People v. Frisbie

• Decision Date: 25 January 1973
• Citation: 339 N.Y.S.2d 985,40 A.D.2d 334
• Parties: The PEOPLE of the State of New York, Appellant, v. Charles E. FRISBIE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 985

339 N.Y.S.2d 985

40 A.D.2d 334

The PEOPLE of the State of New York, Appellant, v. Charles E. FRISBIE, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 25, 1973.

Robert E. Jones, Dist. Atty., of Cortland County, Cortland, for appellant.

Frank E. Visco, Cortland, for respondent.

Before HERLIHY, P.J., and GREENBLOTT, COOKE, SWEENEY and REYNOLDS, JJ.

REYNOLDS, Justice.

This is an appeal from an order of the County Court, Cortland County, 68 Misc.2d 814, 328 N.Y.S.2d 494, which dismissed an indictment charging defendant with the crime of perjury in the second degree (Penal Law, § 210.10).

On October 2, 1970 defendant, currently serving a one to three year sentence following a conviction of robbery in the third degree, allegedly swore to a petition entitled 'Affidavit in Support of a Writ of Error Coram Nobis' which purportedly contained certain false statements. After arraignment, defendant moved to dismiss the indictment 'in the interest of justice', which motion was denied. Defendant thereafter moved to inspect the Grand Jury minutes and to dismiss the indictment pursuant to section 210.20 of the Criminal Procedure Law which motion was granted, and the instant appeal ensued.

In his motion to inspect the Grand Jury minutes and to dismiss the indictment pursuant to section 210.20 of the Criminal Procedure Law, defendant set forth three grounds: that the evidence before the Grand Jury was defective in that there was no evidence tending to establish that the defendant was actually 'under oath' when he executed the petition for a writ of error Coram nobis; that the indictment is 'defective' in that a petition for a writ of error Coram nobis is not a 'subscribed, written statement for which an oath is required by law' as required by section 210.10 of the Penal Law; and that the indictment is fatally defective in that the petition sets forth several different allegations of varying types and thus the indictment should be a multi-count indictment as a matter of law. Defendant's attorney did not, however, indicate specifically the paragraph of subdivision 1 of section 210.20 of the Criminal Procedure Law, upon which he relied for each ground advanced, and it is, of course, quite important upon which paragraph a dismissal is premised. For example, a dismissal upon any of the grounds set forth in paragraphs (a), (b), (c) and (i) of subdivision 1 of section 210.20 does not totally preclude the resubmission of the charge to the same or another Grand Jury, while a dismissal upon any of the other five grounds does preclude resubmission (CPL, § 210.20, subd. 4). Moreover, if grounds set forth in paragraph (a) are alleged, the People may have the opportunity to amend the indictment (CPL, § 210.25, subd. 1) and if grounds set forth in paragraph (b) are alleged, the motion to dismiss 'must be preceded or accompanied by a motion to inspect the grand jury minutes' (CPL, § 210.30, subd. 1). Finally, it is clear that paragraph (h) is to be used only when none of the other eight paragraphs sufficiently sets forth a specific defendant's ground for dismissal.

The County Court in its decision ignored the motion to inspect the Grand Jury minutes and defendant's first and third grounds, found the second allegation dispositive of the motion, placed this allegation under the catch-all paragraph (h), decided the motion on the merits for defendant and dismissed the indictment without prejudice to the right of the People to initiate a criminal action for the crime of perjury in the third degree, a lesser included offense. This decision cannot stand. First, as noted, if...