People v. Gibbs

• Decision Date: 13 November 1962
• Citation: 233 N.Y.S.2d 904,36 Misc.2d 768
• Parties: PEOPLE of the State of New York, Plaintiff, v. Patricia Ann GIBBS, Defendant.
• Court: New York County Court

Page 904

233 N.Y.S.2d 904

36 Misc.2d 768

PEOPLE of the State of New York, Plaintiff, v. Patricia Ann GIBBS, Defendant.

Oneida County Court.

Nov. 13, 1962.

Arthur A. Darrigrand, Dist. Atty. (J. Stuart Fero, Boonville, of counsel), for the People.

Anthony A. Rose, Utica, for defendant.

JOHN J. WALSH, Judge.

The defendant, by an indictment presented and filed October 8, 1962 was indicted on a first count of murder in the second degree of one Josephine Betts, and on a second count for assault in the first degree on one Audrey White. The indictment alleges the two crimes were committed on the same day.

On October 9, 1962, before entering a plea, the defendant filed a written demurrer:

1. That the indictment does not conform substantially to the requirements of Sections 275 and 276 of the Code of Criminal Procedure.

2. That more than one crime is charged in the indictment within the meaning of Sections 278 or 279 of the Code of Criminal Procedure .

3. That the indictment contains matter which, if true, would constitute a legal justification or excuse for the acts charged, or other legal bar to the prosecution.

On the argument of the demurrer, the defendant relied on its second contention, that more than one crime is charged in the indictment.

Section 278 of the Code of Criminal Procedure provides:

'The indictment must charge but one crime and in one form except as in the next section provided.'

Section 279 of the Code then proceeds to provide certain exceptions to the prohibition contained in Section 278:

'When there are several charges for the same act or transaction, constituting different crimes or the same crime alleged to have been committed in a different manner or by different means, or for two or more acts or transactions connected together or constituting parts of a common scheme or plan, or for two or more acts or transactions constituting crimes of the same or a similar character, instead of having several indictments or informations, the whole may be joined in one indictment or information in separate counts, and if two or more indictments or informations are found in such cases, the court may order them to be consolidated; provided, however, that where the charges involve two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan, the court, in the interest of justice and for good cause shown, may, in its discretion, order that the different charges set forth in the indictment or information or indictments or informations, be tried separately. The joinder or consolidation of indictments or informations shall not be prevented by the fact that different penalties may be imposed for conviction upon the several crimes charged.'

The defendant specifically demurs to the second count of the indictment charging assault in the first degree on the ground that the defendant by demurring to the entire indictment, may demur to any count of the indictment. She claims that the court may then sustain the demurrer to the second count and order it to be resubmitted to the Grand Jury for a new indictment. People v. Nerone, 32 Misc.2d 536, 538-539, 224 N.Y.S.2d 616, 619. She specifically declines to move for a severance of trial of the two counts, at this time. The logic of such procedure escapes this court's attention, unless it is on the ground that a new grand jury might not re-indict the defendant.

The grounds urged by the defendant for invalidating the indictment are:

1. The indictment does not allege that the two crimes charged constituted part of a common scheme or plan within the provisions of Section 279 of the Code of Criminal Procedure.

2. The second count charges a crime against a different person than the person in the first count.

3. There is no allegation that the second count is the same act or transaction as the first count, within the provisions of Section 279.

4. The second count is demurrable solely because of its duplicity.

The mere fact that the two crimes charged were allegedly perpetrated against different persons on the same day cannot per se invalidate the indictment.

The more serious question raised which requires consideration is that the indictment on its face does not contain an allegation showing any connection between the two counts, except a similarity of date and a common defendant. 'Only the indictment may guide' in determining the validity of the demurrer. People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 265, 159 N.Y.S.2d 203, 207, 140 N.E.2d 282, 285. The District Attorney argues that both alleged crimes are part of the res gestae; that both crimes occurred at the same time and as part of the same transaction and that in such factual situation, there is a proper joinder under Section 279 of the code.

Defendant points to a series of recent cases which she urges show the development of the principle that the indictment must show or allege therein a similar character or connection between the crimes or an allegation that they constitute parts of a common scheme or plan. The defendant cites People v. Pepin, 6 A.D.2d 992, 176 N.Y.S.2d 15 (4th Dept.). In that case, the indictment charged the defendants Pepin and Cook with an alleged robbery of a Mary Martin on July 18, 1956 and a separate count charging the defendant Cook with a different robbery of a Benjamin Beck on August 8th, 1956. (See Record on Appeal). The lower court denied a motion for severance and the Appellate Court said:

'[T]his constituted an abuse of discretion. Under the circumstances of this case, the motion for a severance should have been granted, in the exercise of discretion, upon the ground that the joinder was prejudicial to the interest of the defendant-appellant.'

The indictment and the facts in the Pepin case demonstrate the correctness of the appellate court's holding. Pepin was prejudiced by the inclusion of the Cook count in which Pepin was not a defendant.

The defendant then relies strongly upon People v. Namolik, 8 A.D.2d 685, 184 N.Y.S.2d 700 (4th Dept.). In that case, the Court said:

'The indictment charged, among others, three crimes which were wholly unrelated, which were not of the same or a similar character and which...