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PEOPLE STATE NEW YORK v. LAZARUS HARRISON AND JOHN D. DE RIDDER (12/09/68)
DISTRICT COURT OF NEW YORK, FIRST DISTRICT, NASSAU COUNTY
1968.NY.43772 <http://www.versuslaw.com>; 296 N.Y.S.2d 684; 58 Misc. 2d 636
December 9, 1968
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.LAZARUS HARRISON AND JOHN D. DE RIDDER, DEFENDANTS
William Cahn, District Attorney (Ronald Friedman of counsel), for plaintiff.
Leo F. McGinity for Lazarus Harrison, defendant.
Walter J. Boyles for John D. De Ridder, defendant.
Francis J. Donovan, J.
By consent of all parties, jury selection was begun in a joint trial of two defendants which involved four informations. At a recess during the jury selection the District Attorney advised the court that he felt the court lacked jurisdiction over one of the charges, namely a charge against John De Ridder, and the District Attorney now moves to dismiss on that ground.
Stripped of all the preamble and the statutory language, the information states "He did engage in policy".
The District Attorney presents a copy of an indictment which charges that the defendant, John De Ridder, knowingly advanced or profited from unlawful gambling activities by receiving, in connection with a lottery, policy scheme or enterprise, money or written records from a person other than a player whose chances or plays are represented by such money or records.
The second count in the indictment charges that the defendant, with knowledge of the contents thereof, possessed writings, papers, instruments and articles of a kind commonly used in the operation, promulgation and playing of a lottery, policy scheme or enterprise, constituting, reflecting and representing more than 500 plays and chances therein.
The motion was opposed by counsel for defendant De Ridder on the ground that there was no proof of identity of the charges.
It is impossible to look into that issue without considering the question of the sufficiency of the information itself. The second question will be reserved for later discussion.
The second information against John De Ridder charges a violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law, in that "He did suffer or permit his premises to become disorderly in that he permitted gambling on the premises."
Next there is an information charging the two defendants, Lazarus Harrison and John De Ridder, which states: "The defendants did agree to commit the offense of promoting gambling in the second degree in violation of section 225.05 of the Penal Law of the State of New York; and, among other overt acts in furtherance of said conspiracy, defendants did engage in policy."
The fourth and last information charges the defendant Harrison, alone, in two counts. The first count alleges a violation of section 225.05 of the Penal Law in that "he did engage in policy". The second count alleges a violation of subdivision 2 of section 225.15 of the Penal Law in that "defendant had in his possession paper on which he recorded bets in an amount exceeding ten bets".
The attorney for the defendant Harrison took no position on the motion.
We will first consider whether or not this court is precluded from proceeding against John De Ridder by reason of the indictment.
There are two cases pertinent in evaluating or determining this question. The first is People v. Nelson (298 N. Y. 272). There the defendant was charged with two offenses arising out of the killing of a pedestrian by a vehicle operated by the defendant. One information charged the felony of criminal negligence; the other charged the misdemeanor of leaving the scene of an accident. Subsequently evidence was presented to the Grand Jury and on the adjourned date in the City Court the District Attorney reported that the jury had returned "no bill" on the felony charge. The defendant thereupon moved to dismiss the charge of leaving the scene of the accident on the ground that the matter had been presented to the Grand Jury and accordingly no further prosecution could be maintained. Judge Fuld said in part (pp. 275 and 276): "Of no consequence here is the circumstance that the grand jury heard evidence which might have supported the misdemeanor accusation. * * * Before a grand jury may be said to have acted upon a charge there must be some indication that they knew about and considered the charge."
This is the rule to be applied where the charges are distinct charges; that is to say, where one charge is not included in the other. In the latter situation, we must consider People v. Field (15 N. Y. S. 2d 561). While this is a lower court decision it illustrates the principle fairly well and rests, in turn, on People ex rel. Flinn v. Barr (259 N. Y. 104). In People v. Field, the court was considering a charge of third degree assault in a case where the Grand Jury had considered the facts and reported no bill on a charge of felonious assault. The court said (p. 565): "The offense charged against this defendant and examined ...