People v. Graf

• Decision Date: 24 February 1969
• Citation: 59 Misc.2d 61,298 N.Y.S.2d 224
• Parties: The PEOPLE of the State of New York, Complainant, v. George GRAF, Defendant
• Court: New York City Court

Page 224

298 N.Y.S.2d 224

59 Misc.2d 61

The PEOPLE of the State of New York, Complainant, v. George GRAF, Defendant.

Criminal Court of the City of New York, New York County,

Part 1B ¹

Feb. 24, 1969.

[59 Misc.2d 62] Frank S. Hogan, Dist. Atty., for complainant. Lawrence Dubin, Asst. Dist. Atty., of counsel.

Herman Itskowitz, New York City, for defendant.

OPINION

JOEL J. TYLER, Judge.

The defendant is charged with violation of Section 165.40 of the Penal Law, in that, on February 22, 1968, he knowingly possessed 22 stolen credit cards.

Defendant duly moved, pursuant to Section 813-c of the Code of Criminal Procedure, to suppress the seized credit cards and a certain inculpatory statement made by defendant. ¹ Further, in a supporting affidavit attached to the written notice of motion to suppress, and served upon the District Attorney more than two weeks prior to the hearing, ² defendant placed the People upon notice that upon any hearing on the motion to suppress, the defendant 'will request grand jury minutes in a case involving your deponent and others in which they were charged with acting in concert with other defendants, namely, Carl Oliver and Eric Thornhill to stab and beat a certain individual and to take from his possession certain United States currency. Those minutes will show that your deponent was not indicted and that there was no reason or probable cause for his arrest. That the said grand jury minutes are further sought for the purposes of cross-examination of any witnesses who previously testified at the grand jury.'

The sole witness at the hearing was the arresting patrolman, Brian K. Callery, who was called for the People. ³ His testimony, insofar as here pertinent, was as follows:

1. At about 8:30 p.m. on February 22, 1968, he observed an auto pass through a red signal light at West 71st Street and West End Avenue in the Borough of Manhattan, which then proceeded the wrong way up a one way street. The officer apprehended the vehicle one block distant at Broadway and West 71st Street. The defendant, a Caucasian, was operating the vehicle, while two Negro passengers were also seated therein.

2. The officer then requested of the defendant his driver's license and auto registration. The defendant produced the driver's license but not the registration. The officer thereupon radioed a '1035 Call' from his police car to headquarters to ascertain if the plate number of defendant's vehicle had been reported stolen. ⁴ However, the officer's message was interrupted by the radio dispatcher, who reported a 'crime in progress' (a 1030 call) on West 71st Street and West End Avenue, about one and one-half blocks from where the parties were then situated.

3. The officer then placed the defendant in the police car, ⁵ and together with Officer Callery's partner, proceeded to 329 West 71st Street. The two passengers remained detained at the place where defendant's car was stopped, in the custody of other later arrived police officers.

4. When Officer Callery, his partner, and defendant arrived at the scene of the alleged crime, they found 'the 79 year old man,' later identified as Stanley Zimsack, on the street 'apparently injured.' Callery left his car and approached Zimsack; defendant remained in the car with Callery's partner. Upon questioning, Zimsack allegedly told Callery that he had been 'assaulted' by 'two male Negro youths,' who also removed from his person 'eleven single dollar bills,' and then 'fled in a light colored car, two door,' which he thought to be a convertible. The car driven by defendant was described by Officer Callery as 'a light beige, it's very light and it is a convertible.'

5. Officer Callery then 'brought the defendant to the station house,' and the two passengers were brought there as well by the other officers, while defendant's car was driven to the vicinity of the precinct by a fellow officer.

6. Mr. Zimsack later arrived at the station house, and after viewing the defendant and his passengers (not in a lineup), he spoke with Officer Callery, who said he then placed all three under arrest and charged them with robbery. ⁶

7. Officer Callery then left the station house, went to defendant's auto and searched it. He found the aforesaid credit cards under the driver's seat and eleven single dollar bills 'in the boot compartment where the convertible top goes down.' Callery then returned to the station house and questioned the defendant and his passengers relative to the wallet; ⁷ the defendant then made the inculpatory statement, in which he 'admitted ownership of the wallet.'

There are several legal questions here involved, the answers to which all militate to the conclusion that the motion to suppress should be granted.

1. Defendant's counsel assumed the firm position that the statements of Stanley Zimsack to Officer Callery, and as reported at the hearing by the officer, was hearsay and inadmissible.

