Opinion
November 13, 1967
Appeal by defendant from a judgment of the County Court, Nassau County, rendered May 7, 1965, convicting her of the violation of vagrancy (Code Crim. Pro., § 887, subd. 4), on her plea of guilty on the 104th count of the indictment, in full satisfaction of the indictment which also charged her with vagrancy in two other counts and, in other counts, with the crimes of violating sections 580, 1146 and 1148 of the Penal Law. Judgment reversed, on the law and the facts; motion to withdraw the plea of guilty granted; indictment reinstated as to appellant as to all counts except the vagrancy counts which are herewith dismissed; and action remitted to the County Court, Nassau County, for further proceedings accordingly. The guilty plea should not have been accepted without an inquiry by the court, on the record, as to the underlying facts in order to determine that the plea was to a crime in fact ( People v. Serrano, 15 N.Y.2d 304). When, thereafter, defendant protested her innocence and moved to withdraw her plea it was, in our opinion, an improvident exercise of discretion to deny her motion. The vagrancy counts in the indictment cannot stand. In this State, the Grand Jury derives its powers solely from constitution and statute ( Matter of Wood v. Hughes, 9 N.Y.2d 144). It is authorized "to inquire into all crimes committed or triable in the county" (Code Crim. Pro., § 245). A "crime" is either a felony or a misdemeanor (Penal Law, § 2). There has always been a distinction between a "crime" and those minor violations which are dealt with summarily by Justices of the Peace or Magistrates ( People v. Grogan, 260 N.Y. 138, 141-142; Matter of Cooley v. Wilder, 234 App. Div. 256). The latter are regarded as special proceedings of a criminal nature ( People ex rel. Burke v. Fox, 205 N.Y. 490; Steinert v. Sobey, 14 App. Div. 505). Cases involving violations as distinguished from crimes are not subject to removal to a Grand Jury for prosecution by indictment pursuant to sections 39 and 57 of the Code of Criminal Procedure ( Matter of Erway v. MacAffer, 282 App. Div. 287; People v. Schermerhorn, 59 Misc. 146). Accordingly, there is no authority for a Grand Jury to return an indictment for any violation as distinguished from a crime ( People v. Davidson, 41 Misc.2d 431; People v. Leventhal, 26 Misc.2d 230). We note, in passing, that Fenster v. Leary ( 20 N.Y.2d 309), which declared subdivision 1 of the vagrancy statute (Code Crim. Pro., § 887) unconstitutional, is inapplicable to this prosecution which pertains to subdivision 4 of said statute. Beldock, P.J., Christ, Rabin, Benjamin and Munder, JJ., concur.