In these five criminal actions a single question is common to each appeal — Was the Grand Jury legally constituted which returned indictments against the appellants? *Page 409
That question was answered in the negative at Special Term where an order issued dismissing each indictment. Upon appeal by the People to the Appellate Division the order in each instance was reversed and the indictment reinstated, one justice dissenting.
As we consider whether the process was legally conducted by which the members of the Grand Jury were selected, we look to the record to ascertain the scope of the inquiry in which they were authorized to act. From that source we learn that the Grand Jury was impaneled at an Extraordinary Special and Trial Term of the Supreme Court convened by the Governor to be held in the County of Albany on December 13, 1943. Although the Extraordinary Term was originally appointed to inquire into election frauds, a supplemental order by the Governor extended the inquiry to include crime and corruption of public officers in Albany County or any subdivision thereof, crimes affecting the administration of justice, the collection of public revenues and crimes committed by persons and corporations having business dealings with Albany County or its subdivisions. The record makes it clear that within the broad field of inquiry thus established were ramifications which might reasonably invite investigation of a wide variety of matters involving acts by individuals connected with local government and transactions had between public officials and business interests.
The appellants do not assert that the Grand Jury as finally impaneled included members who were legally disqualified. The attack is upon the method of selection with special reference to rulings by the Trial Justice on the voir dire examination by which prospective jurors were excluded from service.
The statutes require that a grand jury shall consist of not less than sixteen and not more than twenty-three persons who shall be "chosen by lot" from "citizens of the county." (Code of Crim. Pro., §§ 223, 224.) The availability of any citizen for such jury service may be challenged if it appears "that a state of mind exists on his part in reference to the case or to either party, which satisfies the court, in the exercise of sound discretion that he cannot act impartially and without prejudice to the substantial rights of the party challenging." (Code of Crim. Pro., § 239, subd. [6].) The "state of mind" *Page 410 to which the statute refers is "actual bias." (Code Crim. Pro., § 376, subd. [2].)
The record before us does not support the appellants' assertion that the grand jury was not "chosen by lot". That statutory requirement (Code Crim. Pro., § 223) is satisfied if the grand jury ultimately selected is comprised of the first twenty-three persons drawn by chance whom the Trial Justice, in the exercise of a sound discretion, has determined to be impartial, free from actual bias in reference to the inquiry, and to possess the statutory qualifications. It is not denied that the names of the 288 persons, from whom the final panel of twenty-three was selected, were drawn by chance according to law from listed names in the grand jury box; nor is it denied that as each venireman was called for voir dire examination his name was drawn by chance from an appropriate ballot box.
As to rulings by the Trial Justice upon the voir dire examination we find no evidence that talesmen were excused as a result of a sustained, systematic effort by the court arbitrarily to exclude from the final panel persons of a particular classification — political or otherwise. Indeed, the suggestion that political affiliation exerted a decisive influence in the rejection of prospective grand jurors is disproved by the fact that of the twenty-three talesmen chosen to comprise the final panel nine were enrolled in the Democratic party, six in the Republican party and eight were not enrolled in any party. Nor do we think that either prejudice or arbitrary exclusion is proven by the circumstance that the number of grand jury members enrolled as Democrats is not mathematically in the same ratio as the percentage of that party's enrollment in the county of Albany.
When, as in the present case, the scope of inquiry by a grand jury is broad and may lead into official, business or political relationships involving numerous individuals, a Trial Justice, in the exercise of a "sound discretion" to determine the availability of a prospective juror, must of necessity consider many factors which might produce a "state of mind" which is prejudiced for or against the subject of inquiry. There are many instances — cited by the appellants as evidence of legal impropriety — when the Trial Justice rejected prospective jurors who, after admitting friendship or other relationship *Page 411 with those whose conduct might come within range of the inquiry, stated under oath that they could serve impartially. We cannot say that in any one of those instances there was no plausible ground for the decision by the Trial Justice. In the circumstances with which he had to deal he was not required to accept a prospective juror's statement that he could act impartially. (Balbo v. The People, 80 N.Y. 484, 495.) Knowing, as we do, that the causes operating to produce bias are of a nature which it is impossible strictly or accurately to define, we cannot rule as matter of law that the Trial Justice erred in those instances. (See Butler v. G.F., S.H. F.E.R.R.Co., 121 N.Y. 112, 118; People v. McGonegal, 136 N.Y. 62,71.)
Nor can we say that the appellants' rights were prejudiced when the Deputy Attorney-General representing the People was permitted, prior to the voir dire examination, to submit to each talesman a printed list containing the names of 330 individuals with whom any acquaintanceship by the talesmen would later be the subject of oral examination. From the scope of the inquiry upon which the Grand Jury was about to enter it was reasonably to be expected that the investigation would concern itself with governmental, political, business and personal relationships in which many individuals would be involved as witnesses or otherwise. The inspection by prospective jurors of such a list and their subsequent oral examination as to the nature of the acquaintanceship they had, if any, with the persons listed, was procedure reasonably calculated to shorten the voirdire examination and thus to facilitate the inquiry. That purpose, as the record indicates, was accomplished without prejudice to the rights of those who might be affected by any action to be taken by the grand jury.
We have already stated that we find in the record no evidence of a sustained, systematic effort by the Trial Justice arbitrarily to exclude persons of a particular classification from the final panel of grand jurors. Additionally, in connection with that conclusion, it may be said that if, during the twelve days while the voir dire examination was in progress, the Trial Justice erred in the exclusion of qualified talesmen from service, such exclusion affords no constitutional ground for the dismissal of the indictments against the appellants when, as in the present case, the grand jury as finally constituted consisted of jurors whose *Page 412 qualifications are not questioned. The applicable rule was stated by Mr. Justice HOLMES writing in Rawlins v. Georgia (201 U.S. 638, at p. 640): "Even when persons liable to jury duty under the state laws are excluded it is no ground for challenge to the array, if a sufficient number of unexceptionable persons are present. People v. Jewett, 3 Wend. 314." (See, also,Howard v. Kentucky, 200 U.S. 164, 173-174; Brown v. NewJersey, 175 U.S. 172, 175; People v. Schmidt, 168 N.Y. 568,577-578; Dolan v. People, 64 N.Y. 485, 494.)
Our conclusion is that in the process by which the twenty-three citizens were selected who constituted the final panel there was no legal error which deprived that panel of the character of a grand jury in a constitutional sense.
The orders should be affirmed.