People v. Bedjanzaden
| Decision Date | 18 December 1969 |
| Citation | 61 Misc.2d 766,306 N.Y.S.2d 498 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Rustam BEDJANZADEN, William Jevins and Gregory Zuboff, Defendants. |
| Court | New York County Court |
Louis B. Scheinman, Dist. Atty. of Sullivan County, for the people.
Gross & Gross, Liberty, for defendant, Gregory Zuboff.
Louis Tieger, Monticello, for defendant, William Jevins.
During the course of a trial of the defendants Jevins and Zuboff in February 1969 upon an indictment charging burglary in the third degree, counsel for the defendants moved for an inspection of the Grand Jury minutes and for a dismissal of the indictment upon the grounds that there was insufficient evidence before the Grand Jury to support an indictment for a crime.
It appears from the transcript of the trial that the Grand Jury minnutes were not available to the District Attorney at the commencement of the trial and that because the indictment was returned by the Grand Jury prior to his taking office he had no personal knowledge of the evidence upon which the indictment had been obtained. It was only after the trial had commenced that he was able to secure the Grand Jury minutes.
However, after reading the minutes and analyzing them and before the Court ruled on the defendants' motion for a dismissal of the indictment, on which it had reserved decision, the District Attorney, with admirable candor, stated to the Court, 'I find that I must state in candor to this Court I must concede, I believe it's my duty to concede, that the testimony before the Grand Jury was altogether inadequate to sustain an indictment.' After some further colloquy between the Court and the District Attorney, the transcript of the proceedings shows that he agreed with the Court's statement that if the indictment is not valid because of insufficient evidence, then the trial would be a nullity. Thereupon, the Court granted the defendants' motion and dismissed the indictment for insufficiency.
The defendants were thereafter again indicted by the April 1969 Grand Jury of Sullivan County for the crimes of Burglary in the Third Degree and Petit Larceny arising out of the same facts and circumstances as the original indictment of November 8th, 1968. The defendants have each pleaded 'Not Guilty' to the new indictment and have raised the issue of double jeopardy, contending that to compel them to stand trial under the new indictment would place them in double jeopardy in contravention of their constitutional rights under both the Constitution of the United States and the Constitution of the State of New York (U.S.Const. Fifth Amend.; N.Y.Cons. Article 1, Sect. 6).
The defendants assert that they were placed in jeopardy at their trial when the Jury was examined and sworn, witnesses were sworn and evidence given (People ex rel. Meyer v. Warden, 269 N.Y. 426, 199 N.E. 647; Matter of Bland v. Supreme Ct., 20 N.Y.2d 552, 285 N.Y.S.2d 597, 232 N.E.2d 633). Also, they rightly point out that the guarantee contained in the Fifth Amendment to the United States Constitution is by virtue of the due process clause of the Fourteenth Amendment applicable to the states and 'that the ruling on double jeopardy in Hetenyi (United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 2 Cir.; certiorari denied, Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667) is the law of the land.' (People v. Ressler, 17 N.Y.2d 174, 181, 269 N.Y.S.2d 414, 417, 216 N.E.2d 582, 585).
However, whether jeopardy be deemed to attach when the Jury is sworn as is the rule in the Federal Courts (Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100) or when the Jury has been sworn and evidence given as is still 'the time honored rule in New York State' (Matter of Bland v. Supreme Court, supra 20 N.Y.2d 554 and 555, 285 N.Y.S.2d 598, 232 N.E.2d 634), jeopardy attaches in either case only if the defendant has been placed on trial on a valid indictment. 'The general rule in this state is that if the court has jurisdiction And all prior proceedings are valid, a prisoner is placed in jeopardy when he has been arraigned and pleaded to a Valid charge, a jury has been examined and sworn, and evidence given.' (People ex rel. Meyer v. Warden, supra, 269 N.Y. 428, 199 N.E. 648) (Emphasis supplied).
Judge BREITEL in his dissenting opinion in Matter of Bland v. Supreme Court, supra in the development of his argument for New York's adoption of the Federal rule states: 'Under the rule which prevails in all other States which have considered the question and in the Federal courts, jeopardy attaches in a jury-tried case (Matter of Bland v. Supreme Court, supra dissenting opinion, 20 N.Y.2d 556, 285 N.Y.S.2d 600, 232 N.E.2d 635) (Emphasis supplied).
The dissenting opinion on Matter of Bland also traces the origin of the rule of People ex rel. Meyer v. Warden, 269 N.Y. 426, 199 N.E. 647 to an earlier statement in King v. People (5 Hun 297). In the King case the court stated: 'In other courts and in other States a very technical rule is adopted. A prisoner is held to have been once in jeopardy if a jury has been (impanelled) and discharged, or allowed to separate before or without a verdict (Whart., §§ 573--580.) I think that our courts have not gone beyond this: that a prisoner is once in jeopardy when he has been arraigned and pleaded to a Valid indictment, a jury has been sworn, and evidence given, and then, without his consent, a juror has been withdrawn * * * (People v. Barrett (2 Caines 304) * * *)' (5 Hun 297, 299) (Emphasis supplied.)
All the varying statements of the rule as to when a person has...
To continue reading
Request your trial
-
People v. Key
...a defendant tried upon an insufficient accusatory instrument does not subject the defendant to double jeopardy (see People v. Bedjanzaden, 61 Misc.2d 766, 306 N.Y.S.2d 498). However, under our present law the failure to raise an objection to the accusatory instrument prior to trial may resu......