Petitioner was convicted in a state court of violating a state
statute by willfully refusing to answer pertinent questions of a
duly constituted legislative committee conducting an authorized
legislative investigation, after he had been given immunity from
prosecution. In this Court, he contended that his conviction
violated the Due Process Clause of the Fourteenth Amendment because
a conversation which he had with his brother in a public jail,
where the latter was confined, was intercepted without their
knowledge by state officials through an electronic listening device
and a transcript of the conversation was used by the legislative
committee in interrogating petitioner. The State's highest court
certified that it had passed upon this claim and held that
petitioner's constitutional rights were not violated. However, the
record showed that at least two of the questions which petitioner
was convicted of refusing to answer were not related in any way to
the intercepted conversation, and refusal to answer either of these
questions was sufficient to support the judgment.
The constitutional claim asserted by petitioner
is not tendered by the record in this case, and the judgment is
affirmed. Pp. 370 U. S.
9 N.Y.2d 895, 175 N.E.2d 833, affirmed.
MR. JUSTICE STEWART delivered the opinion of the Court.
On February 13, 1957, the petitioner paid a visit to his
brother, who was then confined in a New York jail. The two
conversed in a room at the jail set aside for such visits. Six days
later, the petitioner's brother was released from custody by order
of one member of the State Parole
Page 370 U. S. 140
Commission, under rather unusual circumstances. [Footnote 1
] This prompted a committee of the
New York Legislature to hold an investigation of possible
corruption in the state parole system. [Footnote 2
During the course of the committee's investigation, the
petitioner was called to testify. He appeared, accompanied by
counsel. After granting the petitioner immunity from prosecution,
as permitted by state law, [Footnote 3
] the committee directed him to answer several
questions. For refusing to answer these questions, the petitioner
was indicted, tried and convicted under a provision of the criminal
law of New York. [Footnote 4
His conviction was affirmed on review by the New York courts.
] We granted
Page 370 U. S. 141
368 U.S. 918, to consider the petitioner's claim that he could
not constitutionally be punished for refusing to answer the
questions put to him by the state legislative committee, because
the conversation he had had with his brother in jail had been
electronically intercepted and recorded by officials of the State,
and a transcript of that conversation had furnished the basis of
the committee's questions. For the reasons which follow, we hold
that this constitutional claim is not valid, and we accordingly
affirm the judgment before us.
The record does not make clear the precise circumstances under
which the conversation in the jail between the petitioner and his
brother was overheard and transcribed. The State concedes, however,
that an electronic device was installed in the room at the
Westchester County Jail where the two conversed on February 13,
1957, that, without their knowledge, their conversation was thereby
overheard and transcribed by jail officials, and that a transcript
of the conversation was in the hands of the legislative committee
when the petitioner was summoned to testify.
The petitioner has not questioned the power of the state
legislative committee to conduct an investigation into whether the
state parole system was being administered honestly and
evenhandedly, nor has he questioned the good faith or propriety of
the particular investigation which gave rise to the present case.
His argument is simply that the interception of the jail
conversation was a violation of those principles of the Fourth
Amendment which have found recognition in the Due Process Clause of
the Fourteenth, that it was accordingly impermissible for the state
legislative committee to make use of the transcript of that
conversation in interrogating him, and
Page 370 U. S. 142
that New York therefore denied him due process of law by
convicting him for refusing to answer the committee's questions.
The Fourth Amendment specifically insures the "right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures," by federal officers.
We may take it as settled that the Fourteenth Amendment gives to
the people like protection against the conduct of the officials of
any State. Mapp v. Ohio, 367 U. S. 643
Elkins v. United States, 364 U. S. 206
Wolf v. Colorado, 338 U. S. 25
The petitioner's argument thus necessarily begins with two
assumptions: that the visitors' room of a public jail is a
constitutionally protected area, and that surreptitious electronic
eavesdropping under certain circumstances may amount to an
unreasonable search or seizure. As to the second, there can be no
doubt. This Court through the years has not taken a literal or
mechanical approach to the question of what may constitute a search
or seizure. [Footnote 7
] And as
recently as last Term, we specifically held that electronic
eavesdropping by federal officers, accomplished by physical
intrusion into the wall of a house, violated the
Page 370 U. S. 143
Fourth Amendment rights of the occupants. Silverman v.
