Opinion
Ind. No. 76861-23
06-05-2024
The People of the State of New York v. Anderson Jones, Defendant.
Eric Gonzalez, District Attorney, Kings County, Denise Montano of counsel. Brooklyn Defender Services, Eileen McNamara of counsel.
Unpublished Opinion
Eric Gonzalez, District Attorney, Kings County, Denise Montano of counsel.
Brooklyn Defender Services, Eileen McNamara of counsel.
E. NIKI WARIN, A.J.S.C.
The defendant has moved to dismiss the indictment on the grounds it was obtained in violation of CPL 190.75(3). The People have opposed. For the reasons set forth below, the Court GRANTS the defendant's application.
STATEMENT OF FACTS
Defendant was arrested on July 5, 2023 and charged with Criminal Possession of a Weapon in the Second Degree and other charges. On that same day, an abandonment sample was taken from a cup used by the defendant at the precinct and sent for testing. The defendant was arraigned on July 6th and he posted bail. On that same day, the People requested that OCME conduct a DNA comparison of the swab from the firearm and the defendant's sample.
On July 12 and 18th, the People presented evidence to a grand jury: in brief, this presentation included testimony from police officers that as they approached some individuals playing dice, they saw the defendant bend down and pick something up, walk towards a bag tied to a gate, and place a firearm from his waistband into the bag. The grand jury voted no true bill.
By motion dated September 13, 2023, the People moved ex parte for leave to re-present the case to a second grand jury. The motion provided that the affirmation and memorandum of law "are submitted in support of the People's withdrawal and motion to re-present evidence... to a duly constituted Grand Jury for Kings County, where evidence in this case as previously presented in part to a Grand Jury." (People's ex parte Motion dated Sept. 13, 2023, at 1 (emphasis added)). The affirmation states that "all evidence available" was presented to the grand jury on July 12, and July 18, 2023, and that the term ended on August 4, 2023. It further stated that on August 8, 2023, OCME issued a report finding the defendant was a contributor to the DNA swab taken from the firearm. The People asserted that the DNA report was new evidence and that under CPL 190.75(3), re-presentation to another grand jury was permissible and warranted.
In their opposition papers, the People state that the OCME report was received by the ADA a week later, on August 16, 2023.
This Court, presiding in the MISMO part, was assigned the motion. On September 29, 2023, the defendant moved to challenge the People's request, and in their submission, pointed out that the grand jury had in fact voted to dismiss the charges. On this record, the Court granted leave to re-present (see Decision dated October 5, 2023). Afterwards, the People presented evidence to a second grand jury that included the OCME report and the defendant was indicted.
"MISMO" is the miscellaneous motions part for Kings County Supreme Court, Criminal Term, a busy institutional assignment staffed by justices on a weekly rotation: all search warrant applications, writs, subpoenas, parole revocation hearings, material witness orders, X indictments, involuntary returns on warrants, and any other matters needing immediate attention are brought there.
Defendant's opposing papers advised that the grand jury had voted a no true bill, information obtained from an email correspondence with the prosecutor (see Def. Ex. A).
Defendant has now moved to dismiss the indictment, arguing that permitting re-presentation to a second grand jury violated CPL 190.75(3) as the DNA evidence in question did not constitute "new evidence." The People oppose, arguing that new evidence is not required, and if it is, the DNA report qualifies. As this motion in effect asks this Court to reconsider its earlier grant of permission to re-present, this Court accepted it for decision (see People v. Martin, 71 A.D.2d 928 [2d Dept 1979] (finding review by lower court of whether 'new evidence' was actually presented to second grand jury appropriate)).
The Court has not reviewed the transcripts from either grand jury presentation. The defendant does not contest that DNA evidence was presented to the second grand jury, and that it was not presented to the first.
STANDARD OF LAW
Under CPL 190.75(3), if a grand jury votes to dismiss a charge against a defendant, the prosecutor may not re-present that charge to another grand jury without first obtaining permission from the Court (see CPL 190.75[3]). The Second Department articulated the legal standard for the exercise of the Court's discretion under this provision in People v. Dykes, 86 A.D.2d 191, 195 (2d Dept 1982). In that case, the grand jury had voted a no true bill on assault charges after the defendant had testified that another person had stabbed the complainant, and the prosecutor sought permission to resubmit based solely on a "belief" that the decision was against the weight of the evidence, an application that was later granted and the defendant was indicted by a second grand jury. The Second Department found that allowing resubmission after the grand jury voted to dismiss was in error:
[A] determination by the Grand Jury that the evidence before it does not warrant an indictment should end the matter and there should not be a resubmission unless it appears, for example, that new evidence has been discovered since the former submission, that the Grand Jury failed to give the case a complete and impartial investigation, or that there is a basis for believing that the Grand Jury otherwise acted in an irregular manner.(Dykes, 86 A.D.2d at 195 (emphasis added)). The Dykes court also stated that any application by the People to re-present to another grand jury must "be accompanied by facts sufficient to permit a proper exercise of discretion by the reviewing judge" (Id. at 196).
