People v. Scafuri

Decision Date02 July 1976
Citation385 N.Y.S.2d 1004,87 Misc.2d 797
PartiesThe PEOPLE of the State of New York v. Joseph SCAFURI, Defendant.
CourtNew York County Court

Peter L. Maroulis, Poughkeepsie, for defendant.

John R. King, Dist. Atty. (Bridget R. Rahilly, Poughquag, of counsel), for the People.

ALBERT M. ROSENBLATT, Judge.

This is a motion by the defendant seeking dismissal of an indictment. He attacks the constitutionality, on due process and equal protection grounds, of Judiciary Law Sec. 664, by which government employees are barred from grand jury service, as a result of which, defendant claims, the grand jury which indicted him was illegally constituted, in violation of CPL Sec. 210.35(1).

First, equal protection. The inquiry must begin with the premise that defendant's allegations are to be measured against his heavy burden of proving unconstitutional inequality or discrimination (People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139, reargument denied, 32 N.Y.2d 705, 343 N.Y.S.2d 1026, 296 N.E.2d 459) as opposed to a deliberate and rational classificatory scheme. He must demonstrate how Judiciary Law Sec. 664 operates to accord him, as an individual or group member, any less protection than anyone else.

While the moving papers contain an affidavit by the defendant in which he asserts the claim, the mere employment of the term 'unequal protection' does not even begin to make it so, and while he contends that the exclusion is not rational, there is no showing of how he is affected at all by it, much less Adversely affected. It is not alleged, nor could it be alleged, that the defendant has been singled out for special or unequal treatment, different from that afforded every other indicted defendant in New York State for many years. The public employee exclusion was written into state law twenty-two years ago (L.1954, ch. 305) after Governor Dewey approved the measure, (the exemption portion of which had been in effect for New York City grand juries for 13 years before that (L.1940, ch. 202, as amended L.1953, ch. 541)).

For equal protection (as opposed to due process) purposes, this court rejects the notion that the defendant, not alleged to be a public employee, is somehow unequally treated by the elimination of public employees from all grand juries in New York State. Because he is not a member of the excluded class, it is all the more tenuous to claim that the expulsion of that class can have a constitutionally unequal impact upon him. Concededly, a person not a member of an excluded class may contest the classification and may even prevail by demonstrating an irrational taxonomy. But that would rest predominantly on Sixth and Fourteenth Amendment grounds rather than on any equal protection basis (Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690). Were he a member of the expelled class it might raise issues which are not at all necessary to the resolution of the case at bar, and which this court does not reach.

The language of the court in United States ex rel. Chestnut v. Criminal Court of City of New York, 2 Cir., 442 F.2d 611, 617, cert. denied, 404 U.S. 856, 92 S.Ct. 111, 30 L.Ed.2d 98, is relevant here, as to defendant's equal protection posture.

'. . . The Second August 1964 Grand Jury was selected, so far as the record reveals, exactly as was every other grand jury that sat in New York County in 1964.'

That, of course, is in contrast to cases in which the equal protection clause was raised to interdict grand jury procedures which were used only for one particular defendant or class of defendants and no others (e.g. Beck v. Washington, 369 U.S. 541, 554, 82 S.Ct. 955, 8 L.Ed.2d 98).

The equal protection cases, both in that portion of defendant's superb brief and elsewhere, deal, by and large, with contentions by those properly situated to complain about how the exclusion uniquely operates to afford them lesser protection than others (e.g. Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244). Where they do not fall into the disqualified class, equal protection grounds are eclipsed by Sixth Amendment and due process considerations, including a right to a jury trial predicated on rational and non-discriminatory selection processes (e.g. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83).

In deciding whether the defendant has been denied due process it is necessary to determine whether New York, for so long a time, has abided a statute which unjustifiably bans public officials from grand (but not petit) jury service.

The question, then, if whether the exclusion is constitutionally sound or whether it excises, without justification, a segment of the population in a way which unsuitably deprives an accused of grand jury cross sectionality. After reviewing the statute's origins and purposes, this court holds that the defendant has not carried his burden of establishing any constitutional ailment. To begin with, the defendant is incorrect in assuming that the public employee disqualification was enacted exclusively because of legislative conecern over the ability of public officers to decide cases fairly and without kinship with the government. Accordingly, the numerous cases which hold that government people will not inordinately cast their vote with the prosecution (e.g. Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734) are not at...

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2 cases
  • People v. Legrand
    • United States
    • New York Supreme Court
    • October 14, 1976
    ...classificatory scheme. They must demonstrate how Section 598 denies them any less protection than anyone else (People v. Scafuri, 87 Misc.2d 797, 385 N.Y.S.2d 1004, Dutchess County Court, Rosenblatt, J.). Defendants offer no plausible explanation how they have been singled out for unequal t......
  • People v. Agron
    • United States
    • New York County Court
    • November 4, 1977
    ...and was therefore not a member of a class of persons serving definite sentences for class D or E felonies. (People v. Scafuri, 87 Misc.2d 797, 799, 385 N.Y.S.2d 1004, 1005 aff'd App.Div., 398 N.Y.S.2d 904 (1977); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244). The Court holds ......

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