People v. John

• Decision Date: 16 November 1973
• Citation: 76 Misc.2d 582,350 N.Y.S.2d 44
• Parties: PEOPLE of the State of New York v. Armstrong JOHN et al., Defendants.
• Court: New York Supreme Court

Page 44

350 N.Y.S.2d 44

76 Misc.2d 582

PEOPLE of the State of New York v. Armstrong JOHN et al., Defendants.

Supreme Court, Additional Special and Trial Term, Erie County.

Nov. 16, 1973.

[76 Misc.2d 583] Robert E. Fischer, Deputy Atty. Gen. (Maxwell B. Spoont, Sp. Asst. Atty. Gen., of counsel), for people.

Donald L. Jelinek, for defendants Armstrong John, Milton Jones, John Wallace, James Brown, Steve Garrett, Jose Quinones, Chris Reed, Bernard Shipman, William Ortiz, Verdel Turner, Ronald Lyons, Raymond Sumpter, Michael Phillips, Ernest Bixby, Willie Stokes, Ruiz Quintana, John Mitchell, Robert Gill, Thomas Hagen, Joseph Little, Christopher Santiago, William Wesley, Otis McGaughy, William Johnson, Herbert Dean, Gregory Felder, Raymond Jackson, William Wilson, Calvin Hudson, Richard Wright, Alfred Plummer and Vernon LaFranque.

Thomas C. Hartzell, Rochester, for defendant Robert Johnson.

Sean D. M. Hill, Buffalo, for defendant Alphonso Ross.

Thomas S. Labin, Buffalo, for defendant Carl Jones.

Leonard Klaif, Buffalo, for defendant James Moore.

James L. Kemp, Rochester, for defendant Willy Smith.

Richard Bilello, Frank Smith, Bernard Stroble, pro se.

Roger Champen, Richard Clark, pro se (failed to appear).

DECISION

CHARLES J. GAUGHAN, Justice.

The above captioned defendants have moved to dismiss the above indictments upon numerous grounds. They raise more than 35 points. Their claims, however, can be grouped into six categories. They claim (1) that the Grand Jury which returned the indictments was improperly formed and that it acted improperly, (2) that the indictments and the counts thereof are defective, (3) that the defendants have been denied right to a speedy trial, (4) that the prosecutions are barred by reason of double jeopardy, (5) that evidence before the Grand Jury was not sufficient to sustain the indictments, and (6) that regardless of guilt or innocence of the defendants, the indictments should be dismissed in the interests of justice. The defendants also urge that evidentiary hearings be held on these motions to determine (1) whether the Grand Jury improperly refused to hear evidence relating to alleged criminal conduct on the part of persons other than the defendants, and (2) whether there was sufficient evidence before the Grand Jury to support the indictments, and further, whether witnesses were improperly coerced to testify. Their voluminous moving papers, affidavits, and briefs attest to the zeal of their attorneys in raising and litigating every possible basis for dismissal of the indictments before trial.

The Court has studied these briefs, the affidavits and exhibits submitted by the parties and has examined the various authorities cited therein. The Court has also read all of the Grand Jury testimony, consisting of several thousand pages, covering indictments 1 through 37 and the Grand Jury proceedings up to and including August 31, 1973. Based upon the foregoing and upon the arguments of Counsel and the Criminal Procedure Law, it makes the following decision:

AS TO THE GRAND JURY

The defendants do not claim that the process by which prospective grand jurors were selected was designedly fraught with impropriety. On the contrary, they admit that the jurors were selected in conformity with the applicable statutes. They do claim that the statutes are unconstitutional in that they disqualify felons and persons under 21 from service, permit women to exempt themselves, set up residency requirements, and result, in this case, in a Grand Jury whose members are not mathematically proportionate in sex, race and age to the population of Wyoming County.

The New York Court of Appeals, the United States Supreme Court and the United States Court of Appeals, however, have already decided this argument against the defendants. People v. Chestnut, 26 N.Y.2d 481, 311 N.Y.S.2d 853, 260 N.E.2d 501; Carter v. Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549; Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536; United States v. Ross, 468 F.2d 1213, cert. denied 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188.

