People v. Dudish
| Decision Date | 27 March 1957 |
| Citation | 5 Misc.2d 856,166 N.Y.S.2d 810 |
| Parties | PEOPLE of the State of New York v. Michael DUDISH, Defendant. |
| Court | New York County Court |
Albert W. Schneider, Herkimer, for the People.
James Collins and Henry Blumberg (of Blumberg & Conley), Little Falls, for defendant.
This is a motion to dismiss the indictment against Michael Dudish on the grounds that the defendant, Michael Dudish, testified before the Grand Jury that indicted him without the formality of signing a Waiver of Immunity.
The moving papers indicate that there was presented to the February, 1957 Grand Jury, a criminal matter entitled, 'The People of the State of New York against Richard Gillen, Herman Congdon and Donald P. March, and re; investigation of Earl Barhydt.' The defendant was served five Subpoenas to appear on different days at different hours to cover different phases of these proceedings. In none of these Subpeonas was the defendant named as a party defendant.
He first appeared before the Grand Jury on February 6, and was sworn as a witness and gave certain testimony upon which an indictment might be predicated. He returned at a later date to give additional testimony and at still a later date, he continued his testimony before the Grand Jury. The record does not indicate that on any of these occasions he was given any warning as to his constitutional rights or that he was advised, or requested to sign a Waiver of Immunity.
Section 10 of the Code of Criminal Procedure of the State of New York provides that, 'No person can be compelled in a criminal action to be a witness against himself'.
The New York State Constitution, Article I, Section 6 provides, 'Nor shall he be compelled in any criminal case to be a witness against himself * * *'.
A Grand Jury proceeding to determine whether a crime has been committed, is a criminal case. People ex rel. Taylor v. Forbes, 143 N.Y. 219, 38 N.E. 303.
A perusal of the Grand Jury minutes of these cases and investigations indicates that other witnesses gave testimony concerning facts upon which the indictment against the defendant might have been presented by the Grand Jury; however, the defendant likewise gave evidence of facts which were admissions upon his part, upon which such an indictment could have been presented and he therefore, was a witness against himself and without warning of his constitutional protection.
Under the circumstances and upon the authorities long prevailing in New York...
To continue reading
Request your trial
-
State v. Schroeder
...793; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Commonwealth v. Rhine, Ky., 303 S.W.2d 301; People v. Dudish, 5 Misc.2d 856, 166 N.Y.S.2d 810.2 See cases cited in 38 A.L.R.2d 229-317, and § ...
-
State v. Sibilia, 2088
...N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571 (Ct.App.1961); People v. Vosburg, 193 N.Y.S.2d 158 (Cty.Ct.1959); People v. Dudish, 5 Misc.2d 856, 166 N.Y.S.2d 810 (Cty.Ct.1957); Jenkins v. State, 65 Ga.App. 16, 14 S.E.2d 594 In order to meet this requirement, the State contends that defendant......
- People v. Riforgiato