The defendant was indicted by the grand jury impaneled at the January term of this court for the crime of perjury. By permission he has withdrawn his plea of not guilty and now moves that the indictment be set aside “ Upon the ground that the Attorney-General or his deputy had no right to proceed herein in the place and stead of the district attorney of Queens county.”
The grand jury was duly impaneled, sworn and charged by the court on the 6th day of January, 1908, and entered upon the performance of its duties.
On the first day of February, it came into court, presented the indictment in question, and thereafter continued ‘its labors until the twenty-ninth day of the same month, when it was discharged for the term.
*411It appears, from the indictment, that the testimony upon which the charge of perjury is predicated was given by the defendant before the grand jury, after the administering of an oath to. him by the foreman, on the tenth day of January and while that body was in session and engaged in an inquiry relative to the alleged misconduct of public officials in the county and others, in the matter of the purchase by the city of Hew York of certain lands for a public park, and generally known and styled as “ Kissena Parkwhich inquiry, the court in its charge to the grand jury at the opening of the term, had advised should be a subject of investigation.
The papers submitted hereon show that, on the 30th day of December, 1907, the Attorney-General appointed Uathan Vidaver, Esq., a deputy attorney-general, who, pursuant to such appointment, and on the same day, took his oath of office, which oath was filed in the office of the Secretary of State on the 10th day of January, 1908. It is also shown that, on the twentieth day of January, the Governor of the State, pursuant to the provisions of “ The Executive Law ” (being section 52 of chapter 683 of the Laws of 1892, as amended by chapter 821 of the Laws of 1895), by requisition in writing, filed in the office of the Secretary of State on that day, required the Attorney-General, among other specifications, to attend in person or by one of his deputies such January term of this court and appear before the grand jury for the purpose of managing and conducting in said court and before the said grand jury any and all proceedings, examinations and inquiries concerning or relating to any criminal charge against any person arising, growing out of or based upon any purchase of land by said city for such park.
It is stated by the defendant in his affidavit that, when he appeared before the grand jury on the day he gave the alleged false testimony, the dcpiity attorney-general was present; that the defendant was sworn as a witness, the oath being administered by the foreman of the grand jury; that said deputy, acting for the grand jury, examined and cross-examined the defendant as to his acts and relations to the matter. And, on information and belief, the defendant also *412says: “ That immediately before and after deponent had so testified, said grand jury summoned before it various persons named by your deponent, for the purpose of testing the veracity of the communications made to the grand jury by your deponent; and that, during all these examinations and the consideration of the matters out of which arise tHe charges embraced in the indictment against your deponent, there was present, from the sixth day of January to the twentieth day of January, said above-mentioned Nathan Vidaver, without authority and warrant of law; ” and thereupon the defendant claims: “ that such presence before the grand jury is a violation of law and makes void any and all proceedings had at and during said unauthorized presence.”
These allegations, it is insisted, show that disregard was had of the defendant’s rights, and that the case is brought within section 313 of the Code of Criminal Procedure, which, so far as it is applicable, reads as follows: “ The indictment must be set aside by the court in which the defendant is arraigned, and upon bis motion, in either of the following cases, but in no other:
“ 2. Whexi a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixty-four.”
The excepted sections last mentioned relate to the giving of advice by the court and the permissible presence of the district attorney, and it is not requisite that they be recited at length.
It is not suggested that the deputy was not properly before the grand jury after the twentieth of January; hut it is claimed that his presence there, prior to that date, was wholly unwarranted by. law and vitiated all of the proceedings of the grand jury, so that their .acts and proceedings were extrajudicial and wholly null and void.
Assuming, for the* purpose of argument only, that the deputy attorney-general was not authorized to attend upon the investigation prior to the twentieth of January, yet his *413“ unlawful presence ” did not have so grave and far-reaching an effect as to suspend the powers of that body and render all of its acts null and void. And, assuming also, for the like purpose only, that the “ unlawful presence ” vitiated the acts of the grand jury, it only served to require the court, upon a defendant’s motion, to set aside an indictment found; and that, not because of the “ unlawful presence ” when a witness took an oath administered in due form of law and gave false testimony upon which the indictment is based, but because of such presence when the charge embraced in the indictment was under consideration.
The defendant has assumed that, on the day he was sworn and gave testimony, the charge was being considered; hut the fact is, and the indictment so avers, that then the alleged crime of perjury was committed.
It cannot with propriety be held, and no case has been cited or found upon independent research, to sanction the holding, that it was not perjury to take an oath and give false testimony before a grand jury because, at the time, a person was present who was not permitted by law to be present in the grand jury room.
Just when the grand jury arrived at the conclusion that the testimony was untrue and that prima facie the crime was committed and took the charge under consideration is not indicated and must be left to conjecture. It cannot be gathered, even inferentially, from the papers submitted; it is not established by the defendant’s affidavit, either from the direct averments or those made upon information and belief.
As against the presumption that the grand jury acted in accordance with law and that its proceedings were regular, these averments are not sufficient proof of the irregularities alleged to have brought the case, on this motion, within the provisions of section 313 above cited.
The grand jury, with the deputy qualified to act as its legal adviser, was in session from the twentieth of January, and thereafter, and on the first of February, handed the indictment to the court. It must be presumed, in the absence of evidence to the contrary, that, within this period of time, that body took cognizance of the alleged offense committed *414before it on the tenth of January, had the charge under consideration and found the indictment.
I find no merit in the defendant’s contention, particularly in that he insists that, from the sixth to the twentieth of January, the grand jury was functus officio or an extrajudicial body. It may also be observed that it is doubtful if the presence of the deputy attorney-general before the grand jury was unlawful at any time, in view of the history of the office of Attorney-General and the powers and duties which have been incident to it from the earliest days of its existence. It is not needful, however, to elaborate this point; and it will suffice to refer to the able and interesting opinion of Goff, R., in People v. Kramer, 33 Misc. Rep. 209, for a logical and instructive exposition of the subject.
For the reasons above expressed, the motion must be denied.
Let an order be entered accordingly, whereupon the defendant must immediately answer the indictment.
Judgment accordingly.