68 N.Y.2d 269 | NY | 1986
Lead Opinion
OPINION OF THE COURT
This appeal requires us to determine whether a prosecutor may withdraw a case from the Grand Jury after presentation of the evidence, and resubmit the case to a second Grand Jury without the consent of either the first Grand Jury or the court which impaneled it. We conclude that such withdrawal is the equivalent of a dismissal by the first Grand Jury, and that the prosecution may only resubmit the charges with the consent of the court. We, therefore, reverse the order of the Appellate Division and dismiss the indictment with leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.
The defendant was charged with murder in the second degree after fatally shooting his victim during a dispute. His case was presented to a Grand Jury, but it was withdrawn before a vote on whether to issue an indictment. Presentation
During that trial, defense counsel learned of the prosecutor’s withdrawal and resubmission of the case. After the mistrial, the defendant moved for an evidentiary hearing on the circumstances of the resubmission. Granting the motion, the court concluded that there was no statute controlling whether the People could "abort a Grand Jury presentation in progress, and under what circumstances * * * Therefore, in the opinion of the court, each situation must be examined individually to determine whether the prosecution’s conduct was proper within the facts of that case or whether it was merely a pretext to circumvent the function of the Grand Jury.” (95 Misc 2d 737, 739.)
The hearing court concluded that the prosecutor acted in good faith in withdrawing the matter from the first Grand Jury, based on the following findings: The main reason the prosecutor withdrew the matter was his inability to produce two witnesses the Grand Jury requested, the arresting officer and a witness then known only as Freída.
After the mistrial, the defendant was tried a second time and convicted upon a jury verdict of first degree manslaughter. Sentence was imposed, and the Appellate Division affirmed the conviction, without opinion. The sole ground tendered on this appeal in support of the defendant’s claim for reversal is the withdrawal and resubmission of the charges against him at the Grand Jury level. Were the subjective good faith of the prosecutor in withdrawing and resubmitting the charges against the defendant the dispositive issue on this appeal, we would summarily affirm. The undisturbed finding
That the prosecutor acted in good faith does not resolve the issue whether he had the legal authority to act, however. At common law a prosecutor could resubmit charges without limitation to successive Grand Juries until one voted an indictment (People ex rel. Flinn v Barr, 259 NY 104, 107-108; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.75, pp 342, 343). However, just as the Grand Jury serves to insulate citizens from prosecutorial excesses (People v Pelchat, 62 NY2d 97, 104; People v Iannone, 45 NY2d 589, 594), the Legislature recognized a need to insulate the Grand Jury process from the excesses which would flow from domination by a prosecutor (see, People v Di Falco, 44 NY2d 482, 487). The result was section 270 of the former Code of Criminal Procedure, which prohibited the resubmission of dismissed charges without leave of court (People ex rel. Flinn v Barr, supra, at p 108). It became further necessary to curb the power of the courts, as well, which the Legislature did by limiting the number of authorized resubmissions to one (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.75, p 343).
The comprehensive statutory scheme regulating Grand Jury proceedings does not contemplate the termination of deliberations without some action by the Grand Jury. Thus, CPL 190.60 gives the Grand Jury a limited range of dispositions after hearing and examining evidence,
Generally once a Grand Jury hears evidence in a case presented to it, the key factor in determining whether an unauthorized withdrawal of the case must be treated as a dismissal is the extent to which the Grand Jury considered the evidence and the charge. Thus, where a particular charge had not even been presented to a Grand Jury considering another charge against the defendant, this court held the first charge could not be considered dismissed: "Before a grand jury may be said to have acted upon a charge, there must be some indication that it knew about and considered the charge” (People v Nelson, 298 NY 272, 276; see also, People ex rel. Raimondi v Jackson, 277 App Div 924, lv denied 301 NY 816). However, the presentation need not be complete for consideration equivalent to a dismissal to occur. In Mooney v Cahn (79 Misc 2d 703), for example, the prosecutor failed to direct the Grand Jury to act on the evidence he had presented; nonetheless, the court declined to allow the District Attorney to continue the prosecutions (79 Misc 2d, at p 706). In Matter of McGinley v Hynes (75 AD2d 897, revd on other grounds 51 NY2d 116, cert denied 450 US 918), the court held there had been the equivalent of a dismissal on facts nearly identical to those in the case now before us — withdrawal of a case near the end of the presentation of the evidence and before giving either a charge or an instruction to deliberate.
In the case before us, the first presentation was, as far as the prosecution was concerned, complete. Contrary to the assertions of the dissent, the District Attorney need not have formally rested and charged the Grand Jury before that body may be held to have considered and acted upon the charge. Indeed, in Matter of McGinley v Hynes (75 AD2d 897, supra), it was clearly held that the Grand Jury had heard and consid
Here, the presentation had progressed further than that in McGinley — as far as the prosecutor was concerned, all witnesses had testified, and all that was left was to instruct the Grand Jury on the law. This progress was what compelled the court in McGinley, and what compels us in this case, to hold that the prosecutor’s unilateral withdrawal so late in the game must be deemed a dismissal, regardless of the good faith of the withdrawal. Such conclusion is in keeping with the "beneficent purpose” of CPL 190.75 (3), which "must be interpreted fairly to carry out the policy which it was enacted to accomplish” and which "should not be nullified by a narrow technical construction which would * * * destroy its spirit” (People ex rel. Flinn v Barr, 259 NY, at pp 109, 108, supra).
