People v. Rao

CourtNew York Supreme Court Appellate Division
Writing for the CourtSHAPIRO; TITONE; Turning now to the merits of the dismissals herein, examination of the Grand Jury minutes at bar clearly demonstrates that the Special Prosecutor's office did not even pay lip-service to the principles upon which the Grand Jury was f
PartiesThe PEOPLE, etc., Appellant, v. Paul P. RAO et al., Respondents.
Decision Date20 July 1976

Page 441

386 N.Y.S.2d 441
53 A.D.2d 904
The PEOPLE, etc., Appellant,
v.
Paul P. RAO et al., Respondents.
Supreme Court, Appellate Division, Second Department.
July 20, 1976.

Page 442

Maurice H. Nadjari, New York City (Bennett L. Gershman, New York City, of counsel), for appellant.

Roy M. Cohn and Thomas A. Bolan, New York City (Daniel J. Driscoll, New York City, with them on the brief), for respondents Rao.

Herald Price Fahringer and Paul J. Cambria, Jr., Buffalo (Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, of counsel), for respondent Nigrone.

Before LATHAM, Acting P.J., and COHALAN, RABIN, SHAPIRO and TITONE, JJ.

MEMORANDUM BY THE COURT

Appeal by the People from an order of the Extraordinary Special and Trial Term of the Supreme Court, Kings County, dated December 8, 1975, which dismissed three indictments (one as to each defendant) charging defendants with various counts of perjury in the first degree.

Order reversed, on the law and indictments reinstated; matter remitted to the Justice presiding at the Extraordinary Special and Trial Term for a De novo determination of the pending motion in accordance herewith.

In May, 1974 a Grand Jury empaneled for an Extraordinary Special and Trial Term of the Supreme Court indicted defendants Paul P. Rao, Paul P. Rao, Jr. and Salvatore Nigrone, charging them with the commission of various counts of perjury in the first degree. Thereafter, the Raos moved in this court for the dismissal of their respective indictments and Nigrone separately brought a proceeding pursuant to CPLR article 78 in the nature of prohibition, in which he also sought dismissal of his indictment. Permission for the making of such motions by the Raos and Nigrone was granted by a Justice of this court pursuant to subdivision 2 of section 149 of the Judiciary Law. Dismissal of the indictments was sought primarily upon the ground of prosecutorial misconduct and in the interest of justice, and was premised upon the Special Prosecutor's conceded actions in setting up a simulated robbery and causing fictitious testimony to be presented under oath before a regular Grand Jury, which returned a robbery indictment in the fabricated criminal matter (the so-called Vitale case). This court unanimously condemned the Special Prosecutor's misconduct but, with two Justices dissenting, upheld the perjury indictments handed down by the Special Extraordinary Grand Jury. Neither Rao challenged the legal sufficiency of the evidence before the Extraordinary Grand Jury, and so we expressed no view with respect thereto. Defendant Nigrone did raise such an issue in connection with his claim that his

Page 443

Grand Jury testimony was not, in essence, perjurious. (Specifically, Nigrone argued that although he had denied having asked defendant Rao, Jr. whether the 'hook was in', he did tell the Grand Jury, in substance, that he had asked Rao, Jr. whether he had done anything wrong in connection with the Vitale case, which testimony allegedly amounted to the same thing.) We found the evidence sufficient to warrant denial of his dismissal motion. Defendant Nigrone appealed to the Court of Appeals, which affirmed the dismissal of his article 78 proceeding on the ground such proceeding was unavailable to resolve the prosecutorial misconduct dispute, which related to antecedent facts, collateral to and outside of the pending criminal action. The Court of Appeals also dismissed the appeal from our denial of his motion to dismiss, finding that determination not to be separately appealable (see Matter of Nigrone v. Murtagh, 46 A.D.2d 343, 362 N.Y.S.2d 513, affd. 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d 45).

Thereafter, and in May, 1975, defendant Nigrone made an omnibus motion at the Extraordinary Special and Trial Term. The relief sought included, Inter alia, a bill of particulars; discovery and inspection of numerous items, with a reservation of rights to move for further relief once those items had been furnished; and dismissal of the indictment for defects on its face, defects in the Grand Jury proceeding, legally insufficient evidence, and in the interest of justice. A motion for inspection of the Grand Jury minutes accompanied the motion to dismiss for legal insufficiency, as required by CPL 210.30 (subd. 1). In addition, defendant Nigrone again challenged the conduct of the Special Prosecutor in setting up the fake Vitale robbery case, which prosecutorial misconduct claim formed the basis of his request for dismissal of the indictment in the interest of justice. The Raos made no motions at Extraordinary Term, pursuing instead a suit in Federal court to enjoin their prosecution.

