People v. Ganett

• Decision Date: 22 May 1979
• Citation: 416 N.Y.S.2d 914,68 A.D.2d 81
• Parties: PEOPLE of the State of New York, Respondent, v. Sabu GANETT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 914

416 N.Y.S.2d 914

68 A.D.2d 81

PEOPLE of the State of New York, Respondent, v. Sabu GANETT, Appellant.

Supreme Court, Appellate Division, Fourth Department.

May 22, 1979.

Sheldon M. Markel, Buffalo, for appellant.

Edward C. Cosgrove, Buffalo, for respondent (Ernest G. Anstey, Buffalo, of counsel).

Before DILLON, P. J., and CARDAMONE, CALLAHAN, DOERR and MOULE, JJ.

DILLON, Presiding Justice:

The defendant was convicted upon a jury trial of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39). He raises three issues on appeal which arise, respectively, from: (1) the denial of motions to dismiss the indictment based upon the inadequacy of evidence before the Grand Jury to identify the person charged with the crime (see CPL 190.65, subd. 1) and because it accuses a person other than the defendant; (2) the procedure employed by the court for the selection of the trial jury; and (3) a denial of a motion to dismiss the indictment based upon undue delay between the date of the commission of the crime and the date of the indictment.

After a protracted investigation by the Erie County Sheriff's Department aimed at sellers of narcotics, defendant and several others were indicted by a Grand Jury on August 20, 1976 and were arrested on the following day. The indictment in this case accuses "Sabu Ganett" of a sale of heroin on March 12, 1976 to Deputy Sheriff Joseph Petronella. The sole testimony before the Grand Jury relating to the identification of the defendant was that of Petronella, as follows:

"Q. Now, Mr. Petronella, have you ever had occasion to meet a man by the name of Sabu Ganett?

A. Yes, I did.

Q. And did you have occasion to meet this man on March 12, 1976?

A. Yes.

Q. At approximately 5:35 P.M. near the intersection of Hickory and William Streets in the City of Buffalo?

A. Yes.

Q. And what happened when you saw that man on that date?

A. There was a heroin transaction in which the defendant handed me a tinfoil package containing heroin and I handed the defendant $100 in official funds."

Neither the Grand Jury minutes nor the indictment contains any other description of the person intended by the Grand Jury to be indicted. At trial, the defendant denied commission of the crime and testified that his name was "Sabu Gary"; that he was never known by the name of "Ganett"; and that he was never known by any other name. On appeal the defendant characterizes as the "essential point" in the case his claim that there was an insufficient showing that the Grand Jury found reasonable cause to believe that Sabu Gary committed the offense. He thus contends that he was not lawfully indicted and that the court was without jurisdiction to place him on trial for the crime. ¹ We disagree. ²

The New York State Constitution provides that no person shall be held to answer for a felony "unless on indictment of a grand jury" (art. I, § 6). An indictment is an accusation that a specific person has committed the crime charged. Where a defendant has been indicted under a fictitious name because his true name was unknown, or where some person other than the intended defendant is accused in the indictment, the instrument may be amended upon discovery of the true name of the person the Grand Jury intended to indict (People v. Bogdanoff, 254 N.Y. 16, 30, 171 N.E. 890, 895). Though evidence extraneous to the indictment may be necessary to identify a defendant who is insufficiently or erroneously described in the indictment, "it seems clear that an accused cannot claim that he is held without indictment where such evidence proves that he is the person the grand jury intended to accuse, and the record is amended accordingly" (People v. Bogdanoff, supra, p. 30, 171 N.E. p. 895).

Here the defendant's contention that the indictment was a blank authorization to the police to arrest any person the police might choose is wholly without merit. The Grand Jury obviously intended to indict a specific person and did not intend to delegate that function to anyone else. The clear purpose of the Grand Jury was to indict the person who sold heroin to Joseph Petronella on March 12, 1976, said person having been identified to it by Petronella as "Sabu Ganett". No other reasonable interpretation may be drawn from the Grand Jury testimony of Petronella. That subsequent to the indictment, the true name of the defendant was learned to be Sabu Gary does not alter the Grand Jury's intention. In these circumstances, the trial court erred in denying the vigorously opposed motions of the People to amend the indictment to substitute the name Sabu Gary for Sabu Ganett (CPL 200.70; see CPL 210.25).