The dissent and the People can cite no authority which directly supports the contention that the District Attorney possesses inherent power to withdraw a case from Grand Jury consideration.
If, as the dissent suggests, there are reasons which routinely and legitimately require withdrawal or interruption of a Grand Jury presentation, such as illness or vacation of a witness, then surely the Grand Jury involved would understand and agree to an extension of its term. Even if it did not, the prosecutor would always have the fallback of obtaining court approval for resubmission, which, if the reasons tendered are indeed legitimate, should be granted. The dissent would have dismissal depend on a finding of prosecutorial bad faith. That, in turn, would require, in every case, a hearing with its attendant cost and delay. On the other hand, a request to the Grand Jury to extend its term can be made informally by merely asking for a vote on the question, and if 12 grand jurors do not concur, leave to resubmit could be sought in most instances by a motion, which the court could grant or deny on the papers alone.
The resubmission of this defendant’s case to a second Grand Jury without leave of court, because it violated the proscription of CPL 190.75 (3), constituted a failure to conform to the requirements of article 190
Accordingly, we reverse the order of the Appellate Division affirming the defendant’s conviction and dismiss the indictment. Because our reversal vacates the second, unauthorized Grand Jury presentation, we grant leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.
. Freída was eventually located after the conclusion of the Grand Jury proceedings, and testified for the People at the second trial.
. The statute which presently controls, CPL 190.75 (3), provides: "3. When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.”
. CPL 190.60 provides:
"After hearing and examining evidence as prescribed in section 190.55, a grand jury may:
"1. Indict a person for an offense, as provided in section 190.65;
"2. Direct the district attorney to file a prosecutor’s information with a local criminal court, as provided in section 190.70;
*274 "3. Direct the district attorney to file a request for removal to the family court, as provided in section 190.71 of this article;
"4. Dismiss the charge before it, as provided in section 190.75;
"5. Submit a grand jury report, as provided in section 190.85.”
. CPL 190.25 (1) provides: "1. Proceedings of a grand jury are not valid unless at least sixteen of its members are present. The finding of an indictment, a direction to file a prosecutor’s information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least twelve members thereof.”
. For example, the case primarily relied upon, People ex rel. Raimondi v Jackson (277 App Div 924, Iv denied 301 NY 816), merely held that habeas corpus would not lie to review an indictment resulting from an allegedly unauthorized resubmission. In dictum, the court noted: "Here there was no dismissal [of the charge by the first Grand Jury]. It does not appear that there was any consideration, action, vote or return” (277 App Div, at p 924).
. The controlling statutory authority is CPL 210.35, which provides in pertinent part:
"A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 [i.e., will be properly dismissed upon motion] when: * * *
"5. The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result.”
. [4] We decline the prosecutor’s invitation to adopt the rule of United States v Mechanik (475 US —, 106 S Ct 938) that conviction after trial renders a defect in Grand Jury proceedings harmless error. Our statute, CPL 210.35 (5), provides for dismissal upon the mere possibility of prejudice, and we have consistently held that defects in Grand Jury proceedings (as opposed to claims of insufficiency of evidence to support the indictment, which are barred by CPL 210.30 [6]) may be raised even after a plea of guilty (see, e.g., People v Dunbar, 53 NY2d 868).
. CPL 210.20 (1) (c) provides:
"1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: * * *
"(c) The grand jury proceeding was defective, within the meaning of section 210.35”.
Dissenting Opinion
(dissenting). A Grand Jury indicted defendant for murder in the second degree. A petit jury could not agree whether defendant was guilty of this charge but, in a second trial, another jury convicted him of first degree manslaughter. The majority now reverses this conviction under CPL 210.35 (5) (majority opn, at p 276, n 6) because the District Attorney, concededly acting in good faith, withdrew the matter on the last day of the Grand Jury term (before deliberations had commenced or the testimony had been completed) in view of the unavailability of two witnesses which the Grand Jury had requested him to call. We find no statutory authority for this result or precedent in case law.
