SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK , TERM , PART 80
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THE PEOPLE OF THE STATE OF YORK
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100 Centre Street New York, New York, March 12, 1985
HONORABLE STEPHEN G. CRANE, Justice.
ROBERT MORGANTAU, ESQ. District Attorney New York County By: GREGORY WAPLES, ESQ. ROBERT M. PITLER, ESQ. Assistant District Attorneys
Luise Frederika Gikas Official Court Reporter
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MR. WAPLES: Gregory Waples, Assistant District Attorney.
MR. PITLER: Robert M. Pitler, Assistant District Attorney.
THE COURT: Now, these minutes are to be sealed, not to be unsealed except by order of myself or the grand jury judge.
The matter is People against Bernhard Goetz. Indictment 476 of 1985.
There is an application now being made pursuant to Section 190.75, subdivision three of the CPL.
You've got the appearances for the district attorney?
COURT REPORTER: Yes.
THE COURT: The application is being made pursuant to that section ex part.
There is also a letter dated March 4, 1985 that the record should reflect. I have received from Mark Baker of counsel to Slotnik and Cutler, one of the attorneys for Mr. Goetz where in relevant part he asks that while it is recognized that the law permits such an ex parte application, he would like to be heard in camera at the time this application is being made.
These matters are now open for discussion.
I am in the midst of reading Mr. Waples last couple of pages of affirmation – affidavit --
MR. WAPLES: Affirmation.
THE COURT: -- affirmation and I'll be with you momentarily.
All right, I’ve read the twelve-page affirmation, the nine-page -- I stand corrected -- affirmation of Gregory L. Waples, assistant district attorney, in support of this application together with the memorandum, of law, nine or ten pages, submitted by the district attorney, Robert M. Pitler and Gregory L. Waples of counsel.
The application as I perceive it is to resubmit on new evidence, that being the potential testimony of one, Troy Canty, who it is represented would testify that during the confrontation with Mr. Goetz in the subway car, Mr. Canty was the only one of the group of four youths of which Mr. Canty was one. He was the only one to approach Mr. Goetz and ask him for five dollars in a non-threatening way. I take it that Mr. Canty would also testify that Mr. Goetz when he entered the subway car at Fourteenth Street unzipped his jacket and thereby gave Canty the impression that he was trying to draw attention to himself.
Have I summarized it --
MR. PITLER: Well, on the last point, it was more that when he came into the subway he directed himself to the attention of these kids in some manner either by body language or some other way and then sat down and opened the jacket. It wasn't the sitting down and the jacket that directed himself to the attention of the youths.
THE COURT: So more than simply unzipping the jacket?
MR. PITLER: Yes.
THE COURT: The question presented is this is new under the authority, the governing authorities, and the fact that Mr. Canty could have testified at the original presentation to the first grand jury in January under a grant of immunity would deprive the prosecutor of the right to make this application.
Now, when he has changed his mind and he has decided to afford immunity to Mr. Canty, I think we should address the latter first and that's the more difficult issue I think.
MR. PITLER: Well, I don't know whether you want us to talk about it, but we set forth our position --
THE COURT: You're resting on your papers?
MR PITLER: Unless you have questions.
THE COURT: I have.
There seems to me to be a doctrine that it is contained, for example, in People against Shapiro, 50 N.Y. 2d, 747, alluded to by Justice Milonas in People versus Osorio, 85 App. Div. 2d, 233, at 239, that if you had immunized witnesses during the first presentation, an argument might have been made by Mr. Goetz that an indictment or a charge evolved as a result that you were securing his prosecution by building a case on immunized witnesses which is some thing to be discouraged so that -- would you adopt that line of thinking to justify the refusal to grant immunity on the first presentation?
MR. PITLER: No. Osario, the language in Osorio and the case in Osorio deals with the problem of where a defense attorney or defendant asks for immunity for another witness and the prosecutor says no, that that refusal may not be fair in a case where a prosecutor has granted immunity to build a case against a defendant and then deprives the defendant of an opportunity of presenting a defense in his behalf by refusing to grant immunity to a witness. That's -- I mean I think you can't take out of that context the language of Justice Milones -- there is nothing wrong with building immunity, you know, building a case with immunized witnesses or without --
THE COURT: So you're not relying on that.
