Criminal Procedure Law section 190.75 prevents a prosecutor from resubmitting
a charge dismissed by grand jury absent leave of court. In
People v. Davis, N.Y.L.J., Jan. 6, 2010, at p.34, the prosecution presented evidence to a grand jury (“GJ1”)
concerning an incident in which the defendant and a co-defendant allegedly
slashed the complainant’s face with a razor. Because the defendant
had not been apprehended at the time of the presentation, the case was
introduced to GJ1 as being against only the co-defendant. The alleged
victim testified in the GJ1 as to all operative facts of the case and
called both defendant and co-defendant, both of whom were known to the
alleged victim, by name. After eliciting testimony from the alleged victim,
the prosecution held the case open and did not vote it out in GJ1. The
defendant was arrested 3 days later. Seven days after its initial presentation
of evidence to GJ1, the prosecution withdrew the matter from its consideration.
GJ1’s term expired, and the prosecution then re-presented the case
to a second grand jury (“GJ2”), which voted an indictment
of both defendant and co-defendant. The defendant was later convicted
of two counts of first-degree assault and one count of second-degree assault.
The defendant appealed the conviction, citing the prosecution’s
violation of CPL 190.75. That provision makes clear that if the first
grand jury actually dismisses a charge against a defendant, the prosecution
is required to seek leave of court before representation. However, where
the prosecution has presented substantially all of the evidence to the
first grand jury and then withdraws the case from consideration, the law
may deem such presentation and withdrawal to be tantamount to a dismissal,
and trigger the leave-seeking requirement even absent actual dismissal.
Davis court found that the first presentation did, in fact, trigger the affirmative
obligation to seek leave and reversed the defendant’s conviction.
In its ruling, the Court announced that a lower court must consider when
whether a given presentation has reached the point of no return, i.e.
when “a withdrawal must be treated as a dismissal.” The overarching
consideration being “the extent to which the presentation had progressed,
i.e. whether sufficient evidence had been presented for the prosecutor
to ask for a vote.”
supra, at p.34, col. 5. If the first grand jury has heard evidence that would
be legally sufficient to sustain a charge against a defendant, then the
withdrawal thereafter operates as a dismissal and implicates CPL 190.75.
The fact that the GJ1 had heard sufficient evidence of criminality, linking
the defendant to the commission of the charged crime, and legally sufficient
as to each and every element of the charged offenses, meant that the line
had been crossed, and leave was necessary to represent. Because the prosecution
did not seek such leave, the indictment needed to be dismissed, and the
defendant’s conviction reversed. The policy implicated here is that
to prevent “the prosecutor [from using] the device of withdrawing
the case in order to get another opportunity to persuade a different,
and perhaps more amenable, grand jury that it should indict.”
Id. at col. 6. The court did note, however, that such reversal would not be
mandated by CPL 190.75, where a given presentation of evidence was “so
limited that the grand jury has no ability to consider the charge.”
Id. at col. 5.
Judge Catterson authored a lengthy dissent, taking the position that the
prosecution’s “decision that they have presented all of the
evidence they deem necessary to secure an indictment against a specific
defendant or defendants” should be controlling as to when a withdrawal
of the presentation should be deemed tantamount to a dismissal.
Davis, supra, at p.35 col. 2 (Catterson, J. dissenting). It may very well be that the
Court of Appeals will ultimately decide the issue, if Judge Catterson
decides to grant leave.
Do you need the advice of an experienced criminal appellate attorney? Call theformer Manhattan District Attorney’s Office Appellate Prosecutors at the Law Offices of Galluzzo & Arnone LLP, (212) 918-4661.