People v. McDonnell
| Decision Date | 02 October 1975 |
| Citation | 373 N.Y.S.2d 971,83 Misc.2d 907 |
| Parties | The PEOPLE of the State of New York v. Kathleen McDONNELL. |
| Court | New York Supreme Court |
Defendant has been indicted and charged with two counts of assault in the third degree. The indictment came about pursuant to the authority vested in a Deputy Attorney General who was appointed by the Attorney General to act in connection with requests for investigation and prosecution made by the State Commissioner of Social Services and the State Commissioner of Health under the Executive Law.
The said Deputy Attorney General commenced a presentation to the Grand Jury of Queens County which on July 15, 1975 returned the aforesaid indictment against the defendant. The defendant was arrested on July 17, 1975 and arraigned on that date before Mr. Justice Dubin who released the defendant on her own recognizance. On August 19, 1975, Mr. Justice Lerner, after an inspection of the Grand Jury minutes, denied defendant's motion to dismiss the indictment which motion was based on the ground that the minutes were insufficient to support the findings of the Grand Jury.
Now, the defendant brings on a new motion to dismiss the indictment in the interests of justice, contending that she has been deprived of her constitutional rights to due process and equal protection under the law because this indictment for the misdemeanor of assault, third degree, resulted from a direct presentment to the Grand Jury and subsequent arraignment in the Supreme Court, thereby by-passing any proceeding in a lower criminal court in which court defendant would otherwise have been eligible for an adjournment in contemplation of dismissal and a preliminary hearing. Defendant does not appear to dispute the authority of the Deputy Attorney General to proceed in the manner in which he did under the provisions of section 190.55 of the Criminal Procedure Law, but rather contends that the option selected by the Deputy Attorney General was contrary to law in that the normal procedure within the Queens County Detective Division is that a defendant charged with a misdemeanor is properly brought before the lower criminal court so as not to unlawfully deprive a defendant of eligibility for an adjournment in contemplation of dismissal and a preliminary hearing.
It appears to the court that the defendant herein was not deprived of due process or equal protection of the law by the direct submission of her case to the Grand Jury. The overwhelming weight of authority is strongly indicative and supportive of the concept that the option as to the method of prosecution when alternatives are provided rests solely with the enforcement or prosecuting official and that the right to such an option may not be abridged by either the defendant or the court. '* * * the court should not interfere with the discretion lodged in prosecuting officials such as a district attorney or the Attorney General to institute criminal proceedings' (Matter of Hassan v. Magistrates' Court of the City of New York, 20 Misc.2d 509, 191 N.Y.S.2d 238 (Queens Co., 1959)). It lies within the province of the district attorney to chart the course of a prosecution. He could decide on having a preliminary examination conducted by a magistrate or having the facts presented directly to a Grand Jury (People ex rel. Willett v. Quinn, 150 App.Div. 813, 135 N.Y.S. 477).
Similarly, the courts have held repeatedly that it is within the power of a district attorney to directly submit a case pending in a lower court to the Grand Jury, even though an indictment returned after such submission would divest the lower court of all jurisdiction of the matter and remove any procedural rights the defendant would have had therein. In People v. Belmont, 48 Misc.2d 1057, 1059, 266 N.Y.S.2d 752, 754--755 (Queens Co., 1966) the court held 'When a District Attorney elects to make a direct submission to a grand jury, even though the matter is pending in the Criminal Court of the City of New York, the exercise of such discretion may not be interfered with by the court for the latter 'does not have the power to substitute its judgment for that of the District Attorney' (Cf. Matter of Hassan v. Magistrates' Court, 20 Misc.2d 509, 515, 191 N.Y.S.2d 238,...
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...official and that the right to such an option may not be abridged by either the defendant or the court." People v. McDonnell, 373 N.Y.S.2d 971, 974 (Sup. Ct. 1975). "[The prosecutor] could decide on having a preliminary examination conducted by a magistrate or having the facts presented dir......
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