United States, 365 U. S. 505
But to say that a public jail is the equivalent of a man's
"house," or that it is a place where he can claim constitutional
immunity from search or seizure of his person, his papers, or his
effects, is, at best, a novel argument. To be sure, the Court has
been far from niggardly in construing the physical scope of Fourth
Amendment protection. A business office is a protected area,
] and so may be a
store. [Footnote 9
] A hotel
room, in the eyes of the Fourth Amendment, may become a person's
"house," [Footnote 10
so, of course, may an apartment. [Footnote 11
] An automobile may not be unreasonably
searched. [Footnote 12
Neither may an occupied taxicab. [Footnote 13
] Yet, without attempting either to define or
to predict the ultimate scope of Fourth Amendment protection, it is
obvious that a jail shares none of the attributes of privacy of a
home, an automobile, an office, or a hotel room. In prison,
official surveillance has traditionally been the order of the day.
] Though it may
be assumed that even
Page 370 U. S. 144
in a jail, or perhaps especially there, the relationships which
the law has endowed with particularized confidentiality must
continue to receive unceasing protection, [Footnote 15
] there is no claimed violation of
any such special relationship here.
But even if we accept the premise that the room at the jail
where the petitioner and his brother conversed was an area
immunized by the Constitution from unreasonable search and seizure,
and even though we put to one side questions as to the petitioner's
standing to complain, [Footnote
Page 370 U. S. 145
the petitioner's argument would still carry far beyond any
decision which this Court has yet rendered. The case before us
bears no resemblance to such cases as Leyra v. Denno,
347 U. S. 556
where a State attempted to use as evidence in a criminal trial a
confession which had been elicited by trickery from the defendant
while he was in jail. See also Spano v. New York,
360 U. S. 315
do not have here the introduction into a state criminal trial of
evidence which is claimed to have been unconstitutionally seized,
as in Mapp v. Ohio, 367 U. S. 643
See Rochin v. California, 342 U.
. Nor is this a case where it is claimed that the
evidence actually offered at a trial was procured through knowledge
gained from what had been unlawfully obtained -- the "fruit of the
poisonous tree." Cf. Nardone v. United States,
308 U. S. 338
Here, no such evidence was ever introduced in a prosecution
against the petitioner. Rather, the petitioner was convicted for
willfully refusing to answer the pertinent questions of a duly
constituted legislative committee in the conduct of an authorized
legislative investigation, after having been given immunity from
prosecution. To hold that the petitioner could not constitutionally
be convicted for refusing to answer such questions simply because
they related to a conversation which had been unlawfully overheard
by other state officials would thus be a completely unprecedented
The ultimate disposition of this case, however, does not demand
consideration of whether such a step might ever be constitutionally
required. For even if all the other doubtful issues should be
resolved in the petitioner's favor, the record conclusively shows
that at least two of the questions which the committee asked him
were not related in any way to the intercepted conversation. The
petitioner was asked to whom he had talked in February,
Page 370 U. S. 146
1957, about releasing his brother on parole. [Footnote 17
] He was asked to describe the
efforts he had made to assist in obtaining his brother's release.
] Not only is it
apparent on their face that these questions were not dependent upon
the conversation overheard at the jail, but committee counsel
unequivocally so testified at the petitioner's trial. [Footnote 19
] Costello v. United
States, 365 U. S. 265
365 U. S.
-280. Refusal to answer either of these questions
fully supports the judgment as modified by the New York courts.
v. Ohio, 297 U. S. 431
297 U. S.
Moreover, the record contains no basis for supposing that the
committee would not have called the petitioner to testify had it
not been in possession of a transcript of the recorded jail
conversation -- assuming, arguendo,
that such an
attenuated connection would help the petitioner's case. See
Costello v. United States, supra.
Indeed, it is reasonable to
infer that the petitioner would have been interrogated even if the
transcript of the conversation had not existed. The committee knew
of the suspicious circumstances surrounding the release of the
petitioner's brother. [Footnote
] The committee knew that the petitioner had been one of the
three visitors the brother had had during
Page 370 U. S. 147
his stay in jail. [Footnote
] And the record shows that the committee had other
independent information which could have occasioned the
petitioner's interrogation. In short, we conclude that the ultimate
constitutional claim asserted in this case, whatever its merits, is
simply not tendered by this record.
