People v. Hattemer
| Decision Date | 15 July 1957 |
| Citation | 4 A.D.2d 775,165 N.Y.S.2d 196 |
| Parties | The PEOPLE of the State of New York, plaintiff, v. Miriam S. HATTEMER, defendant. |
| Court | New York Supreme Court — Appellate Division |
Edward E. Rigney, Asst. Atty. Gen., for the People.
Harold Ashare, Patchogue, for defendant.
Before NOLAN, P. J., and WENZEL, MURPHY, UGHETTA and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
Motion to dismiss an indictment upon inspection of the minutes of the Grand Jury of the Extraordinary Trial and Special Term of the Supreme Court of Suffolk County.
Motion granted, indictment dismissed, and bail exonerated.
The indictment charges that the 'Defendant on or about the seventeenth day of October, 1956, at Patchogue, Town of Brookhaven, Suffolk County, committed the crime of Perjury in the First Degree, contrary to Penal Law, Section 1620-a.' The District Attorney's bill of particulars charges that defendant committed the crime at an investigation conducted by the office of the Commissioner of Investigation on October 17, 1956, in Patchogue. The bill also states that the defendant testified falsely and said in substance and effect that she paid $219.68 to one James S. Fuoco for a one-third interest in real property, by several payments in cash from an amount of $1,000 retained by her in cash and kept in her wallet, which she testified she received and retained from the proceeds of an alleged $2,000 settlement, at the end of 1951, or thereabouts, of a negligence claim, the remaining $1,000 having been deposited in a bank.
The minutes of the Grand Jury include testimony and other evidence received on October 16, and October 18, 1956. On October 18, 1956 the transcripts of the defendant's testimony in the office of the Commissioner of Investigation were received in evidence by the Grand Jury. The first transcript was of testimony taken on September 10, 1956 in the office of the Commissioner of Investigation in New York County. The second transcript was of testimony taken in the office of the Commissioner in Suffolk County on October 17, 1956. At the hearing in New York County the defendant, a housewife, was questioned for some time without being sworn. After some further testimony was so taken, she said that she presumed she was under oath. After a few more questions, she was sworn and testified further. During her sworn testimony, she testified as to the matter indicated in the bill of particulars, i.e., the keeping of $1,000 in cash, part of the proceeds of the settlement of the negligence action.
On October 17, 1956, the defendant, represented by the same attorney who represented her at the first hearing, was questioned in Suffolk County by a deputy commissioner of the office of the Commissioner of Investigation. She testified that she was examined on September 10, 1956 and had been sworn in connection with the giving of that testimony, that her answers on the first hearing were true to the best of her knowledge and so far as she could remember and that, if she were asked the same questions that she was asked on the first hearing, her answers might not be the same verbatim but the essence would be there. She answered various questions, some of which were repetitious of her testimony at the first hearing. But she was not questioned concerning, and did not testify about, the...
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...alone establish that it was given 'wilfully and knowingly'. (People v. Samuels, 284 N.Y. 410, 415, 31 N.E.2d 753, 754; People v. Hattemer, 4 A.D.2d 775, 165 N.Y.S.2d 196, affd. 4 N.Y.2d 835, 173 N.Y.S.2d 811, 150 N.E.2d 239; see, also, Perkins, Criminal Law (1957 ed.), pp. 389--390; A.L.I. ......
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...testimony shows a failure of proof as to any essential element of the crime charged, the indictment is dismissed. People v. Hattemer, 4 A.D.2d 775(3), 165 N.Y.S.2d 196, affirmed 4 N.Y.2d 835, 173 N.Y.S.2d In our former decision, supra, we mentioned People v. Willis, 158 N.Y. 392, 53 N.E. 29......
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