Summary
In People v Wilkins (68 NY2d 269 [1986]), we held that a prosecutor's unilateral withdrawal of a case from a grand jury after presentation of the evidence was tantamount to a dismissal, and that the prosecutor must seek court permission pursuant to CPL 190.75 (3) to submit the case to a new grand jury (see id. at 271-272, 276-277).
Summary of this case from People v. AllenOpinion
Argued September 11, 1986
Decided October 21, 1986
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Sheldon S. Levy, J., Harry W. Davis, J., E. Leo Milonas, J.
Michael A. Gross and Philip L. Weinstein for appellant. Robert M. Morgenthau, District Attorney (Susan Corkery and Amyjane Rettew of counsel), for respondent.
This appeal requires us to determine whether a prosecutor may withdraw a case from the Grand Jury after presentation of the evidence, and resubmit the case to a second Grand Jury without the consent of either the first Grand Jury or the court which impaneled it. We conclude that such withdrawal is the equivalent of a dismissal by the first Grand Jury, and that the prosecution may only resubmit the charges with the consent of the court. We, therefore, reverse the order of the Appellate Division and dismiss the indictment with leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.
The defendant was charged with murder in the second degree after fatally shooting his victim during a dispute. His case was presented to a Grand Jury, but it was withdrawn before a vote on whether to issue an indictment. Presentation of the case to a second Grand Jury resulted in an indictment charging the defendant with murder in the second degree. A trial on that charge ended in a mistrial when the jury announced it could not reach a verdict.
During that trial, defense counsel learned of the prosecutor's withdrawal and resubmission of the case. After the mistrial, the defendant moved for an evidentiary hearing on the circumstances of the resubmission. Granting the motion, the court concluded that there was no statute controlling whether the People could "abort a Grand Jury presentation in progress, and under what circumstances * * * Therefore, in the opinion of the court, each situation must be examined individually to determine whether the prosecution's conduct was proper within the facts of that case or whether it was merely a pretext to circumvent the function of the Grand Jury." ( 95 Misc.2d 737, 739.)
The hearing court concluded that the prosecutor acted in good faith in withdrawing the matter from the first Grand Jury, based on the following findings: The main reason the prosecutor withdrew the matter was his inability to produce two witnesses the Grand Jury requested, the arresting officer and a witness then known only as Freida. The detective assigned to locate her could not find Freida, and the Appearance Control Board (the Police Department's liaison with the District Attorney's office) informed the prosecutor that the arresting officer was either on terminal leave or vacation and in any event could not be produced. Meanwhile, the prosecutor was directed to proceed to trial on another matter. On the last day of the first Grand Jury's term, therefore, he asked another assistant to withdraw the case. The withdrawal was without the consent of the Grand Jury or the court.
Freida was eventually located after the conclusion of the Grand Jury proceedings, and testified for the People at the second trial.
After the mistrial, the defendant was tried a second time and convicted upon a jury verdict of first degree manslaughter. Sentence was imposed, and the Appellate Division affirmed the conviction, without opinion. The sole ground tendered on this appeal in support of the defendant's claim for reversal is the withdrawal and resubmission of the charges against him at the Grand Jury level. Were the subjective good faith of the prosecutor in withdrawing and resubmitting the charges against the defendant the dispositive issue on this appeal, we would summarily affirm. The undisturbed finding of the hearing court that the prosecutor acted in good faith is beyond the review powers of this court if, as here, it is supported by evidence in the record (see, e.g., People v Harrison, 57 N.Y.2d 470, 477).
That the prosecutor acted in good faith does not resolve the issue whether he had the legal authority to act, however. At common law a prosecutor could resubmit charges without limitation to successive Grand Juries until one voted an indictment (People ex rel. Flinn v Barr, 259 N.Y. 104, 107-108; Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 190.75, pp 342, 343). However, just as the Grand Jury serves to insulate citizens from prosecutorial excesses (People v Pelchat, 62 N.Y.2d 97, 104; People v Iannone, 45 N.Y.2d 589, 594), the Legislature recognized a need to insulate the Grand Jury process from the excesses which would flow from domination by a prosecutor (see, People v Di Falco, 44 N.Y.2d 482, 487). The result was section 270 of the former Code of Criminal Procedure, which prohibited the resubmission of dismissed charges without leave of court (People ex rel. Flinn v Barr, supra, at p 108). It became further necessary to curb the power of the courts, as well, which the Legislature did by limiting the number of authorized resubmissions to one (Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 190.75, p 343). Thus, if the withdrawal of this case from the first Grand Jury is the equivalent of a dismissal by that Grand Jury of the charges against the defendant, the prosecutor could not lawfully resubmit the matter without leave of the court.
