People v. 80 Main Street Theatre Corp.

• Decision Date: 03 November 1976
• Citation: 88 Misc.2d 471,388 N.Y.S.2d 543
• Parties: PEOPLE of the State of New York v. 80 MAIN STREET THEATRE CORP., Defendant.
• Court: New York County Court

Page 543

388 N.Y.S.2d 543

88 Misc.2d 471

PEOPLE of the State of New York v. 80 MAIN STREET THEATRE CORP., Defendant.

Nassau County Court.

Nov. 3, 1976.

Denis Dillon, Dist. Atty., Nassau County, Mineola, for plaintiff.

Paul E. Warburgh, Jr., Kassner & Detsky, New York City, for defendant.

JOHN S. LOCKMAN, Judge.

Defendant, by way of Order to Show Cause, moves the court for the following relief:

(1) Dismissal of the indictment pursuant to § 210.20 of the Criminal Procedure Law upon the ground that the indictment was found at a defective Grand Jury proceeding within the meaning of § 210.35 of the Criminal Procedure Law, and

(2) A severance of counts one, two and three from the remaining counts of the indictment.

The basis for defendant's application for a dismissal of the indictment rests upon the fact that in the course of certain films being shown to a Grand Jury, an unauthorized person was present during the proceeding, to wit: a projectionist.

Section 190.25(3) of the Criminal Procedure Law provides in part:

'During the deliberations and voting of a grand jury, only the grand jurors may be present in the grand jury room. During its other proceedings, the following persons, in additi to witnesses, may, as the occasion requires, also be present:

'(a) The district attorney;

(b) A clerk or other public servant authorized to assist the grand jury in the administrative conduct of its proceedings;

(c) A stenographer authorized to record the proceedings of the grand jury;

(d) An interpreter. . . .;

(e) A public servant holding a witness in custody. . . .'

The defendant's position is that because of the presence of this unauthorized person before the Grand Jury, the indictment herein must be deemed defective and accordingly dismissed as void.

The People contend that because the films in question consisted of two 35 mm. motion pictures the rental of a theatre was required for the viewing. In order to rent the theatre, a union projectionist had to operate the projection equipment. It is further contended that the projectionist was a necessary party in this grand jury proceeding and although the projectionist was not a 'clerk or other public servant' pursuant to § 190.25(3)(b) of the Criminal Procedure Law, he was performing a public act of an administrative nature.

Aside from the issue of the illegality of the projectionist being present during the grand jury proceeding, the People cite § 210.35(5) of the Criminal Procedure Law as controlling when a grand jury proceeding is defective. Section 210.35(5) provides as follows:

'A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when

'(5) The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and Prejudice to the defendant may result.' (emphasis added.)

In essence then the People's position is that even if some irregularity did take place during the grand jury proceeding, it is incumbent upon the defendant to establish what prejudices inured to it as a result of such irregularity.

In contra position, the defendant cites People v. Minet, 296 N.Y. 315, 73 N.E.2d 529, for the proposition that actual prejudice to the defendant need not be shown where there is an unauthorized person in the grand jury since this type of irregularity Per se voids the indictment.

In considering People v. Minet, supra, the court notes that it was decided many years prior to the enactment of § 210.35(5) of the Criminal Procedure, Law, thus its present applicability must be questioned. (Cf. United States v. Echols, 413 F.Supp. 8 (E.D.La. 1976); United States v. Echols, 413 F.Supp. 12 (E.D.La.1976).) Furthermore, in People v. Percy, 45 A.D.2d 284, 358 N.Y.S.2d 434, the court was confronted with an analogous situation wherein there was a failure to record instructions given during a grand jury proceeding. The court stated (p. 286, 358 N.Y.S.2d p. ---): '. . . The Legislature could have listed failure to record as a per se defect in the proceedings so as to justify automatic dismissal. This it did not do. Since we are concerned with the fifth subdivision, we must, as a predicate, find an impairment of the Grand Jury's integrity and a possibility of prejudice to the defendants.'

On the basis of the facts before this court, there has been a failure to establish any prejudice to the defendant as a result of an unauthorized person being present during the grand jury proceeding in question. Accordingly, this branch of the motion is denied.

The second branch of the defendant's motion seeks a severance of certain counts in the indictment from the remaining ones. The basis for this application is that § 200.20 of the Criminal Procedure Law is not applicable to the offenses alleged in the indictment herein.

Section 200.20 provides in part:

'1. An indictment must charge at least one crime and may, in addition, charge in separate counts one or more other offenses, including petty offenses, provided that all such offenses are joinable pursuant...