People v. Benson

• Decision Date: 01 August 1955
• Citation: 143 N.Y.S.2d 563,208 Misc. 138
• Parties: The PEOPLE of the State of New York v. Everett BENSON, Defendant.
• Court: New York County Court

Page 563

143 N.Y.S.2d 563

208 Misc. 138

The PEOPLE of the State of New York v. Everett BENSON, Defendant.

Kings County Court.

Aug. 1, 1955.

William W. Kleinman, Brooklyn, for the motion.

Edward S. Silver, Dist. Atty., William I. Siegel, Asst. Dist. Atty., Brooklyn, opposed.

SOBEL, Judge.

The main issue presented by this motion is whether an order of the Court is necessary to obtain a superseding indictment in this State. Also, whether there exists a substantive or procedural distinction between a superseding indictment which merely amends or corrects a factual or legal defect in the earlier indictment and one which purposes solely to charge the defendant with a higher crime than the one charged in the earlier indictment.

Apart from the aforesaid questions of law, the issue before me is complicated by the following facts. After the first indictment for manslaughter, first degree, had been found by the December 1954 Grand Jury, the defendant on arraignment offered to plead guilty to that indictment. This he had a legal right to do pursuant to sections 332 to 335 Code of Criminal Procedure. It was suggested to him by the arraigning judge, as a procedural matter, that he withdraw that offer until the case had been assigned to a trial part pursuant to our calendar practice. There is no doubt that defendant could have insisted at this stage on his plea being accepted. His counsel, however, deferred to the Court's suggestion, withdrew his offer to plead guilty and pleaded not guilty. The case was immediately assigned to a trial part, but contrary to our customary calendar practice, was not placed on the call calendar thereafter. Instead, without notice to defendant and without an order of the Court, the District Attorney obtained from the March 1955 Grand Jury an indictment for murder, first degree.

The District Attorney concedes that both indictments were based on the same acts; that the evidence before both grand juries were substantially the same and that the second grand jury was not advised of the indictment found by the earlier grand jury. I am further advised by the arraigning judge on the earlier indictment that he had no knowledge that the district attorney intended to obtain a superseding indictment and that he suggested the withdrawal of the offer of a plea to that indictment solely as a procedural matter without intending to prejudice defendant.

When the defendant was arraigned on the superseding indictment he instituted this proceeding to test the validity of the superseding indictment.

I shall discuss the questions of law first.

There is no doubt that at the common law, a superseding indictment could be obtained without an order of the Court. Indeed no such order was necessary although an earlier grand jury had returned a 'no bill'; or after the Court had set aside or quashed an earlier indictment; or after the Court had sustained a demurrer to an earlier indictment. See Joyce on Indictments, 1908 edition, sections 106, 108, 109; 1924 edition, sections 115, 116, 118, 119, 120; United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333; 42 C.J.S., Indictments and Informations, § 34; People v. Fisher, 1835, 14 Wend. 9; People v. Monroe Oyer and Terminer, 1838, 20 Wend. 108; People v. Clements, 1887, 5 N.Y.C.r.R. 288; People ex rel. Flinn v. Barr, 259 N.Y. 104, 181 N.E. 64; see discussion of early English cases in Doyal v. State, 70 Ga. 134; Commonwealth v. Drew, 3 Cush. 279, 57 Mass. 279.

The Code of Criminal Procedure was enacted in 1881. Chapter 442, L.1881. The Code provided the procedure which must be followed in all criminal cases. Section 962. This was the view entertained by the Court of Appeals in People v. Hovey, 1883, 92 N.Y. 554 558, when it said:

'The general object and design of the Code of Criminal Procedure was to collect the various statutes relating to the subject and to furnish a uniform, harmonious and comprehensive system of criminal practice, to apply to and govern all criminal proceedings thereafter instituted in any of the courts of the State.'

The Code changed the common-law rules earlier referred to in three respects.

1. Section 270 Code of Criminal Procedure.

Section 270 provided that an order of the Court was necessary to resubmit a charge to a second grand jury after an earlier grand jury had returned a 'no bill'. The object of the section was stated in a note to section 286 of the original draft submitted by the Commissioners on December 31, 1849.

'[T]o provide a convenient check upon the practice which now prevails, of repeated applications to the grand jury for an indictment where it has been already dismissed.' Proposed Code of Crim.Proc. (1850), p. 138.

