People v. Groh
| Citation | 97 Misc.2d 894,412 N.Y.S.2d 760 |
| Parties | The PEOPLE of the State of New York v. Robert T. GROH, Defendant. |
| Decision Date | 11 January 1979 |
| Court | United States State Supreme Court (New York) |
Evidence concerning the defendant was presented to a grand jury of the Extraordinary Special and Trial Term in Queens County. The grand jury voted to dismiss the charges. The special prosecutor further addressed the grand jury and the Supreme Court Justice then presiding at the Extraordinary Term addressed the grand jury as well. The grand jury then voted to indict the defendant.
The defendant moved under CPLR Article 78 in the Appellate Division, Second Department, to prohibit the trial judge and the special prosecutor from proceeding with respect to the indictment. That court held that it had no jurisdiction, but stated that if it had, it would have dismissed the indictment because of "irregularities going to the very heart and integrity of the grand jury system". People v. Groh, 57 A.D.2d 389, 391, 395 N.Y.S.2d 212, 214-15. The Court stated that the trial judge "may wish to reconsider his determination should an application be made therefore".
On reconsideration, Justice Howard Jones dismissed the indictment, under § 210.20(1)(i) and § 210.40 of the Criminal Procedure Law, with leave to resubmit the charges to a new grand jury. The charges were resubmitted to a different grand jury of the Extraordinary Term. That grand jury returned an indictment charging the defendant with the crimes of Grand Larceny in the First Degree and Bribe Receiving.
The defendant moves to dismiss the indictment on the grounds that the resubmission was illegal and that the evidence before the grand jury was insufficient to warrant an indictment.
Defendant argues that the submission of the previously dismissed charges to the grand jury which voted the instant indictment was an unauthorized "third submission" of the same charges to a grand jury in violation of CPL 190.75(3). That paragraph provides:
Assuming that the original recorded but unfiled dismissal by the first grand jury should be deemed a dismissal within the meaning of the first sentence of subdivision (3), and even assuming that the further instructions by the Special Prosecutor and the Justice at the Extraordinary Term constituted a resubmission of the charges, the last sentence of subdivision (3) did not prohibit Judge Jones' authorization to resubmit the charges to another grand jury.
CPL § 190.75 specifically applies by title and by content only to dismissals of charges by a grand jury. The last sentence of subdivision three of that section, in providing that "if In such case the charge is again dismissed, it may not again be submitted to a grand jury," clearly refers to a second dismissal by a grand jury. Here, the "second presentation" resulted not in a dismissal, but in an indictment. Therefore, CPL 190.75(3) did not prohibit Judge Jones from authorizing resubmission of the charges.
Judge Jones' authorization to resubmit the charges to another grand jury was proper, and in any event, should not be disturbed by this Court. CPL § 210.20(4) permits a Court, in its discretion, to authorize resubmission upon dismissing an indictment upon the grounds specified in paragraph 1(a), 1(b), 1(c) and 1(i) of that section, i. e., that:
(a) Such indictment or count is defective, within the meaning of section 210.25; or
(b) The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense; or
(c) The grand jury proceeding was defective, within the meaning of section 210.35; or
(i) Dismissal is required in the interest of justice, pursuant to section 210.40.
If on the other hand, dismissal is based upon any other ground, such authorization may not be granted. Id. Judge Jones dismissed pursuant to CPL 210.20(1)(i) () and specifically authorized resubmission. Defendant argues that (1)(i) was not the correct ground for dismissal, and that CPL 210.20(1)(h) () was the proper ground for dismissal. If, indeed, (h) was the appropriate paragraph, resubmission would have been improper.
However, P (h) was not the proper ground for dismissal of the first indictment. That paragraph would appear to apply prospectively to impediments to conviction upon the indictment, rather than to defects in the indictment or underlying grand jury proceedings, which are the subject of other paragraphs of this section. A dismissal may be based upon paragraph (h) only when none of the other eight paragraphs of the statute sufficiently set forth specific grounds for dismissal. In People v. Frisbie, 40 A.D.2d 334, 339 N.Y.S.2d 985 (Third Dept., 1973), the court stated at page 336, 339 N.Y.S.2d at page 988:
"Finally, it is clear that paragraph (h) is to be used only when none of the other eight paragraphs sufficiently sets forth a specific defendant's ground for dismissal."
Even assuming that dismissal "in the interest of Justice" was not the proper ground for dismissal, dismissal was required or authorized under P (c) of CPL § 210.20(1) (). Therefore, P (h) would not have been the appropriate basis for dismissal.
Although dismissal was couched in terms of the interest of justice, the Court was clearly acting upon the strong suggestion of the Appellate Division that the indictment should be dismissed because of "procedural irregularities going to the very heart and integrity of the grand jury system". People v. Groh, supra. Both the prosecution and defense had ample opportunity to be heard as to the proper ground which was the actual basis for dismissal and the propriety of resubmission. Cf. People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441 (Second Dept., 1976).
Subdivision 4 of CPL 210.20 permits resubmission...
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