People v. Baker

• Citation: 75 A.D.2d 966,428 N.Y.S.2d 353
• Parties: The PEOPLE of the State of New York, Respondent, v. Mae BAKER, also known as Jeannett Miller, Appellant.
• Decision Date: 22 May 1980
• Court: New York Supreme Court Appellate Division

Page 353

428 N.Y.S.2d 353

75 A.D.2d 966

The PEOPLE of the State of New York, Respondent, v. Mae BAKER, also known as Jeannett Miller, Appellant.

Supreme Court, Appellate Division, Third Department.

May 22, 1980.

Douglas P. Rutnik, Public Defender (William J. Gray, Albany, of counsel), for appellant.

Ralph W. Smith, Jr., Deputy Atty. Gen., Albany (James H. Sweeney, Asst. Atty. Gen., Albany, of counsel), for respondent.

Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, KANE and STALEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court of Albany County, rendered June 1, 1978, upon a verdict convicting defendant of the crime of promoting prostitution in the second degree.

The defendant was charged in a one-count indictment with promoting prostitution in the second degree (Penal Law, § 230.25, subd. 1). The indictment was based on allegations that during the months of April, May and June of 1977 defendant operated a house of prostitution in the City of Albany, New York. Following a jury trial defendant was found guilty of that charge and sentenced to imprisonment in the Albany County Jail for a period of six months.

On this appeal, defendant contends that one of the members of the Albany County Grand Jury which handed down the indictment against her was not a resident of Albany County and, therefore, was not qualified to serve on the Albany County Grand Jury. Consequently, defendant seeks to have the indictment dismissed. It is conceded that the member in question was not a resident of Albany County. Defendant, however, has failed to show any prejudice or fraud and, in our opinion, dismissal of the indictment is not warranted (People v. White, 44 A.D.2d 749, 354 N.Y.S.2d 735, affd. 40 N.Y.2d 876, 389 N.Y.S.2d 361, 357 N.E.2d 1016).

Defendant also maintains that the court erred in denying defense counsel's request for the entire Grand Jury testimony of one of the People's witnesses. This witness testified that somewhere between April and May of 1977 she would perform sexual acts for money at the location in question and the fee would be split 50-50 between herself and the defendant. She was the only witness to testify as to this fee splitting procedure. Defendant's counsel received only a portion of the witness' testimony before the Grand Jury, the remainder having been excised by the prosecutor. Respondent correctly argues that defense counsel was only entitled to a prior statement which related to the subject matter of the witness' testimony (People v. Malinsky, 15 N.Y.2d 86, 90, 262 N.Y.S.2d 65, 209 N.E.2d 694; People v. Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 173 N.E.2d 881). The court, however, merely accepted the representations of the prosecutor that although other prior statements existed, they were irrelevant to the testimony of the witness. This was error (People v. Poole, 48 N.Y.2d 144, 422 N.Y.S.2d 5, 397 N.E.2d 697). The proper procedure would have been for the trial court to inspect, in camera, the entire testimony before the Grand Jury of this witness to determine whether or not any relevant statements of the witness were present (People v. Poole, supra, p. 149...