People v. Dabek

William J. Began, J. This is a motion by counsel for the defendant for permission to withdraw a plea of not guilty and instead interpose a demurrer to the indictment. Defendant is charged with having violated section 1308 of the Penal Law. The indictment specifies that the defendant is accused of buying, receiving, concealing or withholding stolen or wrongfully acquired property. Counsel argues that the indictment does not conform with sections 275, 276, 278 and 279 of the Code of Criminal Procedure. Subdivision 2 of section 275 says an indictment must contain “A plain and concise statement of the act constituting the crime, without unnecessary repetition ’ ’. Section 278 says “ The indictment must charge but one crime ”. Judge Brancato of Kings County considered this identical question in People v. Arcamone (167 Misc. 122) in 1938. In interpreting a similar indictment under section 1308 Judge Brancato held (p. 123) that “ To charge a violation of section 1308 of the Penal Law, in a single count of the indictment [438] committed by 1 buying, receiving or concealing property, etc., ’ leaves the defendant to conjecture by which of the three means enumerated he is charged to have violated said section ”. The court agrees that the defendant is entitled to know the specific nature of the charge and as presented it does not amount to the plain and concise statement required by subdivision 2 of section 275. The plea of not guilty is permitted to be withdrawn, the demurrer is sustained, the indictment is dismissed with the understanding that the District Attorney may proceed to resubmit the matter to the G-rand Jury if in his opinion the same is warranted.