The statute which presently controls, CPL 190.75 (3), provides: "3. When 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. If in such case the charge is again dismissed, it may not again be submitted to a grand jury."
The comprehensive statutory scheme regulating Grand Jury proceedings does not contemplate the termination of deliberations without some action by the Grand Jury. Thus, CPL 190.60 gives the Grand Jury a limited range of dispositions after hearing and examining evidence, including either indicting the defendant or dismissing the charges. In this case, the required concurrence of 12 grand jurors to a dismissal (CPL 190.25) was not obtained because the question was not put to a vote.
CPL 190.60 provides:
"After hearing and examining evidence as prescribed in section 190.55, a grand jury may:
"1. Indict a person for an offense, as provided in section 190.65;
"2. Direct the district attorney to file a prosecutor's information with a local criminal court, as provided in section 190.70;
"3. Direct the district attorney to file a request for removal to the family court, as provided in section 190.71 of this article;
"4. Dismiss the charge before it, as provided in section 190.75;
"5. Submit a grand jury report, as provided in section 190.85."
CPL 190.25 (1) provides: "1. Proceedings of a grand jury are not valid unless at least sixteen of its members are present. The finding of an indictment, a direction to file a prosecutor's information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least twelve members thereof."
Generally 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. Thus, where a particular charge had not even been presented to a Grand Jury considering another charge against the defendant, this court held the first charge could not be considered dismissed: "Before a grand jury may be said to have acted upon a charge, there must be some indication that it knew about and considered the charge" (People v Nelson, 298 N.Y. 272, 276; see also, People ex rel. Raimondi v Jackson, 277 App. Div. 924, lv denied 301 N.Y. 816). However, the presentation need not be complete for consideration equivalent to a dismissal to occur. In Mooney v Cahn ( 79 Misc.2d 703), for example, the prosecutor failed to direct the Grand Jury to act on the evidence he had presented; nonetheless, the court declined to allow the District Attorney to continue the prosecutions (79 Misc.2d, at p 706). In Matter of McGinley v Hynes ( 75 A.D.2d 897, revd on other grounds 51 N.Y.2d 116, cert denied 450 U.S. 918), the court held there had been the equivalent of a dismissal on facts nearly identical to those in the case now before us — withdrawal of a case near the end of the presentation of the evidence and before giving either a charge or an instruction to deliberate.
In the case before us, the first presentation was, as far as the prosecution was concerned, complete. Contrary to the assertions of the dissent, the District Attorney need not have formally rested and charged the Grand Jury before that body may be held to have considered and acted upon the charge. Indeed, in Matter of McGinley v Hynes ( 75 A.D.2d 897, supra), it was clearly held that the Grand Jury had heard and considered enough to render the withdrawal of the case equivalent to a dismissal, even though the prosecutor conceded that he had not finished presenting his case and certainly could not at that point have formally instructed the Grand Jury on the law. Moreover, the Appellate Division in McGinley, while concluding that the prosecutor's unauthorized resubmission to a second Grand Jury was improper, found that his estimate to the first Grand Jury that he had only a few more witnesses to present was "either erroneous or misleading", which is hardly an explicit finding of bad faith.
Here, the presentation had progressed further than that in McGinley — as far as the prosecutor was concerned, all witnesses had testified, and all that was left was to instruct the Grand Jury on the law. This progress was what compelled the court in McGinley, and what compels us in this case, to hold that the prosecutor's unilateral withdrawal so late in the game must be deemed a dismissal, regardless of the good faith of the withdrawal. Such conclusion is in keeping with the "beneficent purpose" of CPL 190.75 (3), which "must be interpreted fairly to carry out the policy which it was enacted to accomplish" and which "should not be nullified by a narrow technical construction which would * * * destroy its spirit" (People ex rel. Flinn v Barr, 259 N.Y., at pp 109, 108, supra).
The dissent and the People can cite no authority which directly supports the contention that the District Attorney possesses inherent power to withdraw a case from Grand Jury consideration. This lack of any judicial or legislative acknowledgement of authority is understandable. An explicit recognition of such power by this court 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. Moreover, it would make a mockery of the legislative command that the District Attorney serve as legal advisor to the Grand Jury (CPL 190.25), because it would allow the prosecutor to circumvent the statutory command that an "affirmative official action or decision" of the Grand Jury requires the concurrence of 12 of its members, not the sole whim, or even considered judgment, of the prosecutor. As legal advisor to the Grand Jury, the District Attorney should also have known that the Legislature has provided a solution for the dilemma that occurs when a presentation has not been completed by the end of the Grand Jury's term: extension of the term, as authorized by CPL 190.15 (1), upon a declaration of need by both the prosecutor and the Grand Jury. Indeed, the term of the first Grand Jury to which this defendant's case was presented was extended as to another matter, indicating both the prosecutor's knowledge of this option and its feasibility.
