68 N.Y.2d at 274. See, also, People v. McCann, 169 Misc.2d 253, 254, 645 N.Y.S.2d 409 (Crim Ct, N.Y. Cty, 1996) (“(w)here, as here, the prosecution has withdrawn an essentially completed case from the Grand Jury prior to any action having been taken by that body, and thus thwarted the statutory scheme, the result will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;People v. Page, 177 Misc.2d 448, 677 N.Y.S.2d 689 (Crim Ct, Bx Cty, 1998).
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 In fact, the Grand Jury in that case had requested additional witnesses before the case was withdrawn, and reduced in Criminal Court.
The cases cited by petitioner are not to the contrary. See People v. Almonte, 190 Misc. 2d 783, 740 N.Y.S.2d 763 (Sup. Ct. 2002); People v. McCann, 169 Misc. 2d 253, 645 N.Y.S.2d 409 (Sup. Ct. 1996). As a result, the fact that Bier's trial counsel did not move to dismiss could not possibly have constituted ineffective assistance of counsel, rendering his argument on this point "without merit," Bier, 16 A.D.3d at 699, 794 N.Y.S.2d at 62, and the Appellate Division's rejection of it is fully in keeping with federal law. Simply stated, Bier has presented no evidence whatsoever that his trial counsel's conduct fell to a Strickland level of ineffectiveness.
We agree and now reverse. Where, as here, the prosecution has withdrawn an essentially completed case from the Grand Jury prior to any action having been taken by that body, the result will be deemed the functional equivalent of a dismissal under CPL 190.60 (4), and the prosecutor cannot resubmit the matter to a second Grand Jury without leave of court under CPL 190.75 (3) ( see, People v Wilkins, 68 NY2d 269; Matter of McGinley v Hynes, 75 AD2d 897, rev'd on other grounds 51 NY2d 116, cert denied 450 US 918; People v McCann, 169 Misc 2d 253; People v Holmes, NYU, Aug. 18, 1992, at 22, col 3). Under these circumstances, prejudice to the defendant may have resulted both because the first Grand Jury, had it been given the opportunity to act pursuant to statute, may very well have dismissed the charge, and because had leave been sought to resubmit the charge, it may have been denied ( see, CPL 210.35; People v Wilkins, supra, at 276-277; People v Jones, 206 AD2d 82, 86, affd 86 NY2d 493; People v Dykes, 86 AD2d 191, 194-195).
To an extent, defendant is correct. The People have no inherent power to withdraw an essentially completed case from the Grand Jury prior to any action having been taken by that body (People v. Wilkins, 68 N.Y.2d at 273–275, 508 N.Y.S.2d 893, 501 N.E.2d 542 ; People v. Page, 177 Misc.2d 448, 452, 677 N.Y.S.2d 689 [Crim.Ct., Bronx County 1998] ; People v. McCann, 169 Misc.2d 253, 256, 645 N.Y.S.2d 409 [Crim.Ct., N.Y. County 1996] ). The grand jury must be given the opportunity to vote on a case unless the court authorizes the withdrawal (People v. Milton, 40 A.D.3d 1125, 1126, 837 N.Y.S.2d 279 [2d Dept.2007] ).
The Second Department reversed: Where, as here, the prosecution has withdrawn an essentially completed case from the grand jury prior to any action having been taken by that body, the result will be deemed the functional equivalent of a dismissal under CPL 190.60(4), and the prosecutor cannot resubmit the matter to a second grand jury without leave of court under CPL 190.75(3)( see, People v. Wilkins, 68 N.Y.2d 269; Matter of McGinley v. Hynes, 75 A.D.2d 897, rev'd on other grounds 51 N.Y.2d 116, cert denied, 450 U.S. 918; People v. McCann, 169 Misc.2d 253; People v. Holmes, NYLJ, Aug. 18, 1992, [Sup Ct New York Co.], at 22, col 3.)Hemstreet, 234 A.D.2d at 610.
The Second Department reversed: "Where, as here, the prosecution has withdrawn an essentially completed case from the Grand Jury prior to any action having been taken by that body, the result will be deemed the functional equivalent of a dismissal under CPL 190.60 (4), and the prosecutor cannot resubmit the matter to a second Grand Jury without leave of court under CPL 190.75 (3) (see, People v Wilkins, 68 NY2d 269; Matter of McGinley v Hynes, 75 AD2d 897, rev'd on other grounds 51 NY2d 116, cert denied 450 US 918; People v McCann, 169 Misc 2d 253; People v Holmes, NYLJ, Aug. 18, 1992 [Sup Ct, NY County], at 22, col 3)." (Hemstreet, 234 AD2d at 610.)
In People v. McCann ( 169 Misc.2d 253 [Crim Ct, N Y County 1996]), the court held that the People's application to reduce the charge from felony assault in the third degree to misdemeanor assault in the second degree was denied where following the complainant's testimony before the Grand Jury, the defendant testified under waiver of immunity, the complainant was recalled for further testimony and the case was withdrawn without the Grand Jury taking a vote on the evidence presented. The matter was subsequently advanced for the purposes of reducing the charge and for further criminal court proceedings.