People v. Prior

• Decision Date: 19 July 1945
• Citation: 294 N.Y. 405,63 N.E.2d 8
• Parties: PEOPLE v. PRIOR. SAME v. SMITH (two cases). SAME v. WILLIGAN et al. SAME v. COLLINS.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 405

63 N.E.2d 8

PEOPLE

v.PRIOR.

SAME

v.SMITH (two cases).

SAME

v.WILLIGAN et al.

SAME

v.COLLINS.

Court of Appeals of New York.

July 19, 1945.

Appeals from Supreme Court, Appellate Division, Third Department.

Prosecution by the People against Daniel H. Prior, against Michael T. Smith (two cases), against Daniel Willigan and another, and against James S. Collins. From an order of the Appellate Division of the Supreme Court entered March 8, 1945, 268 App.Div. 717, 54 N.Y.S.2d 150, which reversed (1) an order of the Supreme Court at Special Term (Murray, J.), 183 Misc. 430, 52 N.Y.S.2d 174, (a) dismissing an indictment returned at an Extraordinary Term of the Supreme Court which charged defendant in the first above-entitled action with the crime of failing to pay income taxes and to file income tax returns in violation of article 16 of the Tax Law, (b) dismissing the action, and (c) directing defendant's discharge from custody; (2) from two orders of the same Special Term (Murray, J.), 183 Misc. 430, 52 N.Y.S.2d 174, (a) dismissing two separate indictments against defendant in the second above-entitled action returned at an Extraordinary Term of Supreme Court charging the crime of conspiracy and of being an accessory to the felony of attempting to commit the crime of false registration, (b) dismissing the action, (c) directing discharge of said defendant from custody, and (d) directing exoneration of bail furnished by said defendant; (3) from an order of same Special Term (Murray, J.), 183 Misc. 430, 52 N.Y.S.2d 174, charging defendants in the third above-entitled action with crime of contriving a lottery, (b) dismissing the action as against said defendants, (c) directing their discharge from custody, and (d) directing exoneration of bail furnished by them; (4) from an order of the same Special Term (Murray, J.), 183 Misc. 430, 52 N.Y.S.2d 174, (a) dismissing an indictment returned at an Extraordinary Term of the Supreme Court charging defendant in the fourth above-entitled action with the crime of perjury in the first degree, (b) dismissing the action, (c) directing discharge of said defendant from custody, and (d) directing exoneration of bail furnished by said defendant and reinstated the respective indictments, defendants appeal by permission of an Associate Judge of the Court of Appeals.

Orders affirmed.

DESMOND, LOUGHRAN, and DYE, JJ., dissenting in part. Daniel H. Prior, of Albany, for Michael T. Smith, Daniel Willigan, and John Willigan, appellants.

Eugene G. Hess, of Albany, for Daniel H. Prior, appellant.

Reuben H. Kohn, of Albany, for James S. Collins, appellant.

Nathaniel L. Goldstein, Atty. Gen. (Stanley H. Fuld, George P. Monaghan, Harris B. Steinberg, and Herbert Stern, all of New York City, of counsel), for respondent.

LEWIS, Judge.

In these five criminal actions a single question is common to each appeal Was the Grand Jury legally constituted which returned indictments against the appellants?

That question was answered in the negative at Special Term where an order issued dismissing each indictment. Upon appeal by the People to the Appellate Division the order in each instance was reversed and the indictment reinstated, one justice dissenting.

As we consider whether the process was legally conducted by which the members of the Grand Jury were selected, we look to the record to ascertain the scope of the inquiry in which they were authorized to act. From that source we learn that the Grand Jury was impaneled at an Extra-ordinary Special and Trial Term of the Supreme Court convened by the Governor to be held in the County of Albany on December 13, 1943. Although the Extraorinary Term was originally appointed to inquire into election frauds, a supplemental order by the Governor extended the inquiry to include crime and corruption of public officers in Albany County or any subdivision thereof, crimes affecting the administration of justice, the collection of public revenues and crimes committed by persons and corporations having business dealings with Albany County or its subdivisions. The record makes it clear that within the broad field of inquiry thus established were ramifications which might reasonably invite investigation of a wide variety of matters involving acts by individuals connected with local government and transactions had between public officials and business interests.

The appellants do not assert that the Grand Jury as finally impaneled included members who were legally disqualified. The attack is upon the method of selection with special reference to rulings by the Trial Justice on the voir dire examination by which prospective jurors were excluded from service.