For example, the case primarily relied upon, People ex rel. Raimondi v Jackson ( 277 App. Div. 924, lv denied 301 N.Y. 816), merely held that habeas corpus would not lie to review an indictment resulting from an allegedly unauthorized resubmission. In dictum, the court noted: "Here there was no dismissal [of the charge by the first Grand Jury]. It does not appear that there was any consideration, action, vote or return" (277 App. Div., at p 924).
If, as the dissent suggests, there are reasons which routinely and legitimately require withdrawal or interruption of a Grand Jury presentation, such as illness or vacation of a witness, then surely the Grand Jury involved would understand and agree to an extension of its term. Even if it did not, the prosecutor would always have the fallback of obtaining court approval for resubmission, which, if the reasons tendered are indeed legitimate, should be granted. The dissent would have dismissal depend on a finding of prosecutorial bad faith. That, in turn, would require, in every case, a hearing with its attendant cost and delay. On the other hand, a request to the Grand Jury to extend its term can be made informally by merely asking for a vote on the question, and if 12 grand jurors do not concur, leave to resubmit could be sought in most instances by a motion, which the court could grant or deny on the papers alone.
The resubmission of this defendant's case to a second Grand Jury without leave of court, because it violated the proscription of CPL 190.75 (3), constituted a failure to conform to the requirements of article 190 "to such degree that the integrity thereof is impaired" (cf. People ex rel. Flinn v Barr, supra). 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 charges, given the lack of testimony from anyone who had actually seen the defendant shoot at and hit the victim, and because, had leave been sought to resubmit the charges, it may have been denied (see, Matter of McGinley v Hynes, supra). Under these circumstances, notwithstanding the permissive language in CPL 210.20 (1) (c), the denial of the defendant's motion constituted an abuse of discretion as a matter of law.
The controlling statutory authority is CPL 210.35, which provides in pertinent part:
"A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 [i.e., will be properly dismissed upon motion] when: * * *
"5. The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result."
[4] We decline the prosecutor's invitation to adopt the rule of United States v Mechanik (475 US ___, 106 S Ct 938) that conviction after trial renders a defect in Grand Jury proceedings harmless error. Our statute, CPL 210.35 (5), provides for dismissal upon the mere possibility of prejudice, and we have consistently held that defects in Grand Jury proceedings (as opposed to claims of insufficiency of evidence to support the indictment, which are barred by CPL 210.30 [6]) may be raised even after a plea of guilty (see, e.g., People v Dunbar, 53 N.Y.2d 868).
CPL 210.20 (1) (c) provides:
"1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: * * *
"(c) The grand jury proceeding was defective, within the meaning of section 210.35".
Accordingly, we reverse the order of the Appellate Division affirming the defendant's conviction and dismiss the indictment. Because our reversal vacates the second, unauthorized Grand Jury presentation, we grant leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.
Judges MEYER, KAYE and TITONE concur with Chief Judge WACHTLER; Judge HANCOCK, JR., dissents and votes to affirm in a separate opinion in which Judges SIMONS and ALEXANDER concur.
Order reversed and indictment dismissed with leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.
A Grand Jury indicted defendant for murder in the second degree. A petit jury could not agree whether defendant was guilty of this charge but, in a second trial, another jury convicted him of first degree manslaughter. The majority now reverses this conviction under CPL 210.35 (5) (majority opn, at p 276, n 6) because the District Attorney, concededly acting in good faith, withdrew the matter on the last day of the Grand Jury term (before deliberations had commenced or the testimony had been completed) in view of the unavailability of two witnesses which the Grand Jury had requested him to call. We find no statutory authority for this result or precedent in case law.
Under the Criminal Procedure Law, the court "may, upon motion of the defendant, dismiss" an indictment if the "grand jury proceeding was defective, within the meaning of section 210.35" (CPL 210.20 [c]; emphasis added). As provided by the statute, a Grand Jury proceeding is "defective" under CPL 210.20 (1) (c) when the proceeding "fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35; emphasis added). Despite the lack of any showing in the record of impairment of the process or possible prejudice to the defendant, the majority has concluded that, as a matter of law, there was a nonconformance with article 190 "to such degree" as to require dismissal under CPL 210.35 (5).