The Special Prosecutor's time to answer Nigrone's omnibus motion was extended, by agreement of the respective counsel, pending the determination of the Raos' Federal suit. On September 30, 1975 that suit was dismissed in the District Court for the Southern District of New York. When the Raos appealed to the Second Circuit Court of Appeals, the Special Prosecutor's time to answer was again extended by agreement of counsel. It appears that the justice presiding at said Extraordinary Term, the late Mr. Justice Murtagh, was not a party to and had never approved the agreements extending the prosecutor's time to answer.

On November 24, 1975, after being notified of the further extension of time agreed upon, Mr. Justice Murtagh granted so much of defendant Nigrone's omnibus motion as sought inspection of the Grand Jury minutes, and proceeded to consider the validity of the evidence before the Grand Jury. The Special Prosecutor was notified of this by Justice Murtagh and, allegedly, was given 30 days in which to submit an answer. However, on December 2, 1975, Mr. Justice Murtagh handed down his decision dismissing not only the indictment against Nigrone, but those against the defendants Rao as well.

Mr. Justice Murtagh's decision indicates that he found the evidence presented to the Grand Jury to be violative of the rules of evidence and highly prejudicial to the defendants. More particularly, he cited as incompetent or violative of the rules of evidence the fact that the undercover agents testifying against the defendants herein gave only 'yes' or 'no' answers to leading questions by the Assistant Special Prosecutor, and were permitted to give opinion testimony as to the truth or falsity of the defendants' alleged false statements; that the tape recordings of the conversations to which the witnesses testified were not properly authenticated and the transcripts thereof were permitted to be used by the Grant Jury without first complying with the procedures set forth in People v. Feld, 305 N.Y. 322, 113 N.E.2d 440; and that the Assistant Special Prosecutor read transcripts to the Grand Jury on two occasions without permitting it to hear the tape recording, ascribed the voices on the tapes

Page 444

to one or another of the defendants on several occasions, and failed to authenticate minutes of an alleged proceeding in 'Brooklyn Criminal Court'. The decision concludes: 'The Court on its own motion and in the interests of justice is constrained, pursuant to Section 210.40 of the Criminal Procedure Law, to dismiss all counts of the three indictments.'

The dismissal of the indictments 'in the interests of justice' pursuant to CPL 210.40 was improper. The motion papers and Mr. Justice Murtagh's decision demonstrate, beyond peradventure, that these indictments were dismissed not 'in furtherance of justice' pursuant to CPL 210.40, which empowers the court to order termination of a defendant's prosecution for reasons having little or nothing to do with the legal or factual merits of the charge or the guilt or innocence of the defendant (see People v. Quill, 11 Misc.2d 512, 513, 177 N.Y.S.2d 380, 382), but rather for an allegedly defective Grand Jury proceeding, pursuant to CPL 210.35 (subd. 5), or alleged legal insufficiency, pursuant to CPL 210.30. Although the former--interests of justice--disposition may be made Sua sponte (see CPL 210.40, subd. 2), the latter dispositions may not (see CPL 210.45, subd. 1). A motion to dismiss, in writing and upon reasonable notice to the People, is necessary in such cases (see People v. Pichkur, 52 A.D.2d 852, 382 N.Y.S.2d 565 (2d Dept., 1976); People v. Trottie, 47 A.D.2d 751, 364 N.Y.S.2d 563). No such motion, or even one to simply inspect the Grand Jury minutes, was ever made by the defendants Rao. Furthermore, under the circumstances presented, including the consent of defendant Nigrone's counsel to extensions of the Special Prosecutor's time to answer the voluminous motion, the court's apparent failure to honor the 30-day deadline it subsequently set for submission of an answer unfairly deprived the prosecutor of his right to answer Nigrone's motion

Finally, even assuming, Arguendo, that the dismissal of the indictments was premised solely upon the interest of justice, the court erred in not giving fair notice of its intentions to the parties and holding a hearing at which all pertinent considerations might have been explored (see People v. Clayton, 41 A.D.2d 204, 207--208, 342 N.Y.S.2d 106, 109).

