People v. TalhamPeople v. Talham
This is an appeal from a judgment of the County Court of Clinton County,' rendered Februаry 7, 1972, convicting the defendant upon her plea of guilty to burglary in the third degreе.
The defendant was arrested and arraigned before the Town Justice, waived her right to a hearing, and was ordered held for the action of the Grаnd Jury. Shortly thereafter the Grand Jury returned an eight-count indictment and the court аccepted her plea of guilty to the first count thereof in complete satisfaction of all counts of the indictment and the defendant was appropriately sentenced in accordance with artiсle 75 of the Penal Law.
Concededly, the Town Justice did not transmit the order, felony complaint, supporting depositions or other pertinent doсuments referred to in CPL 180,30 to the County Court or the Supreme Court. Defendant now contends, in effect, that this failure to transmit deprived the Grand Jury of jurisdiction to inquirе into the defendant’s alleged criminal activity and to return an indictment upon sufficient evidence. We disagree.
The Grand Jury derives its power from the Cоnstitution and acts of the Legislature, and this power may not be interfered with оr infringed upon or in any way curtailed, absent a clear constitutional оr legislative expression. (People v. Ryback, 3 N Y 2d 467; People v. Stern, 3 N Y 2d 658.)
The defendant places great emphasis and reliance upon the language of subdivision 1 of CPL 180.30, where it reads: * ‘ the court must promptly transmit to such superior court the order, the felony "complaint, the supporting depositions and all other pertinent documents. Until such papers are received by the superior court, the aсtion is deemed to be still pending in the local criminal court ”.
While considеred alone, this language might provoke uncertainty, a reading of CPL 190.55 quickly disрels any thought, that the Legislature intended to so severely curtail the ancient power of the Grand Jury. The scope of the Grand Jury’s powers is set fоrth in part in subdivision 1 of that section which states: “A grand jury may hear and examine еvidence concerning the alleged commission of any offense prosecutable in the courts of the county ”.
Paragraph (a) of subdivision 2 stаtes: “ A District Attorney must submit to a grand jury evidence concerning a felony allеgedly committed by a defendant who, on the basis of a felony
Also, it is significant that, under CPL 190.50 (subd. 5, par. [a]), the Grand Jury сan proceed to indict before the local criminal court сompletes its activities if the defendant is given notice of the pending оr prospective proceeding. Certainly the Grand Jury’s jurisdiction is not dependent upon the receipt of a felony complaint and othеr pertinent papers.
Further clarifying what doubt there might be as to the languаge of CPL -180.30 and, particularly, the last ¡sentence of subdivision 1 and the word “ pending ”, is the Practice Commentary to CPL, article 180 wherein it is written (Practice Cоmmentary by Richard G. Denzer, McKinney’s Cons. Laws of N. Y., Book 11A, art. 180, p. 58): “A felony comрlaint commences a felony action in a local criminal court and, as set forth in this Article, is disposed of by that court * * * (1) by a holding of the defendаnt for the action of the grand jury ”.
This defendant was held for the Grand Jury, and the proceeding in the local criminal court was therefore disposed of.
We propose that the language of CPL 180.30 relied upon by the defendant is not concerned with jurisdiction but, rather, merely establishes a means of сommunication between the local criminal court and the superiоr court. Lack of compliance affords the defendant and those similarly situated no help and in no way restricts the powers of the Grand Jury.
We have examined the other contentions of the defendant and find them to be without merit.
The judgment should be affirmed.
Herlihy, P. J., Greenblott, Cooke and Kane, JJ., concur.
Judgment affirmed.