2. The People, through its Assistant District Attorney was by express direction required by this Court to furnish it and the defendant with a copy of the grand jury minutes, relative to the presentment to the grand jury concerning the robbery charge and the incidents here involved. As aforesaid, a demand therefor had, previous to the hearing, been duly made by defendant, the reasonable costs of which defendant agreed, at the hearing, to pay. The People failed or refused to furnish a copy of such minutes. Is the defendant entitled to such grand jury minutes at this hearing, covering testimony of any witnesses who would testify at the instant hearing, and what are the consequences of such failure or refusal?

3. At what point was defendant, in fact and in law, placed under arrest, and was that arrest based upon probable cause?

The first question can readily be disposed of, in that hearsay evidence is admissible in a hearing on a motion to suppress. 'Hearsay will be admissible on the issue of probable cause.' (People v. Loria, 10 N.Y.2d 368, 374, 223 N.Y.S.2d 462, 468, 179 N.E.2d 478, 482; People v. Schnitzler, 18 N.Y.2d 457, 460, 276 N.Y.S.2d 616, 617, 223 N.E.2d 28, 29; People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263.

With respect to the second question, the Courts of this State following the unmistakable lead of the United States Supreme Court (Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, which resulted in the enactment of the Jencks Act, U.S.Code, Title 18, section 3500) condemns the view that a defendant may not examine prior statements of a witness, unless such statements are pre-examined by the Court to ascertain if they contain matter inconsistent with the witness' testimony on the stand. Prior to Jencks it was the practice in our courts, that such statements were to be pre-examined by the Court to determine the existence of such inconsistent testimony, and if inconsistent it could be used by the defense for purpose of cross-examining that witness, but otherwise could not be so used. (People v. Walsh, 262 N.Y. 140, 186 N.E. 422).

However, with the advent of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, 7 A.L.R.3d 174, our State's highest court confirmed the reasonableness of the Jencks doctrine, and declared any prior statement by a witness 'to police, district attorney or grand jury' (p. 289, 213 N.Y.S.2d p. 450, 173 N.E.2d p. 882) must be made accessible to the defense, without regard to the Court's prior determination that the statement is inconsistent with the testimony of the witness on the stand. (See also People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688, decided 1/16/69, unpublished at this time) The only conditions placed upon the unlimited accessibility to such pretrial statement is that it must relate to the subject matter of the witness' testimony and that it not contain matters of a confidential nature.

In expressing the new doctrine, the Court in Rosario declares that '* * * a right sense of justice entitles the defense to examine a witness' prior statement, whether or not it varies from his testimony on the stand.' (9 N.Y.2d p. 289, 213 N.Y.S.2d p. 450, 173 N.E.2d p. 883) And 'In short, since 'the state has no interest in interposing any obstacle to the disclosure of the facts' and since the 'defense should be given the benefit' of any 'information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence' (cases cited), the defendant is entitled to see and use the entire statement. Otherwise, other is always a danger that something will be withheld from defense counsel which may assist him in impeaching the prosecution's witness.' (P. 290, 213 N.Y.S.2d p. 451, 173 N.E.2d p. 883.)

We affirm and give legal credence to the oft spoken adage that where mystery begins, law ends, and 'a right sense of justice' militates to full disclosure of the witness' prior position, whatever it might be and wherever made, in the interest of ascertaining the facts.

Certainly, Officer Callery's grand jury testimony constitutes such prior statement (People v. Wilson, 16 A.D.2d 207, 229 N.Y.S.2d 685; People v. Monahan, 21 A.D.2d 76, 78, 249 N.Y.S.2d 562, 563; 7 A.L.R.3rd 181, 235), which Rosario compels must be made available to the defense. It 'relates to the subject matter of the witness' testimony' at the hearing, and no claim was or could be made that it contained confidential matter, which would subject it to the prohibition against disclosure.

Further, the dedfendant here gave due and reasonable notice that he will require the grand jury minutes and agreed to pay the reasonable and necessary costs for transcribing the same. Thus he met the conditions of People v. Jaglom, 17 N.Y.2d 162, 269 N.Y.S.2d 405, 216 N.E.2d 576.

Such grand jury minutes, if required, must be furnished not only at a trial, but, if required, also at any hearing. People v. Malinsky, 15 N.Y.2d 86, 90, 262 N.Y.S.2d 65, 69, 209 N.E.2d 694,...