11 A.D.2d 155 | N.Y. App. Div. | 1960
Defendant Morgan D. Ryan has been indicted for the crime of bribery in violation of section 1822 of the Penal Law of the State of New York by the regular March Grand .Jury of the Supreme Court reconvened by order in Ulster County pursuant to section 244 of the Code of Criminal Procedure. The indictment was returned on August 8, 1959 and contained three counts charging Ryan with the bribing of three different public officials. Ryan now moves to dismiss the indictment upon the ground, among others, that the indictment could have been found on evidence developed from “ links and leads ” furnished by Ryan when he was previously improperly compelled to testify before the Grand Jury of the Extraordinary Special and Trial Term of the Supreme Court, Ulster County. In the alternative, he desires an inspection of the minutes of the Grand Jury which returned the instant indictment. The motion is made before this court as provided in section 149 of the Judiciary Law.
A prior indictment charging Ryan and one Steuding with the crime of conspiracy to pay bribes returned by the Grand Jury
In dealing with the instant problem, it must be kept in clear focus that we are not dealing with a statute which grants absolute immunity such as section 584 of the Penal Law, as amended, and section 2447 of the Penal Law. There is no contention here even by the defendant that section 2447 had any application to him under the facts and developments in People v. Steuding (supra). We are concerned solely with the protection and privilege of a prospective defendant under section 6 of article I of the Constitution of the State of New York. If he is called and examined before a Grand Jury his constitutionally-conferred privilege is deemed violated even though he does not claim or assert the privilege. Such a violation of this constitutional privilege protects the defendant not only from the indictment based on any incriminating evidence, but also from the use of such evidence and carries with it a dismissal of the indictment returned by the Grand Jury before which the defendant testified. To call this “ immunity ” may be confusing. No constitutional provision or statute granting immunity is brought into operation, and the protection resulting from the violation of the constitutional privilege does not extend to the resubmission for consideration to another Grand Jury before which the said prospective defendant is not subpoenaed and examined (People ex rel. Coyle v. Truesdell, 259 App. Div. 282, 284; People v. Bermel, 71 Misc. 356; People v. Freistadt, 6 A D 2d 1053). This question was discussed but not decided in People v. Steuding
Defendant’s motion to inspect the Grand Jury minutes is denied. The other points raised, that is, that the Grand Jury which found the instant indictment was an illegally constituted body has already been decided (Matter of Ryan v. Supreme Court, 9 A D 2d 846, affd. 8 N Y 2d 739), No permission or order was necessary to resubmit the charges to the March Grand Jury of Supreme Court, (Cf. People v. Horvatt, 287 App. Div. 289, 291, affd, 262 N. Y. 508,)
The motion should be denied in all respects.
Bregan, P, J,, Goon, Gibson and Hbblisy, Jj,, concur.
Motion, in all respects, denied.