49 N.Y.2d 389 | NY | 1980
Lead Opinion
OPINION OF THE COURT
The People appeal from an order of the Appellate Division, which affirmed a decision of Supreme Court dismissing the indictments against defendants. The sole question presented by the People’s appeal is whether the District Attorney’s legal instruction to the Grand Jury impaired the integrity of that body’s deliberations and thereby rendered the indictments "defective” within the meaning of CPL 210.20 (subd 1, par [c]; see CPL 210.35, subd 5).
We note at the outset that we are not persuaded by the People’s contention that the State-wide standard for obscenity articulated in People v Heller (33 NY2d 314, supra) should be modified. Although the United States Supreme Court has indicated that the issue of what constitutes obscenity may be determined with reference to local community standards (Jenkins v Georgia, 418 US 153, 157), we remain convinced that the rule established in Heller is the most effective approach to closing the door on censorship "by local authorities * * * who would [otherwise] be free to form their own notions as to what constitute^] patently offensive material” (People v Heller, supra, at p 322). For this reason, we decline the People’s invitation to reconsider Heller, and we reaffirm our view that the contemporary standards of communities throughout the State are the proper measure of what is "obscene” within the meaning of our Penal Law.
This conclusion, however, does not end the inquiry in the present case. While it is true that the legal instructions given to the Grand Jury were incomplete in light of Heller, it does not necessarily follow that the resulting indictments should
Given this functional difference between the two bodies, it would be unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court’s instructions to a petit jury. Indeed, the difference in the extent and quality of the legal instructions that must be given to the two bodies is reflected in the Criminal Procedure Law, which, on the one hand, directs the court or District Attorney to give legal instruction to the Grand Jury only "[wjhere necessary or appropriate” (CPL 190.25, subd 6), but, on the other hand, requires a Judge presiding over a trial before a petit jury to state in detail "the fundamental legal principles applicable to criminal cases in general” as well as "the material legal principles applicable to the particular case” and "the application of the law to the facts” (CPL 300.10, subd 2). In view of the divergent functions of the two bodies, we hold that a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law. We deem it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to
This lesser standard was clearly met in the present case. The District Attorney adequately informed the Grand Jurors of the essential elements of the crimes they were being asked to consider by reading the applicable provisions of the Penal Law, including the statutory definition of obscenity. While his failure to furnish complete instructions regarding the proper legal standard for assessing obscenity would have been fatal if a determination of guilt hinged upon the instruction, it cannot be said that the omission was so significant in the context of the Grand Jury’s deliberations as to prejudice the interests of the defendants and render the indictments legally defective. Hence, it was error for the trial court to dismiss the indictments on this ground alone.
We note that we do not intend to suggest by our holding in this case that inadequate or incorrect legal instructions to the Grand Jury would never constitute grounds for dismissing an indictment as defective under CPL 210.35 (subd 5). To the contrary, we recognize that there may be situations in which the instructions to the Grand Jury are so misleading that the indictment could not be permitted to stand even though it is supported by legally sufficient evidence (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.35, pp 384-3S5).
Accordingly, the order of the Appellate Division should be reversed, the indictments reinstated and the case remitted for further proceedings on the indictments.
. In the ordinary case, this standard may be met by reading to the Grand Jury from the appropriate sections of the Penal Law (see People v Lawson, 84 Misc 2d 24, 28; People v Dingle, 70 Misc 2d 840, 844).
. The result might have been different here, for example, had the District Attorney provided the Grand Jury with erroneous and misleading instructions in response to a request from that body for clarification or amplification of the meaning of the phrase "contemporary community standards”.
. We note that, although the right to an indictment ordinarily cannot be waived (see Matter of Simonson v Cahn, 27 NY2d 1, 4), our State Constitution now provides for a limited exception to this rule. Under this constitutional provision, “a person held for the action of a grand jury upon a charge for [an infamous] offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see People v Iannone, 45 NY2d 589, 593, n 4).
Concurrence Opinion
(concurring). While I concur in the result I cannot accept the dictum in the majority’s analysis. Whether the standard to be applied is State-wide is not an issue necessary to be determined in this case, if at all, and for me it is reason enough to avoid doing so that though the statutory definition of "obscene” set forth in subdivision 1 of section 235.00 of the Penal Law was adopted after People v Heller (33 NY2d 314, cert den 418 US 944) was decided the Legislature did not include the word "statewide” in that definition. While that does not necessarily mean that "community” as used in the definition does not mean "state” or that the Legislature did not use "community” in order to leave exact definition to the courts, there is at least some suggestion of other possibilities in the omission when it is recalled that the 1974 revision was adopted by the Legislature in response to our statement in Heller (33 NY2d, at p 331) that "it is within the province of the Legislature to determine whether the less stringent test of obscenity laid down in that case [Miller v California, 413 US 15] should now become the ultimate formula to be applied in New York”,
It is enough for decision of the present appeal to note that reading of the statutory definition to the Grand Jury will normally be sufficient unless it can be said that because of the complexity of the matter the failure to do more impaired the integrity of the indictment and created a possibility of prejudice to defendant (People v Rallo, 39 NY2d 217, affg 46 AD2d 518; People v Percy, 38 NY2d 806, affg 45 AD2d 284; People v Banner, 59 AD2d 621). Since, as the majority notes the function of the Grand Jury is to decide only whether a prima facie case has been made out, not guilt or innocence, and the standard is simply a means of testing the appeal of the material involved to prurient interest in sex, its indictment of defendant using a community standard cannot be said to prejudice him even if the ultimate determination is that for conviction the jury must be instructed to apply a State-wide standard. The more so is that true when one recalls that juries regularly apply the standard of the reasonable man without being told the limits of the community which that fictional person inhabits, and that what is here to be applied is the standard of the "average person, applying contemporary community standards”.
Chief Judge Cooke and Judges Jones and Fuchsberg concur with Judge Gabrielli; Judge Meyer concurs in a separate opinion in which Judges Jasen and Wachtler concur.
Order reversed, etc.
See, also, footnote 4 to Judge Wachtler’s dissent in People v Heller (33 NY2d
