After trial by jury, a man was convicted on a consolidated indictment of promoting prostitution in the first degree, endangering the welfare of a child, sodomy in the second degree and eleven counts of sodomy in the third degree.
He filed an appeal and claims that it was an abuse of discretion for the trial court to have denied his motion, that his due process rights were violated and that the interfering orders secured by the police were invalid because they exceeded the bounds set by the governing federal wiretapping law.
The man was accused of engaging repeatedly in a course of homosexual sodomitic acts on various occasions over a seventeen month period with eight different high school boys each of whom was under the age of seventeen. Despite the fact that it developed at trial that each of the youths had received money from the offender, it was never claimed that force of any kind was employed to obtain their participation. Sources revealed that the accusation embraced a total number of 64 criminal counts.
On the night of the alleged offense, members of the police department, the county sheriff’s department and the district attorney’s office, performed a search warrant based largely on evidence that derived from court-ordered wiretapping of the offender’s telephone, gained admission to his residence.
From the intercepted telephone conversations, the police had learned that two of the offender’s adult friends planned to bring two young teen-age male prostitutes to perform sex acts for hire and that another adult was also to join in the said activities. When the police entered, they found the two friends, attired, in the living room. Making their way to the upper part of the house, the officers then came upon the other adult and a 15-year-old guy completely unclad in bed together, and the offender and the 13-year-old boy nude in the other.
The aforesaid search was in the first of the two indictments based on the incident that the man, along with his two friends, and the other adult was charged with promoting prostitution as well as endangering the welfare of a minor. Its companion indictment charged the man alone with sodomy, sexual misconduct, sexual abuse and endangering the welfare of a child, all additional legal formulations of the transgressions said to have occurred on the self-same date.
Subsequently, the offender’s friend’s cases were severed from that of the man and tried separately. It was later, two years after the original arraignment had been voted, that the complainant moved to consolidate all three accusatory instruments against the offender. It is the granting of the motion and the denial of the offender’s subsequent application to separate with which the court deal first.
The man does not challenge the joining of the two indictments stemming from the incident, but argues, as he did when the original motion was made, that it was improper to try it with the indictment featuring the long train of sodomies which took place in so much of the two previous years, on the ground that the latter counts would prejudice his ability to defend on the former.
The criminal court also noted the following points of similarity such as the offender was the sole untried in each of the three indictments, all counts in the indictments referred to sexual acts with boys under the age of seventeen, all the activities occurred within the same jurisdiction and most occurred in man’s home, sodomy or sexual abuse were a focus of all three indictments. Nevertheless, the court stated that it cannot be oppose the most general of commonalities, without more support, a joiner could hardly be said to serve more than the permissible purpose of judicial economy.
As the proof at trial unfolded, the cumulative effect of the repetitive recitations of the eight high school students on whom the complainant depended to describe the offender’s numerous depredations during the period was bound to come across as a pointed foreword.
The prosecution’s chief witness to the activities of the event was the young male prostitute, who testified that on the date of offense, after the two friends had driven him and another company to the man’s home for the purpose of having them take part, for a consideration, in deviate sexual conduct with two men, the offender engaged in anal intercourse with him. The man’s defense to the accusation that cast him in the role of a promoter of prostitution appears to have been to portray himself as a person whose uncontrollable sexual urges made him the easy dupe of his two friends, the real and sole promoters, who manipulated him so they could stage their activities in his home. Further, to establish that his role was so limited, he proposed to call all the other criminal participants in the events who were available as witnesses.
Examination of his ensuing offer of proof revealed that according to the attorney’s representations, the 15-year-old boy would have testified that, when the boys appeared at his door, the offender wanted nothing to do with them and was hesitant to admit them. The man’s attorney therefore advised the court that it would have countered the inference of promoting by testifying that the man acted only as patron. As to the other adult, whose wiretapped conversation with the offender was heavily relied on by the district attorney to try to prove the man’s soliciting and promoting, counsel assured the court that he expected that the witness would testify that he had intended to visit the man socially before he learned of his friends and the boys’ existence and that, to his knowledge too, his friend was never more than a patron.
Despite the assurances, when the man sought to call them at trial, each witness, appearing in chambers in the company of his own counsel, invoked his privilege against self incrimination. However, from the discussion that ensued, it soon became apparent that the protection the witnesses sought was not from disclosure of any past criminal activities but solely from the possibility that any testimony they would give on behalf of the man would precipitate their prosecution for perjury. All three of the prospective witnesses had testified previously.
Sources revealed that it is also well-settled law that one who is granted immunity in return for his testimony receives no license to swear falsely with impunity while under the protection of the immunity. However, in the case, the witnesses did not seek immunity for any false statements they might make at the man’s trial. Confronted with the prosecutor’s warning injunction that they be consistent above all else, they sought assurance that any misstatements or inconsistencies they may have expressed during the course of their prior testimony would not suddenly become prosecutable after their appearance on the man’s behalf. Robbery was not charged.
Consequently, the district attorney’s refusal to extend immunity, not to speak of the menacing terms in which he did so, could have served no purpose other than to permanently bind the witnesses to their previous sworn versions, accurate or not. By doing so, it impermissibly affected their meaningful exercise of their Fifth Amendment rights and insured their unavailability as witnesses of the man. As a result, the order of the appellate division is reversed and the case remitted to the county court for further proceedings.
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