People v. Graydon

• Decision Date: 27 March 1972
• Citation: 69 Misc.2d 574,330 N.Y.S.2d 259
• Parties: PEOPLE of the State of New York v. James GRAYDON, Defendant.
• Court: New York County Court

Page 259

330 N.Y.S.2d 259

69 Misc.2d 574

PEOPLE of the State of New York v. James GRAYDON, Defendant.

Nassau County Court, Special Term, Part I.

March 27, 1972.

William Cahn, Dist. Atty., Nassau County, Mineola, for plaintiff.

Malone & Dorfman, Freeport, for defendant.

BERNARD TOMSON, Judge.

This is a motion by the defendant for an order dismissing the indictment.

On June 24, 1971, defendant was indicted for the crimes of Murder (P.L. § 125.25) and Assault First Degree (P.L. § 120.10).

The thrust of the defendant's motion is that the People violated his basic constitutional rights and irreparably compromised his defense by reading and copying defendant's mail while he was in the custody of the Nassau County Sheriff. Defendant contends that this violation occurred when the Sheriff's department permitted representatives of the District Attorney's office to review and retain copies of his mail, although he does not question the right of the Sheriff to read an inmate's mail.

'Your deponent is not questioning, at this time, the claimed right of the sheriff's office to read and review incoming and outgoing mail.' (Affidavit by defendant's attorney in support of this motion to dismiss the indictment, 1/28/72, p. 2)

The People state that what was turned over to the District Attorney's office was mail that defendant was sending to persons not on defendant's approved list of correspondents (See District Attorney's affidavit in opposition, pp. 2--3).

The case of Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, is in point. In Stroud, the defendant was convicted of Murder, First Degree. Part of the evidence that was offered by the People at the trial consisted of letters written by the defendant after the homicide and while he was incarcerated in prison waiting trial. The warden of the prison turned the letters over to the prosecution. The U.S. Supreme Court at pp. 21--22, 40 S.Ct. at pp. 52--53 held:

'Certain letters were offered in evidence at the trial containing expressions tending to establish the guilt of the accused. These letters were written by him after the homicide and while he was an inmate of the penitentiary at Leavenworth. They were voluntarily written, and under the practice and discipline of the prison were turned over ultimately to the warden, who furnished them to the district attorney. It appears that at the former trial, as well as the one which resulted in the conviction now under consideration, application was made for a return of these letters upon the ground that their seizure and use brought them within principles laid down in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177, and kindred cases. But we are unable to discover any application of the principles laid down in those cases to the facts now before us. In this instance the letters were voluntarily written, no threat or coercion was used to obtain them, nor were they seized without process. They came into the possession of the officials of the penitentiary under established practice, reasonably designed to promote the discipline of the institution. Under such circumstances there was neither testimony required of the accused, nor unreasonable search and seizure, in violation of his constitutional rights.'

Of interest is the language in ABA Project on Standards for Criminal Justice, Electronic Surveillance § 4.1, where at pp. 125 and 126 it is stated:

'. . . Note, moreover, that letters have always been published without consent in the criminal trial where they were otherwise lawfully obtained. See, e.g., Stroud v. United States, 251 U.S. 15 (40 S.Ct. 50, 64 L.Ed. 103) (1919); cf. Ex parte Jackson, 96 U.S. 727, 733 (24 L.Ed. 877) (1877). Rules properly rooted in a desire to protect privacy of communication between individual and individual thus must be reinterpreted in the light of other interests when they are brought into the administration of justice.'

See also the footnote in United States v. White, 401 U.S. 745, 790, 91 S.Ct. 1122, 1145, 28 L.Ed.2d 453 (dissenting opinion) which reads, referring to the above ABA Project report:

'. . . The commentary states at the outset: 'This standard reflects the prevailing law.' The drafters apparently take as their starting point the risk analysis approach, relying on cases holding that contents of letters may be revealed where otherwise lawfully obtained. Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); Ex parte Jackson, 96 U.S. 727, 737, 24 L.Ed. 877, 880 (1878); see also Blakey & Hancock, A Proposed Electronic Surveillance Control Act, supra, n. 4, at 663, n. 11. The various state provisions are set forth in Greenwalt, Supra, n. 4, at 207--211.'

Since Stroud, the right of prison officials to censor mail has not been denied (Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384; Ortega v. Ragen, 7 Cir., 216 F.2d 561); although it has been limited to some extent. (See Matter of Brabson v. Wilkins, 19 N.Y.2d 433, 280 N.Y.S.2d 561, 227 N.E.2d 383 where the court prohibited the warden from withholding any communication addressed to any court, any communication addressed to a Federal or State executive official concerning complaints of unlawful treatment and any communication to petitioner's attorney with regard to the legality of detention and treatment received. For cases in accord with Brabson see Sostre v. McGinnis, 2 Cir., 442 F.2d 178, cert. den., Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (3/6/72); Goodwin v. Oswald (D.C.1972); Palmigiano v. Travisono, D.C., 317 F.Supp. 776, where the court held impermissible screening of correspondence between inmates and public officials such as the President of the United States, U.S. Senators and Congressmen, Judges of Federal Courts, the Governor of Rhode Island and the inmate's attorney or any attorney licensed to practice in Rhode Island. See also 'Prison Mail Censorship and the First Amendment', 81 Yale L.R. 87 (1971)). However, there are no U.S. Supreme Court or New York cases that proscribe the censorship of mail that is sent to those not on an inmate's approved correspondence list.

No cited case would require a holding that the admitted screening of the defendant's mail and delivery of some of it to the district attorney was necessarily improper. The precise question here presented is whether such acts, even if they were determined to be improper, would require a dismissal of the indictment.

The defendant apparently relies on CPL § 210.20(1)(i) which authorizes the dismissal of an indictment when:

'Dismissal is required in the interest of justice, pursuant to section 210.40.'

CPL § 210.40(1) provides:

'1. An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.'

CPL § 210.40 substantially restates the provision of Code of Criminal Procedure § 671. The principal difference between Code of Criminal Procedure § 671 and the new CPL § 210.40 is that under prior law only the district attorney (or the court on its own motion) was authorized to move for dismissal in the interest of justice while under CPL § 210.40 the defendant may also so move. The...