People v. Aarons

• Decision Date: 08 June 2004
• Citation: 2 N.Y.3d 547,780 N.Y.S.2d 533,813 N.E.2d 613
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LENWORTH AARONS, Appellant.
• Court: New York Court of Appeals Court of Appeals

2 N.Y.3d 547

813 N.E.2d 613

780 N.Y.S.2d 533

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LENWORTH AARONS, Appellant.

Court of Appeals of the State of New York.

Argued April 29, 2004.

Decided June 8, 2004.

Julian A. Hertz, Larchmont, for appellant.

Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for respondent. Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge G.B. Smith; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Kaye concurs.

OPINION OF THE COURT

G.B. SMITH, J.

The issue in this case is whether a formal vote of 12 grand jurors is necessary to dismiss a charge. We conclude that it is and we affirm the order of the Appellate Division.

On Friday, March 19, 1999, after hearing testimony from various witnesses, including defendant, regarding an alleged break-in, a grand jury in Bronx County was deliberating on proposed charges of burglary, attempted robbery, criminal possession of a weapon, menacing, endangering the welfare of a child and harassment. The record indicates that the foreperson advised the prosecutor that the grand jury was having difficulty reaching a decision. The prosecutor asked the grand jury to cease deliberations so that she could present additional evidence. The following week, the prosecutor reconvened the grand jury, presented another witness and again asked the jurors to vote on the charges. The grand jury returned an indictment accusing defendant of burglary in the first degree and related crimes.

Defendant moved to dismiss the indictment, arguing that the initial failure of the grand jury to garner 12 votes for an indictment constituted a dismissal of the charges, thus requiring the prosecution to obtain leave of the court before presenting additional evidence to the grand jury. Supreme Court agreed, granted defendant's motion and dismissed the indictment. The Appellate Division, with two Justices dissenting, reversed the order of Supreme Court and reinstated the indictment. The Court concluded that no inference of dismissal could be drawn from a grand jury's temporary inability to vote for an indictment. Rather, the court held, a dismissal requires a concurrence of 12 grand jurors. The dissent reasoned that the Criminal Procedure Law does not require grand jurors to vote expressly on whether to dismiss a charge. A Justice of the Appellate Division granted defendant leave to appeal to this Court, and we now affirm the order of the Appellate Division. We hold that in order to dismiss a charge, there must be a formal vote of the grand jury and 12 of its members must concur in that result.

CPL 190.25 (1) states:

"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."

The issue, therefore, is whether a dismissal of pending charges constitutes an affirmative official action or decision of the grand jury under CPL 190.25 (1). We agree with the Appellate Division that a dismissal is such an affirmative official action.

The legislative history of grand jury procedure supports the conclusion that the dismissal of a charge is one of the official actions or decisions of a grand jury. Going back to the 19th century, New York's former Code of Criminal Procedure required that upon failure of the grand jury to agree on an indictment, it must return a dismissal to the court, signed by the foreperson, expressly stating that the charge is dismissed. As originally enacted, Code of Criminal Procedure § 268 stated, in relevant part:

"An indictment cannot be found, without the concurrence of at least twelve grand jurors. When so found it must be indorsed, `a true bill', and the indorsement must be signed by the foreman of the grand jury."

Section 269 stated:

"If twelve grand jurors do not concur in finding an indictment, the depositions (and statement, if any) transmitted to them, must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed."

Thus, even under the former procedural rules, a dismissal of a charge could not be merely inferred by the court, nor was it automatic upon the failure to indict. Rather, upon its determination that an indictment would not issue, the grand jury was required to expressly communicate to the court that the charges were to be dismissed.

On September 1, 1971, the Code of Criminal Procedure was replaced by the Criminal Procedure Law (McKinney's Cons Laws of NY, Book 11A, at 1; L 1970, ch 996, § 1). CPL 190.60 enumerates the actions that the grand jury may take upon hearing and deliberating on evidence with respect to a charge. Pursuant to that provision, the grand jury has the power to indict a person for an offense, direct the district attorney to file a prosecutor's information with a local criminal court, direct the district attorney to file a request to remove the case to Family Court, dismiss the charge or submit a grand jury report.

Moreover, CPL 190.75 (1) states:

"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."

The language of both CPL 190.60 and 190.75 confirms that the Legislature did not intend that a grand jury's dismissal of a charge be inferred from its failure to indict a suspect. Given that the grand jury also has the power to direct the filing of an information, to remove the case to Family Court or to submit a report, it is wrong to say that the failure to bring an indictment necessarily constitutes a dismissal of the charge. Instead, upon concluding that an indictment will not be issued, the grand jury must dismiss the charge by filing its determination with the court. Importantly, this rule ensures that the grand jury is actually aware that, by its action, the charges then pending against the defendant will be dismissed.

Clearly, like the other official decisions enumerated in CPL 190.60, the dismissal of a charge is for the grand jury to decide as part of its deliberations. Indeed, by requiring the grand jury, acting through the foreperson, to express to the court its decision to dismiss the charge (upon concluding that the evidence is either legally insufficient or does not establish reasonable cause to believe that the accused has committed the crime charged), the Legislature provides that a dismissal cannot occur absent the grand jury's actual conclusion that a dismissal is warranted. For the court to infer a dismissal of a charge from the grand jury's inability to make a decision as to what action it should take undermines this clear legislative intent and effectively eliminates one of the enumerated powers of the grand jury.

This case presents a clear example of how an inference of dismissal would subvert the power conferred upon the grand jury. Here, it was having trouble reaching a decision as to what action should be taken. Its members, who were deliberating on a Friday, certainly could not have known that, by merely recognizing their inability to reach a conclusion before the arrival of the weekend and communicating their current state of indecision to the prosecutor, they were effectively dismissing all charges against defendant. Nor is there any indication that they intended such a result. For a court to infer a dismissal under these circumstances ignores the plain import of the statute— that the grand jury actually be aware that it is dismissing the charges and that it communicate that decision to the court.

Having determined that a dismissal of a pending charge is an affirmative official action or decision for the grand jury to make, we further conclude that pursuant to CPL 190.25 (1), a concurrence of 12 jurors is necessary to effectuate a dismissal. Since there was no such concurrence on any of the enumerated actions, it was not improper for the prosecutor to ask the grand jury to cease its deliberations so that it could hear additional evidence, and she was not required to seek leave from the court before presenting any.

Defendant's reliance on People v Montanez (90 NY2d 690 [1997]) for the conclusion that there was a dismissal here is misplaced. In Montanez, after three preliminary votes, 12 grand jurors voted to dismiss the charges. However, when informed of the decision, the prosecutor expressed his displeasure and advised the grand jury that they could reconsider their vote. This prompted the grand jury to request that an additional witness be called, which led to a subsequent vote to indict. Although a grand jury can reconsider a previous vote before it has been formally filed, the grand jury in Montanez did not act on its own initiative but acceded to the unsolicited suggestion of the prosecutor. As such, we concluded the new vote was not a sua sponte reconsideration but amounted to an improper re-presentment by the prosecutor, requiring dismissal of the indictment. Here, there was no vote by 12 grand jurors to dismiss. As such, there was no re-presentment or reconsideration implicating the prosecutorial interference concerns underlying our decision in Montanez.

Nor were the charges in this case withdrawn from one grand jury and submitted to a second, as occurred in People v Wilkins (68 NY2d 269 [1986]). There, we were concerned that a prosecutor could attempt to circumvent the restrictions...