People v. Dabek
| Decision Date | 07 December 1962 |
| Citation | 235 N.Y.S.2d 86,18 A.D.2d 773 |
| Parties | The PEOPLE of The State of New York, Appellant, v. John DABEK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Carman F. Ball, Buffalo, for appellant (Ray Ellis Green, Buffalo, of counsel).
David E. Brennan, Buffalo, for respondent.
Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN, and McCLUSKY, JJ.
The indictment charged defendant with a violation of Section 1308 of the Penal Law for 'buying, receiving, concealing or withholding stolen or wrongfully acquired property * * * in that he * * * knowing that the same had been stolen or wrongfully acquired, wilfully and unlawfully received, concealed and withheld'. The defendant interposed a demurrer to the indictment on the ground that it did not comply with Section 275(2) of the Code of Criminal Procedure in that it did not contain 'a plain and concise statement of the act constituting the crime', by reason of the fact that the accusatory portion of the indictment was in the disjunctive and the specification portion of the indictment contained the conjunctive. The court sustained the demurrer on the ground the indictment failed to inform the defendant of the specific nature of the charge. Penal Law, Sec. 1308 defines the crime in the disjunctive as set forth in the accusatory portion of the indictment. We believe that the indictment sufficiently charges the crime and meets the requirement of being a plain and concise statement of a violation of Section 1308. As is evident from the statute, the offense may be committed in one or more of various ways.: (Bork v. People, 91 N.Y. 5, 13, 14). Sufficiency of an indictment should be upheld where it contains the essential constituents of the crime and informs the defendant of the crime charged. 'In applying this test we are to construe the indictment liberally, and reject the objection if it is technical or impracticable.' (People v. Farson, 244 N.Y. 413, 417, 155 N.E. 724, 725.) Defendant further has the right to obtain a bill of particulars if he desires additional information as to the nature of the charge. The indictment clearly states the crime charged and it was error to have sustained the demurrer.
Order unanimously reversed, demurrer disallowed,...
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...95)'. The principle announced in Bork v. People was reaffirmed by the Fourth Department, Appellate Division in 1962 in People v. Dabek, 18 A.D.2d 773, 235 N.Y.S.2d 86. Those decisions are binding on this The further contention of the defendant that each count alleging official misconduct sh......
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