People v. Berkowitz

• Decision Date: 19 September 1958
• Citation: 14 Misc.2d 384,178 N.Y.S.2d 119
• Parties: The PEOPLE of the State of New York, Plaintiffs, v. Efrem BERKOWITZ, Onoforio Vassallo, Dominic Felice, Kermit Frankel, Helen Durman, alias 'Helen Blanche', Defendants.
• Court: New York County Court

Page 119

178 N.Y.S.2d 119

14 Misc.2d 384

The PEOPLE of the State of New York, Plaintiffs, v. Efrem BERKOWITZ, Onoforio Vassallo, Dominic Felice, Kermit Frankel, Helen Durman, alias 'Helen Blanche', Defendants.

Kings County Court.

Sept. 19, 1958.

Edward S. Silver, Dist. Atty., Brooklyn (Aaron E. Koota, Asst. Dist. Atty., New York City, William Sonenshine, Asst. Dist. Atty., Brooklyn), for the People.

William Merritt, New York City, for defendant.

NATHAN R. SOBEL, Judge.

The defendant, Vassallo, demurs to an indictment charging him and four others with two crimes in two separate counts.

The indictment reads as follows:

First Count.

The Grand Jury of the County of Kings, by this count in this indictment, accuse the defendants, each aiding and abetting the other, of the crime of Obscene Prints and Articles, Contrary to Penal Law Section 1141.

Second Count.

The Grand Jury of the County of Kings, by this count in this indictment, accuse the defendants of the crime of Conspiracy, Contrary to Penal Law Section 580.

It is obvious that the indictment was drafted pursuant to Part IV, Title V, chapter III-A of the Code of Criminal Procedure (Ch. 176 L. 1929) governing simplified forms of indictment.

In this State the Legislature has twice attempted to simplify the forms of indictment.

The Code of Criminal Procedure, adopted in 1881, following the recommendations of the Commissioners on Practice and Pleading, abolished the artificial verbage and outworn terminology which prior thereto had been technical requirements of all indictments. Thus, sections 275 and 284 of the new code required that the indictments set forth plainly and concisely the acts or omissions charged as crimes. And sections 280 to 285 eliminated other loopholes through which offenders had theretofore been able to avoid conviction because of technical requirements of indictments. See Fuld-Developments and Directions in Criminal Law.

The decisions following the enactment of 1881 faithfully followed the new statutes. It was repeatedly held that the purpose of the indictment was to apprise the defendant of the nature and character of the offense charged and of the facts which may be proved so as to enable a defendant to prepare his defense and sufficiently to identify the charge against him in order that he might not later be subjected to double jeopardy. People v. Peckens, 153 N.Y. 576, 47 N.E. 883; People v. Helmer, 154 N.Y. 596, 49 N.E. 249; People v. Willis, 158 N.Y. 392, 53 N.E. 29; People v. Klipfel, 160 N.Y. 371, 54 N.E. 788; People v. Kane, 161 N.Y. 380, 55 N.E. 946; People v. Corbalis, 178 N.Y. 516, 71 N.E. 106.

Before discussing the second attempt to simplify indictments in this State, I return to a consideration of the indictment in issue. It is clear that it meets none of the tests of the foregoing statutes or decisions.

For instance, the First Count charges a violation of section 1141 of the Penal Law, Obscene Prints and Articles. The section proscribes publishing, printing, distributing, selling and possessing. It applies to books, magazines, newspapers, photographs, motion pictures, recordings and paintings. The defendant is neither advised of the nature of the charge against him nor of the facts which may be proved on the trial. Is he charged as a mere possessor or with distribution? Which of the articles found in his possession are deemed obscene?

With respect to the Second Count charging Conspiracy contrary to Penal Law, § 580, the indictment is even more obscure. Is he charged with Conspiracy to commit a specific substantive crime (subd. 1) or to commit an act injurious to public morals (subd. 6)?

These are just a few of the objections. In addition it recites no time, date or place of commission of the crimes charged.

It is clear that the indictment cannot be sustained under section 275 of the Code of Criminal Procedure. See C.C.P. 323, grounds for demurrer.

However, in 1929, the Legislature by Chapter 176 provided for alternative forms of 'Simplified Indictments'. Sections 295-a to 295-l, C.C.P. The District Attorney may elect to use such simplified indictments.

