People v. Jackson

• Decision Date: 30 December 1966
• Citation: 223 N.E.2d 790,18 N.Y.2d 516,277 N.Y.S.2d 263
• Parties: , 223 N.E.2d 790 The PEOPLE of the State of New York, Respondent, v. Carl Otis JACKSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 263

277 N.Y.S.2d 263

18 N.Y.2d 516, 223 N.E.2d 790

The PEOPLE of the State of New York, Respondent, v. Carl Otis JACKSON, Appellant.

Court of Appeals of New York.

Dec. 30, 1966.

Milton M. Witchel and Hubert T. Delany, New York City, for appellant.

Isidore Dollinger, Dist. Atty. (Walter E. Dillon, New York City, of counsel), for respondent.

BURKE, Judge.

The only issue raised on this appeal goes to the sufficiency of the indictment handed up by the Grand Jury, upon which the defendant was tried and convicted.

Late in the evening of March 13, 1964, one Warwick Perry was found unconscious at the bottom of a flight of steps in front of 835 Home Street, Bronx. He died two days later as a result of a skull fracture sustained in his apparent fall down said flight of steps. It was the prosecution's contention that Jackson, acting in concert with Garland Harris (who subsequently pleaded guilty to attempted second degree manslaughter), pushed the deceased down this flight of steps during the course of a robbery upon his person. It is not questioned here that the jury had sufficient evidence at the trial of Jackson to convict him of felony murder, especially in light of the testimony given by the accomplice Harris. The only question, as stated above, involves the sufficiency of the indictment.

Prior to trial Jackson unsuccessfully moved to inspect the minutes of the Grand Jury and to dismiss the indictment as founded upon insufficient evidence. It is well settled that the Court of Appeals is powerless to review the denial of a motion to inspect the Grand Jury minutes, a determination made completely within the discretion of the Trial Judge. (People v. Howell, 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867 (1958); People v. Randall, 9 N.Y.2d 413, 424, 214 N.Y.S.2d 417, 426, 174 N.E.2d 507, 514 (1961); cf. People v. Rodriguez, 11 N.Y.2d 279, 288, 229 N.Y.S.2d 353, 358, 183 N.E.2d 651, 654 (1962).) The cases show, however, that this court has, and will exercise, the power to review the denial of a motion to dismiss the indictment based upon the insufficiency of the evidence presented to the Grand Jury. (People v. Howell, supra, 3 N.Y.2d p. 677, 171 N.Y.S.2d at 804, 148 N.E.2d at 869; People v. Peetz, 7 N.Y.2d 147, 196 N.Y.S.2d 83, 164 N.E.2d 384 (1959); People v. Nitzberg, 289 N.Y. 523, 47 N.E.2d 37, 145 A.L.R. 482 (1943); People v. Sweeney, 213 N.Y. 37, 106 N.E. 913 (1914).) There is no doubt that the indictment in question here must be dismissed because it was based upon evidence clearly insufficient to sustain a conviction if uncontroverted. (Code Crim.Pro., § 251.)

The indictment was in common-law form, and Jackson was convicted of felony murder. In the Appellate Division, the People argued that there was sufficient evidence before the Grand Jury to warrant the indictment of the defendant for felony murder: 'When the Grand Jury heard the testimony of Harris (the accomplice) and that of Ruth Williams, it obviously had sufficient evidence to indict.' This statement was factually incorrect, because Harris did not testify before the Grand Jury. On the contrary, the District Attorney subsequently admitted in a letter to the Appellate Division that the People had only submitted to the Grand Jury a statement taken from Harris shortly after his arrest which incriminated both Jackson and himself, a confession which Harris was later to repudiate as coerced. This confession, clearly incompetent as to Jackson because of its hearsay nature, was inadmissible against him before the Grand Jury. (Code Crim.Pro., § 249; People v. Rodriguez, 28 Misc.2d 310, 215 N.Y.S.2d 22 (Orleans County Ct., 1961).) Under these circumstances, the People now contend that the evidence presented to the Grand Jury could have sustained an indictment for premeditated murder, not merely felony murder (since the only reference to the felony (robbery or attempted robbery) was contained in the inadmissible statement of Harris). All the proof, however, is to the contrary.

It is conceded that the sufficiency of the indictment is based solely on the testimony of one eyewitness, Ruth Williams, whose testimony before the Grand Jury was substantially identical to that given at the trial. The incriminating remarks contained in the Grand Jury minutes are but three: (1) 'I * * * told him tell Dino (Jackson) to leave the old man alone'; (2) '(Jackson) pushed him (the decedent) and kicked him down the steps and jumped on him', and (3) 'I saw him push him, kick and jump down on him.' It is argued that the Grand Jury could reasonably conclude that these statements, coupled with evidence of the victim's death, 'if unexplained or uncontradicted, (would) warrant a conviction by the trial jury' of common-law murder.

While intent to kill...