People v. Sullivan

• Citation: 249 N.Y.S.2d 589,42 Misc.2d 1014
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Daniel SULLIVAN, Defendant.
• Decision Date: 02 April 1964
• Court: United States State Supreme Court (New York)

Page 589

249 N.Y.S.2d 589

42 Misc.2d 1014

The PEOPLE of the State of New York, Plaintiff, v. Daniel SULLIVAN, Defendant.

Supreme Court, Criminal Term, Queens County, Part I.

April 2, 1964.

Louis J. Caligiuri, Huntington Station, for defendant.

Frank D. O'Connor, Dist. Atty., Queens County, Morton Greenspan, Asst. Dist. Atty., of counsel opposed.

J. IRWIN SHAPIRO, Justice.

Motion 'for an order granting the above-named defendant permission to inspect the grand jury minutes and the testimony upon which the indictment herein was founded, or in the alternative for an order dismissing the indictment against the defendant charging him with the crime of possession of a dangerous weapon as a felony, upon the grounds that the evidence before the grand jury upon which the said indictment was based was insufficient in law to warrant the finding of same'.

The defendant has been indicted and charged with Possessing a Dangerous Weapon as a Felony, to wit, a pistol. The crime charged is made a felony by reason of the defendant's prior conviction of Petit Larceny.

It appears from the testimony before the grand jury that at about seven o'clock or seven-thirty in the morning the defendant came into his house and he threw his pants over a chair and fell asleep. His wife, who was the first witness before the grand jury, testified that she went through his pockets for money, because he was supposed to have gotten paid, and she found the gun, which is the subject matter of the indictment in this case. She first took it, wrapped it up and put it in a drawer, but then getting nervous brought it across the hall to her sister, who also was afraid to have anything to do with it, whereupon the defendant's wife put it on top of a closet.

While she was out shopping her sister called their father, a transit policeman, and gave him the gun.

He questioned the defendant about it and was told that the defendant had broken up a fight in a bar and grill, where he tended bar the night before, and while doing so observed the gun in the pocket of one of the men; that he took the gun away and put it in his own pocket and chased the two men.

It is apparent from the recitation of the substance of the testimony before the grand jury that the initial disclosure of the gun came from the wife of the defendant. In my opinion, that testimony was illegally presented to and received by the grand jury.

Section 2445 of the Penal Law provides:

'The husband or wife of a person indicted or accused of a crime is in all cases a competent witness, on the examination or trial of such person; but neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage.'

The words 'confidential communication' in the foregoing section

'means more than mere oral communications or conversations between husband and wife. It includes knowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital relation and which would not have been performed except for the confidence so existing. An act may communicate knowledge to the known observer and repose a confidence in him as clearly and unmistakably as if accompanying descriptive words were uttered.' (People v. Daghita, 299 N.Y. 194, 198-199, 86 N.E.2d 172, 174, 10 A.L.R.2d 1385).

In the Daghita case the defendant was charged with grand larceny and criminally concealing and withholding stolen property. The stolen property had been brought into the home of the defendant and his wife by the defendant. She was called as a witness by the People, and, over the objection and exception of ...