Under the Criminal Procedure Law, the court "may, upon motion of the defendant, dismiss” an indictment if the "grand jury proceeding was defective, within the meaning of section 210.35” (CPL 210.20 [1] [c]; emphasis added). As provided by the statute, a Grand Jury proceeding is "defective” under CPL
The particular noncompliance with article 190 ("The Grand Jury and its Proceedings”) which is held to be sufficient to mandate dismissal under CPL 210.20 (1) (c) and CPL 210.35 (5) does not involve misconduct of the District Attorney or any irregularity or occurrence which might have affected the integrity of the proceedings themselves, such as, for example, the presence of unauthorized persons before the Grand Jury (see, CPL 190.25 [3]; People v Beauvais, 98 AD2d 897), the presentation of evidence by an unauthorized prosecutor (see, People v Di Falco, 44 NY2d 482), a violation of the requirement of secrecy (see, CPL 190.25 [4]), or proceeding in the presence of fewer than 16 grand jurors (see, CPL 190.25 [1]). Indeed, there was no such misconduct or irregularity. The hearing court expressly found no "interference by the prosecutor with the Grand Jury’s functions, duties or integrity” and rejected any finding that the motive for the withdrawal had been the desire to remove the case from an "active” Grand Jury to one which would be "more pliant”. It also found, contrary to the contentions of the majority and defendant, that the prosecutor, when the case was withdrawn, had not completed the presentation of all of the evidence to the Grand Jury.
It is clear that in resubmitting the matter without court permission there was no per se violation of CPL 190.75.
The majority does not suggest that every withdrawal of a charge by the District Attorney and subsequent resubmission without court approval would constitute a violation of article 190 making the Grand Jury proceeding defective under CPL 210.20 (1) (c) and subject to dismissal under CPL 210.35. Indeed, such a per se rule would be directly contrary to the plain wording of CPL 190.75 and 190.60 and would amount to an outright amendment of those statutes through judicial legislation. Under the announced rule, the motivation of the District Attorney in withdrawing the case and whether he acted in good faith or bad faith (decisive factors present in McGinley) are irrelevant. The equation is based entirely on "the extent to which the Grand Jury considered the evidence and the charge” (majority opn, at p 274). No guideline is provided as to when the case has progressed to the point where it should be deemed a dismissal. But, from the holding here, it is clear that a withdrawal may be deemed a dismissal even though there are further witnesses to be presented and
In our view, the interpretation of CPL 190.75 and 190.60 and the procedures followed by the courts below were entirely proper. If the hearing court had found bad faith or improper motivation on the part of the District Attorney, it should have dismissed the indictment provided that it also concluded that the integrity of the Grand Jury proceedings had been impaired and that there was a possibility of prejudice to the defendant (CPL 210.20 [1] [c]; 210.35 [5]). The court would, moreover, have been justified in requiring the District Attorney to obtain authorization for resubmission under CPL 190.75 (3) (see, Matter of McGinley v Hynes, supra). Because the court found no bad faith or other impropriety, it acted in accordance with existing statutory and decisional law in denying the defendant’s dismissal motion. We know of no practical or policy reason for changing the established rules and curtailing the power of the District Attorney when he acts in good faith in withdrawing a case before presentation of the evidence has been completed and the Grand Jury has commenced its deliberations on the matter. Certainly, nothing in the legislative history of CPL 190.75 (3) supports the conclusion that the Legislature intended to require court approval for resubmission of a charge which has not been dismissed but which has been withdrawn by the prosecutor acting in good faith for a proper reason. On the contrary, it appears from the history of the statute and its predecessor in the Code of Criminal Procedure (see, majority opn, at p 273) that the sole purpose behind the enactment of CPL 190.75 (3) was to insulate citizens from prosecutorial excesses and to curtail the power of a prosecutor to "resubmit charges without limitation” (majority opn, at p 273) after successive dismissals of the charge by different Grand Juries. Thus it is that the statute by its terms is precisely limited to a resubmission when "a charge has been * * * dismissed” (CPL 190.75 [3]; emphasis added).
As the hearing court pointed out, reasons "for withdrawing a case [before the Grand Jury has acted on it] arise when witnesses requested to appear are not able to do so because of illness, vacation or some other personal reason.” Henceforth, one must assume, resubmission of a charge which has been withdrawn for such routinely advanced reasons could, although clearly not called for under the statute, require court authorization under CPL 190.75 (3). Certainly prudence would
Judges Meyer, Kaye and Titone concur with Chief Judge Wachtler; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion in which Judges Simons and Alexander concur.
Order reversed and indictment dismissed with leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.
. The Judge hearing the motion to dismiss the indictment made the following finding of fact: "I am urged that the Assistant [District Attorney] had already submitted all of his evidence to the November Grand Jury for its consideration. I do not find this to be so since they asked for additional witnesses and when these were not produced no further action was taken by the Grand Jury before the case was withdrawn. As the Grand Jury transcripts indicate, they asked to hear the arresting officer, Detective Edward Martin, and a witness known only as Freda.” (Emphasis supplied.)
. CPL 190.75 insofar as pertinent is as follows:
"1. If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.
"2. If the defendant was previously held for the action of the grand jury by a local criminal court, the superior court to which such dismissal is presented must order the defendant released from custody if he is in the custody of the sheriff, or, if he is at liberty on bail, it must exonerate the bail.
"3. When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.”