Opinion
February 10, 1967
Charles P. Ayers, Jr., for defendant.
Andrew F. Siedlecki, District Attorney ( H. Edwin Mountford of counsel), for plaintiff.
This is a motion made on behalf of the defendant for an order granting an inspection of the Grand Jury minutes, and in the alternative for (a) permission to withdraw his plea of not guilty to the indictment, (b) to demur, and (c) to move to dismiss the indictment on the ground that the indictment is not founded upon sufficient evidence.
The indictment in question charged the defendant with the "crime of Malicious Telephone calls in violation of Section 555 of the Penal Law of the State of New York, a misdemeanor".
It is the claim of the defendant that neither the indictment nor the bill of particulars affirmatively indicates that a telephone call was placed within the County of Tioga, and therefore, he should be permitted to examine the Grand Jury minutes preliminarily to seeking his proposed alternative relief. This position is evidently premised on the belief that a prosecution for a violation of section 555 will not lie where the proof may be solely to the effect that the call was received within the Town of Owego which is within the County of Tioga where the indictment is laid.
The evidence before the Grand Jury is silent as to the location of the place where the call may have been placed. In fact it may well have been placed outside the State of New York or County of Tioga, but there is evidence to indicate that the call was received within the County of Tioga.
Under authority of People v. Daly ( 154 Misc. 149), People v. Leonard ( 24 Misc.2d 300), and People v. Kohut ( 25 A.D.2d 10) I find that, in this case, it is immaterial as to where the call may have been placed if it was received within the County of Tioga. The court has read the Grand Jury minutes and finds that the evidence adduced is such, which, if unexplained or uncontradicted, would warrant a conviction by a trial jury. The motion is in all respects denied.