An offender argues an indictment charging him with the felony of taking unlawful fees as a public officer. The issues turn on the failure of the indictment to allege facts tolling the statute of limitations, the applicable tolling statute, and the sufficiency before the grand jury of non-accomplice confirmation. Arson was not charged and neither was assault.
The offender is charged with accepting $23,500, in four installments of $5,875 each, from a manufacturer of parking meters. In return of the said amount the offender allegedly encouraged the city to purchase approximately one thousand five hundred to two thousand meters. However, no facts are alleged in the accusation which would toll the limitation.
Sources revealed that the Supreme Court required untimeliness to be raised at trial and not by preliminary proceeding. In preferring the practice, the court was convinced by the general principle that exceptions to criminal statutes are matters of defense to be raised at trial.
Based on records, accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the law contains exceptions, will not nullify an indictment because it appears upon its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the complainant of the right to reply or give evidence, as the case may be, that the offender fled from justice and was within the exception. Nor is it admitted that any different rule would apply in the case even if the statute of limitations did not contain any exception, as time is not of the essence of the offense and also for the reason that the effect of the demurrer, if sustained, would be to preclude the complainant from giving evidence, as he would have a right to do, under the general issue, to show that the offense was committed within two years next before the indictment was found and filed.
The offender in the case further argues for dismissal of the charges on the authority of the Hines case. The broad premise in Hines, if followed, would resolve the issue in the offender’s favor. But unless the Hines case rationale is independently persuasive, in the light of established and persistent contrary guide, it ought not to be followed. Moreover, the Hines premise has not been followed and, indeed, at least one recent case held contrarily without referring to it.
The offender also contends that regardless of any unmet pleading requirement, the tolling provision relied on by the complainant is not applicable. The offender argues that the word resubmitted in connection with demurrers is confined to a submission to the same grand jury, or a grand jury in the same county, not in a different county as occurred.
Sources revealed that no authority is offered in support of the offender’s legal interpretation. The section, in dealing with demurrer, does not require resubmission to a grand jury in the same county, impossibility if the dismissal was based on lack of territorial jurisdiction. The word resubmitted refers simply to a submission without specification where. Nor does the section that allows resubmission following successful demurrer limit the resubmission to the same grand jury or a grand jury drawn from the same county. The section provides that upon allowing a demurrer the court may direct resubmission to the same or another grand jury.
Based on records, it is not on its face defective for failure to allege facts tolling the statute of limitations. Lastly, independent conditions support the accomplice testimony before the grand jury. As a result, the order of the appellate division should be affirmed.
Sometimes people tend to perform unlawful actions due to financial problems. If you get yourself involved in a crime, you can seek legal assistance from the Nassau County Criminal Lawyer or Nassau County Family Attorney. Furthermore, criminal related victims can seek legal guidance from the Nassau County Order of Protection Attorney at Stephen Bilkis and Associates.