People v. Clough

• Decision Date: 28 February 1974
• Citation: 353 N.Y.S.2d 260,43 A.D.2d 451
• Parties: The PEOPLE of the State of New York, Respondent, v. David CLOUGH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 260

353 N.Y.S.2d 260

43 A.D.2d 451

The PEOPLE of the State of New York, Respondent, v. David CLOUGH, Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 28, 1974.

Neil E. Needleman, Glens Falls, for appellant.

Elbert H. Watrous, Jr., Dist. Atty., Schenectady, for respondent.

Before HERLIHY, P.J., and STALEY, COOKE, SWEENEY and KANE, JJ.

COOKE, Justice.

This is an appeal from a judgment of the County Court of Schenectady County, rendered May 5, 1972, upon a verdict convicting defendant of the crime of hindering prosecution in the second degree.

On the evening of November 28, 1971, Sergeant Michael McNeil of the Albany Police Department was shot and killed in his patrol car. Joseph Guerin, the suspected murderer, was arrested at defendant's apartment in Schenectady at approximately 5:00 A.M. the next day. Defendant was subsequently indicted, the indictment reading:

THE GRAND JURY OF THE COUNTY OF SCHENECTADY, by this indictment accuse the defendant David Clough of the crime of HINDERING PROSECUTION IN THE FIRST DEGREE, committed as follows:

The defendant, David Clough, in the County of Schenectady, on or about November 29, 1971, rendered criminal assistance to one Joseph Guerin, knowing and/or believing that the said Joseph Guerin had engaged in conduct constituting a Class A felony, to wit, Murder.

Defendant moved to dismiss the indictment on the ground that no crime was charged. This motion was denied, as were other pretrial motions for suppression of certain statements made by defendant and of evidence seized from his apartment. Following a jury trial, defendant was convicted of hindering prosecution in the second degree.

On this appeal, defendant contends that the indictment should have been dismissed for failure to allege all the essential elements of the crime charged and for failure to state facts with sufficient precision to notify him of the conduct which was the subject of the accusation; that there was no proof of guilt beyond a reasonable doubt since it was not shown that Guerin had committed any crime; that certain items of physical evidence and certain statements should have been suppressed since he was not given Miranda warnings and there was no voluntary and intelligent waiver thereof; that the charge to the jury was erroneous and prejudicial, particularly since the defense of justification was not charged; and that he was deprived of his right to appear before the Grand Jury.

Pursuant to the Criminal Procedure Law which abolished the shortform indictment (see Practice Commentary by Richard G. Denzer, McKinney's Cons.Laws of N.Y., Book 11A, art. 200, p. 195), an indictment Must contain, Inter alia, 'A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting Every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation' (CPL 200.50, subd. 7 (emphasis supplied)). Thus, a determination of the elements of the crime of hindering prosecution in the first degree is necessary.

It seems clear from the language of the statute ¹ that three separate elements must coalesce to constitute the crime. First, the actor must 'render criminal assistance' as that term is defined in section 205.50 of the Penal Law; second, the criminal assistance must be rendered to one who has committed a class A felony; and third, the actor must know or believe that such person has engaged in conduct constituting a class A felony, i.e., he must know or believe that the person committed murder, for example, although he may not know or believe that murder is a class A felony.

Comparison of the indictment with the statute reveals that the second element of the crime is completely missing from the indictment. The People contend that all the elements of the crime are alleged since it is stated that the criminal assistance was rendered 'knowing and/or believing that the said Joseph Guerin had engaged in conduct constituting a Class A felony, to wit, Murder.' ² However, to so construe the statute would render its plain and unambiguous terms meaningless and we decline the opportunity to do so. The fact that the gravity of the defendant's actions is dependent on the conduct of the person to whom criminal assistance is rendered, reinforces the belief that the language of the statute, requiring proof that such person committed a class A felony, is not mere surplusage but is crucial to sustain a conviction. (Cf. People v. Gant, 42 A.D.2d 736, 737, 345 N.Y.S.2d 673, 675).

An allegation that the person assisted did in fact commit a class A felony is necessary in order to sustain an indictment charging hindering prosecution in the first degree. '(T)he person to whom the assistance is rendered must have actually committed a certain crime. It is not sufficient that the one rendering assistance believed that the particular crime was committed; the People must substantively prove that the...