The particular noncompliance with article 190 ("The Grand Jury and its Proceedings") which is held to be sufficient to mandate dismissal under CPL 210.20 (1) (c) and CPL 210.35 (5) does not involve misconduct of the District Attorney or any irregularity or occurrence which might have affected the integrity of the proceedings themselves, such as, for example, the presence of unauthorized persons before the Grand Jury (see, CPL 190.25; People v Beauvais, 98 A.D.2d 897), the presentation of evidence by an unauthorized prosecutor (see, People v Di Falco, 44 N.Y.2d 482), a violation of the requirement of secrecy (see, CPL 190.25), or proceeding in the presence of fewer than 16 grand jurors (see, CPL 190.25). Indeed, there was no such misconduct or irregularity. The hearing court expressly found no "interference by the prosecutor with the Grand Jury's functions, duties or integrity" and rejected any finding that the motive for the withdrawal had been the desire to remove the case from an "active" Grand Jury to one which would be "more pliant". It also found, contrary to the contentions of the majority and defendant, that the prosecutor, when the case was withdrawn, had not completed the presentation of all of the evidence to the Grand Jury. As the majority has noted, these findings are supported by evidence in the record and are beyond our review (majority opn, at pp 272-273). Rather than any noncompliance with article 190 pertaining to the actual proceedings before the Grand Jury, the sole reason for invoking CPL 210.35 (5) here is the failure of the District Attorney to seek leave of the court for resubmission — an act which is required by article 190 only after a case has been dismissed by the Grand Jury, something that did not occur here.
The Judge hearing the motion to dismiss the indictment made the following finding of fact: "I am urged that the Assistant [District Attorney] had already submitted all of his evidence to the November Grand Jury for its consideration. I do not find this to be so since they asked for additional witnesses and when these were not produced no further action was taken by the Grand Jury before the case was withdrawn. As the Grand Jury transcripts indicate, they asked to hear the arresting officer, Detective Edward Martin, and a witness known only as Freda." (Emphasis supplied.)
It is clear that in resubmitting the matter without court permission there was no per se violation of CPL 190.75. By the very terms of CPL 190.75 (3), the dismissal (referred to in the phrase "[w]hen a charge has been so dismissed") which requires permission for resubmission is the dismissal by the Grand Jury under CPL 190.75 (1) when there is no "legally sufficient" evidence (subd [a]) or when "the grand jury is not satisfied that there is reasonable cause to believe" (subd [b]) that the defendant committed the crime charged. Clearly, a dismissal under the statute can only result from action by the Grand Jury. An action of the prosecutor cannot be deemed an action of the Grand Jury. Moreover, it has been held that to constitute a dismissal by the Grand Jury, the Grand Jury must have considered and acted upon the charge (see, People v Nelson, 298 N.Y. 272-276; People ex rel. Raimondi v Jackson, 277 App. Div. 927, lv denied 301 N.Y. 816). Because 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 under CPL 190.75 and 190.60 (compare, e.g., People v DeLio, 75 Misc.2d 711, where there was no question that the Grand Jury had considered and "disposed of" the charge, and Mooney v Cahn, 79 Misc.2d 703, 705 [majority opn, at p 274], where it was "clear that the Grand Jury heard and considered all of the evidence regarding the charges").
CPL 190.75 insofar as pertinent is as follows:
"1. If upon a charge that a designated person committed a crime, either (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 or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.
"2. If 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 if he is in the custody of the sheriff, or, if he is at liberty on bail, it must exonerate the bail.
"3. When 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. If in such case the charge is again dismissed, it may not again be submitted to a grand jury."
Although the District Attorney's failure to obtain court approval before resubmission to another Grand Jury cannot, under any construction of CPL 190.60 or 190.75, be considered an action of dismissal by the first Grand Jury, the majority, nevertheless, holds that this omission should be given "the effect of a dismissal". With the necessary "dismissal" thus created for the purpose of the requirement of court authorization for resubmission under CPL 190.75, the District Attorney's subsequent conduct in resubmitting the matter without such authorization is held to be nonconformance with article 190 "to such degree" as to render the proceedings defective under CPL 210.35 (5). The single case cited as authority for this proposition is Matter of McGinley v Hynes ( 75 A.D.2d 897, revd on other grounds 51 N.Y.2d 116, cert denied 450 U.S. 918) where the court concluded from the record before it that the "withdrawal of the case from the September 1978 Grand Jury took place because of the possibility that the Grand Jury would vote against indictment" and that "the Special Prosecutor's admission to the September 1978 Grand Jury that he only had a few remaining witnesses was either erroneous or misleading" ( 75 A.D.2d 897, 898, supra). But it is the very element of bad faith on the part of the prosecutor upon which the McGinley court clearly premised its decision that the hearing court, in the case before us, has specifically found to be missing.
