The criminal defendant man was indicted for the crimes of robbery in the first degree, robbery in the second degree and grand larceny in the second degree. On August 10, 1978 the defendant moved for a dismissal of the indictment on the ground that he was not given an opportunity to testify before the grand jury, although timely notice to that effect was served upon the district attorney. On August 25, 1978 the accused man’s motion was heard. The complainant conceded that the defendant man was not notified to appear as a witness before the grand jury, but would not consent to a dismissal on that ground. The complainant moved that, instead, the indictment be dismissed in the interests of justice. The defendant joined in the complainant’s motion and the indictment was dismissed on that ground.
Thereafter, on August 28, 1978, the complainant’s instant application for leave to resubmit was argued. The complainant alleged that through inadvertence, leave to submit the charges to another grand jury and to make the dismissal conditional upon the defendant testifying under a waiver of immunity was not requested. Credit card fraud was not involved.
The defendant man contends that since the indictment was dismissed in the interests of justice on the complainant’s own motion, the court is without the authority to grant leave at this time. Furthermore, he argues that an application for leave to resubmit the charges after dismissal of an indictment may be made only at the time the motion to dismiss was heard and granted. Since the complainant failed to ask for leave to submit the charges at that time whether inadvertently or otherwise, they are estopped from seeking that relief. The complainant on the other hand urged that upon all of the attendant circumstances the court may properly grant the application, although such relief was not applied for upon the dismissal of the indictment. Bribery was not involved.
The law is clear that a grand jury proceeding is defective when the defendant is not accorded an opportunity to appear and to testify before the grand jury in accordance with the provisions of the Criminal Procedure Law (CPL). A defendant has a right to appear before the grand jury hearing if the charges of which is he is accused, upon the service of a notice of request to the district attorney and execution of a waiver of immunity. Upon receiving such notice, the district attorney must notify the grand jury foreman and serve the defendant with a notice of the date he is to appear. If the defendant is not accorded of his right to appear and to testify before the grand jury, the proceedings are defective and the indictment should be dismissed. An indictment may also be dismissed in the interests of justice. A motion to dismiss on this ground may be brought by the complainant, by the court or by the defendant.
The fact that the indictment was dismissed in the interests of justice rather than because of defective grand jury proceedings is immaterial. Criminal Procedure Law permits resubmission of charges on both grounds.
The intent of the Legislature was to permit a resubmission of the charges under court order upon dismissal in those cases where the defect should not result in foreclosure of further prosecution, but prohibits resubmission where the impediment is of an inherently fatal nature. It is obvious that the Legislature did not deem a defective grand jury proceeding as an impediment of an inherently fatal nature. In those cases where a defendant has immunity; or the prosecution is barred by reason of a prohibition against prosecution; or the prosecution is untimely; or the defendant has been denied a speedy trial, the court may not grant leave to resubmit the charges upon the dismissal of an indictment. The statute permits a resubmission where the dismissal was based upon a defective grand jury proceeding or in the interests of justice, so that further prosecution would not be foreclosed.
The defendant raises another issue which appears to be of first impression in the State of New York. He contends that CPL permits the court to authorize resubmission of a case when the application to do so is made by the complainant upon the dismissal of an indictment. He claims that the word “upon” as used in the statute means the precise moment the indictment is dismissed. Therefore, since the application in the case was made three days later, the court should not grant the relief sought in the proceeding.
Research revealed one case that discussed the word “upon” as a point of time. The court, applying the dictionary definition of “upon” as “with little or no interval after” (Webster’s New International Dictionary, 1950), held that these delays invalidated the seizures. It stated that a delay of a period of days or short weeks at most would be permissible under the statute. Although the court did not resolve the question of how long a delay might not be too long, it held that the delays in that case were too long.
Two cases relied on by the complainant appear to sustain their position that the failure to apply for leave to resubmit at the time the indictment was dismissed does not bar an application for that relief thereafter. In one of the two cases, the court stated that after the County Court dismissed an indictment following the granting of a motion to suppress physical evidence upon which the indictment was based, the available remedies to the complainant for possible reinstatement of the indictment was either by appeal under the then section 518 of the Code of Criminal Procedure or by applying to the County Court under the then section 327 of the Code of Criminal Procedure for leave to resubmit the matter to the same or another grand jury. The complainant was granted leave to apply to the County Court to submit the charges to another grand jury.
In the second case, the court held that the dismissal of the indictment without the authorization to submit or resubmit the charges to the same or another grand jury barred further prosecution of the charges. However, the court pointed out the fact that the dismissals did not grant the complainant the authorization to resubmit the charges to a Kings County Grand Jury does not bar them from seeking such authorization.
The indictment in the instant case was dismissed on August 25, 1978 and the complainant brought this proceeding by way of order to show cause on August 28, 1978, a delay of three days. The statute, it will be recalled, used the word “upon dismissal”. It does not state contemporaneously with or immediately upon. A delay of three days was but a short interval of time and within the meaning of Criminal Procedure Law. The delay was not so inordinately long as to violate the mandate of the statute that leave be sought upon dismissal. The application for leave to submit the charges to another grand jury (the grand jury which found the instant indictment is no longer in session) is granted. However, that aspect of the application which seeks to amend the order of dismissal so as to make it conditional upon the defendant appearing and testifying as a witness after waiving immunity is denied.