Opinion
2010KN083257.
Decided June 15, 2011.
For the People, Charles J. Hynes, District Attorney, Kings County, by Anna Krutaya-Blantz, Esq., Assistant District Attorney.
For the Defendant, Thomas Gass, Esq.
By motion dated April 14, 2011, Defendant moves to dismiss the above-entitled action pursuant to CPL Sec. 210.20(1)(c). The Court has reviewed Defendant's motion, as well as the People's response dated April 29, 2011, and the Grand Jury minutes dated October 22, 2010 (Volume I and II), and October 29, 2010.
For the reasons stated below, this matter is dismissed as having been improperly withdrawn from the Grand Jury, without permission of the Court, resulting in a de facto dismissal of the charges.
FACTUAL STATEMENT
Defendant was initially charged with Rape in the First Degree (PL Sec. 130.35), a Class B felony, and related charges. On October 22, 2010, the Complainant and Defendant both testified before the Grand Jury of Kings County. Later that day, the People instructed the Grand Jury on the charges of Rape in the First Degree; Rape in the Third Degree (PL Sec. 130.25), a Class E felony; Criminal Sexual Act in the First Degree (PL Sec. 130.50) a Class B felony; and Criminal Sexual Act in the Third Degree (PL Sec. 130.40), a Class E felony. See October 22, 2010 Grand Jury Minutes, Volume II, p 9-10.
The Grand Jury voted a dismissal of all counts. See October 22, 2010 Grand Jury Minutes, Volume II, p 11. The Assistant District Attorney then instructed the Grand Jury that he was "going to return at a later time with additional charges on the law. Please do not deliberate on this case any further until I've had the opportunity to present you with additional charges on the law." See October 22, 2010 Grand Jury Minutes, Volume II, p 11.
On October 29, 2010, the prosecutor instructed the Grand Jury on two counts of Sexual Misconduct (PL Sec. 130.20(1) and (2)), both Class A misdemeanors; two counts of Sexual Abuse in the Third Degree (PL Sec. 130.55), both Class B misdemeanors, and one count of Harassment in the Second Degree (PL Sec. 240.26), a violation. See October 29, 2010 Grand Jury Minutes, p 8-10. The Grand Jury then stated they had no action on all counts. The Assistant asked "And by that do you mean that the Grand Jury was not able to reach a decision one way or another?" The Foreperson answered "Correct." The Assistant repeated, "On all counts?" and the Foreperson repeated "Correct." See October 29, 2010 Grand Jury Minutes, p 11.
The prosecutor then asked if there was "any additional information that I could provide to you that would help you in reaching a decision one way or another with regard to those counts." The Jurors answered "No." See October 29, 2010 Grand Jury Minutes, p 11-12. At that point, a Juror asked "Is this case closed?" The Assistant replied, "This case is closed, yes." See October 29, 2010 Grand Jury Minutes, p 12.
On January 20, 2011, the People filed a superceding complaint, charging two counts of Sexual Misconduct (PL Sec. 130.20(1) and (2)), two counts of Sexual Abuse in the Third Degree (PL Sec. 130.55), and one count of Harassment in the Second Degree (PL Sec. 240.26), the same charges on which the Grand Jury took no action.
LEGAL ANALYSIS
Under the circumstances enumerated above, the withdrawal of this case from the Grand Jury after that body voted "No Action" is tantamount to a dismissal.
CPL Sec. 190.60 states that, "(a)fter hearing and examining evidence . . . a grand jury may: 1. Indict a person for an offense . . . 2. Direct the district attorney to file a prosecutor's information with a local criminal court . . . 3. Direct the district attorney to file a request for removal to the family court . . . 4. Dismiss the charge before it . . . 5. Submit a grand jury report . . ."
Further, under CPL Sec. 190.75(1), the Grand Jury must dismiss a charge if "(a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime of or any other offense." In either case, 190.75(3) states that "(w)hen a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury."
In People v. Willkins, 68 NY2d 269, 274, 508 NYS2d 893, the Court of Appeals stated that "(t)he comprehensive statutory scheme regulating Grand Jury proceedings does not contemplate the termination of deliberations without some action by the Grand Jury." There, the People withdrew a case from the consideration of one Grand Jury before a vote was taken, and resubmitted the matter to a second Grand Jury, which then indicted that defendant. "(A)s far as the prosecutor was concerned, all witnesses had testified, and all that was left was to instruct the Grand Jury on the law." 68 NY2d at 275.
Wilkins made clear the general rule; "once a Grand Jury hears evidence in a case presented to it, the key factor in determining whether an unauthorized withdrawal of the case must be treated as a dismissal is the extent to which the Grand Jury considered the evidence and the charge." 68 NY2d at 274.
In People v. Aarons , 2 NY3d 547 , 549, 780 NYS2d 533 (2004), the Court of Appeals sought to clarify the Wilkins rule. There the People "asked the Grand Jury to cease deliberations so that she could present additional evidence." Thus, "no inference of dismissal could be drawn from a grand jury's temporary inability to vote for an indictment."
