People v. Cohen
| Decision Date | 31 August 1967 |
| Citation | 283 N.Y.S.2d 817,54 Misc.2d 873 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Carl I. COHEN, Defendant. |
| Court | New York Supreme Court |
Defendant moves to dismiss grand jury indictment Nos. 4028, 4029, 4146, 4280 and 4281, all of the year 1960, on the grounds that section 596 subdivision (3), (6) (subd. 3 now repealed; subd. 6 renumbered subd. 5) and section 609 of the Judiciary Law, under which the grand jury returning the indictments was chosen, are unconstitutional and invalid 'by reason of repugnancy to the due process clause and equal protection clauses' of the Fourteenth Amendment of the Constitution of the United States and the Constitution of the State of New York, in that as to section 596 subdivision (3), 'the very poor are excluded by this statute from service on a grand jury,' that as to subdivision (6) of this section and section 609, 'selection of grand jurors and potential grand jurors is left to the arbitrary whim or caprice of the County Clerk,' and on the ground that the grand jury list under consideration
'was deliberately chosen and selected in such a manner and from such sources as not reasonably to reflect a cross section of the population of Kings County suitable in character and intelligence for grand jury service, and particularly that members of low income groups, Negroes, Puerto Ricans and persons of Italian and Jewish origin and extraction were deliberately, systematically and illegally excluded therefrom * * *'
by and according to the applications of standards for qualification other than those prescribed by law, all in violation of Article Ix, section 5 (now art. XIII, § 13, subd. (a)) of the Constitution of the State of New York and section 592 of the Judiciary Law.
Subdivision 3 of section 596 of the Judiciary Law provides that the juror must be the owner of real or personal property of the value of $250 or the husband or wife of one who is worth such amount. Subdivision 6 provides that the prospective juror must be intelligent, of sound mind and good character, well-informed, able to read and write the English language understandingly. Section 609 sets forth the method of selection of grand jurors within the City of New York. Under this section, the County Clerk shall make special investigation of persons qualified to serve as trial jurors and shall require the prospective grand jurors to be fingerprinted. Such fingerprints are forwarded to the Central Bureau of Criminal Investigation in Albany. The Commissioner of Correction makes a report to the County Clerk as to the criminal record of the prospective grand juror. A person whose record contains a conviction for a felony or a misdemeanor involving moral turpitude may not serve as a grand juror. The section further provides that the County Clerk shall make up a list of those prospective grand jurors whom he deems are qualified to serve.
One who assails the constitutionality of a state statute must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary.
The basic principle which underlies the entire field of legal concepts pertaining to the validity of legislation is that by enactment of legislation a constitutional measure is presumed to be created. It has been said that the presumption of constitutionality is the postulate of constitutional adjudication; that every act of the legislature is presumed to be in harmony with the Constitution unless the contrary clearly appears. The presumption that the determination of the legislature is supported by facts known to it obtains unless facts judicially known or proved preclude that possibility.
The successful assailant must be able to point out the particular provision that has been violated and the ground upon which it has been infringed. The rule is fixed that a party who alleges the unconstitutionality of a statute normally has the burden of sustaining his claim and, to do so, he must overcome the presumption favoring the constitutionality of the statute.
A statute or ordinance will be held fatally defective from a constitutional viewpoint only in a clear case. The challenged legislation must be manifestly, undoubtedly, clearly, plainly, substantially and palpably inconsistent with constitutional standards. There must be a clear usurpation by the legislature of a prohibited power before a statute can be pronounced unconstitutional and void; its invalidity must be shown conclusively (see 8 N.Y. Jurisprudence--Constitutional Law §§ 59, 62, 77 and 79).
The Supreme Court has said:
'The very idea of a jury is a body of men composed of the peers or equals of the persons whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status as that which he holds.' (Strauder v. State of West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664.)
There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons, nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale.
Defendants have no vested rights in any particular method of selection so long as the resulting array be not the product of intentional discrimination. When traditionally correct standards of selection have been honestly applied, there is no infraction of constitutional guarantees no matter what the result (United States v. Flynn, 2 Cir., 216 F.2d 354; Thomas v. State of Texas, 212 U.S 278, 29 S.Ct. 393, 53 L.Ed. 512).
The jury roll need not be the perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. The mere showing that a class was not represented is not enough. There must be a showing that its absence was caused by discrimination (Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043).
Defendant's main argument concerning the constitutionality of the aforementioned sections is based on the importance he attaches to the dictum in the case of Chestnut v. People of the State of New York, 2 Cir., 370 F.2d 1. In that case the appellants specifically challenged sections 596 and 609 of the New York Judiciary Law. They alleged that the method of selection results in the exclusion of a great majority of qualified Negro and Puerto Rican citizens and members of low income groups and argued that the grand jury, before which they were called to testify, was an illegally constituted tribunal and without authority since it was selected in violation of the equal protection clause of the Fourteenth Amendment. The court in that case affirmed an order of the United States District Court for the Southern District of New York remanding the matter to the Criminal Court of the City of New York, holding that since section 596 does not on its face discriminate in terms of race, appellants' claim of violation of the equal protection clause does not qualify this case for removal. The court held (p. 5) that the alleged denial of their civil rights was not 'manifest in the formal expression of state law.' After so finding, the court further stated (pp. 6--7):
Subsequently a hearing in the Otis Chestnut case on the grand jury selection procedures in New York County was held before Mr. Justice Murtagh (Sup.Ct. N.Y.Co.) who denied the motion to quash the indictment, stating in a memo opinion (N.Y.L.J. 4/5/67, p. 18, c. 6):
The observation by the Federal Court in the Chestnut case concerning the statutes under consideration is no formed decisive resolution, no adjudication and no professed or deliberate determination and lends little or no support to the defendant. This court has never held itself bound by any part of an opinion which was not needful to the ascertainment of the question between the parties.
In Fay v. People of State of New York, supra, 332 U.S. pp. 270, 272, 67 S.Ct. p. 1619, the court, in passing on New York statutory standards, prescribed for a special jury panel, which provided for the same qualifications as those here challenged, stated:
In People v. Dessaure, 299 N.Y. 126, 132, 85 N.E.2d 900, 902, the court considered the $250 property requirement and character requirements of the Judiciary Law, and in accepting the finding of the...
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