People v. Herne

• Decision Date: 04 August 1981
• Citation: 110 Misc.2d 152,441 N.Y.S.2d 936
• Parties: The PEOPLE of the State of New York v. Dale Leon HERNE, Defendant.
• Court: New York County Court

Page 936

441 N.Y.S.2d 936

110 Misc.2d 152

The PEOPLE of the State of New York v. Dale Leon HERNE, Defendant.

Franklin County Court.

Aug. 4, 1981.

Joseph J. Ryan, Dist. Atty., Franklin County, for the People.

Kenneth Murtagh, Malone, for defendant.

JAN H. PLUMADORE, Judge.

The defendant has entered a plea of guilty to Attempted Sexual Abuse in the First Degree in satisfaction of Superior Court Information # 141-80 which charged him with Sexual Abuse in the First Degree. The felony complaint upon which the defendant had been bound over for the action of the Grand Jury charged him solely with Rape in the First Degree. This Court must now decide if the plea entered is a proper one. The real issue to be determined is: may a defendant waive indictment and consent to and be prosecuted by a superior court information that charges only a lesser included offense of the one upon which the defendant had been originally held for Grand Jury action?

The applicable Constitutional provision in New York is found in Article 1, Section 6. In the interpretation of that provision New York has assumed a rather unique position. It is not unusual to treat the subject of prosecution by indictment, and the waiver thereof, in a state's constitution (42 C.J.S., Indictments and Informations, Section 73). It is however unusual, i. e., the minority position, to treat waiver of indictment questions as jurisdictional, and something more than the exercise of a merely personal right or privilege (56 A.L.R.2d 837, Sect. 3 at page 839). New York State has nonetheless adopted the principle that prosecution of "... a capital or otherwise infamous crime ...." by indictment by a Grand Jury is a fundamental public right, jurisdictional in nature, and non-waivable in the absence of a constitutional provision allowing for it. (People ex rel. Battista v. Christian, 249 N.Y. 314, 317, 164 N.E. 111; Matter of Simonson v. Cahn, 27 N.Y.2d 1, 3-4, 313 N.Y.S.2d 97, 261 N.E.2d 246).

The initial pronouncement of the principle was made in a case decided at a time when there was no constitutional provision for waiving prosecution by indictment, only a rather short-lived statutory one. The principle was subsequently strongly reiterated in a case where there was neither legislative enactment nor constitutional authority, just the consent of all the parties presumably concerned. (Matter of Simonson v. Cahn, supra at page 3, 313 N.Y.S.2d 97, 261 N.E.2d 246). In that case, the Court of Appeals (per Chief Judge Fuld) stated:

" '(W)aiver (of indictment) is not permitted where a question of jurisdiction or fundamental rights is involved and public injury would result. A privilege, merely personal, may be waived; a public fundamental right, the exercise of which is requisite to jurisdiction to try, condemn and punish, is binding upon the individual and cannot be disregarded by him. The public policy of the State as expressed in the Constitution, takes precedence over his personal wish or convenience.' " (Emphasis supplied). (Matter of Simonson v. Cahn, supra, at pages 3-4, 313 N.Y.S.2d 97, 261 N.E.2d 246).

Prior to 1974, therefore, prosecution of "... a capital or otherwise infamous crime ..." could be accomplished only through indictment by a Grand Jury.

Effective January 1, 1974, the State Constitution (Art. I, Sect. 6) was amended to allow for a waiver of prosecution by indictment; enabling legislation (CPL Art. 195) was subsequently enacted. Article I, Section 6 was amended to read in pertinent part as follows:

"No person shall be held to answer for a capital or otherwise infamous crime ... unless on indictment of a grand jury, except that a person held for the action of a grand jury upon a charge for such an offense other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in Criminal Procedure Law Article 195 was then enacted "... to implement ... the waiver of indictment constitutional amendment ...." (Bellacosa, Practice Commentary to McKinney's CPL Art. 195, at page 133). For the purposes of the instant case, the crucial statutory provision is CPL 195.20, which reads in pertinent part as follows:

the presence of his counsel." (Emphasis supplied).

"A waiver of indictment shall be evidenced by a written instrument, which shall contain ... the name, date and approximate time and place of each offense to be charged in the superior court information to be filed by the district attorney pursuant to section 195.40. The offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40." (Emphasis supplied).

