53 Misc. 2d 427 | New York County Courts | 1967
This is a motion to dismiss the indictment for several different grounds. The first ground to be considered by the court is that the Assistant District Attorney who pressed for indictment of the defendant and who presented the matter to the Grand Jury was moved and energized “ by the bias and prejudice of his membership in a so-called hate organization, to wit: The Minutemen ”.
Although the court has previously denied a motion by the defendant to inspect the Grand Jury minutes, the court felt obligated to read them by reason of the seriousness of this charge leveled at the Assistant District Attorney of this county. The court has read these minutes and they are devoid of any remarks, comments or questions not arising out of the evidence presented to the Grand Jury with reference to the crime alleged in the indictment. There was no prejudice whatever demonstrated by the actions or remarks of the District Attorney. The evidence adduced before the Grand Jury, if believed, is sufficient to enable a petit jury to find the defendant guilty of the crime charged beyond a reasonable doubt.
The second charge directed against the indictment is that the Grand Jury was illegally empanelled in violation of the defendant’s rights under the Constitution of the United States and the Constitution of the State of New York, ‘‘in that negroes
There is no presumption of irregularity in the selection of the Grand Jury and the defendant has produced no facts to substantiate his contentions. On the contrary, there is a presumption that the Grand Jury was properly empanelled and acted with propriety and that the indictment is valid. (People v. Glen, 173 N. Y. 395; People v. Sexton, 187 N. Y. 495; People v. Sweeney, 213 N. Y. 37.) The affidavit of the Commissioner of Jurors attached to the papers submitted by the District Attorney indicates the panel was chosen from random selection from the election registration rolls of the county. This is one of the methods prescribed and authorized by section 658 of the Judiciary Law. The court has examined the forms submitted to each prospective juror as to his legal qualifications to serve on both petit and grand juries and there is nothing in this form concerning the prospective juror’s race, color or national origin. Since there is no evidence of any deliberate, intentional or systematical exclusion of any particular race, defendant’s position is untenable. (People v. Horton, 18 N Y 2d 355; People v. Agron, 10 N Y 2d 130.)
Since this court presides over the selection of the Grand Jury from those who have been found qualified to serve, the court can take judicial notice that such jurors are chosen by lot as the Commissioner of Jurors indicates in his affidavit. The actual ballots used at the present time in this county are not ballots in the usual sense of the word, but are blank punch cards containing only perforations which are selected at random through the insertion of these cards into an IBM machine. Since there is no direct evidence of exclusion of a particular racial group or evidence of a long-continued pattern of exclusion (People v. Horton, supra) we find no deprivation of defendant’s constitutional rights, either under the United States Constitution or the Constitution of the State of New York. Want of proportional representation of groups, not proven to be deliberate and intentional, is not constitutionally offensive. (People v. Agron, supra.)
In his brief, defense counsel states: ‘ ‘ This Court can take judicial notice of the absence of Negroes from Grand Juries and, empirically reviewing the swelling Negro census of the County, can ponder whether non-service upon a Grand Jury by a Negro is accident or design.”
This court has already held that such nonservice is not by any design or purposeful action. However, the court does agree with defendant’s counsel that, if a man is entitled to be judged by his peers, then the present system must be analyzed and studied. The stigma of poverty should not be a barrier to the seating of a juror to judge a peer who is presumed to be innocent. For the reasons indicated the motion is denied.