MR. PITLER: We did not cite Osorio to the Court and I guess I'm a little perplexed to see exactly what its relevance is here.
THE COURT: It's simply to clarify in my mind that your change in the exercise of the prosecutor's discretion from the January Grand Jury to now with respect to immunizing any of the four youths is not a whimsical change and that it has certain justifiable underpinnings. I believe it does.
It seems that when the case was presented in January, you had no idea what any of the four youths, that's Canty, Cabey, Ramseur and Allen, would have testified to. You had no idea what their testimony would be because they were not cooperating with law enforcement officials. Is that correct?
MR. WAPLES: It's basically correct. Each of the youths had made a brief statement to the police officers shortly after the shooting and the two – in the two or three days after the shootings -- but there was not any detailed kind of interview. The conditions were adverse because in some instances the youths were sedated and so forth, and not very much information, critical information, bearing upon the question of justification was obtained during those Interviews, so I think it's fair to say while we have some information as to what the youths claimed had happened in the subway, we had no detailed preview of their testimony and we had really no information of some of the more subtle points that are included in the -- exactly what happened during the interaction between Goetz and four kids
THE COURT: Were you aware from those statements that one of the prospective witnesses that you're advancing now, Mr. Canty, would disclaim that his companions surrounded Mr. Goetz?
MR. WAPLES: No, none of the information that I've included in the affirmation pertaining to what Canty has told me was available to us then.
THE COURT: so that whatever statements the police obtained from these four youths would not have been of material importance to the first grand jury. Is that right?
MR. WAPLES: They would not have -- well, I don’t think so.
THE COURT: And what you know now of what Mr. Goetz's position was, namely, that he claimed to have been attacked and the victim of a potential robbery by all four of them. Was it the prosecutor's view that on the first presentation it would have been irresponsible to immunize one side of this controversy rather than the other and therefore it was not deemed wise for that reason as well as for the fact that immunized testimony doesn't have the same kind of impact as non-immunized testimony, and, therefore, for those reasons, you withheld immunization on the first presentation?
MR. WAPLES: Don't think we would have felt – I don't think it would have been an irresponsible act for us to have decided to immunize some person, but on the information that we had available to us, we certainly felt that it was unwise. I think there's a distinction.
THE COURT: And now that you know more fully that Mr. Canty's potential testimony would directly contradict a vital issue that was presented in the first grand jury, but that the first grand jury was deprived of hearing, namely, the issue of justification. Canty's testimony would undercut that defense I take it. From what I've read in your affidavit, you feel that it’s of such importance that you can immunize Mr. Canty even though on his own statements he could be deemed to have approached Mr. Goetz and asked him for money and potentially it would be possible to but a gloss on what he's willing to testify to, that would make him guilty of attempted robbery --
MR. WAPLES: Well, one reason we are prepared to give him immunity, to Canty, is because I do not believe there is evidence to establish that Canty was committing a robbery, and I personally did not believe that he was or the others were.
THE COURT: This is the position you have been able to come to long after the first presentation?
MR. WAPLES: It's a position I have reached in the last several weeks since I became involved in the case based on the conversations with Canty, my own interviews of the witnesses, my review of the videotapes and so forth.
THE COURT: With respect to the availability of Mr. Canty and without deciding on the wisdom or lack thereof of refusing to immunize him on the first presentation, it seems to me that under People against Martin of 71 App. Div 2d which reversed – who? Judge Burton if I recall –
MR. WAPLES: It’s a Brooklyn case. I don’t remember --
THE COURT: It wasn't Burt Robert. He never sat there.
Osorio was -- we have someone who had previously -- Judge Lentol, Brooklyn -- we had someone who testified in the original presentation and was presented for re-submission based on a question not asked. Is that the case?