The defendant's reliance on the Connor case as it proceeded through State and Federal Courts (Com. v. Doherty, 353 Mass. 197, 229 N.E.2d 267; Connor v. Picard, 1 Cir., 434 F.2d 673; Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438; Connor v. Com., 363 Mass. 572, 296 N.E.2d 172) requires comment, if only because such reliance is misplaced. There it was finally held that before the name of the accused in an indictment may be corrected by amendment, there must be a "warrantable inference", giving consideration to both the description in the indictment and the evidence given to the Grand Jury, that the Grand Jury intended to indict the defendant (Connor v. Com., 363 Mass. 572, 296 N.E.2d 172, 176, supra). The indictment was of "John Doe, the true name and a more particular description of the said John Doe being to the said jurors unknown". Indeed, the indictment could not have been drawn in any other fashion since there was no evidence before the Grand Jury that it was the defendant Connor, or any other specific person, who had committed the offense. "(T)he Commonwealth did not meet its burden of showing, from the indictment or otherwise, that Connor was the 'John Doe' in the indictment intended by the grand jury" (Com. v. Gallo, 2 Mass.App. 636, 318 N.E.2d 187, 190). It is as clear from the holding in Connor as it is from the holding in Bogdanoff (People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, supra) that it is the intention of the Grand Jury which controls, and thus viewed, the rule is indistinguishable from that in Com. v. Gallo (supra), and several other New York cases (see People v. Jackson, 46 N.Y.2d 721, 413 N.Y.S.2d 369, 385 N.E.2d 1296; People v. Fitzgerald, 45 N.Y.2d 574, 412 N.Y.S.2d 102, 384 N.E.2d 649; People v. Soto, 44 N.Y.2d 683, 405 N.Y.S.2d 434, 376 N.E.2d 907; see also People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656).

The next point to be considered concerns the defendant's absence from bench conferences which occurred during jury selection. The procedure which pertained during jury selection was as follows: the trial judge, in open court, directed a series of questions to the prospective jurors, designed to search out bias or prejudice; if any juror had an answer to give, he was directed to approach the bench where further discussion was had between the court and the prospective juror, in the presence of both counsel. The defendant, although present in court, was not a party to these bench conferences. Since no record was made of the bench conferences, for the purposes of discussion we accept the statement of defendant's counsel "that despite the request of counsel for the accused, the accused himself was excluded from the conferences" and counsel's further statement that the court did not grant his request that the bench conferences be recorded. ³ We note, however, that despite ample opportunity to have done so, no formal objection to the procedure used on voir dire was interposed by defendant's counsel. ⁴

The defendant further asserts that of the 70-member jury panel, the court excused 17 jurors as a result of the bench conferences; 11 for reasons that might be interpreted to avoid prejudice to defendant, 4 for reasons that might be interpreted to avoid prejudice to the People and 2 for reasons of inconvenience or hardship to those jurors. Since retaining a juror who has asked to be excused for compelling personal reasons would create a risk that an embittered juror might not strictly adhere to his obligations, we conclude that all 17 prospective jurors were excused for reasons which were designed to avoid prejudice.

The questions asked by the court prior to the bench conferences were squarely directed to the matter of qualification to serve as a juror. It was after asking those questions that the court then asked each juror if he had any answer to give and if so, the juror was told to approach the bench. In sum, the 17 prospective jurors, after indicating in open court and in the presence of the defendant, that they might be unfair, prejudiced or otherwise disqualified, were excused for cause, as required by section 270.15 of the Criminal Procedure Law and section 20.10(a) of the Rules of the Administrative Board of the Judicial Conference (22 N.Y.C.R.R. 20.10(a)). Such determinations are solely the province of the trial court and we find no merit to the argument that the presence of the defendant at the bench conferences, fully and competently represented as he was by trial counsel, might have resulted in the qualification of a juror otherwise found disqualified by the court. As noted by the Supreme Court of the United States, it is not to be found in its decisions "that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow." (Snyder v. Massachusetts, 291 U.S. 97, 106-107, 54 S.Ct. 330, 332, 78 L.Ed. 674.) This is particularly so where, as here, no claim is made that defendant or his counsel objected to the excusal by the trial court of any particular juror, nor is any claim made that the jury as finally impanelled included any unfair or partial jurors.

We thus conclude that the defendant has failed to demonstrate that he suffered any prejudice by virtue of the method employed by the trial court in jury...