People v. Echavarry

• Decision Date: 07 October 1974
• Parties: The PEOPLE of the State of New York v. Victor ECHAVARRY, Jr., Defendant. The PEOPLE of the State of New York v. Daniel GIBSON, Defendant. The PEOPLE of the State of New York v. Daniel SICILIANO, Defendant.
• Court: New York Supreme Court

Page 559

360 N.Y.S.2d 559

79 Misc.2d 509

The PEOPLE of the State of New York v. Victor ECHAVARRY, Jr., Defendant.

The PEOPLE of the State of New York v. Daniel GIBSON, Defendant.

The PEOPLE of the State of New York v. Daniel SICILIANO, Defendant.

Supreme Court, Trial Term, Bronx County, Part XXIV.

Oct. 7, 1974.

Stroock & Stroock & Lavan, Charles C. Moerdler, New York City, on the motion.

Dist. Atty. of Bronx County, Mario Merola by Robert Moll, Asst. Dist. Atty., for the People.

HERBERT B. EVANS, Justice:

This is a motion by defendant for an order pursuant to CPL 210.20(1)(a) and (c), 210.25(2) and 210.35(1) dismissing the indictment issued against the defendant on the grounds that the grand jury which issued it was improperly constituted, and for an order pursuant to CPL 210.20(4) directing that if the People resubmit the charges, that such resubmission be to a new grand jury empanelled without regard for Section 598 of the Judiciary Law.

The defendant is a bridge tender who was indicted on July 27, 1971 under Penal Law Section 145.20 for his actions in opening a drawbridge within Bronx County during a labor action on June 7, 1971.

Defendant argues that Section 598 of the Judiciary Law is constitutionally offensive. That section reads, insofar as applicable, as follows: 'Each of the following officers is disqualified to serve as a juror: * * * No public officer or employee of the United States government, or of any state, city, or municipality, or of any political subdivision of any of them, or of any official board, authority, council, commission, corporation, or other agency of any of them, receiving annual compensation in excess of one thousand dollars from the aforesaid sources, shall serve on any grand jury.'

Historically, the grand jury came down to us as part of the common law, it object was to secure to the subject the right to appeal to his peers under the immunity of secrecy before having to stand trial, and arose out of the conflict between the rights of the subject and the power of the state. United States v. Olmstead, D.C., 7 F.2d 756, 758, made clear its status and function: 'It is a distinct, independent body, and must act free from influence, fear, favor, affection, reward, or hope * * * the Constitution of the United States, as well as the constitution of all the states, show it is adopted as a means of protection to the citizens as well as a necessary aid to public justice.'

The section of the Judiciary Law which petitioner seeks to attack was enacted in 1940 based upon the recommendation of the Judicial Council. The Council's recommendations were a product of several years of deliberation and study as reflected in the Sixth Annual Report of the Judicial Council. The Council's comments to the then proposed Section 598 states its purpose as follows, [79 Misc.2d 511] p. 208: 'The last paragraph was recommended by the Grand Jury Association of New York County, on the ground that, although it is the practice not to place such persons on grand juries, specific provision to that effect should be included in the law because of the quasi-judicial, quasi-prosecuting character of the grand juries when investigating official corruption.'

Defendant's counsel's memorandum in support of his motion is that: (1) The exclusions of Section 598 are without rational foundation; (2) That the presumption of bias created by Section 598 violates due process; and (3) That the indictment by a jury which excludes a sizeable segment of the community violates the 14th Amendment right to an 'impartial jury' drawn from a 'cross-section of the community'. Parenthetically, counsel in a supplementary affirmation citing the court's action in People v. Attica Brothers, Sup., 79 Misc.2d 492, 359 N.Y.S.2d 699, makes so tenuous and unsubstantiated an allusion to the exclusion of women from juries in Bronx County that it is doubtful if he intended it, based upon hearsay as it is, to be at issue in the instant matter. From the court's personal involvement and knowledge of the selection of grand juries in Bronx County, we find this contention not to be the fact.

In matters involving a challenge for constitutionality, to the party raising such question falls the onus or proving the same. As was said in Fenster v. Leary, 250 N.Y.2d 309, 314, 282 N.Y.S.2d 739, 743, 229 N.E.2d 426, 429, '* * * it must be observed that a strong presumption of validity attaches to statutes and that the burden of proving invalidity is upon those who challenge their constitutionality to establish this beyond a reasonable doubt.'

Defendant contends that the exclusion of Section 598 is without rational basis. What then is the test of reasonableness? Clearly we cannot ignore as arbitrary the efforts and study of the Judicial Council nor those of the Grand Jury Association. Their efforts were devoted to the satisfaction of a compelling state interest; no other motive is apparent or can be inferred. Epton v. Nenna, D.C., 318 F.Supp. 899, 904, touches upon the limitation in question by stating that the New York Judiciary Law Section 598, disqualifies for jury service not only broad categories of elected and appointed officials in high officer, but any state or federal employee, receiving annual compensation in excess of one thousand dollars, and continues 'Whether or not this is wise of essential, rational people could surely entertain the broad underlying premise that those dependent upon government for substantial income might be unsuitably conflicted if they served as jurors'. [79 Misc.2d 512] And at page 903, 'This court need not * * * applaud the wisdom of this exclusion to sustain its constitutionality'. The court held in Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 879, 209 N.E.2d 539, 541, in commenting on the validity of ...