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MATTER FRANKLIN E. SIMONSON v. WILLIAM CAHN (12/22/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 22, 1969

IN THE MATTER OF FRANKLIN E. SIMONSON, AS FOREMAN OF THE DECEMBER TERM, 1969, GRAND JURY, PETITIONER,
v.
WILLIAM CAHN, AS DISTRICT ATTORNEY OF THE COUNTY OF NASSAU, ET AL., RESPONDENTS

Proceeding pursuant to article 78 of the CPLR to prohibit the respondent District Attorney from prosecuting, and the respondent Judges from entertaining or otherwise assuming jurisdiction of, a criminal action against one Clarence Smith for violation of sections 220.05 and 265.05 of the Penal Law until a Grand Jury of Nassau County returns an indictment in the matter.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

Application granted, without costs; the respondent District Attorney is hereby restrained from prosecuting, and the respondent Judges of the County Court, Nassau County, are hereby restrained from entertaining or assuming jurisdiction of, the criminal action against Clarence Smith upon the charges in question until a Grand Jury of Nassau County returns an indictment against him upon said charges. It is the law of this State that a defendant may not be prosecuted for a felony unless he has been indicted by a Grand Jury. Until the Grand Jury has acted, no court can acquire jurisdiction to try the charge. A defendant's waiver of this constitutional right and his consent to be prosecuted upon an information cannot confer jurisdiction to proceed and any conviction thereafter obtained would be a nullity (People ex rel. Battista v. Christian, 249 N. Y. 314, 319-321; see People ex rel. Wachowicz v. Martin, 293 N. Y. 361, 365).

19691222

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