Nigrone v. Murtagh

CourtNew York Court of Appeals
Writing for the CourtBREITEL
Citation36 N.Y.2d 421,369 N.Y.S.2d 75,330 N.E.2d 45
Decision Date03 April 1975
Parties, 330 N.E.2d 45 In the Matter of Salvatore NIGRONE, Appellant, v. John M. MURTAGH, as a New York County Supreme Court Justice, Presiding at an Extraordinary Term of the Supreme Court, et al., Respondents. The PEOPLE of the State of New York, Plaintiff, v. Paul P. RAO, Defendant. The PEOPLE of the State of New York, Plaintiff, v. Paul P. RAO, Jr., Defendant.

Page 75

369 N.Y.S.2d 75
36 N.Y.2d 421, 330 N.E.2d 45
In the Matter of Salvatore NIGRONE, Appellant,
v.
John M. MURTAGH, as a New York County Supreme Court Justice,
Presiding at an Extraordinary Term of the Supreme
Court, et al., Respondents.
The PEOPLE of the State of New York, Plaintiff,
v.
Paul P. RAO, Defendant.
The PEOPLE of the State of New York, Plaintiff,
v.
Paul P. RAO, Jr., Defendant.
Court of Appeals of New York.
April 3, 1975.

Page 77

Herald Price Fahringer, Buffalo, for appellant.

Maurice H. Nadjari, Sp. State Prosecutor (Bennett L. Gershaman, New York City, of counsel), respondent pro se, and for another, respondent.

Roy M. Cohn and Thomas A. Bolan, New York City, for Paul P. Rao and Paul P. Rao, Jr., amici curiae.

BREITEL, Chief Judge.

Once again, in a little over two months, this court is presented with the issue whether a collateral and extraordinary proceeding in the nature of prohibition under CPLR article 78 should be entertained to review allegedly gross error or defect in a pending criminal action. In this instance the gross error or defect has been caused by alleged prosecutorial misconduct, in simulating the setting for criminal actions for perjury now pending against petitioner and two others. And, once again, the answer should be, whatever the provocation to do otherwise, orderly procedure under a rule of law dictates that the collateral proceeding not be available. This is true so long as the pending criminal action does not involve an exercise by a court of powers outside its jurisdiction or an excess of jurisdiction by a court which otherwise has subject-matter jurisdiction (Matter of State of New York v. King, 36 N.Y.2d 59, 62--65, 364 N.Y.S.2d 879, 881--884, 324 N.E.2d 351, 353--355).

The facts in this and the related prosecutions for perjury are detailed in the two opinions at the Appellate Division. Their content in detailing the facts and the proceedings before the regular Kings County Grand Jury and the Extraordinary Special Grand Jury is the premise for what follows. The legal conclusions reached in those opinions, for the reasons to be discussed, are precluded from present review because of the nonavailability of an article 78 proceeding and the nonappealability at this time of a motion made under subdivision 2 of section 149 of the Judiciary Law, Consol.Laws, c. 30.

There is no contention that the Supreme Court in the criminal action is without subject-matter jurisdiction or that it has exceeded its powers (cf. Matter of Proskin v. County Ct. of Albany County, 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 45, 280 N.E.2d 875; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 436--438, 318 N.Y.S.2d 705, 707--710, 267 N.E.2d 452, 453--455; Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335--336, 274 N.Y.S.2d 881, 884--886, 221 N.E.2d 546, 549--550). The only contention is, and the facts are conceded, that the Special Prosecutor, by a series of contrived events arranged and set up a simulated crime of robbery, and caused fictional testimony under oath to be presented before the regular Grand Jury which returned the robbery indictment in the fictitious criminal matter. This was

Page 78

done without the knowledge of the court for which that Grand Jury had...

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48 practice notes
  • State v. Wolowitz
    • United States
    • New York Supreme Court Appellate Division
    • October 24, 1983
    ...a proceeding, would be, and is, simply to defend on the merits and, if necessary, by way of appeal (cf. Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d For all the foregoing reasons, respondent's action against the State should have been dismissed. We now consider S......
  • Dondi v. Jones
    • United States
    • New York Court of Appeals
    • June 3, 1976
    ...(Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 882, 324 N.E.2d 351, 353; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 423--424, 369 N.Y.S.2d 75, 77, 330 N.E.2d 45, 46). It must be directed to some inferior judicial tribunal or officer and lies to prevent or c......
  • People v. Brooks
    • United States
    • United States State Supreme Court (New York)
    • October 10, 1984
    ...the defendant is a victim of a "perjury trap" is generally a question of fact to be resolved by the jury (Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 426, 369 N.Y.S.2d 75, 330 N.E.2d Furthermore, prior to defendant testifying at the Ahmed trial, no inconsistent statement had been made unde......
  • Gouiran Holdings, Inc. v. Miller
    • United States
    • United States State Supreme Court (New York)
    • May 18, 1988
    ...prior to seeking prohibition, the defendant in a criminal case made a speedy trial motion to dismiss the indictment]; Nigrone v. Murtagh, 36 N.Y.2d 421, 425, 369 N.Y.S.2d 75, 330 N.E.2d 45 [1975] [prohibition did not lie to remedy allegedly gross prosecutorial misconduct where issue was rai......
  • Request a trial to view additional results
48 cases
  • State v. Wolowitz
    • United States
    • New York Supreme Court Appellate Division
    • October 24, 1983
    ...a proceeding, would be, and is, simply to defend on the merits and, if necessary, by way of appeal (cf. Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d For all the foregoing reasons, respondent's action against the State should have been dismissed. We now consider S......
  • Dondi v. Jones
    • United States
    • New York Court of Appeals
    • June 3, 1976
    ...(Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 882, 324 N.E.2d 351, 353; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 423--424, 369 N.Y.S.2d 75, 77, 330 N.E.2d 45, 46). It must be directed to some inferior judicial tribunal or officer and lies to prevent or c......
  • People v. Brooks
    • United States
    • United States State Supreme Court (New York)
    • October 10, 1984
    ...the defendant is a victim of a "perjury trap" is generally a question of fact to be resolved by the jury (Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 426, 369 N.Y.S.2d 75, 330 N.E.2d Furthermore, prior to defendant testifying at the Ahmed trial, no inconsistent statement had been made unde......
  • Gouiran Holdings, Inc. v. Miller
    • United States
    • United States State Supreme Court (New York)
    • May 18, 1988
    ...prior to seeking prohibition, the defendant in a criminal case made a speedy trial motion to dismiss the indictment]; Nigrone v. Murtagh, 36 N.Y.2d 421, 425, 369 N.Y.S.2d 75, 330 N.E.2d 45 [1975] [prohibition did not lie to remedy allegedly gross prosecutorial misconduct where issue was rai......
  • Request a trial to view additional results

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