People v. Prior , 294 N.Y. 405 ( 1945 )

I concur in the result reached by the Chief Judge. The question for our determination is whether, accepting as I do the facts stated by Judge DESMOND, the indictment against the defendants may be dismissed. When Matter of Shea v. Swift (292 N.Y. 116) was before us, the counsel who now moves for dismissal argued that unless the order of prohibition sought in that proceeding were granted, there was no remedy, constitutional or statutory, for the unlawful conduct of which complaint was then made. The argument then made was substantially that section 313 of the Code of Criminal Procedure enumerates the only grounds upon which a defendant may move to set aside an indictment, no matter how oppressive the result may appear to be; that the constitutional rights of Shea were not violated by the practices which he brought to the attention of the court, since the Constitution did not prescribe or regulate the method of selecting a grand jury; that the constitutional guarantee was only that Shea could not be held to answer for a capital or otherwise infamous crime unless on indictment of a grand jury (N.Y. Const., art. I, § 6); that the Constitution said no more about the method of selection of a grand jury than it did about the method of exercise of the general jurisdiction of the Supreme Court (art. VI, § 1.)

It was upon acceptance of those arguments that two members of this court voted to grant the order of prohibition. The majority of this court, however, found that the trial court had jurisdiction of the defendant and of the subject matter of the inquiry and, therefore, held that whether or not the court was complying with the applicable statute, an order of prohibition could not properly be granted. Thus, this court did not reach the constitutional question now presented. However, if counsel was correct in his contention then that Shea was without remedy, save by an order of prohibition, there is no remedy now open to these defendants, regardless of whether or not the proceedings in the selection of the grand jurors were in contravention of the applicable statute.

We have heretofore considered the question presented. In ThePeople v. Petrea (92 N.Y. 128) we held that although the grand jury was selected under an invalid statute, the defendant's constitutional rights were not violated. The contention there was "that the body of men which found the indictment in question, was not a grand jury, that the paper filed as an indictment was not an indictment, and that the defendant could not be held to answer thereto, or be put upon his trial thereon" (p. 142). We pointed out that the Constitution does not define the mode of selection of a grand jury, and that it was competent for the Legislature to enact such regulations and make such changes respecting the mode of selecting and procuring grand jurors as it might deem expedient, "not trenching, however, upon the essential feature of the system" (p. 143). We said substantially that, in Stokes v.People of the State of N.Y. (53 N.Y. 164, at p. 173): "While the Constitution secures the right of trial by an impartial jury, the mode of procuring and impaneling such jury is regulated by law, either common or statutory, principally the latter, and it is within the power of the Legislature to make, from time to time, such changes in the law as it may deem expedient, taking care to preserve the right of trial by an impartial jury." InPeople v. Borgstrom (178 N.Y. 254, 257), there was presented to us an appeal from a conviction of the crime of murder in the first degree. The defendant complained that by reason of the fact that he had been confined in prison while awaiting the action of the grand jury, he had been illegally deprived of an opportunity to challenge any one of the individual grand jurors who presented the indictment against him. We there said: "The motion made by defendant to dismiss the indictment on the grounds already stated is sufficiently answered by the fact that there is no provision of law permitting it. An indictment may be set aside on motion when it is not found, indorsed and presented as prescribed in the Code of Criminal Procedure; also, when a person has been improperly permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration. (Code of Criminal Procedure, section 313.) The court can, undoubtedly, in addition to the grounds above stated, set aside an indictment where the constitutional rights of the defendant are invaded. (People v. Glen, 173 N.Y. 395.) No constitutional rights of the defendant are here involved, but they are clearly subject to legislative control." (See, also,People v. Glen, 173 N.Y. 395, 398.)

In other words, although by chapter II, section 223 of the Code of Criminal Procedure, it is provided that a grand jury must be chosen by lot, the breach of the provisions of that chapter is not made a ground for a dismissal of an indictment under section 313, and there is no constitutional question involved. (ThePeople v. Jewett, 3 Wend. 314, 321, 322; Rawlins v.Georgia, 201 U.S. 638, 640; United States v. Jones, 69 F. 973, 975, 976; cf. rule 6 (b) (1) and (2) of Rules of Criminal Procedure for the District Courts of the United States, restating title 18 of U.S. Code, § 554a). The defendants, therefore, are without remedy.

The motion should be denied.