Opinion
February 10, 1960
Philip G. Rosenberg for defendant.
David Hendler, District Attorney, for plaintiff.
The defendant has been indicted for violation of section 1053-c of the Penal Law of the State of New York which provides that any person who while engaged in hunting shall discharge a firearm or operate a long bow in a culpably negligent or reckless manner, whereby a human being is killed, is guilty of criminal negligence while engaged in hunting.
This is a motion to inspect the minutes of the Grand Jury. The District Attorney has furnished the court with a copy of the testimony given before the Grand Jury and the court has read that testimony. There is a serious question as to whether or not the testimony given before the Grand Jury would indicate that the defendant did more than a mere careless shooting which resulted in death. The courts have held ( People v. Carlson, 176 Misc. 230, 232) that "Mere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be, do not constitute culpable negligence." Whether or not the testimony given before the Grand Jury indicates that the conduct of the defendant was something more than the negligence necessary to support a civil action and that there existed in the mind of the defendant at the time of the shooting a consciousness of the probable consequences of the act and a willful and wanton disregard of his act is a matter upon which both the People and the defendant's counsel should be heard, and for this reason, without in any way deciding whether or not the evidence is sufficient to warrant the indictment, an inspection of the minutes before the Grand Jury is granted the defendant.