
    The People of the State of New York, Plaintiff, v. Michael E. Foody, Defendant.
    (Court of General Sessions of the Peace in and for the City and County of New York,
    June, 1902.)
    Crimes — Inspection of minutes of the grand jury allowed where there has been no preliminary examination — Prior trial before the commissioner of police.
    An application by a defendant to inspect the minutes of the grand jury which indicted him should be granted where he has had no preliminary examination in a magistrate’s court.
    Such an inspection does not unduly invade the secrecy of the proceedings of the grand jury.
    The fact that he has already been tried before the city commissioner of police on similar charges is not material as it does not follow that the charges and the witnesses were identical in both proceedings.
    Motion for leave to inspect the minutes of the grand jury.
    Black, Olcott, Gruber & Bonynge (W. M. K. Olcott, of counsel), for motion.
    William Travers Jerome, District Attorney, opposed.
   Foster, J.

The salutary rule laid down by Judge Blanchard in People v. Molineux, 27 Misc. Rep. 60, based upon many authorities therein cited, and which has since been followed almost without exception in like cases seems to require me to grant this1 motion. v

The defendant has had no preliminary examination in the magistrate’s court, and, therefore, no opportunity to be confronted by, nor to cross-examine the witnesses against him. It is true that he has been tried before the commissioner of police on similar charges, but non constat that the charges and the witnesses in this action are identical with those in that proceeding.

Indeed the defendant’s counsel urges that they are different and offers to withdraw this motion if assured by the district attorney that the witnesses and the testimony are the same. If different the defendant ought to he permitted the inspection prayed for, while, if alike, the People cannot he prejudiced by granting him such inspection. Ror is the secrecy of the proceedings of the grand jury improperly or unjustly invaded by such inspection.

The publicity of the indictment disposes of that. Had the inquest of the grand jury resulted in a dismissal of the charges then only would it be an injustice (to the defendant) to give currency to the evidence taken.

I take it the chief reason for the secrecy of the proceedings of the grand jury is that those who are groundlessly accused may not be unnecessarily humilated by a publication of the ex parte charges made and evidence received against them.

The motion for leave to inspect the minutes of the grand jury herein is granted.

Motion granted.  