People v. Chestnut

• Decision Date: 04 June 1970
• Citation: 26 N.Y.2d 481,311 N.Y.S.2d 853,260 N.E.2d 501
• Parties: , 260 N.E.2d 501 The PEOPLE of the State of New York, Respondent, v. Otis CHESTNUT, Michael Brown, Jeremiah Gelles, Stephen Martinot, Ellen Shallit and Levy Laub, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 853

311 N.Y.S.2d 853

26 N.Y.2d 481, 260 N.E.2d 501

The PEOPLE of the State of New York, Respondent, v. Otis CHESTNUT, Michael Brown, Jeremiah Gelles, Stephen Martinot, Ellen Shallit and Levy Laub, Appellants.

Court of Appeals of New York.

June 4, 1970.

Basil R. Pollitt and Sanford Katz, New York City, for appellants.

Frank S. Hogan, Dist. Atty. (David Otis Fuller, Jr. and Michael R. Juviler, New York City, of counsel), for respondent.

FULD, Chief Judge.

The six defendants in this case were charged with criminal contempt (former Penal Law, Consol.Laws, c. 40, § 600, subd. 6) for refusing to answer questions during an investigation by a New York County Grand Jury after they had been granted immunity. After unsuccessfully attempting to challenge the informations, in both the Federal and State Courts, on the ground that the Grand Jury was unlawfully constituted, the defendants were tried and convicted in the New York City Criminal Court and their convictions were unanimously affirmed by the Appellate Term. On this appeal they argue, among other things, that the Constitution requires all juries to be drawn from a cross section of the community and that the underrepresentation of certain minority groups on the New York County Grand Jury List rendered their convictions invalid.

In December of 1964, each of the defendants was called to appear as a witness before a Grand Jury of New York County, which was conducting an investigation into the activities of three individuals--not the defendants--who were suspected of having played a major role in a series of riots that had occurred in the summer of 1964. ¹ The defendants were regarded as 'lesser figures in the conspiracy (who had taken) their directions' from others and, before calling them to the stand, the Grand Jury voted to grant them immunity so that they could obtain the evidence needed against the major suspects.

When the defendants were called to testify, the District Attorney informed them of the Grand Jury's decision to grant them immunity and of the fact that they could be held in contempt if they refused to testify. Despite these monitions, however, each refused to answer several questions and persisted in his refusal after the foreman of the Grand Jury, at the request of the District Attorney, directed him to respond. ² As a result, on March 8, 1965, the Grand Jury, with the approval of the Supreme Court, directed the District Attorney to file in the New York City Criminal Court an information against each defendant, charging him with several counts of criminal contempt (N.Y. City Crim.Ct.Act, § 42, subd. (1)).

The defendants then sought to remove the case to the United States District Court, claiming that the 'great majority of qualified Negro and Puerto Rican citizens' were excluded from service on grand juries in New York County and that they were, therefore, 'denied * * * a right under * * * law(s) providing for the equal (protection of) civil rights of citizens of the United States' (U.S.Code, tit. 28, § 1443, subd. (1)). The District Court decided that it lacked jurisdiction to try the case and, on appeal, the Court of Appeals for the Second Circuit affirmed that decision (Chestnut v. New York, 370 F.2d 1, cert. den. 386 U.S. 1009, 87 S.Ct. 1355, 18 L.Ed.2d 439). In so doing, however, the court noted that the defendants had raised 'serious constitutional issues' concerning the State's grand jury selection process (370 F.2d, at p. 7).

Returning to the State courts, the defendants applied to the Supreme Court, New York County, 'for an order revoking (its) approval' of the Grand Jury's directive to file the informations against them. An extensive hearing was conducted in which the court examined, in detail, the methods and procedures employed for the empanelling of grand juries in New York County. In particular, several officials of the County Clerk's office explained how they compiled the annual list of persons 'suitable to serve as grand jurors' which they were required to submit to the County Jury Board (Judiciary Law, Consol.Laws, c. 30, § 609, subd. 1). ³ Their testimony demonstrated that most of the persons on that list had qualified and served as grand jurors in previous years. It further appeared that the names of additional persons were obtained, as vacancies occurred, from the County Clerk's list of petit jurors. This was accomplished with the aid of a computer, programmed to eliminate the names of government employees and of persons under 35 years of age and over 65. All others on the petit jury list who had established a satisfactory record of attendance as trial jurors were sent letters enclosing application forms and inviting them to serve as grand jurors. Response to the letter solicitations was poor, only about one third of the persons contacted even troubling to respond. ⁴ Applications were also received from persons who, unsolicited, appeared at the County Clerk's office, as well as from individuals referred to the office by other grand jurors, the County Grand Jury Association and judges.