The issue raised by the instant case is one of apparent first impression. It can be resolved only by recourse to the general principles of statutory construction, as applied to CPL Art. 195 in general and to CPL 195.20 in particular. Through the application of those general principles, and for the several reasons set forth below, this Court interprets the statute to mean that a Superior Court Information

"... must include any offense for which the defendant was held for action of a Grand Jury and may also include any other offense or offenses properly joinable therewith ...."

LEGISLATIVE INTENT

"The primary consideration of the Courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature." (McKinney's Statutes, Sect. 92(a), at page 176). That can ordinarily be determined from the words of the statute, by reading the statute literally and giving to its terms "their usual, ordinary, and commonly accepted meaning." (McKinney's Statutes, Sect. 94).

"Where, however, after a reading of the statute, its meaning is still not clear, courts must search for legislative intent in the purpose of the enactment, and from such facts and through such rules as may, in connection with the language, legitimately reveal it. Thus it is said that the quest for legislative intent requires the courts to pierce all disguises of verbal expression, and go straight to the purpose of the bill, aided by formulated rules when they serve, but bound by no rules that hinder discovery of such intent. All available aids to statutory construction should be explored in determining the meaning and intendment of statutes, ...." (McKinney's Statutes, Sect. 92(b), at pages 183-184). (Emphasis supplied).

There can be no doubt that the wording of Criminal Procedure Law Art. 195 (and particularly the wording of CPL § 195.20) has caused a good deal of difficulty and confusion. This Court has heard interpretations of what a Superior Court Information may or must contain that range from "anything the District Attorney chooses to put in it" to "only that which was set forth in the original felony complaint." This Court must therefore seek to find the "purpose of the bill."

The overriding purpose of the Legislature in enacting CPL Art. 195 is clear enough:

"The basic purpose of this bill, and the constitutional amendment it implements is to allow a defendant who wishes to go directly to trial without waiting for a grand jury to hand up an indictment to do so. The waiver of indictment procedure will permit such a defendant to obtain a speedier trial and will save time and expense expended in unnecessary grand jury proceedings. The waiver of indictment should also reduce the backlog of cases presently awaiting grand jury action and reduce the time that defendants who want their cases presented to a grand jury must wait before an indictment is handed down. With fewer matters, grand juries should also be able to give more careful consideration to those cases which require their attention."

(McKinney's Session Laws of New York, 1974, Vol. 2 at page 2007. See also McKinney's Session Laws of New York, 1974, Vol. 2 at page 2095).

That statement of purpose does not import, nor even imply, that the Legislature intended to also make such substantive changes in the criminal law as:

providing a means by which the plea bargaining restrictions of CPL 220.10 might be avoided (See Bellacosa, Practice Commentary to McKinney's CPL Art. 195, at page 133); or

excusing the District Attorney from his obligation, mandated by CPL 190.55(2)(a), to "prosecute" a defendant for those felonies for which he has been held for Grand Jury action.

(See generally, McKinney's Statutes, Sects 221 et seq.--Statutes in Pari Materia). The purpose of the Legislature was to allow for the elimination of one procedural step in the progress of a prosecution from the local criminal court to the superior court. The intention was never to work wholesale changes in other parts of the Criminal Procedure Law. The reading this Court has accorded to the statute accomplishes the Legislature's purpose without working substantial and unintended changes in other portions of the law. (Cf. Bellacosa, Practice Commentary to McKinney's CPL Art. 195, at page 133).

CONSTRUCTION OF THE STATUTE'S TERMS

It is this Court's conclusion that the terms of CPL § 195.20 must be strictly construed. Since the effective date of the constitutional amendment and the enactment of the enabling legislation, the Court of Appeals, even if only through footnote, has reaffirmed (1) that prosecution by indictment (and its waiver) are strictly matters of New York constitutional law, and (2) that prosecution by indictment of a Grand Jury remains a "fundamental public right," to which there is now but a "single exception." (People v. Iannone, 45 N.Y.2d 589, 593, N.3 and 4, 412 N.Y.S.2d 110, 384 N.E.2d 656. See also People v. Smith, 86 Misc.2d 1032, 1034, 383 N.Y.S.2d 860). This Court deems that a strong signal from the Court of Appeals that Courts considering...