MR. WAPLES: That’s as I understand the facts to be from the decision below in --
THE COURT: Well, in reading the Martin case and the case of my colleague, Judge Lang, People against Ladsen, at 111 misc. 2d. It seems that you do have new evidence. It’s not necessary that that new evidence be of the same type that measures the right to set aside a jury verdict or a judgment of conviction under Article 330 or Article 440 of the CPL, and that the standards with respect to its -- even its discovery or its availability on the first go around are not as stringent as they would be set to set aside a jury verdict or a judgment of conviction. I think in keeping with -- those are the only two authorities that I believe are fairly persuasive authorities in this case and we have, I think, gone through -- your office has gone through pretty good research on this before submitting the matter to me. Is that correct?
MR. WAPPLES: I think so. Yes.
THE COURT: I believe those authorities would place Mr. Canty's potential testimony in the category of new evidence that would warrant a re-submission under Section 190.75, subdivision 3.
I believe also that the fact that the evidence could have come out in the first jury presentation if you had immunized Mr. Carty is not a bar to this application. It's neither a bar with respect to my reading of People against Martin nor indeed was it as it seems to me from your presentation was it an unwise withholding of immunity on the first presentation.
I think you've sustained your burden there. The only other question is the ex parte nature of this application and whether or not notice should somehow be given to the defense to present whatever arguments they would want to present as was requested in this letter dated March 4. Do you have a position on that?
MR. PITLER: As we said in our memorandum and as Mr. Baker indicates in his letter, the law does not require notice be given and I don't think Mr. Baker has made any showing in his letter why there’s any special circumstances in this case which would warrant the granting of notice.
MR. WAPLES: I think there's also another consideration: we do rely on Canty's proposed testimony as grounds for our application and Canty has already received many, many threats to his own safety as well as to the safety of his family and we feel that an in camera proceeding in this context is particularly appropriate --
THE COURT: Without defense being privy to the application?
MR. WAPLES: Yes
THE COURT: You will be notifying him as you’ve indicated of an opportunity for him to testify when this application is – if and when this application is granted, you'll be notifying him of his opportunity to testify, and at that time he will then become aware of the application and its disposition.
MR. WAPLES: If you sign the order, I intend to send a copy of an order -
THE COURT: That's before Mr. Canty testifies?
MR. WAPLES: Yes.
THE COURT: Do you not undermine your position --
MR. WAPLES: The order does not disclose the nature of the evidence. In fact, Canty has indicated through his counsel that he will not testify voluntarily. We are nevertheless making this application; the order does not disclose the grounds, and I think giving him notice of the order does not in any way impact upon our concerns --
THE COURT: Except he could figure that the grounds probably are of Mr. Canty's availability based on the press coverage that Mr. Canty has attracted in the last week or so.
Be that as it may, that’s up to you. I'm concerned of an unnecessary grant of immunity to Mr. Canty. I would hope that you would subpoena him and then ask him if he wants to waive immunity before you bathe --before you bathe him in immunity in this case, but that's again all with your prosecutorial discretion.
It seems to me that you have said that non-immunized testimony is more persuasive and that if the threats that have been leveled at him and his family were due to his willingness to testify voluntarily, a subpoena should overcome that aspect of it and if it wouldn't, it doesn't seem to me that his testimony -- his testimony under immunity or not under immunity would make any difference on the threats that he and his family will continue to receive, if any.
MR. WAPLES: I have made that argument to his lawyer without avail.
THE COURT: So his lawyer is really insisting that he will not testify without immunity --
MR. WAPLES: Yes, although his lawyer wishes him to do so --
THE COURT: You give it one last shot if I grant this application when he is subpoenaed to the grand jury before batheing him in immunity. I would commend that to your attention.
The charges that you are being -- or asking for authority to re-submit, I think are not pinpointed precisely in the application, that perhaps we should focus on that for just a moment.