The statutes require that a grand jury shall consist of not less than sixteen and not more than twenty-three persons who shall be ‘chosen by lot’ from ‘citizens of the county.’ Code of Crim. Proc., ss 223, 224. The availability of any citizen for such jury service may be challenged if it appears ‘that a state of mind exists on his part in reference to the case or to either party, which satisfies the court, in the exercise of sound discretion that he cannot act impartially and without prejudice to the substantial rights of the party challenging.’ Code of Crim.Proc. s 239, subd. (6). The ‘state of mind’ to which the statute refers is ‘actual bias.’ Code Crim.Proc. s 376, subd. (2).

The record before us does not support the appellants' assertion that the grand jury was not ‘chosen by lot.’ That statutory requirement, Code Crim.Proc. s 223, is satisfied if the grand jury ultimately selected is comprised of the first twenty-three persons drawn by chance whom the Trial Justice, in the exercise of a sound discretion, has determined to be impartial, free from actual bias in reference to the inquiry, and to posses the statutory qualifications. It is not denied that the names of the 288 persons, from whom the final panel of twenty-three was selected, were drawn by chance according to law from listed names in the grand jury box; nor is it denied that as each venireman was called for voir dire examination his name was drawn by chance from an appropriate ballot box.

As to rulings by the Trial Justice upon the voir dire examination we find no evidence that talesmen were excused as a result of a sustained, systematic effort by the court arbitrarily to exclude from the final panel persons of a particular classification political or otherwise. Indeed, the suggestion that political affiliation exerted a decisive influence in the rejection of prospective grand jurors is disporved by the fact that of the twenty-three talesmen chosen to comprise the final panel nine were enrolled in the Democratic party, six in the Republican party and eight were not enrolled in any party. Nor do we think that either prejudice or arbitrary exclusion is proven by the circumstance that the number of grand jury members enrolled as Democrats is not mathematically in the same ratio as the percentage of that party's enrollment in the county of Albany.

When, as in the present case, the scope of inquiry by a grand jury is broad and may lead into official, business or political relationships involving numerous individuals, a Trial Justice, in the exercise of a ‘sound discretion’ to determine the availability of a prospective juror, must of necessity consider many factors which might produce a ‘state of mind’ which is prejudiced for or against the subject of inquiry. There are many instances cited by the appellants as evidence of legal impropreity when the Trial Justice rejected prospective jurors who, after admitting friendship or other relationship with those whose conduct might come within range of the inquiry, stated under oath that they could serve impartially. We cannot say that in any one of those instances there was no plausible ground for the decision by the Trial Justice. In the circumstances with which he had to deal he was not required to accept a prospective juror's statement that he could act impartially. Balbo v. People, 80 N.Y. 484, 495. Knowing, as we do, that the causes operating to produce bias are of a nature which it is impossible strictly or accurately to define, we cannot rule as matter of law that the Trial Justice erred in those instances. See Butler v. Glens Falls, S. H. & Ft. E. St. R. R. Co., 121 N.Y. 112, 118, 24 N.E. 187, 190;People v. McGonegal, 136 N.Y. 62, 71, 32 N.E. 616, 619.

Nor can we say that the appellants' rights were prejudiced when the Deputy Attorney-General representing the People was permitted, prior to the voir dire examination, to submit to each talesman a printed list containing the names of 330 individuals with whom any acquaintanceship by the talesmen would later be the subject of oral examination. From the scope of the inquiry upon which the Grand Jury was about to enter it was reasonably to be expected that the investigation would concern itself with governmental, political, business and personal relationship in which many individuals would be involved as witnesses or otherwise. The inspection by prospective jurors of such a list and their subsequent oral examination as to the natureof the acquaintanceship they had, if any, which the persons listed, was procedure reasonably calculated to storten the voir dire examination and thus to facilitate the inquiry. That purpose, as the record indicates, was accomplished without prejudice to the rights of those who might be affected by any action to be taken by the grand jury.

We have already stated that we find in the record no evidence of a sustained, systematic effort by the Trial Justice arbitrarily to exclude persons of a particular classification from the final panel of grand jurors. Additionally, in connection with that conclusion, it may be said that if, during the twelve days while the voir dire examination was in progress, the Trial Justice erred in the exclusion of qualifie talesmen from service, such exclusion affords no constitutional...