People v. Ross
| Decision Date | 01 December 2003 |
| Docket Number | 2001-10325. |
| Citation | 767 N.Y.S.2d 819,2 A.D.3d 465,2003 NY Slip Op 19127 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHEINA M. ROSS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is reversed, on the law, and the indictment is dismissed, without prejudice to the People to represent any appropriate charges to another grand jury (see People v Beslanovics, 57 NY2d 726 [1982]); and it is further,
Ordered that upon service upon him or her of a copy of this decision and order, the official having custody of the defendant's person is directed to produce her, forthwith, before the Supreme Court, Queens County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on her own recognizance or fixing bail or committing her to the custody of the New York City Department of Correctional Services pending resubmission of the case to the grand jury and the grand jury's disposition thereof (cf. CPL 210.45 [9]). Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a grand jury, (b) arraignment of the defendant upon an indictment filed as a result of resubmission of the case to a grand jury, (c) the filing with the court of a grand jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Queens County, to a designated subsequent date if such be necessary to accord the People a reasonable opportunity to resubmit the case to a grand jury.
At the defendant's trial, the court submitted the charges of attempted murder in the second degree, assault in the first degree, the lesser-included offense of assault in the second degree, and criminal possession of a weapon in the fourth degree. The court also instructed the jury on justification. Although the court instructed the jurors that justification was a defense to all the assaultive counts, it did not instruct them that if they found the defendant not guilty by reason of justification on the top counts, they were not to consider the lesser-included crime. The jury found the defendant not guilty of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the fourth degree, but found her guilty of assault in the second degree.
We agree with the defendant...
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