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CRIMINAL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY 1969.NY.40599 <>; 298 N.Y.S.2d 224; 59 Misc. 2d 61 February 24, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.GEORGE GRAF, DEFENDANT Herman Itskowitz for defendant. Frank S. Hogan, District Attorney (Lawrence Dubin of counsel), for plaintiff. Joel J. Tyler, J. Author: Tyler

Joel J. Tyler, J.

Author: Tyler

 The defendant is charged with violation of section 165.40 of the Penal Law, in that, on February 22, 1968, he knowingly possessed 22 stolen credit cards.

Defendant duly moved, pursuant to section 813-c of the Code of Criminal Procedure, to suppress the seized credit cards and a certain inculpatory statement made by defendant.*fn1 Further, in a supporting affidavit, attached to the written notice of motion to suppress, and served upon the District Attorney more than two weeks prior to the hearing,*fn2 defendant placed the People upon notice that upon any hearing on the motion to suppress, the defendant "will request grand jury minutes in a case involving your deponent and others in which they were charged with acting in concert with other defendants, namely, Carl Oliver and Eric Thornhill to stab and beat a certain individual and to take from his possession certain United States currency. Those minutes will show that your deponent was not indicted and that there was no reason or probable cause for his arrest. That the said grand jury minutes are further sought for the purposes of cross-examination of any witnesses who previously testified at the grand jury."

The sole witness at the hearing was the arresting Patrolman, Brian K. Callery, who was called for the People.*fn3 His testimony, insofar as here pertirent, was as follows:

1. At about 8:30 p.m. on February 22, 1968, he observed an auto pass through a red signal light at West 71st Street and West End Avenue in the Borough of Manhattan, which then proceeded the wrong way up a one-way street. The officer apprehended the vehicle one block distant at Broadway and West 71st Street. The defendant, a Caucasian, was operating the vehicle, while two Negro passengers were also seated therein.

2. The officer then requested of the defendant his driver's license and auto registration. The defendant produced the driver's license but not the registration. The officer thereupon radiod a "1035 Call" from his police car to headquarters to ascertain if the plate number of defendant's vehicle had been reported stolen.*fn4 However, the officer's message was interrupted by the radio dispatcher, who reported a "crime in progress" (a 1030 call) on West 71st Street and West End Avenue, about one and one-half blocks from where the parties were then situated.

3. The officer then placed the defendant in the police car,*fn5 and together with Officer Callery's partner, proceeded to 329 West 71st Street. The two passengers remained detained at the place where defendant's car was stopped, in the custody of other later arrived police officers.

4. When Officer Callery, his partner, and defendant arrived at the scene of the alleged crime, they found "the 79 year old man," later identified as Stanley Zimsack, on the street "apparently injured." Callery left his car and approached Zimsack; defendant remained in the car with Callery's partner. Upon questioning, Zimsack allegedly told Callery that he had been "assaulted" by "two male Negro youths," who also removed from his person "eleven single dollar bills," and then "fled in a light colored car, two door," which he thought to be a convertible. The car driven by defendant was described by Officer Callery as "a light beige, it's very light and it is a convertible."

5. Officer Callery then "brought the defendant to the station house," and the two passengers were brought there as well by the other officers, while defendant's car was driven to the vicinity of the precinct by a fellow officer.

6. Mr. Zimsack later arrived at the station house, and after viewing the defendant and his passengers (not in a lineup), he spoke with Officer Callery, who said he then placed all three under arrest and charged them with robbery.*fn6

7. Officer Callery then left the station house, went to defendant's auto and searched it. He found the aforesaid credit cards under the driver's seat and eleven single dollar bills "in the boot compartment where the convertible top goes down." Callery then returned to the station house and questioned the defendant and his passengers relative to the wallet;*fn7 the defendant then made the inculpatory statement, in which he "admitted ownership of the wallet."

There are several legal questions here involved, the answers to which all militate to the conclusion that the motion to suppress should be granted.

1. Defendant's counsel assumed the firm position that the statements of Stanley Zimsack to Officer Callery, and as reported at the hearing by the officer, were hearsay and inadmissible.

2. The People, through its Assistant District Attorney was by express direction required by this court to furnish it and the defendant, with a copy of the Grand Jury minutes, relative to the presentment to the Grand Jury concerning the robbery charge and the incidents here involved. As aforesaid, a demand therefor had, previous to the hearing, been duly made by defendant, the reasonable costs of which defendant agreed, at the hearing, to pay. The People failed or refused to furnish a copy of such minutes. Is the defendant entitled to such Grand Jury minutes at this ...

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