Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #9©

Issue: What is the effect of a defendant being indicted on a misdemeanor?

THE idea of a person being "indicted" on a misdemeanor charge may seem a bit odd. Isnít the purpose of an indictment to charge a person with a felony?

Yes, but thatís not the only purpose. An "indictment," under the CPLís definition, "charges one or more defendants with the commission of one or more offenses, at least one of which is a crime . . .." CPL 1.20(3). Thus, an indictment whose top count is a misdemeanor is a valid accusatory instrument. (Normally, of course, where the top charge is below the felony level, the accusatory instrument that the grand jury issues is a "prosecutorís information.")

Assuming that the grand jury, for whatever reason, returns an indictment charging a misdemeanor, what is the required size of the jury? As we all know, a petit jury on a misdemeanor has 6 members; a felony jury has 12. See chart in Handling a Criminal Case in New York, sec.18:89.

But where the accusatory instrument is an indictment, the defendant is entitled to 12 in the box, even though the highest charge is a misdemeanor. NY State Constitution, art 6 sec.18(a) provides that "crimes prosecuted by indictment shall be prosecuted by a jury composed of twelve persons." People v. Dean, 80 AD2d 695, 436 NYS2d 455 (3d Dept 1981); Handling a Criminal Case in New York, secs. 3:11, 18:87.

It should be noted that a defendant in New York State may not consent to a smaller jury. Handling, 18:87.

Now, a second question: Are there any other ways that the top count of an indictment can be a misdemeanor? Yes: This could occur where codefendants are charged, one with a felony, the other with a misdemeanor, and a severance is granted.
Another example of the top count being a misdemeanor is where a superior court judge, upon inspecting grand jury minutes, reduces or dismisses counts so that no felony count remains. CPL 210.20(1-a); Handling, sec. 6:118. In that situation, does the charge remain in superior court, or may it be sent to a local court? According to appellate caselaw, the superior court judge may transfer the case for trial to any local court having jurisdiction. Clute v. McGill, 229 AD2d 70, 655 NYS2d 200 (3d Dept 1997). And, according to lower case law, the superior court may retain jurisdiction as well. People v. Griffin, 142 Misc. 2d 41, 536 NYS2d 86 (Sup. Ct., Monroe County, 1988).

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