103 Misc. 366 | N.Y. Sup. Ct. | 1918
An inquiry was instituted by the grand jury into certain acquisitions of land by the city of New York for public purposes regarding which complaint had been made that the city had been defrauded. This inquiry continued for several months, during which a large number of books and records and witnesses were examined and many hundreds of pages of testimony taken.
Several indictments were found, among them being the one at bar charging the defendants with conspiracy. Permission to inspect the minutes of the grand jury was granted, on which each defendant moved to dismiss the indictment on several grounds, but one of which will now be considered, and that is that the Statute of Limitations interposes a bar to the prosecution of the defendants for the crime charged.
The conspiracy is alleged to have continued until July 19, 1913, on which date the last act in pursuance thereof was committed. On October 22, 1917, the
If according to the preceding section (142) an indictment under any circumstances must not be found after the expiration of two years from the commission of the offense, then the succeeding section (143), providing that it may be found after the two years when the defendant is without the state, would be meaningless. To give intelligible effect to the legislative intent the word “ mnst ” should be qualified as if the section read “ an indictment must be found except as hereinafter provided,” etc. Notwithstanding the decision in People v. O’Donnell, 46 Hun, 358, the principle and weight of authority hold that where on the face of the indictment it is apparent that the
Defendants urge that affidavits showing continuous residence within the state were submitted in support of their motion, and that inasmuch as there were no replying or contradictory affidavits their averments should be accepted as conclusive that they are not within the proviso of the statute. Since, as has been stated, the plea of the statute can only be interposed under the general plea of not guilty, it cannot be decided on affidavits. Besides the People have a right to cross-examine the affiants and to introduce evidence in rebuttal. If there should arise a conflict of evidence
It is further urged that from the length of time of inquiry before the grand jury, the voluminous record and documentary evidence necessary to proof and the number of witnesses that must be examined, the case, if it goes to trial, will necessarily occupy a long period of time, which would involve not only great and unnecessary labor and use of time to all concerned, but great expense to the public and obstruction to the ordinary business of the courts, and that since the great preponderance of probability is that defendants ’ evidence of continuous residence will not be controverted, it would obviate the burdens and hardships of such trial if the uncontradicted affidavits submitted on this motion were accepted as conclusive of the fact. Of course, it would be futile to enter upon a long and expensive trial if an adverse result to the People is a foregone conclusion. But that is not within my province to determine. The responsibility rests with the district attorney, and that officer is presumed to act advisedly.
The motion must be denied, for the reasons that (a) the constitutional rights of the defendants were not violated; that (b) there was sufficient evidence before the grand jury to warrant the finding of an indictment; that (c) the grand jury was not bound to hear testimony or to allege in the indictment that the defendants because of absence from the state were within the proviso of the statute, and that (d) the objection that on the face of the indictment the Statute of Limitations has run against prosecution for the crime cannot be availed of on motion, but must be interposed under the general plea of not guilty.
Ordered accordingly.