The applicants were each requested to appear at the clerk's office for a personal interview at which an official would explain the duties and function of grand jurors and verify the answers on the questionnaire which all prospective jurors in New York City are required to fill out (Rules of Jury System of City of New York, 22 NYCRR 620.2, 620.18). On the basis of (1) the questionnaire, (2) a credit report and (3) the applicant's criminal record, if any, the County Clerk's office would then decide whether or not the applicant's name should be submitted. All persons on relief and persons against whom judgments of divorce on the grounds of adultery have been entered were rejected, along with those who did not meet the express statutory qualifications contained in section 596 of the Judiciary Law. One statutory provision, which, however, was not enforced, was the requirement--since repealed (L. 1967, ch. 49, § 1)--that a juror own property worth in excess of $250. In the year 1964, 144 new applicants were rejected and the remaining applicants, numbering about 200, were added to the list of about 2,000 jurors who had already qualified as grand jurors. Throughout this selection process, the testimony demonstrates, there was no intent or desire to exclude members of minority groups from this list, although it did contain a very small percentage of Negroes and English-speaking Puerto Ricans in relation to their proportion of the population. ⁵

Based on the evidence presented, the court at Special Term denied the defendants' motion, stating that "(w)ant of proportional representation of groups not proven to be deliberate and intentional is not constitutionally offensive.' (Froessel, J., in People v. Agron, 10 N.Y.2d 130, 141, (218 N.Y.S.2d 625, 176 N.E.2d 556) citing Fay v. New York, 332 U.S. 261, 291, (67 S.Ct. 1613, 91 L.Ed. 2043); Akins v. Texas, 325 U.S. 398, 403, (65 S.Ct. 1276, 89 L.Ed. 1692).)'

Finally, in May of 1967, more than two years after the filing of the information against them, the defendants were brought to trial before a three-judge court in the Criminal Court. The trial consisted, almost entirely, of readings from the transcript of the Grand Jury minutes, and, on the strength of that testimony, each of the defendants were convicted on one or more counts and received sentences ranging from probation to six months in the workhouse. As already noted, their convictions were unanimously affirmed by the Appellate Term.

In evaluating the defendants' argument that the Grand Jury was illegally constituted, it is important to point out that the defendants--who, with exception of the defendant Chestnut, are white--do not claim that they have any evidence that the lack of equal representation by racial minorities on the Grand Jury was the result of a policy of purposeful and intentional exclusion, a course of conduct which would not only violate the Constitution but would render the officials of the County Clerk's office subject to criminal penalties as well (Civil Rights Law, Consol.Laws, c. 6, § 13). Rather, they maintain that, regardless of intent or motivation, the State had an affirmative duty to provide a jury which was made up of a cross section of the community and that the lack of equal representation, whatever its cause, deprived them or their constitutional rights. More specifically, it is the defendants' contention that '(t)he constitutional command for a jury of peers is not merely negative, forbidding active discrimination, (but) It enjoins an affirmative duty upon the state to provide such a jury.'

As the defendants recognize, this argument is at odds with our past decisions; in order to sustain a claim of an illegally constituted jury, it is essential, we have held, that Intentional and systematic discrimination must be proved and that a showing of mathematical disparity, without more, is insufficient to meet this burden. (See, e.g., People v. Horton, 18 N.Y.2d 355, 359--360, 275 N.Y.S.2d 377, 378--379, 221 N.E.2d 909, 910--911, cert. den. 387 U.S. 934, 87 S.Ct. 2059, 18 L.Ed.2d 997; People v. Agron, 10 N.Y.2d 130, 141, 218 N.Y.S.2d 625, 633, 176 N.E.2d 556, 562, cert. den. 368 U.S. 922, 82 S.Ct. 245, 7 L.Ed.2d 136; People v. Dessaure, 299 N.Y. 126, 85 N.E.2d 900, cert. den. 337 U.S. 949, 69 S.Ct. 1510, 93 L.Ed. 1751.) Thus, for example, in the Horton case, 18 N.Y.2d 355, 275 N.Y.S.2d 377, 221 N.E.2d 909, Supra, the defendant had made a claim similar to that advanced by these defendants, based upon the fact that there was only one Puerto Rican on the panel from which his trial jury was chosen. Noting that, according to the census some 13.4% Of the county's population was of Puerto Rican origin, we wrote (p. 360, 275 N.Y.S.2d p. 379, 221 N.E.2d p. 910):

'This does not, of itself, indicate a Prima facie denial of equal protection. Since there is no evidence of any deliberate, intentional or...