
    In the Matter of John J. Fitzgerald et al., Petitioners, against County Court of Kings County et al., Respondents.
    Supreme Court, Special Term, Kings County,
    July 10, 1944.
    
      
      John J. Fitzgerald and Maurice Edelbaum, petitioners in person.
    
      Thomas Cradock Hughes, Acting District Attorney (Henry J. Walsh of counsel), for respondents.
   MacCbate, J.

Petition denied. This is an application for an order prohibiting a County Judge from proceeding to take the deposition of a witness on behalf of the People under section 219 of the Code of Criminal Procedure. It is the contention of the petitioners that section 6 of article I of the Constitution of the State of New York requires personal testimony of witnesses at a trial and makes illegal the use of any deposition taken on behalf of the People under section 219 of the Code of Criminal Procedure. Neither counsel nor the court has found any record of debate in the Constitutional Convention of 1938, or any report of any committee, in connection with that part of the amendment of section 6 of article I which relates to confrontation. Comparison with the provision of section 8 of the Code of Criminal Procedure in force at the time of the amendment, shows that the constitutional amendment states ' ‘ in any trial ” the party accused shall be entitled to be confronted by the witnesses, while the Criminal Code provides “ in a criminal action ” the party accused shall be confronted with the witnesses. " In a trial ” certainly is far more limited than " in an action ”. The latter expression includes proceedings before and subsequent to the trial. But in the absence of debate in the Constitutional Convention or report by any committee thereof, and in view of the long-established right to such pretrial examinations (People v. Fish, 125 N. Y. 136), as well as the recess of appellate courts, we resolve any doubt as to the legality of the provisions of the Code of Criminal Procedure in favor of the People. (People v. Reed, 276 N. Y. 5.)

Had the Convention intended to work drastic change in the prevailing law, it is likely that the debate, which occurred when self incrimination of public officials was discussed, would have also touched on confrontation by witnesses.  