In opposing the instant motion to dismiss, the People acknowledge that the first grand jury voted to dismiss the charges, yet they still rely on a legal standard for obtaining permission to re-present that only applies where the charges are withdrawn before the grand jury is asked to vote. (see People's Mem. Law in Opposition, at 2, citing to People v. Washington, 125 A.D.2d 967, 968-969 [4th Dept 1986]). In Washington, the prosecution withdrew the charges before charging the grand jury because of their concern that there was insufficient corroboration of accomplice testimony and requested permission to re-present later when they had acquired the same. The Fourth Department held that under those circumstances, and where there was no suggestion of gamesmanship by the People, CPL 190.75(3) requires only that the People give "a legitimate reason," rather than a showing of new evidence (Id. at 968). The Washington court specifically distinguished the Second Department decision in Dykes:
[S]tandards for reviewing the contents of ex parte applications for permission to resubmit charges to a second Grand jury, which were developed specifically to protect the integrity of the Grand Jury process where the Grand Jury had actually considered the evidence and voted no bill, are irrelevant in cases where the Grand Jury has never ruled on the evidence. A prosecutor's unilateral action is not presenting a case to the Grand Jury... is not the same as an actual decision of a Grand Jury voting a no bill."(Id. at 968-969 (emphasis added); accord People v. Gordon, 13 Misc.3d 618 [Sup Ct Kings Co 2006] (discussing different standards for resubmission between no action or dismissal)).
Here, since the first grand jury voted to dismiss the charges, the prosecution must present a factual basis sufficient under the Dykes standard to warrant re-presenting to a second grand jury; namely, that either 1) new evidence has been discovered since the former submission, 2) that the Grand Jury failed to give the case a complete and impartial investigation, or 3) that there is a basis for believing that the Grand Jury otherwise acted in an irregular manner (Dykes, 86 A.D.2d at 195; Gordon, 13 Misc.3d at 621). The People assert that the availability of the OCME DNA report satisfies the "new evidence" prong of this standard, which the defendant disputes. Upon reconsideration of defendant's arguments and further review of the relevant precedent and the particular facts of this case, this Court agrees with the defendant.
What constitutes "new evidence" under CPL 190.75(3) is fact specific (e.g. Martin, 71 A.D.2d 928) (additional testimony from witness who had previously testified as to defendant's intent in shooting met standard); People v. Williams, 129 Misc.2d 501 [Sup Ct Bx Co 1985] (additional testimony from child witness traumatized by sexual abuse only divulged pre-trial provided evidence of new criminal conduct by the defendant) ; People v. Ladsen, 111 Misc.2d 374, 380 [Sup Ct NY Co 1981] (permission to resubmit warranted after first grand jury dismissed murder charges where witness unavailable at first presentation would testify as to the defendant's accomplice liability); see also People v. Ballowe, 173 A.D.3d 1666 [4th Dept 2019] (re-presentation proper where witness who had previously testified falsely in grand jury was now cooperating with the prosecution).
Here, the People had requested DNA testing of the swabs ahead of the grand jury presentation. There is no indication in their initial application or opposition to the defendant's motion to dismiss, that a particular fact or circumstance necessitated going forward with the presentation before waiting for the DNA report. There is also no indication that the DNA report contained information that could not have been predicted as a likely outcome by the prosecutor (compare People v. Peter, 22 Misc.3d 713 (Sup Ct Kings Co 2008) (final autopsy report detailing previously unknown injuries to decedent child constituted new evidence). The decision to proceed with the presentation to the grand jury on July 12 and 18th was made by the People when fully aware there were pending DNA results from the firearm, yet the People opted not to wait. On these facts, permission to re-present to a second grand jury was not warranted under the Dykes standard (accord People v. Feliz, 166 Misc.2d 982 [Sup Ct NY Co 1996] (insufficient grounds to re-present when victim of grand larceny arrived late to first presentation and prosecution decided not to wait and proceeded forward on circumstantial evidence and officer testimony)).
In Peter, the prosecution had also sought an extension of the jury's term at that time. In the interim, they learned one of the jurors was related to the deceased, and the presiding judge directed them not to present any additional evidence (Id. at 713).
The People's cited concern for the defendant's speedy trial rights as prompting their decision to proceed does not square with the record, especially as the defendant was not in custody at that time, and there were no facts asserting a particular delay in the OCME report: in fact, the report was issued relatively quickly, just over one month after their request (see People's Mem. of Law at 3). Further, while the People note that the grand jury term was scheduled to end before the report was issued, there is no indication that the People sought to extend the term, or that any other logistical problem necessitated proceeding forward without the report.
The Court's original decision issued during MISMO granting permission to re-present relied upon People v. Anderson, 143 A.D.2d 192 (2d Dept 1988), where the denial of a request to resubmit to a grand jury was found to be an abuse of discretion. However, in Anderson, it was the trial court who had dismissed an indictment for insufficient proof of the defendant's culpable mental state and then denied the prosecutor's request to resubmit with additional proof that was not previously available. That authority was factually distinguishable from the instant case and should not have been relied upon.
Here, the facts asserted in the People's application for permission to resubmit were insufficient to meet the standard under CPL 190.75(3) after the grand jury voted to dismiss the charges. Accordingly, the indictment obtained after the second presentation must be dismissed (see CPL 210.35[5]; CPL 210.20[1][c]; Dykes, 86 A.D.2d at 197).
The foregoing constitutes the decision and order of the court.