People v. D'Andrea

• Citation: 207 N.Y.S.2d 215,26 Misc.2d 95
• Parties: PEOPLE of the State of New York v. Moses D'ANDREA, Vincenzo Buffalino, Joseph Lumetta, John Dell Italia, Defendants.
• Decision Date: 15 September 1960
• Court: New York County Court

Page 215

207 N.Y.S.2d 215

26 Misc.2d 95

PEOPLE of the State of New York v. Moses D'ANDREA, Vincenzo Buffalino, Joseph Lumetta, John

Dell Italia, Defendants.

Kings County Court.

Sept. 15, 1960.

Edward S. Silver, Dist. Atty., Kings County, David Diamond and Frank Di Lalla, Asst. Dist. Attys., Brooklyn, for the People.

Joseph Lewis Simon, New York City, for defendant Joseph Lumetta.

NATHAN R. SOBEL, Judge.

The defendant Lumetta, heretofore granted an inspection of the Grand Jury minutes, moves to dismiss the indictment charging him with Manslaughter first degree and two counts of felonious assault on the grounds that----

1. The evidence before the Grand Jury is insufficient as a matter of weight to warrant the indictment.

2. The evidence before the Grand Jury is insufficient as a matter of law to warrant the indictment. Specifically, in this regard, the defendant contends that there is no proof, direct or circumstantial, of the essential element of 'heat of passion' under the manslaughter count of the indictment.

3. That the indictment was found on illegal evidence adduced before the Grand Jury.

4. That the evidence before the Grand Jury is insufficient both as a matter of weight and as a matter of law to support the counts of felonious assault.

I. Motion to Dismiss on 'Weight' of Evidence Before a Grand Jury.

On the testimony before the Grand Jury, it is clear to me that if no other evidence was presented at the trial, it would be the duty of the court to dismiss the indictment at the close of the People's case. Briefly stated, the evidence is as follows.

Lumetta was cut by the deceased with a jagged end of a broken bottle. One eyewitness testifies that Lumetta and his three companions chased his assailant a distance of 100 feet and there beat him with their fists and feet and a belt as a result of which beating he died. But another eyewitness for the People, closer to the scene, testifies that Lumetta remained where he had fallen, while the other three, also indicted, inflicted the wounds which caused death. Such a contradiction between the People's only eyewitnesses would create in my opinion, a reasonable doubt as to defendants' guilt solely on the weight of the evidence.

Under what circumstances is a court justified in dismissing an indictment for evidentiary insufficiency (weight)? The Appellate Courts have not furnished us with many standards for making that determination.

Clearly, where there is no evidence the court must dismiss. In People v. Glen, 1903, 173 N.Y. 395, 400, 66 N.E. 112, 114, the court stated:

'But our courts have also always asserted and exercised the power to set aside indictments whenever it has been made to appear that they have been found without evidence, or upon illegal and incompetent testimony.' (Italics mine.)

It may be noted however that the decision in Glen went the oter way since the court found ample evidence to warrant the indictment.

In another appellate decision, the court ruled rather obliquely that proof before the Grand Jury need not be beyond a reasonable doubt. In People v. Bob, 1931, 233 App.Div. 94, 96, 251 N.Y.S. 1, 4, the court stated----

'The people having established a prima facie case against the defendant-respondent before the grand jury, the court was without power to dismiss the indictment upon the stated ground that the evidence before the grand jury did not 'show the defendant guilty * * * beyond a reasonable doubt.' To reach such a conclusion the court assumed as true everything the defendant said, and acted as both judge and jury.'

But an examination of the evidence before the Grand Jury in the Bob case indicates that the evidence was more than ample to make out a prima facie case.

A better and much clearer guide is furnished by the decision in People v. Eckert, 2 N.Y.2d 126, 157 N.Y.S.2d 551. But that case turned mainly on the legal value of circumstantial evidence before a Grand Jury. The court stated (2 N.Y. at page 129, 157 N.Y.S.2d at page 554)----

'Of course, an indictment which is based upon circumstantial evidence which does not possess the degree of certitude which the law requires as to those facts bearing upon the accused's guilt must be dismissed. * * * In this instance that determination was for the Grand Jury in its capacity as arbiter of credibility and of the weight to be given to the evidence. People v. Vaccarella, 257 App.Div. 461, 13 N.Y.S.2d 925; People v. Bob, 233 App.Div. 94, 251 N.Y.S. 1. That a trial jury may not convict on this evidence is not our concern. The Legislature has specifically relegated the question of whether a trial jury would return a conviction on this evidence to the judgment of the Grand Jury, Code Crim.Pro., § 251. On the record we cannot say the legal evidence was insufficient for the Grand Jury to make such a determination.' (Italics mine.)

