People v. Groh

• Decision Date: 31 May 1977
• Citation: 395 N.Y.S.2d 212,57 A.D.2d 389
• Parties: The PEOPLE, etc., Plaintiff, v. Robert T. GROH, Defendant. In the Matter of Robert T. GROH, Petitioner, v. Howard A. JONES, as Justice of the Extraordinary Special and Trial Term of the Supreme Court of the State of New York, County of Queens, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 212

395 N.Y.S.2d 212

57 A.D.2d 389

The PEOPLE, etc., Plaintiff, v. Robert T. GROH, Defendant.

In the Matter of Robert T. GROH, Petitioner, v. Howard A. JONES, as Justice of the Extraordinary Special and Trial Term of the Supreme Court of the State of

New York, County of Queens, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

May 31, 1977.

Segal & Hundley, New York City, for defendant-petitioner.

John F. Keenan, Deputy Atty. Gen., New York City (George F. Bradlau, Ithaca, of counsel), respondent pro se and for plaintiff.

Before GULOTTA, P. J., and MARTUSCELLO, COHALAN, DAMIANI and SHAPIRO, JJ.

PER CURIAM:

This is a motion pursuant to section 149 (subd. 2) of the Judiciary Law by Robert T. Groh, a defendant in a pending criminal action, for an order dismissing the indictment filed against him by the Extraordinary Special Grand Jury for the County of Queens, or, in the alternative, for judgment pursuant to CPLR article 78 prohibiting the Trial Justice assigned to the Extraordinary Special and Trial Term, and the Special Prosecutor, from proceeding with respect to the said indictment.

Motion denied and proceeding dismissed, without costs or disbursements.

Consideration by this court of the prayer for relief pursuant to section 149 (subd. 2) of the Judiciary Law is barred by the fact that an identical motion had been made before the Extraordinary Special and Trial Term and was denied by it on March 4, 1977; that determination was adhered to upon reconsideration on March 15, 1977. The availability of relief by motion to this court pursuant to section 149 (subd. 2) is an alternative to proceeding before the Extraordinary Special and Trial Term and, having elected to proceed before Acting Supreme Court Justice JONES in the first instance, defendant is now precluded from attempting to overturn his decision by a de novo application to this court (see Matter of Dondi v. Jones, 40 N.Y.2d 8, 15, 386 N.Y.S.2d 4, 9, 351 N.E.2d 650, 656).

So far as the application for relief in the nature of prohibition is concerned, we must take cognizance of the holding of the Court of Appeals in Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 882, 324 N.E.2d 351, 353:

"The extraordinary remedy either of prohibition or mandamus lies only where there is a clear legal right, and in the case of prohibition only when a court (if a court is involved) acts or threatens to act without jurisdiction in a matter of over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction (see, e. g., Proskin v. County Ct. of Albany County, 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 45, 280 N.E.2d 875; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 436-437, 318 N.Y.S.2d 705, 707-708, 267 N.E.2d 452, 453-454; Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335-336, 274 N.Y.S.2d 881, 884-885, 221 N.E.2d 546, 549)." (Accord Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 423-424, 369 N.Y.S.2d 75, 77, 330 N.E.2d 45, 46.)

While the question is not entirely free of doubt, we have concluded that the allegations proffered by the defendant Groh fail to raise a jurisdictional issue (see Matter of Paciona v. Marshall, 35 N.Y.2d 289, 360 N.Y.S.2d 882, 319 N.E.2d 199; Matter of Wroblewski v. Ricotta, 35 N.Y.2d 745, 361 N.Y.S.2d 913, 320 N.E.2d 647; cf. Matter of Dondi v. Jones, supra; La Rocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606).

We should indicate, however, that had the motion under section 149 (subd. 2) of the Judiciary Law been submitted to us ab initio, we would have granted the application and ordered that the indictment be dismissed, as the papers submitted by both sides reveal the presence of procedural irregularities going to the very heart and integrity of the grand jury system. Here, after a full presentation of the evidence, a charge on the law by the Special Prosecutor, and an apparently spirited discussion among the grand jurors themselves, they voted to dismiss the proposed charges in their entirety, and recorded that determination in their minute book. Thereafter, and this appears without contradiction on the record, the Special Prosecutor, having learned of the result, re-entered the Grand Jury room, where he gratuitously discussed with the grand jurors their failure to indict. Without any request from the Grand Jury, he then suggested to it that the Justice presiding at the Extraordinary Special and Trial Term would be willing to come before it and provide it with a further charge on the law, if it so desired. The utility of such a gesture was questioned by a grand juror, who told the Special Prosecutor that a vote had already been taken and the matter disposed of, but the latter insisted that a further charge might enable the Grand Jury to "adequately reach a judgment on the matter, adequately and finally reach a judgment on the matter", this notwithstanding the fact that the Grand Jury had done just that reached, voted on and recorded its determination. The Special Prosecutor than retired from the Grand Jury room and a vote was taken. Only three of the grand jurors voted to receive further instructions. Despite the fact that there was no request by the Grand Jury as a body to receive any further instructions, both the Special Prosecutor and the Justice presiding at the Extraordinary Special and Trial Term appeared before the Grand Jury on a subsequent date and delivered a further charge. The grand jurors then retired to deliberate and voted the instant indictment by the narrowest permissible margin (see CPL 190.25, subd. 1).

Aside from the fact that we view these "further instructions" to have been incorrect on the law, as they seemed to indicate to the grand jurors that they had no alternative except to indict, we believe that the methods employed, although no doubt well motivated, were coercive in fact and, if permitted to go unchecked, would tend to destroy both the...