Piccirillo v. New York/Opinion of the Court

The occasion for granting the writ in this case was to resolve the important question whether it is necessary to accord 'transactional' immunity, see Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), to compel a witness to give testimony before a state grand jury over his claim of the privilege against self-incrimination, or whether mere 'use' immunity suffices to that end, see, e.g., Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 426 F.2d 619 (CA2 1970).

After considering the briefs and oral arguments of the parties on this writ, we have reached the conclusion that the decision of the New York Court of Appeals in Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33, 225 N.E.2d 235 (1969), which makes clear that transactional immunity is required in New York and also indicates that such court's earlier decision in the case before us, People v. La Bello, 24 N.Y.2d 598, 301 N.Y.S.2d 544, 249 N.E.2d 412 (1969), may have rested on that premise, makes this case an inappropriate vehicle for deciding a question of such far-reaching importance.

With the intervening decision in Gold, no controversy any longer exists between the parties as to the question which impelled us to grant the writ: whether, in the circumstances involved in this case, Piccirillo was entitled to 'use' or 'transactional' immunity. While it is true that, technically speaking, issues remain in the case concerning the kind of immunity required by federal law and, if it be 'transactional' rather than 'use' immunity in such a case as this, the proper scope of such immunity, both issues arise only against the sterile background of agreement between the parties that Piccirillo is entitled to 'transactional' immunity under state law. Thus, our determination upon the fundamental constitutional question underlying this case would be in no sense necessary to its resolution in this instance.

In this posture of affairs, we conclude that the writ of certiorari should be dismissed as improvidently granted.

It is so ordered.

Writ of certiorari dismissed.

Mr. Justice BLACK dissents from the dismissal of this writ as improvidently granted. He would vacate the judgment below and remand the case to the New York Court of Appeals for reconsideration in light of its later opinion in Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33, 255 N.E.2d 235.

Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.