People v. Westbrook
| Decision Date | 21 November 1974 |
| Citation | 361 N.Y.S.2d 584,79 Misc.2d 902 |
| Parties | PEOPLE of the State of New York v. Michael WESTBROOK, Defendant. |
| Court | New York County Court |
William Cahn, Dist. Atty., Nassau County, Mineola, for the people.
Barry J. Levine, Valley Stream, for defendant.
After the 'March, 1974' Grand Jury received evidence from three witnesses, it handed up Indictment #39510, charging the defendant with the crimes of Burglary in the Second Degree, Grand Larceny in the Second Degree, and Assault in the Second Degree. Two of these witnesses later gave identical evidence to the 'July, 1974' Grand Jury, which returned Indictment #40299, charging the defendant with the crime of Robbery in the First Degree. The facts and circumstances underlying the charges in each indictment are the same in all respects.
The defendant, by this motion, urges the Court to dismiss the later indictment as a nullity, by reason of the District Attorney's failure to obtain permission of the Court to re-present the case to a second Grand Jury.
The common law gave the presecutor a wide latitude in resubmitting charges to a Grand Jury. His discretion in this regard has been curbed only in certain specified situations. Our concern here focuses on the rule that, when a Grand Jury dismisses a charge, the prosecutor may not re-present it for reconsideration by the same or another Grand Jury without permission of the Court (C.P.L. § 190.75; People ex rel. Flinn v. Barr, 259 N.Y. 104, 181 N.E. 64; People v. Dillon, 197 N.Y. 254, 90 N.E. 820; People v. Dziegiel, 140 Misc. 145, 250 N.Y.S. 743; People v. Both, 118 Misc. 414, 193 N.Y.S. 591).
There are sound reasons for this rule. The dismissal of a charge by the Grand Jurors after a full hearing establishes as fact that the evidence presented to them is not of sufficient importance or credible worth to warrant a prosecution and should not, therefore, be presented to the petit jury. The spirit of the Grand Jury procedure would be violated and nullified if the District Attorney, because he disagreed with the factual finding of one Grand Jury, resubmitted the same charge until he could find a Grand Jury that agreed with his opinion that a prosecution was warranted. Chaos would result if one Grand Jury could overrule the factual findings of another, and personal liberty would be endangered. (People v. Nelson, 298 N.Y. 272, 82 N.E.2d 573; People ex rel. Flinn v. Barr, supra; People v. Dillon, supra; People v. Murphy, 281 App.Div. 795, 119 N.Y.S.2d 709; People ex rel. Raimondi v. Jackson, 277 App.Div. 924, 98 N.Y.S.2d 506; People v. Kowalski, 159 Misc. 493, 289 N.Y.S.2d 322; People v. Kelly, 140 Misc. 377, 250 N.Y.S.2d 610; People v. Both, supra; People v. Neidhart, 35 Misc. 191, 71 N.Y.S. 591; People v. Sebring, 14 Misc. 31, 35 N.Y.S. 237).
It is the defendant's position that by failing to indict for robbery, the 'March, 1974' Grand Jury dismissed that charge. Indeed, public policy, the spirit of the law, and fundamental fairness would seem to indicate that where the Grand Jury, after giving a case full and extensive investigation, has taken no action as to a particular charge, that it is deemed to have dismissed that charge (People ex rel. Flinn v. Barr, supra; People v. DeLio, 75 Misc.2d 711, 348 N.Y.S.2d 703; People v. Mooney, Nassau County Supreme Court (Oppido, J.), November 6, 1974). But an essential ingredient to intelligent action by the Grand Jurors is adequate knowledge of the law applicable to the particular facts before them. The courts would not accept, in the past, allegations that the Grand Jury was incorrectly charged on the law, for there is a presumption that the District Attorney, the legal advisor to the jurors, would perform his duty fully according to law. (People v. Morrell, 196 Misc. 1016, 1020--1021, 92 N.Y.S.2d 888, 892--893; People v. Pack, 179 Misc. 316, 323, 39 N.Y.S.2d 302, 308; People v. Neidhart, supra, at 35 Misc. 192, 71 N.Y.S.2d 592; Richardson on Evidence, 9th ed., § 71). Therefore, were it not for a new feature of the law which will be discussed below, this Court would have to presume that the 'March, 1974' Grand Jury was charged as to Robbery and that it did not find the evidence sufficient to sustain such charge.
Section 190.25, subd. 6, of the Criminal Procedure Law, however, now requires that any instructions given to the Grand Jurors Must be recorded in the minutes. With this requirement in mind, the Court turns to the minutes of the 'March, 1974' Grand Jury proceeding. After the evidence was taken, the District...
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Special Grand Jury, Matter of
...the same matter to successive Grand Juries. (People ex rel. Flinn v. Barr, 259 N.Y. 104, 107-108, 181 N.E. 64; People v. Westbrook, 79 Misc.2d 902, 903, 361 N.Y.S.2d 584). The only protection then available to an individual was the constitutional prohibition against being twice placed in je......
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People v. Puig
...without court authorization under these circumstances (People v. Mollica, 25 Misc.2d 877, 204 N.Y.S.2d 514; Cf. People v. Westbrook, 79 Misc.2d 902, 361 N.Y.S.2d 584). Defendant maintains that the procedure followed on November 13 was defective and that dismissal of the indictment is mandat......
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People v. Frank
...matter, or else the case will be considered to be dismissed (cf. Mooney v. Cahn, 79 Misc.2d 703, 361 N.Y.S.2d 118; People v. Westbrook, 79 Misc.2d 902, 361 N.Y.S.2d 584; People v. Wilkins, 95 Misc.2d 737, 408 N.Y.S.2d 291; see also, Matter of McGinley v. Hynes, 75 A.D.2d 897, 428 N.Y.S.2d 5......
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People v. Sinistaj
...51 N.Y.2d 910, 434 N.Y.S.2d 992, 415 N.E.2d 980, lv. denied 52 N.Y.2d 704, 437 N.Y.S.2d 1027, 418 N.E.2d 1328; People v. Westbrook, 79 Misc.2d 902, 905, 361 N.Y.S.2d 584). Here, the second indictment charges an offense different from that charged in the first indictment. Thus, it cannot be ......