People v. Gega

• Decision Date: 28 January 1992
• Citation: 151 Misc.2d 70,580 N.Y.S.2d 639
• Parties: PEOPLE of the State of New York v. Tim GEGA and Mark Gega, Defendants.
• Court: New York Supreme Court

Page 639

580 N.Y.S.2d 639

151 Misc.2d 70

PEOPLE of the State of New York v. Tim GEGA and Mark Gega, Defendants.

Supreme Court, New York County Part 81.

Jan. 28, 1992.

Robert M. Morgenthau, Dist. Atty., Steven Losquadro, Asst. Dist. Atty., of counsel, New York City, for the People.

Stewart Leigh Orden, New York City, for defendant Tim Gega.

Jeremy F. Orden, Brooklyn, for defendant Mark Gega.

STEPHEN G. CRANE, Justice.

It is stimulating to the legal mind, indeed, exciting, to construe relatively recent legislation (L.1990, Ch. 209) where the drafters have left so much space for interpretation. In fact, after reading this decision, our lawmakers may want to amend the Criminal Procedure Law more perfectly to implement their intentions.

This was a case of burglary (PL § 140.20). The defendants, two brothers, were found in a building, one in the cellar by the elevator well and the other hanging halfway through the broken window of a street-level door. After a Huntley- Dunaway hearing, the court denied suppression of statements attributed to the defendants. Then, they both asked the court to inspect the grand jury minutes and reduce the single count to criminal trespass, third degree (PL § 140.10). For reasons that need not concern us now (but see, People v. Minor, 150 A.D.2d 182, 540 N.Y.S.2d 793), the court granted this motion on April 24, 1991 (hereafter referred to as the reduction order).

The People served a notice of appeal in due course. (It is not in the court file.) The case was later adjourned for control pending the appellate process. The parties next signed a stipulation, dated June 11, 1991, for the withdrawal of the appeal subject to the approval of the Appellate Division. The record fails to reflect whether this approval was ever secured.

Some two months later, the Assistant District Attorney wrote this court a letter dated August 9th, copies of which defense counsel deny receiving. It states:

After careful consideration of your opinion [in the transcript], the office believes that we would not prevail on an appeal on the reduction. Therefore, we now withdraw our notice of appeal and respectfully request leave to re-present the case to the New York County Grand Jury. [Emphasis added.]

By notice of motion dated October 31, 1991, the People now move formally for leave to resubmit a burglary, third degree, charge to the grand jury.

STATUTORY FOUNDATIONS

The defendants claim there is no procedural authority for this motion. The prosecutor refers to CPL § 210.20(1) and People v. Dykes, 86 A.D.2d 191, 449 N.Y.S.2d 284, as the foundations for granting leave to re-present. These citations, of course, deal with vastly different circumstances. Criminal Procedure Law § 210.20(1), insofar as remotely applicable to the argument raised by the People, deals with dismissals of indictments as defective or as unsupported by legally sufficient evidence. CPL § 210.20(1)(a) and (b). It is subdivision (4) that the prosecutor intends to invoke in such a situation:

Upon dismissing an indictment or a count thereof upon any of the grounds specified in paragraphs (a), (b), (c) and (i) of subdivision one ... the court may, upon application of the people, in its discretion authorize the people to submit the charge ... to the same or another grand jury.

This familiar procedure has been in the Criminal Procedure Law since its inception in 1971. It is inapplicable at bar for two reasons. First, a motion to inspect and dismiss must fail if the grand jury minutes support the charge or any lesser included offense. CPL § 210.20(1)(b). And, as already mentioned, this court found that the grand jury minutes supported criminal trespass, third degree, manifestly a lesser included offense of burglary, third degree. Secondly, this court did not dismiss after People v. Dykes, supra, is of no greater help to the motion. Here is a case authorizing the prosecutor to apply for leave to re-present to a second grand jury charges that were dismissed not by the court, but by a prior grand jury. CPL § 190.75(3); People v. Jose C., 127 Misc.2d 689, 487 N.Y.S.2d 499. This line of analysis is inapplicable since the charges at bar were not dismissed by the first grand jury. That body actually did indict the Gega brothers for burglary, third degree.

