40 A.D.2d 223 | N.Y. App. Div. | 1972
This is an appeal from an order of the County Court of Rensselaer County, entered October 18, 1971, which granted defendant’s motion to dismiss the indictment.
Reversal is urged on the sole ground that the court did not have authority to impose a time limitation on the permission to resubmit. The People contend that the statute involved must be strictly construed so as to limit any resubmission to the same or another Grand Jury. Since the indictment was dismissed on October 6,1971, a date subsequent to the date on which the GPL became effective, the provisions of that law govern this appeal. The pertinent part of the statute provides as follows: “ [T]he court may, upon application of the people, in its discretion authorise the people to submit the charge or charges to the same or another grand jury ” (CPL 210.20, subd. 4; emphasis supplied).
This statute, among other things, enables the prosecution to be apprised of technical defects in the indictment prior to trial and affords an opportunity to remedy such defects by resubmission. At the same time the statute protects the defendant from further prosecution when the impediment is of an inherently fatal nature. In the instant case the court concluded in its discretion that the prosecution should be allowed to resubmit the charge. The question on this appeal, therefore, narrows to whether or not the court had the power to limit the time of resubmission to 10 days.
The language of the statute is clear on its face and there is no need for recourse to the traditional principles of construction. It is manifest that the court has the discretion either to allow of deny resubmission. If resubmission is permitted, however, it may be accomplished only as expressly provided in the statute, i.e., to the same or another grand jury. (Emphasis added.) Consequently, it is our opinion that the court did not have the power to deviate from this explicit statutory provision and direct resubmission with a time limitation. Such a practice could unduly hamper and interfere with the operations of the office
The order should be reversed, on the law, and the indictment reinstated.
Staley, Jr., J. P., Cooke, Simons and Kane, JJ., concur.
Order reversed, on the law, and indictment reinstated.