Merola v. Bernheim

121 A.D.2d 895, 504 N.Y.S.2d 123, 1986 N.Y. App. Div. LEXIS 59025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1986
• Status: Published

Opinions

In the matter initiating this proceeding, People v Ancrum, Justice Peggy Bernheim precluded the People from reading to the jurors in their opening statement the introductory, non-substantive paragraph of each count of the indictment, which reads "The Grand Jury of the County of Bronx by this indictment accuse the defendant of’. The People were not, however, precluded from reading the substance of each count of the indictment. The court advised the Trial Assistant that she had made similar rulings in the past and would continue to do so in the future.

Justice Bernheim granted the People a two-week stay of the proceeding so that they could bring the within petition for an order prohibiting the court from enforcing its order in the case of People v Ancrum and declaring the People’s right in future prosecutions to read the indictments in their entirety. Petitioner has agreed to dismissal of the article 78 proceeding on the grounds of mootness, since the trial has already taken place, but continues to seek declaratory relief.

The Court of Appeals has cautioned that in entertaining an action for a declaratory judgment attacking a criminal court’s ruling, the reviewing court must proceed "carefully and wisely.” (Matter of Morgenthau v Erlbaum, 59 NY2d 143, 153.) At issue here is a wholly discretionary act by the Trial Judge relating not to an interpretation of a statute or constitutional provision but relating, instead, to how much emphasis should be placed in the People’s opening statement on the role of the Grand Jury in indicting individuals. The People have not demonstrated that they will be harmed by this and we, accordingly, fail to find an abuse of discretion. The petition for a declaratory judgment is dismissed. Concur — Ross, Carro, Lynch and Rosenberger, JJ.