It has been held that an indictment in violation of the provisions of section 270 is absolutely void, as a second grand jury would be acting without jurisdiction. People ex rel. Flinn v. Barr, 259 N.Y. 104, 181 N.E. 64, supra. The decisions limit this general rule in some respects. There must be a 'no bill' returned. An abandonment of the presentation to the earlier grand jury without a return by such grand jury does not prevent the district attorney from obtaining an indictment from later grand jury without an order of the Court. People ex rel. Raimondi v. Jackson, 277 App.Div. 924, 98 N.Y.S.2d 506. And a direction by the grand jury to proceed by information does not require an order for leave to resubmit to another grand jury. People v. Kelly, 140 Misc. 377, 250 N.Y.S. 610. But where the grand jury returns 'no bill', the district attorney may not proceed by information for a misdemeanor included in the charge considered by the grand jury, without an order of the Court. People v. Nelson, 298 N.Y. 272, 182 N.E.2d 573.

The Court, in granting permission to resubmit should act only for good cause. The power to resubmit must be 'sparingly and discriminately used'. People v. Neidhart, 35 Misc. 191, 192, 71 N.Y.S. 591, 592. Recently, April 26, 1955, in People v. Besser, 207 Misc. 692, 140 N.Y.S.2d 195 (Geller, J), General Sessions, it was held that a case may be resubmitted to the grand jury on the Court's own motion.

2. Sections 313

, 317

and 318 Code of Criminal Procedure.

These sections provide that where an indictment is set aside or dismissed on motion for the reasons stated in section 313, the defendant must be discharged 'unless the court direct that the case be re-submitted to the same or another grand jury'. Code Crim.Proc. § 317. The purpose of these sections was stated in the notes of the Commissioners on the original draft submitted December 31, 1849, as follows 'are intended to prevent the setting aside of an indictment being productive of a prejudice to public justice, by leaving it discretionary with the court, either to discharge the defendant or to re-submit the case to another grand jury.' Proposed Code of Crim.Proc. (1850), p. 165.

There have been several decisions in the trial courts which hold that an order of re-submission is necessary only when the indictment is set aside or dismissed on the technical grounds specifically stated in section 313. If the indictment is dismissed because of insufficiency or illegality of the evidence before the grand jury, People v. Glen, 173 N.Y. 395, 66 N.E. 112, then no order is necessary. See People v. Roth, 128 Misc. 550, 220 N.Y.S. 167; People ex rel. Grossman v. Warden, 172 Misc. 185, 14 N.Y.S.2d 245.

The Appellate Courts in this State have not passed on this question. There is abundant authority to the contrary in the other states, but these are based on broader statutes which clearly encompass dismissals for insufficiency and illegality of evidence.

3. Section 327 Code of Criminal Procedure.

This section provides that where a demurrer is allowed, it is a bar to another prosecution for the same offense 'unless the court, being of opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, direct the case to be re-submitted to the same or another grand jury.'

This section was included in the first Code of Criminal Procedure in 1881. There was no comment made by the Commissioners.

In People v. Davis, 163 App.Div. 662, 148 N.Y.S. 988, 989, the defendant was tried, over his objection, on a second indictment after a demurrer had been sustained to an earlier indictment and no order signed directing a re-submission. He was convicted and sentenced. The judgment was reversed, the Court ruling that the statute was "for the benefit of the accused" and therefore confers "a substantial right, which cannot be disregarded without his consent". Citing People v. McQuade, 110 N.Y. 284, 294, 18 N.E. 156, 159, 1 L.R.A. 273.

In People v. Bissert, 71 App.Div. 118, 75 N.Y.S. 630, affirmed 172 N.Y. 643, 65 N.E. 1120, a demurrer to the first indictment was tried but before the Court could decide the issue, a new indictment was found. The Court held three to two that the second indictment was valid. (Mr. Justice Patterson wrote the dissenting opinion in this case, but his opinion on the issue here in question was the majority opinion concurred in by two other Justices.) See to same effect People v. Gilbert, 26 Cal.App.2d 1, 78 P.2d 770. People v. Zerillo, 146 App.Div. 812, 131 N.Y.S. 500, holds that the direction to re-submit must be made by the same Judge who allowed the demurrer and must be made at the same time as his decision allowing the demurrer. Thus, we see that the Criminal Code of 1881 modified in the three respects discussed above, the common-law rule. But nowhere in the Code or in the reports of the Commissioners who drafted the code were superseding indictments discussed or mentioned. Statutory provision was made for procuring an indictment after a grand jury had refused an earlier indictment or for procuring a second indictment after an earlier indictment had been set aside, quashed or demurrer allowed. But no provision was made nor was discussion had of the question of procuring a superseding...