The opinion of the court was delivered by: DOOLING
The relator was tried and convicted in the County Court, Suffolk County, of criminally selling a dangerous drug, second degree (Count 1), and of possession of a dangerous drug, second degree (Count 2). He contends, as he did in the County Court (except when the alleged indictment was amended during the arraignment) that he has been denied due process because he was never in fact indicted for the crime on which he was convicted notwithstanding that the Constitution of New York, Article I, Section 6, provides that no man can be held to answer for an infamous crime unless on indictment of a Grand Jury.
The indictment on which relator was convicted charged Henry "Doe" with having sold the narcotic drug and with having possessed it. The indictment was in the standard printed form and it contained no description of Henry "Doe." Two of the three detectives who had worked on the case testified before the Grand Jury; one testified to making the purchase, the other to observing him making it; neither detective supplied the Grand Jury with any description of the relator. The undercover detective, who allegedly bought the narcotic, testified of the vendor:
A First name only, Henry.
Q Have you as of yet learned the identity (sic) of his last name?
Hence, as Judge Lundberg pointed out in his Memorandum Decision on the point after trial, in form at least the indictment could have been the basis for the issuance of a warrant in the same form, and it could have been served on anyone in the world. Section 277 of the Code of Criminal Procedure -- which says that, "If a defendant is indicted by a fictitious or erroneous name" his true name, when discovered, "may be inserted in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment" -- Section 277 does not, plainly, relax the constitutional requirement but reinforces it, while making allowance for correction of mere misnomer, etc.
It appears from the testimony of the three detectives involved, both during the Wade hearing, at the trial, and, although in a very much telescoped form, in the Grand Jury proceeding, that the police knew the narcotic vendor as a specific identifiable person; they did not know his name at the time and place when he made the sale to the undercover detective but a fairly good description was then written down, although it was not a description that uniquely fitted the defendant or any other man. The narcotic vendor seems to have been the subject of a surveillance that had started earlier; he had been seen at the same place where he made the sale to the undercover detective or thereabouts on earlier occasions by at least two of the three detectives who were on the team. He was not at once arrested when he made the sale to the undercover detective because, apparently, the police wanted to use the undercover detective in further efforts before he became too well known.
At the time that the sale was made the detectives understood the narcotic vendor to be known as "Henry", and it will be noticed that the typewritten indictment entitlement treats Henry as a real name and only "Doe" as fictitious. Although they did not tell this to the Grand Jury, they also thought that the narcotic vendor was the cousin of a person called Singletary; for all that appears he may be, for there has been no further testimony on that point. But, although the detectives did not know the narcotic vendor's name until they found it out later (by some means that was not probed either at the Wade hearing or at the trial), the detectives knew the man from whom the undercover detective had bought the narcotic, they knew him by his appearance. When they learned later that the name of the vendor was Clyde Curtis and still later saw that name turn up on a list of unrelated arrests, they went to the place of detention, verified that Clyde Curtis was their narcotic vendor Henry "Doe," and thereupon executed upon him the warrant that had been issued against Henry "Doe." So much the County Judge and the trial jury could find from the evidence, and, indeed, must have found.
Judge Lundberg would nevertheless have dismissed the indictment even after trial, had he not been satisfied from the trial evidence of identification, treating it as extrinsic evidence, that he did not have to do so. While his Memorandum Decision is cryptic, Judge Lundberg was evidently of the view that the Grand Jury had in fact indicted a specific "someone" within the meaning of People v. Bogdanoff, 1930, 254 ...