160 Misc. 628 | N.Y. Sup. Ct. | 1936
Defendants move to set aside six indictments presented against them on December 2, 1935, and numbered 355 to 360, inclusive, upon the ground that, in violation of subdivision 2 of section 313 of the Code of Criminal Procedure, a person was permitted to be present during the session of the grand jury while the charges embraced in the indictment were under consideration except as provided in sections 262, 263 and 264 of said Code, to wit, an Assistant Attorney-General of the State.
Indictments Nos. 355 to 357, inclusive, charge the defendants with violations of section 421 and the others charge them with violations of subdivisions 1 and 4 of section 580 of the Penal Law, all of the charges being indictable misdemeanors. Expressing it generally, it is charged that by publishing, circulating and placing before the public certain advertisements containing untrue, deceptive and misleading representations and statements of fact, the defendants violated section 421, and that, by conspiring so to do and also to thereby cheat and defraud members of the public generally out of money and property by criminal means, they infracted subdivisions 1 and 4 of section 580 of the Penal Law. All of the acts which are the foundation of such accusations had to do with the dissemination of certain allegedly false and misleading information and statements pertaining to the advertisers’ ability and willingness to predict, and his or their accuracy in having predicted regarding the outcome of certain horse races together with a solicitation to make such future predictions for a money consideration.
It is freely admitted that the Attorney-General, by his duly appointed and qualified assistant, appeared before the grand jury which found these indictments and assisted in making the presentments upon which they were based. To the challenges made by these motions the People first answer for the authority of the Attorney-General in having so appeared, with a letter from the Secretary of State, dated August 14, 1935. The body of this is as follows:
“My dear Attorney-General :
“ I have before me your letter of August 7th, 1935, relative to the complaints received by both your office and the Racing Commission against the operators of various so-called race-track services which, as you say, have been inserting false and fraudulent advertisements in the racing papers published in New York.
“ I also note that you have already conducted an investigation into the activities of these so-called racing services and that your investigation has disclosed that Sections 421 and 580 of the Penal Law of the State of New York have been violated and that a large number of citizens of this State has been defrauded.
*631 “ The Racing Commission, which is a division of the Department of State, in its letter to you of August 6th, 1935, has asked that you continue the investigation and prosecute every person in any way connected therewith in violation of the laws of this State.
“ Pursuant to Section 62, subdivision 3 of the Executive Law of the State of New York, I request you to investigate all complaints and charges, as outlined in your letter and that of Chairman Swope, and to prosecute any and all persons therein who have acted in violation of the laws of this State.”
The Executive Law, section 62, subdivision 3, is as follows:
“ § 62. General duties. The Attorney-General shall: * * *
“ 3. Upon the request of the Governor, Secretary of State, Comptroller, Superintendent of Public Works or Commissioner of Taxation and Finance, prosecute every person charged by either of them with the commission of an indictable offense of the laws, which such officer is specially required to execute, or in relation to matters connected with his department.”
The first question, then, is whether the offenses charged in these indictments were, (a) in violation of the laws which the Secretary of State “ is specially required to execute,” or, (b) in violation of the laws “ in relation to matters connected with his department.”
I do not understand that the People place any reliance upon the first part of the above inquiry which must, of course, be answered in the negative since there cannot be found in the statutes or elsewhere any “ special requirement ” for the Secretary of State or any of the divisions in the Department of State to execute the statutes in question.
As to the second part of this inquiry, it has been argued, in substance, that since the offenses aimed at by the prosecution arose from or as a result of the conduct of horse races at meetings over which a division in the Department of State, viz., the State Racing Commission, had certain general power and supervision (Laws of 1926, chap. 440, §§ 6, 6-a, 7, 8, as amd.), accordingly such offenses, although interdicted only by the general statute, nevertheless concern and are in relation to matters connected with that department.
Any such relation to matters that are of the Department of State must, therefore, be found, if at all, in the relation of the offenses charged to matters and things as to which the State Racing Commission has, either specifically or generally, something to do, or concerning or over which it has some power, supervision or duty.
Thus while the letter of the Secretary of State, supra, may constitute some color of authority, were it to stand alone as the only authority for the Attorney-General’s appearance before the grand jury, I would feel constrained to grant the pending motions.