MR. JUSTICE FRANKFURTER took no part in the decision of this
MR. JUSTICE WHITE took no part in the consideration or decision
of this case.
Four parole officers had concurred in a report finding that the
petitioner's brother was "not a fit subject for restoration to
parole." This report had been endorsed by three superiors in the
Division of Parole. Shortly after receiving these recommendations,
a member of the Commission ordered the petitioner's brother
The committee was the Joint Legislative Committee on Government
Operations, created by the New York Legislature in 1955. This
committee was endowed with
"full power and authority to investigate, inquire into and
examine the management and affairs of any department, board,
bureau, commission . . . of the state, and all questions in
relation thereto. . . ."
The committee was specifically authorized to investigate
"the administration of state and local laws and the detection
and prevention of unsound, improper or corrupt practices in
New York Penal Law, §§ 381, 584, 2447.
New York Penal Law, § 1330:
"A person who being present before either house of the
legislature or any committee thereof authorized to summon
witnesses, wilfully refuses to be sworn or affirmed, or to answer
any material and proper question, or to produce upon reasonable
notice any material and proper books, papers, or documents in his
possession or under his control, is guilty of a misdemeanor."
The Appellate Division modified the judgment by directing that
the terms imposed on the several counts of the indictment be served
concurrently. 10 App.Div.2d 315, 199 N.Y.S.2d 598. The New York
Court of Appeals modified the judgment further, holding that the
petitioner had committed but a single crime in refusing to answer
the various questions put to him by the committee. 9 N.Y.2d 895,
216 N.Y.S.2d 706, 175 N.E.2d 833.
The New York Court of Appeals made clear that it had passed upon
this federal constitutional claim, and that its judgment was not
based upon an independent state ground. Its amended remittitur was
"Upon the appeal herein, there was presented and necessarily
passed upon a question under the Constitution of the United States,
Defendant argued that the imposition of penal
sanctions for his refusal to answer certain questions deprived him
of liberty without due process of law in violation of the
Fourteenth Amendment. The Court of Appeals held that defendant's
constitutional rights were not violated."
Silverthorne Lumber Co. v. United States, 251 U.
; Zap v. United States, 328 U.
; cf. Irvine v. California, 347 U.
, 347 U. S. 132
see also Nueslein v. District of Columbia,
73 App.D.C. 85,
115 F.2d 690; McGinnis v. United States,
227 F.2d 598.
Silverthorne Lumber Co. v. United States, 251 U.
; Gouled v. United States, 255 U.
Amos v. United States, 255 U.
; Davis v. United States, 328 U.
Lustig v. United States, 338 U. S.
; United States v. Jeffers, 342 U. S.
Jones v. United States, 362 U.
Gambino v. United States, 275 U.
; Carroll v. United States, 267 U.
; Brinegar v. United States, 338 U.
; Henry v. United States, 361 U. S.
Rios v. United States, 364 U.
N.Y.Correction Law § 500-c provides, in part: "Convicts under
sentence shall not be allowed to converse with any other person,
except in the presence of a keeper."
The N.Y. State Commission of Correction, Regulations for
Management of County Jails (Revised 1953 ed.), provide, in
"All parts of the jail should be frequently searched for
"* * * *"
"A thorough search should be made of all packages to prevent
forbidden articles being smuggled into the jail. The number of
articles permitted to be taken into the jail should be kept to a
minimum. Saws have been secreted in bananas, in the soles of shoes,
under the peaks of caps, and drugs may be secreted in cap visors,
under postage stamps on letters, in cigars and various other ways.
Constant vigilance is necessary if your jail is to be kept
"* * * *"
"Cells should be systematically searched for materials which
would serve as a weapon or medium of self-destruction or escape.
Razor blades are small and easily concealed."
"* * * *"
"The law requires that visitors be carefully supervised to
prevent passing in of weapons, tools, drugs, liquor and other
"* * * *"
"In jails where a visitors' booth is provided, the safekeeping
of prisoners, especially those held for serious crimes, will be
best insured if the booths are used for visits. Where there are no
booths, and where prisoners are permitted to receive visitors in
the corridors or jailer's office, visits should be closely
supervised. Experience has shown that laxity in supervising
visitors and searching packages has resulted in escapes, assaults
on officer and serious breaches of discipline."
