People v. Aarons

• Decision Date: 24 April 2003
• Citation: 759 N.Y.S.2d 20,305 A.D.2d 45
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant,<BR>v.<BR>LENWORTH AARONS, Respondent.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 45

759 N.Y.S.2d 20

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

v.LENWORTH AARONS, Respondent.

April 24, 2003.

Stanley R. Kaplan of counsel (Joseph N. Ferdenzi on the brief; Robert T. Johnson, District Attorney, Bronx County, attorney), for appellant.

Julian A. Hertz for respondent.

TOM and WILLIAMS, JJ., concur with BUCKLEY, P.J.; ROSENBERGER and ELLERIN, JJ., dissent in a separate opinion by ELLERIN, J.

OPINION OF THE COURT

BUCKLEY, P.J.

On a Friday afternoon, the grand jury lacked the votes necessary to take action. The foreperson so advised the prosecutor. Hearing this, the prosecutor requested the grand jury to cease deliberations and return the following week for additional testimony. This stoppage was a hiatus in procedure, not a termination of deliberations. This interim stoppage does not amount to a grand jury dismissal of the charges. The dismissal should be reversed and the indictment reinstated.

On March 3, 1999, 13-year-old Nasheem and his 15-year-old sister, Naiecha, testified before a grand jury as follows: They were in their home one afternoon the previous December when a stranger rang the doorbell, looking for Dennis (their mother's boyfriend). While telling the stranger that Dennis wasn't there, Nasheem acknowledged to him that Dennis drove a red Nissan. The stranger asked for some writing material to leave his number. As Nasheem went to get a pen and paper, he left the door ajar. When he returned, he found that the stranger had entered the house uninvited. As the stranger was writing down his number, the telephone rang. It was for Naiecha, who came downstairs to answer the call.

Acting as if he were about to leave but couldn't find his keys, the stranger walked into the living room. By depressing the receiver, he disconnected Naiecha's telephone conversation with her girlfriend. The stranger then pulled a black and silver gun from his waist area and asked the children where there was money in the house. Nasheem told him that their mother kept her money in her room with the door locked. At the stranger's direction, the three went upstairs where the stranger put on latex gloves, tried the knob of the bedroom door, and then tried to kick open the door.

The doorbell rang, and the stranger ordered the children into Naiecha's room, telling them to stay there. He left the house just as Naiecha's girlfriend arrived, concerned about her lately interrupted telephone conversation.

According to police testimony before the grand jury, the children viewed a lineup at the police station in February, each independently identifying defendant as the stranger. The children's mother testified that: (1) she neither knew nor had ever met defendant; (2) she had never given him permission to enter her home; (3) nothing was missing from the premises; and (4) she had a boyfriend named Dennis who resided elsewhere.

At the grand jury's request, Dennis was called as a witness, testifying that he did not know defendant nor had he ever given defendant permission to enter his girlfriend's premises. Defendant opted to testify, offering an alibi.

On Friday, March 19, 1999, the prosecutor instructed the grand jury on the law. She asked them to commence deliberations on the charges of burglary, attempted robbery, criminal possession of a weapon, menacing, endangering the welfare of a child and harassment. Later that day, the foreperson advised the prosecutor, off the record, that the grand jury was having difficulty reaching a decision. The prosecutor then went before the grand jury and asked them to stop their deliberations so that she could present to them an additional witness.

Early the following week, the prosecutor reconvened the grand jury and summoned this witness who placed defendant in the vicinity of the crime on the date and time in question. The prosecutor again instructed the grand jury on the law and asked them to vote on the case. This time, the requisite majority returned a true bill, indicting defendant for several crimes. Thereafter, the motion court granted defendant's motion to dismiss the indictment as defective.

At common law the grand jury could not dismiss a charge against the person without endorsing on the back of the bill "not a true bill." In 1881, in New York, a statute codified this requirement that a grand jury endorse or file its finding of dismissal in order to dismiss a charge.