Sections 262, 263 and 264 of the Code of Criminal Procedure do not forbid this questioned practice by any express prohibition. The origin of these sections date at least as far back as the Revised Statutes passed in 1827-28. Their substance has not been changed since. The amendments of recent years were occasioned by the enlarged personnel of the district attorneys’ staffs in certain counties and a special statutory devolvement of duty upon the Attorney-General as regards crimes against the elective franchise. Their ancient prototypes perhaps more lucidly than their present content indicate their real purpose as being to insure the secrecy of grand jury deliberations. They indicate that that secrecy was to be continued and preserved and the members thus kept free to act and independent of any ulterior influence. The design here, of
It is to be noted that there is no proof made nor, in fact, is there any clear claim asserted that any person was present with the grand jury when they took ultimate and final action on these indictments save the members themselves. These sections contain but one positive requirement as to the exclusion of persons before the grand jury and there is no evidence that such provision was violated, and, of course, no claim is made that the assistance rendered by the Attorney-General unduly or unlawfully influenced them. Considering the matter in this strict sense, a holding might be justified that no showing has been made that any person was present during the grand jury sessions while the charges embraced in these indictments were under consideration. The words, “ under consideration,” as used in subdivision 2 of section 313 of the Code of Criminal Procedure, which provides that an indictment “ must be set aside * * * When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three, and two hundred and sixty-four,” do not seem to have received any direct judicial construction in this State. Literally, it
Within their field of action the grand jury possess a plenary power. While the public prosecutor must hold himself available to them they are not obliged to accept his services. “ They are not obliged to call in the district attorney but may vote to indict without his presence and indeed against his advice.” (People v. Grout, 85 Misc. 570, 573.) On the other hand, they are bound to give him freedom of access to them for the purpose, as the statute says, “ of giving information relative to any matter before them.” Only in this latter event and for such purpose has he any right to appear before them except as they require it. (Code Grim. Proc. §§ 263, 264.)
This brings us to the question as to whether they could legally permit the assistance and appearance before them of the Attorney-
This question directs us to an examination of the origin and functions of these two offices. There are two decisions which have done this sufficiently for such purpose here. In People v. Kramer (supra) the origin and history of the office of Attorney-General is quite fully treated and its functions set forth, and there, and also in Spielman Motor Sales Co., Inc., v. Dodge (295 U. S. 89; 55 Sup. Ct. 678) the origin, history and status of the office of district attorney, in New York, is set forth at some length. The researches revealed in these opinions disclose that the office of Attorney-General existed at common law, and the incumbent had the power and duty of appearing in any matter or proceeding, civil or criminal, wherein the sovereign was interested. Thus he could and did attend the sittings of any grand jury and assist in presentments of criminal charges. All those powers and prerogatives were retained by that office upon its inauguration into the organization of our State government, and there they still exist along with the powers since granted to it, except only as they have been expressly abrogated by statutory enactment or by a reasonable intendment so to do necessarily implied from such enactment. As regards the power of the Attorney-General as the general public prosecutor and defender in all legal matters that concern the sovereign, he is still supreme in so far as any legislative enactments have expressly taken away or limited that power. No express shearing away of any of his ancient powers can be found. As early as 1796 (Laws of 1796, chap. 8) enactments began which relieved him from some of his duties by providing for the appointment of Assistant Attorneys-General in certain districts. It is significant and important to note that this act and similar subsequent enactments only relieved from certain duties and abstained from depriving of power. The rise of the office of district attorney is easily traceable as the outgrowth of these early offices of Assistant Attorneys-General. The growth of population and general development of settlement and industry throughout the far flung portions of the State may be seen as the underlying cause for the later rise and establishment of the office of district attorney, whose incumbent is still regarded as a State officer. (Fellows v. Mayor, 8 Hun, 484; People v. Fuller, 156 Misc. 404, 427.) In Spielman Motor Sales Co., Inc., v. Dodge (supra, 55 Sup. Ct. at p. 679) Chief Justice Hughes, in delivering the opinion of the court, stated:
“ The office of district attorney in the State of New York was created in 1801. In each of the districts as then established, which
“ Despite this provision for local elections, the district attorney in each county has been regarded as a State officer performing a State function and taking the place, in respect to his duties within the district or county, of the Attorney-General, upon whom at the outset these duties had been laid. Lincoln's Constitutional History of New York, vol. 2, pp. 529, 530; vol. 4, pp. 722, 723.”
Thus, there is seen the close relationship these two offices bear to each other. The one having been derived from the other and possessing within a certain locality or political subdivision some of the duties that formerly devolved upon the other, and along with this historic development we find no express abrogation of the power, duty under which was relieved by the creation and development of the newer statutory office that was to operate in the restricted district. In People v. Kramer (supra, at pp. 218, 219) the conclusion there stated upon this existing relationship seems to me a sound one, viz.:
“ The district attorney had no common law powers, like the sheriff, nor have the emoluments of his office been interfered with, as in the case of the county clerk. His office is derived from that of the Attorney-General, and, at its inception, he was designated as his assistant. By a succession of constitutional provisions and legislative enactments, the right of the Attorney-General to prosecute and conduct criminal actions, and to require the assistance of the district attorney in such cases, is declared and recognized. No one of his powers or duties has been abrogated by statute.
“ The district attorney, by statute and by a long-continued practice, has succeeded to some of the powers of the Attorney-General within the respective counties, but he has not supplanted him.”
We have here no question of prerogative as between the two offices in a case where the lesser had the express and prior duty of action. We have only the question of their right to co-operate in a given case and, by so doing, to share the prerogatives in a way agreeable to the incumbents and to the grand jury. In my opinion
The motions are denied and orders may be submitted.