People v. Davis

• Decision Date: 28 June 1982
• Parties: PEOPLE of the State of New York v. Anthony DAVIS.
• Court: New York Supreme Court

Page 169

452 N.Y.S.2d 169

114 Misc.2d 645

PEOPLE of the State of New York v. Anthony DAVIS.

Supreme Court, Criminal Term Kings County, Part 10.

June 28, 1982.

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, for the People; Edward Boyar, Asst. Dist. Atty., Brooklyn, of counsel.

NCBL Juvenile Defense Project, Inc., Alton H. Maddox, Jr., New York City, of counsel, for defendant.

RUTH MOSKOWITZ, Justice.

Defendant moves to dismiss the instant indictment on the ground that the grand jury proceeding was defective within the meaning of section 210.35 of the Criminal Procedure Law (CPL § 210.20). Defendant is charged, in a two-count indictment, with manslaughter in the second degree and criminally negligent homicide.

At issue is whether it was proper for the prosecution to submit new charges to the grand jury investigating this matter after that body had voted "no true bill" on the only charge submitted.

Following the presentation to the grand jury of all of the evidence in this case, the assistant district attorney instructed the grand jury with respect to the charge of manslaughter in the first degree. He submitted no other charges. The grand jury returned with a vote of "no true bill." The prosecutor then spoke with the grand jurors and instructed them with respect to the charges of manslaughter in the second degree and criminally negligent homicide. That body returned an indictment on both those charges.

APPLICABLE LAW

CPL § 210.35 provides, in pertinent part, that:

"A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when:

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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."

Defendant contends that submission of the additional charges following the vote of "no true bill" impaired the integrity of the grand jury and prejudiced the defendant. Furthermore, he argues that the prosecutor should have sought judicial permission to resubmit the case to the grand jury.

CPL § 190.75(1) provides:

"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."

Subdivision 3 of CPL § 190.75 outlines the procedure that must be followed for resubmission of a case to a grand jury.

An important issue in this case is whether the grand jury's vote of "no true bill" constituted a dismissal under CPL § 190.75. The People argue that for a decision by a grand jury to constitute a dismissal, the finding of dismissal must be filed with the court, which did not happen here. Defendant contends that the matter was dismissed upon the failure of the grand jury to initially return a true bill and if the prosecution wished to submit additional charges it would first need judicial permission.

The court finds that this matter was dismissed when the grand jury failed to return a true bill on the manslaughter in the first degree charge. Dismissal of a charge before a grand jury means that there has been a hearing by competent authority, examination of evidence and a conclusion reached which would not warrant submission of any question to a trial jury. To constitute a dismissal, some definite action must have been taken by a grand jury (People v. Kelly, 140 Misc. 377, 250 N.Y.S. 610; People v. Pack, 179 Misc. 316, 39 N.Y.S.2d 302). In the instant matter, the grand jury took definite action; it dismissed the charge of manslaughter in the first degree.

Under the People's theory, a prosecutor could introduce new evidence, as well as submit new charges, to a grand jury that has voted no bill, so long as the foreman did not file a finding of dismissal. This would place undue importance on the filing requirement, over which the prosecutor, it can be argued, as legal advisor to the grand jury, has control. In addition, it would circumvent the requirement of subdivision 3 of CPL § 190.75 ( § 270 under the old Code of Criminal Procedure) and contravene the underlying reason for its adoption, i.e., to prevent an overzealous prosecutor from repeatedly submitting dismissed charges to a grand jury; repeated resubmission being contrary to the spirit of the criminal law (Denzer, Practice Commentary, McKinney's Cons. Laws of NY, Book 11A, Criminal Procedure Law § 190.75; Flinn v. Barr, 259 N.Y. 104, 181 N.E. 64). In other words, the People's theory would permit a prosecutor to do indirectly that which the statute prohibits him to do directly--to resubmit charges to a grand jury without judicial permission. It is doubtful that the Legislature intended that by the simple subterfuge of failing to file a dismissal, the salutary purpose of the statute may be frustrated (People v. DeLio, 75 Misc.2d 711, 713, 348 N.Y.S.2d 703; see also: Mooney v. Cahn, 79 Misc.2d 703, 361 N.Y.S.2d 118).

When a grand jury deliberates on the evidence presented and fails to return an indictment, that body is indicating that the evidence was either not legally sufficient to establish that the designated person committed the crime or that there was no reasonable cause to believe that such person committed such crime. Once such a determination has been made it is not for the prosecutor to decide whether resubmission is appropriate.

Accordingly, it was error for the assistant district attorney to submit new charges without first obtaining judicial permission.

Furthermore, the additional instructions following the vote to dismiss constituted a procedural irregularity going to the very heart and integrity of the grand jury system. The case of People v. Groh, 57 A.D.2d 389, 395 N.Y.S.2d 212 ^* is factually similar to the instant matter. In Groh, after a full presentation of the evidence, a charge on the law by the Special Prosecutor, and discussion of the evidence among the grand jurors themselves, they voted to dismiss the proposed charges. Thereafter, the Special Prosecutor, aware of the grand jury's vote, re-entered the grand jury room and discussed the case with the grand jurors. The Special Prosecutor then suggested to the grand jury that the Justice presiding at the Extraordinary Special and Trial Term would be willing to provide them with a further charge on the law. Only three grand jurors voted to receive further instructions. Nevertheless, the Special Prosecutor and the Justice presiding at the Extraordinary Special and Trial Term appeared before the grand jury on a subsequent date and delivered a further charge. This was done despite the fact that the grand jury, as a body, had not requested such a charge. A second vote was then taken and that body returned a true bill.

The Appellate Division, Second Department stated:

"Aside from the fact that we view these 'further instructions' to have been incorrect on the law, as they seemed to indicate to the grand jurors that they had no alternative except to indict, we believe that the methods employed, although no doubt well motivated, were coercive in fact and, if permitted to go unchecked, would tend to destroy both the value and purpose of our Grand Jury system. That system, which has its origins in antiquity and enjoys no lesser protection than that afforded by the Federal and State Constitutions performs a vital function in our jurisprudence--that of protecting the private citizen from...