People v. Buckman

• Decision Date: 15 June 1972
• Citation: 70 Misc.2d 220,333 N.Y.S.2d 452
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Robert L. BUCKMAN, Defendant.
• Court: New York County Court

Page 452

333 N.Y.S.2d 452

70 Misc.2d 220

The PEOPLE of the State of New York, Plaintiff, v. Robert L. BUCKMAN, Defendant.

Monroe County Court.

June 15, 1972.

[70 Misc.2d 221] Jack B. Lazarus, Dist. Atty., Rochester, for the People; Lewis A. Vallone, Asst. Dist. Atty., of counsel.

Ozro Thaddeus Wells, New York City, for defendant.

DECISION

EDWARD O. PROVENZANO, Judge.

Defendant has moved, upon three affidavits, upon the Indictment, and upon the prior proceedings herein, for three fold relief: (1) suppression of physical evidence allegedly seized at the time of his arrest; (2) suppression of 'any statements of obtained or induced'; and (3) inspection of the Grand Jury Minutes, and, if such inspection reveals receipt by the Grand Jury of illegally-obtained evidence, dismissal of the Indictment.

Not having been apprised of the crime or crimes with which the defendant is charged, the Court, by resort to records on file, the determined that, by Indictment filed February 26, 1972, defendant stands accused of Criminal Possession of a Dangerous Drug in the Third Degree, in violation of Penal Law, Section 220.20(b)(iv), a Class C felony.

Other than a reference in his Notice of Motion, to Article 710 of the Criminal Procedure Law, defense counsel has offered neither statutory nor case law of any kind to support the modes of relief he requests.

The District Attorney, on the other hand, has submitted a Reply Affidavit which contains no facts whatsoever to justify either the refusal or the granting of defendant's requests. An affidavit is a statement of evidentiary facts under the sanction of an oath. The District Attorney's Affidavit here is nothing more than a Memorandum of Law, made under oath. This is a practice which is decidedly improper and has been specifically disapproved of by the courts. See Matter of Taylor, 265 App.Div. 858, 37 N.Y.S.2d 675; People v. Mirasola, 35 Misc.2d 886, 231 N.Y.S.2d 645; Cronin v. International Union, E.R. & M.W., 203 Misc. 196, 117 N.Y.S.2d 702.

The Affidavits of the defendant and a companion who allegedly witnessed a police search and seizure, set forth facts which, if provable, would render questionable, at least, the actions of the police. The District Attorney, as previously stated, has proffered no counter facts, but has merely consented to an evidentiary hearing thereon prior to trial. Such consent, while it does not entitle defendant to suppression of the evidence, does permit him a Hearing for that purpose. (People v. Seligman, 55 Misc.2d 47, 286 N.Y.S.2d 531.) Therefore, as is the customary practice in this court, it is hereby directed that a Suppression Hearing, pursuant to CPL Sections 710.20(1) and 710.60(4), be conducted by the trial judge prior to the commencement of the trial herein.

Nowhere does it appear that the PEOPLE have served upon the defendant a Notice of Intent, pursuant to CPL Section 710.30, subds. 1(a) and (2). While such notice may, in fact, have been served, neither counsel has seen fit to advise the court thereon. Prior to the enactment of the CPL, a motion for suppression of statements or confessions would be denied as premature in the absence of such notice. (People v. Seligman, supra). Under the new procedure, however, it appears that such a motion may be made even without service of such notice. (See CPL 710.30(3).)

Here, too, the District Attorney has merely consented that a Huntley Hearing be held before trial. But here, despite such consent by the PEOPLE, it must be held that defendant is entitled to no such Hearing. The statute, CPL 710.60(1), provides that the defendant, moving for suppression, must, in writing, State the ground or grounds of the motion And set forth Sworn allegations of fact supporting such grounds. Nowhere, in any of the papers before this court, does it appear that the defendant made any statement to the police, or, in fact, that he even spoke to them. Lacking such a basic allegation, defendant could not possibly comply with CPL 710.60(1), and he has not done so. Parties cannot, by consent, invoke the offices of the court where no facts are presented to warrant exercise of the court's jurisdiction. This portion of defendant's motion is summarily denied, pursuant to CPL 710.60(3) (a), without prejudice to renewal upon a proper showing.

A motion to inspect the Grand Jury Minutes is not the proper vehicle to test the legality of a search and seizure. (People v. Gentile,20 A.D.2d 412, 247 N.Y.S.2d 551; People v. Nassar, 59 Misc.2d 1034, 301 N.Y.S.2d 671 (citing collected cases); People v. Mitchell, 51 Misc.2d 82, 272 N.Y.S.2d 523.) This is because it cannot always be determined from an inspection of Grand Jury Minutes whether or not the evidence presented was lawfully obtained. (People v. Atkins, Gen.Sess., 221 N.Y.S.2d 780.)

Alleged illegality of a search and seizure is the only ground raised in the moving papers. Moreover, nowhere therein is the Requisite basic allegation that there is reasonable cause to believe that the Grand Jury evidence was not legally sufficient to support the indictment. (See CPL 210.30(2).)

The foregoing would normally suffice to deny the motion to inspect, without prejudice, were it not for two additional factors. Firstly, the District Attorney has submitted to the court for examination, the Grand Jury Minutes. Secondly, CPL 210.30(4) Appears to authorize the court to inspect the Minutes any time a motion is made therefor, regardless of whether 'reasonable cause' has been shown. See also McKinney's Cons. Laws of N.Y., Book 11A, CPL 210.30, Practice Commentary.

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