People v. Del Giorno ( 1963 )

Order unanimously reversed, indictment reinstated, and matter remitted to Onondaga County Court for further proceedings in accordance with the memorandum, all without prejudice to defendants’ rights to renew motion to dismiss indictment after the determination of the motion to suppress and return evidence claimed to have been improperly seized. Memorandum: After the defendants were permitted an inspection of the Grand Jury minutes, a motion was made to dismiss the indictment for insufficiency of the evidence before the Grand Jury. Combined wtih this motion was an application, in effect, for the suppression and return of articles which it was claimed were improperly seized from the defendants at the time of their arrest, and which were introduced in evidence before the Grand Jury. The County Court Judge heard the motion for suppression and return in an informal manner upon affidavits submitted and upon his own inspection of the Grand Jury minutes. The proceeding for suppression and return was instituted under sections 813-c, 813-d and 813-e of the Code of Criminal Procedure. Section 813-e provides that upon such a motion “The court shall hear evidence upon any issue of fact necessary to determination of the motion ”. Although there were issues of fact, no evidence was taken and the proceeding was conducted and determined in a most informal and casual way. However, such a proceeding requires substantial formality. (People v. Lombardi, 18 A D 2d 177.) The order should be reversed and the matter remitted to Onondaga County Court for a determination of the motion to suppress and return, said proceeding to be conducted in accordance with the requirements of sections 813-c, 813-d and 813-e of the Code of Criminal Procedure. Our order should be without prejudice to the right of the defendants to renew their motion to dismiss the indictment because of insufficiency of testimony before the Grand Jury, after the determination of the proceeding to suppress and return. (Appeal by People from order of Onondaga County Court dismissing Indictment No. 9248 charging violation of section 1372 of the Penal Law [contriving, drawing and assisting in a lottery], returning articles and exonerating bail.) Present — Williams, P. J., Goldman, Henry and Noonan, JJ.