114 Misc. 62 | New York Court of General Session of the Peace | 1920
On October 5, 1916, one Verrazano was murdered in the county of New York. On
Upon the trial testimony was given by witnesses, other than those called before the grand jury, which the jury found corroborated the accomplices, and unless and until the judgment of conviction is reversed upon the ground that there was no sufficient corroboration, it must be assumed, for the purposes of this motion, that the defendant was properly convicted and that the eorroboiation was sufficient. The question, therefore, arises whether an indictment should be dismissed because founded upon insufficient evidence in a case where the defendant has been subsequently tried and convicted upon sufficient evidence and has not attacked the sufficiency of the indictment until after final judgment. Had such motion been made prior to trial the granting thereof would have been no bar to the finding of a new indictment upon sufficient evidence. But should the motion be granted after the trial and conviction of the defendant, the defendant might well claim a former jeopardy and that he could not be subsequently prosecuted for the
The district attorney contends that under sections 285 and 684 of the Code of Criminal Procedure this motion must be denied for the reason that the defendant has not been prejudiced because he was ultimately convicted on proper evidence. I am of the opinion, however, that those sections refer only to imperfections of form and departures from the form or mode of procedure prescribed by the Code, or to errors or mistakes in form or in mode of procedure, and are not broad enough to warrant the disregarding of the violation of a constitutional right.
I am, however, of the opinion that the defendant has waived his right to make.this motion by not doing so prior to the imposition of final judgment. If it be true that there was no testimony before the grand jury, other than that of accomplices, connecting defendant with the crime, that fact was as much within the defendant’s knowledge or his means of knowledge at the time of the imposition of final judgment as it is today and there is no reason shown why the motion was not made before judgment or the indictment attacked at or before the time when the defendant was called upon after his conviction to state why judgment should not be imposed upon him. The general rule is stated as follows, by the Court of Appeals, in People v. Willett, 213 N. Y. 368, 375: “ Unless a motion founded upon the indictment and
The defendant, however, claims that his constitutional right has been invaded and that the doctrine of waiver does not apply in such case. While it has been held that a defendant can not waive a constitutional objection to the power or jurisdiction of the court to try him (See People v. Cancemi, 18 N. Y. 128), other constitutional rights of the defendant may be waived as well as statutory rights. See Dodge v. Coruclius, 168 N. Y. 242, and cases cited therein. See, also, People v. Rathbun, 21. Wend. 509; Pierson v. People, 79 N. Y. 424; People v. Cosmo, 205 id. 91; People v. Toledo, 150 App. Div. 403.
While this motion is not for the dismissal of the indictment but for the inspection of the minutes of the grand jury, yet, as it is made upon the sole ground that it is for the. purpose of subsequently moving to dismiss, it would be futile to grant the motion if the subsequent motion to dismiss must inevitably be denied.
For these reasons this motion is denied.
Motion denied.