Nigrone v. Murtagh

• Decision Date: 03 April 1975
• Citation: 36 N.Y.2d 421,369 N.Y.S.2d 75,330 N.E.2d 45
• 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.
• Court: New York Court of Appeals Court of Appeals

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.

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 done without the knowledge of the court for which that Grand Jury had been drawn and under which that Grand Jury functioned as an arm of the court, and without the knowledge of the District Attorney of the county who, as a matter of law, acted as counsel to that Grand Jury (CPL 190.05, 190.25, subd. 6). And, of course, the regular Kings County Grand Jury did not know when it returned the indictment against the factitious defendant (a pseudonymous undercover police officer) that it was playing a role in a simulation to provide a setting for an investigation of possible corruption of Judges and their allegedly corrupt intermediaries.

None of this simulated case, the so-called 'Vitale' case, is involved in the pending criminal action, except as an antecedent setting. No 'pretenses' under false guise were placed before the Extraordinary Special Grand Jury which returned the instant perjury indictments, but instead the actual facts including the use of the pretenses in the simulation were unfolded before the Grand Jury. Nor did the court before which the current 'real' perjury indictment is pending play any role in the antecedent setting-up of the 'Vitale' case. Consequently, nothing in a procedural or jurisdictional sense affects the pending criminal action. This is not to say that the alleged prosecutorial misconduct would not be raisable properly as a bar by motion or defense pleaded to the court which has jurisdiction. This may be done in the same manner as any purported illegality, such as unauthorized wiretapping, or illegal search and seizure, which might undermine a pri facie otherwise valid basis for a criminal action (see CPL art. 710). Indeed, the motions made under section 149 of the Judiciary Law were precisely of that character. As observed later, the intermediate determinations on those motions are not appealable at this time and such nonappealability may not be indirectly eluded...