Cf. Lanza v. N.Y. State Joint Legis. Comm.,
92, 164 N.Y.S.2d 9, 143 N.E.2d 772, affirming
531, 162 N.Y.S.2d 467; Matter of Reuter,
4 App.Div.2d 252,
164 N.Y.S.2d 534; see Coplon v. United States,
U.S.App.D.C. 103, 191 F.2d 749.
See Jones v. United States, 362 U.
"Mr. Lanza, please tell the committee the name of anybody with
whom you spoke during the month of February, 1957, about the
restoration to parole of your brother Joseph Lanza."
"On February 5, 1957, your brother Joseph Lanza was arrested and
returned to prison charged with a violation of parole. Tell the
committee, please, any and all efforts extended by you to assist in
obtaining the release of your brother Joseph Lanza on parole or his
restoration to parole."
"Q. You say that you did not gather any material from the tapes
upon which to predicate that question, Mr. Bauman?"
"A. I have said, and I say, Mr. Direnzo, that that question, as
well as the previous one, was not based upon any material in the
"Q. You are sure about that?"
See note 5
See note 1
The others were the brother's wife and his lawyer.
MR. JUSTICE HARLAN, concurring.
I do not understand anything in the Court's opinion to suggest
either that the Fourteenth Amendment "incorporates" the provisions
of the Fourth, or that the "liberty" assured by the Fourteenth
Amendment is, with respect to "privacy," necessarily coextensive
with the protections afforded by the Fourth. On that premise, I
join the Court's opinion.
Memorandum opinion of MR. CHIEF JUSTICE WARREN.
I agree with MR. JUSTICE BRENNAN that the decision of the New
York courts comes to us resting firmly upon an independent state
ground, and I therefore join his memorandum opinion. However,
because the opinion of the Court departs from our practice of
refusing to reach constitutional questions not necessary for
decision, I deem it appropriate to add a few words.
Unquestionably, all that the Court's opinion decides is that,
since two of the questions asked petitioner by
Page 370 U. S. 148
the Committee were not in any way related to the intercepted
conversation, the refusal to answer those questions alone "fully
supports the judgment as modified by the New York courts."
p. 370 U. S. 146
Despite the fact that this holding deprives the Court of
jurisdiction to intimate views on the other, more serious problems
of constitutional dimension presented by the record, Herb v.
Pitcairn, 324 U. S. 117
Enterprise Irrigation District v. Farmers Mutual Canal
Co., 243 U. S. 157
20 Wall. 590, and would warrant dismissing
the writ as improvidently granted, Benz v. New York State
Thruway Authority, 369 U. S. 147
Atchley v. California, 366 U. S. 207
opinion undertakes, as MR. JUSTICE BRENNAN characterizes it, a
"gratuitous exposition" upon those more difficult constitutional
problems originally thought presented for decision. These
expressions of dicta are in a form which can only lead to
misunderstanding and confusion in future cases. Such dicta, when
written into our decisions, have an unfortunate way of turning up
in digests and decisions of lower courts; they are often quoted as
evidencing the considered opinion of this Court, and this is so
even though such intention is denied by the writer.
I am expressing my views separately because I believe that, for
several reasons, it is particularly regrettable for the Court to
depart from its normal practice in this case. The New York Court of
Appeals, the highest court of the State, split 4-3 on the result
reached below. And, because that court did not write a full opinion
in announcing its decision, we cannot tell whether it intended to
decide the constitutional issues or whether it even considered
them. Its remittitur is unconvincing in determining whether its
judgment was intended to rest on an independent state ground.
See Benz v. New York State Thruway Authority, supra.
