New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Authority Of The Trial Court To Reinstate An Indictment And Superseding Indictments


People v. Frederick

New York Court of Appeals Slip Op 04874

Decided June 10, 2010

Issue : whether a trial court can reinstate an indictment for felony murder after a mistrial had been declared and the indictment dismissed pursuant to a superseding indictment for felony murder and first degree manslaughter.

Held : although the Criminal Procedure Law does not expressly provide for reinstatement of an indictment under the circumstances presented in this case it does not preclude it. If the superseding indictment is a nullity, as it was in this case, then any action or consequence that flowed from its filing – here, the dismissal of the original indictment – was necessarily a nullity as well. In the absence of any constitutional or statutory double jeopardy bar, the trial court possessed inherent authority to reinstate the original indictment after dismissing the superseding indictment. Matter of Lionel F. , 76 N.Y.2d 747.

Facts : Mr. Frederick was charged with an eight count indictment including second degree attempted murder, first degree assault, second degree aggravated harassment, and two counts of second degree murder (depraved indifference and felony murder) and burglary.

At the first trial the Trial Court dismissed the depraved indifference murder before submitting the case to the jury and when one juror was unable to continue deliberating the judge declared a mistrial.

At the second trial there was a partial verdict and the jury convicted defendant of all crimes charged in the indictment except for felony murder and a mistrial was declared on that count.

Defendant was sentenced to 20 years on the attempted murder charge and to a consecutive ten years on a burglary charge.

While an appeal was pending the prosecution returned to the Grand Jury and re-indicted the defendant on felony murder and first degree manslaughter. Defendant was arraigned on the new indictment and the Trial Court dismissed the original indictment.

The case was then assigned to another Judge where the new indictment was dismissed pursuant to CPL § 40.40(2) which bars prosecution of the manslaughter charge because this crime was a joinable offense uncharged in the original indictment on which a trial had commenced.

The trial court’s reasoning was that the court had not dismissed the original indictment or otherwise authorized the People to represent new charges to a Grand Jury. Thus, the People were limited to retrying the defendant on the same accusatory instrument and the superseding indictment was declared a nullity and the original indictment was reinstated.

Defendant was tried again on the original indictment for felony murder and was found guilty at a bench trial. He was sentenced to 25 years to life to run concurrently with the 10 years sentence and consecutively to the 20 year sentence.