures. Thus, it is apparent that this defendant was given additional punishment through this “ automatic or built in ” device to compel him to talk more, when it was not at all proven — as the District Attorney indicated — that there is more to be said. It has been held that an alternative jail sentence is not punishment and may properly be imposed to coerce the payment of fines. (Matter of McKinney v. Hamilton, 282 N. Y. 393.) While I do not approve of such policy, it is evident here, from the court’s statement that the alternative jail sentence was not imposed to coerce the payment of the fines, but rather imposed to coerce further disclosures. It seems that we have not made too far an advance over the medieval use of the rack and screw. Nor is the availability of section 484 of the Code of Criminal Procedure, which permits of an application to remit the fines, any justification for now imposing such fines and alternative jail sentences as a coercive measure to compel him to talk. To remit the fines in the event that he should talk allows for what I think is an unlawful purpose — a sentence to compel disclosures. I, therefore, think that the alternative jail sentences were improperly imposed, are uncalled for, and should be stricken. Indeed, I believe that the possibility of an additional five years, to be added to the defendant’s sentence for the failure to pay the fines, makes the entire sentence so severe as to violate the constitutional prohibition against the infliction of cruel and unusual punishment.

Quite apart from the above — even though it may not be improper to impose a jail sentence as an alternative to a fine, provided it be not too severe — it is to be fairly questioned whether such a sentence was proper here, where it is apparent that Grittelson does not have the means to pay the fine. It leads me to ask the question as to whether G-ittelson was being given the additional sentences for the perjury committed or possibly for not having the $50,000, assuming, of course, that he is not being penalized (as I believe he is) for failure to give informa*277tion, the existence of which, to my mind, was not proven. The imposition of the alternative sentences nullified the basis of the one-year sentence, and is entirely disproportionate thereto. It makes the entire sentence an oppressive one.

There must be, and there is, a more enlightened and more progressive manner to treat a defendant who is unable to pay a fine imposed. The Congress of the United States found it when it enacted section 3569 of title 18 of the United States Code. It, in effect, provides that upon the taking of a proper oath, indicating an inability to meet a fine, a defendant may be released after 30 days’ service. True, the New York Legislature has made no provision for release in the event of inability to pay a fine. Nor does section 484 of the Code of Criminal Procedure seem to afford any relief in such circumstance (People v. Baker, 183 Misc. 113). Be that as it may, section 484 does not preclude a defendant from attacking, on appeal, what he considers to be an improper sentence, nor is it an alternative for such appeal. However, the failure of the Legislature to make adequate provision for the inability to pay a fine would not prevent a court, in its sentence, from providing for proper relief. Or, to put it conversely, the absence of such a provision does not justify the severity of the alternative sentence here imposed.

In view of the foregoing, it is my feeling that a one-year sentence is quite sufficient — if not more than sufficient — in the circumstances of this ease. I arrive at that conclusion upon taking all of the factors into consideration, including the defendant’s mental condition at the time of the commission of the perjury, the recommendation of the court-appointed psychiatrist, his prior history in business and in charitable service, and the many communications of people of standing, urging leniency.

Bbeitel, J. P., and Witmer, J., concur with Eager, J.; Babin, J., dissents in opinon; Valente, J., deceased.

Judgment of conviction affirmed.