People v. Gentile

• Decision Date: 10 March 1964
• Citation: 247 N.Y.S.2d 551,20 A.D.2d 412
• Parties: The PEOPLE of the State of New York, Appellant, v. Joseph GENTILE, Louis Falco a/k/a Peter Como, Rudolph De Luca, Anthony Sasso and Saverio Santora, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 551

247 N.Y.S.2d 551

20 A.D.2d 412

The PEOPLE of the State of New York, Appellant, v. Joseph GENTILE, Louis Falco a/k/a Peter Como, Rudolph De Luca, Anthony Sasso and Saverio Santora Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

March 10, 1964.

Alan Frederick Leibowitz, New York City, of counsel (H. Richard Uviller, New York City, with him on the brief, Frank S. Hogan, Dist. Atty.), for appellant.

Joseph Aronstein, New York City, for defendants-respondents Gentile, Falco and DeLuca.

Peter J. Peluso, New York City, for defendants-respondents Sasso and Santora.

Before BOTEIN, P. J., and BREITEL, RABIN, STEVENS and EAGER, JJ.

STEVENS, Justice:

There are two orders involved in this appeal. Each order dismissed an indictment as the result of a motion to inspect the grand jury minutes or alternatively to dismiss the indictment. One, entered September 17, 1962, involves defendants Gentile, Falco and De Luca. The other, entered October 15, 1962, applies to defendants Sasso and Santora. The indictments arose out of a single common incident, and because common questions are involved, they are treated together. The dispositive principle herein enunciated is applicable to both. For that reason we do not consider seriatim and at length the various grounds of appeal, and the arguments advanced in their support. However, omissions in the record militate against any absolute position by the respective parties in respect to certain points on appeal. An illustration of this is the notation on the indictments, under date of August 10, 1962, 'Motion of 7/27/62 withdrawn.' Such notation is not initialed and all counsel were unable to enlighten the court as to whether the motion to withdraw had, in fact, been made and by whom it was granted.

The dismissal of the indictments as to defendants Gentile, Falco and De Luca was based, apparently upon alleged deficiencies in the warrant and a reasoning therefrom to evidential deficiencies present in the case. It was not based upon the insufficiency of the evidence as revealed by examination of the minutes of the grand jury. This observation seems accurate as to Sasso and Santora also. The requisites for issuance of a search warrant are clearly set forth in the Code as are the powers conferred thereby for its proper execution (Code of Criminal Procedure, § 791 et seq.). The Code prescribes the necessary procedure if a warrant be controverted (ibid, § 807 et seq.).

A motion to inspect the grand jury minutes or, alternatively, to dismiss the indictment, as occurred here, is not the appropriate vehicle to test the constitutionality of a search and seizure, or to determine if the Fourth Amendment to the Constitution of the United States has been violated (see Code of Criminal Procedure, §§ 813-c to 813-e, § 249; People v. Atkins, Gen.Sess., 221 N.Y.S.2d 780; cf. Code of Criminal Procedure, §§ 313, 668-672; People v. Gonzales, 31 Misc.2d 486, 221 N.Y.S.2d 846). A hearing should be held on the issues and the parties afforded the opportunity to support their respective contentions. The legality of the search and seizure as to law and fact should then be determined by the court. (Steele v. United States, 267 U.S. 505, 45 S.Ct. 417, 69 L.Ed. 761.)

Of course a court has the power and may 'either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed' (Code of Criminal Procedure, § 671). If the court concludes upon examination of the evidence before the Grand Jury, that such evidence is insufficient and the indictment should be dismissed, it may do so. (People v. Sylvester, 149 Misc. 138, 267 N.Y.S. 399, aff'd 241 App.Div. 861, 271 N.Y.S. 1005; People v. Williams, 182 Misc. 841, 49 N.Y.S.2d 583; People v. Sass, 4 Misc.2d 654, 151 N.Y.S.2d 890.) For Section 313, Code of Criminal Procedure, while determinative on procedural matters, is not exclusive where constitutional rights are involved (People v. Glen, 173 N.Y. 395, 66 N.E. 112). Additionally, the court is empowered to...