
    SUPREME COURT—SPECIAL TERM—QUEENS CO.,
    May, 1911.
    THE PEOPLE v. FRANK H. BURKE.
    (72 Misc. 336.)
    (1.) Constitutional rights—Whether waived or not by defendant is A question of fact which must be decided at trial not on
    MOTION TO DISMISS INDICTMENT.
    A defendant in a criminal action may waive his constitutional rights, and whether or not there be such a waiver is a question of fact which will not be passed upon on a motion to dismiss an indictment against him, but must be decided at the trial.
    (2.) Same—Evidence admissible as to waiver.
    Statements and testimony of an accused person, if made and given voluntarily with a full understanding of his situation and an exact comprehension of his rights, are admissible in evidence against him.
    (3.) Same—Indictments—Motion to dismiss.
    Where, upon an investigation ordered by the governor of the state, defendant was suppressed to testify before the grand jury in a “ John Doe ” proceeding, and by the first question put to him was cautioned that anything he said might be used against him, and the only evidence to connect him with the commission of certain forgeries, the subject matter of the inquiry, was his own testimony, his motion for the dismissal of the indictment found against him for said alleged forgeries, on the ground that his constitutional rights had been invaded, will be denied.
    Motion to dismiss indictments.
    'Eugene N. L. Young, for motions.
    
      James A. Parsons, Deputy Attorney-General, and Fred G. De Witt, District Attorney, opposed.
   Maddox, J.:

The presence of the defendant before the grand jury returning the indictments here under consideration was compulsory. Pursuant to the command of a subpoena he appeared as a witness in the matter entitled “ In the Matter of the Investigation tion in the borough of Queens, ordered by the Governor of the State of Hew York,” and was thereupon called as a witness ” (and) sworn in the ease of the People against John Doe.” Had he failed to obey the subpoena, or while in attendance had he refused to be sworn as a witness, he might well have apprehended the possibility, even the probability, of his being proceeded against and punished as for a criminal contempt of court and it is clear that he was compelled to be a witness in the proceeding then pending before that grand jury, to wit, “ the case of the People against John Doe.”

He was, as disclosed by the transcript of the minutes giving his testimony, by the first question put to him, cautioned that anything he said might be used against him, such transcript showing the following:

By Mr. Train: You understand if you give any testimony here it may be used against you hereafter; that you do not have to testify unless you wish to do so; that you do not have to answer any question the answer of which may tend to degrade or incriminate you; and if you testify you must waive any privileges the law gives to you in that regard! Do you wish to give any testimony? A. Yes.”

The statement and question and their purposes were plain and readily understandable, and the answer short and positive in form.

The questions thereupon and thereafter put to defendant and Ms answers related to various matters of fact essentially material and relevant to the commission of the several alleged crimes of forgery and of his connection therewith of all of •which crimes he was subsequently charged with the commission by the indictments here -in question.

Though the matter in which he wias sworn as a witness was stated to be “ the case of the People against John Doe,” it is apparent, in my opinion, from the questions put and the statements made by the then deputy general to the defendant here, that the defendant wias the only person against whom the forgery inquiry then pending was in fact directed.

The deputy general now in charge has, in his affidavit, verified April 4, 1911, stated that he “ had made a very careful, systematic and painstaking examination of ” the minutes of the grand jury finding and returning such indictments against Frank H. Burke, deponent has been unable to find any evidence-in said grand jury minutes, or in the-record of said grand: jury' as presented to deponent, that in any way connect said Frank1 H. Burke with the commission of said forgeries, except the evidence given by Frank H. Burke, the defendant, before said grand jury.”

The defendant claims that his constitutional rights have been infringed and violated rand moves that the indictments be dismissed.

It is the constitutional right of every man that he shall not be compelled to be a witness against himself in any criminal case; and it is also his absolute right that he shall have been first legally charged therewith by indictment on presentment of a grand jury.

But a party may waive his constitutional rights:; he may waive any of the constitutional provisions designed for bis protection (People v. Quigg, 59 N. Y. 83, 89; Jackson v. Rowe 106 App. Div. 65, 72) ; and whether or not there be a waiver is a question of fact, not to be passed upon on .a motion such as. this, to dismiss an indictment, but at the trial, when the question can be litigated, if necessary and the parties so desire.

Statements ' and testimony of an accused, if voluntarily made and given, -with a full understanding of bis situation and an exact comprehension of his rights.” (People v. Kennedy, 159 N. Y. 346, 361), whether in a judicial proceeding or not, are admissible .against him and the converse of this proposition is necessarily the law, if such statements were made under duress and coercion.

Duress and coercion are likewise questions of fact, not to be determined upon a motion for the relief here sought.

Motion denied.  