On July 30, 1946, a Grand Jury, sitting with the County Court of Nassau County indicted the defendant for assault in the second degree and subsequently a trial jury found him guilty of that crime. The defendant is a Negro. Both before the trial and after it, he moved "for an order vacating the indictment herein found July 30, 1946 by the Grand Jury of Nassau County, on the ground that the said Grand Jury was unconstitutionally formed in that there was a systematic and intentional exclusion of Negroes from said Grand Jury". The Acting County Judge of Nassau County held a hearing on that motion and denied it (193 Misc. 381); the order for denial thereof as well as the judgment of conviction were affirmed on an appeal taken by the defendant to the Appellate Division (273 App. Div. 984); and the defendant thereafter brought the case here when a Judge of this court certified that a question of law was involved which ought to be reviewed by us (see Code Crim. Pro., § 520, subd. 3).
Pursuant to statute, the list of grand jurors in Nassau County has long contained 600 names (McKinney's Unconsol. Laws, § 3813). From 15 to 60 vacancies which have occurred therein annually through death, removal from the county, and disability for age or physical condition have been filled each December by the County Commissioner of Jurors and the Board of Judges of the County out of 60 to 100 names taken by the commissioner from the county trial jury list (see McKinney's Unconsol. Laws, §§ 3802, 3813).
The case for the defendant rests upon two circumstances: (1) The Commissioner of Jurors of the County submitted to prospective jurors a questionnaire which required them to indicate thereon their color, sex, weight, height and color *Page 130 of eyes and hair. (2) For a period found by the County Judge to have been "ten years or so" (193 Misc. 381, 385), no Negro has been selected for service as a grand juror in Nassau County, though numbers of Negroes who were qualified for such service resided in that county during that period.
The first of these two circumstances was accounted for by the commissioner in these words: "Well, every juror that we qualify in Nassau County, the name is submitted to the Identification Bureau of the Police Department in Nassau County, to be checked against their files of criminal records, which comes from the F.B.I. office in Washington. * * * Sometimes we got eight or ten convictions against a fellow by the name of Harry Jones, all different people, all different places, at different times, so, in order to eliminate that, when the new questionnaires were printed I had this identification put in there, so when the Police Department reported to me that a person of such a name had a criminal record and his history was such and such, his hair was such a color, his eyes was such a color, and he was either a white man or a colored man or an Indian or a Chinaman or something, I can identify the man, there is no chance of confusion or mistake." This testimony of the commissioner was credited by the County Judge who saw and heard him, and that determination is for us the end of this part of the case, because we have here no power to deny the right of the trier of the fact so to believe a creditable witness (People v. Scheinman,295 N.Y. 142).
Hence we pass to the second of the two circumstances on which the defendant relies, i.e., no Negroes had been selected for grand jury service in Nassau County for a period of "ten years or so", as the County Judge found (193 Misc. 381, 385). In this connection, the Judge said: "There are no lists kept separately of Negroes placed upon the trial jury list of 18,000, nor is there any record kept of the number of jurors who are called for trial jury duty; but the proof sufficiently shows that Negroes are constantly serving on petit juries in the courts of this county. * * * Indeed, it may be taken as established and it is conceded that such is the case. That fact would seem to demonstrate that Negroes have their proportionate representation upon the trial jury list and to substantiate the testimony of the Commissioner of Jurors that such list *Page 131 is formed from the lists of registered voters throughout the county without regard to color." (193 Misc. 381, 383.) This finding of the County Judge has not been challenged.
In 1946, when the indictment in question was returned, the Board of Judges of Nassau County was composed of the four Supreme Court Justices then resident in the county and the County Judge (see McKinney's Unconsol. Laws, § 3802). There is evidence, and the County Judge found, that some names of trial jurors were added to the grand jury list by the Board of Judges of their own motion and without submission thereof by the Commissioner of Jurors. (193 Misc. 381, 384.) Under the statute, the certification of that grand jury list has over the years been the responsibility of the Judges alone (McKinney's Unconsol. Laws, § 3813). No charge of discrimination has here been made against them nor has anyone imputed to them a failure in perception of their plain statutory and constitutional duty. (Cf. Civil Rights Law, § 13; N.Y. Const., art. I, § 11; U.S. Const., 14th Amendt.)
The controversy is reduced, then, to a claim that the commissioner systematically and intentionally kept the names of Negroes off the lists of trial jurors from which vacancies on the grand jury list were filled each December. In respect of that reproach, the commissioner was not silent. He said: "Well, the only thing I can say on that, when I recommend them I don't know their color, I don't refer to their color in selecting the names. I mean, when I am selecting those names or getting those names out of the files or taking it from the files, I don't know what their color is or their religion or their political affiliations." This testimony, too, was credited by the County Judge who had the commissioner before him.
The issues thus decided have a background that remains to be noticed. The County Judge said: "Here it is beyond question that the petit jury list of 18,000 is chosen without discrimination, that Negroes and whites are placed upon it without any question of color, and that the Negroes from the trial jury list are constantly serving as trial jurors in the courts of this county. The grand jury percentage of the trial jury list of 18,000 is so small * * * that it would permit the choosing of only 3 men from the list out of 100 for grand jury service, and in the case of selecting 45 to make up the 600 for the *Page 132 year 1946 the choice would be limited to only 1 out of 400." (193 Misc. 381, 387.) According to the 1940 census, there was 1 Negro to every 33 white persons in Nassau County. If that ratio had been applied to the 45 grand jurors selected in the year 1946, the naming of 1 Negro would have afforded proportionate representation to his race among those added to the general grand jury list for that year, assuming, of course, that all Negroes then resident in the county were duly qualified. The relevant statutes, however — here unchallenged by the defendant — required no fixed representation of racial or other groups on the grand jury list in question. Those statutes authorized the Board of Judges to certify as grand jurors only persons found by them to be "Free from all legal exceptions; of fair character; of approved integrity; of sound judgment; and well informed" (see Judiciary Law, § 502, subd. 5; Code Crim. Pro., § 229-b; McKinney's Unconsol. Laws, § 3813; cf. Code Crim. Pro., § 223).
The conclusion of the County Judge was that no prima facie case of discrimination had been established. The Appellate Division unanimously affirmed. We cannot announce a contrary decision as matter of law on this record.
Other points, involving the sufficiency of the proof, the breadth of the prosecutor's cross-examination and the regularity of the verdict, are raised by the defendant. These have been examined and found to be without merit.
The judgment should be affirmed.