The order must, therefore, be reversed and the indictments reinstated. We have remitted the entire matter to the Justice presiding at the Extraordinary Special and Trial Term for a determination, on the merits, of the pending motion by defendant Nigrone. We express no view as to the merits of any particular branch of his motion, or any possible disposition, and leave the decision as to whether a hearing is warranted on any aspect thereof to the sound discretion of the Justice presiding.

LATHAM, Acting P.J., and COHALAN and RABIN, JJ., concur.

SHAPIRO, J., concurs in the result, with the following memorandum:

Without withdrawing in any way from the views expressed in my dissent in People v. Rao, 46 A.D.2d 343, 362 N.Y.S.2d 513, but solely on constraint of the majority holding in that...

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9 practice notes
  • U.S. v. Sotomayor, Nos. 1031
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 2, 1979
    ...People v. Rosenberg, N.Y.L.J., October 20, 1976, at 13, col. 1 (Sup.Ct. Kings Co.). Judge Polsky later reversed himself in People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441, 1977 (Sup.Ct. Kings Co.), which reversal followed 15 The New York Court of Appeals had not at that time expressly approv......
  • People v. Williams
    • United States
    • New York County Court
    • November 28, 1978
    ...392 N.Y.S.2d 235; People v. Isaacson, 56 A.D.2d 220, 392 N.Y.S.2d 157; People v. Shearin, 55 A.D.2d 939, 390 N.Y.S.2d 653; People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441; People v. Singleton, 50 A.D.2d 938, 377 N.Y.S.2d 198; People v. Belkota, 50 A.D.2d 118, 377 N.Y.S.2d 321; People v. Trot......
  • People v. Karassik
    • United States
    • New York Supreme Court
    • June 24, 1977
    ...if soundly criticized in Matter of Nigrone v. Murtagh, 46 A.D.2d 343, 362 N.Y.S.2d 513; 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d 45; 53 A.D.2d 904, 386 N.Y.S.2d 441, and People v. Archer, Misc., 392 N.Y.S.2d 362, where fictitious cases were presented to the Grand Jury. This subpoena const......
  • People v. Rao
    • United States
    • New York Supreme Court Appellate Division
    • February 25, 1980
    ...had not been given an opportunity to be heard on the issues considered by that court in arriving at its decision (People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d However, developments in the law which have evolved over the past few years, and additional information imparted to this court relatin......
  • Request a trial to view additional results
9 cases
  • U.S. v. Sotomayor, Nos. 1031
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 2, 1979
    ...People v. Rosenberg, N.Y.L.J., October 20, 1976, at 13, col. 1 (Sup.Ct. Kings Co.). Judge Polsky later reversed himself in People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441, 1977 (Sup.Ct. Kings Co.), which reversal followed 15 The New York Court of Appeals had not at that time expressly approv......
  • People v. Williams
    • United States
    • New York County Court
    • November 28, 1978
    ...392 N.Y.S.2d 235; People v. Isaacson, 56 A.D.2d 220, 392 N.Y.S.2d 157; People v. Shearin, 55 A.D.2d 939, 390 N.Y.S.2d 653; People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441; People v. Singleton, 50 A.D.2d 938, 377 N.Y.S.2d 198; People v. Belkota, 50 A.D.2d 118, 377 N.Y.S.2d 321; People v. Trot......
  • People v. Karassik
    • United States
    • New York Supreme Court
    • June 24, 1977
    ...if soundly criticized in Matter of Nigrone v. Murtagh, 46 A.D.2d 343, 362 N.Y.S.2d 513; 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d 45; 53 A.D.2d 904, 386 N.Y.S.2d 441, and People v. Archer, Misc., 392 N.Y.S.2d 362, where fictitious cases were presented to the Grand Jury. This subpoena const......
  • People v. Rao
    • United States
    • New York Supreme Court Appellate Division
    • February 25, 1980
    ...had not been given an opportunity to be heard on the issues considered by that court in arriving at its decision (People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d However, developments in the law which have evolved over the past few years, and additional information imparted to this court relatin......
  • Request a trial to view additional results

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