People v. Butor
| Citation | 348 N.Y.S.2d 89,75 Misc.2d 558 |
| Parties | The PEOPLE of the State of New York, Plaintiffs, v. John BUTOR, Defendant. |
| Decision Date | 04 October 1973 |
| Court | New York County Court |
Albert M. Rosenblatt, Dist. Atty., of Dutchess County, with Jennifer L. Van Tuyl, Poughkeepsie, of counsel, for the People.
Phillips, Heaney & Schofield, Beacon, with Julius S. Boccia, Beacon, of counsel, for defendant.
The defendant John Butor brings an omnibus motion for (1) suppressing the introduction into evidence of a certain blood test and the results thereof taken of him on October 14, 1972 at Highland hospital as a violation of his privilege against unlawful search and seizure, (2) inspection of the grand jury minutes, (3) a separate trial of the second and third counts, both Operating a Motor Vehicle While Under the Influence of Alcohol, a misdemeanor, from the first and fourth counts, Criminally Negligent Homicide, a class E felony, and Failing to Drive on the Right Side of the Roadway, a Vehicle and Traffic Law violation, respectively, and (4) dismissal of the indictment because of prolonged adjournments in Justice Court in violation of his constitutional rights, and the refusal of the Town Justice to accept a plea of guilty to the charges pending before that court.
An examination of a copy of the indictment reveals that the indictment is a so-called long form one alleging in the statutory language the commission of four (4) crimes, namely, one (1) crime of Criminally Negligent Homicide, a class E felony, two (2) crimes of Operating a Motor Vehicle While Under the Influence of Alcohol, a misdemeanor, and one (1) crime of Failing to Drive on the Right Side of the Roadway, in violation of § 1120(a) of the Vehicle and Traffic Law, all such crimes occurring on October 14, 1972 in the County of Dutchess.
This decision will be addressed to the four (4) motions in the order found in the notice of motion:
(1) As to the motion for suppression of certain evidence:
The moving papers consist of the affidavit of the defendant's wife reciting her personal observations of her husband in the emergency room approximately one and one-half hours after the alleged accident and the affidavit of his attorney based upon the investigation he caused to be made in the matter.
The People answer the motion to suppress with an affidavit of an assistant district attorney in which they '* * * deny the allegations made by the moving papers, they any evidence was obtained contrary to law', however, consenting to a hearing pursuant to CPL § 710.60, subd. 4, to determine the admissibility of the evidence of the blood test.
The withdrawal of blood from a person constitutes a search of and seizure from the person in the constitutional sense, and the taking of a blood sample from a defendant without his consent, prior to his arrest, would constitute an illegal search and seizure violative of Article I, Section 12, of the New York State Constitution and of the Fourth Amendment to the United States Constitution. People v. Young, 42 Misc.2d 540, 248 N.Y.S.2d 287.
While the people deny the allegations in the moving papers that the evidence was unlawfully seized under our law, this Court will not assume that the denial is made otherwise than upon facts believed to be true by the people.
A motion to suppress tangible evidence obtained by means of an unlawful search and seizure (CPL § 710.20, subd. 1) is the exclusive method of challenging the admissibility of evidence where the defendant has reasonable cause to believe that such may be offered against him in a criminal action (CPL § 710.70, subd. 3).
The legislature in its wisdom has prescribed the particular procedure to be followed by a court when a defendant has so moved to suppress, and these statutory directions must be adhered to in disposing of the motion (CPL § 710.60, subds. 2, 3, and 4).
While the people in their answering affidavit have not admitted any of the allegations of fact in the moving papers, but rather have categorically denied them, a reading of the statute clearly indicates that the people do not have to do so, or raise any factual issue, otherwise the necessity to file an answer would be mandatory, and recited in express terms, with the direction that such answer be also based upon sworn allegations of fact, rather than as the statute plainly reads, granting the right to the people that they 'may file' an answer if they so desire.
The two (2) courses open to this Court in determining the motion to suppress are, namely, summarily grant the motion, or summarily deny it (CPL § 710.60, subds. 2 and 3) with either action being governed by the plain, concise and unmistakable language thereof.
The motion must be summarily granted where the people concede, the truth of the allegations of fact of the defendant, or the people stipulate that the evidence sought to be suppressed will not be offered upon the trial. Since the people in this case have not so conceded or stipulated, the motion cannot be granted.
In the alternative, the motion to suppress may be summarily denied if the defendant's motion papers fail to allege sworn allegations of fact as the legal basis for the motion or such fact do not as a matter of law support the grounds alleged. The motion papers in this instance contain the necessary requisites of sworn allegations of fact, and therefore the motion may not be summarily denied.
Since the motion cannot be granted or denied, as heretofore indicated, this Court must conduct a hearing in order to make findings of fact, conclusions of law and the reasons for its determination (CPL § 710.60, subd. 4), and such a hearing will take place a reasonable time prior to trial, in order to permit the defendant the full guaranty of his constitutional rights to make further motions depending upon the outcome of the hearing, and in order to permit him to adequately prepare for trial utilizing the evidence he may have gained as a result of the hearing.
Final determination of this motion to suppress is held in abeyance pending the outcome of the hearing as hereinbefore directed.
(2) As to the motion for inspection of the grand jury minutes:
The defendant seeks an order granting him the right to inspect the minutes of the grand jury upon which the indictment herein was founded for the purpose of enabling him to move to dismiss the indictment upon the grounds that the evidence upon which the same was based was not legally sufficient. While such a motion is no longer permissible since the advent of the Criminal Procedure Law on September 1, 1971, in the interests of conserving judicial time, the motion will be treated as one made under CPL § 210.30, and the Court respectfully draws the defendant's attorney's attention to that statute.
After consideration of the moving papers and the affidavit in opposition, and in the exercise of its discretion, this Court granted the motion to inspect the grand jury minutes in order to use the same in the further determination of the motion to dismiss based upon the ground that the evidence before the Grand Jury was not legally sufficient to establish the commission by the defendant of the offenses charged or any lesser included offenses.
Accordingly, the Court has examined the minutes of the grand jury dated March 8, 1973, March 27, 1973 and March 29, 1973, and therefrom does find that the indictment is predicated upon evidence which is legally sufficient to support the charges contained in the indictment and establish that the defendant committed such offenses.
For the foregoing reason, the motion to inspect is denied.
(3) As to the motion for a separate trial of various counts:
A reading of the indictment indicates that all of the alleged crimes occurred on the same day, October 14, 1972, in the same county, Dutchess County, and while the second, third and fourth counts refer to the operation of a motor vehicle, it may be inferred that the first count likewise does so, in fact a reading of the grand jury minutes so indicates. As has been heretofore indicated in the resolution of the second motion this Court has inspected the grand...
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