Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 5, #2©

Issue: Under what circumstances may a prosecutor submit charges to a grand jury in New York where that body has previously voted?

A felony charge in New York State is normally presented to a grand jury. That body, composed of 16-23 members, will vote on whether to issue a "true bill" of indictment, reduce the charge to a prosecutor's information that accuses a misdemeanor or violation, or "no bill" the case. Though reputed to be able to indict the proverbial ham sandwich, on some occasions a grand jury will exercise independent judgment.

Where the grand jury does not charge a case as it was originally presented, the prosecution may seek re-presentation of the case. To what extent may a prosecutor resubmit (re-present) when a previous grand jury has already declined to so charge? The main procedural statute is CPL 190.75(3): "When a charge has been so dismissed [by the grand jury], 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. If in such case the charge is again dismissed, it may not again be submitted to a grand jury." Resubmitting a case may arise in the following situations:

  • to obtain a superseding indictment that contains additional counts. CPL 200.80. See Handling a Criminal Case in New York §§ 3:21, 3:94.
  • where the prosecutor has withdrawn the charges without obtaining a vote from the grand jury. See §§ 6:32, 6:118.
  • where the grand jury has no billed, or charged the defendant with lower offenses than the prosecution had sought. See § 6:34.
  • in response to a pending defense motion to dismiss the indictment. See § 6:118.
  • where the judge has granted the defense motion to dismiss the indictment as defective, or has reduced the charges. See §§ 6:118 - 6:119.
  • after a trial or appeal, where a top count of the indictment has been dismissed, but other counts remain. See § 6:35, § 23:123.
  • where new evidence is discovered after the prosecution appealed an adverse suppression ruling.

In some situations, the prosecution may need court permission. Additionally, a two-limit submission rule may apply.

Where the grand jury no bills charges against a defendant, court permission is required to resubmit the charges one more time. CPL 190.75(3). But the two-bite rule does not apply where the court dismissed once and the grand jury no billed once. People v Morris, 93 NY2d 908, 690 NYS2d 510 (1999). See CPL 210.20(4). Where the court dismisses or reduces counts of an indictment as being defective, an option for the prosecutor is to resubmit the charges to a grand jury within 30 days, or a greater time period upon a showing of good cause. CPL 210.20(6)(b) contains a two-bite rule for judicial dismissals for defective indictments. Where the prosecutor has completed presentation to one grand jury, withdrawal of charges is equivalent to a dismissal, and court permission is required to submit the case to the same or another grand jury. CPL 190.75(3); People v Wilkins, 68 NY2d 269, 508 NYS2d 893 (1986). Where the prosecutor has withdrawn the charges before completing the presentation, no judicial permission to resubmit is required. People v Gelman, 93 NY2d 314, 690 NYS2d 520 (1999). If the grand jury takes no action due to insufficient number of votes, no court permission to resubmit to the same grand jury is required. People v Foster, 279 AD2d 317, 720 NYS2d 98 (1st Dept 2001). A grand jury may sua sponte reconsider, without leave of court. People v Neal, 231 AD2d 470, 647 NYS2d 506 (1st Dept 1996). But where the prosecutor intervenes, such a reconsideration needs leave of court. People v Montanez, 90 NY2d 690, 665 NYS2d 62 (1997). Where the grand jury no bills one crime arising out of a transaction, the prosecution may submit a different crime arising out of the same transaction without judicial authorization. People v Rodriguez, 261 AD2d 111, 690 NYS2d 186 (1st Dept 1999).

Standard for permitting resubmission. The court's power to supervise resubmission is not ministerial and should be granted only upon proper grounds, including where there is new evidence, if the grand jury failed to give the case a complete and impartial investigation, or that there is a basis the grand jury acted in an irregular manner. People v Jones, 206 AD2d 82, 618 NYS2d 319 (1st Dept 1994), order affirmed sub nom. People v Franco, 86 NY2d 493, 634 NYS2d 38 (1995). One lower court decision states that the court may direct the prosecutor to resubmit lesser included offenses to the grand jury. People v Crouthers, 193 Misc2d 471, 750 NYS2d 450 (County Ct 2002). Where the defense moves, post-indictment, to dismiss, the prosecution may resubmit to obtain a superseding indictment without leave of court. People v Gonzalez-Rodriguez, 245 AD2d 1051, 667 NYS2d 583 (4th Dept 1997). Where the prosecution appeals a suppression order under CPL 450.50 and loses, the prosecution may resubmit charges to a grand jury where "exceptional circumstances" exist -- new evidence is discovered that was unavailable at the time of the original appeal. People v Burdo, 1 AD3d 793, 767 NYS2d 482 (3d Dept 2003). See § 23:56.

Release of defendant. If the grand jury no bills the charges, the defendant is to be released. CPL 190.75(2). If the judge dismisses the indictment but grants permission to resubmit charges, the defendant may continue to be held. CPL 210.45(9); People v Vogel, 216 AD2d 857, 629 NYS2d 157 (4th Dept 1995); § 4:37.

Time limits. There is no time limit on re-presentation, though statutory speedy trial considerations, CPL 30.30, may come into play. Handling a Criminal Case in New York §§ 13:48, 13:84, 23:124.

When a visitor asked why the lawns at Kings College and Oxford look so good, he was told, "You feed them and roll them, feed them and roll them, and you do that for 300 years."

Interim Probation: In state court, after conviction but before sentencing,
the judge may impose conditions on a defendant. In sentencing, the defendant, the court may consider the defendant's record of compliance with the conditions. CPL 400.10(4).


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