People v. Colletti

• Decision Date: 13 March 1964
• Citation: 247 N.Y.S.2d 704,42 Misc.2d 158
• Parties: The PEOPLE of the State of New York v. Kathleen COLLETTI, Peter Donovan, Harry Mencher and Vincent Fiorillo, Defendants.
• Court: New York Supreme Court

Page 704

247 N.Y.S.2d 704

42 Misc.2d 158

The PEOPLE of the State of New York v. Kathleen COLLETTI, Peter Donovan, Harry Mencher and Vincent Fiorillo, Defendants.

Supreme Court, Queens County, Criminal Term, Part I.

March 13, 1964.

Nancy Carley, Jackson Heights, and Herbert A. Lyon, Kew Gardens, for defendant Donovan for the motion.

Frank D. O'Connor, Dist. Atty., Queens County (Banj. J. Jacobson, Asst. Dist. Atty., of counsel), opposed.

J. IRWIN SHAPIRO, Justice.

The defendant Donovan applies for an order granting him 'permission to inspect the Grand Jury minutes upon which the indictment herein was found, or in the alternative, for a dismissal of the indictment based upon the Grand Jury minutes'.

The indictment charges the moving defendant, Peter Donovan, and three others with the commission of the crime of Murder in the First Degree. This defendant and the defendant Mencher were heretofore found guilty as charged but the judgment of conviction was reversed by the Court of Appeals and a new trial was ordered (13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628).

A written confession was taken from Donovan 'after the police had refused to allow an attorney, retained for him by his family while he was in custody, to see or speak with him' (13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 842, 193 N.E.2d 628, 629). It was by reason of that sole fact that the Court of Appeals concluded (13 N.Y.2d p. 154, 243 N.Y.S.2d p. 845, 193 N.E.2d p. 631), that 'the admission in evidence of Donovan's written confession requires reversal of his conviction'. The defendant Donovan is now awaiting retrial on the indictment. ¹

The basis of the motion to inspect, or in the alternative, to dismiss this indictment is the contention of counsel 'that an inspection of the Grand Jury minutes will show a legal insufficiency of evidence to convict the defendant of the crime charged in said indictment'. The only evidence introduced before the grand jury implicating Donovan in the homicide was his written confession.

Section 251 of the Code of Criminal Procedure provides that:

'The Grand Jury ought to find an indictment, when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.'

Strictly construed that section would necessitate holding the present indictment sufficient for there was nothing before the grand jury to indicate that Donovan's written confession--the sole basis for his indictment--was obtained 'after the police had refused to allow an attorney, retained for him by his family while he was in custody, to see or speak with him'. I am of the opinion, however, that such a rigid, legalistic interpretation of the section, under the facts and circumstances of this case, is unwarranted and that that section of the Code must be considered cojointly with Section 249 (C.C.P.) which provides that a 'grand jury can receive none but legal evidence'. This Court is now charged with judicial knowledge and notice of the fact that Donovan's written confession was not 'legal evidence'. It may therefore not evade its duty to protect Donovan's statutory and constitutional rights by adopting a literal construction of Section 251.

Irrespective of statute, however, 'The right of an accused to move for the dismissal of an indictment based upon illegal or insufficient evidence is guaranteed by the Constitution' and it is within the inherent power of the Court to entertain such an application (People ex rel. Hirschberg v. Supreme Court of New York, 269 N.Y. 392, 199 N.E. 634; People v. Glen, 173 N.Y. 395, 396, 66 N.E. 112, 113; People v. Sexton, 187 N.Y . 495, 80 N.E. 396). Although the opinion of the Court of Appeals states (13 N.Y.2d 148, 153, 243 N.Y.S.2d 841, 845, 193 N.E.2d 628, 630) '* * * that, apart from the written confession, there was adequate, indeed strong, evidence...