Opinion
September, 1913.
Thomas Gagan, district attorney of Rockland county, for plaintiff.
Mortimer B. Patterson (William T. Jerome, of counsel), for defendants Dunbar Contracting Company et al.
Benjamin Levison, for defendants Etna Construction Company et al.
The demurrers to the indictments are overruled. They charge the defendants with the crime of conspiracy to cheat and defraud the state of New York out of money by criminal means and false pretenses, and they set forth in detail the acts, devices and schemes alleged to have been committed and employed by the defendants in planning and consummating the conspiracy, and the fact that these acts, devices and schemes may have constituted other and distinct crimes does not invalidate the indictment, nor is it good ground for demurrer that the indictment alleged facts constituting the crime of larceny. The defendants may be indicted and convicted of a conspiracy to commit the crime of larceny, even though the conspirators accomplished their purpose and feloniously got the state's money.
The indictments charge but a single misdemeanor, namely, a conspiracy to cheat and defraud the state out of its money by defective and dishonest work, and a willful failure to furnish materials required by certain contracts which the defendants the Etna Construction Company and the Dunbar Contracting Company had with the state, and by means of false and fraudulent statements and representations in respect to the said work and materials.
The defendants move for an inspection of the minutes of the grand jury, for use upon a motion or motions to dismiss the indictments. It is well settled that the defendants are not entitled to the minutes, to enable them to prepare for trial, and that the only ground upon which a motion of this kind can be granted is to enable the defendants to move to set aside the indictments upon one or more of the grounds given by the statute for such a motion.
Section 313 of the Code of Criminal Procedure provides when an indictment may be set aside by the court.
First. When it is not found, indorsed and presented as prescribed in sections 268 and 272. Second. When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263 and 264.
These are the only statutory grounds given for a motion to dismiss an indictment that have any application to these cases. The Court of Appeals, however, has held that the court has inherent power "to set aside indictments whenever it appears that they have been found without evidence, or upon illegal or incompetent testimony." The defendants, on these motions, assert that motions to dismiss these indictments are contemplated, and will be made in good faith, but the only specific ground stated in the affidavits for such a motion is that one Peter P. Smith, an alleged special deputy attorney-general, was constantly in attendance at the sessions of the grand jury that found these indictments, and that he was not one of the persons permitted to be present by the statute.
It is undisputed that the said Peter P. Smith was present before the grand jury, while these cases were under consideration, and testimony was being taken, but not during the expression of opinions by the grand jurors, or the giving of their votes upon the question of these indictments, and there is no claim that he was present at such times. His presence before the grand jury, while testimony was being taken, and his participation in the presentation of the cases to the grand jury are justified by the district attorney by undisputed proof that said Smith was duly designated as a special deputy attorney-general by the attorney-general of the state, to assist in the prosecution of these cases, and that he duly qualified as such special deputy attorney-general before he undertook the work, and besides, before the said Smith attended upon said grand jury, the district attorney, pursuant to section 264 of the Code of Criminal Procedure, duly nominated him in writing to attend upon the said grand jury, to assist in the investigation of these cases, and, upon such nomination, he was duly appointed by Hon. Isaac M. Kapper, the justice of the Supreme Court who presided at the term of the court for which the said grand jury was summoned, and at which said indictments were found, to attend upon said grand jury as an assistant to the said district attorney. So that the presence of the said Peter P. Smith before the grand jury is admitted on this motion, and therefore, the minutes are not required to enable these defendants to make their contemplated motions upon that ground. The minutes can show no more with respect to the appearance of Mr. Smith before the grand jury than is admitted by the district attorney upon this motion. In other words there is no question but that Mr. Smith did appear before the grand jury, and examine the witnesses, and take part in the investigations that resulted in the finding of these indictments, and, if his appearance was unauthorized, the defendants may make their motions upon that ground, and they do not need, for that purpose, the minutes of the grand jury.
The only other ground upon which a motion to dismiss the indictments can be properly based is that they were not found, indorsed and presented, as prescribed in sections 268 and 272 of the Code of Criminal Procedure. The defendants claim, in that respect, that the district attorney incorrectly and improperly advised the grand jurors that they could not reconsider their vote by which these indictments had been ordered, before the indictments were physically before the grand jury, and actually signed by the foreman. The allegations in the defendant's moving affidavits are only hearsay and surmises. No fact is stated, or information given, from which the court can determine that any such advice or instruction was given to the grand jury, or followed by that body. The allegations and conclusions of the affidavits made by the defendants' attorney are based solely upon rumors and inferences that are not justified by any statement of fact. It is well settled that the court will not allow an inspection of the minutes of the grand jury to enable a defendant to ascertain whether or not grounds exist for a motion to dismiss an indictment, but only to support a motion that may be made upon grounds, shown by the moving papers to actually exist, or facts from which a good ground may reasonably be inferred. The secrecy of proceedings before the grand jury has always been zealously guarded and preserved, both at common law and under the statutes of this state. The reasons therefor have been well stated, as follows: "The reasons on which the sanction of secrecy which the common law gives to proceedings before grand juries is founded, are said in the books to be three-fold. One is that the utmost freedom of disclosure of alleged crimes and offences by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury which, if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party in order to avoid the danger that he may escape and elude arrest upon it, before the presentment is made." Commonwealth v. Mead, 12 Gray, 167.
It is for these reasons that the rule has been laid down in this state that a defendant shall not, in any event, be permitted to inspect the minutes of the grand jury to enable him to prepare for trial, or to use as the basis of a motion to dismiss the indictment, unless the motion papers upon which an inspection is asked clearly disclose statutory grounds for such a motion, and unless it reasonably appears that the minutes asked for will show grounds for such a motion.
The motion papers upon these motions are not sufficient to justify the court in granting an inspection of the minutes, and the motions will, therefore, be denied.
Motions denied.