People ex rel. Van Der Beek v. McCloskey

• Decision Date: 26 March 1963
• Parties: The PEOPLE of the State of New York, upon the relation of Rene VAN DER BEEK, also known as Marinhus Van Der Beek, Relator-Appellant, v. John J. McCLOSKEY, Sheriff of the City of New York, H. William Kehl, Under Sheriff in charge of New York County, Milton Renier, Warden of the Civil Jail, 434 West 37th Street, Borough of Manhattan, New York City, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 676

238 N.Y.S.2d 676

18 A.D.2d 205

The PEOPLE of the State of New York, upon the relation of

Rene VAN DER BEEK, also known as Marinhus Van Der

Beek, Relator-Appellant, v. John J. McCLOSKEY, Sheriff of the City of New York, H.

William Kehl, Under Sheriff in charge of New York County,

Milton Renier, Warden of the Civil Jail, 434 West 37th

Street, Borough of Manhattan, New York City, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

March 26, 1963.

Hyman Bravin, New York City, of counsel (Joseph A. Mazur, New York City, attorney), for relator-appellant.

Ernest H. Hammer, New York City, of counsel (Frank S. Hogan, Dist. Atty.), for defendants-respondents.

Before BREITEL, J. P., and RABIN, VALENTE, McNALLY and EAGER, JJ. VALENTE, Justice.

The relator appeals from an order dismissing a writ of habeas corpus seeking his release from a commitment as a material witness (Code Criminal Procedure § 618-b). The order fixed bail at $30,000.

Section 618-b of the Code of Criminal Procedure, in so far as pertinent herein, provides that 'Whenever a judge * * * is satisfied, by proof on oath, that a person * * * is a necessary and material witness for the people in a criminal action or proceeding pending in any of the courts of this state, he may, after an opportunity has been given to such person to appear before such judge and be heard in opposition thereto, order such person to enter into a written undertaking * * * to the effect that he will appear and testify at the court in which such action or proceeding may be heard or tried, and upon his neglect or refusal to comply with the order for that purpose, the judge must commit him to such place, other than a state prison, as he may deem proper, until he comply or be legally discharged.'

On the morning of February 5, 1963, a woman was found dead in her apartment on 71st Street, Manhattan, under circumstances indicating that she had been murdered. In the investigation that ensued, the relator was questioned by detectives as to his knowledge of the homicide. He revealed that he had been with the deceased from 5:00 p. m. on the evening of February 4, 1963 until 2:00 a. m. of the morning of February 5, 1963. It was further disclosed that appellant was a native of Netherlands who had entered the United States in 1951 as a seaman, and had, since then, remained in this country without authority. ¹

Following that interrogation, a subpoena was issued by the district attorney directing Detective Green to appear later that day, February 6, 1963, before a New York County Grand Jury in a John Doe proceeding. Detective Green thereupon executed an affidavit reciting the facts regarding the circumstances of the finding of the deceased woman and the questioning of appellant, and, further, requesting the Court to hold appellant as a material witness in the proceeding in which the Grand Jury subpoena had been issued.

The assistant district attorney, together with Detective Green and appellant, then appeared before the Justice at Part 30, Special and Trial Term of the Supreme Court, where, after hearing, an order was entered committing appellant to the Civil Jail in the custody of the Sheriff of the City of New York for a period of 30 days upon his failure to give bail in the sum of $30,000, to insure appellant's presence upon all subsequent proceedings.

Relator argues that the commitment was illegal because (1) his constitutional right to counsel was denied him at the commitment hearing (2) that he was not afforded an opportunity to be heard, and (3) that there was no jurisdiction to sign the order of commitment because there was no criminal action or Grand Jury proceeding pending. A contention as to the excessiveness of the bail was abandoned on this appeal. ²

Section 618-b of the Code of Criminal Procedure serves an important and useful public purpose in the prosecution of crimes. (People ex rel. Richards v. Warden of City Prison, 277 App.Div. 87, 89, 98 N.Y.S.2d 173, 176.) As was said in Stein v. New York, 346 U.S. 156, 184, 73 S.Ct. 1077, 1092, 97 L.Ed. 1522: 'The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.' However, since the statute is harsh and results in a restraint and interference with personal liberty, there must be strict compliance with its provisions. (Matter of Prestigiacomo, 234 App.Div. 300, 301, 255 N.Y.S. 289, 290; United States ex rel. Glinton v. Denno, 2 Cir., 309 F.2d 543, 544.) There is no longer any question of its constitutionality. (People ex rel. Ditchik v. Sheriff of County of Kings, 171 Misc. 248, 12 N.Y.S.2d 341, affd. 256 App.Div. 1081, 12 N.Y.S.2d 232.)

The statute demands that a criminal action or proceeding be pending 'in any of the courts of this state', before a person may be committed as a material witness. An investigation in the district attorney's office will not suffice. (People ex rel. La Tempa v. Hughes, 182 Misc. 1078, 50 N.Y.S.2d 433; see also People v. John Doe (Re Bernoff), 261 App.Div. 504, 509, 26 N.Y.S.2d 458, 464.) But a Grand Jury proceeding is a criminal proceeding within the meaning of section 618-b of the Code of Criminal Procedure. (People ex rel. Nuccio v. Warden, of Eighth District Prison, 182 Misc. 654, 45 N.Y.S.2d 230.)

The precise question of when a Grand Jury proceeding may be deemed 'pending' has not been passed on by any court. In People v. Stern, 3 N.Y.2d 658, p. 661, 171 N.Y.S.2d 265, p. 267, 148 N.E.2d 400, p. 401 the court said:

'In this State the Grand Jury derives its power from the Constitution and acts of the Legislature (N.Y.Const., art. 1, § 6; Code Crim.Proc. §§ 223, 245, 252, 253). It is not only 'sworn to inquire of crimes committed or triable in the county' (Code Crim.Proc. § 223) but by statute it is given the power, and the duty is enjoined upon it to 'inquire into all crimes committed or triable in the county, and to present them to the court' (Code Crim.Proc. § 245).'

The Grand Jury is an arm or adjunct of the Supreme Court (see Matter of Spector v. Allen, 281 N.Y. 251, 260, 22 N.E.2d 360, 364). In making an investigation to determine whether a crime has been committed, the Grand Jury may proceed on their own knowledge or upon information brought to their attention from any reliable source. (People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 391-392, 79 N.E. 330, 333, 10 L.R.A.,N.S., 159.) The district attorney is a legal advisor of the Grand Jury (Code Crim.Pro. § 225; People ex rel. Gardiner v. Olmstead, 25 Misc. 346, 348, 55 N.Y.S. 472, 473). The district attorney is given the power independently to issue subpoenas for witnesses for the prosecution to appear before the Grand Jury as well as to subpoena witnesses which the Grand Jury seeks to call upon an investigation before them. (Code Crim.Pro. § 609.) When the district attorney, on his own initiative, issues and serves such a subpoena in good faith, a proceeding is instituted in the Grand Jury just as, in an analogous situation, a civil action is commenced by the service of a summons (Civ.Prac. Act, § 218).

A Grand Jury subpoena may be...