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A contractor testified that he was procured


In this criminal action, a demurrer was duly filed to an indictment charging this defendant with the crimes of robbery in the first degree, grand larceny in the second degree, assault in the second degree (nine counts), and carrying a dangerous weapon as a felony. The demurrer states that the grand jury which found this indictment had no legal authority to inquire into the crimes charged.

A Queens County Grand larceny lawyer said that defendant was arrested and was sent to a Hospital for a psychiatric examination, found insane and committed to a State Hospital. Thereafter, he was indicted for the crimes of robbery, first degree; grand larceny, second degree; assault, second degree and carrying a dangerous weapon as a criminal felony.

He was declared recovered in February 1968 at the hospital and returned to this Court.

Thereupon the defendant was committed to a County Hospital and on thereafter, he was found sane and capable of understanding the charges against him, the proceedings and of making his defense.

By his demurrer, the defendant contends that the grand jury had no authority to inquire into the crime charged because section 662–b of the Code of Criminal Procedure provides that when a defendant is found to be incapable of understanding the charges, all proceedings must be suspended.

The Court held that such argument has no merit because defendant was not and could not be subject to the provisions of this section. Sections 658 to 662 of the Code of Criminal Procedure relate to insanity proceedings only after indictment. Hence, the proceedings referred to in section 662–b are only Post-indictment proceedings.

‘None of the provisions of this title shall prevent the district attorney at any time from reopening the matter and from presenting evidence against the defendant to a grand jury. If the defendant be indicted or in the city of New York in the case of a misdemeanor an information be filed against him by the district attorney, the warrant shall be lodged with the director of the institution where he is confined and all further proceedings shall be had as if he had been indicted prior to his commitment.’

Obviously the district attorney has complied with this section since the defendant was indicted within six months after commitment.

Accordingly, the grand jury had authority to indict the defendant. The demurrer is disallowed.

In another case, defendants are charged with the crimes of perjury in the first degree and subornation of perjury in the first degree under the first and second counts of the indictment and they are charged with the crime of attempted grand larceny in the first degree by common scheme or plan under the third count of said indictment.

On the second count of the indictment which charges the two defendants, with the subornation of perjury in that they induced or procured another to falsely testify to material matters, the sole proof before the Court concerning the same was:

A contractor testified that he was procured or induced by the defendants to provide an affidavit that the bills he previously submitted were valid.

The letter was signed by the contractor witness and it bore the signature and stamp of a notary. It was conceded on the record that the notarial signature and stamp were valid. However, there is no evidence in the record of any swearing or jurat by the notarial officer. As far back as 1881 in a case, it was determined that to constitute a valid oath for the falsity upon which criminal perjury will lie there must be an unequivocal and resent act in some form in the presence of an officer authorized to administer oaths, by which the affiant consciously takes upon himself the obligation of an oath. That stated principle has been followed to date.

‘those counts alleging perjury in the first degree, which are predicated solely upon evidence of a verification and a certification, unbuttressed by any testimony indicating that an oath was undertaken, are deemed fatally defective.’

Consequently, if the act of Caponi before a notary was a mere certification or affirmation, unbuttressed by any testimony which indicated that an oath was taken by him at that time, said act cannot be an act of perjury. It was a mere witnessing. And, since an act of perjury must be established by another to bottom a charge of subornation of perjury against one who procures the same, the proof of perjury herein is lacking. Accordingly, the count charging subornation of perjury has not been sustained, as a matter of law, and it is dismissed.

With regard to the third count, the indictment charges all three criminal defendants with the crime of attempted grand larceny in the first degree by common scheme or plan. Section 1290a of the Penal Law requires that ‘if the defendant made use of any false or fraudulent representation in the course of accomplishing the theft, evidence thereof may not be received at the trial unless the indictment alleges such representation or pretense.’

The indictment alleges common law larceny by unlawful scheme and plan without alleging any false pretense as an overt act. The only attempted criminal larceny established at the trial is one by the false representation that a bill for services rendered was a valid one. Such overt act must be alleged in the count charging larceny and the prosecution may not rely upon a perjury count in the indictment in order to cure its error in pleading, since larceny is not a derivative of perjury.

The Court held that the common law larceny criminal count of the indictment is unsubstantiated by the evidence on the trial. The statutory requirement that the false representation must be alleged has not been met by the prosecution and, accordingly, count three is dismissed as a matter of law against all three defendants.

Here in Stephen Bilkis and Associates, our Queens County Grand Larceny attorneys will help you file a case against a person who took your personal things without your consent. We also have Queens County Criminal lawyers who are always available to render their services when the need arises.

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