The majority does not suggest that every withdrawal of a charge by the District Attorney and subsequent resubmission without court approval would constitute a violation of article 190 making the Grand Jury proceeding defective under CPL 210.20 (1) (c) and subject to dismissal under CPL 210.35. Indeed, such a per se rule would be directly contrary to the plain wording of CPL 190.75 and 190.60 and would amount to an outright amendment of those statutes through judicial legislation. Under the announced rule, the motivation of the District Attorney in withdrawing the case and whether he acted in good faith or bad faith (decisive factors present in McGinley) are irrelevant. The equation is based entirely on "the extent to which the Grand Jury considered the evidence and the charge" (majority opn, at p 274). No guideline is provided as to when the case has progressed to the point where it should be deemed a dismissal. But, from the holding here, it is clear that a withdrawal may be deemed a dismissal even though there are further witnesses to be presented and even though the prosecutor has not instructed the Grand Jury on the law enabling them to begin their deliberations.
In our view, the interpretation of CPL 190.75 and 190.60 and the procedures followed by the courts below were entirely proper. If the hearing court had found bad faith or improper motivation on the part of the District Attorney, it should have dismissed the indictment provided that it also concluded that the integrity of the Grand Jury proceedings had been impaired and that there was a possibility of prejudice to the defendant (CPL 210.20 [c]; 210.35 [5]). The court would, moreover, have been justified in requiring the District Attorney to obtain authorization for resubmission under CPL 190.75 (3) (see, Matter of McGinley v Hynes, supra). Because the court found no bad faith or other impropriety, it acted in accordance with existing statutory and decisional law in denying the defendant's dismissal motion. We know of no practical or policy reason for changing the established rules and curtailing the power of the District Attorney when he acts in good faith in withdrawing a case before presentation of the evidence has been completed and the Grand Jury has commenced its deliberations on the matter. Certainly, nothing in the legislative history of CPL 190.75 (3) supports the conclusion that the Legislature intended to require court approval for resubmission of a charge which has not been dismissed but which has been withdrawn by the prosecutor acting in good faith for a proper reason. On the contrary, it appears from the history of the statute and its predecessor in the Code of Criminal Procedure (see, majority opn, at p 273) that the sole purpose behind the enactment of CPL 190.75 (3) was to insulate citizens from prosecutorial excesses and to curtail the power of a prosecutor to "resubmit charges without limitation" (majority opn, at p 273) after successive dismissals of the charge by different Grand Juries. Thus it is that the statute by its terms is precisely limited to a resubmission when "a charge has been * * * dismissed" (CPL 190.75; emphasis added).
As the hearing court pointed out, reasons "for withdrawing a case [before the Grand Jury has acted on it] arise when witnesses requested to appear are not able to do so because of illness, vacation or some other personal reason." Henceforth, one must assume, resubmission of a charge which has been withdrawn for such routinely advanced reasons could, although clearly not called for under the statute, require court authorization under CPL 190.75 (3). Certainly prudence would dictate that court authorization be sought. Adding judicially created limitations on the District Attorney's discretion to the limitations already existing in the statutory framework is certainly not necessary for the purpose of preventing the District Attorney from acting with improper motives and "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" (majority opn, at p 275). For, as noted, the majority's rule depends solely on the extent to which the evidence has been submitted and operates irrespective of the District Attorney's motivation for withdrawing a case. And there are sufficient existing statutory safeguards for curbing the power of a prosecutor who acts in bad faith and withdraws a case from the Grand Jury for improper reasons (see, CPL 210.20 [c]; 210.35 [5]; Matter of McGinley v Hynes, supra). The majority recognizes the "dilemma" that its judicial amendment of the applicable statutes will create for prosecutors who, for entirely legitimate reasons, must withdraw a case before presentation of the evidence is completed (majority opn, at p 276). It is hardly a satisfactory answer to this "dilemma" to point out, as the majority does, that a prosecutor may seek a court order for extension of the Grand Jury term (CPL 190.15) or authorization to resubmit to another Grand Jury (CPL 190.75). It is certainly no answer at all to the "dilemma" of the prosecutor who has withdrawn the case for good reasons, has had his requests for extension of the Grand Jury term and for resubmission to a new Grand Jury refused by the court, and must see his case dismissed. For these reasons, we must record our dissent.