People v. Jackson

• Citation: 266 N.Y.S.2d 481,48 Misc.2d 1026
• Parties: PEOPLE of the State of New York, Plaintiff, v. Willie JACKSON, Jr., Defendant.
• Decision Date: 23 December 1965
• Court: United States State Supreme Court (New York)

Page 481

266 N.Y.S.2d 481

48 Misc.2d 1026

PEOPLE of the State of New York, Plaintiff, v. Willie JACKSON, Jr., Defendant.

Supreme Court, Special and Trial Term, New York County, Part XXX.

dec. 23, 1965.

Frank S. Hogan, New York City, by Alvin Geller, Asst. Dist. Atty., for the People.

Anthony F. Marra, New York City, Rae Selwyn, New York City, of counsel, for defendant.

ABRAHAM N. GELLER, Justice.

Upon his arraignment on the indictment this defendant orally moved through counsel, relying on dictum in People v. Tornetto, 16 N.Y.2d 902, 264 N.Y.S.2d 557, 212 N.E.2d 63, to grant him the preliminary hearing of which he was allegedly deprived upon his arraignment before the committing magistrate in the Criminal Court of the City of New York. Several other defendants have indicated on their arraignment in this court that they intend to press similar motions. It has been suggested to them and their counsel that they await the decision on this first application and, if thereafter advised to proceed, to do so upon written papers. This motion has been spread on the record.

In Tornetto defendant, who had pleaded guilty, argued upon appeal that his plea should be set aside because his demand for a preliminary hearing had been refused and that the fact that an indictment had subsequently been returned did not preclude him from seeking relief for the denial of this statutory right. The decision of the Court of Appeals reads:

'Judgment affirmed. (See People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 152 N.Y.S.2d 1, 134 N.E.2d 818; cf. People v. Nicholson, 11 N.Y.2d 1067, 230 N.Y.S.2d 220, 184 N.E.2d 190). However, we call attention to section 190 of the Code of Criminal Procedure which requires the court to examine the case unless the defendant waives such examination.'

Hirschberg held that a grand jury has the right to indict 'regardless of what had occurred before the magistrate and regardless of whether the magistrate had held or discharged the prisoner or still had the matter pending, or of whether there had ever been such a preliminary hearing' (1 N.Y.2d p. 261, 152 N.Y.S.2d p. 2, 134 N.E.2d p. 819) and, therefore no defect in the proceeding before the committing magistrate could affect the validity of the proceedings following an indictment. Thus, in view of the indictment as well as the waiver resulting from the plea of guilty (cf. People v. Nicholson, supra), the judgment was affirmed. The added statement, calling attention to section 190, was quite evidently directed as an admonition to committing magistrates, whose duty it is under that section to examine the case by means of a preliminary hearing unless defendant waives such examination.

The question now raised on this application is whether a defendant, who did not waive such examination before the magistrate, has the right to demand it after indictment and prior to trial. It appears from the record of the proceedings in the Criminal Court that this defendant did not waive the examination.

The answer depends upon the purpose of a preliminary hearing and whether or not such purpose is affected by the finding of an indictment. Its purpose is to safeguard a person charged with a felony against being improperly committed on the basis solely of some charging complaint or affidavit, requiring, unless it be waived, a hearing before a magistrate to determine whether probable cause exists for holding him until the matter has been presented and passed upon by the grand jury. If, prior to such hearing, a grand jury indicts, that purpose has been accomplished, since a grand jury may indict only upon legal evidence sufficient in its judgment to warrant a conviction by a trial jury. The safeguard of a preliminary hearing is provided only in the case of a preliminary arrest and is not provided when an indictment has been found in the first instance, the judgment of the grand jury that a prima facie case has been presented being the safeguard required by the constitution for 'infamous' crimes. It may be noted, parenthetically, that in a fairly substantial number of cases the grand jury's deliberations result in a dismissal of the charge.

Once a defendant has been indicted, whether it be in the first instance or after a preliminary arrest, the danger of imprisonment on an unfounded charge without probable cause no longer exists. Once a defendant has been...