People v. Cirillo

• Decision Date: 31 July 1979
• Citation: 419 N.Y.S.2d 820,100 Misc.2d 527
• Parties: The PEOPLE of the State of New York, v. Richard CIRILLO, Defendant.
• Court: New York Supreme Court

Page 820

419 N.Y.S.2d 820

100 Misc.2d 527

The PEOPLE of the State of New York, v. Richard CIRILLO, Defendant.

Supreme Court, Trial Term, Bronx County, Part 29.

July 31, 1979.

John J. Breslin, New York City, for defendant.

John F. Kennan, Deputy Atty. Gen. (Thomas P. McCloskey, New York City, of counsel), for plaintiff.

DONALD J. SULLIVAN, Justice:

The defendant was charged in an indictment with three counts of perjury in the first degree (Penal Law, § 210.15). The accusations stem from his testimony on December 3, 1975 before an extraordinary special Grand Jury concerning his alleged arrangement of a usurious $5,000.00 loan from certain loansharks for and on behalf of Anthony Cresenti a reputed "narcotics violator." It was claimed by the prosecutor that the defendant, a detective in the New York City Police Department, inter alia, falsely testified at the Grand Jury hearing that he never participated in obtaining the usurious loan on behalf of Cresenti, nor did he ever have a discussion with loansharks concerning the said loan.

Prior to the actual trial, defendant orally moved to amend the indictment seeking to strike certain portions of the indictment and particularly the phrases "a narcotics violator" and "the narcotics violator" referred to in paragraphs two, four and eight in each of the three counts contending that it is highly prejudicial and inflammatory. Defendant requested that the descriptive phrase be stricken and replaced with the name "Anthony Cresenti."

The People did not oppose the defendant's application on the grounds that it was procedurally defective, impliedly joining in or consenting to defendant's motion.

The specification in paragraph two, of the first count, exemplary of the other challenged paragraphs of the three count indictment to which the "amendment" is addressed, reads as follows:

"The Grand Jury has been conducting an investigation to determine whether the crimes of Bribe Receiving, Official Misconduct, Receiving Reward for Official Misconduct and Conspiracy to commit those crimes were committed in Bronx County. The Grand Jury specifically sought to determine whether the defendant, a detective in the New York City Police Department, had a corrupt relationship with A narcotics violator and whether he used his official position as a police officer in connection with a criminal transaction between The narcotics violator and certain loansharks." (Emphasis Supplied)

In essence, the defendant has moved for the requested relief pursuant to CPL § 200.70 contending that the reading of the indictment to the jury with its numerous references to the relationship between the defendant police officer and a "narcotics violator" was in effect a flag that the said defendant was a criminal before even one scintilla of evidence was presented to the jury. The court, on the merits, is in agreement with defendant's arguments. Conceptually portraying such language in the framework of an indictment would serve no purpose other than to inflame and prejudice the jury, denying defendant his constitutional right to a fair and just trial. However, the court was faced with the procedural dilemma in that there is not authority in the CPL authorizing a defendant's motion to amend an indictment, nor permitting the striking of a portion of an indictment.

It is beyond cavil that there is no express authority for a defendant's motion to amend an indictment under the amendatory statute (CPL 200.70). It is only the People, upon notice to the defendant, under certain specified instances and within certain limitations who may amend an indictment provided no prejudice to defendant and no change of theory of the original crime charged is involved.

Analyzing the factual pattern in its totality, the denial to the defendant of his application on its merits merely because of some procedural infirmity is repulsive to our sense of justice. We are involved in this case with the appraisal of the power of the court to maintain jurisdiction over a defendant's motion to amend in the absence of explicit statutory authority. The court is of the opinion there are various alternatives that are available to the court justifying its determination of the application and the granting of the relief requested.