As I read the original presentation, there were four counts of attempted murder in the second degree, four counts of assault in the first degree, reckless endangerment in the first degree, one count; and criminal possession of a weapon in the second degree, one count, on which the grand jury on the first presentation in its wisdom voted no true bill. I take it, you want to re-submit all of those counts.
MR. WAPLES: Well, we – certainl -- it's possible we may in our discretion choose not to submit one or more of those counts in the final analysis, but we do not propose to submit any charges other than those.
THE COURT: And the application is to submit all of them.
MR. WAPPLES: The application is to submit all of them.
THE COURT: All of them.
And would you say that Mr. Canty's proposed testimony would relate to each and every one of those counts?
MR WAPLES: Yes, without any question.
THE COURT: Reckless endangerment –
MR. WAPLES: Yes, because I think the question of justification in its inception bears upon the question of reckless endangerment. Canty's testimony goes to that issue directly and I think it squarely addresses that charge.
THE COURT: So you will be -- as you did before, you will be embracing reckless endangerment within the justification defenses?
MR. WAPLES: Yes. All of the charges that we propose to submit can be met by the potential defense of justification.
THE COURT: The only other matter that pertains to the charges -- the only other matter that pertains to the justification defense that I perceived in the grand jury minutes in the first presentation, I would --in the event I grant this application, I would bring to your attention because I know that there will be a thorough re-instruction of the new grand jury on justification and that has to do with the duty to retreat -- it is a duty when using deadly -- it Is a duty when someone is using deadly physical force but not a duty when someone is responding to an attempted robbery, and I don’t think that was recorded in the first presentation. It simply wasn't highlighted.
MR. PTLER: In the light of the fact that the grand jury chose not to return an indictment on any of the charges that they dismissed, it seems to me that the instruction clearly conveyed to them what the defense of justification was about on both use of deadly physical force and in terns of attempted robbery and they chose not to. If the Court wants us to, we'll make it clearer this time.
THE COURT: I think it would be advisable because now you have some counter – countervailing testimony and if they do vote to indict on any of these counts, this will come under scrutiny. Your point is well taken except we can't tell on which branch of justification the jury actually hinged its refusal to indict on the first –- on the first presentation.
MR. PITLER: Okay.
THE COURT: When you also are on this re-presentation you are free to submit to this grand jury if you're permitted to go ahead with this, charges against any other individuals that emerge from the testimony.
MR. WAPLES: I don't think --
MR. PITLER: We certainly do not need the Court's permission --
THE COURT: I recognize that and I'm not suggesting that. I’m asking if it is your intention that if additional crimes by other people are uncovered, do you intend to use this grand jury for the purpose of -- I'd suspect you'd have to -- wouldn't you? Because it's being presented --
MR. PITLER: It seems to me when all the evidence was in, we would decide what charges would be appropriate to ask the grand jury to vote upon and we would so instruct.
MR. WAPLES: And that conceivably could extend to the four persons --
THE COURT: Except the one you may have to immunize who will be testifying.
Gentlemen, I just want to be satisfied and I think I am because the record should reflect that the defendant made an oral motion to inspect the grand jury minutes. That resulted in his indictment for criminal possession of a weapon in the third and fourth degrees, and I have previous to your application completed that task, including -- including a reading of the transcribed audio tapes that were taken in Concord, New Hampshire and a viewing of the video tape as well as listening to the audio tape of Myra Friedman's telephone conversations with Mr. Goetz, and on the basis of that, I do believe that Mr. Canty has valuable and substantial testimony to give, and I don't think that it is cumulative of anyone else's testimony that did testify before the grand jury. In addition, I do have the first witness that you're proposing -- that actually among the five people involved at the north end of the subway car. The first grand jury had no live witness whatsoever, but only that were involved in the fray that occurred there. All of the other witnesses were southerly and were not able to testify substantially as to what was going on there, and I think that to have such a live witness, your memorandum of law or Waples' affirmation touches on this, I think.
It is also well within the category of new evidence and I accept that and I'm persuaded by that observation. I'm also persuaded that not only is Mr. Canty's potential testimony non-cumulative, but it is of a substantive vital nature because it goes to the heart of the justification of defenses, and If there is anything that you would like to add to this record before I seal It, I will hear you now.
