39 Misc. 2d 584 | N.Y. Sup. Ct. | 1963
Motion for order (1) setting aside indictment pursuant to subdivision 1 of section 313 of the Code of Criminal Procedure and section 6 of article I of the Constitution of the State of New York; (2) granting inspection of the Grand Jury minutes and furnishing dates and records of Grand Jurors’ attendance at sessions on which evidence was adduced and (3) dismissing indictment for insufficiency of proof is denied in all respects. The soundness of defendant’s contention that the indictment was not found as prescribed by law (Code Grim. Pro., § 313) depends on the correctness of his view that the same Grand Jury that found a prior defective indictment cannot, upon resubmission of the case by leave granted on a judgment allowing a demurrer thereto, reindict without recalling the witnesses or otherwise adducing the evidence anew. But “ [t]here is no substantial reason why the procedure, where a motion to set aside an indictment is granted with leave to resubmit the charge to a Grand Jury, should not be followed where a demurrer is laid to an indictment with leave to resubmit the charge.” (People v. Baff, 99 Misc. 684, 688.)
Upon the argument of this motion, the Attorney-General’s concession that the same Grand Jury had found the present indictment and those preceding it, upon the same evidence, was accepted hy defendant as establishing the facts sought to be established by reference to the dates of the Grand Jury hearings and the record of attendance thereat. There was no question raised as to the concurrence, on the dates of the finding of the respective, successive indictments, of at least 12 Grand Jurors who had heard the evidence on which they assumed to act (People v. Salerno, supra, pp. 177-178).
Order accordingly made herewith.
. Quoted with approval in People v. Follette (74 Cal. App. 178).