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Prosecution Can Not Dismiss A Count In An Indictment Without The Permission Of The Court

People v. Extale  

New York Court of Appeals 2012 NY Slip Op 02247

Decided March 27, 2012.  

Issue: Whether the prosecution can dismiss a count in an indictment over the defendant’s objection.

Held:  A prosecutor does not have the unilateral power to dismiss a count of a grand jury indictment over a defendant’s objection. Whether such a count should be dismissed at the prosecutor’s request is an issue to be decided by the court in its discretion.

Facts: In 2004, defendant drove his pickup truck into a police officer. A grand jury indicted him for several crimes, including first degree assault. Defendant was convicted but the Appellate Division ordered a new trial on the first degree assault and first degree vehicular assault counts, holding that they required inconsistent mental states and should have been submitted to the jury in the alternative.

At the second trial, before jury selection, the prosecutor announced to the judge: “The People do intend to withdraw the second count of the indictment and proceed solely on the Assault in the First Degree count.” Defense counsel objected, and the prosecutor replied tersely: “I believe the People can choose what charges to go forward on, and we’re doing so.” The court agreed. Defendant was convicted of second degree assault as a lesser included offense of first degree assault. The appellate Division affirmed, we now reverse and order a new trial.

Legal Analysis: Usually, of course, a defendant is happy to have a charge against him dismissed, and it is the People who oppose dismissal. But a role reversal can occur when a defendant, not optimistic about the likelihood of acquittal, wants the jury to have a chance to compromise or exercise mercy by convicting him of a lesser crime (see People v Leon, 7 NY3d 109, 113-114 [2006]). This line of thinking often leads defendants to request submission of a lesser included offense, in addition to the offense charged in the indictment, and the defendant is entitled to have such an offense submitted “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater”

Here, the crime that defendant wanted the jury to consider, and the People did not, was not a lesser included offense, but one of the offenses for which defendant was indicted. The People argue that they have discretion to withdraw such a count. We disagree: the discretion is the trial courts, not the People’s.

CPL 210.40 (3), which says:

“An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.”

The People could have moved for dismissal in the interest of justice under CPL 210.40 (3), or the court could have exercised its discretion under CPL 300.40 (6) (a) to withdraw a count from the jury when “[t]he people consent that it not be submitted”.