People v. Dykes

• Decision Date: 19 April 1982
• Parties: The PEOPLE, etc., Appellant, v. Timmy DYKES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 284

449 N.Y.S.2d 284

86 A.D.2d 191

The PEOPLE, etc., Appellant, v. Timmy DYKES, Respondent.

Supreme Court, Appellate Division Second Department.

April 19, 1982.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Steven P. Polivy, New York City, of counsel), for appellant.

Trevor L. F. Headley, Brooklyn, for respondent.

Before MANGANO, J. P., and GIBBONS, THOMPSON, BROWN and NIEHOFF, JJ.

NIEHOFF, Justice.

On or about January 10, 1980 the defendant was charged under Indictment Number 4096/1979 with the crimes of assault in the first degree and criminal possession of a weapon in the fourth degree. The charges arose out of an incident which occurred on or about September 17, 1979 in Kings County in which the complainant was stabbed in the neck and hand. The question on this appeal is whether the dismissal of that indictment by Criminal Term was proper. Our answer is "yes".

The subject charges had been considered by a prior Grand Jury under Indictment Number 3476/1979. On October 24, 1979, after that first Grand Jury had heard testimony from the complainant, the arresting officer and the defendant who denied that he was the one who had stabbed the complainant and contended that he had tried to help the complainant after she had been stabbed by someone other than him, it returned a vote of no true bill.

After the October Grand Jury refused to indict, the People made an ex parte motion for leave to resubmit the charges to a second Grand Jury. The application was premised upon the prosecutor's "belief that the dismissal was against the weight of the evidence" and that the dismissal was "neither based on the legal insufficiency of the evidence nor the absence of reasonable cause to believe that the defendant committed the dismissed charges." The People's application was granted by order dated December 10, 1979, upon the sole ground that it appeared "from the annexed affirmation that the dismissal was against the weight of the evidence."

Upon being informed that the application for leave to resubmit had been granted and that the charges were to be resubmitted to another Grand Jury, but before the resubmission took place, the defendant initiated a proceeding pursuant to CPLR article 78 against the District Attorney and Justice STARKEY seeking to prohibit the District Attorney from resubmitting the case to the Grand Jury. The People opposed the defendant's application for the writ of prohibition upon the ground that the extraordinary relief requested was beyond the scope of an article 78 proceeding. The People argued that the remedy of prohibition was clearly inappropriate because the petitioner had not demonstrated that he was without an adequate remedy at law. The People pointed out that in addition to having the right to appeal if he were convicted on an indictment handed down by the second Grand Jury, defendant also had the right to move to dismiss any such indictment.

Thereafter, on December 27, 1979, the article 78 proceeding was dismissed by this court. Since prohibition is a preventive measure rather than a remedial one, it can only be used to prevent the doing of acts about to be done which are beyond the jurisdiction or power of a court or officer to accomplish. Its object is not the correction of errors or the granting of relief from an action already taken. Hence, it is manifest that the issue decided in that matter was whether the District Attorney, who had obtained permission to resubmit, was proceeding without or in excess of jurisdiction (see CPLR 7803, subd. 2) and not whether Justice STARKEY came to an erroneous conclusion or committed an error of discretion when he granted the application for resubmission, an issue to be resolved on this appeal.

In opposing the article 78 proceeding the People raised a claim not made in the papers before Justice STARKEY, namely, that the October Grand Jury vote of no true bill was a result of a personality conflict which had developed among the October Grand Jurors. As pointed out above, Justice STARKEY granted leave to resubmit upon the ground that it appeared from the Assistant District Attorney's affirmation that the dismissal was against the weight of the evidence. He did not grant leave because of any alleged conflict among the Grand Jurors or any irregularity in the Grand Jury proceedings and, so, the validity of the resubmission order cannot be judged by the claim made in the subsequent article 78 proceeding to the effect that the jurors' vote may have been influenced by a personality conflict.

Following the dismissal of the application for the writ of prohibition, the defendant was advised that the People were proceeding with the resubmission. He did not appear before the second Grand Jury and he was indicted on January 10, 1980 under Indictment Number 4096/1979, with which we are here concerned.

By notice of motion dated March 25, 1980, the defendant moved for dismissal of the indictment filed on January 10, 1980 upon the ground that "the Court did not have jurisdiction submit this case to a new Grand Jury" or, in the alternative, that the interests of justice called for a dismissal.

The motion came on before Judge VETRANO. After noting that it would be inappropriate for him, as a Judge of co-ordinate jurisdiction, to pass upon the validity of Justice STARKEY's ex parte order, Judge VETRANO reviewed the testimony adduced before the two Grand Juries, found it to be virtually identical and dismissed the indictment in the furtherance of justice. In so doing, he relied upon People v. Martin, 71 A.D.2d 928, 419 N.Y.S.2d 724.

On the present appeal from Judge VETRANO's order, this court is called upon to answer the questions of (1) whether the order granting resubmission of this matter to the Grand Jury was proper and (2) whether the indictment should have been dismissed because the People failed to present additional or new evidence to the second Grand Jury. Our answer to both questions is "no".

In sum, while we agree with Judge VETRANO that the indictment should be dismissed, our reasons for so concluding differ from those expressed by him.

CPL 190.75 (subd. 3) provides that when a charge has been dismissed by a Grand Jury 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." The purpose of the statute is to prevent abuses by prosecutors who, at common law, were free to resubmit matters to the Grand Jury repeatedly and without any court supervision. (People v. Martin, 71 A.D.2d 928, 929, 419 N.Y.S.2d 724, supra.) When faced with an application for resubmission the court's role is not purely ministerial and such applications are not to be granted pro forma. Rather, the court's power to grant resubmission should be exercised sparingly and discriminately.

In a very real sense the Grand Jury may be said to represent the "common sense" or consensus of the entire community. (See People v. Neidhart, 35 Misc. 191, 192, 71 N.Y.S. 591.) It is empowered, indeed required, to dismiss a charge that a designated person committed a crime if the evidence before it is not legally sufficient to establish that such person committed such crime or other offense, or it "is not satisfied" that there is reasonable cause to believe that such person committed such crime or any other offense. (CPL...