MR. PITLER: I take it in our discussion of the charges that the grand jury dismissed and whether or not we would be seeking re-presentation on all of those, the order that we have your Honor to sign is that we will present all charges stemming from the shooting on the subway. How, of course, the only ones that we need permission ore those that were dismissed --
THE COURT: That is my view of the law also.
MR. PITLER: -- to the extent we did not mention any of those that were dismissed, I just want to Incorporate that thought here and that you would be authorizing -- I think, at least, one other charge to be re-submitted, if I'm not mistaken, that will be criminal possession of a weapon, if we so choose.
THE COURT: That was embraced in the charges previously submitted. If you're talking about criminal possession --
MR. PITLER: Second.
THE COURT: -- one count of that was apparently--
MR. PITLER: And was dismissed if I'm --
THE COURT: Yes.
Now, if you like, I will open up the grand jury minutes that are before me to the page reference that I have and tell you what A. D. A. Braver --
MR. PITLER: Judge, I'm sorry, I thought you in mentioning the crimes that we've been authorized to re-submit by this order that you had not mentioned criminal possession of a weapon in the second degree.
THE COURT: Yes.
MR. PITLER: Mr. Waples said you did, so I want to withdraw all of my comments previously made.
THE COURT: Just to nail that point down, you are asking and I would be authorizing re-submission of four counts attempted murder, second degree; four counts assault, first degree; one count, reckless endangerment; one count, criminal possession of a weapon in the second degree. Those are all of the counts listed on pages 274 and 276 of the original grand jury minutes that were submitted but not returned by the first -- by the original grand jury.
Gentlemen, I have given due deliberation to your application and it is hereby granted.
If you will submit your order, to me, if you have it --
MR. WAPLES: There is an original there, but you can sign two additional copies.
MR. PITLER: Here's one.
MR. WAPLES: Conform the original then to defense counsel's.
THE COURT: Are you satisfied with the wording of the scope of the re-presentation or would you like me to put a to wit --
MR. PITLER: If your Honor wants to put the – to specify the particular charges that were dismissed, we would have no objection to that.
THE COURT: I would just add a line. These would be the only charges for re-submission, additional charges, if any, would not be within the scope of this order nor this order would be required for that purpose.
MR. PITLER: The only concern I have, although I can't imagine a situation, if one could, if one used one's imagination and, say, suppose there is a crime that we didn't submit, but basically similar to this, that could have been submitted the first time, it seems to me it’s an argument that you would have to -- there is an argument that you would have to get the Courts to resubmit, even something that was not submitted the first time if it arose out of the same transaction --
MR. WAPLES: I think --
MR. PITLER: And therefore that's why we phrased it broadly.
THE COURT: Then let me leave it the way it is. If you have a copy for the court file --
MR. WAPLES: The original --
MR. PITLER: The original you keep.
MR. WAPLES: I came down -- it was on a separate back.
THE COURT: The original will be filed in the public file unless you want this sealed as well?
MR. PITLER: I would like it sealed for present purposes; sealed until we at least notify the defendant.
THE COURT: All right, the application and supporting documents will likewise be treated as sealed.
The transcript of the foregoing proceeding is sealed as I stated at the outset.
Thank you very much.
MR. WAPLES: Would you give me permission to order the transcript?
THE COURT: Yes, Mr. Waples, if you treat this copy of the transcript as if it were a grand jury transcript. It's grand jury matter and I ask that it has the protection of the umbrella of the secrecy proceedings attendant upon grand jury proceedings.
(FOLLOWING AT SIDE BAR.)
THE COURT: This is a recall for People against Goetz.
This transcript is likewise sealed.
The district attorney has requested permission for an unsealing of the order that I signed, permitting resubmission. His purpose is to make a public announcement, that resubmission authorization has been granted. I have granted unsealing to that extent only.
The foregoing transcript is sealed.
Certified to be a true and accurate transcript