People v. Martin

• Decision Date: 20 August 1979
• Parties: The PEOPLE, etc., Appellant, v. John MARTIN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 724

419 N.Y.S.2d 724

71 A.D.2d 928

The PEOPLE, etc., Appellant, v. John MARTIN, Respondent.

Supreme Court, Appellate Division, Second Department.

Aug. 20, 1979.

Eugene Gold, Dist. Atty., Brooklyn (Peter A. Weinstein, Brooklyn, of counsel), for appellant.

Frank T. Geoly, Brooklyn (Steven W. Fisher Rhodes & Fisher, Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, O'CONNOR and MANGANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from so much of an order of the Supreme Court, Kings County, entered January 9, 1979, as, upon granting defendant's motion to inspect the Grand Jury minutes, dismissed the indictment charging defendant with manslaughter in the second degree and criminally negligent homicide.

Order reversed insofar as appealed from, on the law, and indictment reinstated.

The defendant was charged with the death of John Columbo. The matter was first presented to a Grand Jury in July, 1976 but it failed to find a true bill.

In April, 1978 the People, by ex parte application pursuant to CPL 190.75 (subd. 3), moved for an order permitting resubmission of the charges to a second Grand Jury. The District Attorney based his application on the ground that newly discovered evidence had become available.

The court (VACCARO, J.) granted the motion and directed resubmission of the matter to another Grand Jury. On this second submission the Grand Jury returned an indictment against the defendant. The dismissal of the second indictment by Mr. Justice LENTOL is the subject of this appeal.

In dismissing the indictment Mr. Justice LENTOL did not review the validity or the propriety of Mr. Justice VACCARO's order. It is, therefore, unnecessary to pass upon the question of whether one Judge in entertaining a motion to dismiss a second indictment, has the power to pass upon another Judge's order directing resubmission.

In dismissing the indictment Mr. Justice LENTOL decided that the new evidence presented had no real probative value and since the evidence presented to the second Grand Jury was no stronger than that presented to the first, the second indictment had to be dismissed. Alternatively, he held that the indictment had to be dismissed because the additional evidence submitted by the People was not "newly discovered evidence". Both witnesses and the "new" evidence in question were always available to the People and could have been brought before the first Grand Jury had the District Attorney exercised due diligence. We disagree with Criminal Term and hold that this indictment should not have been dismissed on either ground.

CPL 190.75 provides:

"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 empaneled.

"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."

These subdivisions protect a potential defendant by preventing the District Attorney from resubmitting a matter more than once and by requiring him to obtain permission from the court to resubmit. At common law, an order of ...