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eBook details

• Title: People State New York v. Andrew Dunleavy
• Author : Supreme Court of New York
• Release Date : January 13, 1973
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

Each of the defendants had been indicted on one count of perjury. The Grand Jury was investigating the murder of one Desiderio Caban. The office of the District Attorney had located someone who could identify Cabans killer. The witness, however, repudiated his identification, first to the attorney for the target of the investigation and then to the District Attorney. Each of the indicted defendants had been hired by the attorney for the target to investigate the whereabouts of this identifying witness. Each defendant, when before the Grand Jury gave internally contradictory testimony as to his role in the investigation. The court below, in dismissing the indictment, in effect, rendered a factual determination that the statements were not "irreconcilably inconsistent". This was not within its province. As this court has already clarified, "The test to be applied on a motion to dismiss the indictment for insufficiency of evidence is whether there has been a clear showing that the evidence before the Grand Jury if unexplained and uncontradicted would not warrant a conviction by a trial jury" (People v. Ward, 37 A.D.2d 174, 176). There was no such clear showing in either of these cases that the evidence was insufficient. The term "clear showing" which term was used in interpreting section 251 of the Code of Criminal Procedure has been construed to mean prima facie proof that the crime charged has been committed (People v. Peetz, 7 N.Y.2d 147, 149; People v. Haney, 30 N.Y.2d 328, 335-336). The burden under the old statute as enunciated in People v. Ward (supra) is therefore the same as under the new statute (CPL 190.65, subd. 1), which is the one applicable to the case at bar. The dissent, however, has fallen into the same misapprehension as the court below in attempting to determine issues of fact on a motion to inspect Grand Jury minutes and to dismiss the indictment. This is apparent from the authorities cited for the proposition that the People have failed to meet their burden of proof to warrant sustaining the indictment. Both People v. Lombardozzi (35 A.D.2d 528, affd. 30 N.Y.2d 677) and People v. Samuels (284 N. Y. 410) involved dismissal of indictments after trial. Furthermore, the alleged lack of materiality of the testimony of the defendant Dunleavy would have been a question of law only in the past (People v. Samuels, 284 N. Y. 410, 414, supra; cf. People ex rel Hegeman v. Corrigan, 195 N. Y. 1). However, now that the crime of perjury is divided into several degrees (Penal Law, § 210.00 et seq.), the gravity of the offense is an issue of fact (People v. Clemente, 285 App. Div. 258, affd. 309 N. Y. 890; People v. Perna, 20 A.D.2d 323). It follows that the existence of mistake, fallibility of memory or materiality can only be determined by the triers of the facts, be they a petit jury or a Trial Justice presiding at a non-jury trial. Lastly, we must note that the fact that each indictment contains only one count of perjury does not warrant dismissal, since at the time of trial should the evidence warrant it, lesser included counts may also be considered (CPL 300.50; 320.20, subds. 4, 5; cf. People v. Samuels, 284 N. Y. 410, 414-415, supra). Accordingly, since in each case no showing was made of insufficiency, each indictment should be reinstated.

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