People v. Russo

• Decision Date: 30 July 1962
• Parties: PEOPLE v. James RUSSO.
• Court: New York Court of General Sessions

Page 783

231 N.Y.S.2d 783

PEOPLE v. James RUSSO.

Court of General Sessions, New York County.

July 30, 1962.

Frank S. Hogan, Dist. Atty., by Edward M. Davidowitz, Asst. Dist. Atty., for the People.

David Isaacson, New York City, for defendant.

MITCHELL D. SCHWEITZER, Judge.

This is an application for an order permitting the defendant to withdraw his prior plea of not guilty to an information filed in the Court of Special Sessions in order that the defendant might interpose a demurrer thereto, or, in the alternative, for an order granting an inspection of the grand jury minutes. The moving papers allege, and it is not contradicted by the district attorney, that the defendant was arrested in December of 1961, for a violation of the Penal Law, section 483, placing a child in such a situation as likely to impair morals. After a hearing in which only the complainant testified, the defendant was discharged. Thereafter, the matter was presented to the grand jury which heard other witnesses, and the district attorney was directed to file an information charging the defendant with the same violation of the Penal Law, section 483 and for the crime of assault in the third degree. A judge of the Court of General Sessions signed an order to this effect and the district attorney filed the instant information pursuant thereto. At the outset, the defendant challenges the jurisdiction of the Court of Special Sessions in this proceeding and relies on the case of People v. Dillon, 197 N.Y. 254, 90 N.E. 820, [1910]. Suffice it to say, section 742 of the Code of Criminal Procedure was amended in 1926 (Chapter 721), and this section authorizes the procedure followed in this case. In People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 152 N.Y.S.2d 1, 134 N.E.2d 818, the Court of Appeals held that the grand jury has the power to investigate and indict, regardless of any proceedings before the hearing magistrate which might be pending, or which might have resulted in either holding or discharging the defendant, or whether or not there had been a preliminary hearing. Therefore, having found evidence of a crime of the grade of a misdemeanor, the actions of the grand jury, the Court of General Sessions and the district attorney all culminated in vesting jurisdiction in the Court of Special Sessions. (People ex rel. Reis v. Warden 150 Misc. 801, 269 N.Y.S. 433, aff'd, 239 App.Div. 891, 264 N.Y.S. 948; leave to app. den. 240 App.Div. 761, 265 N.Y.S. 956; Vahey v. Court of...