Pesner v. County Court of Rockland

42 A.D.2d 275, 346 N.Y.S.2d 820, 1973 N.Y. App. Div. LEXIS 3725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 1973
• Status: Published

Opinions

Shapiro, J.

The four above-entitled proceedings, in the nature of applieátions 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 Eockland, 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 Eockland 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 Eockland, 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 ‘1 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: ‘1 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 Cons. 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 [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 1 through May 31. The intent and purpose of his order was carried out by Judge Gauyctcci when he impaneled the 1 ‘ 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 Cons. 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 Ct. of County of Dutchess (41 AD 2d 148), 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 1 through May 31 was to enlarge the February Term of court so that it would terminate on May 31 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 he vitiated were returned during that period.

It seems clear that the legislative procedures above outlined (and the rules of this court adopted pursuant thereto) vest discretion in the Administrative Judge, whose acts and conduct are supervised by this court, to permit the impaneling of an additional Grand Jury for such a length of time as under the existing circumstances seems desirable and necessary. Therefore, what the Administrative Judge did here (although mistakenly referring to more than one term of court) was in accord with the intent and purpose of CPL 190.10, the rationale of which is to permit flexibility of action responsive to the changing requirements of the particular court being administered. Any other construction would merely act as a straight-jacket on the court and elevate form above ¡substance. As the court said in People v. Stern (3 N Y 2d 658, 664): “ There is a legitimate area of supervision over the Grand Jury compatible with that body’s broad jurisdiction, within which the court may make rules concerning the regulation of terms of court to which Grand Juries are attached and assignment of judges.”

We are not here confronted with the fear expressed by Chief • Judge Fuld in his dissent in that case and reiterated by me in Matter of McClure (supra), that extension of existing grand juries — in derogation of existing law — may lead to “ vest pocket ” Grand Juries under the control of the District Attorney or the Presiding Judge, for, in the case of a Grand Jury to be impaneled, as distinguished from a Grand Jury already in existence, the final composition of that Grand Jury is not known to any of the parties involved. Furthermore, the power to impanel an additional Grand Jury is not left to the discretion of the individual Trial Judge, but requires prior approval of the court’s Administrative Judge. In addition, the impaneling of an additional Grand Jury is premised on the assumption that previously regularly scheduled Grand Juries will be too busy with the matters coming before them to handle the additional work load.

In any event, even if we were inclined to accept as valid every contention urged by the petitioners, their petitions would nevertheless be dismissable for a reason not advanced by the respondents and that is that the additional Grand Jury which returned the indictments in question was in any event a de facto Grand Jury possessed of all of the powers which it would have if it were a de jure Grand Jury. The leading case on that subject is probably People v. Petrea (92 N. Y. 128). There the defendant moved to quash the indictment returned against him on the ground that the Grand Jury that had returned it was devoid of jurisdiction because it had been selected under an unconstitutional statute. His motion was denied. After conviction he appealed and, although the Court of Appeals determined, as a matter of law, that the Grand Jury had been in fact selected under an unconstitutional statute, it nevertheless affirmed his conviction, saying (pp. 143-144): “The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant, in fact, enjoyed all the protection which he would have had if the jurors had been selected and drawn pursuant to the general statutes. * * * An indictment was found by a body, drawn, summoned and sworn as a grand jury, before a competent court and composed of good and lawful men. This we think fulfilled the constitutional guaranty. The jury which found the indictment was a de facto jury selected and organized under the forms of law. The defect in its constitution, owing to the invalidity of the law of 1881, affected no substantial right of the defendant. ’ ’

In People v. Youngs (151 N. Y. 210, 217-218), the court said: 1 ‘ But even if this were otherwise, and it could be said that the designation of the terms of the court was not in strict compliance with the Constitution or the statute, the objection would not, we think, avail the defendant. The court in which the indictment was found was appointed to be held by the body which the Constitution and the statute had designated for that purpose. The grand jury was regularly drawn from the body of the county, summoned and sworn as provided by law. It was at least a de facto jury, selected and organized under the forms of law, and that was sufficient for the protection of all the defendant’s constitutional rights.”

In a similar context in dealing with the effect to be given the intention of the court on the continuation of a Grand Jury, Chief Judge Lehman in McDonald v. Colden (294 N. Y. 172, 179, supra) said: “ Here it appears beyond possibility of dispute that the court by its direction intended that there should be no cessation or even interruption of the work of the Grand Jury and that the term should be continued from day to day until the investigation was completed and the court had disposed of business which might be brought before it in connection with that investigation, or until the term was ended by further order of the court. Irregularity in the formulation of that direction or of the entry in the clerk’s minutes under the circumstances did not dissolve the term.”

Other jurisdictions have applied the de facto doctrine in the same way (State ex rel. Dunn v. Noyes, 87 Wis. 340; People v. Morgan, 133 Mich. 550; State v. Wescott, 194 Wis. 410; People v. Kaplan, 256 Mich. 36; People v. Hall, 16 Ill. 2d 223; Buchler v. District Ct. of County of Arapahoe, 158 Col. 205; State v. Brown, 195 Mo. App. 590).

Since “ each term may continue as long as the county judge deems necessary ” (Judiciary Law, § 190-c, subd. 3), and since it is undisputed that the additional Grand Jury in this case began to function immediately after it was charged by the County Judge and actively continued to do so without recess or adjournment until the handing tip of the indictments in this case, the position of the petitioners lacks merit.

For the foregoing reasons the applications should be denied and the cross motions to dismiss granted, without costs.

1 . One of the petitions is by an attorney on behalf of bis indicted clients. For the purposes of brevity, references in this opinion to the petitioners will be deemed to refer to the indicted defendants.

2 . If in McClure we were dealing with an active, functioning Grand Jury, with unfinished business before it, our decision would have been different (see Matter of Reynolds v. Cropsey, 241 N. Y. 389, 397; Matter of McDonald V. Colden, 294 N. Y. 172, 178).

3 . This is made amply evident when we note that all of the indictments state that they were returned at “ Feb. Term 1973 ”.