People v. Masella

16 Misc. 2d 1069, 183 N.Y.S.2d 568, 1959 N.Y. Misc. LEXIS 4065

Opinion

Hyman Babshay, J.

The District Attorney seeks an order directing that this trial be conducted before a special jury pursuant to section 749-aa of article 18-B of the Judiciary Law. The defendants are all members of the Police Department of the City of New York. They were indicted in five counts, the first of which charges them with violation of section 813-b of the Code of Criminal Procedure, which makes it a felony for law enforcement officials to engage in wire tapping without a court order; the second count charges them with a violation of section 738 of the Penal Law, which interdicts wire tapping or eavesdropping; the third count charges them with a violation of section 742 of the Penal Law which prohibits the possession of eavesdropping instruments wdth an unlawful intent; the fourth count charges them with a violation of section 1423 of the Penal Law, which declares that the crime of malicious mischief is committed when there is an illegal physical disturbance of telephone lines; the fifth count charges the defendants with the crime of conspiracy to violate the eavesdropping statute.

It is quite obvious that all of these charges stem from the same transaction.

In support of his application, the District Attorney sets forth the usual statutory reasons for the granting of a motion for a special panel. None of the reasons are sufficiently persuasive to warrant the granting of this motion. The issues of fact to be determined are simple. The questions of law which will undoubtedly arise are for the court. Wide public comment concerning members of the Police Department cannot be avoided under a free press. The qualifications of a member of a special panel and that of a member of a regular panel are the same, other than that the former must entertain belief in capital punishment while the latter need not. The identity of the defendants or their station in life should not be the determining factor in deciding this motion. Issues of greater complexity than the one concerned here have been decided by petit jurors. The motion is, therefore, denied.

Submit order.