Stevens v. Marks, 383 U.S. 234 (1966)

Stevens v. Marks

No. 210

Argued January 24, 1966
Decided February 28, 1966 *
383 U.S. 234

CERTIORARI TO THE APPELLATE DIVISION OF THE SUPREME COURT

OF NEW YORK, FIRST JUDICIAL DEPARTMENT

Syllabus

Petitioner, a New York City police officer, was subpoenaed before one of the grand juries investigating alleged bribery of public officials. He appeared without counsel and signed a waiver of immunity upon the prosecutor’s advice that failure to do so would subject him to removal from public office. The New York Constitution and the New York City Charter provide for forfeiture of employment by a public employee who invokes the privilege against self-incrimination or who refuses to waive immunity from prosecution. The waiver covered both the privilege against self-incrimination and immunity from prosecution. Petitioner was asked a few questions and given a questionnaire to fill out. He appeared later before another grand jury and, having consulted counsel, refused to sign a waiver of immunity. He was thereafter discharged as a police officer. He was summoned again before the first grand jury, refused on the basis of his federal and state constitutional rights to answer questions, and again refused for those reasons when thereafter directed by a judge to answer. Following a hearing at which petitioner contended that the waiver was invalid or, alternatively, had been effectively withdrawn, he was found guilty of contempt and sentenced. He appealed to a state appellate court, which dismissed the appeal in reliance on Regan v. New York, 349 U.S. 58, reasoning that, if the immunity waiver was invalid, petitioner would have received immunity from prosecution under New York statutes, and that, if the waiver was valid, he no longer had a privilege not to testify. Leave to appeal that dismissal was denied. While review of the foregoing contempt conviction (before this Court now in No. 210) was still pending, petitioner was again summoned before the first grand jury, claimed his privilege, refused to answer, was brought before another judge, refused again to answer, was adjudged guilty of contempt, and served the sentence imposed. Petitioner was summoned before the grand jury for a third time; on refusing to answer, he was again adjudged guilt of contempt. While serving the sentence imposed for this third contempt, petitioner sought habeas corpus in the Federal District Court, which, on the basis of Regan denied relief. The Court of Appeals affirmed, and this Court grated the petition for certiorari. (No. 290).

Held:

1. Petitioner’s withdrawal of the waiver was, as a matter of federal law, effective. Pp. 238-244.

2. Since the waiver had been effectively withdrawn, petitioner’s privilege against self-incrimination was available. Malloy v. Hogan, 378 U.S. 1. Pp. 238-239.

3. Under the applicable New York statutes, immunity is conferred only by taking affirmative steps in strict compliance with the current immunity statutes, and no such steps were taken in this case. Pp. 241-243.

4. Having suggested to petitioner that he had no immunity from prosecution, New York cannot thereafter claim that, in fact, petitioner did have immunity within the "fair warning" requirement of Raley v. Ohio, 360 U.S. 423. Pp. 240-241; 244-246.

22 App.Div.2d 683, 253 N.Y.S.2d 401; 345 F.2d 305, reversed.