Pesner v. County Court of Rockland County

• Decision Date: 23 July 1973
• Docket Number: 3483,Nos. 3422,3480,3423,3421,Nos. 3421,Nos. 3483,3480B,3425,3483B,3480A,Nos. 3424,s. 3421,s. 3422,s. 3424,s. 3483
• Citation: 346 N.Y.S.2d 820,42 A.D.2d 275
• Parties: In the Matter of Jacob PESNER, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents. In the Matter of Marvin GESS, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents.In the Matter of Harold A. SEIDENBERG, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents.In the Matter of Bruce STEWART, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 820

346 N.Y.S.2d 820

42 A.D.2d 275

In the Matter of Jacob PESNER, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents.

Nos. 3421, 3421A, 3480.

In the Matter of Marvin GESS, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents.

Nos. 3422, 3423, 3480A.

In the Matter of Harold A. SEIDENBERG, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents.

Nos. 3424, 3425, 3480B.

In the Matter of Bruce STEWART, Petitioner, v. The COUNTY COURT OF the COUNTY OF ROCKLAND et al., Respondents.

Nos. 3483, 3483A, 3483B.

Supreme Court, Appellate Division, Second Department.

July 23, 1973.

Moskoff & Becker, New City, for petitioner Pesner (Arnold Becker, New City, and Robert D. Alexander, Law Assistant, of counsel).

Arnold D. Roseman, New Rochelle, for petitioner Gess.

McCormack, Seidenberg & Damiani, West Nyack, for petitioner Seidenberg (Harold A. Seidenberg, New City, of counsel).

Evseroff, Newman & Sonenshine, Brooklyn, for petitioner Stewart.

Arthur J. Prindle, County Atty. of Rockland County, for respondent John A. Gallucci, Senior County Judge of the County Court, Rockland County (Eugene N. Cavallo, Jr., Haverstraw, of counsel).

Louis J. Lefkowitz, Atty. Gen. of the State of New York, for respondent Frank S. McCullough, Administrative Judge of the Ninth Judicial District (Samuel A. Hirshowitz, and Lillian Z. Cohen, New York City, of counsel).

Robert R. Meehan, Dist. Atty., of Rockland County, pro se (Thomas E. Urell, New City, of counsel).

Before MUNDER, Acting P.J., and MARTUSCELLO, LATHAM, SHAPIRO and CHRIST, JJ.

SHAPIRO, Justice.

The four above-entitled proceedings, in the nature of applications for writs of prohibition, have been brought before us by orders to show cause in lieu of notices of petition under article 78 of the CPLR. Since they raise identical questions of law, they will be determined by this opinion, but separate orders will be entered in each case.

The petitioners seek to prohibit their trials on indictments numbered 73--67, 73--66, 73--47, 73--58, 73--53, 73--63, 73--64, 73--65, 73--76 and 73--68 returned against them by an additional grand jury which came into existence by reason of an order made by Mr. Justice McCullough providing that the additional grand jury be 'drawn, summoned and impanelled in the manner prescribed by law for the February, March, April and May, 1973 terms of the County Court of the County of Rockland, for the period commencing February 1st, 1973 and ending May 31, 1973, both dates being inclusive, and for such further terms of the County Court as it may be required and extended.' The petitioners also seek an order dismissing the indictments and other related relief. ¹ In each proceeding a motion was made by the respondent Administrative Judge of the Ninth Judicial District and by the respondent District Attorney of Rockland County to dismiss the petition.

To understand the contention of the petitioners that the additional grand jury was improperly impaneled and that the indictments returned against them are a nullity, it is relevant to ascertain the steps leading to the formation of the additional grand jury.

On January 9, 1973 Senior County Court Judge Gallucci, in writing, requested permission of Hon. Frank S. McCullough, Administrative Judge for the Ninth Judicial District, to impanel an additional grand jury for the period from February 1, 1973 to May 31, 1973, inclusive. This request was predicated upon the representation of the District Attorney of Rockland County that 'because of the increased volume of criminal matters which must be presented to a grand jury, it is essential that an additional grand jury be drawn and empanelled to cover the period February 1 to May 31, 1973, inclusive.' On January 11, 1973 Justice McCullough wrote to Judge Gallucci authorizing him 'to draw and empanel an additional grand jury to cover the period February 1 to May 31, 1973, inclusive.' However, the order signed by Mr. Justice McCullough on January 18, 1973 provided that 'an additional Grand Jury shall be drawn, summoned and impaneled in the manner prescribed by law For the February, March, April and May, 1973 Terms of the County Court of the County of Rockland, for the period commencing February 1st, 1973 and ending May 31st, 1973, both dates being inclusive, and for such further Terms of the County Court as it may be required and extended' (emphasis supplied).