The main issue whether the degree of proof required before the Grand Jury is the same as upon a trial, is dealt with specifically by Judge Breitel in a note (stated dicta) appended to his opinion in People v. Howell, 3 A.D.2d 153, 158 N.Y.S.2d 985, affirmed 3 N.Y.2d 672, 171 N.Y.S.2d 801. The note in 3 A.D.2d at page 161, 158 N.Y.S.2d at page 992 reads:

'In the context of this case it is not necessary, therefore, to consider whether the degree of proof before a grand jury, as distinguished from proof of the several elements of the crime, must be the same as before a trial jury. But a caution is certainly suggested. A trial jury in a criminal case must be satisfied by the evidence beyond a reasonable doubt. A grand jury in order to return an indictment must have before it sufficient evidence to warrant a conviction, if not explained or uncontradicted. People v. Bob, 233 App.Div. 94, 251 N.Y.S. 1. Obviously the test of nonexplanation or noncontradiction is not one that is submitted to a petit jury, even when the defendant rests on the People's case. There is a much higher standard required before the trial jury, presumably, even on motion made at the close of the prosecution. Thus, for example, testimony of a degraded, uncertain or confused person, containing, nevertheless the elements of a crime, might sustain an indictment, on motion, where it would not meet the test, if that were all that were offered, to justify a trial verdict of guilty beyond a reasonable doubt. Would a court dismiss an indictment obtained on the testimony of an eight-year child concerning a sex crime committed on her, absent corroborative evidence of the identity of the offender? Hardly. See People v. Ortiz, 180 Misc. 879, 40 N.Y.S.2d 680; People v. Peary, 249 App.Div. 851, 293 N.Y.S. 50; People v. Sexton, 187 N.Y. 495, 513, 80 N.E. 396, supra. That the test applicable to circumstantial evidence should be applied differently with respect to grand jury evidence, see dis. op. by Bergan and Halpern, JJ., in People v. Leary, 280 App.Div. 679, 686, 117 N.Y.S.2d 392, 398, reversed 305 N.Y. 793, 113 N.E.2d 303.

'On any view, however, whether evidence before a grand jury warrants a conviction, given some evidence of each of the elements of the crime, sometimes referred to as a prima facie case, it is now quite clear that such determination is one to be made exclusively by the grand jury. Citing and quoting from People v. Eckert, supra.

From all of the foregoing, it is clear that despite my opinion that the evidence is insufficient and would standing alone require my dismissing the indictment at the close of the People's case, I am bound by the judgment of the Grand Jury as the sole arbiter of the credibility of the witnesses and of the weight to be given to the evidence. It is evidently the law that if there is any evidence at all to warrant the indictment, the Court has no power to dismiss. This may result in injustice on occasion but on the whole it is a workable rule.

II. Motion to Dismiss on the Law. Failure of Proof of 'In

the Heat of Passion' as an Element of the Crime of

Manslaughter.

The phrase 'in the heat of passion' is included in the definition of both manslaughter first degree (Penal Law, § 1050, subd. 2) and manslaughter in the second degree (Penal Law, § 1052, subd. 2.)

The defendant contends that as to him, there is no proof in the evidence before the Grand Jury of this essential element of the crime of manslaughter. When there is no proof of an essential element of a crime, the indictment is insufficient in law.

Since the decision in People v. Peetz, 7 N.Y.2d 147, 196 N.Y.S.2d 83, it is now definitely established that affirmative proof of 'heat of passion' as an essential element of the crime of manslaughter is now required both before the Grand Jury and on the trial. See also People v. Nicoll, 3 A.D.2d 64, 158 N.Y.S.2d 279; People v. Lewis, 282 App.Div 267, 271, 123 N.Y.S.2d 81, 82; People v. Heineman, 211 N.Y. 475, 105 N.E. 673.

The issue before me could be decided on the cited cases with little further comment. However, the precise meaning of the term 'heat of passion' has been a puzzling problem to trial judges. For that reason further comment may be helpful.

It has always been clear that 'heat of passion' may, upon a proper state of facts, be charged 'exclusively' i. e. in a murder prosecution to negative the elements of premeditation and deliberation and intent to kill. It is now also clear that heat of passion must be charged 'inclusively' i. e. affirmatively both on an indictment for manslaughter and on an indictment for murder if the defendant is entitled to a charge of homicide in all its degrees.

A. Exclusive Proof of Heat of Passion.

'Heat of Passion' is a common law term. Under the common law, affirmative proof of design or intention to kill i. e. 'actual malice' was not always necessary. In some situations, malice was implied from the use of poison, or a deadly weapon or from the use of cruel or unusual means. Blackstone states the rule (4 Comm. c. 14, 201) that all homicide was 'malicious, and of course amounts to murder, unless *...