People v. Siciliano

• Decision Date: 10 June 1976
• Citation: 52 A.D.2d 408,384 N.Y.S.2d 994
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel SICILIANO, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Victor ECHAVARRY, Jr., Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Daniel GIBSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 994

384 N.Y.S.2d 994

52 A.D.2d 408

The PEOPLE of the State of New York, Respondent, v. Daniel SICILIANO, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Victor ECHAVARRY, Jr., Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Daniel GIBSON, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 10, 1976.

Charles G. Moerdler, New York City (Henry J. Silberberg, Alan Kolod and Irving Anolik, New York City, with him on the brief, Morris Weissberg, New York City), for defendants-appellants.

Stephen R. Bookin, Mario Merola, Dist. Atty., New York City, for respondent.

Before MARKEWICH, J.P., and KUPFERMAN, LUPIANO, BIRNS and CAPOZZOLI, JJ.

BIRNS, Justice:

I agree that defendants by their plea of guilty as disclosed by the record in this case did not waive a possible challenge to the constitutionality of section 598 of the Judiciary Law. I further concur in the carefully considered opinion of Justice LUPIANO that section 598 of the Judiciary Law does have a rational basis, and, accordingly, does withstand the constitutional challenge raised by the defendants.

I do not agree, however, that a hearing is warranted on the methods used to impanel the grand jury which in 1972 returned the indictments before us. There is no support in the record for the statements attributed to the County Clerk of Bronx County that 'it was the custom and practice in Bronx County systematically and intentionally to mail qualification notices to prospective jurors based upon a fixed mathematical formula which specifically discriminated against women in that a substantially greater number of such qualification notices were sent to men than to women with the result that substantially more men then women were qualified for service.' (Appellants' Brief, pp. 52--53.)

In fact, when this claim was first recited in the Bronx County Supreme Court, trial term characterized it as 'tenuous and unsubstantiated,' and based upon 'hearsay,' and found it 'not to be the fact.' (People v. Echavarry, 79 Misc.2d 509, 511, 360 N.Y.S.2d 559, 561.)

Although as Justice LUPIANO observes, it appears that on a motion for reargument that the District Attorney of Bronx County 'stipulated' that 'the County Clerk in Bronx County engaged in the same administrative practice at the time of our indictments as that followed in New York County at the time of the Feinstein indictment, to wit, summoning fewer women than men for jury qualification, . . .' (Consolidated Record on Appeal, p. 392), that stipulation by its terms cannot be equated with a practice of 'systematic exclusion and discrimination' sufficient to make a factual showing that the grand jury herein was constituted illegally.

In the absence of a constitutional claim which may in some instance survive a plea of guilty (Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195, 44 U.S.L.W. 3304), the right to appeal following a guilty plea is governed by statute (see, for example, CPL § 710.70(2), CPL § 450.30). We should not extend ourselves to decide constitutional issues unless the record contains persuasive evidence which would mandate judicial inquiry.

To reach out for remote issues of constitutional law on the basis of mere allegation not only prevents the termination of a criminal action, but permits the beginning of a new appellate process (see, People v. Giuliano, 52 A.D.2d 240, 383 N.Y.S.2d 878, N.Y.L.J., May 20, 1976, p. 7, col. 1, Opinion of Silverman, J.). After all, a plea of guilty, ordinarily, is designed to prevent regenerated litigation.

For the foregoing reasons, the judgment below should be affirmed.

Judgments of conviction affirmed.

MARKEWICH and CAPOZZOLI, JJ., in a separate partially concurring and partially dissenting opinion, concur with BIRNS, J., as to affirmance, as to constitutionality of Section 598 Judiciary Law and as to the absence of a sufficient record to present for appellate review question of existence of a constitutionally discriminatory practice excluding women from service on grand juries, but dissent insofar as to hold that defendants-appellants' pleas of guilty constitute a waiver of any prior infirmities in the procedures theretofore had.

LUPIANO, J., in a separate partially concurring and partially dissenting opinion, concurs with BIRNS, J., that defendants-appellants by their pleas of guilty did not waive constitutional challenge to indicting grand jury and as to constitutionality of Section 598 of Judiciary Law, but dissents in part, holding that the quetion of existence of discriminatory practices excluding women from grand juries should be remanded for hearing, and also that there should be remand of defendants-appellants for resentence in respect of conditions of probation.