                its inspection of the minutes.   It simply reduced the charge
                

Having discarded these irrelevancies, the court is left with no basis that the prosecutor claims for his motion. It would be simple, though not necessarily fair, to rest there and deny the motion for the prosecutor's failure to support it procedurally. Instead, the court turns to the Laws of 1990, Ch. 209, and CPL § 210.20(1-a) and (6). Effective September 1, 1990, this legislation gave new power to the court to inspect grand jury minutes and order the charge reduced if the minutes supported the lesser included but not the greater charged offense. When a reduction is ordered, the People are afforded "one of three alternatives." Preiser, Supplemental Prac. Commentaries (1990) to CPL § 210.20, 11A McKinney's Cons. Laws of New York, Criminal Procedure Law 210-329, Supp.Pamph. at p. 9 (1991); Memorandum of State Executive Department, 1990 McKinney's Session Laws 2381, 2382. These are:

(a) Accept the court's order by filing a reduced indictment or by dismissing the indictment and filing a prosecutor's information, as appropriate;

(b) Resubmit the subject count or counts to the same or a different grand jury within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause;

(c) Appeal the order.... (CPL § 210.20(6)(a-c).)

The only arguable procedure that the motion at bar may be deemed to invoke is subparagraph (b).

AVAILABILITY OF ALTERNATIVES

The primary question presented by this motion is: Once the prosecution has selected an option under CPL § 210.20(6), may it change its choice?

Timing

The Assistant District Attorney points out that his notice of appeal was timely pursuant to CPL § 460.10(1)(c). ¹ This is significant evidence that the People have made a selection of "one of three" alternatives within the time permitted. The first consideration in answering the foregoing question is timing. CPL § 210.20(6) introduces the three choices with the following language:

The effectiveness of an order reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor's information shall be stayed for thirty days following the entry of such order unless such stay is otherwise waived by the people. On or before the conclusion of such thirty-day period, the people shall exercise one of the following options [then follow the three alternatives of paragraphs (a) through (c) quoted above.]

This thirty-day provision seems primarily intended to afford the prosecutor time to examine the choices and yet opt for an appeal within the jurisdictional thirty days specified in CPL § 460.10(1)(a) and (c). If the appellate option is chosen, proceedings in the trial court are stayed pending an appeal, CPL § 460.40(2). It is contemplated that the appeal will be expedited. CPL § 450.55; e.g. Rules of Appellate Division, First Department, 22 NYCRR § 600.8(e). The enacted chapter 209 reflects a change in emphasis from that of the original authors of the procedure for inspection and reduction. The Advisory Committee on the Plainly, the authors of the reduction procedure invested their time provisions with the primary, if not sole, function of staying further trial court proceedings. Yet, even these drafters made no provision for the trial court to proceed if the time limitations were breached and the stay lifted.

                Criminal Procedure Law appointed by the Chief Administrator of the Courts originally drafted this procedure (1990 McKinney's Session Laws of N.Y., at 2859-2866).   This version would have stayed the effectiveness of a reduction order for [151 Misc.2d 74] five days within which period the People would be required to select their option.   Then if they opted for resubmission, they would have to represent "within 30 days ... or such additional time as the court may permit upon a showing of good cause" (Proposed CPL 210.20[6][b], op. cit. at 2863) and they thus secured a further stay until the new grand jury acted.   If, instead, they chose to appeal, they would be required to file a "notice of intent to appeal" and to perfect the appeal within 20 days.  (Proposed CPL § 450.55, op. cit., at 2865.)   If they complied with this timing, the reduction order would be further stayed.   Otherwise, the stay would be automatically vacated.  (Proposed CPL § 460.40(2).   See, Memorandum of Judiciary, 1990 McKinney's Session Laws 2859-2866)
                

The legislation as enacted borrowed from the original architects, expanded the five-day period within which the prosecutor must choose, eliminated the throttle requiring perfection of the appeal within twenty days and allowed the void to remain in providing a consequence if the prosecutor fails to meet the deadline in making a selection among alternatives listed in CPL § 210.20(6) (a-c). ²

In the case at bar, the stipulation to withdraw the appeal was dated more than thirty days after the reduction order. The prosecutor's desire to represent the greater charge to the grand jury was not announced for yet another two months; and for whatever reasons, a formal motion to do so was not made for almost three months more.

Changing Options

It has already been observed in this opinion that the prosecutor has one of three options. In answering whether a selection may be changed, the court is bereft of legislative guidance. Certainly, if timely, who could complain of a switch in view of the stay of all proceedings? But, if tardy, only delay and injustice will be served by permitting a change. As one defendant here argues, if the prosecutor realizes his improvidence in appealing only on receipt of the respondent's appellate...