Opinion
279 A.D. 479 111 N.Y.S.2d 212 THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JOHN BROPHY, Respondent. (And Ten Other Actions.) Supreme Court of New York, Third Department. March 12, 1952
APPEAL from an order made at a Special Term of the Supreme Court, held in Albany County (SCHIRICK, J.), and entered February 26, 1952, in Albany and Saratoga Counties, which granted motions by defendants to quash, set aside and dismiss indictments of the Grand Jury of Saratoga County at an Extraordinary Trial and Special Term of the Supreme Court.
COUNSEL
Nathaniel L. Goldstein, Attorney-General (Paul W. Williams, Special Assistant Attorney-General, in charge of the Saratoga Investigation, and Harris B. Steinberg, Special Assistant Attorney-General, of counsel), for appellant. Lynch s&sLynch for John Brophy, Alfred Pepper, Costabule DeMatteo, Augustus DeMatteo, Jr., Victor Urquhart, Almeron White, James White, George White and Leo Grennan, respondents.
Carroll, Amyot and Doling for George Smaldone, Louis J. Farone and Anthony Padula, respondents.
Edward T. Sullivan for Gerard E. King, respondent.
Ray F. Fowler for Thomas O'Brien, respondent.
Daniel H. Prior for all respondents.
Per Curiam.
This is an appeal by the People from an order of Supreme Court, Albany Special Term, which dismissed indictments found by a Grand Jury of Saratoga County which had been impaneled at an Extraordinary Special and Trial Term of Supreme Court. This Extraordinary Term was directed by the proclamation of the Governor to inquire into the violation of laws relating to gambling, bribery, corruption, public offices and officers, the collection of public revenues and the administration of justice, in Saratoga County.
While the opinion of the Justice at Special Term does not expressly say so, it was evidently his conclusion that the Extraordinary Term followed a systematic pattern of exclusion against citizens who were qualified to sit as grand jurors, and hence that the Grand Jury as finally selected was not drawn by lot within the traditional meaning of that term.
This case resembles closely the case of People v. Prior (268 A.D. 717, affd. 294 N.Y. 405). In our opinion the errors assigned here did not justify a finding that the Grand Jury, as finally selected, was not a constitutional body, or that any constitutional rights of the defendants were violated, within the principles enunciated by the decision of the Court of Appeals in the Prior case as we understand it.
We add that the Justice at Special Term was justified, as a matter of law, in entertaining the motion that resulted in the order appealed from, and did not abuse his discretionary power in that regard. Under the present practice there is no direct appeal available in a criminal case from an intermediate order and a party who desires to raise a constitutional issue against the procedure adopted by a Justice presiding at an Extraordinary Term ought to be able to examine the question in some other forum. The order should be reversed on the law and the indictments reinstated.
FOSTER, P. J., HEFFERNAN, BREWSTER, BERGAN and COON, JJ., concur.
Order reversed on the law and the indictments reinstated.