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New York Appellate Court Rules that Grand Jury Can’t Readdress Issue After Being Dismissed in Prior Proceeding


(People v. DA, NY Slip Op 08537)

December 13, 2018

In this case, the court weighs the question regarding whether the grand jury can readdress a charge that has been presented to it after it had been dismissed in a prior proceeding. The court held that a charge may not be resubmitted to another grand jury pursuant to Criminal Procedure Law 190.75(3).

Under common law, it was permitted to submit a charge repeatedly to a subsequent grand jury (Peo. V. Wilkins 68 NY2d 269, Peo. v. Credle 17 NY3d 556). When the predecessor to CP 190.75(3) was passed, its intention was to stop that practice.

The people failed to obtain court permission to resubmit a murder charge to a different grand jury. The prior grand jury had been deadlocked which is in violation of CP 190.75(3). The Supreme Court also erred in denying this motion to dismiss the count in the pretrial motion. The error, however, doesn’t need the reversal of a conviction that was based on a valid initial indictment.

This case is based on the facts as follows. The defendant drove a getaway car after a shooting that caused the death of a victim, two other victims survived. The defendant and accomplices were indicted for this crime. The defendant was charged with murder. The grand jury, however, was deadlocked on a charge of second-degree murder.

The People didn’t address the deadlocked decision. A couple of years later, however, the People filed another indictment against the defendant for attempted murder and included a third defendant, BB. The People obtained permission to resubmit the count as to BB, but not as to the defendant, in violation of CP 190.75(3).

The defendant moved to dismiss the count pursuant to CP 190.75(3). The Supreme Court said they were required to obtain permission, but the error was not considered fatal and didn’t merit a dismissal. They also concluded that the error wasn’t in bad faith.

The appellate court reversed and granted a new trial based on a manslaughter charge influenced by the verdict (People v Mayo 48 NY2d 245 [1979].

There was one judge who dissented, and the court granted a leave to appeal. This court reverses.

In a previous case (People v Wilkins 68 NY 2d 269 [1986], the court held that a prosecutor withdrawing a case from the grand jury was like a dismissal. Pursuant to CP 190.75(3), the prosecution must seek permission to retry the matter in front of a grand jury.

The court held that if a grand jury is deadlocked, the prosecution can’t resubmit the matter to another grand jury without permission.

In this case, the People contend that the Supreme Court didn’t err in dismissing the count, or that their failure to comply with CP 190.75 (3) doesn’t require a dismissal.

This decision is considered irreconcilable with a previous decision made in People v Credle (17 NY3d 556 [2011]. In that case, the indictment was dismissed due to the failure of the People to comply with the statute.

The Order is reversed and remitted to the Appellate Division for determination of facts and issues.

In a concurring opinion, Judge Rivera said that he agreed with the majority’s result in that there was no way that the jury’s decisions on the remaining issues was tainted by the murder count. The People’s failure to obtain permission for the resubmission of the dismissed murder charge rendered the indictment on that charge jurisdictionally defective.


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