makes this Court's action singularly unfortunate is that the state
courts, state officials,
Page 370 U. S. 149
and the people of New York State have uniformly condemned the
eavesdropping in this case as deplorable. The New York Appellate
Division termed the action at the jail "reprehensible and
offensive," People v. Lanza,
10 App.Div.2d 315, 318, 199
N.Y.S.2d 598, 601; earlier, the court had called it "atrocious and
inexcusable," Lanza v. New York State Joint Legislative
3 App.Div.2d 531, 533, 162 N.Y.S.2d 467, 470; also
"flagrant and unprecedented," Matter of Reuter,
App.Div.2d 252, 255, 164 N.Y.S.2d 534, 538. In the Court of
Appeals, it was characterized as a "gross wrong," Lanza v. New
York State Joint Legislative Committee,
3 N.Y.2d 92, 101, 164
N.Y.S.2d 9, 16, 143 N.E.2d 772, 777 (dissenting opinion), and
counsel for the Joint Committee made no effort to justify or excuse
the action, but, on the contrary, himself called it "repulsive and
The Governor of New York termed
unchecked eavesdropping "unwholesome and dangerous," McKinney's
1958 Session Laws of New York, p. 1837; and the Chairman of the New
York Joint Legislative Committee on Privacy of Communications
called the incident "deplorable," and reported that it had
"brought forth a storm of protest from lawyers, some of whom had
not previously been audibly concerned [with] . . . efforts to
protect the people's right of privacy."
Report of the New York Joint Legislative Committee on Privacy of
Communications, Legislative Document (1958) No. 9, 25. It has been
reported that a New York trial court judge found it necessary to
release a prisoner without bail so that he would be able to consult
his attorney, the judge not being able to feel confident after this
incident that there was any jail in the State where the prisoner
and his lawyers could be secure against electronic eavesdropping.
Comment, 27 Fordham L.Rev. 390, 394, n. 35. The most striking
indication of the degree to which the people of the State of New
York were shocked by the
Page 370 U. S. 150
incident was the enactment of Article 73 of the Penal Law of New
York, making it a felony to do what the officials in this case did.
And finally, the Appellate Division of the Supreme Court, affirmed
by the New York Court of Appeals, reduced the bizarre and
unprecedented sentence of ten years for contempt of court to one
It seems to me that, when this Court puts its imprimatur upon
conduct so universally reproached by every branch of the government
of the State in which the case arose, we invite official
lawlessness which, in the long run, can be far more harmful to our
society than individual contumacy.
MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN concur in this
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE
I must protest the Court's gratuitous exposition of several
grave constitutional issues confessedly not before us for decision
in this case. The tenor of the Court's wholly unnecessary comments
is sufficiently ominous to justify the strongest emphasis that, of
the abbreviated Court of seven who participate in the decision,
fewer than five will even intimate views that the constitutional
protections against invasion of privacy do not operate for the
benefit of persons -- whether inmates or visitors -- inside a jail,
or that the petitioner lacks standing to challenge secret
electronic interception of his conversations because he has not a
sufficient possessory interest in the premises, or that the Fourth
Amendment cannot be applied to protect against testimonial
compulsion imposed solely as a result of an unconstitutional search
The petitioner was convicted on several counts for failure to
answer each of a number of questions put to him by
Page 370 U. S. 151
a state legislative committee. On appeal, the judgment, which
had imposed 10 identical sentences to run consecutively, was
modified by the Appellate Division to provide that the sentences on
each count should run concurrently. The record shows, affirmatively
and without rebuttal, that at least two of the questions were
conceived and propounded independently of the search and seizure
which the petitioner claims infringed his constitutional rights,
and there is nothing which supports his contention that he would
not have been questioned at all but for that claimed
Under these circumstances, it is apparent that the judgment of
the Court of Appeals of New York can be adequately supported by an
independent ground of state law. It is the settled law of that
court that there is no occasion to review a conviction on one count
of an indictment or information if the judgment and sentence are
sufficiently sustained by another count. [Footnote 2/1
] Since this Court is thus able to see that
the judgment of the court below -- which is unelucidated by any
opinion -- is maintainable on an
Page 370 U. S. 152
adequate, independent state ground, it should forbear from any
further review of the case; for, in light of the clearly
established New York law, a decision by this Court on the federal
questions sought to be tendered here would be but an exercise in
futility. [Footnote 2/2
] In any
event, historic principles demand that any consideration of
constitutional issues at least abide a clarification from the court
below as to the basis for its judgment, in order "that this Court
not indulge in needless dissertations on constitutional law."
Minnesota v. National Tea Co., 309 U.
, 309 U. S.
I do not mean, however, that I would seek clarification in this
case. It taxes credulity to suppose that the court below would
disagree with the majority here that two of the counts are free of
any taint, or depart from its own settled doctrine that even one
such count requires affirmance. And even if this Court were somehow
free to disregard the law of New York, the Court has in the past
limited its review of a state conviction in accordance with
"the rule, frequently stated by this Court, that a judgment upon
an indictment containing several counts, with a verdict of guilty
upon each, will be sustained if any count is good, and sufficient
in itself to support the judgment."
