Pesner v. County Court of Rockland , 346 N.Y.S.2d 820 ( 1973 )

Munder, J.

(dissenting). I agree with my colleague, Mr. Justice Shapiro, that the order of the Administrative Judge authorizing the additional Grand Jury was improper in directing that it be impaneled for four terms of the County Court. I also agree that the order should be treated as one authorizing the additional Grand Jury for the February, 1973 Term of the court and that the reference to the three succeeding terms should be disregarded.

I cannot agree with the further conclusion that, since we are dealing with an original impaneling rather than an extension, it was proper for the Administrative Judge to enlarge the February Term of the court to encompass the period from February 1 through May 31. Our rule (22 NYCRR 693.3 [b]) gives no authority to the Administrative Judge to create or appoint a term of the County Court. That power is vested in the County Judge by section 190-c of the Judiciary Law.¹ Each appointment of terms must be filed in the County Clerk’s office (Judiciary Law, § 190-e). In Rockland County the filed order of appointment of terms provides for a term each month of the year 1973 and our court, pursuant to CPL 190.10, ordered that Grand Juries be impaneled for the January, March, May, July, September and November Terms of the County Court.

CPL 190.15 provides that 1 ‘ a term of a superior court for which a grand jury has been impaneled remains in existence at least until and including the opening date of the next term of such court for which a grand jury has been designated.” It also provides the means by which a term of the court is extended. That may be done only by the court to which the Grand Jury is adjunct. There is neither rule nor statute that vests such authority in the Administrative Judge and what he cannot extend he cannot originally enlarge.

Thus, contrary to my colleague’s view, I find the situation analogous to that in Matter of McClure v. County Court of County of Dutchess (41A D 2d 148). There, at the expiration of the court term the Grand Jury did not join in the District Attorney’s application to extend the term of the court and the existence of the Grand Jury. This resulted in an order of extension that we found void for lack of jurisdiction to make the order. Thus, the court term expired and with it the Grand Jury was dissolved. Here, no application was made to extend the February Term, the County Court made no order to extend it and the Administrative Judge was powerless either to make, extend or enlarge the County Court term. Consequently, the court term expired on March 5, 1973, the opening date of the next term of the County Court for which a Grand Jury had been designated. With the expiration of the court term the Grand Jury was dissolved. As was noted by the Judicial Council in recommending the enactment of section 225 of the Code of Criminal Procedure, the forerunner of CPL 190.10, “ the existence of the grand, jury is dependent upon the existence of the term of court for which it was drawn, and the final adjournment of the term of that court dissolves the grand jury” (Sixteenth Annual Report of N. Y. Judicial Council, 1950, p. 77).

There remains then to consider whether the de jure Grand Jury that existed until March 5, by continuing beyond that date, to return indictments which were received by the court as valid indictments, may be considered to be a de facto Grand Jury.

That doctrine, at least in New York, was spawned of necessity in People v. Petrea (92 N. Y. 128). There, the jurors were drawn under a statute that was declared to be unconstitutional. Until a new session of the Legislature repaired the defect, the de facto status of Grand Juries had to be recognized if the criminal laws were to be enforced. Petrea (supra) was heavily relied upon in State ex rel. Dunn v. Noyes (87 Wis. 340, 344-345), in which the court said: “ There is no question but that it was a legal grand jury throughout the September term. On the last day of that term , this same body adjourned, with the court, to the first day of the October term, and continued its unfinished business. It is contended that this body became functus officio as a grand jury on and after the last day of the September term. It was recognized by the court as a lawful grand jury, and the court received the indictments found by it, and finally discharged it from further service and ordered the payment of its fees. The legal grand jury of the September term simply held over its term. There cannot be a more appropriate application of the de facto doctrine than to such a body as a grand jury de facto while thus holding over and doing business in the October term of the court.” This construction has been followed in Michigan as well as in Wisconsin (People v. Kaplan, 256 Mich. 36; People v. Morgan, 133 Mich. 550; State v. Wescott, 194 Wis. 410). In Wescott the court noted that Wisconsin does not follow the common-law rule that Grand Juries may act only during the term of the court for which they were called. It noted, too, “ the public policy of the state as expressed in recent legislative enactments, which for all practical purposes abolish terms of circuit court by providing that such terms shall be continuous ” (p. 418).

