People v. Martin

• Decision Date: 12 December 1978
• Citation: 411 N.Y.S.2d 822,97 Misc.2d 441
• Parties: The PEOPLE of the State of New York, v. John MARTIN.
• Court: New York Supreme Court

Page 822

411 N.Y.S.2d 822

97 Misc.2d 441

The PEOPLE of the State of New York, v. John MARTIN.

Supreme Court, Criminal Term, Kings County, Part 20.

Dec. 12, 1978.

Frank T. Geoly, Brooklyn, for defendant.

Eugene Gold, Dist. Atty. (Richard L. Rosen, Brooklyn, of counsel), for plaintiff.

MEMORANDUM

EDWARD S. LENTOL, Justice.

Defendant has been indicted and charged with the crimes of manslaughter in the second degree and criminally negligent homicide and moves to dismiss the indictment.

The charges against the defendant were first submitted to the Grand Jury on July 27, 1976. That Grand Jury failed to find an indictment and returned to the Court a dismissal of the charges.

Thereafter, by ex parte application, the District Attorney obtained an order signed by Mr. Justice Vaccaro directing resubmission of the charges to a Grand Jury pursuant to section 190.75(3) of the Criminal Procedure Law (formerly § 270 of the Code of Criminal Procedure). Following the resubmission of the charges to a second Grand Jury the present indictment was returned.

The affirmation of the Assistant District Attorney submitted in support of said order stated that the resubmission was sought because of newly discovered evidence. The newly discovered evidence consisted of a witness who advised the District Attorney's Office that two weeks before the shooting he observed a confrontation between defendant and neighborhood youths, including the victim, and the defendant stated to the victim that "he had better watch out or he will shoot him".

The motion presents two issues. One is the claim that the affirmation of the prosecutor in support of Mr. Justice Vaccaro's order was insufficient. The other is that the evidence presented to the second Grand Jury following resubmission was insufficient. The defendant also challenges the charge to the Grand Jury in that they were not instructed on the defense of justification.

At common law an order of the Court permitting resubmission of the charge was unnecessary. The statute, 270 of the CCP, was passed to correct grave abuses which arose out of such practice and to provide a check on the practice of repeated submissions to a Grand Jury by a prosecutor where charges had already been dismissed (Final Report of the Commissions on Practice and Pleadings, Criminal Code, December 31, 1849 (N.Y. Assembly Doc. 1850, No. 18, p. 138; People v. De Lio, 75 Misc.2d 711, 713, 348 N.Y.S.2d 703, 705). The final report from which Section 270 was derived without material change states in part:

"This Section is designed to provide a convenient check upon the practice which now prevails, of repeated application to the grand jury for an indictment, where it has already been dismissed. Cases have existed, where after frequent dismissals of the indictment, the perseverance of the prosecutor has at length succeeded in procuring it to be found. The Commissioners are not prepared to say, that an indictment should not be found after one or more dismissals; for they are ready to admit, That by reason of the discovery of new testimony, or of other facts intimately connected with the due administration of justice, it may be both expedient and necessary, that the case should be submitted to another grand jury.____________"

(People v. Besser, 207 Misc. 692, 140 N.Y.S.2d 195, affirmed, People ex rel. Besser v. Ruthazer, 3 A.D.2d 137, 158 N.Y.S.2d 803 Emphasis Mine.) See also People ex rel. Flinn v. Barr, 259 N.Y. 104, 181 N.E. 64.

Section 190.75 of the Criminal Procedure Law provides as follows:

§ 190.75 Grand Jury; dismissal of charge.

1. If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.

3. When a charge has been so dismissed, 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. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.

The rule is well established that when a Grand Jury dismisses a charge, the prosecutor may not represent it for reconsideration by the same or another Grand Jury without permission of the Court (People v. Field, Co.Ct., 15 N.Y.S.2d 561, People v. Westbrook, 79 Misc.2d 902, 361 N.Y.S.2d 584; CPL 190.75). Where the provisions of Section 190.75 are not complied with the indictment is void since the second Grand Jury is without jurisdiction (People ex rel. Flinn v. Barr, supra; People v. De Lio, 75 Misc.2d p. 714, 348 N.Y.S.2d p. 706, supra). The present statute permits but one resubmission. If the charge is again dismissed, "it may not again be resubmitted to a grand jury".

There are sound reasons for the rule. The dismissal by the Grand Jury indicates that it did not consider the evidence of sufficient importance or worthy of belief and should not therefore be presented to a petit jury. The spirit of the Grand Jury procedure would be violated if a District Attorney, because he disagreed with the action of one Grand Jury, could repeatedly submit it to successive Grand Juries until he found one that would return an indictment. There would be chaos if one Grand Jury could review the action of another Grand Jury (People v. Westbrook, 79 Misc.2d p. 903, 361 N.Y.S.2d p. 585, supra; People v. Coletti, Fitzgerald, J., N.Y.L.J. 3/31/36).

The first issue presented is whether this Court may review the order made by Mr. Justice Vaccaro and its supporting affirmation which is attached because it is alleged it fails to set forth new testimony or additional facts. This Court finds that it may do so. The general rule is well established that judges shall not pass or review a matter already passed upon by another judge of equal authority or coordinate jurisdiction (Wright v. Monroe County Court, 45 A.D.2d 932, 357 N.Y.S.2d 330), the prior order of Mr. Justice Vaccaro should ordinarily be adhered to by judges of coordinate jurisdiction in the same action or proceeding (Field v. Public Administrator, 10 A.D.2d 97, 197 N.Y.S.2d 652; see also, Public Service Mutual Insurance Co. v. McGrath, 56 A.D.2d 812, 392 N.Y.S.2d 659).

There is, however, an exception provided by statute to the rule when the prior order is an ex parte order. Rule 2221(2) of the Civil Practice Law and Rules provides: "If the order was made without notice such motion (to review) may be made, without notice, to the judge who signed it, or on notice to any other judge of the court."

The Court therefore concludes that this motion is properly before this Court since it involves the consideration of a prior ex parte order.

This case should be distinguished from cases where resubmission is ordered by the Court on its own initiative.

In People ex rel. Besser v. Ruthazer, supra, the Court stated 158 N.Y.S.2d at page 805:

"There is nothing in the language of the statute, nor in its history, which suggests that its effect was to limit the power of a court of jurisdiction, as it existed at common law, to direct the resubmission of a charge which had theretofore failed to result in the return of a true bill by a grand jury. The limitation suggested in the statute and the conditions for providing the resubmission are directed to resubmission sought to be obtained by the prosecutor. On the other hand, the supervisory power of the court of jurisdiction over the grand jury is a real one."

The power of the Court to direct a resubmission is discretionary (People v. Karlovsky, 147 Misc. 57, 263 N.Y.S. 293; People v. Barr, supra; CPL § 190.75(3).

In People v. Barr (259 N.Y. p. 109, 181 N.E. p. 65, supra) it was said "for cause shown the Court in its discretion may direct a resubmission". The Court has no right to exercise its own individual opinion in a given case, but should act in a judicial capacity. Cause is shown when "it appears that new evidence has been discovered since the former submission, or it is apparent that the grand jury has failed to give the case complete and impartial investigation" (People v. Dziegiel, 140 Misc. 145, 250 N.Y.S. 743, app. dism. 233 App.Div. 794, 250 N.Y.S. 885).

Assuming that...