It is well established that procedural matters, both civil and criminal, may be regulated by the legislature. Equally clear is the principle that "no legislative enactment can be permitted to deprive the citizen of any of his constitutional rights" (People v. Glen, 173 N.Y. 395, 400, 66 N.E. 112, 114). The courts have exercised their power to set aside and quash indictments even in the absence of legislative grant when it appears to be founded upon a lack of evidence or involving illegal and incompetent testimony (Glen, supra, p. 400, 66 N.E. p. 114). This power is based upon the inherent right and duty of the courts to protect the citizen in those circumstances involving a substantial invasion of his constitutional rights. It is a broad discretionary power established under the state constitution that cannot be abrogated by the legislature (N.Y.Const., Art. 6, § 7; see, People v. Darling, 81 Misc.2d 487, 366 N.Y.S.2d 982).

Section 200.70 insofar as it relates to the regulation of procedural matters not involving a defendant's constitutional rights must be obeyed. Beyond that, the subject statute and the progenitor of this law, § 293 of the Former Code of Criminal Procedure, should not be construed to prevent a defendant from moving to eliminate prejudicial matter in an indictment involving a constitutional right, namely a fair trial. At common-law an indictment could not be amended presumably to avoid impairment of the integrity of the Grand Jury (People v. Van Every, 222 N.Y. 74, 118 N.E. 244; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849). The purpose of the law making bodies in enacting the amendatory statutes was to eliminate technical defenses by the defendant not effecting the merits of the indictment, so as to sustain the validity of the indictment (People v. Clark, 14 N.Y.S. 642).

It is axiomatic that the power of the Grand Jury evolves from the constitution (N.Y.Const., Art. 1, § 6; U.S.Const., Amdt. V) and authority conferred by legislation (CPL 190.05 et seq.), the function and definition generally being derived from the Former Code of Criminal Procedure, § 223 et seq. (see, Wood v. Hughes, 11 A.D.2d 893, 203 N.Y.S.2d 460; affd. 9 N.Y.2d 144, 212 N.Y.S.2d 33, 173 N.E.2d 21). Beyond dispute a Grand Jury is not an appendage of the prosecution but an agent of the sovereign state of New York a body of 23 individuals constituting an arm of the court (People v. McCloskey, 18 A.D.2d 205, 238 N.Y.S.2d 676; People v. Woodruff, 26 A.D.2d 236, 272 N.Y.S.2d 786; Matter of Greenleaf, 176 Misc. 566, 28 N.Y.S.2d 28). Historically, an indictment presented by a Grand Jury was referred to as the "first pleading" on the part of the People in the former law (Code of Criminal Procedure, § 274). While the present Criminal Procedure Law has eliminated the "pleading" designation to an indictment, such former reference provides guidance to the understanding of the purpose of an indictment and the function of CPL § 200.70 relating to amendment of the indictment.

In brief, an indictment should contain such specifications of the acts and description of the criminal offense and enable a defendant to adequately defend himself and bar further prosecution arising out of the same facts (People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890; People v. Bruno, 43 N.Y.S.2d 942; see, CPL 200.50). As expressed in People v. Farson, 244 N.Y. 413, 417, 155 N.E. 724, 725:

"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. (Code Crim.Pro. §§ 284, 285; People v. Williams, 243 N.Y. 162, 153 N.E. 35.)"

CPL 200.70 by title and substance is a procedural remedy seeking to provide orderly procedures to amend a party's own pleadings. The indictment, in effect being the People's pleading, should ordinarily and logically be the subject of an amendment by the People as long as no substantial rights of the defendant are infringed.

While such interpretation may account for the legislative proscription in the current law against a defendant's motion to amend, there appears to be no basis to impute any intent by the legislature to curtail the trial courts own inherent powers. This court recognizes the lack of any explicit power in the statutes relative to amending an indictment or striking prejudicial and superfluous material therefrom. But in the posture of this case, affecting as it does a constitutional right, the infirmity in the statutory scheme would leave the court powerless to render a binding decision on the merits in the...