On February 1, 1973 the additional grand jury was impaneled by Judge Gallucci. At that time he advised the jurors that they would be expected to sit 'a minimum of two days a week and a minimum of two months, with a possibility of four months.' So far as the record discloses (see extract of minutes), he treated them as an additional February Grand Jury and made no reference to other terms of court.

CPL 190.10 provides the mechanics for the drawing of grand jurors. It reads:

'The appellate division of each judicial department shall adopt rules governing the number and the terms for which grand juries shall be drawn and impaneled by the superior courts within its department; provided, however, that a grand jury may be drawn and impaneled for any extraordinary term of the supreme court upon the order of a justice assigned to hold such term.'

According to the practice commentary on this section by Professor Richard G. Denzer (McKinney's Consol.Laws of N.Y., Book 11A, CPL 190.10, p. 98), the reason this legislation was enacted was as follows:

'On the theory that the respective Appellate Divisions are more familiar than the Legislature with the precise requirements for grand juries of each of the counties within their departments, authority to prescribe the number, frequency and Time of drawing and impaneling such grand juries is delegated to the Appellate Divisions' (emphasis added).

Pursuant to that enabling legislation, this court adopted subdivision (b) of section 693.3 of its Rules of Practice (22 NYCRR 693.3, subd. (b)), which states:

'(b) For each term of the County Court in each county designated by the Appellate Division as one for which a grand jury shall be drawn, at least one grand jury must be drawn and impaneled. Additional grand juries may be drawn and impaneled upon the order of the administrative judge having jurisdiction over the courts in such county.'

It was apparently that rule of this court that Justice McCullough relied on in making his order of January 18, 1973 which directed the impaneling of an additional grand jury. In doing so, however, he was in error in designating the additional grand jury as one to sit for the February, March, April and May Terms of the court. A grand jury does not exist in a vacuum and, if it is to sit for a period of time longer than the usual period encompassed within the term, it does so because that term of court is extended for the longer period desired. However, his order made it crystal clear that what was intended was that the additional grand jury to be impaneled would have a life existence for the period February 1st through May 31st. The intent and purpose of his order was carried out by Judge Gallucci when he impaneled the 'February Term' of the additional grand jury.

The petitioners nevertheless contend that our rule 693.3 (subd. (b)) does not and cannot authorize impaneling a grand jury for a period that would be longer than the usual term of court because CPL 190.15 precludes such an action. However, neither the terms of that section nor the accompanying practice commentary thereon (in McKinney's Consol.Laws of N.Y., Book 11A, CPL 190.15, pp. 99--100) support their claims. Subdivision 1 of CPL 190.15 provides:

'A term of a superior court for which a grand jury has been impaneled remains in existence at least until and including the opening date of the next term of such court for which a grand jury has been designated. Upon such date, or within five days preceding it, the court may, upon declaration of both the grand jury and the district attorney that such grand jury has not yet completed or will be unable to complete certain business before it, extend the term of court and the existence of such grand jury to a specified future date, and may subsequently order further extensions for such purpose.'

A careful reading demonstrates that the limitations set forth in section 190.15 relate Solely to the extension of functioning grand juries and that a grand jury which 'has been impaneled remains in existence At least until and including the opening date of the next term' (emphasis supplied).

The petitioners do not argue that under the circumstances made known to the Administrative Judge the impaneling of a grand jury to sit for four months was unreasonable per se or that their rights were in any way prejudiced thereby. Their entire base of reasoning is that there was an absence of jurisdiction in the premises. We do not agree. There is a distinct difference between the facts here and those in Matter of McClure v. County Court of County of Dutchess, 41 A.D.2d 148, 341 N.Y.S.2d 855, upon which the petitioners so strongly rely. There, we were dealing with a grand jury which had completed all of its pending business and whose Extension was sought to be accomplished in contravention of the provisions affirmatively set forth in the applicable statute (CPL 190.15). ² Here, on the contrary, we are dealing with the Original impaneling of a grand jury directly in conformity with the legislation and rule above set forth. In effect, what the court did here in providing for the additional grand jury to sit from February 1st through May 31st was to enlarge the February Term of court so that it would terminate on May 31st instead of at the time that the next regular grand jury was to be convened. ³ In this connection it is important to note that the additional grand jury was in continuous session throughout the period for which it had been impaneled And that the indictments sought to...