The Aarons Court stated that "a formal vote of 12 grand jurors is necessary to dismiss a charge." 2 NY3d at 548-549. "(U)nder the formal procedural rules, a dismissal of a charge could not be merely inferred by the court, nor was it automatic upon the failure to indict. Rather, upon its determination that an indictment would not issue, the grand jury was required to expressly communicate to the court that the charges were to be dismissed." 2 NY3d at 550.
In Wilkins, the Court expressed a concern that allowing the People to withdraw a case from the consideration of a Grand Jury after all evidence has been submitted "would furnish the prosecutor the means of defeating CPL 190.75(3) in almost every case by withdrawing all but open and shut' cases and resubmitting them after further preparation or a more compliant Grand Jury is impaneled." 68 NY2d at 275. The Aarons Court noted that in their case, "the forum shopping concerns discussed in Wilkins are simply not present" since the People presented the rest of their evidence to the same Grand Jury, not a second one. 2 NY3d at 552.
The dissent in Wilkins did not dispute this concept; instead, Justice Hancock noted that "(b)ecause deliberations had not commenced, and indeed, the testimony had not been completed, there is no basis for concluding that the Grand Jury had, in reality, acted upon and dismissed the charge." 68 NY2d at 279.
Here, the People fully presented their evidence to the Grand Jury. They asked that jury to consider several felony charges. The jury did, and then voted a dismissal of those charges. As in Aarons, the People asked the jury to halt their deliberations temporarily while the People prepared additional charges. Once those charges were presented to the Grand Jury, the case was complete. At that stage, the Grand Jury had the choices of action available in CPL Sec. 190.60.
When the Grand Jury informed the Assistant that they had no action, the Assistant withdrew the case from the Grand Jury's consideration, and informed the Grand Jury that the matter was closed. The People then filed a misdemeanor information in Criminal Court, which contained the exact same charges upon which the Grand Jury had taken no action. It is hard to conceive that this action would not invoke the "forum shopping concerns" noted in both Wilkins and Aarons.
In People v. McCann, 169 Misc 2d 253, 254, 645 NYS2d 409 (Crim Ct, NY Cty, 1996), "the People withdrew the case from the Grand Jury without taking a vote or calling any other witnesses," other than the complainant and defendant. In fact, the Grand Jury in that case had requested additional witnesses before the case was withdrawn, and reduced in Criminal Court.
Citing Wilkins, the McCann court held that "(w)here, as here, the prosecution has withdrawn an essentially completed case from the Grand Jury prior to any action having been taken by that body, and thus thwarted the statutory scheme, the result will be deemed the functional equivalent of a dismissal under CPL 190.60(4)." 169 Misc 2d at 256. See, also, People v. Page, 177 Misc 2d 448, 677 NYS2d 689 (Crim Ct, Bx Cty, 1998). Here, the situation is more egregious — the Grand Jury had heard instructions on the law, and taken a vote on the misdemeanor charges.
In People v. Milton, 11 Misc3 1073(A), 816 NYS2d 699 (S Ct, Kings Cty, 2006) "after a charge on the law and submission of the charges the grand jury foreperson reported no true bill on all counts presented." The People discovered, however, that less than 12 jurors had come to this vote. The People asked the grand jury to come to a decision by 12 or more jurors. At that point, the foreperson informed the People there was no action. 10 days later, the People presented the case to a second Grand Jury.
The Milton court held that "removing the case from the grand jury after their return of a "No Action" was precisely the subversion of the grand jury's power that the Court in Aarons prohibited. The later submission to a second grand jury, in a successful attempt to find a more receptive grand jury, was precisely the forum shopping that the Court in Wilkins prohibited." 11 Misc 3d at 1073(A).
The Milton court also discussed the possible options the People have when the Grand Jury takes no action;
"First, inquire if the grand jurors have questions relating to the testimony, exhibits or the charge. Second, present additional evidence (citing Aarons), if available. Third, charge the grand jury on its duty to evaluate the evidence and come to a decision as authorized by CPL Sec. 190.60. Fourth, after following these steps, if the grand jury is still unable to reach a decision by a vote of 12, then request the Court's permission to withdraw the case and re-present it to another grand jury." 11 Misc 3d at 1073(A).
Here, while the People did inquire if the Grand Jury required any further information, and were told there was no further information or evidence required, the People never made any effort to charge the Grand Jury with their obligations under CPL Sec. 190.60, or seek permission to withdraw the case pursuant to CPL Sec. 190.75(3). Instead, the People withdrew the case, without the permission of the Court, and elected to proceed in another forum — Criminal Court.
This action is nothing less then a subversion of the Grand Jury's power, in violation of the rule of law announced in both Wilkins and Aarons.
Thus, based upon the People's withdrawal of the case from the Grand Jury, without permission of the Court, after the Grand Jury had heard a complete presentation of the evidence and law, this matter is deemed to have been dismissed.
Under CPL Sec. 190.50(2), "(i)f the defendant was previously held for the action of the grand jury by a local criminal court, the superior court to which such dismissal is presented must order the defendant released from custody." Here, however, Defendant has been incarcerated since the inception of this matter for a parole violation.
All other arguments advanced by the People and Defendant have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.