People v. Rogers , 34 A.D.2d 598 ( 1970 )

Memorandum by the Court. Motion by the People of the State of New York for an order, pursuant to sections 344 and 346 of the Code of Criminal Procedure, removing the trial of indictments from the County of Hamilton, on the ground that a fair and impartial trial cannot be had within that county. In 1969 a Grand Jury was impaneled to serve at an Extraordinary Special and Trial Term of the Supreme Court, which was designated to be held in the County of Hamilton by order of the Governor, to inquire into the financial affairs of the Town of Arietta. Nine indictments have been returned and a trial of one of such indictments resulted in a mistrial. Section 344 of the Code of Criminal Procedure, as amended by chapter 889 of the Laws of 1953, expressly authorizes the prosecution to make application for an order removing the trial of indictments to some other county on the ground that a fair and impartial trial cannot be had in the county where the indictment was returned. The statute, as amended, in no way infringes upon the constitutional mandate providing trial by jury. (Cf. Matter of Murphy v. Supreme Court, 294 N. Y. 440.) We have heretofore held that while equality of procedural right to apply for a change of the place of trial of an indictment is now accorded to both parties by statute, the People carry a heavier burden of proof to he met in obtaining such a change. (People v. Grennan, 284 App. Div. 657.) In our opinion, the People have sustained that burden under the unusual circumstances of this ease. The County of Hamilton has a population of 4,267 persons, according to the last official census, and the present list of trial jurors contains 807 names. Of these, 448 have been exhausted in selecting the Grand Jury which returned the subject indictments and the initial petit jury. In selecting the jury for the initial trial, two panels totaling 250 prospective jurors were called, of which all but 51 were excused, some for reasons not explained in the moving papers, before a jury was chosen. It is improbable that a fair and impartial trial of these indictments could be had in Hamilton County under the circumstances. Motion granted, and the place of trial of indictments herein is removed from the Supreme Court, County of Hamilton, to Supreme Court, County of Washington, upon the condition that the mileage provided by statute for witnesses shall be paid by the State of New York to all necessary and material witnesses for the defense. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.