People ex rel. Cohn v. County Court of Schenectady County

• Decision Date: 02 December 1960
• Citation: 11 A.D.2d 438,207 N.Y.S.2d 840
• Parties: PEOPLE of the State of New York ex rel. Morris Marshall COHN, District Attorney of Schenectady County, State of New York, Petitioner, v. COUNTY COURT OF the COUNTY OF SCHENECTADY, New York, Honorable Archibald C. Wemple, individually, and as County Judge of the County of Schenectady, New York; Albert E. Moreli, Jr., Gordon, Gordon and Siegel, Esqs., individually, and as attorneys for said Albert E. Moreli, Jr., Frank J. DeMasi and Louis Lombardi, individually and as attorney for said Frank J. DeMasi, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 840

207 N.Y.S.2d 840

11 A.D.2d 438

PEOPLE of the State of New York ex rel. Morris Marshall COHN, District Attorney of Schenectady County State of New York, Petitioner, v. COUNTY COURT OF the COUNTY OF SCHENECTADY, New York Honorable Archibald C. Wemple, individually, and as County Judge of the County of Schenectady, New York; Albert E Moreli, Jr., Gordon, Gordon and Siegel, Esqs., individually and as attorneys for said Albert E. Moreli, Jr., Frank J. DeMasi and Louis Lombardi, individually and as attorney for said Frank J. DeMasi, Respondents.

Supreme Court, Appellate Division, Third Department.

Dec. 2, 1960.

Morris Marshall Cohn, Dist. Atty., Schenectady, petitioner, in pro. per.

Louis J. Lefkowitz, Atty. Gen. (Dunton F. Tynan, of counsel), for respondents Wemple, and others.

Gordon, Gordon & Siegel, Schenectady (Arnold M. Gordon and Robert Siegel, Schenectady, of counsel), respondents, in pro. per., and for respondent Albert E. Moreli, Jr. Louis Lombardi, Schenectady, respondent, in pro. per., and for respondent Frank J. DeMasi.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

PER CURIAM.

In this proceeding under article 78 of the Civil Practice Act, petitioner District Attorney seeks an order prohibiting respondents from proceeding further under certain orders of the respondent Court which granted separate motions by respondents Moreli and DeMasi for inspection of grand jury minutes. By joint indictment, Moreli and DeMasi were charged with being common gamblers, in violation of section 970 of the Penal Law. This proceeding was heard with the appeals from the orders for inspection (People v. Moreli, 11 A.D.2d 437, 207 N.Y.S.2d 843) and, for purposes of this proceeding, the District Attorney takes the position that the orders are not appealable and therefore, that relief from such orders, to which he considers himself entitled, cannot be had unless in this proceeding.

As ground for the relief sought, the petition alleges, first, that the orders in question, being granted summarily from the Bench, were made without any inspection by the Court of the grand jury minutes or any knowledge of their contents or substance. We are not aware of any authority imposing such requirements and none has been called to our attention. It may be noted, nevertheless, that the District Attorney's answering affidavit stated that the Court was 'familiar with * * * the essential nature of the testimony' because it had heard the appeals of certain defendants arrested at the time and place of Moreli's and DeMasi's arrest. Further, upon the argument of the motion the Assistant District Attorney stated to the Court that 'Similar evidence was produced before the Grand Jury as attached to the answering affidavit'--that evidence consisting of certain photographs; that, 'They [the moving defendants] were jointly engaged in this operation. What Moreli said before the Grand Jury is now secret', following this with the statement that 'It is not unusual for one defendant to turn State's evidence'. It is urged by respondents that what the Court considered the improper disclosure of, and suggestions as to, evidence tending to support the indictment, became a proper factor in its determination to open all the evidence.

As a further ground, the petition alleges that the moving affidavits were not made by defendants but by their attorneys, but this is not a legal bar to relief. It is further alleged that neither affidavit shows any 'good and sufficient reason for the granting of an order of inspection', and there is other criticism of the affidavits, followed by a reference to their 'weight', which, it is said, 'should have been completely dispelled by the answering affidavit' of the District Attorney. Of course, the 'weight and cogency' of the proof were for the Court (People ex rel. Martin v. Brady, 168 App.Div. 108, 109, 153 N.Y.S. 893, 894) and insufficiency of papers is not a ground for relief in the nature of prohibition (Schneider v. Aulisi, 307 N.Y. 376, 382, 121 N.E.2d 375, 378).

The allegations of these stated grounds for relief are followed by the averment that the orders 'were made plainly in excess of the Court's jurisdiction, and go beyond its legitimate powers'. It seems clear beyond peradventure that these conclusory statements are in no way supported by the factual allegations hereinbefore outlined. The jurisdiction of...