Opinion
891 KA 19-00978
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Maurice OWENS, Defendant-Appellant.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the indictment is dismissed, and the People are granted leave to apply for an order permitting resubmission of the charge to another grand jury.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). We agree with defendant that the People failed to seek leave pursuant to CPL 210.20 (4) to resubmit the matter to a second grand jury after County Court granted that part of defendant's omnibus motion seeking to dismiss the original indictment as against him on the ground that the evidence before the first grand jury was legally insufficient. "[T]he failure to obtain leave of court to present a matter to a second grand jury, where required, deprives the grand jury of jurisdiction to hear the matter, thereby rendering the indictment void ..., which, in turn, deprives the court of jurisdiction" ( People v. Carr , 128 A.D.3d 1402, 1403, 8 N.Y.S.3d 527 [4th Dept. 2015], affd 30 N.Y.3d 945, 64 N.Y.S.3d 658, 86 N.E.3d 550 [2017] ; see People v. McCoy , 109 A.D.3d 708, 710, 974 N.Y.S.2d 6 [1st Dept. 2013] ; People v. Dinkins , 104 A.D.3d 413, 415, 962 N.Y.S.2d 79 [1st Dept. 2013] ). Although, here, defendant failed to make a motion to dismiss the indictment issued by the second grand jury pursuant to CPL 210.20 (1), the failure of the People to obtain from the court authorization to submit the matter to the second grand jury deprived the second grand jury of jurisdiction to hear the matter, thereby rendering void the indictment issued by the second grand jury and depriving the court of jurisdiction, and the right to challenge a lack of jurisdiction cannot be waived by defendant (see Carr , 128 A.D.3d at 1403, 8 N.Y.S.3d 527 ). Under these circumstances, we must dismiss the indictment issued by the second grand jury that is at issue on this appeal (see CPL 210.35 [5] ; People v. Wilkins , 68 N.Y.2d 269, 276-277 and n. 6, 508 N.Y.S.2d 893, 501 N.E.2d 542 [1986] ; see generally People v. Tomaino , 248 A.D.2d 944, 947, 670 N.Y.S.2d 950 [4th Dept. 1998] ). We note that there is no limit to the number of times that the People may resubmit a charge to a grand jury with leave pursuant to CPL 210.20 (4) (see People v. Morris , 93 N.Y.2d 908, 910, 690 N.Y.S.2d 510, 712 N.E.2d 676 [1999] ). We therefore grant leave to the People to apply to the court for an order permitting their resubmission of the charge to another grand jury (see Tomaino , 248 A.D.2d at 948, 670 N.Y.S.2d 950 ; see also McCoy , 109 A.D.3d at 709-710, 974 N.Y.S.2d 6 ; Dinkins , 104 A.D.3d at 413, 962 N.Y.S.2d 79 ).
We have considered defendant's remaining contentions and conclude that they do not require a different result.