In this Criminal action, defendants filed a motion for ‘an order directing the dismissal of the indictment herein upon the ground that the Grand Jury which returned said indictment was unconstitutionally selected and therefore did not acquire jurisdiction to charge the defendants. Before dealing with the merits it is necessary to point out some procedural defects in the making of the motion.
A Queens Criminal attorney said that the legend indictment is endorsed on the back of the motion papers and on the face of the notice of motion. That indictment, however, does not list the persons above-named as defendants. It names only 2 defendants and charges them with one crime, to wit: conspiracy to commit murder. However, the caption on the motion papers here names as defendants, in addition to the two, the five other persons above-named. The title on these motion papers is therefore clearly incorrect and is doubtless due to the fact that all seven defendants listed in these motion papers, together with ten other defendants, are named as defendants in another indictment (which charges the defendants with conspiracy to commit criminal anarchy and which was handed down simultaneously). The moving defendants no doubt desire to have this one motion apply to both indictments. Therefore, despite the faulty procedure, the decision rendered on this motion will be considered to apply to both of said indictments.
The Court held that the motion to dismiss the indictments is bottomed upon the postulate that the grand jury which returned the indictments was unconstitutionally selected. As the predicate of this postulate, defendants contend that the provisions of the Judiciary Law dealing with the qualifications of grand jurors in New York City are unconstitutional because the provisions therein that a juror to be qualified to serve must be intelligent; of sound mind and good character; well informed and a person who has not been convicted of a ‘misdemeanor involving moral turpitude’ set up an impermissible subjective test for qualification of a juror to be applied by the jury clerk.
In support of this thesis, defendants rely upon the cases which strongly implied suggestion that the judgment of the clerk in applying this allegedly ‘subjective test’ would or might be influenced and colored by his bias and prejudices.
And as to the test of having been convicted of a misdemeanor involving moral turpitude, defendants assert, to demonstrate how ‘subjective’ such standard is, that ‘Negroes arrested for a demonstration to secure basic civil rights and convicted of misdemeanors in connection therewith might well, in the view of the County Clerk, be guilty of misdemeanors involving moral turpitude.’
Defendants’ moving papers are entirely devoid of any factual showing of intentional, planned and deliberate exclusion of or discrimination against members of any particular political or economic group, religious faith, race or sex in summoning and selection of grand or petit jurors. The statement above quoted which comes from defendants’ memorandum of law is not a factual showing; it is merely a conglomeration of unsupported conclusions, generalizations, and conjectures.
Defendants’ factually unsupported contentions are insufficient to bring into question the validity of the selection and composition of the grand jury which returned the indictments in this matter. The Court found, as hereinafter set forth, that the statutes attacked by defendants do not suffer from any constitutional defect and that nothing has been presented of a factual nature to support the claim that the selection of grand jurors in Queens County, because of the alleged small ratio of Negroes empaneled to serve on grand juries in proportion to their percentage in the population, is violative of the Fourteenth and Fifteenth Amendments to the United States Constitution.
A consideration of the constitutionality of a statute commences with the basic principle that constitutionality is presumed. A party who alleges the unconstitutionality of a statute has the burden of sustaining such claim and, to do so, must overcome the presumption of constitutionality. Only in a clear case will a statute be held to be constitutionally defective and ‘the challenged legislation must be manifestly, undoubtedly, clearly, plainly, substantially, and palpably inconsistent with constitutional standards.’ This, defendants have not demonstrated.
Proper administration of justice may require that persons who are to act as jurors meet some minimal requirements of intelligence and integrity. Equality under the law does not require that every person who is a citizen and within a certain age group has the right to serve as a juror regardless of the state of his mentality, health or background. Surely equal protection of the law does not require that a moron, or a psychotic, or one suffering from a debilitating disease may not be stricken as a juror. In the nature of the problem it is nothing less than reasonable to require that a juror, to be qualified to serve, must be intelligent, of sound mind and good character, and well informed.
The fact that the judgment to be exercised by the jury clerk entails the use of some discretion does not render such judgment so subjective that it collides with constitutional concepts of equality. An attempt by the clerk to apply standards of ‘intelligence’ or ‘moral turpitude’ different from those generally accepted would constitute an arbitrary and capricious abuse of discretion. To hold that no discretion at all may constitutionally be lodged in the clerk to pass on the qualifications of a prospective juror as set forth in the Judiciary Law is to hold that this equal protection guarantee is satisfied by a rigid requirement that each and every person of the class from which jury lists are taken must be placed upon such lists, regardless of his lack of intelligence, even though he may not be of sound mind and though he may be the most dissolute and dishonest character, and even though he may have been convicted many times of misdemeanors involving moral turpitude such as tampering with a witness.
The main thrust of defendants’ argument concerning the constitutionality of the provisions of the Judiciary Law is bottomed entirely upon that footnote dictum, where the claim here made concerning the constitutionality of the statutes in question was also made, the defendant’s argument was also based on this dictum. The court held that ‘the observation by the Federal Court in the case concerning the statutes under consideration is no formed decisive resolution, no adjudication and no professed or deliberate determination and lends little or no support to the defendant.
Apart from the fact that this dictum is not controlling here, the Court do not accept it because it does not agree with its rationale. The doubt expressed by the court in Chestnut about sections 596 [55 Misc.2d 717] and 609 of the Judiciary Law rested in the main upon the decision in a case in which the Supreme Court found unconstitutional a state requirement that voters be able to interpret any part of the Louisiana or United States constitution because, as the court held, of the Arbitrary power that it gave to state election officials to pick and choose by their own standards who can or cannot vote.’
The Court did not agree that our statutes requiring that a grand juror be ‘intelligent; of sound mind and good character, well informed’ is at all comparable with the Louisiana statute which was condemned as unconstitutional.
As with all claims of constitutional violations, to raise an issue as to the constitutionality of the impaneling of a grand or petit jury a factual demonstration that there is in truth such an issue is required. A mere conclusory and factually unsupported statement that the grand jury was unconstitutionally formed in that there was a systematic and intentional exclusion of members of a particular race does not [55 Misc.2d 720] create an issue.. There is a presumption of regularity and of due performance of duty on the part of officials.
Defendants here have failed to make any factual showing sufficient to raise an issue that there was a deliberate and systematic exclusion of Negroes from service on grand juries. The only assertion made by defendants in this regard is that ‘it is a matter of common observation in Queens County that most grand juries consist solely of white people, and at best Negroes represent an occasional token representation on such bodies,’ and that ‘since the proportion of Negroes in the population of Queens County is at least one-sixth that of the general population, it is impossible to believe that this lack of representation on the grand juries is fortuitous.’ I repeat what I said before, this is not a statement of fact but is merely an undocumented and unsupported conclusion and inference. The ‘mere absence of any members of an eligible class or race from a particular jury or panel is not proof, in and of itself, of the exclusion of that class or race from jury service’:
‘We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%.’ In that case it was factually established that Negro males constituted 26% Of all those eligible to be impaneled as jurors; that 10% To 15% Of the grand and petit jury panels drawn since 1953 had Negroes thereon; and although since 1950 there were six or seven Negroes on petit jury venires, no Negro actually served. Yet the Supreme Court did ‘not consider an average of six to eight Negroes on these panels as constituting forbidden token inclusion within the meaning of the cases in (that) Court.’
The motion lacks merit and is in all respects denied.
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