These new sections were a recommendation of the Baumes' Commission. The Commission after investigating the Canadian and English system of indictment (see 1927 Report) recommended (1928 Report, pg. 162) as follows:

'Under the present provisions of the code of criminal procedure, indictments, generally speaking, contain two statements; (one) a statement of the crime charged, and (two) a statement of the particulars of the crime charged. In order to bring about a simpler and shorter indictment, it becomes necessary, and is the purpose of proposed legislation to confine the indictment to a mere statement of the crime charged, leaving a statement of the particulars of the crime charged to a bill of particulars. Provision is made for the amendment in certain respects of both the indictment and the bill of particulars without the necessity nor incidental delay of resubmitting the case to the grand jury. Where a case has been once submitted to the grand jury and an indictment found, it would seem that there should be some way that that body's time should not again be taken up by the same matter simply because of alleged errors for which it is in no way responsible. For example, if a person is indicted for the larceny of a check instead of its proceeds, the indictment cannot be amended. (People v. Geyer, 196 N.Y. 364 .) Again, where a person is indicted for larceny and it subsequently develops that he is guilty of receiving stolen goods, there must again be a resubmission to the grand jury. In both instances it must be conceded that the time of the grand jury is unnecessarily taken by the resubmission of the same facts in order to secure a different form of indictment. Incidentally, it will be found by comparing the provisions of the proposed bill with the existing law that not only is the form of the indictment greatly simplified, but that among other things the occasion for demurrers is done away with.' (Italics mine).

Sections 295-b, 295-c, and 295-d specify that the indictment must contain the name of the crime and may contain a reference to the statute defining the crime.

Section 295-f provides that the indictment may be supported by proof that the defendant committed any of the acts or omissions forbidden by the statute defining the crime charged.

Section 295-g makes it mandatory upon the request of the defendant for the Court to direct the District Attorney to file a bill of particulars and section 295-h requires the bill of particulars to contain substantially such information as is necessary to give the defendant reasonable information as to the nature and character of the crime charged.

In short it is intended that after the indictment, the People shall supply by bill of particulars the information now required in long form indictments by section 275.

The new simplified indictment statutes were the subject of an early court test. A divided Court of Appeals (4 to 3; Judge Lehman writing for the majority and Judge Crane for the minority) reviewed the statutes in People v. Bogdanoff, 1930, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378. It should be noted however, that Bogdanoff was on appeal from a conviction for murder. The issue of the constitutionality of the simplified indictment was raised collaterally by motion to dismiss during trial. Also in Bogdanoff a bill of particulars was actually served on the defendant before trial supplying the full details missing from the simplified indictment. The issue in the instant case is raised by demurrer before plea, before service of a bill of particulars and of course, before trial.

Nevertheless Bogdanoff is decisive of the issue in the instant case. And it is clear from that decision that the Legislature did not and could not do away with the occasion for demurrers as the Baumes' Commission expected it would.

Bogdanoff holds----

The Constitution of New York, Article I, section 6, provides 'that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury.' The courts must measure the sufficiency of indictments solely in relation to the substantial rights of the accused, guaranteed either by the express language or the fair intendment of the Constitution. 'The indictment is sufficient, if it identifies the charge against the defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case.' People v. Farson, 244 N.Y. 413, 155 N.E. 724, 725. No simplification which might deprive an accused of these constitutional guaranties could be sustained by the Courts.

But may the deficiencies in an indictment clearly unconstitutional by the above standards, be supplied by a bill of particulars? Bogdanoff says, yes, (254 N.Y. at page 25, 171 N.E. at page 893) but only where they (the indictment and bill of particulars) refer to the same crime. There always exists the danger that the bill of particulars will charge the defendant with a different crime than that found by the grand jury. That danger, the Court says, always existed even under common law and long form indictments. The test in each case involving simplified indictments, 'must be whether the failure to set forth in an indictment all the essential elements of the crime which the accused is held to answer, has resulted in depriving the accused in that case of a substantial right and subjects him to actual danger of trial upon a charge upon which he has not been indicted.'

Thus in the case of simplified indictments, in addition to the safeguards set forth in People v. Farson, supra, it must also be clear that the indictment and bill of...