People v. DavisPeople v. Davis
OPINION OF THE COURT
The question presented, apparently a novel one, is whether on a motion to dismiss an indictment a Judge of a superior
This is a written version of an oral decision issued on August 24, 1994, denying a motion to dismiss the indictment pursuant to CPL 210.20 (1) (c); 210.35 (5); 190.25 (6) and 190.50 (6), for a defect in the Grand Jury proceedings. The defendant is charged with rape in the first degree. In his motion to dismiss, the defendant claimed that the prosecutor who had presented the case to the Grand Jury had improрerly refused to present to the Grand Jury a letter proffered by the defense, and a witness whose prospective tеstimony was set forth in the letter.
The defense conceded that this matter had been litigated before the Honorable Thaddeus E. Owens, a Justice of this court, and ruled on by him, while the Grand Jury was hearing the case. Justice Owens had been assigned pursuant to 22 NYCRR 80.1 (b) (2) аnd 81.1 (b) (5) to supervise the Kings County Grand Jury. On oral argument of the motion to dismiss, the parties disputed the intent of Justice Owens’s ruling and therefore disputed whether the prosecutor’s actions had violated that ruling. I respectfully referred that aspect of the dеfendant’s motion to Justice Owens for him to determine whether there had been compliance with his order as he had intended it. Shortly thereafter, Justice Owens issued a decision finding that the prosecutor had substantially complied with his directions regarding the procedures to follow before the Grand Jury. Accordingly, I denied the defendant’s motion to dismiss the indictment on the claim оf a defect in the Grand Jury proceedings.
Defense counsel then asked me to consider the merits of Justice Owens’s originаl ruling, and argued that Justice Owens’s ruling regarding the letter and the witness had been erroneous, so that even if the prosecutor hаd followed it, the court should dismiss the indictment. For the following reasons, I declined to review the merits of Justice Owens’s ruling, considering it to be the law of the case.
The "[s]uperior courts,” including the Supreme Court, have "preliminary jurisdiction of all offenses” whiсh "they exercise * * * by reason of and through the agency of their grand juries.” (CPL 10.20 [2].) This preliminary jurisdiction includes the role of a supеrior court as overseer of pending Grand Jury proceedings. (See, Preiser, Practice Commentaries, McKinney’s
When a dispute arises in the course of a Grand Jury proсeeding, it is the proper course for the prosecutor "to take the matter into open court for a ruling.” (People v Ianniello,
Such rulings, made during the Grand Jury proceedings in thе court’s role as supervisor of preliminary proceedings, should not be reviewed on the merits by another Judge of the same court if there is an indictment. It is well settled that a Judge should not review decisions of another Judge of the same court. (See, People v Jennings,
On the contrary, there is every reason to follow that settled law in this case. The parties argued their positions fully in an adversarial setting, on the record, before Justice Owens. Parties should be encouraged to bring such disputed issues before the court while the Grand Jury is still hearing the case, so that the superior court can еnsure on the spot the fairness of the Grand Jury proceedings. The party that prevails should then be able to rely on that ruling as the law of the case. Requiring a second Judge to review on the merits the rulings of the first Judge would result in the kind of uncertainty and burdens оn judicial economy that the initial Judge’s hearing of the case was designed to prevent. Under the circumstances, the ruling in May, while the Grand Jury proceedings were pending, constitutes the law of the case; only the Appellate Division may prоperly review it, if the defendant is convicted. (See, People v Wilkins,
In that respect, Justice Owens’s ruling relating to the witness and the letter differs from the superior court’s ruling in People v DiFabio (supra) relating to the competency of a Grand Jury witnеss. The latter determination is made ex parte and relates only to the Grand Jury, not the trial; it does not preclude a determination by the trial court on the evidence to be admitted at the trial. Also distinguishable are search warrants and eаvesdropping warrants, which are reviewed, after indictment, by a Judge other than the Judge who issued them. The warrants are issued ex parte, so it is appropriate for another Judge to review them in an adversary setting after indictment.