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UNITED STATES EX REL. MONTY v. MCQUILLAN

December 19, 1974

UNITED STATES ex rel. JOSEPH MONTY, Petitioner,
v.
ADAM F. McQUILLAN, Warden, Queens House of Detention for Men, Long Island City Branch, New York, N.Y., Respondent



The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

 JUDD, J.

 This habeas corpus proceeding is brought by a petitioner, who has been convicted in the Supreme Court, Queens County, for receiving bribes and receiving rewards for official misconduct. He attacks the assignment of a particular judge to try the case, and errors at the trial.

 Background of Facts

 Governor Rockefeller by Executive Order No. 57 dated September 19, 1972, directed the Attorney General to appear before an Extraordinary Special and Trial Term of the Supreme Court, Queens County, to inquire into corrupt acts and omissions by public servants or former public servants in the County of Queens, relating to the enforcement of law or the administration of criminal justice. The Governor designated Mr. Justice John M. Murtagh of the Supreme Court, New York County, to hear all cases arising out of the Extraordinary Special and Trial Term. Attorney General Lefkowitz appointed Maurice H. Nadjari as Deputy Attorney General to handle prosecutions.

 Petitioner was the Chief Rackets Investigator in the Queens County District Attorney's office. The substance of the charges against him was that he received free use of Avis rental cars. It was charged that he assisted Avis in the collection of debts owed to it by threats of prosecution, and that he gave help to Avis in other ways.

 Legal Issues

 Petitioner asserts first, that the designation by the Governor of a particular justice to try all cases brought by the Special Prosecutor violates the requirements of due process and equal protection of the law under the Fourteenth Amendment of the United States Constitution.

 Petitioner also raises issues concerning trial errors, particularly the refusal of the Judge to poll the jury containing a certain newspaper article, and permitting testimony concerning the statement of a co-conspirator.

 Statutory Provisions

 The Nadjari appointment was made pursuant to Section 63(2) of the Executive Law of New York, which states that:

 
The attorney-general shall: . . .
 
2. Whenever required by the governor, attend in person, or by one of his deputies, any term of the supreme court or appear before the grand jury thereof for the purpose of managing and conducting in such court or before such jury criminal actions or proceedings as shall be specified in such requirement; . . . .

 The appointment of a judge to preside at such an Extraordinary Term is specifically authorized under Article VI, Section 27 of the New ...


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