People v. Fantucci
| Decision Date | 15 March 1993 |
| Citation | 157 Misc.2d 443,596 N.Y.S.2d 670 |
| Parties | The PEOPLE of the State of New York v. Julian FANTUCCI, Carmelo Santiago, Felix Rivera, Defendants. |
| Court | New York Supreme Court |
Charles J. Hynes, Dist. Atty. (Susan Bronzast, of counsel), for Kings County Dist. Atty.
Cori Weston, The Legal Aid Soc., for Julian Fantucci.
The People have submitted a proposed order, pursuant to CPL 190.75(3), seeking leave of the Court to resubmit the charges in the instant matter to a second Grand Jury panel. Counsel for the defendant, Julian Fantucci, appeared before this Court and objected to the proposed resubmission.
At issue herein is whether this Court should grant the People leave to resubmit the pending charges to a second Grand Jury panel despite the case having been "dismissed" after the initial Grand Jury presentation as the result of the People's failure to charge the Grand Jury on the law during the term of the Grand Jury.
Pursuant to CPL 190.60, after hearing and examining evidence concerning the alleged commission of a prosecutable offense, a Grand Jury is limited to taking one of five courses of action: (1) indicting an individual for an offense; (2) directing the District Attorney to file a prosecutor's information; (3) directing the District Attorney to file a request for removal of the case to the Family Court; (4) dismiss the charges before it; or (5) submit a Grand Jury report.
In the instant matter, the Assistant District Attorney presented her case before the Grand Jury. The defendant, Julian Fantucci, testified on his behalf and was subjected to questioning by the Assistant District Attorney. The term of the Grand Jury panel expired prior to the Assistant District Attorney's instructing the jury on the charges to be submitted. The Assistant District Attorney did not request an extension of the Grand Jury's term, as she was authorized to do pursuant to CPL 190.15(1). Consequently, the Grand Jury panel, which heard all the testimony in the instant case, was never called upon to deliberate on the charges alleged to have been committed.
In People v. Wilkins, 68 N.Y.2d 269, 508 N.Y.S.2d 893, 501 N.E.2d 542 the prosecutor withdrew a case from the Grand Jury after the presentation of all the evidence and resubmitted the case to a second Grand Jury panel without seeking judicial approval. The Court of Appeals held that the prosecutor's unilateral withdrawal of the case "must be deemed a dismissal, regardless of the good faith of the withdrawal" (People v. Wilkins, supra at 275, 508 N.Y.S.2d 893, 501 N.E.2d 542). (See also, People v. Cade, 74 N.Y.2d 410, 414-415, 548 N.Y.S.2d 137, 547 N.E.2d 339.)
In the instant matter, the prosecutor did not formally withdraw the case from the Grand Jury's consideration. The prosecutor states, in her affirmation, that after contemplating whether to call an additional witness, she decided against such and attempted to instruct the Grand Jury on the charges. She was unable to do so, however, because of the busy schedule of the Grand Jury panel and because of a lack of a quorum whenever she attempted to instruct the panel. Pursuant to People v. Wilkins, 68 N.Y.2d 269, 508 N.Y.S.2d 893, 501 N.E.2d 542, supra, the initial charges against the defendants must be deemed dismissed under CPL 190.60(4). (See also, Mooney v. Cahn, 79 Misc.2d 703, 361 N.Y.S.2d 118; Matter of McGinley v. Hynes, 75 A.D.2d 897, 428 N.Y.S.2d 57, rev'd on other grounds, 51 N.Y.2d 116, 432 N.Y.S.2d 689, 412 N.E.2d 376, cert. denied, 450 U.S. 918, 101 S.Ct. 1364, 67 L.Ed.2d 344.)
Pursuant to CPL 190.75(3), once charges pending before a Grand Jury have been dismissed, or deemed dismissed, they may not be resubmitted unless the Court, in its discretion, authorizes or directs the People to resubmit such charges to the same or another Grand Jury. The People are entitled to make an ex parte application for resubmission, pursuant to CPL 190.75(3) (People v. Ladsen, 111 Misc.2d 374, 376-377, 444 N.Y.S.2d 362), provided their application is accompanied by sufficient facts to permit a proper exercise of discretion by the reviewing judge (People v. Dykes, 86 A.D.2d 191, 196, 449 N.Y.S.2d 284).
