People v. Saccenti

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: DESMOND; SCILEPPI
• Citation: People v. Saccenti, 247 N.Y.S.2d 479, 14 N.Y.2d 1, 196 N.E.2d 885 (N.Y. 1964)
• Decision Date: 20 February 1964
• Parties: , 196 N.E.2d 885 The PEOPLE of the State of New Yrok, Appellant, v. Louis SACCENTI, Respondent.

Page 479

247 N.Y.S.2d 479

14 N.Y.2d 1, 196 N.E.2d 885

The PEOPLE of the State of New Yrok, Appellant, v. Louis SACCENTI, Respondent.

Court of Appeals of New York.

Feb. 20, 1964.

Frank D. O'Connor, Dist. Atty. (Benj. J. Jacobson, Long Island City, and Harvey B. Ehrlich, Laurelton, of counsel), for appellant.

Joseph A. Solovei, Brooklyn, for respondent.

DESMOND, Chief Judge.

This appeal by the People requires us to hand down a decision as to the meaning and effect of section 667 of the Code of Criminal Procedure which reads thus: 'When a person has been held to answer for a crime, if an indictment be not found against him, at the next term of the court at which he is held, to answer, the court may on application of the defendant order the prosecution to be dismissed, unless good cause to the contrary be shown,'

Reversing the former County Court of Queens County, the Appellate Division set aside defendant's conviction entered on his plea of guilty to a felony, and granted defendant's motion, made before plea, to dismiss the indictment on the ground that it had not been found at the 'next term' as required by section 667. A majority of the Appellate Division Justices held that since, in response to the dismissal motion, no 'good cause' had been shown for the delay in indicting defendant, he was entitled to a dismissal of the indictment and of the criminal cause in toto. The Appellate Division minority thought that section 667 called for a dismissal only of the 'prosecution' pending after defendant had been bound over for grand jury action in other words, that a section 667 motion could accomplish no more than the release of a defendant held for grand jury action but could not prevent or invalidate a later indictment. We agree with the dissent.

In May, 1959 defendant, arraigned in a Magistrate's Court on a charge of theft, waived examination and was admitted to bail pending grand jury action. In April, 1961 he moved under section 667 to dismiss the complaint because he had not been indicted. Before the dismissal motion came on for hearing, defendant (in May, 1961) was indicted on a series of counts which included the charge originally made in the Magistrate's Court. The motion to dismiss the complaint was denied. Defendant when arraigned on the indictment renewed his motion to dismiss. When it was again denied he pleaded guilty to one of the charges in the indictment and was sentenced and then took this appeal.

We cannot read section 667 of the Code of Criminal Procedure as meaning not only that a dismissal thereunder is a bar to any further prosecution on the same charge but that it results in a dismissal of an indictment also if one is found before the dismissal motion is heard.

In the first place, the statutory language does not permit such a construction. It says that, if a defendant bound over for grand jury action be not indicted at the next term and no good cause contra be shown, the court may 'order the prosecution to be dismissed'. People v. Dillon, 197 N.Y. 254, 256-257, 90 N.E. 820, 821 read somewhat similar language as meaning that 'that particular prosecution is terminated' but that this does not bar subsequent prosecution for the same crime (see, also, Robbins v. Robbins, 133 N.Y. 597, 599, 30 N.E. 977, 978). As was pointed out in Dillon, such a dismissal has no greater effect than a discharge by a Magistrate on preliminary hearing, and we know that such a discharge has no effect at all on the power of the grand jury later to indict (see People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 261, 152 N.Y.S.2d 1, 2, 134 N.E.2d 818, 819; Collins v. Loisel, 262 U.S. 426,...