KUPFERMAN, J., in a separate partially concurring and partially dissenting opinion, concurs with BIRNS, J., that defendants-appellants' pleas of guilty did not constitute a waiver of prior infirmities, but dissents to hold Section 598 of Judiciary Law unconstitutional, requiring reversal of convictions and dismissal of indictments.

MARKEWICH and CAPOZZOLI, Justices (concurring in part and dissenting in part):

We concur in the separate opinion of Justice BIRNS and, therefore, in the result, except insofar as it holds that defendants-appellants did not, by their pleas of guilty, waive any infirmity in the procedures theretofore had. The minutes of the plea contain no indication whatever that any so-called reservation of the right to appeal was made; the plea was unconditional.

LUPIANO, Justice (concurring in part and dissenting in part):

On June 7, 1971, a job action involving certain municipal employees occurred in the City of New York. Defendants, members of Local 237 of the International Brotherhood of Teamsters, a striking union, were employed by the City of New York as bridge tenders. Each was responsible for the opening and closing of a particular drawbridge in Tronx County, which bridges are links in major arteries for vehicular traffic and span a navigable body of water. In furtherance of a plan conceived by the union to maximize disruption during the strike, each defendant on the day set forth above, opened his bridge, removed certain electrical equipment so that the bridge could not be closed and left his post. The predictable chaotic effect on vehicular traffic resulted.

Subsequently, defendants were indicted by the Bronx County Grand Jury, which indictments contained three counts charging that defendants' actions as outlined above constituted criminal tampering (a Class D felony under Penal Law § 145.20), obstruction of governmental administration (a Class A misdemeanor under Penal Law § 195.05) and official miscondu (a Class A misdemeanor under Penal Law § 195.00). ¹ Pertinent to our inquiry is the fact that during subsequent judicial proceedings, defendants challenged the validity of the indictments upon the ground that the indicting Grand Jury was unconstitutionally constituted and, hence, abridged defendants' due process and equal protection guarantees under the Fourteenth Amendment to the Constitution of the United States and Article 1, Sections 6 and 11, of the Constitution of the State of New York. The prime thrust of this challenge was based on the alleged unconstitutionality of Section 598 of the Judiciary Law and the purported exclusionary practice involving the systematic and intentional mailing of qualification notices to prospective jurors in Bronx County based on a fixed formula which specifically discriminated on sexual grounds in that a substantially greater number of such qualification notices were deliberately sent to men than to women, with the result that substantially more men than women were qualified for service. This challenge was rejected by Trial Term (People v. Echavarry, 79 Misc.2d 509, 360 N.Y.S.2d 559). Defendants then sought to effectuate this challenge by way of an Article 78 writ of prohibition. The People moved to dismiss on the ground of prematurity, to wit, that the constitutional issues presented were not ripe for review until after entry of judgment. The application was denied and defendants' petition dismissed by this Court (Matter of Siciliano v. Justices of the Supreme Court, 46 A.D.2d 858 (1st Dept., 1974)). The Court of Appeals denied leave to appeal from our determination on the ground that the remedy sought was unavailable, citing Matter of Roberts v. County Ct. of Wyoming County, 34 N.Y.2d 246, 356 N.Y.S.2d 853, 313 N.E.2d 335 (1974) which holds that prohibition does not ordinarily lie if there is an adequate remedy by way of appeal from a judgment (Matter of Siciliano v. Justices of the Supreme Court, 35 N.Y.2d 990, 365 N.Y.S.2d 533, 324 N.E.2d 889 (1975)). Thereafter, Trial Term permitted renewal of defendants' motion challenging the indictments and upon such renewal, the court adhered to its prior determination. At this juncture, defendants on the advice of counsel apparently agreed that the proceedings would be resolved at the trial level by the entry of guilty pleas solely to misdemeanor charges, with defendants' constitutional challenges being purportedly preserved and thus ripened for appellate review.

At the outset we must consider the defendants' contention that the indictments are invalid in that the underlying wrong was not actionable under the Federal Supremacy doctrine. 33 U.S.C. § 499 provides, in pertinent part:

'It shall be the duty of all persons owning, operating, and tending the drawbridges . . . built across the navigable rivers and other waters of the United States, To open, or cause to be opened, the draws of such bridges under such rules and regulations as in the opinion of the Secretary of Transportation the public interests require to govern the opening of drawbridges for the passage of vessels and other water crafts, and such rules and regulations, when so made and published, shall have the force of law. Every...