In the pending matter, the Assistant District Attorney submitted an affirmation in support of her application for leave to resubmit the matter before the Grand Jury, the sum and substance of which has already been summarized within this opinion. In determining what standards a reviewing Court must apply in considering a District Attorney's CPL 190.75(3) application, the Second Department has previously determined that in cases involving an outright rejection of the People's case by a Grand Jury panel, a judge reviewing a request for resubmission should not grant resubmission "unless it appears ... that new evidence has been discovered since the former submission; that the Grand Jury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the Grand Jury otherwise acted in an irregular manner" (People v. Dykes, 86 A.D.2d 191, supra, at 195, 449 N.Y.S.2d 284) (citations omitted). In the pending matter, no claim has been raised by the moving party that new evidence, unavailable at the time of the original Grand Jury presentation, has been obtained or made available to the prosecutor. (See, People v. Maye, 173 A.D.2d 891, 569 N.Y.S.2d 758, aff'd, 79 N.Y.2d 1041, 584 N.Y.S.2d 1011, 596 N.E.2d 409; People v. Anderson, 143 A.D.2d 192, 531 N.Y.S.2d 638; People v. Martin, 71 A.D.2d 928, 419 N.Y.S.2d 724; People v. Ladsen, 111 Misc.2d 374, 444 N.Y.S.2d 362; People v. Groh, 97 Misc.2d 894, 412 N.Y.S.2d 760; People ex rel. Flinn v. Barr, 259 N.Y. 104, 181 N.E. 64.) Additionally, no claim has been made that the original Grand Jury panel which heard the testimony in this case failed to give the case a complete and impartial investigation or that there is a basis for believing that the Grand Jury acted or was acting in an irregular manner. (See, People v. Jose C., 127 Misc.2d 689, 487 N.Y.S.2d 499.) Clearly, under this standard of review, the People have failed to convince this Court that granting the application for resubmission of the case to another Grand Jury panel would be an appropriate exercise of judicial discretion.
In the pending matter, the Assistant District Attorney never instructed the Grand Jury on the law, nor sought to extend the Grand Jury's term to allow them to complete their unfinished business. In contrast to the cases discussed above, the Assistant District Attorney did not formally withdraw the case from the Grand Jury's consideration and did not have her case "rejected" by the Grand Jury (People v. Cade, 74 N.Y.2d 410, 414-415, 548 N.Y.S.2d 137, 547 N.E.2d 339, supra; People v. Wilkins, 68 N.Y.2d 269, 273, 508 N.Y.S.2d 893, 501 N.E.2d 542, supra ). Under these circumstances, should the prosecutor be held to the same standards of judicial review as in those situations where the Grand Jury has deliberated on the charges and returned a no true bill? In People v. Washington, 125 A.D.2d 967, 510 N.Y.S.2d 402, lv. denied, 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106 the Appellate Division, Fourth Department, was confronted with a similar fact scenario to the case at hand. In Washington, an accomplice testified before the Grand Jury, implicating the defendant in criminal activities. The Grand Jury was not charged with respect to the law, nor asked to return an indictment, because the Assistant District Attorney felt there was legally insufficient corroboration of the accomplice's testimony. Two years later, new evidence became available and another Assistant District Attorney requested, and received, permission to resubmit the evidence to a second Grand Jury. The defendant was indicted and ultimately convicted. On appeal the defendant challenged the Court's granting of the People's application for resubmission to a second Grand Jury. In affirming the conviction, the Appellate Division held that the original Assistant District Attorney's decision not to charge the Grand Jury must be deemed the equivalent of a "dismissal" under CPL 190.75 and that the case could...
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People v. Turner, INDICTMENT NO. 10553/12
...basis for dismissal of the Indictment. See, People v. Dykes, supra; People v. Martin, 71 AD2d 928 (2nd Dept. 1979); compare, People v. Fantucci, 157 Misc2d 443 (S. Ct. Kings Co. 1993). Finally, with regard to that branch of the instant motion wherein defendant claims his CPL §190.50 right t......