People v. King

• Decision Date: 15 December 1987
• Citation: 137 Misc.2d 1070,523 N.Y.S.2d 390
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Wayne D. KING, Defendant.
• Court: New York District Court

Page 390

523 N.Y.S.2d 390

137 Misc.2d 1070

The PEOPLE of the State of New York, Plaintiff, v. Wayne D. KING, Defendant.

District Court, Nassau County,

First District, Criminal Part.

Dec. 15, 1987.

Denis Dillon, Dist. Atty., for plaintiff.

Sol Barrocas, Garden City, for defendant.

EDWARD W. McCARTY, III, Judge.

The People's motion for an order restoring the above-entitled action to the calendar is granted to the limited extent stated herein.

The defendant was originally charged with a felony violation of Grand Larceny in the Fourth Degree, PL Sec. 155.30, which was subsequently reduced to the class A misdemeanor charge of petit larceny, PL Sec. 155.25, upon the application of the People. Subsequently, the People made an application to dismiss the misdemeanor charge in order to further the interests of justice pursuant to CPL Sec. 170.30 subd. (1)(g). The People's application was granted by the Court, and the accusatory instrument was dismissed. The People allege that the application for dismissal was made because of the People's inability to contact the complainant. Now the People have made a motion for an order to restore the above-entitled action to the calendar to allow the People to reprosecute this case on the original felony charge of violating PL Sec. 155.30, Grand Larceny in the Fourth Degree.

The Criminal Procedure Law fails to bar renewed prosecution of a misdemeanor charge that has been dismissed in the interest of justice upon the People's motion pursuant to CPL Sec. 170.30 subd. (1)(g). Matter of Krum v. Hogan, 69 Misc.2d 656, 330 N.Y.S.2d 680 (Supreme Court, New York County 1972); see, People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978). This does not appear to be a legislative oversight since the legislature did provide for a bar to renewed prosecutions in other situations. Section 210.20 of the CPL provides that reprosecution of an indictment is barred where the indictment has been dismissed due to immunity, double jeopardy, statute of limitations, and denial of speedy trial. CPL Sec. 210.20(1)(d), (e), (f), (g), (h). However, Section 210.20 subd. (4) provides that where an indictment had been dismissed in the interest of justice, pursuant to 210.20 subd. (1)(i), the Court may, upon application of the People, authorize the People to submit the charge to the grand jury. Accordingly, a superior court has the statutory authority to grant reprosecution of a felony charge where the indictment had been previously dismissed in the interests of justice.

Similarly, the District Court should have the authority to grant reprosecution of an accusatory instrument on a misdemeanor charge where the accusatory instrument was originally dismissed in the furtherance of justice pursuant to CPL Sec. 170.30. There is nothing in the Criminal Procedure Law which forbids the reinstatement of a misdemeanor prosecution. See, Kopilas v. People, 111 A.D.2d 174, 488 N.Y.S.2d 803 (Second Dept.1985); see also, People v. Morning, 102 Misc.2d 750, 424 N.Y.S.2d 610 (County Court, Suffolk County 1979). Furthermore, there is no double jeopardy involved since double jeopardy does not attach until a witness is sworn at trial. CPL Sec. 40.30; People v. Key, supra.

The People shall be permitted to reprosecute the defendant on the misdemeanor charge of violating PL Sec. 155.25, petit larceny. However, the People are not permitted to reprosecute the defendant on the felony charge of violating PL Sec. 155.30, Grand Larceny in the Fourth Degree. I...