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First Department Decides New Grand Jury Practice Case

Criminal Procedure Law section 190.75[3] 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.

The 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.” Davis, 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.


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