The Court has examined the transcript of the proceedings of November 29, 1971, when the Grand Jury was drawn. Although there is no specific provision in the CPL Article 190 therefore, Justice Ball questioned the prospective jurors with regard to their knowledge of the matters concerning the Attica situation through conversations, news reports or experience, their familiarity with the persons involved, and as to their bias or prejudice. He allowed the prosecutor to join in the questioning even though the CPL makes no provision for such practice. The Court does not find that the procedure used was prejudicial to the rights of the defendants. The record supports a finding that a sincere effort was made by the Court and prosecutor to empanel a grand jury that was not infected with bias or prejudice to anyone subject to its scrutiny. The defendants have otherwise failed to demonstrate facts indicating such prejudice. Regardless of the foregoing, the Court is of the opinion that it lacks the jurisdiction to judicially review the acts of Justice Ball in drawing the Grand Jury and the various rulings made in response to applications of counsel purporting to represent prospective defendants.

The defendants further claim that the indictments must be dismissed by reason of the principle of selective enforcement as enunciated in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, and as interpreted in New York by People v. Utica Daw's, 16 A.D.2d 12, 225 N.Y.S.2d 128. They allege, through their counsel, that criminal acts were committed by agents or officers of the State during and after the retaking of the facilities at Attica in September 1971, and that since no indictments have been returned against persons other than Attica inmates, the Attica defendants are being subjected to discriminatory or selective enforcement of the law.

The principle of selective enforcement, however, is not as broad as the defendants would have us believe. At pages 17 and 18, 225 N.Y.S.2d at page 133 of the Utica Daw's decision the Court stated that 'The question is rather whether in a community in which there is General disregard of a particualr law with the acquiescence of the public authorities, the authorities should be allowed Sporadically to select a single defendant or a single class of defendants for prosecution because of personal animosity or for some other illegitimate reason' (emphasis supplied). After discussing situations in which selective enforcement is not impermissible, the Daw's Court further stated that 'It is only when the selective enforcement is Designed to discriminate against the persons prosecuted without any intention to follow it up by General enforcement against others' (emphasis supplied) (ibid, at page 21, 225 N.Y.S.2d at p. 136). It is evident that the evil to be avoid is the malicious and sporadic application of a Generally disregarded law. It is also evident to the Court that the crimes charged in the indictments, that is, kidnapping, coercion, assault, etc., are not generally disregarded anywhere in the State of New York.

Assuming, for the sake of argument, that criminal acts were in fact committed during and after the retaking of the facilities at Attica by employees or agents of the State, defendants also assume without supporting or substantiating facts that the Grand Jury (1) wrongfully did not inquire into the possibility of official misconduct, or (2) wrongfully refused to inquire into the possibility of official misconduct, or (3) having heard testimony concerning official misconduct sufficient to support an indictment have wrongfully refused to indict. In one of their briefs the defendants acknowledge the principle that there is a strong presumption of regularity that attaches to Grand Jury proceeding, and that it has been held that this presumption cannot be overcome by surmise, allegations based on information and belief, or by suppositions or conclusions of law. People v. Nixon, 33 A.D.2d 403, 309 N.Y.S.2d 236. On the other hand, they, as noted above, urge surmise and supposition upon the Court and ask it to conclude that the Grand Jury corruptly acted or corruptly failed to act. The Court cannot make such assumption, particularly when the defendants refuse to submit whatever evidence they may have concerning official misconduct to the Grand Jury. The Court can only presume that the Grand Jury, as long as it remains sitting, shall take and act upon evidence in conformity with its oath and obligation.

The Court, having concluded from all of the material before it that the defendants have failed to make out a case of unlawful selective enforcement, nevertheless, and in the exercise of its discretion and in the interests of justice, examined the Grand Jury minutes in this context. After completing the entire text, it failed to find any evidence indicating that the Grand Jury violated its oath and duties in any manner. They Grand Jury, with the assistance of the prosecutor, conscientiously inquired into All aspects of the Attica uprising and its aftermath and returned indictments in those cases for which it had legally sufficient evidence.

The Grand Jury still sits and is ready to hear any further evidence as to any crimes committed by any person during the time in question. If the defendants have any specific evidence as to any official misconduct, they should avail themselves of the opportunity to present such evidence to the Grand Jury.

AS TO THE INDICTMENTS AND COUNTS

The defendants complain that the indictments contain counts which are multiplicitous, redundant and duplicitous.

The Grand Jury, by charging def...