Whitfield v. Ohio, 297 U. S. 431
297 U. S.
While the Court does ultimately rest its disposition of the case
on this ground, it does so by way of affirmance.
Page 370 U. S. 153
It is at least arguable that the proper disposition is to
dismiss the case because certiorari was improvidently granted.
Benz v. New York State Thruway Authority, 369 U.
; [Footnote 2/3
Fox Film Corp. v. Muller, 296 U.
. But in no event is it arguable that any of the
constitutional questions the Court reaches are before it.
See People v. Faden,
271 N.Y. 435, 3 N.E.2d 584;
People v. Cummins,
209 N.Y. 283, 103 N.E. 169; Hope v.
83 N.Y. 418; People v. Davis,
56 N.Y. 95.
That is also the federal rule, see Hirabayashi v. United
States, 320 U. S. 81
320 U. S.
In affirming the conviction, the Appellate Division found it
unnecessary to pass on the petitioner's contention that he could be
convicted of only a single crime because, the judgment having been
modified to cause the sentences to run concurrently, "the
conviction on any one count is sufficient to sustain the sentence.
. . . People v. Faden,
271 N.Y. 435, 444 (445), 3 N.E.2d
584, 587." 10 App.Div.2d 315, 319, 199 N.Y.S.2d 598, 603. The Court
of Appeals, which, in affirming without opinion, modified the
judgment to make clear that only a single crime had been committed,
found no occasion to reexamine the sentence, because "It is clear .
. . that the number of crimes of which the defendant was found
guilty did not enter into the duration of the sentence imposed." 9
N.Y.2d 895, 897, 216 N.Y.S.2d 706, 175 N.E.2d 833.
Compare Bachtel v. Wilson, 204 U. S.
, in which the Court dismissed a writ of error to the
Supreme Court of Ohio, which had written no opinion. The Court said
at p. 204 U. S.
"Before we can pronounce [the judgment of the court below] in
conflict with the Federal Constitution, it must be made to appear
that its decision was one necessarily in conflict therewith, and
not that possibly, or even probably, it was. . . . We do not decide
[that the state statute is to be given a construction which would
render it constitutional], but we do hold that, in view of the
silence of the supreme court, we are not justified in assuming that
it [did not so construe the statute]."
as here, the Court of Appeals had granted the
petitioner an amended remittitur reciting that it has necessarily
passed upon a federal constitutional question, to-wit: "Whether
plaintiff was deprived of just compensation in violation of the due
process clause of the Fourteenth Amendment." Notwithstanding that
representation, we concluded that the Court of Appeals had "decided
no more than" a question relating to state court jurisdiction. That
action was entirely consistent with Honeyman v. Hanan,
300 U. S. 14
300 U. S.
"A certificate or statement by the state court that a federal
question has been presented to it and necessarily passed upon is
not controlling. While such a certificate or statement may aid this
Court in the examination of the record, it cannot avail to
foreclose the inquiry which it is our duty to make or to import
into the record a federal question which otherwise the record
wholly fails to present."
Indeed, as Honeyman v. Hanan, supra,
v. Hanan, 302 U. S. 375
illustrate, proper pursuit of the matter when suspicions are
aroused may disclose that a state court's certificate simply did
not mean what it appeared at first glance, to say.
The remittitur in this case recited:
"Defendant argued that the imposition of penal sanctions for his
refusal to answer certain questions deprived him of liberty without
due process of law in violation of the Fourteenth Amendment. The
Court of Appeals held that defendant's constitutional rights were
The Court of Appeals wrote no opinion, and it is understood in
New York that
"affirmance without opinion is merely an adoption of the result
reached by the Appellate Division, the reasoning of which is not
Carmody's New York Practice (7th ed. 1956) 678. See
Commissioner of Public Welfare v. Jackson,
265 N.Y. 440, 441,
193 N.E. 262; Soderman v. Stone Bar Associates, Inc.,
Misc. 864, 867, 146 N.Y.S.2d 233, 236. For all we can tell, the
Court of Appeals concluded that the petitioner's "constitutional
rights were not violated" by reasoning that the two untainted
questions supported the conviction.