161 Misc. 645 | New York Court of General Session of the Peace | 1937
This is a motion addressed to the discretion of the court to vacate its order herein, approving the direction of the grand jury that the district attorney file an information against these defendants in the Court of Special Sessions of the City of New York for the crimes of coercion and conspiracy, and the defendants pray for such other and further relief as to the court may seem just and proper in the premises.
Upon the argument of this motion, defendants’ counsel urged “ that if the court so desires it may, in its discretion, either vacate such order of approval or, in the alternative, grant an inspection of the minutes of the grand jury on which the direction was made by the grand jury, so that counsel may then move to vacate such order of approval, based upon such minutes.”
The district attorney concedes that this motion is the proper procedure to take in this case; and he does not question the court’s power to vacate its own order.
Section 742 of the Code of Criminal Procedure establishes the procedure or preliminary steps by which the Court of Special Sessions can acquire jurisdiction over misdemeanors and the accused.
This prosecution is the result of a general so-called John Doe investigation on November 9,1936, conducted by the October, 1936, term additional grand jury. The proceeding, which was not aimed at any particular individual or individuals, followed two other proceedings or examinations conducted by the same grand jury on October 14, 1936, wherein certain individuals were actually accused of crime, arising out of labor union relations, working conditions, disputes and the activities of some of its officers and members.
On November 9, 1936, the grand jury examined a number of witnesses whose testimony involved Louis Nelson. On that same day he was called before the grand jury and Mr. Hastings advised the defendant: “ At the direction of the Grand Jury, I have asked you to come here and warn you that evidence has been brought against you which requires explanation. We do not want to hear your explanation if you do not waive immunity. Now, you said you were going to consult counsel.” The following colloquy then took place: Mr. Nelson: “ If there are any charges against me the Grand Jury has a perfect right to indict me.” Mr. Hastings: “ We know their rights very well. The last time action was taken here you answered that you didn’t get a square deal. If you want to make an explanation here, of course, you can only make it under a waiver of immunity.” Mr. Nelson: “ I think you heard my reply, gentlemen.” Mr. Hastings: “ All right.” A Juror: “ You understand the inference we draw from your refusal to waive immunity is not favorable to you, Mr. Nelson.” Mr. Nelson: “ I think, gentlemen, that the Grand Jury probably resents the offer of the waiver of my letter before you. That is probably one of the reasons that you requested me to sign a waiver of immunity.” Mr. Hastings: “ There is no speculation as to why. Either you do or
The defendant Louis Nelson now contends that he was compelled to testify against himself before a biased grand jury, as indicated by the remark of one of the jurors regarding the refusal to waive immunity. I find nothing in the record of the grand jury proceedings that establishes a violation of said defendant’s constitutional rights (People v. Bermel, 71 Misc. 356), such as would warrant a disclosure and review of the testimony before the grand jury, upon which the order of approval herein was made and which counsel now seeks to have vacated and set aside. He testified voluntarily in respect to the subject-matter of his letter. Thereafter he was not permitted to testify. And so far as the alleged prejudice of the grand jury is concerned, the unfavorable inference which one of the jurors stated would be drawn from the refusal to waive immunity might, under certain circumstances, constitute some evidence of bias such as would warrant action by this court in setting aside an indictment or an order of transfer to the Court of Special Sessions where the evidence was so meagre as to raise a serious question regarding its sufficiency. Here I find ample, competent and legal evidence to support the action of the grand jury that makes out that kind of a prima facie case, which, if uncontradicted, would warrant a conviction. This is all that the law requires. (See People v. Hebberd, 96 Misc. 617.)
On November 13, 1936, the grand jury certified* that it was satisfied from the evidence presented to it that there was cause to believe that the crimes of coercion and conspiracy were committed by Isidore Tumen, Jack Zimberg, David Rosen, Joseph Rappaport and Louis Nelson in the county of New York from on or about the 1st day of September, 1936, down to and including November 8, 1936, and the grand jury directed that said crimes should be prosecuted in the Court of Special Sessions by information and directed the district attorney of the county of New York to make and file an information in the Court of Special Sessions of the City of New York, county of New York, against the said named persons as defendants for said crimes. This order was approved pursuant to section 742 of the Code of Criminal Procedure on November 13, 1936.
A display of unfairness by one grand juror does not justify the assumption that prejudice permeated the entire deliberations of the entire jury body. Besides, unanimity was not required; therefore, the burden to prove illegality must be sustained by those who attack the action of the grand jury.
A grand jury, free from prejudice and partiality, may receive evidence which would be admissible upon a trial (Code Crim. Proc. § 256; People v. Moskowitz, 196 N. Y. Supp. 634); and where, as here, there can be no serious question about the sufficiency of the evidence as it is understood by this court, any prejudicial statement volunteered by a single juror, speaking for himself, is, as defendants’ counsel admits, innocuous and harmless. (See People v. Doyle, 107 Misc. 268.) The record examined does not disclose that amount of irregularity which destroys the whole proceeding. Taking the facts as they are contained in the testimony, the court is able to judge that a clear case has been made out as against all defendants.
The record of the proceedings before the grand jury shows that some hearsay and other incompetent evidence, regarding alleged threats or actual violence, was received, which the assistant district attorney conducting the examination should have avoided to prevent any claim of prejudice affecting substantial rights such as would
It is not my task here, as a judge, to balance any conflicting claims there may be, or to settle any interests one way or the other and thus “ determine which of several opposing individual claims the law should favor in order to promote social well-being ” or economic betterment. These are all matters to be urged before the trial court.
The motions must be, accordingly, denied.