Defendant King has been indicted for the crimes of conspiracy; hindering prosecution in the first and second degrees; official misconduct; and obstructing governmental administration in connection with theft of drugs from the offices of the police property clerk.
Defendant King was granted leave to present his motion for omnibus relief by permission of an Associate Justice of this court pursuant to subdivision 2 of section 149 of the Judiciary Law.
The first branch of the motion before the court seeks an inspection of the Grand Jury minutes with a view towards dismissal of the indictment. The alleged basis for granting the motion to inspect is that the Special Prosecutor has engendered undue publicity adverse to King by various press releases, thus prejudicing the Grand Jury deliberations.
The newspaper clippings annexed to the papers do not indicate that the Special Prosecutor disclosed defendant’s name to the press. .
To the contrary, defendant held an interview with a reporter of the New York Daily News, which was printed in that newspaper on Saturday, February 23, 1974, in which he stated, "I know I’m the major suspect” and made further comments that the Special Prosecutor’s office was using him [King] as a "Patsy” in order to help get budget approval. This interview was alluded to in a subsequent article in The New York Times on February 25, 1974. It was in this later article that comment was elicited from "several law enforcement officers” with regard to King’s activities. There was no indication in this latter article either, however, that the source of the information was the office of the Special Prosecutor.
An affidavit from the foreman of the Grand Jury states that the Grand Jury considered only the evidence submitted to it, and that they were repeatedly admonished not to be influenced by anything occurring outside the grand jury room.
We conclude that improper influencing of the Grand Jury by publicity manufactured by the office of the Special Prosecutor has not occurred in this case. The urging that it has occurred, based on newspaper clippings annexed to the mov
It is further urged that the first count of the indictment alleging conspiracy would require corroboration and that possibly such corroborative evidence was not submitted to the Grand Jury prior to its returning a true bill.
However, we have held that corroboration is not deemed an "element” of the crime, and its absence does not preclude the finding that a prima facie case was stated (Matter of Ruggiero, 40 AD2d 135; People v Johnson, 46 AD2d 55, 58).
Moreover, the conspiracy count may be prosecuted together with the count of hindering prosecution. Generally, when a combination between two persons to effect a particular end is denominated by a specific name (e.g., adultery) with a specific punishment attendant thereon, it is unlawful to prosecute the same crime and denominate it as a conspiracy. This general rule is commonly known as "Wharton’s rule” (see a full explanation of this rule in 1 Anderson, Wharton’s Criminal Law and Procedure, § 89, p 191 [1957]).
. It is inapplicable to the case at bar, since the. harm attendant upon the commission of the substantive offense (hindering prosecution relating to narcotics offenses) is not restricted to the parties to the conspiracy agreement, and those prosecuted for conspiracy need not be the same as those prosecuted for the substantive crime (Iannelli v United States, 420 US 770).
In sum, we find the arguments presented in support of the first branch of the omnibus motion unpersuasive. There is insufficient shown to warrant granting of the motion to inspect the Grand Jury minutes and, accordingly, the motions to inspect the Grand Jury minutes and to dismiss the indictment must be denied (CPL 210.30, subd 4; People v Howell, 3 NY2d 672).
The second branch of the motion seeking discovery and inspection must likewise be denied.
Defendant seeks transcripts of any electronic eavesdropping containing voices identified as defendant King or relating to him or, in the alternative, an affidavit that no such devices were used in connection with any proceedings against the defendant.
In a responding affidavit, the Special Prosecutor represents
The balance of the items sought for discovery dealing with conduct of the Grand Jury must be denied, since there was no showing of taint in the convening, attendance or makeup of that jury (People v Howell, 3 NY2d 672, 675, supra cf. Matter of Alessi v Nadjari, 47 AD2d 189) to warrant discovery of the documents requested. In any event, disclosure of grand jury proceedings is interdicted, even when allegedly under court supervision (Matter of Proskin v County Ct. of Albany County, 30 NY2d 15).
Finally, with regard to exculpatory material sought to be discovered, the Special Prosecutor has sworn that he is presently not in possession of any such material.
The branch of the motion demanding a bill of particulars is denied. Those items not yet answered we find to be evidentiary in nature and not the proper subject of a bill of particulars (CPL 200.90, subd 3).
The last branch of the motion seeking to strike allegedly scandalous material from paragraph fourth of the indictment is denied.
Accordingly, the omnibus motion is denied in all respects with the exception of the demands for discovery of electronic surveillance tapes and identification materials, which are denied without prejudice to renewal before the trial court.