"When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill, `ignoramus;' or, we know nothing of it; intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English, more absolutely, `not a true bill;' and then the party is discharged without farther answer." (W. Blackstone, Commentaries on the Laws of England, A Facsimile of the First Edition of 1765-1769, vol IV, Of Public Wrongs [1769], at 301 [University of Chicago Press] [emphasis added]).

Our own grand jury system is patterned after the English system as above described by Blackstone. The Code of Criminal Procedure, as first enacted, states in relevant part:

"§ 268. Indictment must be found by twelve grand jurors and indorsed by foreman. 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."

"§ 269. If not so found, depositions, etc., must be returned to the court, with dismissal indorsed. 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" (emphasis added).

These two sections, with several incidental amendments, were the law of this state for nearly a century until replaced by the Criminal Procedure Law on September 1, 1971. Thus, (1) as the common law required its "ignoramus" or "not a true bill" for discharge of the groundless accusation, (2) the Code of Criminal Procedure required "an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed"; and now, (3) section 190.75 (1) of the Criminal Procedure Law requires that "the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled" (emphasis added).

Nevertheless, even when confronted with this statutory requirement of grand jury action from common law to the CPL, defendant still contends that "failure to indict constitutes dismissal." In fact, defendant has offered no substantial evidence that overcomes the presumption of regularity to prove that a failure to indict constitutes dismissal.

"In the absence of any specific proof, the law presumes that the statutory requirements were satisfied. Under this `presumption of regularity' the law further presumes that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done. Substantial evidence is necessary to overcome that presumption. There is no such substantial evidence in this case." (People v Dominique, 90 NY2d 880, 881 [1997]; see also People v Lynch, 171 Misc 2d 310 [1997]; Prince, Richardson on Evidence § 3-120 [Farrell 11th ed]; Fisch, New York Evidence § 1134 [2d ed].)

New York law has long required some formality to a grand jury's dismissal action (see e.g. Matter of Osborne, 68 Misc 597, 601 [1910] ["a grand jury can act only in the manner prescribed by law, that when it so acts a certain definite legal result must follow, and that such result can be expressed only in either one of the two formulas: `A true bill found' or `charge dismissed'"]; People v Kelly, 140 Misc 377, 379 [1931] ["In order that it can be said that there has been a dismissal within the meaning of the Code, definite action must be shown to have been taken by the grand jury"]; People v Davis, 114 Misc 2d 645, 647 [1982] ["To constitute a dismissal, some definite action must have been taken by a Grand Jury"]).

This is a case about the termination of deliberations by action of the grand jury. The directions and "menu" for such action are set forth in five sections of article 190 of the Criminal Procedure Law, entitled "The Grand Jury and Its Proceedings" (listed in order of consideration here), namely: CPL 190.75, 190.05, 190.60, 190.25 (1) and 190.71. Enacted in 1970 after "[t]he Bartlett Commission comprehensively studied the entire body of law * * *" (People v Collier, 72 NY2d 298, 302 n 1 [1988]), the CPL replaced the old Code of Criminal Procedure, which had been the law since 1881.

People v Wilkins (68 NY2d 269 [1986]) provides insight as to the issue before this Court, namely: whether a hiatus in deliberations amounts to a grand jury dismissal. The Court there observed (id. at 273-274):

"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, including either indicting the defendant or dismissing the charges."

In short, the grand jury must act upon one of the options provided by statute (Mooney v Cahn, 79 Misc 2d 703, 705 [1974]; 32 NY Jur 2d, Criminal Law § 1094).

In People v Foster (182 Misc 2d 863, 867 [1999]), the motion court correctly stated that the statutory scheme required the grand jury to "exercise one of the options provided in CPL 190.60; it cannot fail to act." But the court incorrectly concluded that the failure to vote a true bill constituted no true bill, and on that basis we reversed (279 AD2d 317 [2001]).

CPL 190.75 (1) provides that (1) where evidence before a grand jury "is not legally sufficient to establish" whether the individual under...