In Illinois, under similar statutes to those of Michigan and Wisconsin, it was held in People v. Brautigan (310 Ill. 472), as stated in the later and adhering ease of People v. Hall (16 Ill. 2d 223, 225), that “ a grand jury could not have a de facto existence after a term of court ended, where a de jure grand jury had been impanelled by the court for the current term and was performing the duties of such a body.” In Buckler v. District Ct. of the County of Arapahoe (158 Col. 205) the court noted that a new de jure Grand Jury had not yet been impaneled when the indictment under consideration was returned and further that orders, albeit sometimes untimely, extending the life of the grand jury had been entered.

The annotation in 75 ALR 2d 544 shows a division of authority among the courts of the several States as to the validity of indictments returned by hold-over grand juries. It would appear that where the common-law rule has been modified, or the de facto Grand Jury doctrine recognized, it has been done int the light of the governing statutory provisions for extended court terms. Where the statutes did not specifically prevent the result, they were liberally construed to validate the action of the Grand Jury.

Thus, in Matter of McDonald v. Colden (294 N. Y. 172, 176) the court construed section 190 of the Judiciary Law that “ each term [of the County Court] may continue as long as the county judge deems necessary.” It found that irregularity in the formulation of the court’s direction to continue the term or in the entry in the Clerk’s minutes thereof would not serve to dissolve the term. It paraphrased Judge Peckham’s language in People v. Sullivan (115 N. Y. 185, 188) in which he actually had said, “ Nothing but the most rigorous rule of law should, under the circumstances, compel a court to admit its loss of jurisdiction and the consequent failure of all proceedings taken before it.”

In People v. Stern (3 N Y 2d 658, 661) Judge Bubkb observed that the Grand Jury, having been duly impaneled for the June, 1955 term of the court as an additional Grand Jury, and the term of the court having been extended by court, orders, was at the time it returned the indictments in question “ a duly constituted body, de jure in every sense ”.

At the time of the decisions in McDonald v. Colden (supra) and People v. Stern (supra), section 244 of the Code of Criminal Procedure, as construed by the courts, allowed a County Judge to extend the term of court for the continuation of a Grand Jury investigation either sua sponte or on the application of the District Attorney. We are now controlled by CPL 190.15, which, as we so recently said in McClure (41 A D 2d 148, 150, supra), renders a County Judge powerless to extend the life of a Grand Jury in the absence of a declaration by both the Grand Jury and the District Attorney that “ such grand jury has not yet completed or will be unable to complete certain business before it,”

With the clear statutory limitation on the life of a Grand Jury, extendable only as provided in CPL 190.15, there is neither room nor reason to apply the de facto Grand Jury doctrine. Since there is no statutory authority to originally impanel a Grand Jury for a greater length of time than the term of the court to which it is adjunct, we may not consider the order of the Administrative Judge or the prediction of the County Judge in charging the jury as legally creating or extending the court term. As I read the words ‘ ‘ at least ’ ’ in CPL 190.15, emphasized in the majority opinion, they do not mean that, without an order of extension, the term of the court may continue beyond the opening daté of the next term for which a Grand Jury has been designated.

I would grant - the applications to prohibit the trials, deny the cross motions to dismiss the petitions, and dismiss the indictments, all without prejudice to the re-presentation of the facts to a properly constituted Grand Jury.

Martuscello, Latham and Christ, JJ., concur with Shapiro, J.; Munder, Acting P. J., dissents and votes to grant the application and deny the motions to dismiss the petition and to dismiss the indictments, all without prejudice to the re-presentation of the facts to a properly constituted grand jury.

Application, in Matter of Seidenberg, denied and motions to dismiss the petition granted, without costs.

Martuscello, Latham and Christ, JJ., concur with Shapiro, J.; Munder, Acting P. J., dissents and votes to grant the application and deny the motions to dismiss the petition and to dismiss the indictment, all without prejudice to the re-presentation of the facts to a properly constituted grand jury.

' Application, in Matter of Stewart, denied and motions to dismiss the petition granted, without costs.

Martuscello, Latham and Christ, JJ., concur with Shapiro, J.; Munder, Acting P. J., dissents and votes to grant, the application and deny the motions to dismiss the petition and to dismiss the indictment, all without prejudice to the re-presentation of the facts to a properly constituted grand jury.

Application, in Matter of Gess, denied and motions to dismiss the petition granted, without costs.

Martuscello, Latham and Christ, JJ., concur with Shapiro, J.; Munder, Acting P. J., dissents and votes to grant the application and deny the motions to dismiss the petition and to dismiss the indictment, all without prejudice to the re-presentation of the facts to a properly constituted grand jury.

Application, in Matter of Pesner, denied and motions to dismiss the petition granted, without costs.

1 . In Rockland County the power is vested in the senior County Judge by section 189-g of the Judiciary Law.