Colf v. Serra

OPINION OF THE COURT Per Curiam. We find no basis in the petition for granting the extraordinary relief of prohibition (see Matter of State of New York v King, 36 NY2d 59; Matter of Rossettie v Finnerty, 85 AD2d 928; Matter of Haley v Darrigrand, 64 AD2d 862). As contradistinguished from People ex rel. Flinn v Barr (259 NY 104) where the successive indictments resulted from identical criminal conduct, the charges that defendant committed perjury in July, 1980 and in July, 1981 [485] were predicated on two separate offenses based on different questions and answers before different Grand Juries and under different circumstances. This was not a resubmission of a charge based on the same criminal conduct requiring court approval under CPL 190.75 (subd 3). The record here does not present a case of harassment through repeated attempts to obtain an indictment against a defendant based on the same occurrence or transaction which CPL 190.75 (subd 3) was designed to prevent. Defendant was not the target of the Grand Jury investigation. He was called as a witness before different Grand Juries investigating a fire and an arson reportedly committed by Frederick Joseph. (The indictment returned against Joseph in 1980 was dismissed with leave to resubmit. The 1981 Grand Jury returned an indictment against him for arson.) That charges of perjury stemmiiig from defendant’s 1980 appearance as a witness were placed against him and subsequently dismissed did not make it necessary for the District Attorney to apply to the court pursuant to CPL 190.75 (subd 3) for permission to recall defendant as a witness before a different Grand Jury and to seek a perjury indictment against him for giving untruthful answers. CPL 190.75 (subd 3) was not intended to give a perjurious witness who lies a second time before a new Grand Jury greater protection than one who is lying for the first time. A contrary rule would substantially erode the District Attorney’s power to compel truthful answers from evasive or reluctant witnesses who, like defendant, have knowledge of criminal conduct and have been granted immunity. Cases such as Gebhard v United States (422 F2d 281) cited in the dissent involving repetition of the same question to elicit the same false answers before the same Grand Jury are not in point. The petition should be dismissed.