251 A.D. 584, People v. Rosen

Citation:251 A.D. 584
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AL ROSEN, Appellant.
Case Date:July 02, 1937
Court:New York Supreme Court Appelate Division, Third Department
 
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Page 584

251 A.D. 584

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

AL ROSEN, Appellant.

Supreme Court of New York, Third Department.

July 2, 1937

Page 585

APPEAL by the defendant from a judgment of the County Court of Sullivan county, rendered against him on the 6th day of March, 1937, convicting him of the crime of attempted arson, second degree, with notice of intention to bring up for review orders of the County Court and the Supreme Court, respectively made on the 3d and

Page 586

29th days of March, 1937, denying defendant's motions for a new trial and in arrest of judgment; and an order of the Supreme Court, entered in the office of the clerk of the county of Sullivan on the 2d day of July, 1936, and also an order of the County Court of Sullivan county, entered in said clerk's office on the 1st day of March, 1937.

Defendant seeks to review also an order of said County Court overruling the demurrer to the indictment herein; also an order of the Supreme Court denying defendant's motion to quash the indictment herein; also the respective orders of the County Court and the Supreme Court denying motions for a new trial and in arrest of judgment.

COUNSEL

Rose Silverstein [George H. Rosen of counsel], for the appellant.

William Deckelman, District Attorney, for the respondent.

RHODES, J.

The indictment herein charges the defendant with attempt to commit arson in the second degree in that on the 13th day of September, 1935, in the night time, he sought to burn a certain dwelling house in the village of Monticello, N.Y. , owned by him.

The bill of particulars supplementing the indictment states that the dwelling house referred to in the indictment 'is located on the easterly side of a highway in the Village of Monticello, known as Pleasant Street and easterly of a building used as an ice cream factory * * *, which said building so used is directly east of the premises known as 52 Pleasant Street in the said village and that the said dwelling house so referred to in the said indictment is on the same lot known as 52 Pleasant Street.'

Upon the lot in question is a dwelling house fronting on the street and occupied by a tenant. In the rear of said tenant house and easterly thereof upon the same lot was an ice cream plant operated by the defendant. There was also a barn upon the lot and toward the rear of the lot was a small bungalow occupied by the defendant and his family, said bungalow being the building which he is charged with attempting to burn. While the indictment alleges that defendant is the owner, his wife testified that she is the owner of the entire premises.

The defendant moved to quash the indictment upon the ground that the grand jury was not properly constituted in that the original list of grand jurors prepared by each supervisor was filed with the county clerk instead of a composite list of all the proposed grand jurors, after certification thereof by the clerk of the board of supervisors, as provided by section 229-d of the Code of Criminal Procedure.

Page 587

By section 238 of said Code, challenges to the panel or to the array of the grand jury are no longer allowed. The defendant was not pre-judiced by the irregularity. ( People v. Hooghkerk, 96 N.Y. 149; People v. Petrea, 92 id. 128; Carpenter v. People, 64 id. 483.)

Defendant further argues that the...

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