People v. Spolasco — 68 N.Y.S. 924

Majority

p. 924

(33 Misc. Rep. 530.)

PEOPLE v. SPOLASCO et al.

(Court of General Sessions, New York County.

December, 1900.)

Headnote

Criminal Law—Dismissing Indictment—Public Trial—Attempt to Bribe Judge.

Under Code Cr. Proc. §? 671, providing that the court, in the furtherance of justice, may order an action after indictment to be dismissed, where an attaché of the court and another are indicted, charged with having attempted to obtain money by claiming to have arranged to bribe a judge of the court and the district attorney, and thereby secure the release of a prisoner, the indictment should not be dismissed, on motion, for technical objections, as it is due to the public that the greatest publicity should be given to the proceedings by a public trial.

Motion by William Spolasco and another to dismiss an indictment for attempt to bribe.

Denied.

For former opinion, see 67 K Y. Supp. 1114.

James W. McLaughlin and David Welch, for the motion.

Henry W. Unger, Asst. Dist. Atty., for the People.

This is a motion to dismiss the indictment herein made pursuant to section 671 of the Code of Criminal Procedure. The indictment herein was filed September 18, 1900, and charges the defendants, one of whom was an attaché of this court, with an attempt to commit the crime of grand larceny (by false pretenses). The minutes of the testimony submitted to the grand jury are before me on this motion. The alleged false pretenses were to the effect that these defendants “had arranged to bribe a judge of this court and the district attorney of this county, and thereby secure the release of the complaining witness, who was at the time in prison, under indictment, and awaiting trial.” Section 671 of the Code of Criminal Procedure, under which this motion is made, provides: “The court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action after indictment, to be dismissed.” Section 671 differs from section 313, which is mandatory, and which requires the court to set aside an indictment for the causes therein set forth, but leaves it to the discretion of the court to set it aside for other causes. People v. Thomas, 32 Misc. Rep. 170 , 66 N. Y. Supp. 191 , opinion by Fursman, J. I take it, therefore, that, under section 671 the sole question to be considered is, upon the facts and law involved, “What is for the best interests of the cause of justice?” Tó my mind, it is entirely clear that there should be the greatest possible publicity in disposing of this matter, to the end that the people may know whether justice is on sale in this community, and whether an attaché of this court has, even animo furandi, represented that it was. The people are entitled to know to the fullest possible extent the manner in which their servants, the officers and attachés of this court, are discharging their public duties. The charge against these defendants, striking as it does at the very head of justice, should not, therefore, be disposed of on any mere technicality, nor even on motion. Public interests and the furtherance of justice, both alike, require the publicity of a

p. 925

trial, so that the whole truth as to these serious accusations may be known to all men. I have read with pleasure, and, I trust, instruction, the voluminous and carefully prepared brief of the learned counsel for the defendants; but for these reasons I do not consider, and I expressly decline to decide, the contentions and the legal technicalities (possibly well taken) urged by the learned counsel in support of this motion. The motion which-they make may be as well determined on the trial as before; and my decision, therefore, in no way prejudices, and is not intended in any manner to prejudice, any of the defendants’ rights, nor to permit the people, when a like motion shall be made at the trial, to assert that it is res adjudicata.

Motion denied.

Cases cited

People v. Thomas 32 Misc. Rep. 170 N.Y. Sup. Ct. p. 924